WARNING
The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Michalel Kachanovsky
Before: Justice D.F. McLeod
Heard on: December 10, 2015
Reasons for Judgment released on: May 20, 2016
Counsel:
- J. Graham, counsel for the Crown
- A. Maini, counsel for the defendant Kachanovsky
Judgment
McLEOD D.F. J.:
1Mr. Kachanovsky came before this court and plead guilty to 3 counts of sexual assault related offences. An order had been made and remains in effect under s. 486.4 of the Criminal Code banning publication of any information that could tend to identify the complainant(s) in this matter.
2An agreed statement of facts has also been filed and is exhibit one in these proceedings.
Abbreviated Facts and Application
3The facts with respect to MW indicate that he was 17 at the time of the offences. Mr. Kachanovsky was acting as a coach of the victim's brother's hockey team. The victim was aware that Mr. Kachanovsky often entertained players at his apartment and had them sleep over. He made both alcohol and pornography available and in this context the victim would "hang out" with them. This contact eventually culminated in Mr. Kachanovsky having sexual encounters on approximately 10 occasions with the various victims involving mutual masturbation and fellatio but not penetrative sex. (Dr. Pallandi report p. 2 – 3 of 9)
4With respect to the second victim, LM, Mr. Kachanovsky was LM's hockey coach and plead guilty to groping his penis on one occasion back in 1995. (Dr. Pallandi Report p. 3 of 9)
5Mr. Kachanovsky met the third victim, GL, through his association with Big Brothers of Canada between 1990 and 1994. Although initially a number of his interactions were described as quite positive, eventually Mr. Kachanovsky converted discussions to include things of a sexual nature, which lead to instances of masturbation with the victim. There were two incidents of sexual assault. The first instance was precipitated by Mr. Kachanovsky and the victim watching pornography when the victim was 17, eventually, Mr. Kachanovsky began to masturbate the victim to ejaculation. The second incident described the defendant performing oral sex on the victim, again until he ejaculated. (Dr. Pallandi Report p. 3 of 9)
The Positions Taken by the Crown and Defence
6The Crown seeks a custodial sentence of 2 – 3 years.
7The defence seeks a conditional sentence of 2 years less a day on the higher end of the spectrum or a custodial disposition of 12 months or less.
The Impact on the Victims
8The Crown did not proffer any victim impact statements however contained within the agreed statement of facts were comments from the various complainants which were quotes directly from their videotaped statements.
The Purpose and Principles of Sentencing
9Section 718 of Criminal Code sets out the following purposes and principles of sentencing:
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.
10Section 718.1 further instructs the sentencing court - "When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct."
11One of the fundamental principles associated with sentencing centres around proportionality, to ensure that the court balance the gravity of the offence and the degree of responsibility of the offender.
12Section 718.2 also provides that when imposing a sentence a court shall take into consideration the following principles:
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 that principal: evidence that the offender, in committing the offence, abused a person under the age of 18 years, and evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, are aggravating circumstances.
The Criminal Code also provides that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
13Section 718.2 of the Criminal Code also recommends that an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances, and that all available sanctions other than imprisonment that are reasonable in the circumstances, should be considered for all offenders.
14In considering a conditional sentence, which has been proposed by the defence, I must be guided by Section 742.1 of the Code, which addresses conditional sentences. That section of the Code provides that if a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, and is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purposes and principles of sentencing set out in the Section of 718 to 718.2 that I have just read, the court may for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the offender's compliance with the conditions imposed under Section 742.3(1) of the Criminal Code.
15Justice Clarke states in R. v. Cottrell that R. v. Proulx, 2000 SCC 5, stands for a number of propositions one of which is that as a general rule, the more serious the offence and the greater the need for denunciation, the longer and more onerous a conditional sentence should be. However, there may be circumstances in which the need for denunciation is so pressing that incarceration will be the only suitable way to express society's condemnation of the offender's conduct.
16In R. v. Wells, 2000 SCC 10, the Supreme Court of Canada set out the approach to determine whether a conditional sentence is appropriate. Justice Lamer in Proulx, 2000 SCC 5, held that a purposive interpretation of Section 742.1 required the sentencing judge to proceed in stages in determining the appropriateness of a conditional sentence. At the preliminary stage, the judge simply has to exclude two possibilities:
(a) Probationary measures; and
(b) A penitentiary term.
The duration and venue of the sentence are not determined at this preliminary stage. In addition, the judge is required to consider the fundamental purposes and principles of sentencing that are set out in Section 718 to 718.2, only to the extent necessary to narrow the range of sentence for the offender. If, at this point, either a penitentiary or a suspended sentence is appropriate, then a conditional sentence should not be imposed.
17However, in considering the conditional sentence and whether it is appropriate, I must determine the mitigating and aggravating factors that may reduce or increase a sentence in the circumstances of this case.
Aggravating Factors
18The Court has taken into account the following facts as aggravating circumstances:
19Mr. Kachanovsky was in a position of authority with respect to all 3 boys and as such it is clear to the court that this was a matter of breach of trust.
20Length of time associated with the various assaults.
21More than one victim.
22More than one occasion in some instances.
23The grooming aspect associated with the crime – this may have been but a few instances in some cases however time was taken to get the young men to the place where they felt comfortable involving themselves in such activity.
24The accused created a "Den of Iniquity" so to speak ensuring that the atmosphere was ripe for the various sexual suggestions that he would make.
25All the victims were young, impressionable and vulnerable young men as a result of their age and the relationship that they had with the defendant. They were easy prey for this sort of activity and were not emotionally strong to defend themselves against this type of attack. Although LM was able to a certain degree to halt the sexual interaction after one instance, the fact still remains that this activity happened whilst they were sharing a bed in an environment that lent itself to such sexual advances from the defendant.
26These were in some instances repeated number of sexual assaults specifically with respect to MW and GL at a time when these young men were developing their sexual identity.
27The age difference between the defendant and the young men. In this instance you have young men who were not mentally or physically in a position to withstand the advances of the defendant. The defendant was able to use his wisdom to break down unwitting victims and then ultimately have them succumb to his own whims and fantasies.
Mitigating Factors
28The Court has taken into account the following facts as mitigating circumstances:
(a) Mr. Kachanovsky has no previous criminal record;
(b) Saved court time as well as the crown having to call the victims;
(c) There had been a significant period of time between the time of the offence and;
(d) Has maintained stable employment;
(e) A strong network of support;
(f) Mr. Kachanovsky takes full responsibility for his behaviour towards the young men and adopted the agreed statement of facts in their entirety;
(g) The court as was the case in R v. Cottrell also recognized the fact that Mr. Kachanovsky would have lost the respect of certain family and friends as well as others in the community;
(h) He has been the subject of a judicial interim release for some time which demonstrates an ability to abide by community based conditions;
(i) Also it is clear from the submissions of counsel, as well as the fact that Mr. Kachanovsky recently underwent surgery suggests that this matter has taken some toll on his health.
29In my review of the report presented by Mr. Kachanovsky's counsel dealing with his sexological and risk assessment, Dr. Pallandi categorized Mr. Kachanovsky's risk of general and or sexual recidivism to be in the low range. Dr. Pallandi also suggested at p. 9 of his report that:
"Out of an abundance of caution, it may be reasonable to have Mr. Kachanovsky attend a generic sex offender treatment program, either intra- or extra-institutional upon his eventual release into the community."
The Relevant Authorities
30Courts have repeatedly held that in cases of child sexual assault where there are either elements of grooming, evidence of a trust relationship between the parties, evidence showing the sexual abuse is repetitive and occurs over a long duration that deterrence and denunciation must take precedence over rehabilitation. (R. v. Batte; R. v. D.D.)
31Justice Rutherford, in R. v. Palacios, 2012 ONCJ 195, suggested that sentencing is a highly individualized process. It is almost impossible for two offenders to have the exact same background and be faced with the exact same circumstances. In R. v. Nasogaluak, 2010 SCC 6, Justice Lebel, at page 17 of the judgment, reminded sentencing judges:
32"The wide discretion granted sentencing judges has limits. It is fettered in part by the case law that has set down, in some circumstances, general ranges of sentences for particular offences, to encourage greater consistency between sentencing decisions in accordance with the principle of parity enshrined in the Code. But it must be remembered that, while courts should pay heed to theses ranges, they are guidelines rather than hard and fast rules. A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred."
33Both Crown Counsel and Defence counsel agree that a period of incarceration is warranted in this case. What I must determine is whether the term of incarceration should be served in a penal institution or whether the term of incarceration should be served in the community.
Final Decision
34Given the nature of the acts and the position of trust in which Mr. Kachanovsky stood in relation to the victims, I have concluded that a term of imprisonment must be imposed for these offences. I reach that conclusion for the following reasons.
35The case of R. v. Debidin, [2007] O.J. No. 3429, opines that first, what might be seen as the harshness of that result flows from the fact, as noted in R. v. Audet, that we place a high standard on adults that they will refuse sexual contact with young persons regardless of the apparent willingness of the young person to participate. We do so because we, as a society, require a higher degree of responsibility and maturity from the adult in that decision-making process.
36Secondly, I consider that this result follows inevitably from various decisions of the Court of Appeal for Ontario. These decisions include R. v. D.(D.) (2002); R. v. G.L.; R. v. R.W.B., [2003] O.J. No. 3086 (C.A.) and R. v. F.(G.C.) (2004). In those cases, the Court of Appeal has repeatedly said that conditional sentences should rarely be imposed in cases involving the sexual touching of children by adults, particularly where the adult is in a position of trust regarding the child.
37Mr. Kachanovsky please stand.
38Sir, I do not need to recite to you the gravity of what has taken place between you and those men you entered pleas of guilty with respect to. Your conduct has had an impact on the young men that you came across all those years ago; and although I did not have victim impact statements, per se, it was clear from the comments in the agreed statement of facts that at the age that they were, they were confused and unsure of their actions and eventually found themselves succumbing to your urgings.
39I am also mindful of the impact to your reputation within the community as well as the badge of shame that you have and will have to wear for your actions years ago. Notwithstanding those realities, sentencing you was not an easy task and in many respects the toughest I have had to date. I will add however that at arriving at this sentence, I have considered your conduct and its impact, your positive contributions to society and the letters that were canvassed before the court, the doctor's report as well as his recommendations with respect to your level of recidivism, your work in the past and your potential contributions moving forward, I also contemplated your level of rehabilitation as well as the fact that general deterrence was of significant importance.
40As such with respect to the count involving MW, this court will impose a sentence of 10 months custody.
41With respect to the count involving GL, this court finds that the appropriate sentence should be one of 8 months served consecutively to the count involving MW but as a conditional sentence.
42Further, with respect to the count involving LM, this court finds that the appropriate sentence should be one of 5 months to be served consecutively to the counts involving MW and GL.
43As this court made reference to above, it would be rare cases that would cause this court to take the exceptional sentencing measure, of a conditional sentence. This court deemed a conditional sentence appropriate for those counts involving MW as the complainant, in light of the fact that these instances were not for prolonged periods of time and involved fewer occurrences.
44This court was also mindful of the following:
(a) Mr. Kachanovsky was close in age to the complainants when these infractions occurred;
(b) Mr. Kachanovsky did not have any criminal antecedents other than the matters to be resolved today;
(c) Mr. Kachanovsky entered a plea at an early stage and saved court resources as well as not having the young men testify;
(d) The fact that these matters originated over 25 years ago;
(e) The Report of Dr. Pallandi indicated that Mr. Kachanovsky was a low risk of recidivism;
(f) The fact that Mr. Kachanovsky was also at a point in his life where he was confused about his own sexual orientation;
(g) The lack of victim impact statements which would have provided the court with a view to the effect these actions had on these young men and how lasting that impact was or was not. Keeping in mind that I am mindful that some impact would have occurred, this type of information always proves invaluable.
45In addition, the offender will be subject to the following orders:
(1) An Order for the taking of DNA samples pursuant to s. 487.051 of the Code
(2) An Order requiring the offender to comply with the Sex Offender Information Registration Act for a 20-year period pursuant to ss. 490.012(1) and 490.013(2)(b) of the Code
(3) A probation Order for a 2-year period on the mandatory statutory terms in s. 732.1(2) of the Code and the following optional conditions:
(a) Report to a probation officer within 2 working days of release from custody and thereafter as directed by probation services
(b) Remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the probation officer
(c) No communication or contact, directly or indirectly, with the named complainants
(e) Take such sex offender counselling/therapy/treatment as may be recommended by probation services and provide such proof of compliance with such direction as may be required.
(f) And a section 109 order for 10 years
46That will be the order of the court.
Released: May 20, 2016
Signed: "Justice D. F. McLeod"