R. v. Semchuk

2011 BCSC 1553 R. v. Semchuk IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Semchuk, 2011 BCSC 1553 Date: 20111014 Docket: 31914 Registry: Port Alberni Regina v. Gary Nicholas Semchuk Ban on Publication pursuant to s. 486.4(2) C.C.C. Restricted Access Before: The Honourable Madam Justice Fenlon Oral Reasons for Sentence Counsel for the Crown: C. Proteau Counsel for the Accused: C. Hatcher Place and Date of Trial: Port Alberni, B.C. May 2-6, 2011 July 4-6, 2011 Place and Date of Sentencing Hearing: Port Alberni, B.C. October 14, 2011 Place and Date of Judgment: Port Alberni, B.C. October 14, 2011 [1] THE COURT: Gary Nicholas Semchuk was convicted, following a trial by judge alone, of sexually assaulting S.F., a former student, contrary to s. 246.1 of the Criminal Code. The assault occurred in the 1986/1987 school year when S.F. was in Grade 3. [2] Ms. Proteau, for the Crown, submits that a suspended sentence followed by two years probation on conditions is an appropriate sentence. Ms. Hatcher agrees with the Crown's proposal except as to the length of probation. Ms. Hatcher submits that a period of probation of 18 to 24 months is appropriate. [3] I turn to the circumstances of the offence. Mr. Semchuk was S.F.'s track and field coach, as well as her Grade 3 teacher. He also supervised school-wide lunchtime run-for-fun events. On one occasion in the spring term, just before a track meet, S.F. participated in a run-for-fun and pushed herself hard, sprinting the final 500 metres. She was in some distress at the finish line near the bike racks, bent over, winded, and struggling to catch her breath. There were some people about but not many. S.F. was the first person across the finish line. [4] Mr. Semchuk came up to her from behind and told her to breathe deeply. She could feel his legs pressing against her as his arms came around from behind and rubbed her back and shoulders, trying to get her to straighten up, which she was resisting. S.F. felt Mr. Semchuk's hands move onto her chest at the end of their interaction, when she had straightened up. It was not a mere grazing or a touch, but rather rubbing of her breasts. S.F. had small developed breasts in Grade 3 and wore a bra. The rubbing lasted for only a few seconds. He used both hands. S.F. stiffened. It made her feel very uncomfortable and, in her words, felt like an eternity. [5] I turn now to the circumstances of the offender. Mr. Semchuk is 59 years old. He spent his entire career of close to 30 years teaching elementary school students in Grades 3 to 5. He was, by all accounts, an exceptionally talented and effective teacher who cared passionately about his students and brought out the best in them. All of the complainants at the trial, including S.F., acknowledged that Mr. Semchuk was a very good teacher. [6] Mr. Semchuk was born and raised in Port Alberni and spent his life in that area, teaching until the complaints leading to his conviction came to light in April 2008. He has not taught at all since then, and moved out of the community immediately following the allegations. He retired from teaching officially in October 2008. He now lives in Qualicum Beach. Mr. Semchuk returns to Port Alberni only to visit his mother, who is elderly and in poor health, and to visit his brother and his brother's family. [7] Mr. Semchuk took early retirement because he was no longer receiving any pay as a teacher after July 2008. He was, at that point in his career, three years short of a full pension. Because he had to take early retirement, Mr. Semchuk receives a pension of $2,300 per month rather than $3,000 per month, which would have been his entitlement had he completed a further three years of teaching. [8] It is not an exaggeration to say that teaching was Mr. Semchuk's life and his reason for being. The charges at trial received a great deal of publicity in Port Alberni, which is a small community. Mr. Semchuk has experienced the stigma that rightly attaches to charges of this kind. He has also watched his parents, although his father is now recently deceased, and his brother and his brother's family bear the shame caused by the charges and conviction. Mr. Semchuk has withdrawn from social contact with all but his closest friends and his family. I accept that the trial and conviction have had a profound effect on him. [9] 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. There are numerous objectives in sentencing, including denouncing unlawful conduct, deterring the offender and other persons from committing offences, separating the offender from society where necessary, assisting in rehabilitating the offender, providing reparations for harms done to victims or to the community, and promoting a sense of responsibility in the offender and acknowledging the harm done to the victim and to the community. It is well established in law that for offences involving assault on children the paramount objectives are to express society's denunciation of the offence and to deter others from committing similar offences. [10] A sentence must be proportionate to the gravity of the offence and the degree of the responsibility of the offender. It should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. I will now say something about the aggravating and the mitigating circumstances in this case. [11] The aggravating factors in this case are two. First, that Mr. Semchuk was in a position of trust as a teacher and he egregiously breached that trust with a student. The second is that the assault involved a child of only nine years of age. Parents entrust their children to teachers, and children are particularly vulnerable because of their own respect for and confidence in their teachers, and because of the confusion and the shame such actions cause them. [12] The mitigating factors in this case (many of which relate to a form of punishment or consequence apart from anything that this Court could impose), are as follows. First, Mr. Semchuk has lost his employment and a significant portion of his pension, a consequence that he will experience for the rest of his life. Second, he has lost his social and professional standing in a small community and has had to move away from the town he spent his life in. Third, he now faces disciplinary proceedings from the College of Teachers. Fourth, he has experienced the intense publicity and stigma associated with the charges and the trial and conviction over the past three years. [13] I turn now to the victim, who must not be forgotten in weighing the principles and considerations in this case and in coming to an appropriate sentence. S.F. was only nine years old at the time of the offence. She was made extremely uncomfortable by Mr. Semchuk's unwanted touching and was embarrassed by it and confused about what to do. In a statement to police she reported becoming more introverted after this event. She found it hard to be alone with adult males and had self-esteem issues. [14] I turn now to the sentencing authorities. A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Another consideration that I bear in mind is that an offender should not be deprived of liberty if less restrictive sanctions are appropriate. The main principles to be considered here are the need to denounce and deter this type of unacceptable behaviour, sexual touching of a child by a teacher. [15] I have reviewed the cases provided to me by both counsel for the Crown and counsel for Mr. Semchuk. They are guidelines only. Each case, of course, must be decided on its own particular facts. Nonetheless, those cases provide some guidance as to an appropriate range of sentence. On review of those cases and the sentences provided in similar cases, and taking into account the fact that the assault in this case was a very brief single incident of touching over clothing (which is not to minimize the fact that that touching was entirely inappropriate), I am satisfied that the joint submission on sentencing is in the appropriate range. [16] The maximum penalty for someone who commits a sexual assault is imprisonment for 10 years. There is no mandatory minimum sentence for sexual assault. I do not find Mr. Semchuk to pose a danger to the community, in particular given his self-isolation from youth, conditions requiring that isolation, and his compliance with all conditions so far imposed on him while on bail awaiting trial. I have concluded that incarceration is not required in this case. I am of the view that a suspended sentence with lengthy probation and strict conditions is an appropriate sentence. [17] Mr. Semchuk, would you please stand. [18] Mr. Semchuk, I impose on you a suspended sentence and two years probation on the following terms. You are to keep the peace and be of good behaviour; to attend court as and when required by the Court; to report to a probation officer by 4:00 p.m. on Monday, October 17, 2011, at the Nanaimo probation office, and thereafter as and when directed. You are to reside where directed by the probation officer and are not to change that address without prior written permission of the probation officer. You are to have no contact, either direct or indirect, with S.F., J.G., K.U., R.C., T.H., and A.P., or any members of their immediate families. You are not to attend at the residence, place of employment, or school of S.F., J.G., K.U., R.C., T.H., and A.P. You are to have no contact, direct or indirect, with females under the age of 16 years, except while in the company of a parent or guardian of the female or with the written consent of the female's parent or guardian. You are not to attend at any public park, public swimming area, daycare centre, or community centre where females under the age of 16 years are present or can reasonably be expected to be present. You are not to seek, obtain, or continue any employment, whether or not the employment is remunerated or being a volunteer, in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years. You are to complete such counselling as recommended by the probation officer, including but not limited to sex offender treatment. [19] In addition, I make the following orders: You are to present yourself to the Nanaimo RCMP detachment by Friday, October 28, at 3:00 p.m., to provide a DNA sample in accordance with s. 487.05(1)(a) of the Criminal Code. [20] Next, you will be registered on the sex offender identification registry for 20 years, and I will sign an order to that effect and ask that counsel provide you with a copy of it, as it contains some more precise terms that must be complied with. [21] Next, you are prohibited, as the Criminal Code requires in this type of offence, from possession of firearms for 10 years. [22] Next, you are to pay a victim fine surcharge of $100. [23] Finally, I make a direction that your passport is to be returned to you. [24] You may be seated, Mr. Semchuk. Is there anything arising, counsel? [25] MS. HATCHER: Thank you, My Lady. I just have one slight concern with condition 6, which is the not to attend at the residence, place of employment, or school of the complainants. [26] THE COURT: Yes. [27] MS. HATCHER: I wonder if we might just add "not attend at any known residence", place of employment. I'm concerned that if one of these girls has a part-time job at a Dairy Queen or something and Mr. Semchuk incidentally walks in, he might unwittingly be breaching. So he would certainly, of course, leave immediately, but I'm just wondering if that language might protect him from something with absolutely no mens rea attached. [28] THE COURT: All right. [29] MS. HATCHER: I don't know if my friend objects. [30] THE COURT: Ms. Proteau? [31] MS. PROTEAU: I don't think that's a problem. The important part is if he walks into a Dairy Queen, he just turns around and leaves. I think my friend's addressed that. [32] THE COURT: All right. So that term -- now, has a copy of the conditions been provided to Madam Registrar? [DISCUSSION WITH COUNSEL] [33] THE COURT: I am going to change that term, then, so it now reads "not to attend at any known residence, place of employment or school of the complainants". The Honourable Madam Justice L.A. Fenlon