Canada

Full text of Jack Ramsay sentence

Q.B.C. A.D. 1999 No. 1254 J.C.M.

IN THE QUEEN'S BENCH JUDICIAL CENTRE OF MELFORT

BETWEEN:

HER MAJESTY THE QUEEN

- and -

FRED JOHN (JACK) RAMSAY

Robin D. Ritter for the Crown

Morris P. Bodnar, Q.C. and E. Scott Hopley for the accused

JUDGMENT OF THE COURT ON SENTENCING OF FRED JOHN (JACK) RAMSAY ON HIS CONVICTION NOBLE J. FOR "ATTEMPTED RAPE" BY A JURY AT MELFORT, SASKATCHEWAN ON NOVEMBER 24, 1999

May 4, 2000

[1] The accused Jack Ramsay was tried by a Judge and Jury on a charge that between May 15, 1969 and October 31, 1969 he raped the complainant contrary to sections 135 and 136 of the Criminal Code which were in effect during that time period. The jury was given the choice of acquittal and one of three possible guilty verdicts to choose from, arising out of the evidence before it; namely: rape, attempted rape or indecent assault. It chose to convict the accused of the included offence of attempted rape.

[2] While it will be necessary to deal with some specific aspects of the evidence during the course of these remarks a brief outline of the events which led to the charge against Mr. Ramsay is useful at this point.

[3] The complainant (now 44 years old was 14 at the time) lived in Pelican Narrows which was essentially an aboriginal community. She described how the accused who was the corporal in charge of the R.C.M.P. detachment in Pelican Narrows at the time called at her home and spoke to her mother. Her mother then told her that the accused wished to talk to her at the R.C.M.P. station and she was to go with him. He was in R.C.M.P. uniform. She rode with the accused to his office but stated no one told her why she was going there. When they arrived at the detachment office she was asked to take a seat - the door was closed and only the two of them were present.

[4] The accused she said asked her if she was a virgin to which she replied "no". Then he asked her if her mother knew she was not a virgin and she again said "no". She then claims he said if you don't have sex with me I'll tell your mother. Next she says he asked her to come over to him, told her to take her pants down which she did down to her knees. He then took his penis out of his pants which was erect and he entered her vagina in a standing position even though as she testified it was a bit of a struggle to get his penis in her vagina. She then indicates he had intercourse with her and that it was painful. When she was asked if she co-operated she said yes because if she didn't he would tell my mom. When he stopped she went to the washroom to clean herself off and then went home. It was not until sometime in 1997 that she approached the police in Edmonton to lay a complaint. [5] The accused's recollection of the event is described by him in a statement he made to a police officer which was entered in evidence by the Crown. He recalled it as follows:

. . .She was in my office and I do not remember exactly why she was there but ah, ah, at the end of our conversation, I asked her if she had ever had sexual relations with anyone. She indicated that she had and ah, to, I don't remember exactly how the conversation went but I asked her if she would like to have sex with me. Now, I thought that this was more of a joke than anything else, or spoke in a joking way. Ah, and I left the office and I told her if she'd like to have sex with me, then to, just to undo her slacks. I went down the hall and when I came back, her, her top button of her slacks was undone, her zipper was undone and I could see her, ah, her panties. I approached her ah, and with, I was sexually aroused and I approached her and I believe I, I, ah, I touched her, her waist with my hands and at that moment, the disgusting nature of what was happening caused me to turn away and I went back behind the desk and when I turned, she had, I saw her doing up her slacks and her buttons and she left. . . .

[6] Following the jury's verdict the matter was adjourned to Saskatoon to deal with sentencing and adjourned yet again to April 17th last to obtain a pre-sentence report on Mr. Ramsay. In addition both counsel filed information with the Court designed to bolster their arguments as to the nature and degree of the appropriate sentence the Court should impose on the accused. There was a victim impact statement by the complainant dated December 15, 1999. The Crown also filed selected debates from the House of Commons quoting the accused, in his capacity as Justice critic for the Reform Party, as to his views on crime and punishment. They also included press clippings relating to the accused in his role as official opposition critic on the subject of law and order, and a critical article the accused wrote for McLean's magazine after he left the R.C.M.P. in 1972. The defence filed a bundle of letters from friends and political supporters of Mr. Ramsay in his constituency area of Crowfoot in Alberta. In my view (and I expressed this to counsel during their arguments) the political speeches of Ramsay in the House of Commons and elsewhere as to the necessity of imposing harsher sentences for certain crimes and his criticism of the authorities (even the courts) for failing to conform to his philosophy on how law and order is carried out in Canada is irrelevant to my task in arriving at a just and appropriate sentence on the facts of this case. Whatever one thinks of his views he is entitled to hold them. Similarly, the strong support expressed by his friends brings limited value to my task particularly when so many declared his undoubted innocence even though they had not heard any of the evidence. In any event none appear to have known Mr. Ramsay at the time of the offence so their high estimate of him now, while it is no doubt sincere and cannot be questioned, is based on what they have learned about him long after he left Pelican Narrows and for that matter the R.C.M.P.

[7] Simply put the issue of what would be a just and appropriate sentence in Mr. Ramsay's case is graphically illustrated by contrasting the position of the Crown which seeks a lengthy penitentiary term and that of accused's counsel who urged me to fashion a conditional sentence of imprisonment of six months to a year which the accused can serve in the community pursuant to s. 742.1 of the Criminal Code.

[8] We are told that one of the reasons the "conditional sentence" was introduced into the Criminal Code by Parliament on September 3, 1996 was to address the perceived problem that too many criminal offenders in Canada were being incarcerated. At the same time Parliament undertook to essentially codify the principles Judges' have long used to guide them to appropriate sentences. Accordingly, several new provisions dealing with the purpose and principles of sentencing were at the same time written into the Code and these directions are particularly relevant to the newly created conditional sentence added to Part XXIII of the Act. Since counsel seeks to have such a sentence applied to Mr. Ramsay in this instance it is useful to set out the relevant provisions before attempting to consider the specific arguments advanced by counsel to support their views of what sentence would be just and appropriate on the facts of this case. I note here that counsel for the accused has urged me to clarify the factual ambiguities which he alleges are evident in the jury's verdict and I shall deal with that submission later.

[9] The relevant sections of Part XXIII of the Criminal Code which judges must now be guided by on sentencing an accused are as follows:

718. Purpose - The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community.

718.1 Fundamental principle - A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

718.2 Other sentencing principles - A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor, or

(ii) evidence that the offender, in committing the offence, abused the offender's spouse or child,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, or

(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization

shall be deemed to be aggravating circumstances;

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

. . .

742.1 Imposing of conditional sentence - Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court

(a) imposes a sentence of imprisonment of less than two years, and

(b) is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 and 718.2.

the court may, for the purposes of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the offender's complying with the conditions of a conditional sentence order made under section 742.3.

. . .

742.3 (1) Compulsory conditions of conditional sentence order - The court shall prescribe, as conditions of a conditional sentence order, that the offender do all of the following:

(a) keep the peace and be of good behaviour;

(b) appear before the court when required to do so by the court;

(c) report to a supervisor

(i) within two working days, or such longer period as the court directs, after the making of the conditional sentence order, and

(ii) thereafter, when required by the supervisor and in the manner directed by the supervisor;

(d) remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the supervisor; and

(e) notify the court or the supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation.

(2) Optional conditions of conditional sentence order - The court may prescribe, as additional conditions of a conditional sentence order, that the offender do one or more of the following:

(a) abstain from

(i) the consumption of alcohol or other intoxicating substances, or

(ii) the consumption of drugs except in accordance with a medical prescription;

(b) abstaining from owning, possessing or carrying a weapon;

(c) provide for the support or care of dependants;

(d) perform up to 240 hours of community service over a period not exceeding eighteen months;

(e) attend a treatment program approved by the province; and

(f) comply with such other reasonable conditions as the court considers desirable, subject to any regulations made under subsection 738(2), for securing the good conduct of the offender and for preventing a repetition by the offender of the same offence or the commission of other offences.

(3) Proceedings on making order - A court that makes an order under this section shall

(a) cause to be given to the offender

(i) a copy of the order,

(ii) an explanation of the substance of sections 742.4 and 742.6, and

(iii) an explanation of the procedure for applying under section 742.4 for a change to the optional conditions; and

(b) take reasonable measures to ensure that the offender understands the order and the explanations given to the offender under paragraph (a).

[10] Since the introduction of these provisions to Part XXIII of the Code considerable jurisprudence has been forthcoming from our appeal courts on how these new sections (including those which I omitted above but form part of the overall sentencing regime) should be interpreted and applied by trial judges. Of particular interest are five decisions of the Supreme Court of Canada released January 31, 2000.

[11] Many other cases were referred to me by counsel and I have had the benefit of reading them. Some deal with sentencing before the Part XXIII Amendments, some relate to conditional sentences imposed after conviction of a serious sexual offence and others decided that the circumstances of the offence warranted incarceration with particular emphasis on denunciation, retribution and deterrence to others being the most significant factors.

[12] The leading case appears to be R. v. Proulx (supra, No. 1) where the Chief Justice outlined extensively the purpose and the basis upon which a conditional sentence is warranted and the approach the sentencing Judge should take in assessing whether or not in the circumstances of the case a conditional sentence to be served in the community should be imposed instead of incarceration. Also helpful to me was the judgment of Vancise J.A. of our Court of Appeal in R. v. Laliberte (supra, No. 2) which reviews the Proulx case and a number of others including Gladue (supra, No. 2) which dealt extensively with how aboriginal offenders should be assessed under the new conditional sentencing regime.

[13] The starting point in considering the appropriateness of a "conditional sentence" is s. 742.1. It says that the Court may impose a conditional sentence on an offender to be served in the community where:

(1) the offence is one not punishable by a minimum term of imprisonment

(2) the court imposes a sentence of less than two years; and

(3) the court is satisfied that if the sentence is served in the community it will not endanger the safety of it;

(4) that such a sentence would be consistent with the purpose and principles set out in s. 718 to 718.2.

[14] In Proulx (at para. 47) the Chief Justice indicates that the first three criteria are prerequisites to any conditional sentence. Once they are met then the sentencing judge must consider whether a conditional sentence is appropriate and in doing so must consider the purpose and principles set out in s. 718 to 718.2.

[15] In this instance the offence of attempted rape is not punishable by a minimum term of imprisonment.

[16] In deciding whether or not a sentence of imprisonment less than two years is an acceptable sanction Chief Justice Lamer after a lengthy analysis of the wording of s. 742.1(a) suggests that the judge need only at this stage exclude two other possible sanctions, namely (a) probationary measures and (b) a penitentiary term. If either of these sentences is appropriate then a conditional sentence is not called for. On the other hand once the judge concludes that neither sanction is appropriate in all of the circumstances of the case before him, he should move on to consider what a fit sentence would be having regard to the provisions of ss. 718 to 718.2 and to what he calls "the overarching duty of a sentencing judge. . .to draw upon all the legitimate principles of sentencing to determine "a just and appropriate" sentence which reflects the gravity of the offence committed and the moral blameworthiness of the offender." (See: para. 61 of Proulx; also M. (C.A.), supra).

[17] The third prerequisite noted above is whether or not the safety of the community would be endangered by the offender serving his sentence in the community. I need not review the directions of Lamer C.J. in Proulx on this point because, as shall become clear, there is ample evidence that Mr. Ramsay would not represent a danger to the community not the least of which is the fact that since the offence occurred he has led a useful and productive life in the various communities he chose to reside in. He later married, raised a family of four and since 1993 has been a Member of Parliament. The risk that he might re-offend is very low to non-existent as the pre-sentence report points out.

[18] In order to move on to the threshold questions of whether or not a conditional sentence should be considered I must first resolve the prerequisite that any sentence I impose should be less than two years. Here I shall consider the arguments of counsel on what they suggest is an appropriate sanction. [19] As noted earlier Crown counsel contends that the most important factors in arriving at a fit sentence are denunciation, retribution and general deterrence which can only be met by the imposition of a period of incarceration in excess of two years i.e.: penitentiary time. In his presentation he attempted to highlight those factors which affected the victim such as her vulnerability at the age of 14 when in the presence of the police officer in his office and the subject of whether or not they should have sex was advanced by the accused. He points to how in her victim impact statement she paints a sad picture of her life including alcoholism, bad marriages and relationships, loneliness and loss of self-esteem amongst them. In her view it all stems from the encounter with the accused in 1969. It seems clear that the incident did have a traumatic effect on her life but one cannot reasonably accept that every negative situation in her life can be traced back to this event. A close examination of her statement indicates she has accomplished several good things since the incident. She has conquered alcoholism. She works hard at what appears to be a manual labour job alongside mostly male co-workers. In addition she had the strength to eventually take her complaint against the accused to the authorities which seems to me was a positive step in her life. So while she has no doubt suffered emotional damage from this incident her determination to overcome what happened seems to be alive and hopefully she will now be able to put this incident behind her.

[20] Crown counsel then pointed to the factors that he claims point negatively to the accused's part in this offence. He contends that as the senior police officer in Pelican Narrows he was a person in authority who people looked to for protection and guidance. In an aboriginal community he would be seen as someone to be looked up to and to be trusted and in this case he abused both his authority as a police officer and the trust of the victim. The fact that she was 14 years old - half his age and that he initiated the sexual aspect of this incident in the detachment office reflect poorly on him as a police officer, his judgment and his personal morality at the time.

[21] On whether or not the accused has shown any remorse for what happened counsel contends that the answer lies in the pre-sentence report of the psychologist where it is suggested "it is difficult to determine the extent to which he has been completely honest with himself and others regarding this offence." Counsel argues that shows a lack of remorse. He concedes that Mr. Ramsay apologized to the victim but on the other hand has consistently contended she consented to his actions. Indeed he came dangerously close to blaming her by suggesting to the police officer that interviewed him that had she not unbuttoned her clothes as he had suggested it might never have happened.

[22] Counsel concluded by submitting that when all of these factors are taken into account the appropriate sanction is incarceration in a penitentiary. In addition the Crown seeks that I impose a firearms prohibition on Mr. Ramsay pursuant to s. 109 of the Code.

[23] Defence counsel opened his remarks suggesting that there is ambiguity in the jury's finding of fact and that the Court must resolve it before passing sentence. In such cases as R. v. Brown, [1991] 2 S.C.R. 518 and R. v. Gauthier (supra, No. 2) it is said that where there is a conflict of evidence left unresolved by the verdict of the jury the sentencing judge must reach his own conclusion to resolve the ambiguity basing his conclusions on the evidence presented to the jury applying the standard of proof in a criminal case.

[24] As I understood Mr. Bodnar's argument he points out that the jury acquitted the accused of the rape charge. To do this the jury in his view had to reject the complainants description that actual intercourse took place i.e., that penetration actually took place, that she felt his penis in her vagina and saw blood on his penis afterwards. Therefore it cannot be said the jury accepted this evidence beyond a reasonable doubt. He then goes on to say in his brief and I quote:

It cannot be suggested that this same version absent the actual penetration, can be accepted as proven beyond a reasonable doubt for the purpose of sentencing.

Mr. Bodnar then goes on to characterize the accused's advances toward the complainant "as a very serious, albeit quite brief, error in judgment on the part of the accused. The course of conduct which he undertook ended after a brief and relatively minor sexual contact".

[25] It seems to me that while the jury appears to have rejected the evidence that actual intercourse (which would include penetration) took place there were a number of practical reasons that might have raised a reasonable doubt in their minds on that question. The first is the standing positions that the parties were in when the accused in his aroused condition approached the complainant. As the evidence suggested it is not an easy way to have intercourse. Secondly, the complainant testified that when he approached her, her jeans were down below her knees which also appears to be an impediment to sexual intercourse in a standing position. So it is not clear that the jury totally rejected the complainants' version of the incident. They may well have decided that there was a reasonable doubt about whether the definition of rape had been proven but never the less concluded beyond a reasonable doubt that the accused attempted to have sexual intercourse without her consent. In my view there was ample evidence upon which the jury could reach that conclusion beyond a reasonable doubt. As for counsels' comment that this attempted rape was very serious I agree. I am not persuaded the evidence of his actions represented just an error in judgment on his part or that it was a relatively minor sexual contact. Had the jury been convinced counsel's description of the incident was the correct one they could have chosen to convict of the lesser offence of "indecent assault" rather than attempted rape but they did not. Indeed the suggestion that there was relatively minor sexual contact counters his statement that it was a "very serious" attempt. I note that in 1969 the penalty for attempted rape was up to 10 years imprisonment and whipping so that Parliament clearly recognized the seriousness of it.

[26] In my view of the evidence what the accused did when he approached the complainant in his aroused state was a clear attempt to have sexual intercourse with her without her consent. Given the circumstances I do not find the jury's verdict ambiguous in light of the evidence presented to them.

[27] I turn now to defence counsels submission that the appropriate sentence to be imposed should be less than two years and that the range should be six to twelve months to be served in the community. He suggests that the conditions could include community service and a curfew. He contends that the accused's contact with the complainant is not a serious enough offence to warrant the conclusion that denunciation, retribution and deterrence are the major sentencing factors to be considered. He argues that the pre-sentence report depicts the accused in a favourable light overall.

[28] I now return to the question of whether or not this is a case where any sentence I impose should be less than two years. If I conclude that it can be I must then move on to determine what an appropriate sentence would be and decide whether it should be served in the community or in a penal institution. I am aware that our own Court of Appeal have treated sentences for serious sexual assaults by using a threshold term (sometimes called a starting point) of three years and then altering it upwards or downwards depending on the extent of aggravating or mitigating circumstances present at the time the offence occurred. However, it is clear from the judgment of our court in Laliberte (supra, No. 2) and the Supreme Court in Proulx (supra) that the use of starting point or threshold sentences are not appropriate except perhaps as a guide to sentencing court judges. In this instance I have concluded in light of all of the evidence surrounding the incident itself, the passage of time since the offence occurred, the current situation of the accused and having particular regard to ss. 718 to 718.2 of the Criminal Code that a sentence ranging below the two year level would be appropriate.

[29] In accordance with the directions in Proulx (supra) I must now move on to consider what the length of the sentence should be and if a conditional sentence is the most just and appropriate one for this accused.

[30] While I have set out above ss. 718 to 718.2 not all of the principles and objectives outlined in those sections are applicable in this case. In the interests of brevity I shall confine my remarks to those that in my opinion are germane to this aspect of the sentencing process. I have already indicated that I do not consider that Mr. Ramsay would represent a risk to society while serving a sentence in the community (s. 742.1(b)). It's apparent that any sentence chosen will not be needed to deter him from similar activity nor is there any need for rehabilitation so far as he is concerned. So ss. 718 (b), (c), (d) have virtually no application to Mr. Ramsay's situation except that they support the contention his sentence should be a conditional one. The effluxion of time since this offence occurred has eroded the relevance of any sanction akin to reparations as in s. 718(b). All of these represent the so called restorative objectives of sentencing discussed by Lamer C.J. in Proulx (paras. 18 to 20).

[31] So far as s. 718 is concerned that leaves for consideration the objectives of denunciation (sub (a)), deterrence to others (sub (b)), and 718(f) to promote acknowledgement by the offender of the harm done to the victim and the community.

[32] In my opinion the cases indicate that s. 718.1, calling for proportional assessment of the gravity of the offence and the degree of responsibility of the offender is particularly relevant in all sentencing of criminal offenders.

[33] Moving to s. 718.2, I am of the opinion that sub-section (a) which calls for an assessment of aggravating and mitigating circumstances relating to the offence and the offender is important - particularly sub-(iii) thereof relating to whether or not this accused abused a position of trust or authority in relation to the victim. Also relevant are subsection (b) similar sentences for similar offences; and the clear directions inherent in subsections (d) and (e) that essentially say that an offender should not be incarcerated if less restrictive sanctions are appropriate and that all other available sanctions must be considered before a term of imprisonment is imposed.

[34] Earlier I indicated that in my opinion a sentence of less than two years would be appropriate in the circumstances of this case as it would reflect the seriousness of the crime and the individual circumstances of Mr. Ramsay. In more specific terms I consider that a range of sentence between 9 to 18 months would be reasonable having regard to those aspects of the case that I will now discuss in more detail such as the gravity of the offence, the moral culpability of the accused's actions, the level of Mr. Ramsay's remorse, and the Crown's suggestion that he abused his position of authority vis-a-vis the victim and the community he was serving at the time. Consideration must also be given to a number of mitigating factors.

[35] As indicated earlier I do not agree with defence counsel's submission that the evidence suggests that the sexual advance the accused made towards the complainant was brief and consisted of relatively minor contact. The jury rejected the rape charge but it's clear they saw the accused's actions as an attempt to have intercourse with her without her consent. They were entitled to draw such a

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