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James, Graham Decision (Carlson PJ) March 20, 2012

James, Graham Decision (Carlson PJ) March 20, 2012

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Published by: Tessa Vanderhart on Mar 20, 2012
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 R. v. James
, 2012 MBPC 31Date: March 20, 2012
IN THE PROVINCIAL COURT OF MANITOBABETWEENHer Majesty the Queen)Colleen A. McDuff,)for the Crown)-and- )))Graham Michael James)Evan J. Roitenberg,)for the Accused)))Reasons for Decision delivered)March 20, 2012Restriction on publication:
These proceedings are subject to a publication ban, pursuant to s.486.4 of the Criminal Code. The following information is not to be published: the names of the victims of offences for which Mr. James was convicted in 1971 and 1997 (other than Sheldon Kennedy); the authors of all letters of reference, including the letter of reference from Mr. James’ employer (in Exhibit 2); the names of witnesses who provided statements (other than Theoren Fleuryand Todd Holt); the name of the psychologist whose report and curriculum vitaewere filed as part of Exhibit 2, and who is referred to as Dr. H.V.G. in thesereasons; and the name of the psychiatrist whose report and curriculum vitae were filed as Exhibit 1, and is referred to as Dr. P.C. in these reasons. Any informationthat could identify a complainant or witness as described herein to which the publication ban applies, shall not be published in any document or broadcast or transmitted in any way.
Carlson P.J.Introduction
[1]On December 7, 2011, Mr. Graham James entered guilty pleas to twooffences.
Page: 2
[2]Mr. James pleaded guilty to repeatedly sexually assaulting Mr. TheorenFleury between September 1, 1983 and August 31, 1985, in Winnipeg, Manitobaand elsewhere in the Province of Saskatchewan, contrary to section 246.1 of the
Criminal Code
. Mr. James also pleaded guilty to repeatedly sexually assaultingMr. Todd Holt between May 1, 1989 and April 30, 1994, at or near Swift Current inthe Province of Saskatchewan, contrary to section 271 of the
Criminal Code
. TheSaskatchewan charges were transferred to Manitoba. Sections 246.1 and 271 of the
Criminal Code
referred to were the sections that, at the time the offences werecommitted, contained the sexual assault provisions.[3]The Crown proceeded by indictment. Mr. James elected to deal with thesematters in Provincial Court. After the guilty pleas were entered, the matters wereadjourned to February 22, 2012 for sentencing.[4]On February 22, 2012, Crown and defence counsel made submissions at thesentencing hearing. The matter was adjourned to this date for the imposition of sentence on Mr. James. On March 19, 2012, the Court heard brief submissionsfrom counsel relative to the decision of the Manitoba Court of Appeal in
 R. v.Sinclair 
, (2012 MBCA 24), released on March 15, 2012, in terms of how, if any, itmight impact on the Court’s decision as to an appropriate sentence for Mr. James.[5]The issue for the Court is to determine the appropriate sentence to beimposed on Mr. James for these two offences.[6]The Court is aware that this case has attracted significant public attention,and that there is a sense of outrage about these offences. That is understandable.Serious offences were committed against vulnerable victims, with devastatingresults for those victims. There is no sentence this Court can impose that will give back to Mr. Holt and Mr. Fleury that which was taken from them by Mr. James.The Court expects there is no sentence it can impose that the victims, and indeedmany members of the public, will find satisfactory. But the Court is confident thatthe victims of Mr. James’ offences, and the public, appreciate that what is a fit andappropriate sentence for Mr. James for these offences, must be determined basedon the application of sentencing principles that have been set out by Parliament inthe
Criminal Code
The unique nature of this case
[7]This case is unique. Its uniqueness, apart from its notoriety, stems primarilyfrom issues relative to timing. When the offences happened, when they weredisclosed by the respective victims, when Mr. James was previously sentenced for 
Page: 3
other offences, and what has transpired since that prior sentencing, are factors thatcombine to make the application of sentencing principles to the facts a challengeto the Court in determining an appropriate sentence for Mr. James.[8]On January 2, 1997, Mr. James pleaded guilty and was sentenced in theProvincial Court of Alberta, on two counts of repeated sexual assault, against Mr.Sheldon Kennedy and another victim whose name is still protected by publication ban. Those offences were committed from 1984 to 1994. Mr. James wassentenced to three and a half years in prison on each charge, and the sentenceswere concurrent to each other. On February 27, 1998, Mr. James pleaded guilty toone count of indecent assault on a third victim that happened in 1971. The conductthere was an attempted fondling of the victim. Mr. James was sentenced to 6months for that offence, concurrent to the sentence he was then serving. Mr. Jamesserved his sentence as required, and completed his parole in 2000. Then, in or about 2010, Mr. Fleury and Mr. Holt disclosed to police that they had beenrepeatedly sexually assaulted by Mr. James. The circumstances and nature of theoffences committed against Mr. Holt and Mr. Fleury are similar in nearly allmaterial respects to those committed against Mr. Kennedy and the other victim.Mr. James is now back before the Court, 15 years after his convictions for thesexual assaults on Mr. Kennedy and the other victim, being sentenced for thesexual assaults on Mr. Fleury and Mr. Holt.[9]This is not, as the Court often sees, a case of a person re-offending afteserving a sentence. The two offences for which the Court is now sentencing Mr.James took place before he was sentenced for the other offences in 1997. Theseoffences were not disclosed until Mr. James had long finished serving his 1997sentence. This is not a case of simply imposing sentences for historical sexualassaults. Rather, the Court must impose sentences for historical sexual assaultsthat were committed at or about the same time as other sexual assaults for whichMr. James was sentenced 15 years ago, and in the context of Mr. James havingcompleted his sentence, and having not re-offended.[10]These circumstances present a challenge to the Court. It is important to beclear that there is absolutely no fault to be attributed to the victims for disclosingthe offences when they did. Indeed, the strength of Mr. Fleury and Mr. Holt inmaking those disclosures warrants tremendous respect.
Approach to be used by the Court
[11]In the unique circumstances of this case, the Court, as a starting point, mustconsider what total sentence Mr. James may have received in 1997 if he had then

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