ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
DAVID CUNNINGHAM
Before Justice Michael Waby
Reasons for Sentence 14 June, 2024
P. Garcia................................................................................................ Counsel for the Crown
D. Brodsky..................................................................................................... Defence Counsel
AN ORDER RESTRICTING THE PUBLICATION OF ANY INFORMATION THAT COULD IDENTIFY THE COMPLAINANTS OR WITNESSES HAS BEEN MADE IN THIS PROCEEDING UNDER SECTION 486.4 OF THE CRIMINAL CODE OF CANADA.
REASONS FOR SENTENCE
INTRODUCTION
1David Cunningham has entered guilty pleas to six counts of sexual assault of a person under the age of 16 years. He has also entered a guilty plea with regard to making, possessing and to accessing child sexual abuse material, as well as to breaching a SOIRA Order. Mr. Cunningham manipulated his position as a friend to the mothers of his victims in order to gain access to and sexually assault their children. He photographed one of the victims of his abuse and kept the images of her. He also accessed additional child sexual abuse material and attempted to delete it from his cell phone, although it was subsequently recovered by police.
Position of the Parties
2The Attorney General granted his consent to bring a Dangerous Offender Application pursuant to s. 754 (1) (a) of the Criminal Code. The Crown seeks a determinate period of incarceration, followed by a Long-Term Supervision Order (LTSO) of 10 years. The Crown takes that position that Mr. Cunningham should be sentenced to a 30-year period of incarceration, less his pre-sentence custody.
3Mr. Brodsky, on behalf of Mr. Cunningham, consents to the Dangerous Offender designation and to the 10 year LTSO but asks the Court to sentence the accused to a period of incarceration in the penitentiary of 2 years, in addition to his pre-sentence custody. As of today, 14th June, 2024, Mr. Cunningham has served a total of 1028 actual days in presentence custody. With the application of the standard pre-sentence credit in this case that would give rise to an enhanced credit of 1,542 days or a little over 4 years. Thus, effectively defence counsel is seeking a sentence of slightly in excess of 6 years jail.
4Once the Court has addressed the issue of whether Mr. Cunningham is to be designated as a Dangerous Offender, the central issue is the appropriate length of the determinate sentence that should be imposed for these offences.
Factual Background – Predicate Offences
5There are of the two set of charges. The “Midland” charges and the “Toronto” charges. Each set of charges has three related complainants, with a total of six little girls who were sexually assaulted either within their home, a friend’s home or Mr. Cunningham’s home. Mr. Cunningham has plead guilty to offences that took place in Midland, Ontario, in 2001-2002. These Midland charges were reported to police in 2020 and a warrant in the first was issued.
6Mr. Cunningham has also plead guilty with respect to sexual offences against three young girls arising out of incidents that took place in Toronto in 2021. These Toronto offences were reported to police in 2021.
7Following his arrest in August, 2021, Mr. Cunningham’s cell phone was seized and examined and following this he was further charged with making, possessing and accessing what is still legally termed child pornography albeit increasingly and more appropriately referred to as chid sexual abuse material.
8In addition to the foregoing offences, Cunningham also plead guilty to failing to report as required with respect to the SOIRA order that was imposed on him in Midland, Ontario on 27th October, 2005 following convictions for sexual assault and sexual interference.
Midland Charges – 2001-2002
9Mr. Cunningham lived in Midland in 2002. He had two young daughters of his own. He befriended K.D. a single mother with two young daughters and a son. One of K.D.’s daughters was K.C. aged 6-7 years old. Mr. Cunningham would drop by with food for her and her children and offer to babysit at her home in a townhouse complex in Midland. This included overnight and occasions when he would bring his own daughters with him.
10C.B. (aged 10) and T.B. (aged 8) lived in the same townhouse complex and were friends of K.C. During the summer months of 2002, Mr. Cunningham brought his own daughters to the townhouse complex and babysat K.C. and her siblings. Mr. Cunningham invited C.B. and T.B. “to play” in the home where he was babysitting.
11Mr. Cunningham played a “tickle” game with C.B and T.B. where he would throw them on the couch, push aside their clothing and underwear and place his mouth on their vaginas. His behaviour towards each of the two little girls on this occasion was identical.
12In 2002, T.B. had an interest in cheerleading and while she was at the house of K.D. when Mr. Cunningham was babysitting he would instruct her to perform handstands and bridge poses that she had learned. During these poses, her clothing would fall and he would instruct T.B. to let her top come down thereby exposing her body to him.
13During one of the nights that Mr. Cunningham babysat for K.D in the summer of 2002, he invited C.B. and T.B. to the residence to play and to stay overnight for a sleepover. All of the children and Mr. Cunningham slept in one bedroom with Mr. Cunningham in the bed and the children on the floor. At some point, C.B developed a stomach ache and lay on the bed with him. After he believed C.B had fallen asleep, he moved her clothing and legs and performed cunnilingus on C.B and digitally penetrated her. C.B. panicked and ran to the bathroom before returning several minutes after to sleep on the floor with her sister.
14At a further point in the summer of 2002, Mr. Cunningham had been left to babysit K.D.’s children at the townhouse. On this occasion, K.C. had got out of the shower. Mr. Cunningham pretended to assist her, removed her towel and began rubbing her body and subsequently rubbed his erect penis on her buttocks. K.C. also reported that during the summer of 2002 Cunningham would instruct her to perform handstand while showing her bare chest and that he would take photographs of her while she did so.
15In November of 2020, T.B. reported the sexual assaults on her to police as well as those of her sister C.B and her childhood friend K.C. Following an investigation and the taking of statements a warrant in the first was issued for Mr. Cunningham and police searched for his whereabouts without success until they were notified of his arrest in Toronto in August of 2021.
Factual Background – Toronto charges – 2021
16In summer of 2021, Mr. Cunningham lived in a rooming house in a townhouse complex in North York, Toronto. The townhouse complex was a home to numerous adults and children.
17Mr. Cunningham befriended A.H the mother of a number of children in the townhouse complex. One of her children was a daughter A.H aged 8 at the time of these offences. At one point in the summer of 2021, Mr. Cunningham bought treats and gifts for the young children and hosted a water balloon fight and took the children to a splash pad. At various points in the summer of 2021, five separate incidents occurred either in the house of A.H. or at Mr. Cunningham’s home.
Incident #1
18A.H. and her sister AA.H. returned to their home with Mr. Cunningham from a trip to the splash pad. Their mother was not present and Mr. Cunningham bathed both young girls and washed A.H.’s vagina with his hand telling her that he was ‘cleaning it out”. AA.H. witnessed this incident. When their mother returned home, she questioned Mr. Cunningham as to why he was upstairs bathing her daughters but did not stop him doing so.
Incident #2
19A.H. was in her mother’s bedroom with Mr. Cunningham “playing gymnastics” when he asked her to perform a handstand and bridge. When she was lying down on her back, Cunningham pulled down her shorts and began to rub her vagina with his hand and then licked her vagina. The incident stopped when her mother called them downstairs.
Incident #3
20Mr. Cunningham invited A.H and her sister AA.H to his house for cake. While AA.H. was outside Mr. Cunningham shut the door and was in the bedroom with A.H. He advised her that he wanted to lick her vagina and then lay down on his bed with A.H and pulled her shorts and underwear down and began to lick her vagina. This continued until his phone rang which turned out to be A.H.’s mother phoning to ask why AA.H. was locked outside of Mr. Cunningham’s home while A.H. was shut inside with him. Mr. Cunningham then took A.H. outside to her mother.
Incident #4
21Photographs of A.H. being sexually assaulted by Mr. Cunningham were recovered from his cell phone following his arrest despite attempts having been made by him to delete these photographs of A.H. as well as other child sexual abuse images. A.H. reported that on one occasion Mr. Cunningham took a photograph of her sitting and stroking a kitten and on another occasion when she and him were in her mother’s bedroom, Cunningham pulled down her pants to mid-thigh and photographed her. When she asked him what he was taking a picture of her said “down there” and pointed to her genital area.
22The disclosure by A.H. led to a search warrant for Mr. Cunningham’s devices. Execution of this warrant examined the memory card in his cell phone. A total of 129 separate child sexual abuse images were recovered. Examination revealed that Mr. Cunningham had tried to delete all the images and videos. Further investigation of the deleted files on the phone disclosed thousands of images and videos. Many meet the Criminal Code definition of Child Pornography and depict pre-pubescent girls being sexually assaulted by adults. Many others depicted young girls in a variety of gymnastic poses in gymnastic attire.
Incident #5
23In August of 2021, Z.N. attended the home of A.H.’s mother C.H. to ask whether she knew a male named “David” who lived in their townhouse complex as her daughter A.N. and her step-daughter A.T.J. had disclosed being sexually assaulted by Mr. Cunningham. The two girls are step-sisters and A.T.J. and her brother were visiting her father at the townhouse complex for the summer. A.T.J. was 9 years old in the summer of 2021. A.N. was aged 7 years old.
24Mr. Cunningham gave A.T.J. a lollipop and invited her and some other children to his home for a water fight. He purchased water pistols and treats for the children. A.T.J. reported that Mr. Cunningham hugged her despite her asking him not to. After the water fight, Mr. Cunningham began drying A.T.J. off and she asked him not to as she could do it herself. Cunningham continued to dry her with the towel and groped her vagina and buttocks under the pretext of drying her with the towel.
25A.N. was also at the same water fight that Cunningham hosted when he sexually assaulted A.T.J. After the water fight, he dried A.N. off with a towel and similarly groped A.N.’s vagina and buttocks under the pretext of drying her with the towel.
26After the water fight, Mr. Cunningham invited all the children to his bedroom to watch a movie and he gave them chips. During this, he kissed both A.T.J. and A.N. on the forehead and told them he loved them. Both girls felt extremely uncomfortable with Mr. Cunningham and A.N. advised she could feel his penis on her bottom while they were sitting on the bed together. A.N. reported what had happened to her step-mother Z.N.
27After the encounter with Z.N. at her home, C.H. confronted Cunningham about sexually assaulting her daughter A.H. Shortly after this confrontation Mr. Cunningham cleared out his home and left his address at the townhouse complex.
28Shortly after this, a warrant was obtained for his arrest and Police issued a request for public assistance to locate Mr. Cunningham. On 22nd August, 2021, a member of the public recognized him, contacted police and Mr. Cunningham was placed under arrest.
Victim Impact statements
#1 – T.A.B.
29T.A.B. provided a Victim Impact Statement (VIS) for the sentencing. In her statement, she reports that the trauma of the events has had a significant impact on her mental health as well as impacting her level of comfort with sexual intimacy. She has been unable to maintain healthy intimate relationships in adulthood and advises that she has often resorted to crack cocaine to try and cope by blocking out memories and flash backs from the offending. She advises that although she is now in recovery, the events have over-shadowed all memories of her childhood.
#2 – J.T.
30J.T. provided a VIS for the sentencing and is the mother of two of the young girls assaulted by Mr. Cunningham. She describes the events as creating stress and anxiety and generating feelings of guilt because she was not present at the time of the offending because her children were visiting with their father and she couldn’t protect them. She now finds it very difficult to leave her children anywhere but continuously has heightened fear for their safety
#3 – A.T.J.
31A.T.J. provided a VIS for sentencing. She was 9 years old at the time of the offending. She says that since then she is very scared of people and has trouble trusting anyone and that she is scared that something worse will happen to her again. She says that she was scared that she would never see her mom and dad again and that she cannot even look at her home town in the same way anymore. She feels angry and anxious and is very protective of her siblings and fears Cunningham getting in contact with her family in the future.
#4 Sibling A.T.J.
32Sibling A.T.J. provided a VIS for sentencing is the brother of A.T.J. of the victims. He was one of the children Mr. Cunningham involved in the organized water fights and was not invited back into the house when offending took place on his sister. He was 8 years old at the times of the offences and says that what happened to his sister has made him very angry and upset and that he wants to do something to help his sister.
#5 – C.H.
33C.H. is the mother of two of the victims and provided a VIS for sentencing. She says in her VIS that following the offending she and her family have become very isolated. They have stopped going out and doing things they used to do. C.H. advises that she has significant trust issues, a fear of intimacy and relationships and does not invite people to her home any more. It is clear that she unfairly places considerable blame on her own shoulders for what happened to her daughters and says that she feels family members blame her in some way for what happened.
34She and her daughters have all engaged in counselling since the offending but C.H. and says she and her daughters are still angry and disgusted at what happened and that she and her family all feel deeply traumatized by what happened. C.H. also fears for the impact on her daughters as they grow up and their own future relationships. C.H has been prescribed medication for anxiety and depression.
35She also reports that she and her family are scared of Cunningham contacting them in the future and that there has been considerable financial cost for counselling costs and increased home security measures.
36She also reports that A.H. suffered an internal scratch in her genital area following the abuse and that her daughter has been treated at Sick Kids Hospital but remains in discomfort from the injury.
37The Crown has also provided me with Community Impact Statements from the Canadian Centre for Children Protection and The Phoenix 11. The latter being a group of individuals whose sexual abuse was recorded and shared on the internet. Both of these impact statements speak eloquently and powerfully to the impact and harm caused by child sexual abuse material. They rightly identify the near permanency of such materials in the internet era and the corresponding scope for ongoing revictimization of those impacted by such offending. A number of the images possessed by Mr. Cunningham show the faces of the victims of that material thereby exacerbating the risk of ongoing and further harm being caused.
38As is, or should be, self evident the impact statement of the Phoenix 11 makes clear that possession of child sexual abuse materials is not a victimless crime. Those impacted by such behaviour are real, often vulnerable young persons who are subject to lasting harm as a result of this behaviour.
Application For Finding That An Offender is a Dangerous Offender
39The Crown and defence jointly rely on s. 753 (1)(a)(i) and s. 753 (1)(b) of the Criminal Code for a finding that Mr. Cunningham is a dangerous offender.
40Those sections provide:
753 (1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied:
(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing
(i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour.
(b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.
41The analysis that the court is required to undertake is comprehensively set out by the Supreme Court of Canada in R. v. Boutilier, 2017 SCC 64. I refer, in particular, to the following paragraphs:
26In Lyons, Justice La Forest read the objective element of the designation -- the requirement that the predicate offence be a “serious personal injury offence” --together with the subjective element -- the “threat” assessment -- and concluded that four criteria were “explicit” from the language of s. 753(1): (1) the offender has been convicted of, and has to be sentenced for, a “serious personal injury offence”; (2) this predicate offence is part of a broader pattern of violence; (3) there is a high likelihood of harmful recidivism; and (4) the violent conduct is intractable (p. 338). The last three criteria are part of the assessment of the “threat” posed by the offender. The last two of these are future-oriented, and Justice La Forest explained them as follows:
Thirdly, it must be established that the pattern of conduct is very likely to continue and to result in the kind of suffering against which the section seeks to protect, namely, conduct endangering the life, safety or physical well-being of others or, in the case of sexual offences, conduct causing injury, pain or other evil to other persons. Also explicit in one form or another in each subparagraph of s. [688, now 753] is the requirement that the court must be satisfied that the pattern of conduct is substantially or pathologically intractable. [Emphasis added; p. 338.]
27The language of s. 753(1), which led Justice La Forest to develop the four criteria outlined above, has never been amended since its enactment in 1977. Before designating a dangerous offender, a sentencing judge must still be satisfied on the evidence that the offender poses a high likelihood of harmful recidivism and that his or her conduct is intractable. I understand "intractable" conduct as meaning behaviour that the offender is unable to surmount. Through these two criteria, Parliament requires sentencing judges to conduct a prospective assessment of dangerousness.
36The jurisprudence of this Court subsequent to Lyons has consistently considered a prospective assessment of risk to be a component of dangerous offender applications. In R. v. Currie, 1997 CanLII 347 (SCC), [1997] 2 S.C.R. 260, Lamer C.J. said that a judge has to "be satisfied beyond a reasonable doubt of the likelihood of future danger that an offender presents to society before he or she can impose the dangerous offender designation and an indeterminate sentence”: para. 25.1 In R v Sipos, at para. 20, which concerned s. 753(1)(b), this Court explained that designation requires evidence on both the retrospective and the prospective elements.
43As the assessment of prospective risk described above is concerned with whether an offender will continue to be “a real and present danger”, being unable to surmount his or her violent conduct, the sentencing judge must consider all retrospective and prospective evidence relating to the continuing nature of this risk, including future treatment prospects.
45The same prospective evidence of treatability plays a different role at the different stages of the judge's decision-making process. At the designation stage, treatability informs the decision on the threat posed by an offender, whereas at the penalty stage, it helps determine the appropriate sentence to manage this threat. Thus, offenders will not be designated as dangerous if their treatment prospects are so compelling that the sentencing judge cannot conclude beyond a reasonable doubt that they present a high likelihood of harmful recidivism or that their violent pattern is intractable: see Neuberger, at p. 7-1, by M. Henschel. However, even where the treatment prospects are not compelling enough to affect the judge's conclusion on dangerousness, they will still be relevant in choosing the sentence required to adequately protect the public.
46In sum, a finding of dangerousness has always required that the Crown demonstrate, beyond a reasonable doubt, a high likelihood of harmful recidivism and the intractability of the violent pattern of conduct. A prospective assessment of dangerousness ensures that only offenders who pose a tremendous future risk are designated as dangerous and face the possibility of being sentenced to an indeterminate detention.
42I am mindful that I have a joint submission on the part of Crown and defence counsel before me that submits that Mr. Cunningham should be found a Dangerous Offender in accordance with the relevant criteria. While any joint submission by counsel should be accorded considerable respect by the Court, it remains necessary for the Court to make its own determination based on the totality of the information before it. This includes counsel’s joint submission along with the evidence before me, including that of Dr. Jonathan Gaey who conducted an assessment of Mr. Cunningham as well as Mr. Cunningham’s criminal record and the various materials including CAS records that I have been provided with.
Criminal Record of David Cunningham
43Mr. Cunningham has convictions from 1990 for possession of a narcotic and failing to attend court. He received a fine and probation.
44In 2005, he was convicted of sexual assault, sexual interference and failure to comply with a recognizance. In addition to 52 days pre-sentence custody, he was sentenced to a further 16 days on each sexual offence count in addition to 3 years probation. He was also made subject to a SOIRA order. It is this SOIRA order that Mr. Cunningham has plead guilty to breaching by not reporting as required.
Evidence of Dr. Jonathan Gray
45Dr. Gray was qualified, on consent, as an expert in forensic psychiatry, to give opinions on risk assessment, treatment and management of high-risk offenders. Dr. Gray conducted a 60-day assessment of Mr. Cunningham pursuant to s. 752.1(1) of the Criminal Code which commenced on 17th July, 2023. A copy of Dr. Gray’s report dated 21st August, 2023 was entered as an exhibit on these sentencing proceedings. In addition to his written report, Dr. Gray gave evidence over the course of two days at this sentencing hearing.
46Dr. Gray reported that Mr. Cunningham presented as an upbeat and positive in interview who did not display resentment towards his victims or the justice system for his offending. He describes himself as an optimist who is motivated by his two adult daughters and a desire to be a good example to them.
47Dr. Gray reported that Mr. Cunningham agreed with some aspects of the Agreed Statement of Facts with respect to his guilty pleas but could not recall or denied other elements.
48With respect to the offences where Mr. Cunningham orchestrated bathing A.H. Dr. Gray reported that Mr. Cunningham adamantly denied any sexual purpose in rubbing A.H. between her legs and claimed he did so to relieve her groin pain.
49With respect to the offending where he was playing “gymnastics” with A.H. Mr. Cunningham advised that when he licked her vagina it was on the spur of the moment and she did not specifically say no or protest and that he wanted to “show her kindness.”
50Mr. Cunningham denied numerous key elements of the offences that he acknowledged and still acknowledges in the Agreed Statement of Facts (“ASF”). This includes denying most of the elements of the offences that comprise the Toronto charges in 2021 or indicating that he could not recall key instances of his offending. In short, he advised Dr. Gray that he could only recall the two sexual assaults on A.H. and not the other young girls. Mr. Cunningham also denied any sexually inappropriate behaviour towards the victims of his offending that led to his convictions in 2005.
51Mr. Cunningham reported no mood symptoms such as depression and no alcohol or other substance abuse issues. Mr. Cunningham denied any sexual arousal from the incidents but advised Dr. Gray that he needs help and “doesn’t want to do this again” and said that he had never previously received any offer of help in the past.
52When asked by Dr. Gray why he repeatedly found himself in situations with young girls if he wanted to desist from his offending behaviour, Mr. Cunningham replied that he did not deliberately create situations in which he would have unsupervised access to young girls but rather that the situation happened upon him through no fault of his own.
53He told Dr. Gray that for about the last 10 years he has been searching for sensual images of young girls on the internet and that his sexual preference is for girls between the ages of 8-11 years of age although he advised that the frequency of his viewing these images had diminished recently owing to an erectile disfunction since 2020 and that he viewed both adult pornography as well as child sexual abuse material both of which he had masturbated to.
54When asked by Dr. Gray about his plans for the future, Mr. Cunningham advised that he wishes to leave the Toronto area and move to North Bay to be closer to his two daughters and that owing to his diabetes diagnosis he often felt fatigued and was hoping to qualify for ODSP.
55When asked about possible terms of release Mr. Cunningham advised Dr. Gray he would be willing to meet with a supervising probation officer and would be willing to comply with a condition requiring him to have no unsupervised access or contact with children. He reported that he would be prepared to undergo sex offender treatment. When asked by Dr. Gray about his approach to taking medication to reduce his sex drive Mr. Cunningham advised that he did not like “man-made drugs” and would not want to take medication unless it was completely necessary but may be open to it if required.
56Although no records were available, Mr. Cunningham advised Dr. Gray that he had seen Dr. Seat who is a psychologist employed at the TSDC jail for a number of sessions during his current incarceration. Dr. Gray asked Mr. Cunningham about previous sexual offender treatment that CAS records indicated he had been offered after his 2005 convictions and Mr. Cunningham advised that he told his probation officer he didn’t have a problem because he did not know how to face it.
57Mr. Cunningham also agreed that he had previously refused phallometric testing in 2005 and said this was because he knew people who worked at the health centre and would have been embarrassed. He denied refusing phallometric testing in 2005 because of a refusal to acknowledge having a sexual problem.
58More recently, he advised that he refused a subsequent appointment for phallometric testing at the Royal Ottawa Hospital because he had become a committed Christian since being in custody. Mr. Cunningham advised Dr. Gray, variously, that he did not want to expose himself to nudity, did not want to view images or listen to audio tapes for religious reasons and did not want to subject himself to the sexual stimuli involved in the phallometric lab.
59Dr. Gray concludes that there is substantial evidence to support a diagnosis of pedophilic disorder with respect to Mr. Cunningham. Dr. Gray advises that this is a lifelong disorder that requires continuous vigilance and management of symptoms. Of all the paraphilic disorders listed in the DSM-5, pedophilic disorder is the only one that does not include the potential qualifier ‘in remission”.
60To estimate Mr. Cunningham’s likelihood of sexual recidivism, Dr. Gray used five scoring tests
i. Static-99R
ii. STABLE-2007
iii. The Psychopathy Checklist
iv. Revised (PCL-R)
v. The Violence Risk Appraisal Guide (VRAG-R) psychological instrument
61The Static 99-R is the most widely used sex offender risk assessment in the world and is designed to assist in the prediction of sexual and violent recidivism for sexual offenders. On this scale, Mr. Cunningham was found to be at the higher end of the mid-range for risk of reoffending.
62STABLE-2007 is a specific for dynamic factors to be associated with risk of re-offence for sexual offenders. It is commonly used by probation officers and treatment providers to measure changes in risk and to guide treatment targets. It is commonly used in conjunction with Static-99R as a risk evaluating tool. On the STABLE-2007 out of 100 comparable individuals, 76 were found to have a lower score than Mr. Cunningham. This placed him in the highest end of the moderate range of criminogenic needs.
63Although Mr. Cunningham denied being more emotionally in touch with children than adults Dr. Gray noted a pattern of developing relationships with children before offending against them. At the time of Dr Gray’s assessment in July-August 2023, Mr. Cunningham denied any sexual drive in the last “year or two” despite convictions for sexual offences in 2021.
64Dr. Gray found that Mr. Cunningham was not entirely cooperative with his assessment and denied many elements of the ASF and had adamantly refused phallometric testing. Dr. Gray also found that despite regularly attending probation appointments when last on probation, Mr. Cunningham had not been open with his probation officer about more than one Childrens Aid Service (“CAS”) investigation into him.
Violence Risk Appraisal Guide – Revised (VRAG-R)
65The Revised VRAG-R is an actuarial instrument used to assist in risk prediction of violent offenders through identification of specific static or historical factors in the offender. On this risk assessment instrument, Mr. Cunningham was found to be at the lower end of the high risk for violence or sexual reoffending and was found by Dr, Gray to be at the higher end of risk in this regard. Mr. Cunningham’s score higher than is 77% of comparable offenders.
Psychopathy Checklist – Revised (PCL-R)
66While not strictly a risk assessment instrument this tool informs opinions on risk and amenability to treatment interventions, it is commonly used to help estimate future risk. Mr. Cunningham scored below average on the PCL-R tool and Dr. Gray concludes that this provides some evidence that psychopathic traits would not be a barrier to successful treatment as a responsivity issue and while not a guarantee the score may indicate that Mr. Cunningham is capable of engaging with treatment interventions should he seek to do so.
67Dr. Gray concludes that there is psychiatric evidence towards Mr. Cunningham’s victims to support a conclusion of a failure to control his sexual impulses and a likelihood that he will demonstrate a likelihood of failure to control his sexual impulses in the future. Dr. Gray supports his conclusions with the long gap between Mr. Cunningham’s 2004 sexual offences and those in 2021.
68Dr. Gray also found that the natural dampening effects of the sexual drive through ageing have not proven to be a major mitigating factor for Mr. Cunningham’s sexual urges. Simply put, age is not acting as a brake on Mr. Cunningham’s sexual urges or offending.
69In assessing the risk of recidivism, Dr. Gray found that there is strong evidence that without any treatment or environmental interventions Mr. Cunningham poses a substantial risk into the future despite the natural mitigating effects of aging. Dr. Gray advises that Mr. Cunningham’s diagnosis of paedophilic disorder is one that can potentially be managed but cannot be cured.
70Dr. Gray further noted that possession of child sexual abuse material does not require any physical stamina and that his offending in the current charges included some of the most intrusive sexual offending behaviour, namely forced cunnilingus. Dr. Gray found no evidence of “burnout” through age reducing the risk of Mr. Cunningham’s offending.
71Dr. Gray acknowledges that the concept of intractability is a legal and not a psychiatric issue. Dr. Gray advises that there is some evidence that Mr. Cunningham’s risk is longstanding and entrenched and notes the remarkable similarity between Mr. Cunningham’s offences and choice of victims over a prolonged period of time. I also note the following exchanges between Dr. Gray and Crown Counsel Ms. Garcia during the course of Dr. Gray’s viva voce evidence:
Ms Garcia: Can you comment on the risk set of circumstances and their manageability in the community?
Dr Gray: .If he’s returned to the community on some kind of supervision order then there would have to be a big effort to make sure that he doesn’t get into a situation where he has contact with children.
Ms. Garcia: “Will there ever be a time where it is safe for Mr. Cunningham to be alone with a little girl aged 8 to 11 years old”
Dr. Gray: “In my opinion, no. Not ever”… The best you can do with treatment is help the person manage it. And try to not find themselves in situations where they’re going to act on it, or try to, you know lower the sexual drive though their medications or other things like that but you can’t change the direction of their sexual interests.
72However, Dr. Gray concludes that there is in his opinion significant psychiatric evidence against Mr. Cunningham’s risk of being considered intractable in the legal sense. Dr. Gray found that Mr. Cunningham could not be said to be treatment resistant in the sense that past interventions have failed to mitigate his risk. Dr. Gray acknowledges the obvious point that the lack of prior treatment has been a product of a refusal or unwillingness to engage in any such process on the part of Mr. Cunningham. He also notes that Mr. Cunningham has also not sought out any treatment for his paedophilia on his own over the course of many years.
73Dr. Gray reports that there is no evidence that Mr. Cunningham was previously offered an intense evidence-based treatment for sexual offenders up to this point in time and has now voiced some willingness to engage in such a process as part of this Dangerous Offender process and Dr Gray, within the limitations of treatment for paedophilia, would not take the view that Mr. Cunningham is untreatable.
74During the course of his viva voce evidence Dr Gray agreed with Mr. Brodsky that if Mr. Cunningham meaningfully engaged in appropriate treatment while in a penitentiary Dr Gray felt there was a prospect of managing his risk in the community upon his eventual release, in conjunction with a subsequent LTSO at the end of his parole period.
75Dr. Gray acknowledges that Mr. Cunningham has denied or minimized significant aspects of his offending but believes that this is one of the issues that could be addressed in potential treatment.
76Dr. Gray concludes that there is ample evidence to conclude that Mr. Cunningham has a well-established pattern of failing to control his sexual impulses against similar victims and that his risk of reoffence remain substantial without intervention. However, in Dr. Gray’s opinion he believes that there is less evidence to support a conclusion that the risk is intractable or unlikely to change with specific future interventions and restrictions. On this basis, it is Dr. Gray’s opinion that there is insufficient psychiatric evidence to support a legal finding of Dangerous Offender status.
77The sexual assaults which form the predicate offences are “serious personal injury offences” within the definition of s.752, as incorporated by s. 753(1)(a) and (b) of the Criminal Code of Canada.
78I am also satisfied beyond a reasonable doubt that the predicate offences form part of a pattern of repetitive behaviour by Mr. Cunningham showing a failure to restrain his behaviour, within the meaning of s. 753(1)(a), and a failure to restrain his behaviour, within the meaning of s. 753(1)(a), and a failure to control his sexual impulses within the meaning of s. 753(1)(b).
79The Victim Impact Statements speak powerfully to the severe psychological damage, injury, pain and other harm suffered by the victims of his offending. Mr. Cunningham displayed indifference to those reasonably foreseeable consequences of his actions. The number of sexual assaults and the elements of similarity surrounding the sexual assaults establish the requisite pattern of offending behaviour. Mr. Cunningham used sexual assault to achieve his sexual desires with an inability to control or restrain his impulses.
80The question then to be answered is whether the third and fourth criteria set out in Boutilier, have been satisfied. The third and fourth criteria concern the likelihood and intractability of violent or sexual conduct causing future damage.
81In Boutilier, it is stated repeatedly, at paras. 26, 27, 45 and 46 that the Crown must establish a “high likelihood” of harmful recidivism. Boutilier also endorses, with emphasis, at para. 26, the conclusion in Lyon that the Crown must establish a pattern of conduct that is “very likely to continue.” The leading text on dangerous offenders, Neuberger, Assessing Dangerousness: A Guide to the Dangerous Offender Application Process (Toronto: Thomson Reuters, 2011, loose-leaf updated 2019) references para. 27 of Boutilier and the necessity of establishing a “high likelihood” of harmful recidivism.
82The third and fourth criteria are future oriented and require the court to conduct a prospective assessment of future risk. The court must have regard to the totality of the evidence, including consideration of an offender's treatment prospects.
83The Crown does not have to prove beyond a reasonable doubt that Mr. Cunningham will commit an offence. That is an impossibility. The Crown must demonstrate beyond a reasonable doubt based on evidence of a pattern of past conduct and a prospective assessment of future risk that Mr. Cunningham poses a high likelihood of repeating his offending behaviour and that he is unable to surmount that conduct.
84The assessment report prepared by Dr. Jonathan Gray is mandated by s. 753.1 and s. 753(i). The Court of course, cannot assume that psychiatrists can accurately predict the future. Indeed, Dr. Gray himself, testified that the assessment tests that he used in his assessment of the future risk posed by Mr. Cunningham did not constitute a crystal ball that allowed one to see into the future. However, he said that the assessment tests were moderately successful at predicting future risk.
85For over at least two decades, Mr. Cunningham has consistently sought to evade or avoid any engagement, treatment or assessment for his acknowledged paedophilic disorder. His offending has spanned offences from 2004 to 2021. Notwithstanding his adherence to the ASF before me, in his assessment by Dr. Gray, Mr. Cunningham extensively denies key elements of much of his offending behaviour. Alternatively, he feigns to have no recollection of much of his offending behaviour.
86A consistent theme that is readily apparent in Dr. Gray’s report is that of Mr. Cunningham minimizing his own responsibility for his actions and rather than acknowledging his own considerable efforts to engineer scenarios that facilitate his offending he seeks to portray himself as being the victim of fate. I reject entirely Mr. Cunningham’s claims that he repeatedly just found himself in the scenarios that unfolded and do not accept that he acted on the spur of the moment in any of these instances.
87I note Mr. Cunningham’s attempt to deflect or displace responsibility for his offending. This includes his comment to Dr. Gray that at least one of the little girls he sexually assaulted “did not say no or protest” and more than one reference that he considered his actions to be a way of showing his child victims “kindness”. On the information before me I also reject entirely Mr. Cunningham’s assertions to Dr Gray that his behaviour was not sexually motivated and nor did he derive any sexual arousal from it.
88I also note that in addition to denying a significant volume of his offending behaviour in the matters before this court when he spoke to Dr. Gray, Mr. Cunningham continues to maintain that he engaged in no sexually inappropriate behaviour towards his victims in 2004.
89Dr. Gray accepts that the current Dangerous Offender and sentencing process may account for a willingness on the part of Mr. Cunningham to now appear open to treatment and intervention. I find that this is highly likely to be the principle motivating factor for Mr. Cunningham rather than any real or meaningful insight into his behaviour and its impacts.
90I have profound reservations about the extent to which Mr. Cunningham is sincere in his willingness to acknowledge and address his paedophilia and thereby seek to mitigate the significant risk he poses to young girls. The consistent theme of his interaction with Dr Gray was to present an image of someone with very little, if any, insight or acknowledgement of the nature of his paedophilia and the consequences of his actions. Indeed, Mr. Cunningham persists in denying many aspects of his current and former offending.
91In my view, the psychiatric evidence demonstrates that Mr. Cunningham unquestionably poses a risk of reoffending, and I am satisfied beyond a reasonable doubt that the totality of the evidence before me establishes a “high likelihood” of harmful recidivism and intractability of a violent pattern of conduct or sexual reoffending.
92I do find that Mr. Cunningham satisfies the criteria to be determined a Dangerous Offender and find him to be so.
Evidence of Ms. Lori Pynne – Correctional Services Canada
93Ms. Pynne testified on behalf of Correctional Services Canada (CSC). She testified that CSC’s mandate is public safety. The focus is on assessing and managing risk so that an offender can successfully reintegrate through special conditions and monitoring. Ms. Pynne gave evidence all offenders in the federal system undergo an intake assessment after being sentenced.
94Ms. Pynne advised that given Mr. Cunningham’s offending history and nature of his offences he is likely to be directed to complete the Integrated Correctional Programme Model for Sex Offenders. A High Intensity model is available, comprising 5 modules with a total of 107 sessions. Offenders are able to have one-on-one sessions that are specific to their needs.
95With respect to parole eligibility, Ms. Pynne testified that all offenders are eligible to apply for full parole after serving one-third of the custodial portion of their sentence or 7 years, whichever comes first. They are eligible for day parole 6 months prior to that.
96Ms. Pynne advised that day parole or full parole are forms of conditional “earned releases.” The Parole Board would only consider an offender suitable for such a conditional release if they were assessed and determined to be making progress against their correctional plan and were addressing their risk factors. The Parole Board would have to be satisfied that they could put the appropriate measures in place to manage the risk that person presented.
97Absent highly exceptional and very limited circumstances statute provides that offenders must be released on parole after serving two-thirds of their sentence.
98Parole supervisors conduct a community assessment with additional considerations and conditions for sex offenders. If an offender has complied with the recommended treatment while in custody, not committed any offences while in custody and has expressed a genuine desire to carry on with treatment in the community, they are a candidate for parole.
99Ms. Pynne gave evidence from a CSC perspective a Dangerous Offender designation with a determinate sentence is like any other lengthy sentence of two years or more. It is treated the same with regard to parole eligibility.
100If an offender on parole proves to represent an unmanageable risk and breaches conditions of their parole, they are liable to a revocation of their parole in which case an offender would return to custody and may potentially not be released again until their statutory release date at the two-thirds point in their original sentence.
101Ms. Pynne testified that the regime with respect to a Long Term Supervision Order (LTSO) is very different. CSC can only suspend an LTSO for a maximum of 90 days. If no additional charges are laid, the Parole Board’s only option thereafter is to return the offender to the community. A breach of an LTSO is similar to any other criminal charge. The offender is presumed innocent and entitled to seek reasonable bail pending a trial.
Sentence
102The Criminal Code instructs that the goal of any criminal sentence is to protect society, contribute to respect for the law and help maintain a just, peaceful, and safe society. (see s.718)
103Sentencing judges attempt to achieve this goal by imposing just sanctions that address one or more of the traditional sentencing principles that are also contained in the Criminal Code. These include denunciation, general and specific deterrence, rehabilitation, making reparation to victims of crime, and promoting a sense of responsibility in offenders and an acknowledgment of the harm they have caused the community, and specific victims in our community. (see s. 718(a) – (f))
104Ultimately, the fundamental principle of sentencing is to impose a sanction that is proportionate to the gravity of the offence committed, and the degree of responsibility of the person who committed it. (see s. 718.1) This means that, for the sentence I impose to be appropriate, it must be tailored to the circumstances of the offences Mr. Cunningham committed as well as taking into account his own personal circumstances.
105In determining an appropriate sentence, it is helpful to consider any relevant aggravating or mitigating circumstances that are present. This would include features of Mr. Cunningham’s background, features of the crimes he has committed, the timing of his guilty pleas, and any other evidence I have received during this sentence hearing. It would also include any legal direction, with regard to particular aspects of this case that I must give significant consideration and emphasis to. This direction and guidance may be found in the Criminal Code or provided by the higher courts,
106In addition to a number of provisions of the Criminal Code that I must consider, clear guidance is provided by the Supreme court of Canada in R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424 in respect of the sentencing of offenders with respect to sexual offences against children.
107Listing the applicable aggravating and mitigating features assists me in evaluating this case properly and in imposing a sentence that is just and appropriate. I note the following aggravating and mitigating features of this case.
Mitigating
108The most significant mitigating factor in the case before me are the guilty pleas entered by Mr. Cunningham. This was significant in terms of sparing the victims the considerable ordeal of reliving in court their ordeal at the hands of Mr. Cunningham. Similarly, he receives the appropriate credit for saving the time and resources of the court. Had these matters gone to trial, they would have inevitably occupied a considerable amount of court time.
109I am assured by both Mr. Brodsky and Mr. Cunningham that Mr. Cunningham does not seek to resile from the signed Agreed Statement of Facts that is an exhibit in these proceedings. However, the credit that Mr. Cunningham receives for his guilty pleas is significantly attenuated by the fact Mr. Cunningham resiled from much of his offending behaviour in his assessment meeting with Dr. Gray.
110Although the victims and witnesses have been spared the need to attend court, it is clear that Mr. Cunningham appears to possess little, if any, genuine insight into his behaviour and its impacts. His acceptance of responsibility for his actions appears to be very limited. The report of Dr. Gray makes it clear that there is little evidence of genuine remorse on his part for his offending, indeed Mr. Cunningham refers to his actions as an attempt at “kindness” and seeks to minimise those limited offences he does acknowledge to Dr. Gray by claiming that at least one of the young girls did not say no or protest at his sexually assaultive behaviour.
111Mr. Cunningham repeatedly paints himself as the unwilling victim of circumstance who randomly finds himself in situations with these vulnerable young children. Nothing could be further from the truth. It is clear to me that the circumstances in which the various sexual assaults occurred were engineered by Mr. Cunningham solely for the purpose of facilitating his offending.
112Mr. Cunningham does not have a lengthy criminal record. He does, however, have criminal convictions for similar offences of sexual assault that involved young children. Notwithstanding the findings of the court in that case, Mr. Cunningham continues to deny any inappropriate behaviour on his part with respect to these earlier convictions which reinforces his sustained refusal to acknowledge the nature of his behaviour or any insight into it. He appears to have a positive history of prior reporting to his probation officer but failed to comply with the terms of reporting as required by his SOIRA order.
113There are no issues of addiction that relate to alcohol or drugs. Mr. Cunningham’s offending is not linked to addiction nor, as a result, is any risk he poses heightened by the consumption of drugs or alcohol. Aside from the pedophilic disorder that he is diagnosed with, no other psychiatric or mental health issues are reported.
114Mr. Cunningham is 58 years old and an only child. His parents separated when he was young and his mother remarried when he was nine. He believes his mother may have been an alcoholic and his step-father drank heavily too. At 13 years old Mr. Cunningham spent a period of time in foster care and then returned to live with his mother and stepfather. He reports a steady history of employment in various jobs prior to his incarceration. He is the father of two adult daughters one of whom spoke with Dr Gray. Mr. Cunningham reported 3 sexual relationships with adult females prior to the relationship with the mother of their daughters.
115Mr. Cunningham reports that he has been diagnosed with a number of different chronic medical conditions during his recent incarceration. This includes hypercholesterolemia, Type 2 diabetes, and hypertension. He has received medical treatment and is taking medications for these conditions.
116During the course of his time remanded at TSDC Mr. Cunningham has completed a total of 11 different programme certificates for courses offered by TSDC or the John Howard Society. These include, anger management, changing habits, managing stress, understanding feelings and discharge planning. I accept the limitations of the programing available to Accused person’s at TSDC are not the fault of those incarcerated there.
Aggravating Features
Statutory Considerations
117The offences for which Mr. Cunningham falls to be sentenced are predominantly a series of sexual offences against young children. Specifically, 6 young girls aged between 7-10. The offending spans a considerable period of time and can be grouped into offences that occurred in 2001-2002 and then in 2021.
118Pursuant to s. 718.01 of the Criminal Code, the primary consideration of the Court on sentencing for the majority of Mr. Cunningham’s offences is that of deterrence and denunciation.
119Giving “primary consideration” to denunciation and deterrence requires a meaningful assessment of how the facts of the offence and the circumstances of the offender relate to denunciation and deterrence and an acknowledgment that substantial weight must be given to these objectives so that they are properly vindicated in the sentencing process: R. v. Branton (2013), 2012 BCCA 377, 293 C.C.C. (3d) 455 (B.C.C.A.).
120Similarly, the Crown rightly submits that the same principles are also applicable in this case by virtue of s. 718.04 of the Criminal Code. This provides that those principles are given primary consideration where the offences involved the abuse of a person who is vulnerable because of their personal circumstances, including because the person is Aboriginal and female. C.B. and T.A.B. are both Indigenous young females. So too is A.H. A.N. is a racialized young woman and all of the families that were targeted by Mr. Cunningham were single mothers, facing challenging financial circumstances and whom I accept, through no fault of their own, were marginalised as a result of their particular circumstances.
121I also take into account the principles contained in 718.2 (a)(ii.1) that relate to sentencing an individual where the offences involved abuse of a person under 18 years of age. Separate and apart from the exploitative child sexual abuse material that Mr. Cunningham was in possession of that perpetuates the sickening abuse of young children and the marketplace for it, all six of the young girls abused by Mr. Cunningham were well under 18 years of age.
122I also accept the Crown submissions that Mr. Cunningham deliberately placed himself in a position of trust and authority over his victims. Specifically, he engineered opportunities to babysit these young children at their homes or his home as well as orchestrating “water fights” and time at a splash pad where he was the sole adult responsible for their care.
123Lastly, pursuant to s. 718.2 (a)(iii.1), I note the impact of Mr. Cunningham’s offending behaviour on those who were able to provide Victim Input before the Court. From the impact statements provided to me and summarized above, it is both clear and unsurprising that the offending behaviour of Mr. Cunningham had a very significant impact on those impacted by it.
124I also take into account the two Community impact statements that addressed the evils of child sexual abuse material and its accompanying exploitation of young children. I accept entirely the representations contained in those statements about the impact and revictimization of those subject to such offending.
125It is clear that these offences arose after considerable deliberacy and effort on the part of Mr. Cunningham. It is also clear to me based upon the report of Dr Gray that there is minimal acceptance of responsibility on the part of Mr. Cunningham for his actions and negligible insight into his offending. I accept that there may be a current willingness expressed on his part to engage in the necessary steps to address some of his behaviour and the significant risk that he presents. I also accept that Dr Gray is of the view that there is evidence to support treatability if it is properly embraced. My view is not optimistic of Mr. Cunningham taking those necessary steps.
126It is also an aggravating feature in the case before me that Mr. Cunningham failed to comply with the reporting restrictions required by the SOIRA that was imposed in 2005. This statutory regime is intended to provide supervision and protection of the type clearly required by Mr. Cunningham. For years he evaded and avoided reporting as required thereby avoiding detection and facilitating his offending.
LAW
127Counsel have provided me with a number of helpful materials and a significant number of authorities that I have reviewed. Included in these authorities is the decision of Stribopoulos J in R v Branco [2019] O.J. No. 3170 with its very comprehensive and helpful review of the sentencing in the context of possessing and accessing child sexual abuse material.
128Notwithstanding Mr. Brodsky’s submissions that case law prior to Friesen should not be disregarded, it is clear that Friesen is the guiding and leading authority on sentencing for such offences. Clear guidance was provided by the Supreme Court of Canada in Friesen of a recalibration of the sentencing of those responsible for sexual offences against children.
129As submitted by Ms. Garcia, Friesen marshalled in a new era for sentencing law with respect to sentencing those guilty of sexual offences against children. This new approach reflects a principled approach to sentencing and one in which “sentences must reflect the contemporary understanding of sexual violence against children” [Friesen para. 46.]
130To effectively respond to sexual violence against children, sentencing judges need to properly understand the wrongfulness of sexual offences against children and the profound harm they cause. Getting the wrongfulness and harmfulness right is important. [Friesen, para. 50]
131Protecting children from harm is the underlying objective of the legislative scheme of sexual offences against children in the Criminal Code. To that end, Parliament’s scheme of sexual offences against children protects personal autonomy, bodily integrity, sexual integrity, dignity and the equality of children. R. v. Friesen, 2020 SCC 9, [2019] S.C.J. No. 100, paras. 42, 51
132The Supreme Court made their mandate to sentencing Courts clear in key passages from Friesen: Sentencing courts must also recognize the relational harm to families, the broader harm to the communities in which children live and to society as whole, as well as the disproportionate impact on girls, among other groups and the link to violence against women. Past biases and myths must not filter into the sentencing process. R. v. Friesen, 2020 SCC 9, [2019] S.C.J. No. 100, paras. 46-73
133The protection of children is one of the most fundamental values of Canadian society. Sexual violence against children is especially wrongful because it turns this value on its head. In reforming the legislative scheme governing sexual offences against children, Parliament recognized that children, like adults, deserve to be treated with equal respect and dignity. R. v. Friesen, 2020 SCC 9, [2019] S.C.J. No. 100, para. 65
134This commentary and direction by the Supreme Court is not mere virtue signalling. Nor is it to be treated by the Courts as such. It is a clear and unambiguous instruction to the courts on how they are to sentence offenders for such offences and various factors that are to be considered as part of that exercise.
135When determining the gravity of the offence, it is not sufficient to simply state that sexual offences against children are serious. Courts must impose sentences that recognize and give effect to (1) the inherent wrongfulness of these offences, (2) the actual harm that children suffer, and (3) the potential harm to children that flows from these offences.
136In this regard, Courts must always take into account forms of potential harm that have yet to materialize at the time of sentencing but that are a reasonably foreseeable consequence of the offence and may in fact materialize in childhood or adulthood. Courts have recognized that sexual violence against children inherently has the potential to cause several recognized forms of harm. R. v. Friesen, 2020 SCC 9, [2019] S.C.J. No. 100, paras. 74-86
137Parliament has recognized the profound harm that sexual offences against children cause and has determined that sentences for such offences should increase to match Parliament’s view of their gravity. Parliament has expressed its will by increasing maximum sentences for sexual offences against children and by prioritizing denunciation and deterrence in sentencing for sexual offences against children through the enactment of s. 718.01 of the Criminal Code. R. v. Friesen, 2020 SCC 9, [2019] S.C.J. No. 100, paras. 95-10
138The Supreme Court makes this point repeatedly in Friesen: To respect Parliament’s decision to increase maximum sentences for sexual offences against children, courts should generally impose higher sentences than the sentences imposed in cases that preceded the increases in maximum sentences. Sentencing judges and appellate courts need to give effect to Parliament’s clear and repeated signals to increase sentences imposed for these offences and shift the distribution of proportionate sentence .
R. v. Friesen, 2020 SCC 9, [2019] S.C.J. No. 100, paras. 45, 96-100
139The Supreme Court emphasized that: (1) an upward departure from prior precedents and ranges may well be required to impose a proportionate sentence; (2) sexual offences against children should generally be punished more severely than sexual offences against adults and (3) sexual interference with a child should not be treated as less serious than sexual assault of a child. [Friesen, paras. 106-120]
140The Supreme Court’s overall message is that “mid-single digit penitentiary terms for sexual offences against children are normal and upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances”. R. v. Friesen, 2020 SCC 9, [2019] S.C.J. No. 100, para. 114
141Substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim, and “a maximum sentence should be imposed whenever the circumstances warrant it”. R. v. Friesen, 2020 SCC 9, [2019] S.C.J. No. 100, para 114
142Ms. Garcia for the Crown submits that the kind of offences that are before this Court cause irreparable harm to the children victimized. She rightly argues that one cannot minimize the damage done to a child’s life, by placing a sexual assault on a spectrum of intrusively. The harm caused is no less painful to a child, or life altering because an offender violated the child’s sexual integrity in one way versus another. Ms. Garcia submits that each of these offences should easily attract a mid-single digit penitentiary term of imprisonment.
143Ms Garcia for the Crown submits that the appropriate custodial sentence, once adjusted to take account of the principle of totality is one of 30 years jail less pre-sentence custody. Ms Garcia arrives at this figure by proposing a series of consecutive sentences for each of Mr. Cunningham’s offences. These range between 4 to 8 years for each of the six young girls who were sexually abused by of Mr. Cunningham. In addition to this the Crown submits that two further consecutive sentences of 3 years each is appropriate for the 2 offences of possessing and accessing Child pornography and lastly submits that 2 years consecutive jail is appropriate for the breach of the SOIRA. Ms Garcia reaches an aggregate sentence of 44 years and submits that the principle of totality reduces that to 30 years.
144The Crown submits that give the pre-sentence custody such a sentence would result in parole eligibility after 7 further years of incarceration for Mr. Cunningham if he engaged meaningfully and successfully in treatment options available to him. Once paroled the Crown submits that the Parole Board would enforce necessary and appropriate conditions to try and mitigate the risk Mr. Cunningham poses and that the lengthier the period of parole supervision, the more robust that supervision is capable of being and greater the degree of protection that is afforded to the public.
145Ms Garcia submits that the sentence sought by Mr. Brodsky for the defence is substantially less than the one required by the sentencing principles that are to be applied to these offences. If the Court sentenced Mr. Cunningham to 2 years of further jail he would theoretically be eligible for parole after 8 months and statutorily releasable after 16 months.
146Mr. Brodsky submits that 2 additional years of jail would enable Mr. Cunningham to benefit from the available treatment options in the penitentiary system and that this is necessarily critical to successfully managing risk. He submits that even in a post Freisen climate this would result in an appropriate sentence of a slightly in excess of 6 years jail once pre-sentence custody had been applied.
147Mr. Brodsky submits that such a sentence is not inconsistent with the necessary sentencing principles. He further submits that although such a sentence would necessarily result in a far shorter period of supervision on parole, this is appropriately addressed by the 10 year LTSO and its accompanying supervision of Mr. Cunningham which he submits would be able to appropriately address the issue of risk. Mr. Brodsky submits that at Mr. Cunningham has a number of health conditions and that at 58 years of age the sentence sought by the Crown is effectively a life sentence.
148The Supreme Court also provided the following non-exhaustive list of factors that must also be considered in the determination of a fit sentence: R. v. Friesen, 2020 SCC 9, [2019] S.C.J. No. 100, paras. 121-154
149The higher the offender’s risk to reoffend, the more the court needs to emphasize the sentencing objective of separating the offender from society to protect vulnerable children from wrongful exploitation and harm. R. v. Friesen, 2020 SCC 9, [2019] S.C.J. No. 100, paras. 122-124.
150An offender who abused a position of trust or authority should receive a lengthier sentence than an offender who is a stranger to the child. R. v. Friesen, 2020 SCC 9, [2019] S.C.J. No. 100, paras. 125-130
151Sexual violence against children that is committed on multiple occasions and for longer periods of time should attract significantly higher sentences that reflect the full cumulative gravity of the crime and the offender’s increased degree of responsibility. R. v. Friesen, 2020 SCC 9, [2019] S.C.J. No. 100, paras. 131-133
152The age of the victim is a significant aggravating factor because children who are particularly young are even more vulnerable to sexual violence, which enhances the moral blameworthiness of the offender. R. v. Friesen, 2020 SCC 9, [2019] S.C.J. No. 100, paras. 134-136
153There is a potential danger in defining a sentencing range based on the specific type of sexual activity. In particular, courts must be careful to avoid the following errors: (a) attributing intrinsic significance to the occurrence or non-occurrence of sexual acts based on traditional notions of sexual propriety, such as making the presence or absence of penetration the cornerstone of the sentencing range; (b) assuming that there is correlation between the type of physical act and the harm to the child; (c) failing to recognize the wrongfulness of sexual violence in cases where the degree of physical interference is less pronounced; and (d) understanding the degree of physical interference in terms of a type of hierarchy of physical acts. R. v. Friesen, 2020 SCC 9, [2019] S.C.J. No. 100, paras. 137-147
154David Cunningham preyed on vulnerable, single mothers and inveigled his way into their lives. The nature these serious offences is further significantly aggravated by virtue of the position of trust that Mr. Cunningham orchestrated in order to facilitate his offending. He masqueraded as a friend and source of support to the mothers of his victims. He deliberately engineered various scenarios in which he was babysitting and had sole access to the young children in his care.
155The impact of his offending was naturally very considerable upon those he abused as well as their families. David Cunningham caused significant and lasting harm. He has also engendered feelings of guilt in the children and parents he has offended against.
156While I know that no words from me can repair the damage caused by these despicable acts, all of those effected by this offending need to know that none of what happened here is there their fault. Responsibility for these actions lies solely with Mr. Cunningham. I am firmly of the view that Mr. Cunningham is a significant risk to public safety and is likely to remain a risk to young girls for much of the rest of his life. Robust management and supervision of him once he is eventually released in to the community will be required, even if he chooses to take any steps to address his behaviour.
157There is an impeccable logic to the mathematic formula applied by Ms Garcia in this case. Given the nature of these offences it is important to emphasis that none of the individual jail terms she proposes for any of the offences are inconsistent with the appropriate sentencing range. Each of these offences individually merits a sentence at, or close to the tariff the Crown submits. If I followed this formula I too would also arrive at a figure similar to that of the Crown.
158Nevertheless, despite the logic of this approach I am of the view that the discounting that the Crown applies in order to reach a sentence of 30 years does not sufficiently address the principle of totality to which the court must have regard.
159Where consecutive sentences are concerned, the fundamental principle of proportionality expresses itself through the totality principle. Simply put, the totality principle requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence imposed does not exceed the overall culpability of the offender R. v M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500
160Proportionality requires that the sentence imposed fit both the seriousness of the crime and the offender’s level of moral blameworthiness in its commission R v Ipeelee 2012 SCC 13, [2012] 1 S.C.R. 433.
161Mr. Brodsky seeks a further sentence of 2 years jail for a sentence slightly in excess of 6 years in addition to the 10 year LTSO. Such a sentence would in my view be manifestly inconsistent with the principles of sentencing required by this case and with the clear guidance given the Supreme Court in Friesen. It would in no way appropriately address the necessary principles of deterrence and denunciation and would fall very far short of providing the necessary separation of Mr. Cunningham from society that his offending requires.
162A sentence of 2 years further jail would also in my view not provide a sufficiently robust framework for the necessary supervision of Mr. Cunningham once he was released. I do not know whether Mr. Cunningham will seek to address his offending behaviour but any such course of action will require a significant investment of time, commitment and resources if the risk he poses is to be realistically mitigated.
163For the foregoing reasons I am of the view that the appropriate sentence is one of 18 years imprisonment, less the pre-sentence custody that Mr. Cunningham has served.
164I am satisfied that a legitimate corollary of the lengthy jail sentence that I am imposing is a longer period of parole with its more robust framework of supervision and enforcement. The decision around the granting of parole and its necessary conditions will be a matter for CSC to determine at the appropriate time and while considering all relevant factors. On its expiration parole will be in turn be replaced by the 10 year LTSO order.
165Mr. Cunningham has served a total of 1028 actual days in presentence custody. With the application of the standard pre-sentence credit in this case that would give rise to a standard enhanced credit of 1,542 days or a little over 4 years.
166I take notice of the frequently challenging conditions that those on remand at Toronto South Detention Centre face. These conditions are well known to those sitting and practising in Toronto. I do not propose to rehearse them here. Suffice to say, mindful of these conditions I shall enhance Mr. Cunningham’s pre-sentence custody and the record will reflect 1028 days credited at four and a half years.
167This will leave a balance of thirteen and a half years imprisonment to be served.
168The total sentence of 18 years jail will reflect 3 years jail to be served consecutively on each of the 6 counts of sexual assault.
169On each of the counts of possession and accessing child pornography there will be a sentence of 2 years jail. Each of these sentences will be served concurrently.
170Lastly, on the breach of the SOIRA order there will be a sentence of 18 months imprisonment to be served concurrently.
Ancillary Orders
171I order that Mr. Cunningham shall be subject to long-term supervision for a period of 10 years.
172An Order is made under s. 109 of the Criminal Code prohibiting Mr. Cunningham from possessing any firearms, cross- bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive device for life.
173An order is made under s. 487.051 of the Criminal Code authorizing the taking of samples for DNA analysis. Sexual assaults are primary designated offences.
174A Sexual Offender Information Registration Act (SOIRA) order is made under s. 490.012(1). Pursuant to recent legislative changes in Bill S-12 Mr. Cunningham has been convicted of two or more designated offences in the same proceedings and I am satisfied that those offences demonstrate or form a pattern of behaviour showing that he presents an increased risk of reoffending by committing a crime of a sexual nature.
175The Order requiring Mr. Cunningham to comply with the Sex Offender Information Registry Act, will apply for life.
176An order is made pursuant to s. 161(1) (a.1) of the Criminal Code that Mr. Cunningham not be within 500 metres of anywhere any of the six victims or any of their immediate family members is known to him is known to live, work, go to school or otherwise be.
177An order is made pursuant to s. 161(1)(b) of the Criminal Code that Mr. Cunningham should not seek or obtain any employment or become a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16.
178An Order is made pursuant to s. 161(a) prohibiting Mr. Cunningham from attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a day care centre, schoolground, playground or community centre.
179An Order is made pursuant to s. 161(c) prohibiting Mr. Cunningham from having any contact, by any means, with a person is under the age of 16 years, unless he does so under the supervision of a person whom the court considers appropriate; or
180An Order is made pursuant to s. 161(d) prohibiting Mr. Cunningham from using the Internet or other digital network, unless for the purpose of banking, seeking medical attention, pharmaceutical needs, or grocery needs
i. You shall not use any encryption software or security program designed to prevent access to the contents of your internet capable devices or take independent action to encrypt any digital storage devices in your possession.
ii. You shall not install or permit to be installed on your internet capable device any software or service designed to defeat forensic analysis of the internet capable device.
iii. You shall not use or permit to be installed on any device in your possession any program or service designed to allow anonymous use of the internet.
iv. You are not to directly or indirectly access any peer-to-peer file sharing networks (including but not limited to Motherless, Lime Wire, Gnutella, Bearshare, Shareaza).
v. You are not to use internet or any similar communication service to directly or indirectly, access any social media sites, social network, internet discussion forum or chat room or maintain a personal profile on any such service (eg. Facebook, Twitter, Tinder, lnstagram, Snapchat, or any equivalent or similar service).
vi. For the duration of this order access you shall identify yourself by your full, real name, and shall not use any pseudonym, nickname or code to identify yourself in any communication with anyone using a computer or electronic device.
vii. Provide access upon the request of your supervisor to any computer or electronic device you have used for the purposes of monitoring its use. In order to monitor your use of a computer, or other electronic device you shall install and activate, at your expense, such programs or hardware as ordered by your supervisor.
181The above Orders made pursuant to the provisions of s 161 of the Criminal Code will be for life or for such period of time as you are subject to the relevant supervision whichever is applicable.
182Pursuant to s. 743.21 Mr. Cunningham will be prohibited from contacting or communicating directly or indirectly by any means with any of the named complainants, witnesses or their immediate family members during the entirety of his time in custody.
183Lastly, I shall turn to counsel to address any remaining issues or Orders.
Dated: 14th June, 2024 __________________________________
Justice Michael Waby
