SUPERIOR COURT OF JUSTICE

Court File No.: 12-1492

B E T W E E N:

HER MAJESTY THE QUEEN

v.

J.M.

R E A S O N S F O R S E N T E N C E

BEFORE THE HONOURABLE JUSTICE G. MULLIGAN

on Thursday, November 07, 2013, at PETERBOROUGH, Ontario

APPEARANCES:

K. Eberhard Counsel for the Crown
D. McFadden Counsel for J.M.

THURSDAY, November 07, 2013

THE COURT: J.M., would you like to say anything to the court?

J.M.: Yes, please. Your Honour, thank you for this opportunity to speak. Let me describe myself a little bit to you. I was born and raised on a farm where you had to work hard and everyone in the family was expected to pull their weight. One of the most important things my parents taught me was to be honest. I still remember my father telling me always tell the truth. He said you can never remember a lie if you tell one. I sincerely believe this. Numerous times I’ve corrected store clerks who had short-changed themselves. Last month I stopped my truck on Hunter Street to push a little old lady whose battery had died on her power cart off the street to safety. I remember a few years ago, I was interviewed by the local paper after someone in a condo observed me staking off a killdeer nest on a busy construction site so the eggs would hatch. I’ve always been there for my elderly neighbour when she had run into trouble with power outages and basement flooding. I’ve always lent a helping hand when I could. I remember a meeting with Mr. McFadden where he said, J.M., you are too honest. I asked the owner of the company I work for a few years ago, who used to be a competitor of my father and myself, why he rarely comes around to

constructions sites I manage. He told me, J.M., I know when you are in charge everything is looked after and there is no need for me to come around. I feel honoured to be his only employee of over 200 people who has been given a company credit card. I take great pride in doing my job right the first time. My men often ask, why do we waste so much time doing a project. I tell them, we get paid to do the job, so let’s do it right the first time. Regarding the mischief charge, I was a passenger in a car once that rolled over in a swamp. I still remember scrambling to get out of that car. The instant where I pulled the emergency brake on the car with K.F.2, while she sped down slippery streets driving through stop signs reminded me of that earlier experience. I do feel sorry for B.F., what she is going through right now. I do not deny the fact that we had a three or four month affair. It was very poor judgment on my behalf and I sincerely wish now I could erase this fact from my past, and again the claim that she is afraid at nights and concerned for her health troubles me. I’ve never threatened to harm her in any way and she should not fear me. I do not even know where she lives and I do not care to know. Ms. Eberhard mentioned the fact that it appeared that I had not suffered through any of this. That is the farthest from the truth. I ended up with a three hundred and fifty thousand dollar mortgage from this after living mortgage-free for over ten years. I have let my crew down by having them take numerous days off while I have had to attend court. The general feeling of shame I endure from being accused of a sexual offence, which carries a strong embarrassment for me. I feared for my own personal safety after K.F.1 threatened to have my house burned down if I did not pay ten thousand dollars to send Brit back to school. I would call that extortion. If jail time is imposed, I am sure my crew will be laid off. I know for a fact that my employer’s business will suffer without me as I have always been given the toughest and almost impossible projects to deal with. I will not be allowed to visit my favourite sister in Phoenix. If allowed house arrest, I will abide by whatever the courts ask of me. Also if jailed, I will not be able to continue snow plowing for all of the 50 or so local loyal condominium customers I have served in the past 28 years. Thank you.

THE COURT: I have heard your comments. Much of what you say is echoed in the pre-sentence report and I have considered that information. I will not consider any issues that you have raised that might have to do with the factual determinations already made with respect to the verdict, and I understand that you now have indicated that you feel some shame and have suffered, but I know that these admissions are very late in the process. So I will read my sentencing decision now.

R E A S O N S F O R S E N T E N C E

MULLIGAN, J. (Orally):

This matter proceeded by way of a three-day non-jury trial with respect to six counts on an indictment. For reasons given, J.M. was found not guilty of Count 2 (sexual assault), Count 3 (uttering a threat), Count 4 (uttering a threat), Count 5 (sexual assault). J.M. was found guilty of touching a young person (B.F.) for a sexual purpose while in a position of trust and/or authority. He was further found guilty of mischief while interfering with a vehicle driven by K.F.2. At the conclusion of the trial, sentencing was adjourned so that a pre-sentence report could be obtained, as well as victim impact statements. In addition, the defence obtained and filed a Sexual Behaviours Assessment Report from Dr. Jonathan Grey, Staff Psychiatrist with the Royal Ottawa Mental Health Centre.

CIRCUMSTANCES OF THE OFFENCES

First of all, sexual exploitation. It is not necessary to repeat all of the relevant findings in my verdict. A short summary, however, will provide context for this sentencing hearing. J.M. entered into a common law relationship with K.F.1. At the time their relationship began, K.F.1 had a daughter, K.F.2, who was approximately ten years of age. K.F.1 had a niece, B.F., with whom she had a close and loving relationship. B.F. visited often and came to live with them when her mother was no longer able to provide for her. B.F. and K.F.2, although cousins, were more like sisters in their relationship with each other. Based on a number of factors which I enunciated in the verdict, I was satisfied that J.M. was in a position of trust or authority towards B.F.. Beginning in 2002 when B.F. was 15, they began a sexual relationship. It began with his sexual touching of her breasts and vagina, and over a period of time progressed to vaginal sexual intercourse. Condoms were used initially, but condom use was discontinued when B.F. indicated that she was on the pill. Thereafter, they had unprotected sex. Their relationship was kept secret from B.F.’s cousin and her aunt. J.M. acknowledged in his testimony that he had sexual intercourse 20 to 30 times, from the time she was about 15 until she was about 17. The sexual intercourse stopped in November of 2002 when both parties acknowledged concern about pregnancy. B.F. had missed taking a birth control pill. She attended the hospital and received a morning-after pill. There were no further sexual activities, however they continued to reside in the same household until she moved out. Some months later, J.M.’s relationship with his common law spouse, K.F.1, broke up and K.F.1 moved out of the house with her daughter, K.F.2.

Count Six – Mischief. K.F.1 and J.M. had been at a house party. She had returned home alone, but was concerned that J.M. would require a ride home because he had been drinking. She was concerned because he indicated he would attempt to walk home on a cold January night over country roads. She asked her daughter, K.F.2, to pick him up. K.F.2 picked him up as he was walking home, but they immediately fell into argument. He was clearly intoxicated. K.F.2 took evasive steps to drive home without coming to a stop because he was attempting to get out of the vehicle, although it was only about a ten-minute ride home. Suddenly, he reached over and pulled the parking brake. The car swerved and came to a half with a rear wheel over the edge of the roadway. There were no injuries or property damage. J.M. got out of the vehicle and pushed it out, and K.F.2 drove home alone, ending the incident. However, this appeared to create a permanent breach in the already poisoned relationship between K.F.2 and J.M., and shortly thereafter, J.M. and K.F.1 separated.

CIRCUMSTANCES OF THE OFFENDER

At the sentencing hearing, a pre-sentence report was filed be defence counsel. The report can be considered as generally positive. J.M. is 56 years of age and has no previous criminal record. He completed high school and has had a steady work record through a number of employers. He is currently working as a foreman supervising five or six employees. He also operates his own snow ploughing business in the winter. His employer considers him to be a valuable employee. He currently resides with a common law partner, who is supportive of him. He has adult children through previous marriages, and some of those relationships appear to be strained. But, the report indicates that J.M. has not shown any remorse in his inappropriate behavior. As the author notes:

“The subject’s regret appears to be focused more on his own predicament and the impact the charges have had on his life, rather than acknowledging his wrongdoing and expressing remorse for the impact of the offences on the victim’s life.”

The author also notes:

“Of concern to note is that the subject continues to displace the blame onto K.F.1 for ‘leaving them together too much’.”

The author also expresses concern about alcohol use. In his assessment, the author concludes:

“Indeed, the subject’s own remorse is somewhat questionable. It appears to be internally focused and he still denies full culpability.”

THE PSYCHIATRIC REPORT

J.M. voluntarily entered into a sexual behaviours assessment. He met with Dr. Jonathan Gray, a staff psychiatrist at Royal Ottawa Mental Health Centre, who provided a report dated September 10, 2013. Dr. Gray concluded that J.M. was at a low risk to commit further sexual or violent offences and found that he was at a low risk to re-offend. He was not found to be a pedophile. But Dr. Gray noted a sound of caution. He stated:

“J.M. expressed rationalizations of a sexual relationship with the victim, and did not admit to being in a position of trust and authority over her despite strong evidence to the contrary.”

Dr. Gray further provided:

“In my opinion, the index offences occurred in the context of J.M. rationalizing the relationship with the victim as not being one of trust and authority. He exhibited poor judgment on boundaries and appropriate sexual relationships with the victim. I should note that nevertheless, adult male psychological arousal to post-pubescent females, even teenagers, is common, but acting on this arousal, such as in the circumstances of the indexed offence, clearly shows poor judgment.”

And I would emphasize the last words of Dr. Gray “acting on this arousal, such as in the circumstances of the indexed offence, clearly shows poor judgment.” Dr. Gray’s report recommended that J.M. not be permitted to be in a position of trust or authority over females under the age of 18, and that he should not have unsupervised contact with females under the age of 16 unless accompanied by an adult who is aware of the offences.

VICTIM IMPACT STATEMENTS

The Crown filed written Victim Impact Statements from B.B. (B.F.), her spouse, G.B., and her cousin, K.F.2. All three read their Victim Impact Statements to the court.

B.F. indicates that she still suffers from trauma of being victimized in a sexual way by J.M. when he was in a position of trust or authority. As she stated in her statement:

“I have developed an extremely low self-esteem, as this crime has made me feel worthless, like I do not deserve to be loved, and like I do not deserve to be heard. I struggle each and every day to justify to myself that I deserve to be on this earth. Most days, I do not believe this and I have considered taking my own life.”

Her report indicates that she has been taking therapy once a week over the last year. Her spouse, G.B., reported the struggles he observes in his wife’s daily life. He notes that she has a hard time being intimate, and at times, there is tension in their relationship.

K.F.2 was the victim with respect to the mischief conviction, whereby J.M. pulled on the parking brake, causing the car to swerve out of control. Her statement shows a profound impact on her life, but it is clear that she had a poisonous relationship with J.M. that existed over many years and only culminated with the mischief incident. That incident appears to have led her mother to break up with J.M. as K.F.2 and her mother moved out. Her Victim Impact Statement indicates that he has ruined her life. She states “You will never know what you have done to my family. You broke it, but today, we begin to piece it back together as a family.” She indicates that she is on medications and is obtaining counselling for severe depression. The Victim Impact Statement provides context for the entire relationship between K.F.2 and J.M.. No doubt K.F.2 has been profoundly affected by learning J.M. was having a sexual relationship with her cousin, whom she viewed as a sister. However, I remind myself that the sentencing I will impose for mischief must clearly be restricted to the event that occurred that evening in the vehicle.

PRINCIPLES OF SENTENCING

Parliament has now codified many former common law sentencing principles in the Criminal Code of Canada. Section 718 describes the fundamental purpose of sentencing to be “to contribute along with crime prevention initiatives, to respect for the law and in maintenance of a just, peaceful and safe society by imposing just sanctions.” The Code sets out six objectives for sentencing judges to consider:

(i) to denounce unlawful conduct;

(ii) to deter the offender and others from committing offences;

(iii) to separate offenders from society where necessary;

(iv) to assist in the rehabilitation of offenders;

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

(vi) to promote a sense of responsibility in offenders and acknowledge the harm done to victims and the community.

Section 718.2 of the Criminal Code provides in paragraph (a)(iii):

(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,

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

I acknowledge that abuse of trust or authority is an essential element of the offence of sexual exploitation, but I am satisfied that that section enables me to consider the extent and duration of the breach of trust in considering sentencing options.

MITIGATING AND AGGRAVATING CIRCUMSTANCES

First of all, mitigating factors. J.M. has no previous record. He has a continuing work history in a supervisory capacity. He has support from his current common law partner and his employer. The psychiatric report, although sounding a note of caution, indicates he is at a low risk to re-offend.

The aggravating circumstances. J.M. took advantage of a vulnerable young person with whom he was in a position of trust or authority. Although that is an essential element of the offence, the following factors provide additional aggravating circumstances which cannot be overlooked:

• The sexual relations began with touching and progressed over a period of time to intercourse, which occurred at least 30 times over a period in excess of two years;

• J.M. was 30 years older than the victim;

• He engaged in unprotected sexual intercourse, for the most part, with the victim;

• The sexual activity took place when his common law partner was not at home, when the victim was most vulnerable. Although many of the hallmarks of grooming were not present, he did purchase a vehicle for B.F. when she turned 16;

• The events in question have had a profound impact on B.F. and J.M., at least until today’s statements, has shown no insight into the harm done to her. J.M. seems to blame the victim or his common law partner for leaving them alone together.

THE POSITION OF THE CROWN AND DEFENCE

The Crown submits that a fit sentence for sexual interference in all of the circumstances of this case is five years, with a further sentence of six months for the mischief offence. The defence submits that the appropriate range of sentence for sexual exploitation is nine to twelve months incarceration or alternatively, that the court should consider a conditional sentence of eighteen months followed by a period of probation. The defence submits that the mischief charge can be dealt with by a suspended sentence and a period of probation. In addition, the Crown seeks a number of ancillary orders, which are not objected to by the defence, including a DNA order, a Section 110 order, a S.O.I.R.A. order, and a no-contact order with respect to the victims.

It should be noted that the maximum penalty for sexual exploitation at the time of this offence was five years. Sentencing is an individualized process. As a matter of principle, a maximum sentence is generally reserved for offenders where aggravating circumstances far outweigh mitigating circumstances, if any.

SENTENCING AUTHORITIES

Both Crown and defence filed a casebook of authorities to support their sentencing submissions. The Crown provided a number of cases on sentencing principles for offenders who have sexually exploited children. Although a number of these cases can be distinguished because they involve sexual activity, which amounts to sexual assault, often beginning when the victim was a child and progressing until they were young persons, they provide valuable, overarching principles. The comments of Justice Moldaver in R. v. D.D., 2002 44915 (ON CA), 2002 O.J. No. 1061 at paragraph 34 bear repeating:

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

In that decision, Justice Moldaver also addressed the issue of pedophilia. At paragraph 40 he stated:

“If the appellant is not a pedophile and he does not suffer from some other psychosexual disorder that could account for his reprehensible behaviour, then arguably, his degree of moral culpability rises significantly. Surely, that cannot translate into a mitigating factor weighing in his favour.”

In R. v. M.(D.), [2012] ONCA 520, the Ontario Court of Appeal comprehensively reviewed the appropriate sentencing for adults who commit sexual assault and sexual exploitation, and once again, summarized the principles as enunciated in its previous decision in R. v. D.D., supra. The court repeated those considerations at paragraph 38. The following are particularly relevant in this situation involving a person in the position of trust or authority who is 30 years older than the victim, a young person, and paragraph 38 of that case said:

(1) Throughout their formative years, children are very susceptible of being taken advantage of by adult sexual offenders and they make easy prey for such predators;

(2) Adult sexual predators recognize that children are particularly vulnerable and they exploit this weakness to achieve their selfish ends, heedless of the dire consequences that can and often do follow.”

And the court continued:

(3) Three such consequences are now recognized,

(i) children often suffer immediate psychological and physical harm;

(ii) children who have been sexually abused may never be able, as an adult, to form a loving, caring relationship with other adults;

(iii) children who have been sexually abused are prone to become abusers themselves when they reach adulthood.

In the circumstances of that particular vase, the court found that there was a huge breach of trust involving threats of deportation and other degrading behavior, including numerous acts of sexual intercourse over a 31-month period. The sentencing judge imposed a sentence of three years for sexual assault, plus one year concurrent for sexual exploitation and invitation to sexual touching. But the Court of Appeal found that sentence manifestly unfit, and substituted a global sentence of seven years. The defence relied on a number of decisions, indicating that the range of sentence for sexual exploitation falls within the reformatory range.

In R. v. Aaron Aird, [2013] ONCA, 447, the Court of Appeal imposed a one-year sentence on a 28-year-old individual attending teacher’s college, who provided private tutoring to the complainant. In finding that the offender breached a position of trust, the court noted at paragraph 24:

“Section 153(1) thus bans any sexual contact between an adult and a young person with any of the four relationships enumerated in this section. That the young person consents, does not appear vulnerable, or does not subjectively review their relationship as one of trust, authority, or dependency, or as exploitive, is irrelevant.”

The court further noted at paragraph 56:

“The appellant’s abusive trust of a young person by itself is an aggravating consideration, although it is inherent in the offence of sexual exploitation. But even apart from that consideration, other considerations are aggravating in the present case.”

In that case, those aggravating factors included the period of time involved, the vulnerability of the victim, the age difference between the victim and the offender (11 years), and the effect on the complainant.

In R. v. D.D., [2010] O.J. No. 5489, Justice Hill of our court imposed a sentence of 12 months incarceration, noting that the offender had expressed a degree of remorse for his actions. However, the court noted at paragraph 33-34:

“The crime of sexual exploitation seeks to protect young persons who are in a vulnerable position towards certain persons in their lives because of the power imbalance inherent in the nature of their relationship. An adult, in a position of trust with respect to a young person, is under a duty or obligation to desist from sexual relations with the young person. Typically, most mature family relatives understand and honour those boundaries. The principles of general deterrence and societal denunciation of sexual exploitation of young persons are paramount in considering the appropriate sentence in a case such as the present.”

In R. v. P.B.B., 2007 ONCA 722, [2007] O.J. No. 4013, the Ontario Court of Appeal did not interfere with a nine-month custodial sentence after a conviction of sexual exploitation.

In R. v. A.B. [2006] ONSC, 31608, the trial judge had a reasonable doubt as to whether or not sexual assault occurred, but found the offender guilty of sexual exploitation. The sentencing judge imposed a sentence of two years less a day and declined to consider a conditional sentence. He found as aggravating factors, the vulnerability of the victim, that the offender did not take precautions which led to pregnancy, the offender saw nothing wrong in his engaging in sexual activity and showed no remorse. He also considered the duration of the offence, the number of incidents, the nature of the activity involved, which was sexual intercourse, and the quasi parental relationship between the victim and the offender. With respect to a conditional sentence, he noted at paragraph 13, “In circumstances here, denunciation and deterrence would not be achieved by a conditional sentence”.

In R. v. Edwards, [2003 BCCA 214, the British Columbia Court of Appeal substituted a conditional sentence for a nine-month incarceration sentence imposed by the sentencing judge. The court determined that the sentencing judge made an error in principle in considering the benefit of psychiatric treatment available in jail prior to considering whether a conditional sentence would be more fit in the circumstances.

More recently, in R. v. M.B., [2013] ONCA 493, the Ontario Court of Appeal upheld a sentence of nine months for sexual exploitation involving a 16-year-old concession stand worker at a movie theatre, involving the offender who was her manager. The court noted that at the time of that offence, the mandatory minimum sentence was 45 days. The offender had no record. The sexual activity was limited to one day and the offender was remorseful. However, the court rejected the defence implication that but for the relationship authority, the sexual contact would have been consensual. As the court stated at paragraph 10:

“I do not accept these submissions. As the trial judge noted, the offence of sexual exploitation recognizes that vulnerability of young people to exploitation by people in authority. Consent is irrelevant to the offence. To suggest that in other circumstances the conduct would have been consensual and lawful, is to ignore the very nature and seriousness of the offence.”

The Crown, in this case, correctly points out that there are a number of factors that distinguish that case from the present one here, including the length of time of the sexual relationship of over two years involving 30 acts of sexual intercourse, many involving unprotected sex, the nature and extent of the trust relationship that existed here, the age difference between the offender and the victim, and the lack of insight into the offence by the offender, at least until recently expressed today.

RANGE OF SENTENCE

Based on the authorities reviewed, I am satisfied that the range of sentence for this offence falls within the reformatory term. Case law and the individual circumstances of the offender, including the aggravating and mitigating facts, assist the court in determining a fit sentence for this offender.

Having made that determination, it is incumbent upon the court to consider a conditional sentence pursuant to the provisions of the Criminal Code. In R. v. Proulx, 2000 SCC 8, [2000] S.C.J. 9, the Supreme Court of Canada provided a helpful summary of the principles that should be considered with respect to a conditional sentence. Without repeating the entire summary, I find the following points at paragraph 127 to be of assistance:

• Parliament intended a conditional sentence to include both punitive and rehabilitative aspects. No offences are excluded from conditional sentences regime, except those with a minimum period of imprisonment.

• The sole requirement is that the duration and conditions of a conditional sentence make for a just and appropriate sentence. The safety of the community is a condition precedent to imposing a conditional sentence, but not the primary consideration.

• The court should consider the risk posed by the specific offender, including the risk of the offender re-offending and the gravity of the damage that could ensue in the event of a re-offence. A conditional sentence can provide significant denunciation and deterrence. Where objectives such as denunciation and deterrence are particularly pressing, incarceration would generally be the preferable sanction.

• And the court concluded a conditional sentence may be imposed even where there are aggravating circumstances, although the need for denunciation and deterrence will increase in those circumstances.

I am satisfied, in this case, that a conditional sentence is not an appropriate sentence for this offender, given the aggravating factors here and the paramountcy of the need for denunciation and deterrence. There was a 30 year age different between the offender and the victim. The victim was vulnerable, sexual intercourse took place many times over a prolonged period of time, often with unprotected sexual intercourse in circumstances representing an extreme breach of trust. In the pre-sentence report and the doctor’s report, J.M. has not shown any remorse or willingness to acknowledge responsibility, other than the comments he has made to the court today.

THE PRINCIPLES APPLIED HERE

J.M. committed this offence while in a position of trust or authority over a B.F.. He was 30 years older than she was and the offence took place over a prolonged period of time involving numerous acts of sexual intercourse, some unprotected. Again, I repeat that he has not shown any insight into the harm he has caused to the victim until today nor has he shown any remorse for his behaviour. Therefore, denunciation of this unlawful conduct and specific deterrence are important sentencing considerations in these circumstances.

SENTENCE

Firs