R. v. Michael Andress, 2022 ONSC 1496

R. v. Michael Andress, 2022 ONSC 1496

COURT FILE NO.: CR-20-131

DATE: 20220310

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen

S. Doherty for the Crown

• and -

Michael Andress

P. Boushy for Mr. Andress

HEARD: January 26, 2022

The Honourable Mr. Justice H. S. Arrell

REASONS FOR SENTENCE

INTRODUCTION:

1The accused was found guilty by a jury on October 20, 2021, of three counts of sexual interference by sexual touching of three children under 16, contrary to s. 151 of the Canadian Criminal Code, R.S.C., 1985, c. C-46.

2Mr. Andress is before me today for sentencing.

OVERVIEW:

3The abuse took place with the victims while Mr. Andress and his wife were serving as babysitters.

4The three victims all reported that Mr. Andress would measure their size on a regular basis and record it in a notebook. The measurements seemed to include hip and chest size. Mr. Andress testified these measurements were for his wife to make clothes for the girls, and for him when he bought clothes for them. He denied any touching of the girls in any type of inappropriate manner. The victim’s evidence is summarized below. It is clear that the jury accepted their evidence and disbelieved Mr. and Mrs. Andress, who were the sole witnesses for the Defence.

A) M.D.:

5Mr. Andress was her uncle through marriage. He and his wife, her aunt, would babysit her starting when she was 9 years old. She was at their home most weekends. She said that Mr. Andress would touch her “almost daily” when she was at his home. This occurred between January 1, 2009, and December 31, 2016: a period of over 7 years.

6MD further testified that Mr. Andress started abusing her when she was 9 years of age and it continued until she was 14.

7She swore Mr. Andress put his mouth on her breasts; he would touch her breast; that he would put his penis in her mouth and ejaculate; that he put his penis on her vagina (vulva) but did not penetrate her. He would measure her and write down the measurements, however, those notes were not produced as they were not located.

8At one point, M.D. lived with the Andresses for almost a year full-time.

B) A.B.:

9This victim stayed with the Andresses for a week in the summer of 2014 when she was 12 and her parents went to Cuba for a holiday. Her grandfather was a friend of Mr. Andress.

10A.B. testified that Mr. Andress took off her shirt and bra and measured her breasts. He then went behind her and touched her breasts. The next morning, he also put his hands up her shirt and felt her breasts. He also pressed his erect penis against her back.

11On one occasion, A.B. stated that Mr. Andress took her hand and made her wrap it around his penis while she tried to pull away.

C) L.P.:

12LP was 10 years old when she was first abused by Mr. Andress, starting in March 2018, and continuing until May 8, 2019. She testified that Mr. Andress would touch her breasts and vagina in his basement, where he would put down a blanket for her to lie on and then he would measure her. Those measurements were put in a notebook that was produced at trial.

13She further testified that Mr. Andress would put his mouth on her breasts and would touch his penis to her vagina. She said that Mr. Andress also “put his penis in her vagina” (it is unclear if she meant penetration) and that “white stuff” came out of it.

VICTIM IMPACT STATEMENTS:

14The court received 5 victim impact statements all on behalf of L.P. and A.B.

15A.B., who was present in court virtually, is now a young adult. She has indicated in her statement difficulty making new friends, feeling more isolated, and generally having lost trust in people. She has given up scouts where she first met the offender, who was a leader. She had an overwhelming fear of intimacy for a very long time but admits that is slowly improving. I accept that she has lost time at school and has had expenses with counselling to help with her trauma. She no longer feels safe in her community and notes a feeling of vulnerability in some types of social settings. I also accept the negative impact this has had between herself and her family with feelings of guilt by all members.

16A.B.’s parents gave separate statements and clearly both have deep feelings of guilt based on their perception of failing their daughter, in protecting her, and especially in arranging for her to be looked after by the offender. They describe what their daughter went through quite correctly as “a parent’s worst nightmare”. A.B.’s father describes recurring nightmares he has about being unable to save his daughter. He finds he is now overprotective of his children and questioning them endlessly about friends and who they might be visiting. He does not trust other people like he used to. A.B.’s mother indicates a negative rift has occurred between the family and her father who introduced them to the offender. She expresses to this court profound anger, sadness, and heartache for her family, but especially for her daughter. She further speaks of the serious emotional pain caused to her daughter and her entire family, which this court acknowledges. It is clear, and this court accepts, that this family has been deeply and permanently scarred by the offender.

17The court received two statements on behalf of L.P.: one being from her mother, and a second one by her mother summarizing what her daughter, L.P., has told her of her feelings and how she has been affected by this abuse. L.P. is developmentally delayed, according to her mother, which was apparent to the court when she testified during the trial. L.P. is 14 years old, and in school, but is functioning currently as an 11-year-old based on her mother’s testimony, which I accept. Like A.B.’s parents, L.P.’s mother states that her family has undergone profound anger, frustration, sadness, fear, and deep-lasting emotional stress. It is poignant how she relates the length of time this abuse lasted with L.B. and how her daughter would not have understood that she should have told someone until this all came to light through the other two older victims. L.P. has missed much school and has had a great deal of counselling. Vacation time for the family has been used up for court preparation and actual court time. L.P.’s mother, like the other parents, feels significant guilt that somehow she let this happen and failed to protect her vulnerable daughter. The court accepts that this family’s emotional scars are deep and will last a lifetime. L.P.’s mother addresses how her daughter has a fear of men which her mother suggests will likely cause severe difficulties for her as she matures and begins any future male relationships. She has expressed guilt in not telling anyone sooner, now that she realizes she could have. She insists that her mother check her room each night to ensure the offender is not there and to check all the locks to the house.

PRE-SENTENCE REPORT:

18Mr. Andress is 71 years of age. He is married to Gail, whom he married in his early twenties. They have two adult children. Mr. Andress was born and raised in Hamilton. His father was an alcoholic and his parents separated when he was 9 years of age. He had no contact with his father since that time. It appears that he was raised by his mother thereafter with the help of his maternal grandparents.

19Mr. Andress has limited formal education, having left school at 16 years of age. He has a positive employment record. At the time of his arrest, he worked part-time as a school crossing guard, having retired from his full-time factory job of 27 years. His wife suffered a heart attack 5 years ago and her health and mobility has deteriorated since then. She is dependent on Mr. Andress for her care.

20Mr. and Mrs. Andress’ two children reside with them. Their daughter is 47 and their son is 43 years of age. The author of the presentence report was unable to speak to the son. She did speak with the daughter who, like her mother, was very supportive of Mr. Andress. She spoke highly of him as a wonderful father to her and good husband to her mother. It appears that Mr. Andress has no substance abuse issues. He appears to have no health issues. Evidence from the trial indicated he was active in his church, has volunteered as a scout leader for a number of years, and has held various voluntary coaching positions for children.

21The offender reported to the author of the presentence report that he does nothing by impulse and all his steps are well thought out. He also indicated that children know who they can trust and “they won’t go to the police”.

LETTERS OF SUPPORT FOR MR. ANDRESS:

22There were no letters of support filed on behalf of Mr. Andress. His wife did give evidence describing her unwavering support of her husband. She continued to maintain her belief, as she did at the trial, that the offender is innocent and that the victims are “lying”. She attended court in a wheelchair. Mr. Andress also addressed the court and, like his wife, continued to proclaim his innocence.

POSITION OF THE PARTIES:

The Crown:

23The Crown is of the view that this is a particularly horrific case where the offender was a caregiver in a position of trust, and repeatedly abused three young girls in his home over different periods of time. His moral blameworthiness is exceedingly high and, as a result, denunciation and deterrence must be the court’s primary objective, while little weight should be given to rehabilitation or mitigation factors which, in any event, are very few according to the Crown.

24The Crown argues that courts must give more significant sentences to those adults that abuse children to reflect societies evolution in understanding the long-term harm done to children in such cases, as pointed out in R. v. Friesen, 2020 SCC 9.

25The Crown seeks a term of imprisonment of 10-12 years along with a number of collateral orders. The Defence advised it was not opposed to the collateral orders requested by the Crown.

The Defence:

26The Defence does not disagree that there is a high degree of moral blameworthiness in this case, however, submits that the Crown’s range of sentence is excessive under all the circumstances and based on recent case law.

27The Defence points out that Mr. Andress is elderly at 71 years of age. As a result, prison will likely be very difficult for him. He is the primary caregiver for his disabled wife. He is a pensioner with an excellent work record. He has no criminal record. He has a history of volunteering in the community.

28The Defence submits that there was no evidence by the victims of any threats or warnings of dire consequences by Mr. Andress. Likewise, there was no gratuitous physical violence.

29The Defence recommends that a sentence of between five to seven years is appropriate given the facts of this case. Such a sentence is more in the range of sentences imposed in similar types of cases since Friesen, and would meet all the principles of sentencing.

SENTENCING PRINCIPLES:

30Parliament has stated in s. 718 of the Criminal Code that:

The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

31The fundamental principle for judges to follow in sentencing is stated in s. 718.1 of the Criminal Code as follows:

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

32In R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 91, Lamer C.J. stated that sentencing is “a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community.”

33Parliament has made it clear that children must be protected from sexual predators by making the abuse of children an aggravating factor in sentencing by enacting s. 718.01, which states as follows:

When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

34Denunciation is an important principle of sentencing and is designed to reflect and uphold communal values as pointed out by Lamer C.J. in R. v. M. (C.A.), at para. 81, as follows:

Our criminal law is also a system of values. A sentence which expresses denunciation is simply the means by which these values are communicated. In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instills the basic set of communal values shared by all Canadians as expressed by the Criminal Code.

35Proportionality is the cardinal principal which must guide the fitness of the sentence imposed. The more serious the crime and its consequences, or the greater the offender’s degree of responsibility or moral blameworthiness, the heavier the sentence: see R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 12.

36This offender was charged and convicted of three counts of sexual touching of children. This charge carried a maximum penalty of 10 years when he abused A.B. and first abused M.D. The section was subsequently amended in 2015 to carry a maximum penalty of 14 years. This 14-year maximum was applicable when he abused L.P. and continued to abuse M.D. As well, the minimum penalty increased from 45 days to 1 year which traces Parliaments increased condemnation of the sexual abuse of children over time. Mr. Andress is protected by The Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11, s 91(24), s. 11(i), which requires:

If found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

37The direction from the Supreme Court, and from Parliament, that sentencing for offences of this nature should be increased, must therefore be considered in conjunction with Mr. Andress’ s.11(i) right. It is well established in the case law that the maximum sentence in effect at the time the offences were committed is the maximum that applies: see R. v. A.P., 2021 ONSC 6647 at para. 33. Therefore, I am confined by the 10-year maximum in sentencing for the count involving A.B.

AGGRAVATING FACTORS:

38There are a number of aggravating factors in the case at bar which I find to be as follows:

a) The victims were all under the age of 16.

b) The abuse of L.P. and M.D. occurred over lengthy period of time.

c) The evidence of the victims both at trial and through victim impact statements indicate significant emotional trauma to these children and their immediate families.

d) The offender was in a position of trust as a caregiver for all three victims.

e) L.P. and M.D. were particularly young, at 9 and 10 years of age respectively, when the abuse started.

f) It was known to the offender that L.P. was developmentally delayed.

MITIGATING FACTORS:

39I find there to be mitigating factors as follows:

a) The offender has no criminal record.

b) The offender has a good work record, family support, is the primary caregiver for his disabled wife, and has volunteered in the community.

c) The offender is 71 years of age.

COVID-19:

40COVID in Ontario has caused significant closures. The infections were increasing at an alarming rate. Thankfully, those infections have slowed somewhat for the time being. The courts have taken judicial notice that incarceration during COVID is problematic for inmates as well as staff because of the inability to separate, vaccinate, isolate, test, properly distance, and have ready access to proper PPE. Numerous lockdowns are an ongoing concern as is an absence of staff due to illness. Judges have reduced the length of time served in custody in a number of cases. However, COVID is not a “get out of jail free card”. COVID is a serious consideration and may reduce a sentence, but it cannot make an unfit sentence fit. It permits some deviation from proportionality but cannot sanction that which is truly disproportionate: see R. v. Doering, 2020 ONSC 5618, at para. 82.

ANALYSIS:

41This court has taken into account the principle of totality of sentence, the need to protect society from this offender, denunciation of this horrific crime, and deterrence to Mr. Andress, and others, that this court will not sanction such terrible and despicable acts of sexual abuse being inflicted on innocent young children by anyone and, in particular, someone in a position of trust.

42I am of the view that the predominant principles that must govern the sentence in this case are denunciation, general deterrence, and specific deterrence. Rehabilitation of this offender is of course a consideration for this court but must occupy a secondary place given all the facts and circumstances of this case.

43In Friesen, the Supreme Court of Canada has made it abundantly clear that trial judges must treat sexual offences against children with the utmost severity by saying as follows, at para. 5:

Sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase. Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament’s sentencing initiatives and by society’s deepened understanding of the wrongfulness and harmfulness of sexual violence against children. Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families, and society at large.

44The court in Friesen at paras. 107 and 120 explicitly offered the following guidance, that “Sexual interference with a child should not be treated as less serious than sexual assault of a child”. The Supreme Court cautioned against making differentiations such as between sexual interference and sexual assault involving intercourse by stating it is “an error of law to treat sexual interference as less serious than sexual assault”.

45In considering the gravity of these offences, I have given extensive thought to the offender’s actions as well as the resulting harm to the victims, their families and this community by considering:

1. The inherent wrongfulness of the offences;

2. The potential harm to children that flows from the offences; and

3. The actual harm that the children have suffered as a result of these offences.

46There can be little doubt as to the inherent wrongfulness of the actions of this offender. He abused two of the three young girls starting when they were 9 or 10 years of age. The abuse of these two continued for more than a year against L.P. and almost five years upon M.D. The offender was clearly in a position of trust. He was the adult caregiver to whom these children had been entrusted to protect. He was in a position of power and authority over these children. He took advantage of that trust to satisfy his own predatory sexual desires. This breach of trust increases his moral blameworthiness: see Friesen at para. 129.

47The abuse of these children is inherently wrong. The offender’s actions are exploitive of young, vulnerable victims. It is inherently exploitive for any adult, whether in a position of trust or not, to apply force of a sexual nature to a child. That force need not be actually physical or violent in the traditional sense, but always occurs when an adult commits any acts of a sexual nature against a child: see Freisen, at paras. 77 and 78.

48It cannot be stated too emphatically the seriousness of sexual abuse of children. The seriousness manifests itself in the actual harm to the children as observed now and as has been ably recited by the victims and their families in their victim impact statements to this court. The seriousness also presents itself in the potential harm to children that may not yet have manifested itself. These children, two of whom are now young adults, will live with the memories of their abuse for the rest of their lives. They will recall their vulnerability and helplessness to stop what was happening to them indefinitely. It is impossible for the court to know what long term effects they may or may not suffer from. However, I conclude it is reasonably foreseeable to expect that that they will suffer some potential harm from the sexual violence they endured well into the future, and that increases the gravity and seriousness of the actions of the offender in this particular case: see Friesen at paras. 79, 83, 84.

49The actual harm suffered by these victims and their families are well set out in the victim impact statements referred to earlier in this decision. Most required some counselling. They have trust issues. They have experienced isolation and difficulty making friends. All appear to have real guilt over either hurting their families or their parents having significant guilt in their perception of a failure in protecting their daughters. These emotional traumas of the victims and their families are fully accepted and understood by this court.

50Sexual misconduct that is perpetrated against children on multiple occasions and for longer periods of time, as in this case, should attract higher sentences that reflect the “full cumulative gravity of the crime”. Unsurprisingly, the duration and frequency of sexual misconduct can significantly increase the harm to victims. Multiple assaults can also increase the moral blameworthiness of the offender because “the additional harm to the victim is a reasonably foreseeable consequence of multiple assaults”: Friesen at paras. 131-133.

51In the case at bar, the offender’s attacks on the victims were not single instances. His abuse of M.D. lasted five years and occurred “almost daily” or on “most weekends” that she was there; he attacked A.B. multiple times the week she stayed at his home; and he attacked L.P. on multiple instances for over a year. These all contribute to a high degree of the moral blameworthiness of the offender before the court.

52The Defence’s argument that there was no evidence of threats or gratuitous violence during any of these attacks is acknowledged, however, as far as this court is concerned, that is not a mitigating factor and, at best, it is simply a lack of being an aggravating factor: see R. v. Luckhart, 2016 ONSC 1509, at para. 44; Friesen, at para. 77.

53I accept that there has been no remorse shown, although, it is difficult to express remorse after a plea of not guilty as pointed out in R. v. Valentini, 1999 CanLII 1885 (ON CA), [1999] O.J. No. 251 (C.A.) at p. 22. I acknowledge that a lack of remorse is not an aggravating factor.

54This court also acknowledges and accepts that these three young girls had to relive the trauma they endured on a number of occasions, starting with their police interviews and statements, their testimony at the preliminary hearing, various preparations for court attendances, and their evidence before this jury.

CONCLUSION:

55Counsel has provided me with numerous cases as has my own research. None are directly on point, which is usually the case in sentencing decisions which are always inherently unique to the individuals involved, and the particular circumstances and facts of the crime.

56It is clear that Friesen is the new benchmark and leading authority in sentencing adults for the sexual abuse of children. As such, cases decided since Friesen are more helpful to this court.

57In Friesen, a six-year sentence was imposed for a single act of fellatio by a 29-year-old with no record who pleaded guilty. The offender’s crimes in the case at bar involve three victims over a period of time after a trial. In R. v. M.M. 2021 ONCA 890, a seven-year sentence was imposed after a guilty plea involving a vulnerable young girl. In R. v. Crawford 2020 ONCA 790 the Court of Appeal upheld a sentence of six years after trial, after being convicted for a single act of intercourse with a 11-year-old developmentally delayed victim. In R. v. A.P., the court imposed nine years after a trial involving two victims, as did the court in R. v. R.F. [2021] O.J. No. 6553, where one victim was abused over four years.

58The Defence emphasized the cases of R. v. Wood (30 November 2020), Hamilton, CR19/18 (Ont. S.C.), where the trial judge imposed a sentence of seven years where a father abused his daughter and son on numerous occasions. In R. v. Jankauskas (14 January 2021), Hamilton, CR18/257 (Ont. S.C.), the trial judge, after a jury verdict, imposed a five-and-a-half-year sentence against a stepfather who abused his eight-year-old daughter.

59I have concluded after reviewing all of the case law, and given the number of victims, their ages, the length of time over which the abuse occurred, the emotional damage done to the victims, COVID, the age of the accused and his lack of a criminal record, that the appropriate sentence is seven years’ incarceration on each count to be served concurrently for a total of seven years in prison for all three counts.

60In addition, there will be an order that Mr. Andress will provide to the authority’s samples of bodily substances suitable for DNA analysis and inclusion in the National DNA Data Bank.

61There will as well be an order under s. 109 of the Criminal Code prohibiting Mr. Andress from having in his possession any firearms, ammunition, explosive substances, or any other items mentioned in that section, for 10 years.

62There will also be an order under s. 161(a)(a.1) of 500 meters and (b) whereby Mr. Andress will not attend any public areas such as parks or schools where young children are likely to be present, and, further, he will stay 500 meters away from the victims and their respective families. He will also have no contact with any child unless accompanied by an adult.

63The offender will be registered in the Sex Offender Information Registration Act for life under s. 490.012(2).

Arrell J.