WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. M.B., 2013 ONCA 493

DATE: 20130723

DOCKET: C55637

Laskin, Tulloch and Strathy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.B.

Appellant

Mark C. Halfyard, for the appellant

Michael Perlin, for the respondent

Heard: June 27, 2013

On appeal from the sentence imposed on June 11, 2012 by Justice K.B. Corrick of the Superior Court of Justice.

Strathy J.A.:

[1] The appellant pled guilty to one count of sexual exploitation of the complainant, a sixteen-year-old concession stand worker at the movie theatre where he was the senior manager. He appeals his sentence of nine months’ imprisonment, followed by two years’ probation. He submits that a sentence of 90 days, served intermittently, would be appropriate.

Background

[2] The complainant had worked in the theatre for nine months. She had a dislocated upbringing and home life. She was living in a group home and was a ward of the state.

[3] The appellant was a fitness enthusiast with a muscular physique. The complainant had made comments indicating to him that she found his body attractive.

[4] The appellant was 36 years old at the time of the offence. As a senior manager, he was in a position of authority over the complainant. The first incident occurred when he was alone in his office with her. He asked her for a hug. When she complied, he lifted her up and told her she smelled good. He kissed her, licked her neck, felt her breasts and digitally penetrated her. This encounter lasted several minutes, after which the complainant returned to her duties.

[5] About an hour and a half later, the appellant told the complainant’s supervisor to have her report to him to do a health and safety inspection. She complied with this direction, uncertain about whether it was a genuine request or an attempt to further engage her sexually. When she came to his office, he took her to a secluded room on another floor. On the way, he said to her, “trust goes a long way”. Once in the room, which required a manager’s access pass to enter, he kissed her and touched and kissed her breasts. He pushed her shoulders down, trying to get her to perform oral sex on him. She refused. He then motioned her to the floor and removed her pants. He put on a condom, penetrated her and ejaculated. At the end of the encounter, he said, “You want to take my number and make this a booty call? Next time I’m going to fuck you from behind.” He told her to go to the washroom before returning to work.

[6] It was agreed that the complainant did not want any of the sexual contact, but neither said so nor protested. In her mind, she was trying to articulate her lack of consent, but she was not able to do so. She submitted to him because of his position of authority, his size and his age. It was also agreed that the appellant believed that she was consenting. There was no evidence of what grounds, if any, he had for this belief or what steps, if any, he took to ascertain whether she consented.

[7] Minutes after this incident, the complainant told a co-worker what had happened. The next day, she told a teacher and went to the police. She stopped coming to work.

Discussion

[8] The appellant raises three grounds of appeal.

[9] First, he submits that the trial judge failed to consider factors that mitigated the seriousness of the offence. He contends that the trial judge should have found that the level of exploitation was minimal. He says that his level of authority over the complainant was low, there was no express use of his authority to procure the sexual interaction, and there was no breach of trust. He submits that, but for the relationship of authority, the sexual contact could have been consensual, as the complainant was over the legal age of consent. He also argues that the trial judge placed undue emphasis on the nature of the sexual conduct, pointing out that he used a condom, did not “groom” the complainant and respected her decision not to engage in oral sex.

[10] I do not accept these submissions. As the trial judge noted, the offence of sexual exploitation recognizes the vulnerability of young people to exploitation by people in authority. Consent is irrelevant to the offence. To suggest that in other circumstances the conduct would have been consensual and lawful is to ignore the very nature, and seriousness, of the offence.

[11] The appellant was the senior manager. He exercised his authority by telling her to report to his office. His reference to “trust” was to procure her cooperation and silence. He used his status as a manager to take her to a private and secure place. The complainant submitted to his sexual demands as a result of his authority over her. While the circumstances were not as bad as they might have been, they were physically intrusive, abusive and degrading.

[12] Second, the appellant contends that the trial judge failed to consider the sentencing objective of rehabilitation, specifically the principle that a first offender should receive the shortest possible jail sentence that meets the principles of sentencing.

[13] At the time, the offence carried a mandatory minimum sentence of 45 days imprisonment and a maximum sentence of 10 years. The minimum has since been increased to 90 days on summary conviction and one year on indictment.

[14] The appellant submitted that a 90-day sentence would have been appropriate, noting that he pleaded guilty, this was his first offence, he lost his marriage, his home and his job, and he suffered shame and stigmatization as a result of his conviction.

[15] All these factors were considered by the trial judge. She accepted that the appellant was remorseful and noted that the charge had been hanging over him for three years, during which time he had been on interim release without incident. She noted, however, that section 718.01 of the Code directs the court to give primary consideration to the objectives of denunciation and deterrence in cases involving the abuse of someone under eighteen years of age. She concluded that in view of the intrusive nature of the sexual acts and the severe impact of the offence on the complainant, an intermittent sentence would not be sufficiently denunciatory.

[16] The appellant submits that in the case of a first offender, the principles of sentencing require that a fit sentence be crafted on the basis of “the shortest possible sentence that will achieve the relevant objectives.” This observation was made in the context of a youthful first offender: R. v. Borde (2003), 2003 4187 (ON CA), 63 O.R. (3d) 417 (C.A.); see also R. v. Priest (1996), 1996 1381 (ON CA), 30 O.R. (3d) 538 (C.A.). While the principle can apply to older offenders, like the appellant, the circumstances and the gravity of the offence may be such that a more substantial custodial sentence is required: R. v. Stein (1974), 1974 1615 (ON CA), 15 C.C.C. (2d) 376 (C.A.).

[17] The trial judge made express reference to the purposes of sentencing set out in s. 718, including rehabilitation. While she did not expressly refer to the principle relied upon by the appellant, she made reference to the fact that he had no prior record and it is apparent that she took that factor into account.

[18] Finally, the appellant submits that the trial judge erred in admitting the complainant’s victim impact statement, which was not in the form prescribed by s. 722(2)(a) of the Code and took the form of an email message. As well, he submits that the trial judge erred in finding that the complainant had seizures and attempted suicide as a result of the offence.

[19] Section 722(3) of the Code provides that whether or not a victim impact statement in the prescribed form has been filed “the court may consider any other evidence concerning any victim of the offence for the purpose of determining the sentence to be imposed on the offender”. The appellant’s trial counsel expressly did not object to the form of the statement and in fact relied on portions of the statement in his submissions.

[20] While the statement was ambiguous about the complainant’s suicidal thoughts, and the trial judge may have erred in stating that the complainant had attempted suicide, the complainant did state that she had suffered from insomnia, weight loss and depression, had thoughts of suicide and had difficulties in school, work and relationships. There was ample support for the trial judge’s conclusion that the complaint had experienced “severe” physical and psychological effects of the offence.

[21] The essence of this offence is that a young person, who is deemed to be vulnerable, is exploited for sexual purposes by someone whose position enables them to do so. As the trial judge noted, the case law indicates a broad range of sentences for this offence, largely because there are infinitely variable ways in which the offence can be committed and a wide range of offenders. I am satisfied that in this case the trial judge took all relevant considerations into account, committed no error in principle and that the sentence falls within the appropriate range.

[22] I would grant the appellant’s application to introduce fresh evidence concerning his personal, work and family circumstances, and additional letters of reference, but this evidence would not affect the outcome.

[23] I would therefore dismiss the appeal.

Released: “JUL 23 2013” “G.R. Strathy J.A.”

“JL” “I agree John Laskin J.A.”

“I agree M. Tulloch J.A.”