WARNING

The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences.

(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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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) Mandatory order on application.

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.

486.6 Offence.

(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.

Court Information

Court File No.: St. Catharines - 2111-998-11-NR4506-00

Date: 2013-01-22

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Jessie James McLean

Before: Justice D.A. Harris

Heard on: June 29, 2012 and October 11, 2012

Reasons for Sentence delivered on: January 22, 2013

Counsel:

P. Vadacchino for the Crown

J. Lefurgey for the accused, Jessie James McLean

Reasons for Sentence

HARRIS J.:

Introduction

[1] Jessie James McLean entered a guilty plea to a charge of breaking and entering a dwelling house and committing the indictable offence of sexual interference.

[2] He is before me today to be sentenced.

[3] Crown counsel has suggested a sentence of imprisonment for four to five years less credit for pre-sentence custody on a 1:1 basis.

[4] In addition she requested:

(1) An order pursuant to s. 161 (a) and (b) of the Criminal Code limiting Mr. McLean's access to and contact with persons under 16 years of age for a period of 20 years;

(2) A DNA order;

(3) An order compelling Mr. McLean to comply with the Sex Offender Information Registration Act for life; and

(4) A firearms prohibition pursuant to s. 109 of the Criminal Code.

[5] Counsel for Mr. McLean has suggested that imprisonment for two years less one day is appropriate followed by probation for three years. With regard to the ancillary orders, his only disagreement with Crown counsel was as to the length of any order pursuant to s. 161.

[6] My task then, is to determine the appropriate sentence for Mr. McLean.

[7] In doing this, I must consider the facts underlying the offence here and their impact on the victim. I must consider Mr. McLean's background. Finally I must consider the fundamental purpose and principle of sentencing as set out in the Criminal Code. I propose to address each of these in that order.

The Offence

[8] The following are the facts as agreed to by counsel.

[9] Jessie McLean is 24 years of age, having been born September 30, 1987.

[10] At the time of the offence he was residing with his father in Thorold, Ontario, and before then had spent most of his life living with his mother in Thorold. While on bail Jessie McLean has resided with his mother, without incident.

[11] Jessie McLean was employed at a hotel in Niagara Falls at the time of the offence and had worked there for five years.

[12] Jessie McLean has no criminal record.

[13] B, the victim in this matter, is nine years old. She resides in Niagara Falls with her mother, her stepfather and sibling.

[14] On June 6, 2011, Jessie McLean was at a bar in Niagara Falls, Ontario, drinking with friends and celebrating a birthday. While there he consumed at least eight to ten beers and two to four shots of alcohol.

[15] After leaving the bar Jessie McLean proceeded towards his cousin's apartment located in the City of Niagara Falls. He had stayed there on previous occasions when he had been in Niagara Falls at night and it was inconvenient to go home. On his way there he stopped at another relative's home and consumed more alcohol, and then left to attend at his cousin's apartment building.

[16] His cousin's apartment building is a large, older-style house converted into apartments. Jessie McLean broke through a window screen into the kitchen of the apartment, located directly beside his cousin's apartment, and went inside.

[17] Once inside the apartment he recognized that he was in the wrong apartment but continued into the living room, where the then eight-year-old B was sleeping on a couch, under a blanket.

[18] Jessie McLean pulled back the blanket and sexually assaulted the complainant by kissing her on the mouth, vagina and anal area, pinching her chest area, and then licking his fingers and inserting them to some extent into her vagina and anus. In addition, he removed his penis from his pants and rubbed and pushed his penis against her vagina and anal area.

[19] During the sexual assault Jessie McLean held B on the couch by the arm and told her, "Ssh, be quiet." After several minutes the complainant told him to stop and he did so. He then left the residence and went to his cousin's apartment, entered through the window, went upstairs, and passed out.

[20] B awoke her mother and told her what had happened. Her mother called 911. EMS and police personnel attended. B was transported to Greater Niagara General Hospital and then to the St. Catharines General Hospital and treated at the Sexual Assault Treatment Centre.

[21] When she was examined bruises were noted on her upper arm consistent with being held. As well, redness was noted on both buttocks. The medical examination did not show any injury to her vagina or anus other than some redness to the labia majora and minora, the posterior fourchette and introitus.

[22] During her examination swabs from various parts of her body were taken. At a later point, DNA samples were taken from B and from Jessie McLean. No DNA profile other than that which is attributable to B was detected on the external genitalia swab taken from B. However, a DNA profile consistent with B was found on swabs taken from the right and left hand and the penile swab of Jessie McLean.

[23] Lengthy video statements were taken from B and from Jessie McLean. Jessie McLean admitted going into the apartment and admitted having some sexual contact with B but denied having intercourse either vaginally or anally.

[24] B's statement, however, described a finger and a penis being used to penetrate her vagina and anus in addition to the kissing and pinching.

[25] To answer the discrepancies between the statements and the medical findings an expert report was obtained from Dr. Burke Baird, a specialist in paediatrics and sexual assaults. Dr. Baird was provided with both Jessie McLean's and B's statements and asked his professional opinion with respect to penetration.

[26] Dr. Baird's statement is part of Exhibit 1 in this case.

[27] For the purposes of the agreed statement of fact the parties agreed that there was some penetration of the vagina and the anus, but agreed also that the extent of the penetration was unascertainable, as confirmed by Dr. Baird.

Victim Impact

[28] The father of the victim prepared a written Victim Impact Statement which he read to the court. It then was made an exhibit in this case. In his statement he questioned where he, the non-custodial parent was when his daughter was sexually abused. He questioned what he might have done in order to protect her. With respect to the impact on his daughter and her mother he wrote:

Her mother can barely comprehend and deal with the fact that it happened under her care and control in her home. [B] now has to sleep with her mother for fear that this might happen again. When she comes to visit and stay with me she has to be reassured that all windows and doors are locked before she goes to bed. She is very fearful and has to be assured that she is safe when going to sleep. My oldest daughter and husband have had to reassess the home security measures they have in place to hopefully protect their children, my grandchildren from this sort of thing from happening. The fact remains that no matter how well you educate and protect your family there is always risk.

[29] Her family have assured her that she did nothing wrong, she was not to blame and she had no reason to feel shame.

Background of Jessie McLean

[30] I have had the benefit of a Pre-Sentence Report which sets out much of Mr. McLean's background.

[31] He is now 25 years of age. He was 23 at the time that he committed this offence.

[32] He did not have a criminal record.

[33] His parents separated amicably while he was a child. He did fine in school until he chose to associate with "the cooler kids", and began partying more and studying less. He dropped out of school in grade 11. He then worked at a number of different jobs. He lost his most recent job as a result of being charged with this offence. He became actively involved in his church a number of years ago but found himself in a state of "moral conflict" as the church disapproved of his partying lifestyle. This lifestyle included the misuse of both alcohol and marihuana. He used cocaine for a while but stopped that in 2010 because "he knew better".

[34] Since being charged, Mr. McLean has "embraced sobriety and has become more involved with his church and is working towards obtaining his secondary diploma". He is preparing for baptism and first communion within the church.

[35] The Pre-Sentence Report notes that he "takes full responsibility for his offending behaviour and has openly expressed his remorse to both friends and family". He cannot provide an explanation for what he did. He has described his behaviour as "inexcusable". He believes that "substance misuse contributed to an 'arrogant invincible mindset' on the night of the offence".

[36] The Pre-Sentence Report concludes with the following assessment:

Before the Court is a 24-year-old first-time offender. He presents with a pro-social upbringing free from abuse and neglect. The subject is well-supported by a strong network of family and friends and Church membership. Poor choices as an adolescent attributed to a lack of a formal education and alcohol and drug misuse. He is currently working towards his sobriety and obtaining his Secondary Diploma. Mr. McLean appears to value employment and is reported to have good work ethics. The subject's character is described favourably by collaterals who also consider his offending behaviour to be completely out of character. Mr. McLean takes responsibility for his offending behaviour and has expressed remorse and regret stating, "I have to pay for what I have done". He has many pro‑social leisure interests and is currently single.

[37] Counsel for Mr. McLean also filed a brief of materials which included a number of very positive reference letters and a letter confirming Mr. McLean's participation in alcohol counselling. It also contains a rather heartfelt and moving apology to his victim and her family.

The Law

[38] The fundamental purpose of sentencing as expressed in s. 718 of the Criminal Code is to contribute 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 objectives of denunciation, deterring the offender and other persons from committing offences, separating offenders from society where necessary, assisting in rehabilitating offenders, providing reparation for harm done to victims or to the community, and promoting a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community.

[39] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[40] The punishment should fit the crime, but there is no single fit sentence for any particular offence. The determination of an appropriate sentence involves attempting to apply a blend of the above principles, including specific and general deterrence, denunciation and rehabilitation.

[41] Section 718.2(e) of the Criminal Code provides that:

All available sanctions, other than imprisonment, that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

[42] Appellate courts in Ontario have long recognized the fact that this principle is even more applicable in cases involving youthful first offenders.

[43] For example, in R. v. Priest, [1996] O.J. No. 3369 (C.A.) Rosenberg J.A. wrote at para. 17 that:

The primary objectives in sentencing a first offender are individual deterrence and rehabilitation. Except for very serious offences and offences involving violence, this court has held that these objectives are not only paramount but best achieved by either a suspended sentence and probation or a very short term of imprisonment followed by a term of probation.

[44] He went on to say at para. 18 "that the sentence should constitute the minimum necessary intervention that is adequate in the particular circumstances".

[45] Then at para. 20, he stated that:

The duty to explore other dispositions for a first offender before imposing a custodial sentence is not an empty formalism which can be avoided merely by invoking the objective of general deterrence. It should be clear from the record of the proceedings, preferably in the trial judge's reasons, why the circumstances of this particular case require that this first offender must receive a sentence of imprisonment.

[46] These principles are not to be considered in a vacuum however.

[47] In para. 22 of Priest, supra, Rosenberg J.A. differentiated between violent and non-violent offences.

[48] The age of a victim is also a factor as the Criminal Code makes specific reference to offences against children.

[49] Section 718.01 provides that in such cases, the primary considerations on sentencing are denunciation and deterrence.

[50] Section 718.2(a) provides that the fact that an offender, in committing the offence, abused a person under the age of 18 years is an aggravating circumstance on sentencing.

[51] In R. v. D.D., [2002] O.J. No. 1061 (C.A.), Moldaver J.A. stated at paras. 34 and 35 that:

34. The overall message however is meant to be clear, adult sexual predators who would put the lives of innocent children at risk to satisfy their deviant sexual needs must know that they will pay a heavy price. In cases such as this absent exceptional circumstances the objectives of sentences proclaimed by Parliament in s. 718 (a), (b) and (c) of the Criminal Code commonly referred to as denunciation, general and specific deterrence and the need to separate offenders from society, must take precedence over the other recognized objectives of sentencing.

35. We as a society owe it to our children to protect them from the harm caused by offenders like the appellant. Our children are at once our most valued and our most vulnerable assets. Throughout their formative years they are manifestly incapable of defending themselves against predators like the appellant and as such they make easy prey. People like the appellant know this only too well and they exploit it to achieve their selfish ends, heedless of the dire consequences that can and often do follow.

[52] Similar sentiments were expressed in R. v. R.B., [2005] O.J. No. 3575 (C.A.), at para. 32 per Laskin J.A.

[53] The fact that Mr. McLean broke into his victim's home and then sexually abused her is also a factor.

[54] Section 348.1 of the Criminal Code provides:

348.1 If a person is convicted of an offence under section 98 or 98.1, subsection 279(2) or section 343, 346 or 348 in relation to a dwelling-house, the court imposing the sentence on the person shall consider as an aggravating circumstance the fact that the dwelling-house was occupied at the time of the commission of the offence and that the person, in committing the offence,

(a) knew that or was reckless as to whether the dwelling-house was occupied; and

(b) used violence or threats of violence to a person or property.

[55] Mr. McLean committed an offence under s. 348 in relation to a dwelling-house that was occupied and he was at the very least reckless as to whether the dwelling-house was occupied and he did use violence to the victim once he was in the house. Accordingly, s. 348.1 applies to this case.

[56] Ontario courts have consistently denounced home invasions.

[57] In R. v. Wright, [2006] O.J. No. 4870 (C.A.) Blair J.A. wrote at para. 13 that "Home invasion is a serious, and increasingly prevalent, crime in our society".

[58] In R. v. J.S., [2006] O.J. No. 2654 (C.A.) Blair J.A. stated at para. 34, that home invasion offences are particularly troubling "because they represent a violation of the sanctity of the home and of the sense of security people feel when in their homes - highly cherished values in our society - and because they are frequently perpetrated against vulnerable individuals." They must therefore be dealt with sternly by the courts.

[59] In R. v. Soares, [1996] O.J. No. 5488 (S.C.J.) Trafford J. wrote at para. 286:

The sanctity of one's home is of fundamental importance in a free and democratic society. It is constitutionally recognized in our country. Everyone must not only be, but feel, secure in their residence. A society that tolerates significant criminal intrusions into the privacy of one's home is a society that forces its citizens to resort to self-help to protect themselves against such wrongs. Absent effective responses from the judiciary, the alternative is for citizens to arm themselves in anticipation of a need to defend themselves against such criminal enterprises. A society like that is not ours today, has not been ours in the past, and will not be ours in the future. The obligation of the Court is to give proper recognition to the sanctity of the home, to protect all citizens against such intrusions, and to thereby preserve the public's confidence in the administration of justice.

[60] Blair J.A. cited the above decisions with approval in Wright, supra and then went on to state at para. 15 that "For these reasons, a lengthy penitentiary term is fully warranted upon conviction for a home invasion case".

[61] In R. v. Corbiere, 2012 ONSC 2405, [2012] O.J. No. 2164 (S.C.J.), a case where a sexual assault was committed during a home invasion, Pomerance J. wrote at para. 44 that:

The offences before the court are serious. Perry Corbiere broke into the victim's home; stole her property; and when the property was gone, robbed her of her sexual integrity. This was a callous attack on a vulnerable victim. The sexual acts demanded by the offender were highly invasive. He ordered that she perform fellatio and raped her, penetrating her on more than one occasion. The sentence imposed must reflect the court's abhorrence for the offence and society's denunciation of crimes of sexual violence. The targeting of the victim in her own home is a significant aggravating factor exacerbating the trauma and impact on the victim. The home is a protective haven; a place where we should all expect to feel safe. The actions of the offender have destroyed the victim's sense of security in her home and have left her feeling unsafe everywhere.

[62] I will point out here that the circumstances in each of the above decisions are different in one or more ways from the circumstances in the case before me. I assume Crown counsel relied upon them for the above statements of principle rather than as similar cases warranting a similar sentence. That is certainly how I have used them.

[63] Counsel for Mr. McLean provided me with five decisions wherein the various courts imposed sentences of imprisonment for less than two years.

[64] In R. v. Whalen, 2011 ONCA 74, [2011] O.J. No. 312 the Ontario Court of Appeal upheld sentences of imprisonment for two years less one day with respect to Mr. Whalen and imprisonment for 21 months in the case of his co-accused Mr. May. Both had entered guilty pleas to a robbery that involved a home invasion. The Court of Appeal stressed the principle of deference to the sentencing judge and noted at paras. 6 through 8 that:

6 This was obviously a very serious offence. The trial judge was well aware of the seriousness of the offence. His reasons show that he was aware of the applicable principles of sentencing and the range of sentence for home invasions set by this court. The trial judge was also aware that a sentence range is not "fixed in stone", but is ultimately provided for the guidance of trial judge who must exercise their sentencing discretion on a case-by-case basis. Sometimes the proper exercise of that discretion takes the sentence out of the range.

7 The Crown agrees that deference was owed to the sentence imposed by the trial judge. Clearly, he had a difficult task in this case. The trial judge ultimately saw substantial potential for rehabilitation for both of these young men. He saw that there was a real opportunity for them to become productive law abiding citizens. The material before him provided a basis for that finding. Both respondents have also continued their progress while in custody as indicated in the material that has been placed before us. They do seem to have turned their lives around.

8 The trial judge had to shape a sentence that maximized the potential to achieve rehabilitation, which as indicated was a very real prospect in this case. However, at the same time, he had to impose a sufficient penalty to adequately reflect the needs of general deterrence and denunciation. Balancing these competing, if not somewhat antagonistic, principles, was not an easy task. I think it is fair to say that other trial judges might have come down with a different sentence. However, deference means yielding to the sentence imposed by the trial judge where the balancing engaged in by the trial judge does not reflect error in principle or result in a manifestly unreasonable sentence. In our view, the trial judge's balancing in this case does not suffer from either of those deficiencies. We would not interfere.

[65] R. v. Kandasamy, [2006] O.J. No. 5732 (S.C.J.) was a summary conviction appeal from the sentence imposed by Feldman J. in the Ontario Court of Justice at R. v. S.K., [2005] O.J. No. 1960 (C.J.). There are principles that can be drawn from this decision. For example, Feldman J. wrote at para. 8 that:

I am of the view that I must attempt in a principled manner to balance the merit in both positions, given the promising personal circumstances of this accused. He is a relatively young first offender, who by his guilty plea and initiative in seeking professional assistance, as well as his openness in that process, has indicated both remorse and a degree of awareness and acceptance of his disorder. While that does not diminish the gravity of his offence, which reflects the predatory nature of his abuse of a vulnerable child, unknown to him, in a public place, not far from his waiting and helpless parents, there is, on this evidence, some hope that Mr. S.K. can be monitored and treated for his incurable illness so as to diminish as much as possible any risk of re-offence. It is intended in this way to assert the appropriate sentencing principles in a meaningful way.

[66] The case however, much like those cited by Crown counsel, is very different from that before me. The offence was a sexual assault on a six-year-old boy in a public washroom. The assault was not as intrusive as the one before me. It was not a home invasion case. Since the appeal was heard in the Superior Court of Justice and not the Court of Appeal, Crown counsel must have elected to proceed summarily. The maximum sentence then would have been imprisonment for 18 months. Crown counsel suggested imprisonment for between 9 and 12 months. Accordingly, when the sentence was increased on appeal to the equivalent of imprisonment for 15 months, the appeal judge was imposing a sentence that exceeded that requested in the court below and that was near the maximum allowed by law.

[67] R. v. Charteris, [2010] O.J. No. 4861 (S.C.J.) and R. v. Cronin, [2007] O.J. No. 5494 (C.J.) both involved sexual assaults on 13-year-old girls. Both cases included acts of anal intercourse. Both resulted in reformatory sentences – imprisonment for 18 months in Charteris and imprisonment for two years less a day in Cronin. I note that neither case involved a home invasion and in Charteris, Crown counsel had suggested a sentence of imprisonment in the range of 18 to 24 months. As I understand it, counsel for Mr. McLean advanced these cases solely for the proposition that there are circumstances where imprisonment for two years less one day is not precluded in cases involving serious sexual assaults on young victims.

[68] R. v. Carpenter, [1999] O.J. No. 517 (Ont. Ct. Gen. Div.) on the other hand is very similar to the case before me.

[69] Carpenter entered pleas of guilty to sexual assault and to break and enter with the intent to commit the indictable offence of theft. The court noted that he was still on probation as a result of an earlier conviction of possession of stolen property.

[70] The admitted facts were that while intoxicated he entered a family residence and once within the premises helped himself to certain food stuffs present there. He then entered the bedroom of an eight-year-old child and sexually assaulted her by touching her private parts under her pyjamas and by inserting his finger into the child's vagina.

[71] Stach J. observed at paras. 3 through 5 that:

3 The court recognizes that you were intoxicated at the time that you committed these offences, but I think you are aware, Mr. Carpenter, the voluntary consumption of alcohol cannot justify or excuse your conduct. It is not a mitigating factor on sentence.

4 In respect of the charge of sexual assault to which you entered a plea of guilty, this court must, in crafting a fitting sentence, take into account the renunciation of the community towards this kind of offence. While the conduct you engaged in in this case does not on the surface involve much violence, yet it is clear that the crime of sexual assault is indeed a crime of violence and the impact that it has on the victim is one that leaves a deep psychological scar in addition to any physical symptoms. Indeed, in the case before me this child underwent very significant psychological stress. Her mother and father also went through some very difficult times of very considerable stress. You must understand, Mr. Carpenter, that it may take years for this child to get over the hurt that your conduct caused, if she ever does.

5 In passing sentence for this serious offence the court takes into account as mitigating factors, factors that stand to your credit, that you entered a plea of guilty to the charge and that you thereby acknowledge responsibility for your conduct. By pleading guilty and indeed by waiving the preliminary inquiry, you spared this child the further embarrassment of having to appear in court to ventilate publicly what occurred to her in the early morning hours of October 31, 1998. The public was similarly spared the expense of going through a jury trial. All of those factors do weigh to your credit and this court accepts as sincere the expression of remorse that you conveyed to the court through your lawyer.

[72] Carpenter was an aboriginal offender.

[73] Stach J. sentenced Carpenter to time served being four months of pre-sentence custody with respect to the break and enter offence and then with respect to the sexual assault, sentenced him to imprisonment for 18 months together with a period of probation for two years.

Analysis

[74] I am fully aware that I am not bound by any "fixed in stone" sentence range here. My task would be much easier if there was such a fixed range.

[75] Quite frankly, if all I had to consider was the facts surrounding the offence itself, I would have no difficulty in sending Mr. McLean to jail for a longer period of time than that suggested by Crown counsel.

[76] The offence here was an extremely serious one.

[77] Crown counsel and counsel for Mr. McLean argued at some length over whether what Mr. McLean had done constituted "rape". As I listened to them, I remembered and agreed with the reasons why Parliament chose to replace the term "rape" with the less emotionally-charged "sexual assault". I say that because, whether one describes this as a rape or as a sexual assault, it was, at the very least, an extremely serious offence. Crown counsel described it as a "despicable and heinous crime". Counsel for Mr. McLean described it as an "evil act", albeit one that was committed by someone who was not an evil person.

[78] Mr. McLean cut through a window screen and entered the residence in the middle of the night.

[79] He eventually realized that he had entered the wrong place but he did not leave.

[80] In fact, he did not leave when he discovered that a child was sleeping on a couch.

[81] Instead, he pulled back her blanket and sexually assaulted her by kissing her on her mouth, her vagina and her anal area. He pinched her chest. He licked his fingers and inserted them to some extent into her vagina and her anus. Then he removed his penis from his pants and rubbed and pushed his penis against her vagina and anal area. It was agreed that there was some penetration of the vagina and the anus but that the extent of the penetration is unascertainable. When, after several minutes the victim told him to stop, he did so. He then left the residence.

[82] I do not need to determine whether this constituted a rape and I do not intend to do so. It is enough for me to agree with counsel for Mr. McLean that this was indeed an evil act that could also be described, as Crown counsel did, as a despicable and heinous crime.

[83] It is a crime that calls for a long penitentiary term that will make it clear to everyone that we will not tolerate such behaviour. It calls for a sentence that delivers the message that anyone who commits such a crime can expect to go to jail for a very long time.

[84] I must however consider much more than the facts surrounding the offence.

[85] I must consider the fact that Mr. McLean is a young man who was never in trouble with the law before this.

[86] I must consider the fact that this offence was fuelled to some considerable extent by alcohol.

[87] I must consider the potential for rehabilitation for Mr. McLean.

[88] I must consider the fact that there is a real opportunity for him to become a productive law-abiding citizen.

[89] I note that he has attempted to take steps that could turn his life around.

[90] I note that he has consistently expressed real remorse for what he has done.

[91] I must consider all of these facts. Then, to borrow from the words of the Ontario Court of Appeal at para. 8 in Whalen, supra, I must shape a sentence that maximizes the potential to achieve rehabilitation, which as indicated is a very real prospect in this case while, at the same time, imposing a sufficient penalty to adequately reflect the needs of general deterrence and denunciation. I must balance these competing, if not somewhat antagonistic, principles.

[92] In doing so, I must and I do take into account the fact that Mr. McLean entered a guilty plea in this case. I take that to be a further expression of remorse as well as an acceptance of responsibility by him. More importantly, in my mind, it made it unnecessary for the victim to relive these horrible events while recounting them to a court and thereby avoided any further revictimization of her. I have given Mr. McLean a great deal of credit for this one act alone. Otherwise his sentence could have been much longer.

Sentence

[93] After considering all of the above, I find that the appropriate sentence here is imprisonment for four years.

[94] I note that Mr. McLean did spend two months in pre-sentence custody.

[95] Accordingly, I sentence Mr. McLean to time served, being two months in pre-sentence custody plus imprisonment for a further 46 months.

[96] I also make the following four ancillary orders.

[97] This is a primary designated offence. I make an order pursuant to s. 487.051 of the Criminal Code authorizing the taking from Mr. McLean of any number of samples of one or more bodily substances that is reasonably required for the purpose of forensic DNA analysis.

[98] The behaviour of Mr. McLean, together with the absence of any explanation for it, causes me concern about the risk that Mr. McLean may present to children in general. Therefore I make an order pursuant to s. 161 of the Criminal Code prohibiting Mr. McLean from

(a) 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 daycare, school ground, playground or community centre; or

(b) Seeking, obtaining, or continuing any employment whether or not the employment is remunerated or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years.

[99] This order will run for 20 years.

[100] I am not satisfied that Mr. McLean has established that if an order were made, the impact on him including on his privacy or liberty would be grossly disproportionate to the public interest in protecting society, through the effective investigation of crimes of a sexual nature to be achieved by the registration of information relating to sex offenders under the Sex Offender Information Registration Act. Accordingly I make an order pursuant to s. 490.012 of the Criminal Code that Mr. McLean comply with the Sex Offender Information Registration Act for his entire life.

[101] Pursuant to s. 109 of the Criminal Code, I prohibit Mr. McLean from owning, possessing or carrying any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for ten years.

[102] Finally, I note that Mr. McLean will be without any financial income for a considerable period of time while he is in jail. He will not be in a position to pay anything. In light of that, I waive the victim fine surcharge.

Released: January 22, 2013

Signed: "Justice D.A. Harris"

Justice D.A. Harris

Footnotes

[1] Stach J. made no comment regarding enhanced credit for the pre-sentence custody but I note that it was quite common in 1999 to credit such custody on a 2:1 basis.

[2] Prior to being repealed s. 143 (a) of the Criminal Code provided that "A male person commits rape when he has sexual intercourse with a female person who is not his wife … without her consent". Both then and now, s. 4(5) of the Criminal Code provides that "For the purposes of this Act, sexual intercourse is complete upon penetration to even the slightest degree, notwithstanding that seed is not emitted". R. v. Johns, [1956] B.C.J. No. 103 (B.C. Co. Ct.) provides an example of the lengthy analysis that courts conducted in order to determine this issue.