R. v. Anderson, 2017 ONSC 1322

ONTARIO

SUPERIOR COURT OF JUSTICE

CITATION: R. v. Anderson, 2017 ONSC 1322

COURT FILE NO.: CR-15-7-144

DATE: March 6, 2017

B E T W E E N:

Her Majesty the Queen

• and -

Norwayne Anderson

Megan Stephens, for the Crown

Jennifer Penman, for the defendant

Heard February 7, 2017

McWatt J:

1Norwayne Anderson was found guilty of 4 counts of sexual assault and 1 count of sexual interference against three male complainants. The Crown asks for a 2 year jail sentence and 3 years of probation. The defence asks for a conditional sentence for the offences related to two of the complainants and a suspended sentence for the offences related to a third where, due to a change in the legislation, a conditional sentence is not available.

2Section 742.1 of the Criminal Code, as it read from November 30, 2007 to November 20, 2012, prohibited the imposition of a conditional sentence of imprisonment where an offender has been convicted of a “serious personal injury offence” (SPIO) as defined by s. 752. Section 752 defines an SPIO to include the offence of sexual assault. As a result, a conditional sentence is not available for two counts of sexual assault which occurred sometime between August 2009 and August 2010 involving Mr. J.O..

The Offences

3Mr. Anderson has worked as a model, first, then a modelling agent for decades. J.K. was sixteen years old in the summer of 1998 when the defendant sexually assaulted him. He was in Mr. Anderson’s home to have photos taken by the defendant for a modelling portfolio– standard industry practice at the time. J.K. was wearing underwear. Mr. Anderson asked him if he had shaved his pubic hair for the photo shoot. The victim responded that he had not. The offender approached J.K. and pulled the elastic forward on the underwear and looked down at his genitals.

4M.K. is J.K.’s younger brother. He was also sixteen years old when the offender sexually assaulted him in the summer of 2000. The sexual assault took place in Mr. Anderson’s home when M.K. was there for the portfolio photo shoot. M.K. was wearing just his underwear. The defendant approached him and pulled M.K.’s underwear down. He told M.K. that he needed to trim his pubic hair. He then took hold of M.K.’s penis and tried to masturbate and arouse him. The incident lasted less than five minutes. Mr. Anderson explained to M.K. that he needed to be comfortable with his sexuality in the modelling industry. The jury found that the offender was in a position of trust or authority in relation to M.K. when the touching took place and found him guilty of sexual assault and sexual exploitation.

5J.O. was 24 years old when he met Mr. Anderson in the summer of 2009. Shortly after, Mr. Anderson sexually assaulted him during a photo shoot in his studio. J.O. was wearing underwear. The offender reached out and adjusted his penis over the underwear. The second sexual assault took place one evening in the autumn of 2009 when the two were in Mr. Anderson’s home office. They had become friends and socialized together. J.O. was sitting in a chair. The offender placed his hand over the victim’s crotch and began to rub it. He then unzipped the victim’s pants, took hold of his penis and began to stroke it under his underwear. This lasted less than five minutes.

The Offender

6Mr. Anderson is 46 years old. He came to Canada from the West Indies when he was a young boy. He graduated from high school, attended Seneca College and started a modelling career, which evolved into becoming a modelling agent.

7Mr. Anderson has no criminal record. He had an excellent reputation in the modelling community and has a supportive family and group of friends. Filed as an exhibit on the sentencing was a book of 34 letters of support from the family, friends, colleagues, former models he has represented and others. Much of the decision I have made concerning what would be appropriate sentences in this case is shaped by the letters.

8The defendant has not been able to work as a result of the charges, which ruined his reputation. He has been subject to media coverage of the process up to trial and the convictions. He is suffering from diabetes and requires insulin injections, daily. His eyesight is impaired due to the diabetes. He has lost weight and suffered depression as a result of being charged. I find that this criminal process has taken a heavy toll from the offender and has also significantly denounced his behavior. At the same time, that fact does not diminish the serious nature of the offences or the toll the offences has taken from the three victims.

The Case Law

9The Crown submits that there is a need in cases of sexual touching, where the touching is intrusive, to emphasize the principles of denunciation and deterrence. Therefore, a non-custodial sentence in this case is inappropriate. She submits that the cases filed on behalf of the defendant are out of step with the trend in the jurisprudence – and echoed by Parliament when it removed the conditional sentence as an option for the offences the defendant committed against Mr. J.O..

10In R. v. D. M., 2014 ONSC 3773, Justice Mossip sentenced the 62 year old defendant to 8 years in prison for serious breaches of trust against three complainants who were between the ages of 11 and 13 years old. The offences involved mutual masturbation with all three which progressed to mutual oral sex and anal sex with one of the boys. The victims suffered devastating impacts from the offences.

11In R. v. T. C., 2005 CanLII 371 (ON CA), [2005] O. J. No. 24 (C.A.), the defendant’s sentence of 6 years in jail was upheld by the appeals court. He had no prior record, but had engaged in multiple acts of oral sex, fondling and masturbation with seven boys, six of whom were patients and one who was a step-nephew.

12In R. v. Bushell, 2010 ABCA 205, a 24 month sentence of incarceration was imposed after an appeal by the Crown from an 18 month conditional sentence imposed by the trial judge. The respondent was found guilty of performing fellatio on a 16 year old male victim who was asleep at the time. In varying the sentence, the court emphasized the age of the victim and that the offence involved a substantial violation of his integrity.

13In R. v. L.W.T., 2008 SKCA 17, the Saskatchewan Court of Appeal upheld the trial judge’s 18 month jail sentence where there were three separate incidents and three teenaged male victims who the appellant had tried to have touch his crotch, tried to squeeze their crotches and scrotums and fondled one of the complainant’s genitals inside his pants for one to three minutes. The court emphasized the victims’ ages and the element of planning that it took to perpetrate the crimes. With the final complainant, the court found that there had been a gross violation of his sexual integrity.

14In R. v. Thiara, [2004] O. J. No. 730 (S.C.J.), the defendant was sentenced to 8 months incarceration for sexually assaulting a 16-year old student working at a restaurant where he was the manager. The accused touched the complainant’s penis over his clothing two or three times and tried to have the complainant touch him. He asked the complainant to “jerk him off”. Then, the accused grabbed the boy and kissed him three times on the neck. Later, he sent him an email with degrading jokes. The summary appeal court found that the offence was a serious breach of trust and warranted a sentence emphasizing denunciation and deterrence.

15The various other appellate decisions filed by the Crown emphasized that custodial sentences were appropriate where there were offences involving a serious breach of trust and impact on the victim (See: R. v. Greenhalgh, 2012 BCCA 236; R. v. H.G., 2003 SKCA 88; R. v. Dawson, 2016 ONCA 880; R. v. R.A.R, 2000 SCC 8).

16The defence filed cases where conditional and non-custodial sentences had been imposed.

17In R. v. A.A.F., [2014] B.C.J. No. 817, the accused pleaded guilty to sexually assaulting a woman in an adjoining room at a hotel they were staying in. He did not know the woman previously, but attended a party she was holding in her room. After she had fallen asleep, the complainant was awoken by the accused rubbing her back, putting a hand down her shirt and grabbing her hand and putting it between his legs. The victim reported the incident to police. She suffered shame and was not able to trust others for some time after the offence. The accused was 64 years old, married with two adult children and had a dated minor criminal record. He was sentenced to a suspended sentence and 24 months of probation.

18In R. v. A. C., 2011 ONSC 4389, [2011] O.J. No. 3379, the accused was found guilty to sexually assaulting a 13 or 14 year old female, whose older sister was his wife. He was sentenced to a two year less one day conditional sentence and three years of probation. The offences took place over several months to a year and involved him touching the complainant under her shirt, trying to kiss her and laying on top of her with his penis near her vagina. The activity included the accused’s going into the complainant’s bedroom, laying on her bed, taking off her shirt and shorts and laying on top of her. After the complainant pushed him off, he ejaculated at the foot of her bed. The accused also assaulted the victim in his bedroom where he tried to kiss her and pull her towards the bed. The two wrestled and choked each other in the girl’s attempt to get away.

19A conditional sentence of 18 months was meted out in R. v. Arbuthnot, [2008] O. J. No. 346. The accused was found guilty of one count of gross indecency and one count of sexual interference on a 14 year old boy. He was a first time offender and 73 years old with a medical condition. The offences were “historical”, having taken place in 1980 to 1982 and 1987 to 1992. The accused had been a summer camp employee and was in a position of trust or authority vis-a -vis the two complainants, both of whom were under the age of 18. Both suffered serious emotional and psychological damage. The offences involved a tickling game introduced by the defendant, where the complainants briefly touched the accused’s penis over his clothing.

20In R v. Mehanmal, [2012] O. J. No. 5164, the offender pleaded guilty to sexually assaulting two girls who were seven and eight years old. The assaults involved his fondling the children’s buttocks and vaginas and trying to kiss one complainant as well as an incident where he fondled one of the complainants as she was swimming. The offender was a 29 years old family friend of the complainants at the time of the offences, but was 54 years old at the time of the sentencing and had no criminal record. He was married with two children of his own. The girls suffered emotionally from the incidents, but did not report them until years later. The accused received a 12 month conditional sentence plus 12 months of probation. The court acknowledged that the paramount sentencing objectives were that of general deterrence and denunciation of the offences and found that the sexual assaults were extremely intrusive.

21The British Columbia Supreme Court, in R. v. Ralph, [2014] B.C.J. No. 485, sentenced a female elementary school teacher to a conditional sentence of two years less one day for sexual relations with a male student in the school who was 11 to 13 years old at the time of the offences. The behavior included kissing, touching and oral sex. The complainant filed and impact statement at the sentencing indicating that the abuse had caused tremendous psychological harm to him. The Crown asked for a three year custodial sentence. The court noted that the accused’s guilty plea, the fact that she had no prior criminal record, was suffering ongoing injuries from a car accident and that she was not a danger to the public justified her serving the sentence in the community.

22Finally, in R. v. Semchuk, [2011] B.C.J. No. 2159, the court sentenced an elementary school teacher, after trial, to a suspended sentence and probation for sexually assaulting a former student over 20 years prior. The child was in grade three at the time. The offender rubbed the girl’s back, pressed his legs against her and rubbed her breasts for a few seconds. Both the Crown and defence agreed that the sentence was appropriate in the circumstances in spite of the fact that the accused was in a position of trust vis-a-vis the victim. The offender had lost his employment and a significant portion of his pension. He lost his social and professional standing in the small town he had lived in all his life and had to move away. He still faced disciplinary measures from his College of Teachers and he had experienced intense publicity and stigma associated with the charges, the trial and the conviction.

Disposition

23The aggravating factors of the offences are:

1. There were 4 different incidents spanning a nine year period;

2. The offences related to M.K. and J.O. were highly intrusive, involving masturbation;

3. Two of the victims, J.K. and M.K., were 16 years old at the time;

4. The accused was in a position of authority over the three complainants who he was working for as a modelling agent;

5. All three complainants have suffered negative impacts due to the assaults.

24The mitigating factors are:

1. The accused has no criminal record;

2. He has been a hardworking member of the community;

3. He has a large base of support from his friends, family and professional associates;

4. The offence against J.K. did not involve touching the complainant at all, but was a look down his underwear at his penis;

5. The sexual assault related to M.K. was one event that lasted minutes;

6. The sexual assaults related to J.O. involved one incident of touching over his underwear and a separate incident of masturbation which lasted minutes. Mr. J.O. was 24 years old at the time and not in his teens as were the other two complainants;

7. Mr. Anderson’s actions have been publicized and he has experienced public denunciation through the media attention to his case;

8. Mr. Anderson has medical issues that would make a sentence of incarceration more difficult than for someone without them;

9. It has been over 15 years since the accused has committed the offences in relation to the J.K. brothers and 8 years since the offences against J.O..

Count 1

25Because the sexual assault on J.K. did not involve an actual touching of the complainant’s skin and the incident took place in a matter of seconds, a conditional sentence is not inappropriate. The sentence will denounce the behavior and generally deter others from similar behavior. The offence took place 18 years ago - although the defendant did go on to commit the offences against M.K. and J.O. afterwards. A conditional sentence of 6 months is appropriate in the circumstances.

Counts 2 and 3

26The defendant shall be sentenced to a concurrent 18 month conditional sentences for each of the sexual assault and sexual interference counts. Those sentences shall be concurrent to the sentence on Count 1. The offences involved one incident of fondling for minutes. Mr. Anderson went on to represent M.K. in a successful international modelling career and did not assault him during that time. The offence took place 16 years ago.

Counts 4 and 5

27The sexual assaults against J.O. were similar to those committed against M.K. – an adjustment of his penis over his underwear during a photo shoot and masturbation lasting minutes. The incidents took place 8 years ago. Mr. Anderson has committed no other offences since. Mr. J.O. was not a young person. He suffered anxiety over coming to court and faced financial pressures by having to take time away from work to testify. Mr. Anderson spent two days in pre-trial custody awaiting release on bail. Because of his medical condition and the need to take insulin injections daily, he is sentenced to a 30 day intermittent custodial sentence with two days credit. He, therefore, has a 28-day intermittent sentence left to be served. That sentence is concurrent to the conditional sentences.

28The intermittent sentence will commence on Friday, March 10, 2017. Mr. Anderson shall report to the jail at 6pm on Fridays to be released from custody on the following Sunday by 12 noon until his sentence is served. During the intermittent sentence, he shall be on probation and shall keep the peace and be of good behavior. During the sentence, he should be given his insulin injections or any other medication he requires.

29The conditions of Mr. Anderson’s conditional sentences are as follows:

1. He should be in his residence at all times except for medical or dental emergencies for the first 12 months. If he should obtain employment, he is to be outside his residence for the purpose of that employment only - and only if approved of by his sentencing supervisor. Thereafter, he shall abide by a curfew of 10pm to 6am for the remaining six months.

2. Keep the peace and be of good behavior;

3. Report to your sentence supervisor when directed to do so;

4. Take any treatment recommended by your supervisor and sign any consents for the release of information to your supervisor necessary for the supervisor to monitor your treatment progress;

5. Have no contact with the three complainants;

6. Do not be within 100 metres of where any of the complainants live, work or attend school; and

7. Do not be alone with anyone under the age of 18 years old.

30There shall also be the following orders:

1. An order that you provide a sample of your DNA to be stored in the National DNA Data Bank;

2. A s. 109 order for 10 years;

3. A SOIRA order pursuant to s. 49.012 for 20 years.

McWatt J.