WARNING
The court hearing this matter directs that the following notice 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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
Ontario Court of Justice
Date: 2016-09-07
Court File No.: Halton 14-1745
Between:
Her Majesty the Queen
— AND —
Jonathan Joseph O'Brien
Before: Justice Lesley M. Baldwin
Sentencing Hearing held on: August 25, 2016
Reasons for Sentence released on: September 7, 2016
Counsel:
- Mr. S. Bradley — counsel for the Crown
- Mr. P. O'Marra — counsel for the defendant Jonathan Joseph O'Brien
BALDWIN J.:
[1] Conviction and Charge
[1] These reasons follow a trial where written reasons for judgment were released on May 9th, 2016 finding Mr. O'Brien guilty of sexually exploiting M.M. by violating his position of trust toward her between the 14th day of January 2014, and the 30th day of April, 2014 in the Town of Oakville contrary to section 153 of the Criminal Code.
[2] A separate charge of sexual assault during the same time period was conditionally stayed based on the Kienapple principle. It is important that anyone reviewing these reasons, read the judgment finding Mr. O'Brien guilty, as they detail all the circumstances of the sexual contact between the two of them and the context in which it all occurred.
[3] The Crown proceeded summarily. The mandatory minimum sentence for this offence is 90 days jail. The maximum sentence for this offence is 18 months jail.
Summary of the Offence
[4] The complainant was born […], 1998. She was 16 years of age when the offence before the Court occurred. She was 17 years of age when she testified at trial.
[5] The offender was born August 23rd, 1988. He was 25 years of age when the offence occurred. He was 27 years of age when he testified at trial.
[6] At the end of trial, there was no issue that there had been at least 4 sexual contacts which included sexual intercourse and fellatio between the complainant and the offender. The physical sexual relationship began one week after her 16th birthday.
[7] This had been preceded by numerous explicit sexting, Skyping and messages, and Snapchat photographs between them. This started when M.M. was 15 years of age in the fall of 2013 before Christmas time.
[8] The defence submitted that all sexual contacts, including sexual intercourse and fellatio, were consensual.
[9] I agreed with the Crown that Mr. O'Brien presented himself as a helpful guy who was just trying to please M.M. and her mother. He was not. He was in a position of trust in relation to M.M. Instead of using that position to protect her, he used it to exploit her.
[10] Despite all of her beauty and many strengths, at this stage of M.M.'s life, she also had understandable vulnerabilities.
M.M.'s Vulnerabilities
- She was having serious problems with her parents (mother and step-father)
- One of her brothers had abused her in the past
- She had not been doing well at school and had to attend summer school in the summer of 2013
- She was grounded in the fall of 2013
- Her parents took her cell phone and any other devices she could use to contact 'the outside world' away
- She was cutting herself
- Her mother had been diagnosed with terminal stage 4 cancer in the summer of 2013
- Her family was experiencing financial and emotional stress
- She was almost 10 years younger than the accused
- She was in Grade 10
- She was inexperienced sexually (a virgin)
- She was hospitalized for depression and anxiety in January of 2014
- Cheerleading at CheerForce was the only place that she experienced enjoyment at the time
[11] These are all vulnerabilities that Mr. O'Brien was aware of, or chose to be wilfully blind to.
Mr. O'Brien's Circumstances When the Sexual Relationship Began
- In the fall/pre-Christmas time period when the sexual messages began, and during the period charged in the information before the court when the physical relationship occurred, Mr. O'Brien was 25 years of age
- He was employed full-time with Cogeco
- He was working at the CheerForce gym as both an assistant coach and as the tumbling coach
- He had previously attended 4 years of University (no degree attained)
- He lived at home with his parents and siblings
- He had a car
- He had a cell phone and internet devices
[12] It was clear that M.M. was in a vulnerable and weak position in comparison to Mr. O'Brien. The almost 10-year age gap is just one of many factors that establish this point.
[13] Mr. O'Brien was an adult working man. M.M. was an emotionally fragile and struggling young high school girl. She had anxieties, depression and fears. Her beloved mother was dying.
[14] The only thing these two people had in common was the cheerleading at the CheerForce gym. He met her there as one of her coaches when she started there at 14 years of age. It is admitted that at this time he was in a position of authority to her. He was one her supervisors not only at the gym, but for the tournaments out of town.
[15] After that, although he was not a direct part of her particular cheerleading team staff, he was the tumbling coach for the gym and he did provide assistance to all the other teams at times.
[16] He asked M.M. by text to come to the gym and help him out with the team he was coaching in October of 2013. He was inviting her to come out and be part of the team he was coaching.
[17] He also offered to provide M.M. with a private tumbling lesson in April of 2014. I reject his evidence that he did this to deflect M.M. and to appear helpful to her mother. That repeated testimony made no sense.
[18] M.M. considered him to be one of the main coaches at CheerForce. He was 'coach Jono' to her. She did not know him in any other capacity.
[19] I was satisfied beyond a reasonable doubt that this was a relationship of trust. It was based on a coaching relationship, for which M.M.'s parents paid the gym, with one his primary duties being to ensure the physical safety of the participants.
[20] There was no switch that turned on and off with respect to the primary relationship between these two people at the gym. This was not a friendship which turned into a dating relationship as was submitted by the defence.
[21] There was no dating at all in this relationship. The extra relationship that developed was all about sex, with a primary emphasis it seems, on the sexual gratification of the offender.
[22] The fact that M.M. was not given any gifts, bought any meals, or provided with any benefit at all is not the badge of honour that the defence tried to make it out to be. These facts were just further indicia of the exploitative nature of the relationship. It was all about the sex. It was about the vulnerable young person stroking the ego (and penis) of the adult man. It was for his gain, not hers.
[23] Section 153 of the Criminal Code places the onus squarely on the person in a position of trust to decline having any sexual contact whatsoever with a young person in the protected 16- to 18-year-old age group.
[24] It is not a defence that at the time the offender thought the young person was consenting to the sexual activity, or even if the young person was initiating it. In law, they are not capable of consenting.
[25] It is not a defence that the offender thought that a person could give their consent once they turned 16 years of age. Pursuant to s. 19 of the Criminal Code, ignorance of the law by a person who commits an offence is not an excuse for committing that offence.
[26] I found as a fact that Mr. O'Brien had an agreement with M.M. to keep this relationship secret. I found as a fact that this was done because he knew that the relationship he was having with her was wrong; not just morally, but potentially legally. He took no steps to make sure that this was not an illegal relationship. Again, it was to his advantage not to know; just like it was to his advantage not to acknowledge any of her vulnerabilities.
[27] I rejected the defence submission that a relevant factor in determining the nature of the relationship is whether or not the young person has contacted the police. There is no law to support such a submission. It was M.M.'s mother that contacted the police.
[28] I further rejected the defence submission that I should consider M.M.'s behaviour after the alleged sexual assault to assess the nature of the relationship and whether or not M.M. had consented to the sexual activity.
[29] M.M.'s confused response to the so called non-consensual fellatio in the high school parking lot did not leave me in a state of reasonable doubt about the nature of this exploitive relationship. She continued to struggle emotionally. She was not being cared for and kept safe as Mr. O'Brien had promised. She also was in no legal position to be giving him her consent.
[30] I also rejected the defence submission that M.M. presented herself as an argumentative and combative person while giving her evidence. M.M. endured an extensive, at times relentless, cross-examination over the span of two days. It was an emotionally exhausting ordeal and I found that she held up very well under these difficult circumstances.
[31] It was established beyond a reasonable doubt on the agreed testimony of both Mr. O'Brien and M.M. that they began sexting each other and discussing what they would do to each other when they were going to be alone in the fall/pre-Christmas and early January months when she was only 15 years of age. The messaging included explicit Snapchats and Skyping where nude images were shared.
[32] This conduct is illegal as defined in s. 152 (Invitation to Sexual Touching) of the Criminal Code.
[33] At the end of submissions, the Crown could not explain to this Court why this crystal clear offence had not been charged. It also carries a mandatory minimum sentence of 90 days where the Crown proceeds summarily.
[34] It should no longer be said that the position of being in a position of trust pursuant to s. 153 of the Criminal Code is elusive. The circumstances in which it applies will vary depending on the facts of the case. In this case, it is someone who, being employed in a business to ensure the safety and instruction of a young person in the protected 16- to 18-year-old age group, uses their employment position to enter into a sexual relationship with the young person. Individuals who call themselves coaches or tutors cannot do this. This is not a difficult thing to understand and every employer and employee of a commercial business must ensure that they understand.
Position of the Parties
Crown
[35] The Crown seeks a jail term of 6 to 9 months, followed by 3 years of Probation, SOIRA Order for 10 years (which is mandatory); DNA Order (this is a primary designated offence); section 110 Weapons Prohibition Order for 10 years (which is discretionary); Victim Fine Surcharge (which is mandatory).
Defence
[36] The Defence seeks a 90-day intermittent sentence, followed by 3 years of Probation with a house arrest condition for the first 6 to 12 months of that Order with exceptions to attend work, education, and counselling; SOIRA Order for 10 years; DNA order. The defence opposes a s. 110 weapons prohibition submitting that the offence does not fall within the wording of that section.
[37] Both Crown and Defence agreed that all the recommendations contained in the Pre-Sentence Report should be incorporated into the Probation order.
Background and Circumstances of the Offender
Sources
Pre-Sentence Report – Exhibit #1
[38] Stephanie Cecchelli authored a very comprehensive PSR dated August 18, 2016.
[39] Mr. O'Brien, aged 27, continues to reside in his parent's home in Grimsby. He has no prior record. His parents and extended family members are very supportive of him.
[40] There are no substance abuse issues, mental health issues, or physical health issues.
[41] There have been no prior incidents of concern according to all the people Mr. O'Brien regularly interacts with.
[42] Mr. O'Brien expressed shame and remorse for his offending and stated he intends to "100% comply with any Court directed counselling and programming." (p. 8, para. 2)
[43] Pages 10 and 11 of the PSR read as follows:
During his formative and teenaged years, the subject appears to have undergone some periods of transition with his parents' divorce, subsequent reuniting years later and with relocations from Hamilton to Burlington, followed by Beamsville and having eventually settled in Grimsby. Despite these, accounts of his experiences, adjustments and relationships with his immediate and extended family are vastly positive overall. His parents do not appear to condone or diminish his offence, which is conducive to rehabilitation and the subject meaningfully addressing his sexual offending behaviour. Personal and professional collateral sources indicate there are no significant physical or mental health issues or diagnoses nor substance abuse concerns regarding the subject.
He has a rather accomplished and decorated earlier education history, with public speaking competition wins during elementary level schooling, student elected class presidency during latter high school and grades that enabled him to be accepted into a recognized university. Although he has been steadily employed with a recognized cable, phone and internet company for the last several years, since 2010, and has attended post-secondary university education, his university education remains incomplete and a concrete career path is yet to be determined. While he has unwaveringly continued to reside with his parents and has their continued support, he appears to have struggled to independently establish himself to date. He indicated plans of making gains in these areas by maintaining his employment and simultaneously completing his university education.
A minimal intimate relationship history has been cited by the subject and collateral sources, consisting of one prior two-year relationship with an age appropriate female over eight years ago and dating relationships of short duration since. The subject denies ongoing sexual interest in adolescent females. He indicated that he is prepared to cooperate with phallometric testing if directed by the Court to determine sexual preferences. To his credit, he stated that he would accept these results and if required that he would comply with appropriate rehabilitation and attend for counselling or programming regarding sexual issues. A period of community supervision would assist with referral and monitoring of assessment, program and counselling participation and progress. Given his ties to and structure within the community, he presents as a suitable candidate for community supervision.
Recommendations
Should the Court deem a period of community supervision in whole or as part of the disposition, this writer recommends the following conditions for the Courts' consideration:
Report to a Probation and Parole Officer as directed.
Attend for, actively participate in and complete a phallometric assessment, counselling and programming for sexual behaviours and healthy relationships as recommended.
Sign any releases of information and/or consents required to allow the Probation and Parole Officer to monitor compliance with assessment, treatment or counselling.
Not communicate directly or indirectly with the victim M.M. or any member of her family, and not attend within 500 meters of any known place of residence, education, employment, worship or leisure of the victim and her family.
Not contact, be in the company of or communicate with anyone under the age of 18 unless in the company of their parent(s) or legal guardian(s) who is aware of your offence.
Maintain full-time employment and/or attend school and provide proof.
Not to engage in any volunteer work unless approved in advance by the Probation and Parole Officer.
To disclose to a Probation and Parole Officer any subsequent dating relationship you may be involved in.
Reside where approved by the Probation and Parole Officer.
Character Letters Filed – Exhibit #3
[44] In addition to the sources contacted for the PSR, which included Mr. O'Brien's parents, Kelly Droughan (family friend), Karen Reidy (Supervisor at Cogeco), and Dr. Richard Scott (family physician), the defence filed more character reference letters.
[45] The letters are all tremendously supportive of Mr. O'Brien. They are authored by Eric Martel (co-director of CheerForce gym and husband to a witness at the trial, Christine Martel); Jon and Mary O'Brien (Aunt and Uncle to Mr. O'Brien); Colleen Jenson (Aunt to Mr. O'Brien); Kristin Lee Conrad (friend since high school); Jeff Green, Brock Hamilton, Andrew DiPietro, Chris Stokes and Kasra Sadeghian (5 friends that have known Mr. O'Brien since Grade 8).
[46] Some of the adjectives used by these people describe Mr. O'Brien as being reliable, responsible, compassionate, sincere, kind, respectful, hardworking, of excellent moral character, honest, well-balanced, loyal, dependable, thoughtful, considerate, confident, friendly, polite, popular, likeable.
[47] All these individuals confirm Mr. O'Brien's deep remorse and shame for committing this offence.
Consideration of the Permanent Internet Media Coverage (Exhibit #4)
[48] The Defence filed a booklet containing 18 articles reported in the media and available on-line with respect to Mr. O'Brien being charged with these offences. Some of the articles include his photograph.
[49] The Defence submits that Mr. O'Brien will be forever shamed by this permanent record, which will include more coverage of this sentencing proceeding.
[50] This coverage will affect Mr. O'Brien's reputation in profound ways and should be a factor the Court considers when assessing the need to address specific deterrents, general deterrents and the need to denounce unlawful conduct in the sentence to be imposed.
Offender's Statement to the Court before Sentencing
[51] Mr. O'Brien delivered a powerful statement of remorse during the hearing. He expressed profound regret for the harm he has caused M.M., and to her family and friends. He did the same with respect to his family, friends.
[52] A portion of his statement was as follows:
The biggest thing I learned throughout this entire legal process, was just how wide reaching the ripple effect goes for something like this. So while M. absolutely took the brunt of the negative impact caused by this, I'm sorry that any of it reached to any of you. You didn't deserve to be dragged into this and I'll be spending my life time making it up to my family and friends in every way imaginable…I have been encouraged by the support and forgiveness I have received from my family and close friends. With their support, I very much look forward to getting my life back on track, moving forward and becoming a positive member of my community. I know that my road ahead will be faced with many challenges stemming from this, but I will be ready to face them head on, knowing that I have paid my debt to society. Your Honour, I take full responsibility for my actions and I absolutely accept whatever sentence you deem appropriate. Thank you for affording me this opportunity to speak today.
Impact on the Victim
[53] The effect of this offence on M.M. has been profound.
[54] Her entire Victim Impact Statement was directed to Mr. O'Brien and starts with "Dear Jono".
When we started talking in the fall of 2013, I was 15 years old. My life was falling apart around me. My mom was just diagnosed with cancer again, my dad and I were fighting, I was constantly grounded. I told you I was depressed and I was cutting. I felt scared and alone. You told me I could trust you and I did. I told you everything that had ever happened to me. You knew my life story. We talked for months on end, from the second we woke up to the second we fell asleep. We had a friendship or at least I thought we did. I really fell for you. I really thought you cared about me. I thought you were interested in me as a person but all you were really interested in was my body…
[55] M.M. described how difficult it was for her to testify for days at the trial. She was nauseous and could not sleep for days. It was devastating to have to relive what happened and to have to endure relentless questioning about it.
Looking back I should have seen the signs that you were only interested in one thing, but the difference is that now I'm a lot more mature then I was. I was forced to grow up earlier than I should have and because of that I now have a brick wall up when it comes to any guy that seems interested in me. I had a hard time trusting people before I met you but now I don't trust anyone, especially men.
I've learned a lot from how you treated me. I learned that people will use you for their own benefit and they don't care what happens to you after.
I wish I could go back in time and change what happened, change my mind about trusting you but I can't. You have to live with what you did and so do I. The nightmares are something that I will most likely struggle with for the rest of my life. One day I hope I can go to sleep and wake up without having a nightmare or not feeling guilty about a situation that wasn't my fault. You were the older one, you were the person in a position of authority. I made a mistake by trusting you because I didn't know better, but now I do.
Case Law Referred to by the Parties
(Note: Defence provided some cases that dealt with sexual assault sentences which are different from sexual exploitation sentences, because the element of breach of trust or position of authority is an essential element of this particular offence. Accordingly, I will refer to the cases provided that deal with sexual exploitation offences only.)
Crown
R. v. M.B., 2013 ONCA 493
[56] This was a guilty plea. M.B. appealed his nine month sentence of imprisonment for sexual exploitation.
[57] The complainant was a 16-year-old concession stand worker at a movie theatre where the 36-year-old appellant was a senior manager.
[58] When the complainant was alone with appellant in his office, 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. Later that day, the appellant asked the complainant to report to him. He then took her to a secluded room on another floor. Once there, he kissed her and touched her breasts. After the complainant refused to perform oral sex on the appellant, the appellant motioned to her to get down on the floor, took off her pants and had protected intercourse with her during which he ejaculated. It was agreed that the complainant did not want any of the sexual content. She did not protest or say no.
[59] HELD: Appeal dismissed. The appellant's argument that the level of exploitation was minimal was rejected. The appellant used his status as a senior manager to have the complainant report to him and took her to a secluded area. The complainant submitted to his sexual demands because of his authority over her. The trial judge properly considered that the appellant was a first-time offender. However, she concluded the intrusive nature of the sexual acts and severe impact of the offence on the complainant rendered an intermittent sentence insufficiently denunciatory.
R. v. Aird, 2013 ONCA 447
[60] This was a finding of guilt for sexual exploitation after a trial.
[61] A one year jail sentence was imposed.
[62] The appellant was 28 years old, teaching grade eight, when he was hired by the complainant's mother to tutor her daughter, then 17 years of age. The sexual contact took place between December of 2008 and March of 2010.
[63] HELD: Appeal from sentence dismissed. While there were several mitigating factors present, including Aird's clean record and the loss of his teaching licence for some time as a consequence of the case, the aggravating circumstances included the duration of the sexual conduct, the vulnerability of the complainant and the impact of the offence.
R. v. Debidin, 2008 ONCA 868
[64] Guilty pleas entered to sexual exploitation and making child pornography.
[65] Appellant sentenced to 4 months with credit for 2 months pre-trial custody.
[66] The complainant was 15 years of age when the sexually offending began. He was 41 years of age and was her dance teacher and choreographer.
[67] The appeal was about whether the sentencing judge had erred by not imposing a SOIRA order.
[68] HELD: SOIRA imposed.
[69] I note that this case was prior to the mandatory minimum sentences now in place for both offences.
R. v. Gaukrodger
[70] The appellant pled guilty. She was a 26 year old school teacher who was convicted of sexual exploitation of a 14 year old male former student. The appellant had become very close to the victim's family. She used this position to commit the offence for which she was convicted. The acts of exploitation included seven acts of sexual intercourse over a period of about a month. The impact on the complainant was severe. (see sentencing judge's reasons R. v. P.G. [2005] O.J. No. 4620 (OCJ) Woolcott J.)
[71] HELD: 15 month jail term upheld.
R. v. Byford, [2000] O.J. No. 2134
[72] Teacher pled guilty to sexually exploiting a student starting when she was 16 years of age over a 2 year period.
[73] Sentence of 18 months jail was imposed.
[74] I note this case was before the mandatory minimum was imposed by Parliament.
R. v. T.F.G., [1992] O.J. No. 264
[75] [1992] O.J. No. 264; 55 O.A.C. No. 355, Ontario Court of Appeal
[76] The 14-year-old complainant was employed by the 33 year old appellant and consented to intercourse on 6 occasions. The conviction was registered after a trial.
[77] HELD: Sentence of 2 years less a day varied to 15 months jail.
[78] Note: This dated case deals with the former s. 153 in the C.C.C. and before the addition of the mandatory minimum sentence. There is no consent when the offence involves sexual exploitation which is the current state of the law.
Defence
R. v. C.S., [2014] O.J. No. 3790
[79] This was my case. The offender pled guilty to sexual exploitation. She at first was the victim's teacher, then became his foster mother. The complainant was 14 years of age at the time. The sexual relationship continued for several years.
[80] There were extensive expert reports for this sentencing and unusual factors were revealed with respect to the offender, the complainant and how the matter came to the attention of the police.
[81] Significantly, I concluded that but for the confessions of the offender herself, this crime may have never come to the attention of the police.
[82] I sentenced this particular offender to a 90 day intermittent jail term, followed by 3 years of probation, with ancillary orders.
Aggravating Factors
[83] The facts in this case involved explicit sexting with M.M. when she was only 15 years of age. I note in my Reasons for Judgment that this admitted conduct would have made out an offence under s. 152 of the Criminal Code. This section also has a mandatory minimum sentence of 90 days when the Crown proceeds summarily.
[84] The conduct that makes out the sexual exploitation when M.M. turned 16 years of age, involved at least 4 acts of fellatio and 2 acts of intercourse.
[85] M.M. was a vulnerable victim as outlined in paragraph [10] of these reasons.
[86] The impact of the offence and having to relive it at trial has had a profoundly negative effect on her as outlined in paragraphs [55] through [57] of these reasons.
Mitigating Factors
[87] Mr. O'Brien is truly remorseful. The offence is entirely out of character for him. He is well supported in the community. He is prepared to abide by all Court orders including counselling.
Sentence
[88] It must be said that those who commit crimes of sexual exploitation by abusing a position of trust are in virtually all cases a person of otherwise good character. That is how they earned their position of trust in the first place.
[89] It is tragic to see when otherwise good people lose their way so seriously. They know that what they are doing is wrong and that is why it is always done in secret. The damage the offences cause the victims is heartbreaking. This case is no exception.
[90] In imposing sentence I must address specific deterrence, general deterrence and denounce the unlawful conduct by sending a message that society will not treat these offences lightly.
[91] Balancing all sentencing factors set out in s. 718 of the Criminal Code, I have determined that a 6 month term of imprisonment followed by 3 years of Probation is required. A sentence of less than 6 months jail would not send the right denunciatory message.
[92] I believe I would not have been in error if I had imposed a longer jail sentence with reference to the case law noted above. However, I have been guided by the submissions of counsel and I am aware that sentencing must also include the offender's reintegration into the community.
[93] The terms of the 3 year reporting Probation Order shall be as agreed to and set out in paragraph [43] of these reasons.
[94] The SOIRA Order is for 10 years.
[95] The mandatory DNA Order attaches to this offence.
[96] With respect to the Crown's request for a s. 110 Weapons Prohibition Order for 10 years, I have concluded that the facts of this breach of trust sexual exploitation offence did not involve violence against M.M., nor was violence threatened or attempted. No weapon was involved. There are no safety concerns involving weapons. I agree with Defence counsel that a s. 110 Order does not apply to the circumstances of this case and accordingly no s. 110 Order is made.
[97] The mandatory Victim Fine Surcharge is $100.00 and I will give Mr. O'Brien one year to pay that given his financial circumstances.
Released: September 7, 2016
Signed: "Justice Lesley M. Baldwin"
Appendix "A"
Nature of the CheerForce Cheerleading Gym Business
[1] The defence testimony offered by Ms. Martel and Mr. O'Brien on this issue was concerning.
[2] None of the coaches at this gym have any certification or special training. There is no governing body that certifies a person to be a coach in the sport of cheerleading.
[3] In Mr. O'Brien's case, as the gym's tumbling coach who was providing semi-private and private tumbling lessons for extra participant fees, he had no employment contract with the gym. He was not paid any employment fees by the gym, although he was compensated for his travel expenses on the out-of-town tournaments.
[4] Despite being in a position where he was chaperoning young girls on these out-of-town tournaments, Mr. O'Brien had never signed any policy documents with respect to the gym's expectations of him.
[5] He did not receive any form of training on any matter pertaining to the gym.
[6] There are no security screening checks of the people who call themselves coaches at this gym.
[7] It appeared from both the defence witnesses that anyone could call themselves a coach at this gym. Anyone could offer to provide private lessons at the gym.
[8] As noted in the body of the trial judgment, the record keeping with respect to lessons at this gym is not complete and accurate.
[9] It seems to me that the parents who are entrusting their children to such a business should be made aware of all of the above. The sport of cheerleading is not like the sport of hockey, skating or swimming, for example. In the sport of cheerleading, terminology from certified sports has been transplanted into the business with very little behind it.
Footnote
[1] M.M.'s mother was a Crown witness at trial. She spoke about how M.M. would go to CheerForce to blow off some of the stress she was experiencing in her life, which included her own diagnosis of terminal breast cancer. Mr. O'Brien and the owners/directors of this gym were aware of this. Sadly, M.M.'s mother passed away before I released my written reason for judgment following trial.