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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Ontario Court of Justice

Date: 2022·09·14 Court File No.: Peterborough 21-0984

Between:

HIS MAJESTY THE KING

— AND —

BLAKE STACEY

Before: Justice S. W. Konyer

Heard on: January 14 and August 12, 2022 Reasons for Judgment released on: September 14, 2022

Counsel: Ms. J. Hiland — counsel for the Crown Mr. D. Lemaire — counsel for the accused Blake Stacey

KONYER J.:

[1] Blake Stacey pled guilty to touching J.G., a 15 year old child, for a sexual purpose between June 1 and August 31, 2020, contrary to s.151 of the Criminal Code. The Crown proceeded by indictment.

[2] At the time, the victim was a high school student in Peterborough. She met Mr. Stacey online and knew him by his online persona, “Tom Smoker”. They soon became Snapchat friends. Mr. Stacey, who was 42 at the time, told the victim that he was a male in his 30’s. She told him that she was only 15 years old. He asked her if she was interested in marijuana, and offered to supply her with marijuana in exchange for sex.

[3] They met four times during the summer of 2020 in a park and engaged in unprotected vaginal and anal intercourse inside his vehicle. In exchange, he provided her with marijuana and psilocybin. In October 2020 she disclosed these incidents to her guidance counselor, who reported them to police. Police obtained Snapchat records and matched the phone number associated to the “Tom Smoker” account to Mr. Stacey. They also confirmed his identity through a photograph of himself that he had shared with the victim.

[4] Mr. Stacey entered a guilty plea to this offence on Jan 14, 2022. He did so in the Peterborough Indigenous Peoples’ Court, and his sentencing was adjourned for several months in order to allow him to commence a treatment plan in that court. I must now sentence Mr. Stacey for this offence. Both parties agree that a low range penitentiary sentence is appropriate. The Crown seeks a sentence in the range of 3 to 4 years, while the Defence seeks a sentence of 2 years imprisonment. The parties are largely in agreement on the ancillary orders that should apply.

[5] Denunciation and deterrence and the primary sentencing objectives in cases involving sexual offences against children. There is a pressing need in all such cases to strongly denounce this harmful conduct and to send a powerful message to the offender and others that sexual crimes against children will always be treated harshly by the courts. It is well understood that offences of this nature always cause profound harms to victims, their families and communities. In order to be fit, the sentence imposed must be proportionate to those harms. While rehabilitative and restorative sentencing goals still play a part in the formulation of a fit sentence, these objectives are of secondary importance to the punitive sentencing objectives that I have identified.

[6] At the end of the day, the sentence I impose must be proportionate to the seriousness of this offence, and to Mr. Stacey’s level of responsibility.

[7] The offence here is manifestly serious. Mr. Stacey exploited the victim’s youth and vulnerability for his own sexual gratification. He engaged in repeated acts of unprotected intercourse in exchange for drugs. He acted with callous indifference to the harm he ought to have known he was inflicting on the young victim. Neither the victim nor her family have chosen to provide a Victim Impact Statement here, as is their right. However, it is beyond dispute that sexual offences against children are always incredibly harmful. Victims often blame themselves and experience ongoing feelings of guilt and shame. They frequently experience an inability to trust, and have difficulty forming healthy intimate relationships later in life. They often engage in substance abuse or self-harm as a means of coping with the harm that has been inflicted on them. They are more susceptible to being revictimized, or to becoming perpetrators of sexual violence themselves. The harms inflicted on child victims of sexual violence are lasting and often life-altering. It is therefore difficult to overstate the seriousness of the offence that Mr. Stacey has committed.

[8] For his part, Mr. Stacey was a mature adult with significant life experience when he committed this offence. His only prior conviction is for a minor offence which is dated and unrelated. He has never been incarcerated previously.

[9] His plea of guilt is a significant mitigating factor. By accepting responsibility for his conduct, Mr. Stacey spared the victim and her family the trauma of reliving these experiences. He also pled guilty at a time when the court’s resources are severely taxed, due in large part to the ongoing effects of the Covid-19 pandemic. Had Mr. Stacey chosen to take this matter to a preliminary inquiry or trial, significant resources would have been consumed trying the case. The court is struggling at present to schedule trials and preliminary inquiries in a reasonable period of time. Mr. Stacey’s decision to plead guilty has had a real and tangible benefit for the administration of justice. In those circumstances, he is entitled to real mitigation on sentence for his decision to plead guilty.

[10] Furthermore, Mr. Stacey’s personal circumstances are mitigating. He is an Indigenous person, and I have the benefit of a Gladue report as well as extensive correspondence from community members and information about healing programs he has engaged in prior to sentencing. Mr. Stacey is a member of the Mohawks of Kahnawa:ke, located near Montreal. His community and family were impacted by the ongoing operation of Indian day schools in the Kahnawa:ke nation, which continued into the late 1980’s. Families and communities were harmed by the operation of these schools, whose purpose was to facilitate policies of cultural genocide towards Indigenous communities. The intergenerational impact of such policies are undeniable, and I take judicial notice of the impacts of these colonial policies on the community where Mr. Stacey was raised.

[11] Mr. Stacey and his siblings attended an Indian day school for their elementary school education. Their school was rife with physical abuse, and Mr. Stacey was the victim of sexual abuse at the hands of a nun who taught at the school. As the author of the Gladue report notes, “Boys who have been sexually abused are more reluctant to disclose the fact that have been abused. They can inflict self-shame upon themselves and may devalue themselves. Boys are more inclined to conceal their physical and emotional trauma thereby making signs of abuse less visible.” I accept that the abuse suffered by Mr. Stacey made him more vulnerable to traumas he experienced later in life.

[12] Despite these early childhood traumas, Mr. Stacey benefitted from a good secondary school education and became deeply involved with his Indigenous heritage. As a young man he led projects to preserve and foster the Mohawk language and traditional culture in his community. He then pursued a career in the music industry in New York for several years. In 2019, his older brother died, which was a very traumatic event for Mr. Stacey, and he began abusing drugs. This was followed by other traumatic events, including the Covid-19 pandemic and a cancer diagnosis for his mother in 2020. Mr. Stacey returned to his home community at that point.

[13] It is clear, therefore, that Mr. Stacey was at a low point in his life due to emotional trauma and substance abuse at the time this offence was committed. His ability to cope with life stressors in a healthy way was undoubtedly impacted by the childhood traumas he suffered, which can be directly linked to colonial government policies. While these factors do not excuse his conduct or lessen the impact on his victim, they do tend to reduce his level of moral culpability to a significant degree.

[14] Since being charged with this offence, Mr. Stacey has taken real steps to further his own rehabilitation. The healing journey he has undertaken includes eliminating alcohol and drugs, living a healthy lifestyle, supporting his parents and engaging in traditional Indigenous healing programs. He has reflected on the wrongfulness of his conduct, has insight into the harm he has inflicted on the victim, and is genuinely remorseful for his actions. As the Supreme Court has held, remorse is a mitigating factor which “gains added significance when it is paired with insight and signs that the offender has ‘come to realize the gravity of his conduct, and as a result has achieved a change in attitude or imposed some self-discipline which significantly reduces the likelihood of further offending’”: R. v. Friesen, 2020 SCC 9, [2019] S.C.J. No. 100, at para. 165. Mr. Stacey, to his great credit, appears to have achieved precisely this result. He is well on the way to healing himself. If Mr. Stacey is healthy, the risk he presents to the community is negligible. In fact, if he is healthy there is every reason to believe that Mr. Stacey can be a productive and contributing member of his community.

[15] Mr. Stacey has accepted the fact that he will be receiving a penitentiary sentence for this offence. In preparation for that result, he has researched and prepared an application for the Waseskun Healing Centre, an Indigenous-led institution run in association with the Correctional Service of Canada. It is designed to facilitate the holistic healing of Indigenous offenders in order to foster their rehabilitation and reintegration into the community. I am certainly prepared to strongly recommend that CSC place Mr. Stacey at Waseskun at the earliest opportunity.

[16] This is a difficult case. The sentence I impose must be primarily concerned with the harms caused to the victim, her family and the community. Punitive sentencing goals, including the need to send appropriate denunciatory and deterrent messages, must take priority over Mr. Stacey’s rehabilitation and restorative sentencing goals. Incarceration is the only tool that is capable of achieving the appropriate balance here. I am satisfied, given the seriousness of this offence, that there is no reasonable alternative to incarceration.

[17] Given the mitigating factors I have identified, I am satisfied that a sentence of 30 months, or 2.5 years imprisonment is sufficient to address the necessary punitive sentencing goals. While this is a lenient sentence given the seriousness of Mr. Stacey’s conduct, it properly accounts for his plea, personal circumstances and rehabilitative efforts.

[18] While serving the sentence, Mr. Stacey is prohibited from communicating in any way with the victim or any member of her immediate family, pursuant to s.743.21 of the Code. He is ordered to comply with the requirements of the Sex Offender Information Registration Act for a period of 20 years. He is ordered to provide a sample of his DNA pursuant to s.487.051 of the Code.

[19] The parties are in dispute as to which protective orders ought to be imposed under s.161(1) of the Code, and the duration of those orders. The Crown seeks orders under paragraphs (a), (a.1), (b), (c) and (d) for life. The defence disputes the necessity of an order under paragraph (c), prohibiting contact with any person under the age of 16. The defence also seeks exceptions to any internet prohibition order under paragraph (d) for legitimate purposes, and argues that any orders under these sections should be for a shorter duration.

[20] Orders under s.161 are not available as a matter of course. They represent significant restrictions on an offender’s liberty, potentially for life. In order to make any of the orders sought, I must be satisfied that Mr. Stacey would represent a significant risk to children upon his release, and that the order would be a reasonable attempt to mitigate that risk. Paragraph (a) prohibits an offender from attending places like parks or playgrounds where children are normally expected to congregate. I am satisfied that Mr. Stacey’s criminal conduct – recruiting and then engaging in sexual acts with a teenager – was the product of his own unresolved childhood trauma coupled with significant life stressors and substance abuse. Given the significant efforts he has made to address the issues underlying this behaviour, I am not satisfied that prohibiting him from attending the places listed in paragraph (a) is necessary for the protection of children in the community. I decline to make that order.

[21] Nor am I satisfied that it is necessary to prohibit him from being in a position of trust as an employee or volunteer towards any person under the age of 16, or from having any contact or communication with persons under the age of 16. I decline to make the orders sought under paragraphs 161(1)(b) or (c).

[22] Mr. Stacey’s conduct did, however, involve repeated communication with his victim using social media and electronic communication, and he did meet with her in person on multiple occasions. In those circumstances orders under paragraphs 161(1)(a.1) and (d) represent a reasonable attempt to mitigate any risk he may pose going forward. He is prohibited from attending within 2 kilometres of the victim’s residence for a period of 10 years. He is also prohibited from using the internet or other digital network to communicate with any person under the age of 16 years, except for members of his immediate or extended family. This order is also for 10 years.

[23] The victim surcharge of $200 applies. Given the length of imprisonment I have imposed, Mr. Stacey has 4 years to pay.

Released: September 14, 2022 Signed: “Justice S. W. Konyer”