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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 210, 211, 212, 212, 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 at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct 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 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.

DATE: 2023 06 21 COURT FILE No.: Region of Niagara – 2111-998-19-WR1455-00

ONTARIO COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

— and —

DAVID KUKOLY

Before: Justice Richard Blouin

Guilty Plea entered on: November 24, 2022 Sentencing Submissions: April 28, 2023 Reasons for Sentence released on: June 21, 2023

Counsel: Kelly Frew ………………………………………………………........ counsel for the Crown Nathan Gorham ……………………………………………........ counsel for David Kukoly

BLOUIN J.:

OVERVIEW:

[1] On November 24, 2022, the defendant entered guilty pleas to five counts of sexual assault. The Crown elected to proceed by summary conviction. Not only were the facts supporting those pleas read into the record, but the defendant admitted similar facts regarding six additional victims. Exhibit 1 in this case was an 18-page agreed statement of facts (the “ASF”). The ASF outlined the defendant’s sideline business as an unregistered massage therapist, and the many instances of unwanted and non-consensual touching, that occurred to all eleven women over a three-year period between 2016 and 2018.

[2] The overview in the ASF provides as follows:

Mr. Kukoly was a police officer with the Niagara Regional Police. In and around 2014, he began operating a massage business in his home. He serviced many customers. Some of his female customers sought his services for sensual massages. He sought to obtain their consent for that specific service through a consent form that referred to “pectoral”, “glutes”, as well as discussion of “California massages”. In addition to the forms, Mr. Kukoly attempted to monitor their body language to ensure they were consenting to the sensual massages. At all points, he believed that the complainants were consenting to the sexual touching described below, but he recognizes, through the admission of these facts and his guilty pleas, that his belief in consent was not reasonable and would not afford a defence under the Canadian law.

On December 19th, 2018, Ms. H. posted a message to a group of mutual friends that she shared with Mr. Kukoly. He was known to her at the time as Dave Allen of “Massages by Dave”. In that message she told them that he crossed a line with her during a massage. She then sent Mr. Kukoly a Facebook message indicating the following:

Hi Dave, I wanted to let you know that I will not be coming back to see you. After having conversations with a couple of friends who have also been to you, it has become clear that I’m not the only person you have crossed the line with. I woke up at 5am this morning shaking and decided that I would message all of our mutual friends to share what happened. As I told you last night, I have been a victim of sexual assault too many times before…and this time, I am going to use my voice to warn others. You mentioned last night that some women come to you for special services and happy endings…which is fine if it is consensual…but it is NOT okay in any way for you to take it upon yourself to push boundaries and touch people inappropriately. Please do not contact me, your apologies will fall on deaf ears…I’ve heard it all before.

The Facebook message that Ms. H. sent out caught the attention of the Niagara Regional Police, who commenced an investigation in which various women reported that they had been touched in a sexually inappropriate manner during massages with Mr. Kukoly.

In the Facebook message involving Ms. H. and other women there was a suggestion that Mr. Kukoly may have video recorded the massages. In fact, this was not true. The use of his laptop in the massage room was strictly for the purpose of playing music.

POSITION OF THE PARTIES:

[3] At the sentencing hearing, the Crown tendered a binder which contained victim impact statements, made Exhibit 3, from seven women victimized by the defendant. Four of them read their statements in open court. The Crown submitted that the gravity of the offences, the breach of trust, and the significant harm caused to the well-being of many women along with the primary sentencing goals of denunciation and deterrence, required a four-year penitentiary sentence. The defendant submitted that his guilty plea, and genuine, but mistaken belief that he had obtained legal consent, should move the sentence into the reformatory range. He argued that a reformatory sentence served in the community with a significant deprivation of liberty would meet the principles of sentencing. I adjourned the matter to consider both parties’ submissions, and to examine the authorities that both provided to me.

[4] The defence submitted the following authorities:

1. R. v. Browne, 2021 ONSC 6097
2. R. v. El-Jamel, 2010 ONCA 575
3. R. v. Giovannelli, 2017 ONCJ 408
4. R. v. Gladue , 1999 Carswell BC 778 (S.C.C.)
5. R. v. Holland, 2022 ONSC 1540
6. R. v. Habib, 2000 CarswellOnt 2863 (C.A.)
7. R. v. Ipeelee, 2012 SCC 13
8. R. v. Killam, 1999 ONCA 2489
9. R. v. Morgan, 2021 ONCJ 100
10. R. v. R(F), 2012 NWTTC 5
11. R. v. RS, 2021 ONSC 2263
12. R. v. Sharma, 2020 ONCA 478
13. R. v. Taipow, 2005 CarswellOnt 5644 (C.A.)
14. R. v. W(J) , 1997 CarswellOnt 969 (C.A.)

[5] The Crown submitted the following authorities:

1. R. v. A.J.K., 2022 ONCA 487
2. R. v. Baltazar, 2021 ABQB 879
3. R. v. Friesen, 2020 SCC 9
4. R. v. J.J., 2022 SCC 28
5. R. v. Shrivastava, 2019 ABQB 663

PURPOSE AND PRINCIPLES OF SENTENCING:

[6] Section 718:

718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, 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 following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[7] Section 718.04:

718.04 When a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances — including because the person is Aboriginal and female — the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.

[8] Section 718.1:

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[9] Section 718.2:

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor,

(ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family,

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,

(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,

(iii.2) evidence that the offence was committed against a person who, in the performance of their duties and functions, was providing health services, including personal care services,

(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization,

(v) evidence that the offence was a terrorism offence,

(vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act, and

(vii) evidence that the commission of the offence had the effect of impeding another person from obtaining health services, including personal care services,

shall be deemed to be aggravating circumstances;

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

AGGRAVATING FACTORS

[10] The offences were perpetrated on multiple women, sometimes more than once, over a three-year period. The victim impact statements outlined experiences ranging from concerning to harrowing. There is no doubt that these offences had a significant impact on the psychological health of many [s. 718.2(iii.1)].

[11] In my view, the defendant abused his position of trust in relation to the victims. As a massage therapist, those women were literally in the hands of the defendant in a closed, isolated room [s. 718.2(iii)].

[12] While most of the unwanted touching occurred on the women’s bodies around and up against sex organs, one violation involved digital vaginal penetration.

[13] For the reasons discussed above, the women victimized were statutorily recognized as vulnerable [s. 718.04].

[14] The defendant was a fully employed police officer. The community expects, and has a right to demand, that officers obey the law.

MITIGATING FACTORS

[15] The defendant is a first offender. He is 54 years of age. He has spent his adult life as a police officer, and, not surprisingly, has no prior criminal record. He was suspended from his job as a result of these charges.

[16] The defendant entered guilty pleas, and admitted facts connected to the abuse of eleven women. This is, in my view, a significant mitigating factor. The trial time saved can be measured in weeks or months, not days. The trauma that would have been visited upon each victim to have been required to re-live their frightening experiences, and be cross-examined on them by defence, is very difficult to measure. But it is undoubtedly huge.

[17] I need to say more regarding the context in which the defendant entered pleas of guilt. This matter was not pre-tried by me. The defendant stepped up to the plate, and pleaded guilty knowing that a four-year jail sentence was a realistic possibility. This was not a case where he sought assurances that a particular sentence would likely occur if he pleaded guilty.

[18] Importantly, the reality of the defendant’s former career – albeit aggravating in the respect mentioned above – is mitigating as well. Firstly, he has given 30 years of professional life to serving the community. Secondly, because of that service, he faces extraordinary risks serving a sentence in a custodial institution. He would be an obvious target for some other inmates who do not consider police officers to be their friends. In my view, the potential risk of harm, and perhaps serious harm, is obvious should he be ordered to serve his sentence in a jail. He was also diagnosed with high blood pressure in 2018.

[19] The defendant has been on bail since 2019, without incident.

[20] And finally, I accept the argument of the defendant that his moral responsibility is diminished somewhat by the agreed upon position that he genuinely thought he had consent. He recognizes now that he was wrong, and some might argue that his original position was tone deaf and self-serving. But that is what both parties agreed to in the ASF. In my view, this should be recognized when I consider the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. In my view, while culpable, the defendant’s degree of responsibility for these offences is below that of one who is clearly aware he is offending, but does so anyway.

CONDITIONAL SENTENCE

[21] Section 742.1:

742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under section 742.3, if

(a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2;

(b) the offence is not an offence punishable by a minimum term of imprisonment;

(c) the offence is not an offence under any of the following provisions:

(i) section 239, for which a sentence is imposed under paragraph 239(1)(b) (attempt to commit murder),

(ii) section 269.1 (torture), or

(iii) section 318 (advocating genocide); and

(d) the offence is not a terrorism offence, or a criminal organization offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years or more.

CONCLUSION:

[22] This is a most difficult case. There exist significant aggravating and mitigating factors, such that examining other decided sentencing cases relative to this case is a forbidding task. Keeping in mind that the predominant sentencing principle considered here must be denunciation and deterrence, I must feel comfortable that whatever sentence I impose, denunciation and deterrence are met, even when I take into account the principle of restraint.

[23] For example, when I look at recent cases R. v. Holland, 2022 ONSC 1540, and R. v. Browne, 2021 ONSC 6097, which involved sentencing offenders that perpetrated digital penetration or, in the case of Browne, penetration by a vibrator, an application of the predominant sentencing principle of denunciation and deterrence by two experienced Superior Court of Justice judges still allowed for the imposition of a conditional sentence. This even though, in both cases, there was no guilty plea since the defendants took their matters to trial.

[24] After weighing all of the relevant factors, I conclude that the appropriate sentence here is one of 18 months of custody. As a result, applying the provisions of s. 742.1, I conclude that the sentencing principles set out in ss. 718 to 718.2 could be met by a sentence that is served in the community. But it will only meet those principles if it involves a significant deprivation of liberty. In effect, house arrest for the entire term. And given that the 18 months sentence will not be served in a custodial facility, I feel the appropriate term to be a conditional sentence of two years less a day.

[25] I must say, at this point, that the predominant mitigating factor that allowed me to conclude the conditional sentence to be appropriate is the pleas of guilt. Many of the other cases cited involve sentencing after a trial. Here, the defendant did not require any of his victims to relive, in a court setting, his crimes upon them. In doing so, he gave up any chance that a court would accept at a trial that he believed he had obtained consent. Let me be clear. I don't think that chance was high, but it existed, and he forwent it. In addition, he entered guilty pleas without asking the sentencing judge in a pre-trial hearing what sentence was likely to be imposed. Finally, on the issue of his guilty pleas, had it gone to trial, this case would have required weeks or months to hear all of the evidence.

[26] In addition, I took into account this is a man with a long record of service to the community, who, if allowed to serve the sentence in the community, will be able to perform a caregiver role to his stepchildren. That, in my view, is significantly preferable to requiring him to spend many of the 18 months in a jail cell, where his life would, in my opinion, be in significant danger.

[27] But again, the only way my sentence meets the test of denunciation and deterrence in a non-institutional framework is if it involves a significant deprivation of liberty. That means that Mr. Kukoly is only allowed to leave his residence for two reasons: if a medical emergency regarding himself or his family occurs, or as permitted in writing by his conditional sentence supervisor.

[28] I will also impose a three-year non-reporting probation with only a term that the defendant have no contact with the victims. Pursuant to s. 490.013, the defendant will be placed on the SOIRA registry for 10 years. This offence is a primary compulsory DNA databank offence, so I also make that order. Also, a s. 110 order will be made for a period of five years.

Released: June 21st, 2023 Signed: Justice R. Blouin