COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Lemay,

 

2007 BCCA 501

Date: 20071012

Docket: CA034875

Between:

Regina

Appellant

And

Cody Paul Lemay

Respondent

Ban On Disclosure s. 486.4 (1)(a) C.C.C.

Before:

The Honourable Madam Justice Newbury

The Honourable Mr. Justice Low

The Honourable Madam Justice Kirkpatrick

Oral Reasons for Judgment

J.M. Gordon, Q.C.

Counsel for the (Crown) Appellant

J. G. Sawchuk

Counsel for the Respondent

Place and Date of Hearing:

Vancouver, British Columbia

 

11 October 2007

Place and Date of Judgment:

Vancouver, British

 

12 October 2007

[1]                NEWBURY, J.A.: This is a Crown appeal, with leave, from a sentence of five years’ imprisonment, imposed upon Mr. Lemay after he pleaded guilty to one count of aggravated sexual assault contrary to s. 273 of the Criminal Code.  The maximum punishment for aggravated sexual assault is life imprisonment.  The victim of the offence, which was actually a series of assaults over a one-week period, was a 13-month old girl, “KLN”.  She was the daughter of a woman with whom Mr. Lemay was living, and the mother had left KLN in his care while she attended college.  He was at least a babysitter but was probably not a person in loco parentis, given the fact Mr. Lemay and the mother had known each other only for a short time.  Mr. Lemay was age 22 and had no criminal record.

[2]                The circumstances of the assaults, as confessed by Mr. Lemay to police, were that he had been left alone with the infant and was changing her diapers.  On at least five, and perhaps as many 12 occasions, he penetrated her anus with one, then two, fingers and took his finger(s) in and out “really fast, really hard” because he was angry at KLN’s mother.  Ultimately, at the end of his long interview with police, he said he had penetrated the infant’s anus with his penis and ejaculated.

[3]                On 6 September 2006, the mother noticed signs of bleeding and bruising when she was changing KLN’s diapers, and asked Mr. Lemay about it.  He said he had dropped the baby by accident the previous day.  However, on 8 September the baby was in obvious distress and was taken to hospital by her mother and grandmother.  She was found to have peritoneal tearing and was quickly transferred to a paediatric hospital in Calgary.  There, she underwent surgery to repair the tear, which was three centimetres in length and was described by the doctor as an “open, gaping laceration”.  The anus was dilated and torn from the front to the anal canal and there were superficial tears of the skin around the anus.  The doctor’s report stated:

In my years of experience in care of the sexually assaulted patient, KN had the most severe genital injuries I have ever examined in a pediatric sexual assault case.  Although not unheard of, injuries to this extent are uncommon.  It is also uncommon for a pediatric victim of sexual assault to require examination under general anesthesia and repair of genital injuries under general anesthesia.  This also speaks to the severity of the genital and anal injuries in this case.

[4]                Forensic swabs and samples were taken but did not yield any DNA or semen.  The report states that “injuries in this area generally heal well in pediatric patients”, although only time can permit a long-term prognosis.

[5]                After the guilty plea was taken on 13 September 2006, the sentencing was adjourned to allow a pre-sentence report to be prepared.  Any psychological or psychiatric assessment was opposed by defence counsel.  On 9 November Mr. Lemay purported to retract his previous admission of penile penetration, resulting in a further adjournment.  On 12 February 2007, at the sentence hearing, the trial judge viewed the video of Mr. Lemay’s confession.  In his sentencing reasons, the sentencing judge found that the act of penile penetration had occurred in addition to the digital penetration, although the judge did not regard the distinction as terribly important in arriving at his decisions.  In his words:

[2] Mr. Lemay, there are days on which one almost has to reflect on what it means to be human and this is one of those.  I find what occurred, incomprehensible.  I do accept that the Crown has established penile penetration of the anus, but I do not know that that is particularly relevant.  It seems to me that whether I was dealing with this as a sexual act of repeated digital penetration of the anus to the extent of being able to cause bodily harm, for sexual purposes, or taking the sexuality out of it, repeated acts of cruelty with some sense of revenge on the mother, or I treat it as penile penetration, is somewhat irrelevant.  It still is, basically, as I said, inhuman and incomprehensable.

[6]                The sentencing judge found that Mr. Lemay had not “technically” been in a position of trust, but that he had been in a position “very similar to that”, and found that was an aggravating circumstance.  With respect to the child’s young age, he noted it “cuts both ways” in that she was sufficiently young that there was the hope she would not be traumatized.  He found that the offences, having occurred over a week, had given Mr. Lemay the opportunity to reflect on what he had done, and just quit, but that he had not done so.

[7]                As mitigating factors, the Court noted Mr. Lemay’s young age; that he had quickly pleaded guilty; confessed to the crimes shortly after arrest, and had no criminal record.

[8]                Turning to the cases, the sentencing judge said he had difficulty understanding why some of them had not attracted longer sentences.  He noted in particular R. v. Poslowsky, [1998] B.C.J. No. 1298 (B.C.C.A.) in which this court increased to 10 years a sentence for attempted murder and aggravated sexual assault in connection with the brutal rape of a young girl after which the appellant had left her for dead.

[9]                The sentencing judge here relied more heavily, however, on a decision of the Ontario Court of Appeal in R. v. J.B., [2004] O.J. No. 2559 (Ont. C.A.), in which a six-year- old girl and a five-week old baby boy were both horribly assaulted by the appellant.  The psychiatric evidence indicated he was a “sexual sadist” with paedophilic tendencies, and was “prone to substance abuse and extreme acts of violence.”  At trial he was given a global sentence term of imprisonment of six years after being given credit for four years pre-trial custody on a three for one basis.  The Court of Appeal, per Moldaver J.A., increased the global sentence to 12 years.  On the aggravated sexual assault of the young girl, the Court imposed a sentence of six years less two years for pre-trial custody for a total of four years and on the assault causing bodily harm to the same victim, three years consecutive.  For the assault on the baby boy, the Court imposed a sentence of seven years, which less two years for pre-trial custody, netted out to five years.  Thus the five and four and three added up to a 12-year global sentence.

[10]            The sentencing judge in the case at bar reviewed the facts of J.B., and continued at para 12:

… Nothing that you did is comparable, so what is the appropriate range?  I take some solace in the comment by Mr. Justice Moldaver in J.B., who is a well-respected and senior jurist, and one of his panellists who is now a member of the Supreme Court of Canada in the decision of the offence of aggravated sexual assault with respect to the young girl, which was the single act involving what she believed might have been a crayon inserted, that the appropriate sentence was six years.  I take some solace in that setting the range and although the act there is more minimal, the accused is certainly far worse.  I think that is not an unreasonable description though of the approximate range for this offence, six years.

Then, taking Mr. Lemay’s “dead time” of five months into consideration, he sentenced him to five years’ imprisonment.

[11]            Leave to appeal was granted by this Court in July 2007, and a post-sentence report was ordered by a panel.  (See 2007 BCCA 391).  The post-sentence report ordered was in fact a post-sentence assessment to be prepared by a forensic psychiatrist, Dr. Grasswick.

[12]            I should note that the sentencing judge had, and we have, a pre-sentence report in the usual form.  It noted that Mr. Lemay had reported he had been traumatized by bullying when young; had suffered from depression, and claimed he might suffer from borderline personality disorder.  He had supportive parents but his grandmother described him as “someone with serious mental health and substance abuse problems”. 

[13]            The psychiatric report available to this court was very long, and I hesitate to try to summarize it.  Among other things, it suggested Mr. Lemay does have problems with “relationship instability”, psychopathy, early maladjustment and personality disorder.  He was described as having “quite limited insight” into his mental health problems and the factors associated with his sexual offending.  He was not diagnosed as a pedophile but a phallometric examination was suggested.  This was agreed to by Mr. Lemay and showed his greatest response was to “scenarios describing fondling a female child”.  The report states he has a “clear profile of deviant sexual interests, with no interest in consensual adult relationships”.  Continuing on with the psychiatric report, Mr. Lemay was said to have a borderline personality disorder, though not a “major mental illness”.  His disorder was characterized by “unstable personal relationships, affective and behavioural impulsivity, intense inappropriate anger, self-mutilating behaviour, and self-image problems”.  His risk of re-offending violently was found to be moderate, and of re-offending sexually, was found to be moderate to low.  (This was done prior to the results of the phallometric testing being available.)

[14]            On appeal the Crown seeks a 10-year sentence.  Mr. Gordon submits that the sentence of five years was not proportional to the gravity of the offence and the degree of the offender’s responsibility; that the sentencing judge gave inadequate effect to the protection of the public, deterrence and denunciation of offenders of this kind; and that he failed to give effect to the aggravating circumstances required to be considered pursuant to s. 718.2(a) of the Criminal Code.  Mr. Gordon also suggests that amid the many cases that were cited to the sentencing judge and to us in this matter, the sentencing judge may have failed to keep foremost in his mind the principles of sentencing enumerated in s. 718.  Last, Mr. Gordon notes that the new evidence I have described makes the protection of the public even more important than might previously have appeared, and that combined with the injury done to KLN and the sheer inhumanity of the respondent’s conduct, five years is simply an inadequate response. 

[15]            I agree with the Crown’s contentions.  As Mr. Gordon said, a review of “comparables” can only take one so far in cases of this extreme kind.  Here we have several instances of aggravated sexual assault by a person in whose care the child had been left; and for the stated purpose of expressing anger toward her mother.  (In fact, the psychiatric evidence now suggests a sexual purpose as well.)  With all due respect to defence counsel’s arguments, the fact that the child may not recall these events later in life will be only good luck.  The defendant gave absolutely no thought to the effect of the injuries he was inflicting on her.  In my view, the principles of denunciation, protection of the public, and deterrence, as well as, rehabilitation, required a longer sentence than five or effectively six years.

[16]            I would allow the appeal and increase the sentence to seven years, after giving credit for time served awaiting sentence.  This is, in my view, entirely within the “range” indicated by the cases that seem most similar to this including Paslowski, supra, R. v. D.D., [1993] N.W.T. No 79 (N.W.T.S.C.), R. v. Chaput; [1996] B.C.J. No. 2661 and R. v. J.B., supra.  As Moldaver J.A. noted in the latter case, the sentence must reflect “the need to separate offenders such as the respondent from society.”  In J.B., the offender would have received a higher sentence but for the hope he had some insight into his crimes.  That does not appear to be the case here.

[17]            In summary, I would allow the Crown’s appeal and increase the five-year sentence to one of seven years’ imprisonment.

[18]            LOW, J.A.: I agree.

[19]            KIRKPATRICK, J.A.: I agree.

“The Honourable Madam Justice Newbury”

CORRECTION – 5 November 2007

On page one after the party Cody Paul Lemay, “Appellant” is changed to “Respondent”.