Ontario

Superior Court of Justice

Court File Number: CR 224-13

Between:

HER MAJESTY THE QUEEN

v.

D.M.

Reasons for Sentence

by the Honourable Justice N. Mossip,

at Guelph, on the 17th of June 2014.

IMPORTANT: CONTENTS CANNOT BE PUBLISHED OR BROADCAST PURSUANT TO AN ORDER UNDER SECTIONS 486(4) OF THE CRIMINAL CODE, BY THE HONOURABLE JUSTICE N. MOSSIP,

ONTARIO SUPERIOR COURT OF JUSTICE.

Appearances:

P. Maund Counsel for the Crown

D. D. Paquette Counsel for D.M.

Table of Contents

Reasons for Sentence Page 1

IMPORTANT: CONTENTS CANNOT BE PUBLISHED OR BROADCAST PURSUANT TO AN ORDER UNDER SECTIONS 486(4) AND SECTION 486.5(1) OF THE CRIMINAL CODE, BY THE HONOURABLE JUSTICE C. N. HEROLD,

ONTARIO SUPERIOR COURT OF JUSTICE.

Transcript Ordered: June 17, 2014

Transcript Completed: June 19, 2014

Parties Notified of Completion: June 19, 2014.

TUESDAY, JUNE 17, 2014.

Reasons for Sentence

Mossip, J. (Orally):

D.M. was charged with various sexual offences against three male complainants, which occurred in the early and mid-1980’s and early 1990’s when the complainants were between the ages of eleven and thirteen.

D.M. pleaded not guilty and the trial was heard before me on January 21st, 22nd, 28th, 29th, and 31st of this year. On April 10th, 2014, I released my decision in which I found D.M. guilty on all counts in the indictment except for count 1, which was dismissed at the request of the Crown, as the offence in that section had been repealed at the time of the allegations giving rise to that charge. Based on the principles in R. v. Kienapple, and on the submissions of counsel, the charges in counts 3 and 5 were stayed by the Crown. The sentencing submissions therefore proceeded with respect to count 2, an act of gross indecency with C.L., namely masturbation, count 4, a sexual assault on M.R., and count 6, touching for a sexual purpose J.B., a person under the age of sixteen directly with a part of his body, and count 7, did for a sexual purpose incite J.B., a person under the age of sixteen, to touch directly with a part of his body, the body of D.M..

A pre-sentence report was ordered and received by the court. The three male complainants filed Victim Impact Statements which also were filed with the court. Counsel relied on various case law in making their submissions as to what would be the appropriate sentence, and defence filed a brief of character letters which included five letters with respect to D.M.

Circumstances of the Offences

C.L. knew D.M. when he was his hockey coach from 1980 to 1983. C.L. was approximately ten to twelve during these years. C.L. went to events and on trips with D.M.. He stayed overnight at his home. C.L. recalled going on two camping trips with D.M., although it may have been in the same year and it may have been one, he recalled going on a camping trip up to the Thunder Bay area around Lake Superior and through the United States.

C.L.’s allegation, which I accepted, was that when they were in the tent together they engaged in mutual masturbation. This incident occurred after D.M. asked C.L. if he knew what masturbation was, and when replied he had no clue, D.M. proceeded to tell him and show him what it was. D.M. grabbed C.L.’s penis and showed him. C.L. grabbed D.M.’s penis and masturbated him. C.L. said that the masturbation happened several times on the trip. C.L. did not have any contact with D.M. after this trip.

M.R. became acquainted with D.M. when he moved into the townhouse complex where M.R. lived with his brother and mother. D.M. became part of his regular life as his neighbour. D.M. was involved in many facets of his life and D.M. took him on trips. M.R. saw D.M. as a good father figure and a friend to him. M.R. described the incident that resulted in the conviction in count 4. He was about eleven years old at the time and he was in D.M.’s townhouse complex. D.M. wanted to show him what masturbation was. Prior to this incident he did not know what masturbation was. The incident involved mutual masturbation on each of D.M. and M.R..

J.B. became involved with D.M. through the Big Brothers organization, which was when he was around ten years old. D.M. was his “Big Brother”. He started to stay overnight at D.M.’s house after about six months. They went to baseball and hockey games together. J.B. described the allegations, which I believed, as starting with mutual masturbation, then progressing to mutual oral sex and then they progressed to mutual anal sex.

The incidents continued for about three years. They stopped after an incident where there was blood on J.B.’s penis and he told D.M. he never wanted to do it ever again.

J.B. continued to see D.M. for many years after the sexual incidents stopped and he lived with D.M. for many years. D.M. financially supported J.B. until the year he was arrested.

The Circumstances of the Offender

D.M. was born on […], 1952. He is presently 62 years old. He was between approximately 28 and 38 when the offences took place. D.M. has two siblings who he is presently estranged from. He was raised solely by his mother from the age of three. Both of his parents are now dead. When he was eight years old his mother involved him in Big Brothers and he continued his friendship with his Big Brother until he died two years ago. D.M. has no alcohol or substance abuse issues. He was married at 24, but the marriage was annulled a year later. He stated his last sexual relationship was 28 years ago and was with M.R.’s mother. D.M. had several father figure role relationships with young boys, which he preferred to relationships with women he told the probation officer.

D.M. has a university degree and in his last job he worked for Bell Canada for 31 years. In the later years he was in a senior management position. He retired in 2011 and moved to Fiji. He reports that he is very involved in the community there and helps to pay for the educational costs of some children there.

D.M., at trial, and to the probation officer, denied any sexual attraction to pre-pubescent males. He does not know why the charges were brought by the complainants but suspects it may be because he relocated to Fiji.

Positions of the Parties

The Crown

The position of the Crown is that D.M. should be sentenced as follows: With respect to M.R. and C.L., a sentence of one year for each of those counts as related to each of them, such sentences to run concurrent to each other, count 4 and count 2.

With respect to J.B., a sentence of seven to eight years, for each of counts 6 and 7, to run concurrent to each other and consecutive to the sentence in counts 2 and 4.

The Crown emphasized the aggravating features of the offences, being sexual abuse of young vulnerable children over an extended number of years, involving multiple victims, and involving abuse from sexual touching to anal intercourse.

The Crown’s submission is that the only real mitigating factor is that D.M. has no criminal record and he has been a productive member of society. The character letters are commendable but may not, in the submission of the Crown, and according to the jurisprudence, have any significant impact on a sentence in these circumstances.

The Crown seeks certain ancillary orders which are not disputed by the defence.

The Defence

The position of the defence is that the facts of this case are highly unique given several factors: D.M. maintained significant relationships with two of the complainants, M.R. and J.B., long after the abuse had ceased. Further, D.M. was involved with other young men in various volunteer capacities and there was no abuse. D.M. has otherwise led an exemplary life as a productive member of society. The five character letters filed on behalf of D.M. tell me much more than the unhelpful pre-sentence report what kind of man I am sentencing.

The position of the defence is that the global sentence should be one of four to five years with credit of 12 months for pre-trial custody and a further 12 months for the strict bail conditions that D.M. has complied with, as the Court of Appeal allowed in the case of R. v. Downes for example. That would leave a remaining sentence of two to three years.

The defence does not oppose the ancillary orders requested. The defence position is that this range as suggested is also within the jurisprudence as in such cases such as R. v. J.R., [2003] O.J. No. 111 (S.C.J.) found at tab 7.

The Victim Impact Statements

The Victim Impact Statements are heart wrenching. They demonstrate that abuse on the complainants which occurred 20 and 30 years ago still have a negative impact on all three men. The impact of betrayal of trust on young vulnerable children is clearly demonstrated in these Victim Impact Statements. I have some hope that this trial, where they were believed, and this sentencing, which acknowledged the harm done by D.M. when he abused them and betrayed their trust, will be of some assistance in their healing process. I will say something more to the victims in a moment.

Mitigating Factors

The only real mitigating factor is that D.M. comes before the court with no criminal record and therefore is being sentenced as a first time offender. Further, D.M. has for his whole life been a productive member of society, both in the workforce and as a volunteer in numerous capacities.

The Aggravating Factors

The most significant aggravating factor is that the sexual assaults all involve D.M. abusing someone when he was in a position of trust to that person; a “Big Brother”, a hockey coach, and a close neighbour who was very involved in the complainant’s life as a father figure, as D.M. told the court himself. The defence correctly took no issue that all of these situations were cases where D.M. was in a position of trust. The complainants were also very young and were all sexually inexperienced. This was their first introduction to sexual issues. As is repeated numerous times in the jurisprudence, it is not just the physical abuse of whatever nature, or number of times; it is the long-term emotional impact of sexual abuse on young people that makes the offences aggravating.

Analysis

It falls to me to determine a fit and just sentence, based on the circumstances of these offences and the individual circumstances of D.M.. The purposes of sentencing are set out in section 718 of the Code. In addition, section 718.01, provides that the objectives of denunciation and deterrence are mandated as the primary consideration when the offence involves the abuse of a person under the age of 18. Further, section 718.2(a)(iii) states that the court shall consider an aggravating feature of the offence that the offender in committing the offence abused a position of trust or authority in relation to the victim. Other sentencing objectives and principles are set out in section 718 and following in the Code.

Both counsel referred to certain cases which set out the fundamental principles of sentencing in sexual assaults involving young persons where there has been a breach of trust. The case law is of some assistance in providing a range of sentence to consider. Of course every offence and every offender is unique and therefore each sentencing decision must be uniquely crafted.

The following paragraph from Moldaver J.A., in R. v. D.D., 2002 44915 (ON CA), [2002] O.J. No. 1061, sets out the impact of sexual abuse of young children, was referred to by both counsel, and referred to in numerous cases since then. At paragraph 35 Justice Moldaver wrote:

35. We as a society owe it to our children to protect them from the harm caused by offenders like the appellant. Our children are at once our most valued and our most vulnerable assets. Throughout their formative years they are manifestly incapable of defending themselves against predators like the appellant and as such they make easy prey....

At paragraph 36 he wrote:

36. ...The horrific consequences of child sexual abuse are only too well known.

And lastly, in paragraph 45 he wrote:

45. The appellant was prepared to risk the lives of innocent children to satisfy his sexual cravings. His conduct was reprehensible and it must be condemned in the strongest of terms. The harm occasioned by the appellant and others like him is cause for grave concern. Children are robbed of their youth and innocence, families are often torn apart or rendered dysfunctional, lives are irretrievably damaged and sometimes permanently destroyed. Because of this, the message to such offenders must be clear – prey upon innocent children and you will pay a heavy price!

The other cases I found instructive in this sentencing decision are as follows:

R. v. Woodward, 2011 ONCA 610, [2011] O.J. No. 4216 (C.A.), paragraphs 75 and 76:

75 Adult predators who seduce and violate young children must face the prospect of a significant penitentiary term. The five-year sentence imposed on the appellant for the sexual assault he committed on the 12-year-old complainant is not excessive. In the light of the appellant's past criminal activity and the lack of any meaningful mitigating factors available to him, if anything, it was lenient. While acknowledging that trial judges retain the flexibility to fashion a fit and just sentence in the particular case, crimes like those committed by the appellant will typically warrant mid- to upper-level single digit penitentiary sentences. The additional 18 months the appellant received for the offence of luring was entirely appropriate and did not render the global sentence excessive.

76 In so concluding, I wish to emphasize that when trial judges are sentencing adult sexual predators who have exploited innocent children, the focus of the sentencing hearing should be on the harm caused to the child by the offender's conduct and the life-altering consequences that can and often do flow from it. While the effects of a conviction on the offender and the offender's prospects for rehabilitation will always warrant consideration, the objectives of denunciation, deterrence, and the need to separate sexual predators from society for society's well-being and the well-being of our children must take precedence.

The other decision R. v. D.M. where Justice Feldman in commenting on Woodward, 2011 ONCA 610, [2011] O.J. No. 4216 (C.A.) at paragraph 36, 37, 38:

36 Second, and most importantly, while the court in D.D. set specific ranges for categories of cases described by the court that were similar to the facts in D.D., Moldaver J.A. also made two things clear: 1) ranges of sentence are only guidelines; they leave trial judges with the flexibility "to do justice in individual cases." (para. 33); 2) for conduct where an adult in a position of trust sexually abuses children on a consistent basis and over an extended period of time, a higher range of sentence is called for. Depending on the specific facts, a penitentiary sentence, ranging from upper single digit to low double digit or beyond is appropriate. Although Moldaver J.A. referred to "children" in the plural, it is the conduct that is aimed at; while the number of victims will be a factor, the instruction from D.D. does not become inapplicable where there is only one victim.

37 The recent decision of this court in R. v. Woodward, 2011 ONCA 610 clarifies any possible confusion on the intended scope of the D.D. decision. In that case, a 30 year-old man lured a 12 year old girl, first through the internet and then by text messages, to have sex with him in exchange for the transfer of millions of dollars to a bank account to be set up for her. Her family was in financial difficulties at the time. She attended the location, where he had her perform fellatio on him twice and had intercourse with her.

38 Although the case involved one child victim and one incident with no additional violence, this court made it clear that in sentencing, the principles enunciated in D.D. applied. Moldaver J.A. repeated the principles of sentencing arising from D.D. and I will repeat them here (at para. 72):

And then finally at para. 44:

44 To conclude on the issue of the proper range of sentence, although sentencing is always an individualized process of decision-making, where there is prolonged sexual abuse and assault of a child, including penetration, by an adult in a position of trust, the minimum sentence will be five or six years in the penitentiary.

Mr. Paquette on behalf of D.M. referred to the Court of Appeal decision of R. v. J.R., (supra), which was a case of historical sexual assault where the sentence was increased from two and half years to four and a half years, and said that with respect to historical sexual assault, para. 1

1 THE COURT (endorsement):-- In our view, the total sentence imposed (2 1/2 years) was in all of the circumstances demonstrably unfit. The offences were very serious and considered together required the imposition of a lengthy penitentiary term. While the respondent's conduct in the twenty years between the offences and his arrest demonstrates that he poses little risk of re-offending, the passage of time does not diminish the need for a denunciatory sentence given the seriousness of these crimes.

I do agree with defence counsel that this does not mean good conduct after offences is not a factor for the court to consider. How much it impacts always depends on the individual case. It is of course relevant that the accused in that case pleaded guilty, had a favorable PSR and apologized to the victims.

There is no doubt that the aggravating features of this crime are the age of the victims, ten, eleven, twelve and thirteen, and the fact the offences involved a serious breach of trust, all three complainants were young, vulnerable and sexually unsophisticated. They were children of single parent households where the mothers were doing the best they could to support their sons with somewhat limited resources. D.M. offered the complainants gifts, trips and outings that they would not have otherwise been able to take part in. He paid for sports activities they were involved in. He was undoubtedly generous with his money and his time with the complainants, but it was for a purpose; he sexually abused the young complainants who had placed their trust and affection in him. There cannot be a more devastating betrayal. As I set out when I dealt with the Victim Impact Statements, all three of the complainants have long-term negative emotional effects from this abuse and betrayal. Denunciation and deterrence are the guiding sentencing principles in sentencing D.M. in these circumstances.

Denial of a crime and lack of remorse are not of course an aggravating feature, but D.M. does not have the benefit of either of these facts as a mitigating feature. I have read the character letters written and filed on behalf of D.M., they are indeed commendable. It is almost difficult to reconcile what these people write about D.M. and what D.M. did to the complainants that were before me. It is a factor I have considered, but it does not take away from the primary sentencing principles in this case, which are denunciation and general deterrence to likeminded offenders.

Victims

Before I pronounce sentence I want to say something to the victims who are here today. I have read your Victim Impact Statements. The effect of D.M.’s actions have clearly affected all of you in various destructive ways. You have courageously come forward and told the police and the court about the abuse you suffered from a man you loved and trusted. I believe you and what you say happened. No sentence I impose today can reverse the harm done to you by D.M.. As I said earlier, hopefully this will be a positive part of the effort you will put into getting your lives on a positive track. I know you all expressed in your Victim Impact Statements the efforts you have made so far and what efforts you will continue to make to become loving men and live the life you are entitled to. Nothing you did before or after the abuse had anything to do with why D.M. abused you. You did nothing to deserve it. You were victims of sexual abuse. D.M. was solely responsible for the choice he made to abuse you. The fact that he showed you love and support, and perhaps did in his own way love and support you, makes his betrayal by abusing you so much more egregious. Now is your chance to shine and work to not let these events define you. Otherwise, you remain D.M.’s victims for life. You are better than that. I wish you all the best.

Decision

In considering all of the above factors, as to the nature of the offences I am sentencing D.M. on and considering the circumstances of D.M. and the principles of sentencing applicable here, I find that a fit and just sentence is one of seven years with respect to each of counts 6 and 7, to be served concurrently with each other, and one year for each of counts 2 and 4, to be served concurrently with each other and consecutive to the sentence in counts 6 and 7, for a total sentence of 8 years.

Counsel agree that pre-trial custody credit is approximately 12 months. Defence asks for an additional 12 months for the pre-trial strict bail conditions D.M. has abided by. Crown submits I should sentence D.M. to the low end of the range and not give a strict 12 months credit itself. I am prepared on the principles of R. v. Downes, to exercise my discretion and give a further pre-trial sentence credit of 4 months for the strict bail conditions D.M. has abided by.

Accordingly, D.M.’s sentence to be served will be 8 years, less one year and 4 months credit, for a sentence left to be served, please check my math gentlemen, I say that should be of 6 years and 8 months. Is that correct?

MR. MAUND: Yes.

THE COURT: 6 years and 8 months.

The ancillary orders to be made are a DNA sample to be ordered, a section 109 weapons prohibition for life, a S.O.I.R.A. order for life, a section 161 order for life, and there is to be no communication or contact with any of the complainants while D.M. is in custody.

Have I missed anything?

MR. PAQUETTE: Victim Fine Surcharge.

THE COURT: Yes, and I waive the victim surcharge. Thank you for your help gentlemen and once the transcript has been completed we will get it out to you. Thank you very much.

COURT CLOSED.

FORM 2

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))

CANADA EVIDENCE ACT

I, Barbara E. McCrae, certify that this document is a true and accurate transcript from the recording of R. v. D.M., in the Ontario Superior Court of Justice held at 74 Woolwich Street, Guelph, Ontario, N1H 3T9, taken from File No. 4611-crtrm#2-20140617-084915-10-MOSSIPN, which has been certified in Form 1.

June 19, 2014. ____________________

Barbara McCrae,

Certified Court Reporter 1