R. v. Fones (D.R.), 2012 MBCA 110

• Judge: Monnin, Steel and Hamilton, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: December 13, 2011
• Jurisdiction: Manitoba
• Citations: 2012 MBCA 110;(2012), 288 Man.R.(2d) 86 (CA)

R. v. Fones (D.R.) (2012), 288 Man.R.(2d) 86 (CA);

      564 W.A.C. 86

MLB headnote and full text

Temp. Cite: [2012] Man.R.(2d) TBEd. DE.025

Her Majesty The Queen (respondent) v. David Richard Fones (accused/appellant)

(AR 11-30-07639; 2012 MBCA 110)

Indexed As: R. v. Fones (D.R.)

Manitoba Court of Appeal

Monnin, Steel and Hamilton, JJ.A.

December 6, 2012.

Summary:

The accused pled guilty to two counts of seduction (Criminal Code, R.S.C. 1970, c. C-34, s. 151). The victims were sisters (S.B and K.B.). The offences took place in the 1970s when the accused was in his mid 30s. In 2011, the accused was sentenced to two years' imprisonment for the count pertaining to K.B. and 12 months consecutive for the count pertaining to S.B. The accused appealed the sentence, arguing, inter alia, that the judge erred in principle by applying the current law with respect to sentencing for sexual offences and that the sentence was harsh and excessive given the nature of the offence, the passage of time, and his otherwise exemplary life. The court asked counsel to address two new issues. The first, raised prior to the appeal hearing, concerned the impact, if any, of the one-year limitation period in s. 141 of the 1970 Code. The second was raised after the appeal hearing, when the decision was on reserve. The panel requested that the hearing be reconvened to address the appropriateness of the accused's guilty plea to the offence of seduction concerning S.B., given that the relevant agreed facts did not involve sexual intercourse.

The Manitoba Court of Appeal held that the court had jurisdiction notwithstanding the one year limitation period. The court, however, allowed the conviction appeal for the offence of seduction of S.B. as no sexual intercourse was involved. The court set aside the guilty plea respecting S.B. and substituted a conviction for attempt seduction. The court sentenced the accused to six months for that offence. The court also allowed the sentence appeal for the offence of seduction of K.B. and substituted a sentence of 18 months. The sentences were to be served consecutively.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 27

General principles - Prosecution of crime - Time for prosecution - Prescription - The accused pled guilty to two historical counts of seduction (Criminal Code, 1970, s. 151) - An issue arose as to whether the one year limitation period for commencing charges (Code, 1970, s. 141) negated the court's jurisdiction to entertain the accused's guilty pleas - The Manitoba Court of Appeal noted that the limitation period would have defeated the court's jurisdiction if the Crown had commenced proceedings for seduction - However, in this case, the Crown charged the accused with several other offences, not seduction - The accused pled guilty under s. 606(4) of the 1985 Code to "any other offence arising out of the same transaction" (i.e., seduction) - Section 606(4) could be viewed as contemplating a waiver of the benefit of prescription - The court had jurisdiction - See paragraphs 29 to 37.

Criminal Law - Topic 698.1

Sexual offences - Particular offences - Seduction - Section 151 of the Criminal Code, R.S.C. 1970, c. C-34, provided that "Every male person who, being eighteen years of age or more, seduces a female of previously chaste character who is sixteen years or more but less than eighteen years of age is guilty of an indictable offence and is liable to imprisonment for two years" - The Manitoba Court of Appeal stated that sexual intercourse was an essential element of the offence of seduction - The court commented also that chastity did not mean virginity - Rather, chaste character meant the possession of the qualities and traits of pureness or decency of thought and conduct - See paragraphs 40 to 44.

Criminal Law - Topic 698.1

Sexual offences - Particular offences - Seduction - The accused pled guilty to seducing S.B. (Criminal Code, R.S.C. 1970, c. C-34, s. 151) - The offences took place in the 1970s - An issue arose as to the appropriateness of the accused's guilty plea, given that the relevant agreed facts did not involve sexual intercourse - The Manitoba Court of Appeal held that sexual intercourse was one of the elements of the offence of seduction under s. 151 - The court held, however, that the offence of attempt seduction existed at the time of the accused's conduct with S.B. - Given circumstances unique to this case, the court set aside the seduction conviction and substituted a conviction for attempt seduction of S.B. - See paragraphs 38 to 51.

Criminal Law - Topic 5831.6

Sentencing - Considerations - Sentence norm at time of the offence - The accused pled guilty to two historical counts of seduction (Criminal Code, R.S.C. 1970, c. C-34, s. 151) and was sentenced accordingly - The accused appealed, arguing that the trial judge erred in principle in applying the current sentencing principles to the historical offence of seduction - The Manitoba Court of Appeal rejected this ground of appeal - The court stated that appellate jurisprudence required that the accused be sentenced in accordance with the provisions of the Criminal Code and the case law in effect at the time of the sentencing unless they were inconsistent with statutory provisions to the accused's benefit - See paragraphs 58 to 64.

Criminal Law - Topic 5846.8

Sentencing - Considerations on imposing sentence - Stale offences - [See Criminal Law - Topic 5831.6 ].

Criminal Law - Topic 5884.4

Sentence - Seduction - The accused pled guilty to two counts of seduction (Criminal Code, 1970, s. 151) - The victims were sisters (K.B. and S.B.) - The incidents took place in the 1970s when the accused was in his mid 30s - Groomed the victims - In 2011, the accused, then 71, was sentenced to two years' imprisonment (K.B.) and 12 months' consecutive (S.B.) - The accused appealed the sentence, arguing that the sentences were harsh and excessive given the context and passage of time - No criminal record - Recent ill health - The Manitoba Court of Appeal substituted a conviction of attempt seduction for the offence involving S.B. and imposed a six month sentence - Also given the further passage of time and the accused's ailing health, the court reduced the sentence for the offence involving K.B. to 18 months - The sentences were to be served consecutively - See paragraphs 69 to 81.

Criminal Law - Topic 5949

Sentence - Seduction by person in position of trust or authority - The accused pled guilty to two historical counts of seduction (Criminal Code, R.S.C. 1970, c. C-34, s. 151) and was sentenced accordingly - The accused appealed, arguing that the trial judge erred in finding that he was in a position of trust, where that was not part of the agreed facts or an element of the offence of seduction - The Manitoba Court of Appeal rejected this ground of appeal - The judge was entitled to infer, as a question of fact, from the agreed facts before him that the relationships demonstrated a degree of trust - See paragraphs 65 to 68.

Criminal Law - Topic 8202

Limitation periods - Applicability of - [See Criminal Law - Topic 27 ].

Words and Phrases

Seduces - The Manitoba Court of Appeal discussed the meaning of "seduces" as used in the Criminal Code, R.S.C. 1970, c. C-34 - See paragraphs 40 to 43.

Words and Phrases

Chaste - The Manitoba Court of Appeal discussed the meaning of "chaste" as used in the Criminal Code, R.S.C. 1970, c. C-34 - See paragraph 44.

Cases Noticed:

R. v. W.G. (1995), 137 Sask.R. 71; 107 W.A.C. 71 (C.A.), refd to. [para. 26].

R. v. J.A.G. (2008), 228 Man.R.(2d) 99; 427 W.A.C. 99; 2008 MBCA 55, refd to. [para. 26].

R. v. Bowman (B.L.) (2000), 150 Man.R.(2d) 130; 230 W.A.C. 130; 2000 MBCA 94, refd to. [para. 26].

R. v. Ford (L.) (1993), 65 O.A.C. 40; 15 O.R.(3d) 173 (C.A.), refd to. [para. 29].

R. v. K.D.S. (1999), 136 Man.R.(2d) 271 (Q.B.), refd to. [para. 31].

R. v. Dudley (K.L.), [2009] 3 S.C.R. 570; 396 N.R. 299; 469 A.R. 198; 470 W.A.C. 198; 2009 SCC 58, refd to. [para. 33].

R. v. Hunt, [1989] A.J. No. 153 (Prov. Ct.), refd to. [para. 35].

R. v. Eizenga (M.) (2011), 273 O.A.C. 98; 2011 ONCA 113, refd to. [para. 38].

R. v. Gasselle (1934), 62 C.C.C. 295 (Sask. C.A.), refd to. [para. 42].

R. v. Schemmer, [1927] 3 W.W.R. 417 (Sask. Dist. Ct.), refd to. [para. 43].

John Doe et al. v. Hickey et al. (1994), 125 Nfld. & P.E.I.R. 21; 389 A.P.R. 21 (Nfld. T.D.), refd to. [para. 43].

R. v. Johnston, [1948] 3 D.L.R. 781 (Ont. C.A.), refd to. [para. 44].

R. v. Ruizfuentes (H.S.) (2010), 258 Man.R.(2d) 220; 499 W.A.C. 220; 2010 MBCA 90, refd to. [para. 56].

R. v. Stuckless (G.) (1998), 111 O.A.C. 357; 127 C.C.C.(3d) 225 (C.A.), refd to. [para. 58].

R. v. Paradis (1991), 92 Nfld. & P.E.I.R. 271; 287 A.P.R. 271 (Nfld. C.A.), refd to. [para. 60].

R. v. A.R., [1994] 4 W.W.R. 620; 92 Man.R.(2d) 183; 61 W.A.C. 183 (C.A.), refd to. [para. 60].

R. v. S.H., [2011] O.A.C. Uned. 197; 2011 ONCA 215, refd to. [para. 60].

R. v. R.J.G. (2007), 250 B.C.A.C. 47; 416 W.A.C. 47; 2007 BCCA 631, refd to. [para. 60].

R. v. R.D. (1996), 144 Sask.R. 21; 124 W.A.C. 21; 48 C.R.(4th) 90 (C.A.), refd to. [para. 60].

R. v. C.D. (1991), 75 Man.R.(2d) 14; 6 W.A.C. 14; 14 W.C.B.(2d) 245, refd to. [para. 62].

R. v. Sandercock (1985), 62 A.R. 382; 22 C.C.C.(3d) 79 (C.A.), refd to. [para. 62].

R. v. Audet (Y.), [1996] 2 S.C.R. 171; 197 N.R. 172; 175 N.B.R.(2d) 81; 446 A.P.R. 81, refd to. [para. 67].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 73].

Statutes Noticed:

Criminal Code, R.S.C. 1970, c. C-34, sect. 141 [para. 3]; sect. 151 [para. 2].

Criminal Code, R.S.C. 1985, c. C-46, sect. 606(4) [para. 30].

Authors and Works Noticed:

Stewart, Hamish C., Sexual Offences in Canadian Law (2012), Looseleaf, paras. 2:400.10.20 [para. 44]; 2:600.30 [para. 41].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), p. 325 [para. 49].

Counsel:

L.J.W. Tailleur, for the appellant;

C.A. McDuff and A.Y. Kotler, for the respondent.

This appeal was heard on December 13, 2011 and October 19, 2012, before Monnin, Steel and Hamilton, JJ.A., of the Manitoba Court of Appeal. The following decision was delivered for the court, by Hamilton, J.A., on December 6, 2012.