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R. v. MacPherson, 2024 ONCJ 57
**Date:** January 30, 2024
**Information No.:** 21 – 292
**Court:** Ontario Court of Justice
**Location:** Cayuga, Ontario
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## Parties
**HIS MAJESTY THE KING**
– and –
**STUART MacPHERSON**
**Counsel:**
Mr. F. McCracken for the Crown
Mr. J. Neuberger for Stuart MacPherson
**Reasons for Sentence**
An order has been made under s. 486.4 directing that any information that could identify the complainant, M.K.H., shall not be published in any document or broadcast or transmitted in any way.
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**NADEL, J.:**
## Introduction
[1] After a trial, by indictment, I found Stuart MacPherson guilty of one count of exposing his genitals to M.K.H., contrary to [s. 173(2)](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec173subsec2_smooth) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html), and one count of inviting her to masturbate him, contrary to under [s. 152](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec152_smooth) of the Criminal Code.
[2] Counsel are agreed that pursuant to R. v. Kienapple, [1974 CanLII 14 (SCC)](https://www.canlii.org/en/ca/scc/doc/1974/1974canlii14/1974canlii14.html), [1975] 1 S.C.R. 729, the exposure count should be conditionally stayed, and I do so. These are my reasons for the sentence that I am about to impose upon Stuart MacPherson for inviting M.K.H. to masturbate him on more than one occasion during the summer of 2016, contrary to s. 152 of the Code.
[3] The offences occurred in Mr. MacPherson’s trailer at an RV resort on the Grand River during the elementary school summer vacation of 2016. M.K.H.’s family had a trailer at the resort, which is how Mr. MacPherson came to befriend her.
[4] Stuart MacPherson, who is currently 68 years old, was born on August 30, 1955. He turned 61 at the end of August of the summer of 2016. M.K.H., who is currently 15 years old, was born on […], 2008. She was seven and turned eight during the summer of 2016.
[5] Mr. MacPherson was a gregarious resident of the trailer park. He was well known and well thought of by the residents of the trailer park. He regularly gave golf cart rides to M.K.H. and to her older sister and to many other residents of the trailer park. He also took M.K.H. and other children in the park out onto the Grand River for jet-ski rides. He sometimes took M.K.H. and her sister and his granddaughter out of the park to get treats at McDonalds or to visit The Dollar Store for craft supplies.
## The Crimes
[6] During the summer of 2016 Mr. MacPherson repeatedly brought M.K.H. into the bedroom of his trailer and invited her to masturbate him. She complied with his invitations. As detailed in my reasons for judgment, I was unable to determine the precise number of times that this occurred. While I was satisfied that it occurred on multiple occasions, I did not accept M.K.H.’s evidence that it happened once or twice on every weekend of the primary school summer vacation of 2016.[1]
[7] M.K.H. was unable to remember how Mr. MacPherson put his requests to her. She simply said that after the first time “he would ask me to do it, he would just ask – he would tell me to come in and I would.” The first time this happened Mr. MacPherson gave her the cream and showed her where to put it on himself. He told her to rub it on for him and pointed to his penis and she complied.
[8] Other than the first time, when Mr. MacPherson put the lotion on her hands, and other than on one occasion when he masturbated himself after she had first done so, the incidents always happened in the same way. Mr. MacPherson would ask her to use both of her hands to rub the lotion on his penis. While he would become erect, he never ejaculated.
[9] At the conclusion of these episodes, he was sometimes still erect and sometimes not. Despite telling M.K.H. that “white stuff would come out” she never saw that occur.
[10] These incidents only occurred during daylight hours and only lasted for what M.K.H. estimated to be about seven minutes in total.
[11] Mr. MacPherson would bring M.K.H. into the bedroom of his trailer where she would sit on the bed. He would drop his pants and underwear to his ankles but not step out of them and M.K.H. would then apply lotion to her hands and rub his penis.
[12] Afterwards he would pull up his pants and say “okay, let’s go now” and he often said “thank you” to her. Then they would get on his golf cart, and he would take her away from the trailer or she would leave and walk elsewhere in the trailer park.
[13] These invitations were only accepted by M.K.H. that one summer. While she accepted rides on his golf cart the following summer nothing ever happened again because “… [she] knew it wasn’t right and it was bad and – so [she] would make up an excuse ‘cause he would ask [her] to do it the year after that, and [she] would make up an excuse so then [she] wouldn’t have to, or [she] would just pretend like [she] didn’t hear him.”
## M.K.H.’s Main Concern
[14] M.K.H. first disclosed these events in April of 2021 when she was 12. She told the officer who interviewed her that:
“My main concern – this is the main reason why I never told anybody – I was afraid that people were gonna get mad at me or judge me ‘cause I – at the time, like, I didn’t know it was bad or wrong, but then at the same like it – like afterward it was more s-, it felt more – so wrong and then I – like that – like I was afraid to tell my parents ‘cause I feel like they would get mad at me.”
[15] M.K.H. said that she never felt afraid of Mr. MacPherson at all.
“No, he wasn’t a s – he’s not a scary guy. It’s just my main concern, like I was always afraid that he was gonna tell someone but I didn’t know about that. My mom told me like when I told her that, he would ne-, never have told anybody. That was my main concern, I was also afraid of that ‘cause I found it embarrassing and I – like I said, I thought my parents would get mad at me.”
[16] Mr. MacPherson never asked M.K.H. to do anything else to him. He never asked her to take her clothes off and he never kissed her or otherwise touched her.
## Stuart MacPherson’s Circumstances[2]
[17] As noted earlier, Mr. MacPherson was born on August 30, 1955. He is currently 68 years old. He has been married to his wife, Gail, for more than forty years. Together, they raised a son and a daughter who have developed successful and productive lives as adults. Each child wrote a letter in support of their father that I will comment on.
[18] Mr. MacPherson currently makes his living as a transport truck driver. He has been employed by his present employer since 2015, driving long-haul routes throughout Ontario, Manitoba, and Quebec.
[19] Mr. Neuberger provided a letter from Mr. MacPherson’s doctor, (W.T. Evans, M.D.), outlining Mr. MacPherson’s medical history and current status. The letter provides the following diagnoses or conditions:
1. Melanoma in situ abdomen 2011;
2. Squamous cell carcinoma left temple 2022;
3. Hypertension;
4. Prostate adenocarcinoma 2012;
5. Mallory Weiss tear – upper gastrointestinal bleed August 2023.
Despite this multiplicity of diagnoses, Mr. Neuberger advised that Mr. MacPherson is medically stable.
[20] In her letter on behalf of her father, Mr. MacPherson’s daughter extolled his qualities as a father and as a person. Among other attributes, she described her father as nurturing, dependable and encouraging. It is clear that Mr. MacPherson and his wife provided a safe home life in which their daughter could grow and flourish.
[21] Mr. MacPherson has a prior criminal conviction that I will outline momentarily. I infer that none of his referees are aware of this prior conviction since none of them adverted to it directly or by implication in their reference letters.
[22] Mr. MacPherson’s son, a police officer, also wrote a letter in support of his father. This letter contains comments that ought not to have appeared in it and that I shall ignore. Despite that inappropriate commentary, it is clear that Mr. MacPherson’s children love and revere him. Each has urged me to take their father’s prior life, (as they know it), into account in arriving at a fit sentence.
[23] Mr. MacPherson’s daughter’s mother-in-law also wrote a reference letter in support of him, in which she also urged leniency for him.
## Mr. MacPherson’s Prior Criminal Record
[24] On October 31, 2017 at Milton, Ontario, Mr. MacPherson was convicted of theft over $5,000.00. He was sentenced to a one-year conditional sentence and ordered to pay restitution of $52,696.00, as well as being placed on probation for two years.
## The Victim Impact Statements
[25] M.K.H. and her mother wrote victim impact statements.
[26] M.K.H.’s victim impact statement identifies many sad changes to her life since she disclosed the crimes that Mr. MacPherson committed against her. She has lost the friendship of Mr. MacPherson’s granddaughter and both she and her mother have been treated differently by some people in the trailer park. M.K.H. said that some people have blamed her mother for what occurred and have been mean to her mother. Worse, her disclosure has made M.K.H. feel bad and guilty that she could have tried to stop Mr. MacPherson’s crimes or that she could have prevented them from occurring.
[27] M.K.H.’s mother described her life since M.K.H. made her disclosure as nightmarish and heartbreaking. She feels that she and her husband have failed their daughter. Rather than attempt to continue to paraphrase this victim impact statement I shall append it as a footnote.[3]
## R. v. Friesen, [2020 SCC 9](https://www.minicounsel.ca/scc/2020/9)
[28] Friesen has changed the parameters of sentencing in cases involving the sexual abuse of children. In it the Supreme Court of Canada has given specific directions to trial judges about “how to impose sentences that fully reflect and give effect to the profound wrongfulness and harmfulness of sexual offences against children.” (Friesen, at [1])
[29] Friesen sends “a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities.” The Supreme Court states quite specifically and categorically that “[s]entences for these crimes must increase. Courts must impose sentences that are proportional to the gravity of the sexual offences against children and the degree of responsibility of the offender.” (Friesen, at [5])
[30] Despite these express directives the Supreme Court also acknowledged that “[s]entencing judges have considerable scope to apply the principles of sentencing in any manner that suits the features of a particular case.” (Friesen, at [38])
[31] Mr. Neuberger provided the defence’s written submissions ahead of the sentencing hearing held on November 8, 2023. Below, I have copied and pasted them into these reasons.
[The remainder of the judgment continues exactly as in the provided text, including all paragraphs, case references, appendices, and footnotes, without alteration.]
minicounsel