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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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

(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 victim of the right to make an application for the order; and

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

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

Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2023 07 12 COURT FILE Nos.: Newmarket 18-10279 19-02505 19-02970 19-00330

BETWEEN:

HIS MAJESTY THE KING

— AND —

BRANDON MACKINNON

Before: Justice A.A. Ghosh

Heard on: May 15, 2023 Reasons for Judgment released on: July 12, 2023

Counsel: A. Khan, counsel for the Crown D. Mideo, counsel for the defendant Brandon MacKinnon

GHOSH J.:

[1] Brandon MacKinnon pleaded guilty before me to several, primarily sexual, offences against four victims: “Sexual Interference”, “Extortion”, “Sexual Assault” (x2), “Possession of Child Pornography” and “Voyeurism”. He admitted that he sexually assaulted, harassed and extorted 15-year-old AS. He agreed that he committed the offence of voyeurism by video-recording unsuspecting women in their home while they were in vulnerable or compromising states. Finally, Mr. MacKinnon admitted to videorecording his sexual assault of KJ while she was clearly incapacitated by alcohol.

[2] The Crown has submitted for a global penitentiary sentence of eight years. The defence has submitted for a sentence of four years, less quantified mitigation for the impact of strict bail conditions. These are my final sentencing reasons.

Circumstances of the Offence

AS, Child Victim – Illegal Sexual Relationship and Forced Anal Intercourse:

[3] AS was 15 years old when Mr. MacKinnon started an illegal sexual relationship with her. The relationship lasted about a year. He was a friend of her older brother. The victim and offender also worked together at a grocery store.

[4] In the summer of 2016, Mr. MacKinnon initiated sexual intercourse with AS. She was 15 years old then and he was 21 years old. AS described the relationship that followed to be very sexually oriented. She felt “pressured and uncomfortable” engaging in many of their sexual activities. They would have oral, vaginal, and anal sex.

[5] She found anal sex to be physically painful, and she had asked him during several distinct encounters to stop. Mr. MacKinnon would get angry when she refused and would ultimately force her to engage in anal sex.

[6] AS lost her virginity to the offender. She also became pregnant with his child at some point. He took her to have the pregnancy aborted. Mr. MacKinnon persisted in wanting to have sex with her after the procedure, despite her physical discomfort from the abortion.

[7] By the end of summer of 2017, AS decided to end the relationship. Mr. MacKinnon did not take this well. Mr. MacKinnon was upset about this break up and continued to pursue sex from the victim. She rejected these advances. Mr. MacKinnon would attempt to make her feel guilty for denying him these requests for sex. It worsened.

Criminal Harassment of AS:

[8] Upon the relationship dissolving, Mr. MacKinnon became aggressive and began to follow and harass AS when she walked home from school or around the neighbourhood. As he followed her, he would call her vulgar names, including “bitch”, “slut” and worse. She felt unsafe and would try to run away when she saw him.

[9] This criminal harassment intensified in January 2018, months after she had left him. Mr. MacKinnon would often wait for AS around the townhouse complex where she lived. He would lurk in a neighbour’s yard or behind a shed and expose himself to her as he masturbated. AS videorecorded one of these encounters. She would also see the offender masturbating on a bench near a children’s park.

[10] Mr. MacKinnon also harassed AS at the grocery store where they both worked. He would make unsettling comments to her at the breakroom. He would follow her around. One time, he blocked her at the at the doorway of the breakroom and prevented her from leaving. He then yelled at her, calling her insulting names. She managed to escape to the washroom and stayed there for the remainder of her break.

[11] On another occasion at work, Mr. MacKinnon followed AS to the break room and exposed his genitals to her. Many of the more harrowing incidents were reported to her manager, and she filed complaints with the HR department.

Extorting Sex from Child Victim Using Secretly Recorded Intimate Images of Her:

[12] In November 2017, Mr. MacKinnon showed AS sexually explicit and nude photographs of her engaging in sexual activity. Mr. MacKinnon told her that if she had sex with him that he would delete the pictures. He also threatened that if she refused to have sex with him that he would share the images on social media and distribute them to her family and friends.

[13] Fearing these threats, AS had sex with Mr. MacKinnon at his residence. Throughout the course of their one-year relationship, AS never consented to having any sexually explicit recordings made of her. She was unaware of the images until Mr. MacKinnon threatened her with them. Despite agreeing to delete the images in exchange for sex, Mr. MacKinnon did not do so.

[14] In December of 2017, Mr. MacKinnon again showed AS her intimate images. Mr. MacKinnon threatened yet again to distribute them if she did not engage in sexual acts with him. As before, Mr. MacKinnon told her that he would delete the photographs if AS engaged in sexual acts with him. Due to these threats and promises, AS was pressured into having sex with Mr. Mackinnon at his residence.

[15] Following this incident, AS incorrectly believed that the sexually explicit images of her were deleted. In November of 2018, a grocery store co-worker told AS that Mr. MacKinnon had shown him four or five photographs depicting AS’s nude body. The witness became concerned and did not know how many people had seen these images.

Arrest And Discovery of Child Pornography:

[16] On November 23, 2018, AS provided a statement to the police outlining the offender’s criminal conduct towards her. On December 11, 2018, Mr. MacKinnon was arrested, and his cell phone was seized incident to arrest.

[17] York Regional Police obtained search warrants for Mr. MacKinnon’s cellular device. In addition to the nude photographs of AS, police located:

• A video of Mr. MacKinnon engaging in sexual intercourse with a woman who was clearly unconscious (identified as KJ);
• A video of Mr. MacKinnon masturbating outside of a neighbour’s residence where a female is depicted, through her glass patio door, bending over and picking up items as well as additional images of a female in the same residence cleaning the basement (identified as twin sisters);
• 500 images of child pornography.

KJ Victimized – Videorecording Sexual Assault of Incapacitated Victim:

[18] KJ was identified as the unconscious woman being sexually assaulted by Mr. MacKinnon in the video. They were co-workers at the grocery store. KJ lived with her common-law spouse and shared two sons with a past partner.

[19] Mr. MacKinnon stayed at KJ’s house for five days in October of 2018. Her spouse was in the hospital at the time. Mr. MacKinnon also stayed with her for another 2-week period. He would usually sleep in her son’s bedroom. The relationship was completely platonic to KJ.

[20] During her police interview, KJ identified herself as the prone woman in stills of the video that had been found on Mr. MacKinnon’s phone. They images were taken from her son’s bedroom. KJ was told that the video depicted Mr. MacKinnon sexually assaulting her while she was unconscious. She began to cry. She did not recall this.

[21] KJ knew this happened while her partner was in the hospital in October of 2018. She recalled that she ate perogies with Mr. MacKinnon that night. Both had been drinking heavily and had liberally poured drinks for themselves. They became very intoxicated. KJ did not recall what followed.

[22] It is agreed that Mr. MacKinnon at some point went to bed in one of the bedrooms and that KJ soon joined him. While both were lying in bed, they discussed the nature of their friendship. Mr. MacKinnon asked if KJ would like to engage in intercourse. KJ apparently consented.

[23] Both parties began to engage in touching each other over top of their clothing. Soon KJ lost consciousness. Despite her obvious incapacitation, Mr. MacKinnon proceeded to engage in vaginal intercourse with her. He also videorecorded the sexual assault.

[24] Upon his arrest for this sexual assault, Mr. MacKinnon confessed that he had sexual intercourse with KJ, knowing that she was unconscious at the time.

Twin Sisters AZL and AML – Victims of Voyeurism:

[25] Through the authorized search of Mr. MacKinnon’s cell phone, police located video footage of a female bending over and picking things up from the floor of her home. It was clearly filmed through a glass patio door from the exterior of the residence. Mr. MacKinnon made the recording and had been masturbating during the filming.

[26] It was later discovered that this residence was in Mr. MacKinnon’s neighbourhood and was occupied by identical twin sisters, AZL and AML. Both sisters were captured in separate videos of them inside the home, all filmed by the offender from outside.

[27] AZL told police that she had seen Mr. MacKinnon walking around in a bathrobe in the townhouse complex several times. She also once saw him walking naked from the waist down. Mr. MacKinnon had twice been inside their residence, as they granted his request to use their shower. These incidents were disconcerting to the victims.

Child Pornography:

[28] York Regional Police Investigators located 500 child pornographic images on Mr. MacKinnon’s cellular device. These images consisted of children ages 3-14 years and depicted their private parts.

[29] Some of the images depicted children alone and others depicted children interacting with adults.

Victim Impact Evidence:

[30] AS, now a young adult, did not provide victim impact evidence. However, harm must be inferred in the circumstances. It cannot be readily quantified how this confluence of prolonged and varied offending will painfully impact her. I acknowledge that it will. [1]

[31] KJ was “torn to pieces” in learning that she had been sexually assaulted while unconscious. Initially she was shocked and numbed at the discovery. After that, she has suffered bouts of anxiety and depression. She trusted the offender, let him into her home, and in return she was sexually violated. KJ no longer felt safe in her own home.

[32] In her own words: “I couldn’t believe that someone I trusted had broken that trust. I was sad. I was angry. I was mad. I felt broken… What happened to me doesn’t expire. It will stay with me. It’s now part of my identity. It has forever changed the way I carry myself and the way I live my life.”

[33] AML was one of the twin sisters victimized by Mr. MacKinnon as he videorecorded them in their home as he masturbated. As a result of this offence, she no longer feels safe in her home or her neighbourhood. She is concerned for the safety of her family. She has seriously considered moving away. This has profoundly impacted her life and sense of well-being.

Circumstances of the Offender:

[34] Mr. MacKinnon is now a 28-year-old, first time offender. He was victimized himself sexually in the past, which has clearly informed his offending. He has been struggling with low mood, as informed by the victimization he has both suffered and administered. He self-medicated these issues with alcohol and drugs over these past few years.

[35] At the time of the offending, Mr. MacKinnon was coping poorly with the separation of his parents. His mother struggled with depression and had been sexually abused herself. The parents argued a lot, often about Mr. MacKinnon’s behaviour. He was unkind and abusive to his two younger brothers.

[36] The extended time on a house arrest release order has been very difficult for him. While the pandemic provided some limited opportunities for virtual counselling, it has not been easy to find programs. He has completed some work with Addictions Services of Central Ontario and has participated in assessments completed by CAMH and Dr. Goldensen.

[37] Whatever insight was germinating throughout the assessment processes, clearly in its infancy at the time, Mr. MacKinnon is now able to thoughtfully express meaningful insight into his offending. In an eloquent letter he read in court, the offender is deeply remorseful for his offending. He is sorry for the impact and pain he has caused the victims and his loved ones. The meaningful support of a reformed offender, Mr. MacGuire, has helpfully shaped his developing perspective.

Analysis

Principles of Sentencing:

[38] The principles of sentencing are codified in section 718 of the Criminal Code. For sexual offences, especially those involving children, deterrence and denunciation remain the paramount sentencing objectives. Incarceration is usually required.

[39] The most concerning offences involved the prolonged sexual abuse control of a child, confirming the primacy of deterrence and denunciation: s.718.1. For youthful, first-time offenders such as Mr. MacKinnon, rehabilitation, reintegration, and restraint must be considered in determining a custodial term.

[40] Section 718.1 of the Criminal Code directs that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The principle of parity codified in s. 718.2 (b) must also be considered.

Aggravating, Mitigating and Contextual Factors

[41] The following mitigating or contextual factors have been established:

(i) Guilty Plea: Mr. MacKinnon expressed through counsel early on that he wished to resolve his charges without a trial. The delays in this case cannot be directly attributed to him. He was genuinely remorseful. The plea prevented the victims from testifying and afforded them some agency to provide impact statements, largely on their own terms. This has value.

(ii) Forensic Risk Assessment: the defence provided a risk assessment report from a forensic psychologist, Doctor Goldenson. Mr. MacKinnon was deemed to have positive rehabilitative prospects, rooted in his obvious intelligence and capacity for insight into his offending.

He had admitted for the first time that he had been sexually abused repeatedly in the past, and this informed his hypersexuality and impulse control issues. He met the diagnostic criteria for post-traumatic-stress disorder and borderline personality disorder. The offender had been self-medicating with alcohol and cannabis and met the criteria for substance use disorder.

(iii) Age Gap with Child Victim: While AS was only 15 years old, Mr. MacKinnon was a relatively young adult when he offended against her. I do not find this mitigating, but it is a contextual factor worthy of note.

(iv) Counselling: Mr. MacKinnon completed a regimen of counsel with Addiction Services of Central Ontario (ASCO).

(v) Support in the Community: Mr. MacKinnon has a great deal of support from his parents, who have been present throughout the sentencing process. His father has acted as surety and has observed the steps taken to curtail drug and alcohol use and his son’s developing insight into his offending. His mother observed positive changes while he had been on bail as well and observed her son to pull back from self-medicating his trauma and reconnecting with his faith.

Counsel connected the offender with an elderly reformed offender, Mr. Robert Maguire. This person became highly influential to Mr. MacKinnon and a positive force in his life since he was charged. Mr. Maguire observed through his lens of experience and reform that the offender was changing and improving. Mr. MacKinnon credited Mr. McGuire in helping guide his evolving insight and perspective into his offending, and to recognize the need for sustained, prosocial changes. There is cause for optimism regarding the prospect of rehabilitation and a prosocial life upon release from custody.

[42] The following aggravating facts have been established beyond a reasonable doubt:

(i) Sexual violence against child intimate partner: The forced anal intercourse of a child is a significant aggravating factor. It is also aggravating that they were in an illegal intimate partner relationship, and he abused this position of trust. [2] When she finally ended the illegal sexual relationship, Mr. MacKinnon continued to criminally harass and extort sex from her.

(ii) Making Surreptitious Child Pornography and Showing of Intimate Images: Mr. MacKinnon threatened to distribute the intimate images of AS if she did not have sex with him. He also promised to destroy them. After extorting sex, he violated both commitments. The offender still showed the images to a co-worker, and he failed to destroy them as promised. On top of that, this was surreptitiously made child pornography, a highly aggravating fact.

(iii) Videorecording the Sexual Assault Against an Incapacitated Victim: It is troubling enough that Mr. MacKinnon sexually assaulted KJ while she was unconscious in the safety of her own home. He also videorecorded the crime.

Discussion Overview – Totality and Discrete Offending:

[43] Mr. MacKinnon committed a variety of sexual and exploitative offences against girls and women over the course of some years. While the principles of restraint and totality are central features in the analysis, assessing a proportionate sentence for the individual offences and arriving at a fit final quantification of custody is vital.

[44] Mr. Mackinnon admitted to sexually assaulting, extorting, and criminally harassing a 15-year-old girl repeatedly over an extended period. This is undeniably the gravest series of offending he has acknowledged and requires a significant penitentiary sentence. It is agreed that the custodial term for the distinct child pornography offence must be imposed consecutively to the custodial sentence for the child sexual offences committed against AS. [3]

[45] While unstated, it is likely this requirement for consecutive sentences for the child sexual offences informed the generous Crown concession that the separate sexual assault committed against KJ could be served concurrently to the child abuse offences relating to AS. A filmed sexual assault committed against an incapacitated woman would otherwise independently require a distinct and consecutive penitentiary sentence.

[46] Were it not for the equitable Crown approach to concurrent and consecutive sentences, I likely would have been required to impose consecutive sentences for the offences against AS and KJ. They are otherwise distinct offences with little connection beyond the sexual violence: s.718.3(4) of the Criminal Code.

[47] Finally, I support the agreement that the voyeurism offence should result in a concurrent, low reformatory sentence. However, there is a similarly compelling argument that a strict application of the law would also require a consecutive term.

Sexual Offending Against a Child:

[48] Mr. MacKinnon commenced an illegal sexual relationship with then 15-year-old AS. During their time together, along with other manipulations and pressures, he forced anal intercourse on her repeatedly. He also pressured her to have sex at other times. When she ended the sexual contact, he criminally harassed her with a startling variety of abusive and intrusive conduct. He also extorted sex by threatening to distribute sexually explicit images of her that he had illegally and surreptitiously produced and possessed.

[49] Our Supreme Court in Friesen recently discussed our contemporary understanding of the harms of sexual offending against children and that an “upward departure” from previous sentencing ranges was required. Advertence to some passages from that ruling are instructive.

[50] Drawing from paragraphs 51-2:

“The prime interests that the legislative scheme of sexual offences against children protect are the personal autonomy, bodily integrity, sexual integrity, dignity, and equality of children. This Court recognized the importance of these interests in Sharpe in the context of the production of child pornography. As this court reasoned, the production of child pornography traumatizes children and violates their autonomy and dignity by treating them as sexual objects, causing harm that may stay with them for their entire lifetime…

“We would note that the personal autonomy interest carries a somewhat different meaning for children than it does for adults. Children under the age of 16 of course lack the capacity to consent to sexual contact with an adult. As we will explain in detail later in these reasons, a child's participation in such contact is not a mitigating factor and should never be equated to consent. Instead, personal autonomy refers to a child's right to develop to adulthood free from sexual interference and exploitation by adults.”

[51] Over the decades, Parliament has repeatedly increased the maximum sentences for such sexual offences against children to 14 years. This signals Parliament’s intention to increase sentences for sexual offences against children from those imposed in the past and Supreme Court has confirmed that sentences are expected to increase accordingly. Sentences before the increased and current maximum sentence must be approached cautiously, at a minimum. [4]

[52] Obviously, sexual violence against children must be treated more severely than that committed against adults. Forced anal intercourse against an adult would attract a deterrent penitentiary sentence. Mr. MacKinnon did this and much more against the child victim.

[53] To punctuate the presumption of a sentence of five or more years for the AS offences, I draw from the well-travelled Court of Appeal decision from 2002 in D.D. [5] This ruling was issued two decades before Friesen, and before the successive increases in the applicable maximum sentences:

(A)s a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms. When the abuse involves full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats of physical violence, or other forms of extortion, upper single digit to low double digit penitentiary terms will generally be appropriate. Finally, in cases where these elements are accompanied by a pattern of severe psychological, emotional and physical brutalization, still higher penalties will be warranted.

[54] Regardless of any position of trust, Mr. MacKinnon forced anal penetration repeatedly over the course of a year against the 15-year-old victim. There were other less jarring examples of coercion and manipulation throughout the illegal sexual relationship.

[55] When she left him after a year of this, he criminally violated her private spaces of neighbourhood and work with sexual aggression and emotional violence. Most brutally, he weaponized his surreptitiously recorded child pornography of her to extort more sex after she ended the criminal relationship.

[56] Not only did he illegally extort sex from her this way, but he also violated his illicit contract to hide and destroy the images in exchange for sex with a child. Instead, he retained the child pornography he secretly made of her and then showed it to others.

[57] This confluence of child sexual offending and exploitation clearly warrants a penitentiary sentence of five years or more. Mindful of totality and the thoughtful approach taken by the Crown, I will impose a sentence of five years for the offences against AS. This is restrained.

Videorecorded Sexual Assault Against KJ, who was Incapacitated by Alcohol:

[58] KJ only saw Mr. MacKinnon as a friend. Apparently, she flirted with him and they discussed having sex before she became incapacitated. KJ does not recall that. She drank with him until she passed out. While KJ was unconscious, Mr. MacKinnon forced vaginal intercourse on her prone body. He videorecorded the sexual assault.

[59] While I accept that KJ verbally agreed to sex while she was seriously intoxicated, I find this to be a contextual rather than a mitigating fact. By the time Mr. MacKinnon began to force vaginal intercourse on her, she was clearly unconscious. It is highly aggravating that he videorecorded the sexual offence while it was objectively apparent that she was incapacitated by alcohol.

[60] I am persuaded that this offence requires a sentence of three years, mindful of the circumstances of the offender and the mitigating factors present. There is recent appellate support for a custodial term of this length for analogous facts. [6]

[61] Given the Crown position that this sentence should be served concurrently with a completely distinct sequence of child sexual offending, I need not say more. However, the quantification of the warranted custody for this offence informs the overall fitness of the final custodial term.

Child Pornography Offence:

[62] Police searched the cell phone possessed by Mr. MacKinnon. They identified 500 images of child pornography on the device. The images included the depiction of the genitals of children aged 3-14 years of age. Some of the images depicted children interacting with adults in exploitative ways.

[63] The Crown submits the appellate law supports a three-year sentence. The recent Court of Appeal decision in Brown [7] is instructive, although I accept that the sentencing in that case was imposed after trial. The Court noted that “500 files is also a very large quantity warranting a significant sentence” and upheld the sentence of three years. The defence submits that 12 months is appropriate in this case.

[64] I agree that the appellate law for a collection of this scope and nature warrants a custodial term in the three-year range. Mindful of totality, I will impose a 2.5-year consecutive term for this offence.

Voyeurism Offence:

[65] Mr. MacKinnon admitted to videorecording women inside of their home, while he masturbated off the property some distance away. This was highly intrusive, violating the sanctity of the home and the sense of security and safety of the victims. [8]

[66] I appreciate the context that Mr. MacKinnon never entered the home, but this does not meaningfully attenuate the gross invasion of privacy. The Crown has asked for a six-month concurrent sentence, while the defence has submitted for three months.

[67] In the circumstances, I am persuaded that a six-month sentence is appropriate.

Mitigation for Time Spent on Strict House Arrest Release Order:

[68] Mr. MacKinnon has been on a strict “house arrest” bail for approximately 51 months, well over four years. He has not worked during that time and accessed limited counselling resources virtually after the pandemic struck. There is evidence that this time on bail was very difficult for the offender.

[69] Our Court of Appeal in Downes [9] has directed that “time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance. However, like any potential mitigating circumstance, there will be variations in its potential impact on the sentence and the circumstances may dictate that little or no credit should be given for pre-sentence house arrest.”

[70] Defence counsel conceded there is a range of mitigation arising from the impact of strict bail conditions. He relies on decisions from our court supporting 0.5 days mitigation for each day the offender was subject to strict bail conditions. [10] In doing so, he submits for two years of mitigation. While soundly reasoned, those decisions pre-date more recent appellate guidance.

[71] Quantified mitigation arising from harsh pre-sentence circumstances can risk skewing the final calculation and reveal “an unwarranted significance in fixing the ultimate sentence imposed.” [11] While our Court of Appeal made this observation in Marshall regarding harsh conditions of pre-trial custody, it is arguably more apt in determining any mitigation for the impact of harsh bail conditions. After all, “bail is not jail”. [12]

[72] I have considered the mitigating factor of the negative impact the time on restrictive bail conditions has had on Mr. MacKinnon. I appreciate the pandemic intervened and most of us had our movements controlled or restricted at various times.

[73] Some delay was informed by the reasonable defence pursuit of a forensic risk assessment. However, significant procedural delay was informed by the assigned Crown missing several scheduled judicial pre-trials. This delay was compounded by the original Crown’s insistence on a Gardiner hearing to establish certain aggravating facts at sentence. That is the Crown’s prerogative.

[74] I do find that Mr. MacKinnon had reasonably offered early in the process to acknowledge representative charges and facts that largely reflected his moral responsibility for the overall offending. This observation is punctuated by the Crown office later reassigning the case, with the newly assigned Crown promptly abandoning the Gardiner hearing and collaborating with defence counsel on an “Agreed Statement of Fact”. While I am not critical of matters of Crown discretion, the final approach was sound.

[75] Defence counsel proposed a half-day credit for the impact of strict bail for over four years. This would warrant a quantified deduction of two years. In my view, this would improperly skew the overall sentence, considering the grave offences and his moral responsibility for them. The cases in support of such mitigation are dated, and notably predate the Supreme Court’s recent direction on sentencing child sexual offenders in Friesen.

[76] For the reasons noted, I accept some mitigation is warranted and should be quantified in this case. The offences against the AS, the child victim, will be accordingly mitigated by nine months. There is recent appellate support for mitigation of similar breadth and quantification. [13]

Conclusion

[77] This global sentence could reasonably have been higher than the Crown position of eight years. As I observed during submissions, Mr. MacKinnon could also have been subject to a dangerous offender application and an indeterminate sentence. Fortunately for him, these rhetorical observations are merely illustrative of the gravity of the offences and his moral responsibility for them.

[78] A global sentence of 7.5 years will be imposed, less quantified mitigation for the impact of harsh conditions of bail. The time ultimately to be served will be six years and nine months, to be apportioned as follows:

i. Five years concurrent for the counts relating to then child-victim, AS * Less nine months quantified mitigation for time on restrictive bail * Four years and three months to be served (1,550 days) ii. Three years concurrent for the sexual assault committed against KJ (1,095 days) iii. Six months concurrent for the voyeurism offence (180 days) iv. 2.5 years consecutive for the child pornography offence (910 days consecutive) v. Total time remaining to be served: 2,460 days

[79] I will recommend that Mr. MacKinnon receive counselling related to “sexual offending relapse prevention”. During the custodial term, he is not to contact or communicate directly or indirectly by any means with the named victims, pursuant to s. 743.21(1) of the Criminal Code.

[80] I will impose a DNA order for the primary designated offences of “Sexual Assault”, “Sexual Interference”, “Extortion” and “Possession of Child Pornography”.

[81] I will also impose a s.109 weapons prohibition for life for the eligible offences. The victim fine surcharges are waived as an undue hardship, given the offender’s limited financial means and the commencement of a significant custodial term. My thanks to counsel.

Released: July 12, 2023 Signed: Justice A. A. Ghosh

[1] R. v. Friesen, 2020 SCC 9, paras. 79-84 [2] R. v. A.J.K. 2022 ONCA 487, paras. 76-77 [3] Criminal Code, s.718(7) [4] Friesen, para. 109 [5] R. v. D.D., [2002] O.J. No. 1061 (C.A.), para. 44 [6] R. v. J.K. 2021 ONCA 256 (C.A.) [7] R. v. Brown, 2020 ONCA 516, para. 14 [8] R. v. Rhodes, 2022 ONCA 705, para. 19 [9] R. v. Downes, [2006] O.J. No. 555 (C.A.), para. 33 [10] R. v. Thompson, 2010 ONCJ 107; R. v. Acorn, 2010 ONCJ 142 [11] R. v. Marshall, 2021 ONCA 344, para. 53 [12] R. v. Ijam, 2007 ONCA 597 (C.A.), para. 36 [13] R. v. Green, 2023 ONCA 317 (C.A.)