WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

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

(2) 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.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

486.6(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.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15

COURT FILE NO.: 13-30000577-0000

DATE: 2014/12/12

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Majesty the Queen

– and –

Brian Stephenson

Accused

Kim Crosbie, for the Crown

Lucas Rebick, for the Accused

HEARD: October 6, 2014

DECISION ON SENTENCING

B.A. ALLEN J.:

BRIEF OVERVIEW

The Convictions for Sentencing

[1] Brian Stephenson was convicted in a ten-day judge alone trial that took place in March and April, 2014. Mr. Stephenson was arrested on May 16, 2012 and charged with 18 offences under the Criminal Code: sexual assault, s. 271 (x7); sexual interference of a person under 16 years, s. 151 (x7); assault causing bodily harm, s. 267(b) (x3); and common assault, s. 266 (x1). Mr. Stephenson committed those offences against the complainant over a period of about two years from 2008 to 2010 when she was 12 to 14 years of age. I convicted him on all charges in a decision rendered on May 26, 2014.

[2] Mr. Stephenson stands to be sentenced on 11 of the 18 charges with the application of the Kienapple principle. This principle requires, where an accused is found guilty of two or more offences arising out of the same transaction and the elements of the offence are substantially similar, that the accused should not be sentenced on all of the offences. Sections 151 and 271 both carry possible a maximum penalty of ten years. Section 267(b) also carries a possible maximum penalty of ten years and assault carries a possible maximum penalty of five years. The Crown asks, and I accept, that five counts of sexual interference and two counts of sexual assault be “Kienappled”. This leaves two convictions for sexual assault and five convictions for sexual interference. The balance of the counts will remain.

The Sentencing Hearing

[3] Crown counsel filed a Pre-Sentence Report (“PSR”) prepared by Mr. Stephenson’s probation officer. The PSR is compiled mainly of information provided by Mr. Stephenson, the officer in charge, his police record, and various government and social service agencies involved with Mr. Stephenson. Defence counsel filed copies of certificates of completion for programs Mr. Stephenson attended for substance abuse and adult anger management.

[4] MF, the complainant, made the choice as she is entitled to not to file a victim impact statement.

The Parties’ Positions on a Fit Sentence

[5] The Crown seeks a global sentence of 8 to 10 years’ incarceration, SOIRA and DNA orders, a s. 109 Criminal Code firearm prohibition and a s. 161 Criminal Code order restricting Mr. Stephenson from associating with children under the age of 16 through voluntary employment or in general without the company of another adult.

[6] Defence counsel seeks a global sentence of 30 months’ incarceration. He does not dispute the SOIRA and DNA orders or the firearm prohibition. The defence submits should I find a restriction under s. 161 appropriate, it should not apply to his immediate family members or future family members under 16 years. He takes the position that the s.161 order as it relates to other children under 16 years should not be so restrictive. He argues a five or ten year period with a prohibition on communication with a person under age 16 years is more appropriate.

FACTUAL BACKGROUND TO CONVICTIONS

[7] At age 27 Mr. Stephenson embarked on a course of abuse of MF over a period of about two years, from the time she was 12 until age 14. MF would go over to Mr. Stephenson’s family’s apartment near where she lived to play with Mr. Stephenson’s younger sister. This is how she met him.

[8] MF’s life from her early years was marked by her and her siblings being placed in the custody of Native Child and Family Services (“NCFS”). Their parents had longstanding substance abuse problems. After a particularly lengthy period in the care of NCFS, MF returned home at age 8 only to find she was treated like an outsider. Her parents were in their own world of substance abuse and provided her little care or attention. These were her circumstances when she met Mr. Stephenson.

[9] Mr. Stephenson began showing an interest in her. Listening to her problems, providing her with things she wanted including alcohol. He was her confidante. MF was in grade 7 at this time. She began skipping school to the point where she attended few days in grade 7. She began hanging out daily at Mr. Stephenson’s place, drinking alcohol, smoking marijuana, and not returning home at night.

[10] Mr. Stephenson soon began to show a romantic interest in MF. Kissing and hugging led to Mr. Stephenson engaging MF in sexual intercourse. This led to Mr. Stephenson engaging her in intercourse sometimes on a daily basis and at other times several times a week over the two year period when MF was not in a residential care facility. The Crown estimated they had intercourse about 300 times over the two years. I have no reason to question that figure.

[11] MF was apprehended by NCFS because of her truancy and staying out all night. On three occasions, MF escaped from residential facilities with Mr. Stephenson’s help and support. He helped her hide from her parents, NCFS caseworkers and the police. On one escape, for an eight-month period, Mr. Stephenson helped MF avoid capture and elude an Amber Alert that was broadcasted on television.

[12] MF was plunged into a life of alcohol and drug abuse and sexual and physical abuse by Mr. Stephenson. They were on the run for months staying wherever he could find them a place to hide. MF depended on Mr. Stephenson for food and shelter. MF was apprehended by NCFS for the last time in 2010 when she was 16 years old.

[13] MF became aware with the help of her caseworker, that her relationship with Mr. Stephenson was unhealthy. She had begun to fear his violence and possessiveness. She remained in the residential facility and with the support of her caseworker, stopped drug use, lost her feelings for Mr. Stephenson and completed grade 12. MF began to adopt a positive outlook on her life and herself and at age 18 years she moved into independent living.

[14] In May 2012, at age 16, MF decided to complain to the police about the abuse. The complaint resulted in Mr. Stephenson’s arrest.

MR. STEPHENSON’S BACKGROUND

[15] The PSR reveals that Mr. Stephenson, born February 2, 1981, has had a troubled past from his early childhood to his adult life. His mother was a sole support parent. His biological father left the family in his early years and Mr. Stephenson has had little or no contact with him. His stepfather was the adult male in his life who he regarded as a father figure. Mr. Stephenson’s mother had problems with substance abuse which resulted in her three sons, of whom Mr. Stephenson is the youngest, being taken into care by the Catholic Children’s Aid Society (“CCAS”) when they were young.

[16] A man, in the role of a Big Brother, came into the boys’ lives. He sexually abused the boys for several years. Mr. Stephenson moved in to live with the abuser for two years at age 13. The mother did not learn of the abuse until one of the brothers reported it when Mr. Stephenson was age 15 which resulted in the abuser being charged.

[17] Mr. Stephenson was intermittently homeless from about age 15 to 17 years. During that period, he began getting into trouble with the law. Mr. Stephenson’s CPIC record was filed as an exhibit. Before his current convictions on May 26, 2014, Mr. Stephenson received numerous previous convictions: as a young person in 1995 and 1997 and as an adult in 2001, 2002, 2008, 2009, 2010 and 2011. Among his convictions are six failures to comply/attend court; seven theft/mischief under $5,000/theft breaking and entering; four assault/assault with intent to resist arrest/uttering threats; and one escape lawful custody.

[18] Not yet included in his criminal history is an incident that occurred in November 2010. In September 2011 Mr. Stephenson was sentenced on a guilty plea to one year jail time and three years’ probation for utter threat, destroy property, mischief property summary, arson, reckless with property, mischief cause danger to life, mischief property over, possession of incendiary material and fail to comply probation. That sentence was in relation to an incident described at the trial before me by two Crown witnesses.

[19] The two witnesses were squatting in a home where Mr. Stephenson was staying in November 2010. They described Mr. Stephenson as “obsessing over” his girlfriend MF because he was not permitted to see her as she was in the custody of NCFS. In a violent tirade he set the house a flame jeopardizing his and the other occupants’ lives and the property.

[20] Mr. Stephenson received a grade 9 education, leaving school when the sexual abuse was reported. He has been employed very little in his life. He received social assistance benefits and eventually Ontario Disability Support Program benefits following a diagnosis of Bipolar Disorder.

[21] Mr. Stephenson and his brothers sued CCAS and in 2010 Mr. Stephenson received a settlement of some $385,000 which he frivolously spent in five months. A portion of those funds he used to provide for his and MF’s needs and for drugs and alcohol while she was with him and at large from the care of NCFS. With Mr. Stephenson’s financial resources, their drug use progressed to harder drugs like powder cocaine, crack and ecstasy.

SENTENCING PRINCIPLES

Basic Objectives of Sentencing

[22] Section 718 of the Criminal Code sets out the principles that underpin the objectives for sentencing: denunciation, deterrence and the separation of the offender from society.

The fundamental purpose of sentencing is 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;

b) to deter the offender and other potential future offenders from committing offences; and

c) to separate offenders from society

Offences against Children

[23] Section 718.01provides with offences against children under age 18 years, the objectives of denunciation and deterrence shall be given primary consideration. One of the leading Ontario Court of Appeal cases that dealt with sentencing an offender convicted of sexual violence against children emphasized the operative principles of denunciation and deterrence and the need to separate offenders from society. An oft-quoted paragraph from R. v. D.D., infra, states:

… In cases such as this, absent exceptional circumstances, the objectives 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 over the other recognized objectives of sentencing.

[R. v. D.D. (2002), 2002 44915 (ON CA), 163 C.C.C. (3d) 471 (Ont. C.A.)]

[24] In R. v. D.D. the accused was convicted after trial on 11 sexual offences involving four boys. Starting when he was age 25 years, and for a period of seven years, the offender befriended four boys, ages 5 to 8 years, and involved them in various types of sexual activity over a prolonged period of time. The court laid down a general rule that adult offenders in a position of trust who sexually abuse innocent children persistently over a protracted period of time can expect to receive mid to upper single digit penitentiary terms.

[25] A debate ensued in legal circles as to the scope of that rule, whether its applicability was limited to cases involving the abuse of multiple victims and multiple forms of abuse. Subsequent Court of Appeal cases resolved that question by affirming that the rule applies with equal force to cases involving a single incident of sexual abuse by an adult against a single child [R. v. Woodward (2011), 2011 ONCA 610, 276 C.C.C. (3d) 86, at paras. 36 to 39 and 73, (Ont. C.A.); and R. v. M. (D.) (2012), 294 O.C.A. 71, at paras. 37 and 38, (Ont. C.A.)].

[26] Section 718.1 of the Criminal Code provides a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. R. v. Woodward also commented on penalties for more extreme forms of abuse. Adult offenders whose abuse involved full intercourse, violence, threats of violence and other forms of extortion would attract penitentiary sentences of from upper single digits to low double digits to reflect the increased gravity of the offence and the enhanced moral culpability of the offender.

Statutory Aggravating Factors

Abuse of Person under 18 and Breach of Trust

[27] Section 718.2 provides that a sentence shall be increased or reduced to take account of any relevant aggravating or mitigating circumstances related to the offence or the offender. This provision sets out a non-exhaustive list of examples of possible aggravating and mitigating factors to consider. Section 724(3)(e) of the Criminal Code requires the Crown to prove any aggravating fact beyond a reasonable doubt.

[28] The Crown argues two of the enumerated aggravating factors are relevant to the facts of this case:

a) s.718.2(a)(ii.1) − evidence the offender, in committing the offence, abused a person under the age of 18 years

b) s. 718.2(a)(iii) – evidence the offender, in committing the offence, abused a position of trust or authority

Age

[29] The victim’s age is a factor to consider under s. 718(a)(ii.1) and the disparity between the ages of the victim and the offending adult is a relevant consideration. There is no question that Mr. Stephenson abused MF when she was less than 18 years of age. She was 12 years old and Mr. Stephenson was 27 when the abuse started, a 15-year disparity. Courts have recognized the young age of the victim as an aggravating factor [R. v. M. (D.) 2014 CarswellOnt 8579 Ont. C.J.)].

Position of Trust

[30] The parties differ on whether Mr. Stephenson was in a position of trust or authority over MF.

[31] The defence takes the position that what was intended by a person in “a position of trust or authority” is a person in the victim’s life who is regarded more traditionally in that way, for example: parents, step-parents, other adult relatives, teachers, sports coaches, pastors, someone who stands in loco parentis, etc. The defence points to R. v. D.D. where the court found the offender, a close family friend who assumed a role akin to a step-father, stood in a position of trust in relation to the four boys. For the defence, this is not the role Mr. Stephenson played in relation to MF. He did not occupy a position of trust or authority. He did not stand in loco parentis.

[32] The Crown relied on more recent decisions that found trust relationships between adult offenders and children in less traditional situations. R. v. Woodward considered that non-traditional trust relationships can exist between an adult offender and a child victim. Moldaver, J.A., as he then was speaking for the Ontario Court of Appeal, found a trust relationship developed in the grooming techniques the offender employed to lure the child through internet interactions. Referring to the trial judge’s decision, Moldaver, J. A. remarked:

… In using the term “trust” to describe the relationship in this case, I do not agree that the trial judge had in mind the traditional trust relationship as described in D.D. The trial judge fully understood that the relationship between the appellant and the complainant was not a classic “position of trust” situation. In her reasons, after quoting D.D. in which the court referred to the abuse of children by “adult offenders in a position of trust”, the trial judge stated:

In reviewing that paragraph, I am mindful of the fact that this is not a traditional relationship of trust as is found in so many cases. At the same time, [the complainant] did come to trust Mr. Woodward in light of the frequency of their cyber contact.

[R. v. Woodward, supra, paras. 42 and 43; see also R. v. Legare (2009), 2009 SCC 56, 249 C.C.C. (3d) 129, at paras. 29 and 39 (S.C.C.)]

[33] In a more recent case, the Ontario Court of Appeal found a trust relationship in a circumstance similar in some ways to the case before this court. The child victim, age 14 at the time of the abuse, was a friend of the adult offender’s daughter. The child had known the offender from age 4. The offender engaged the child in many types of demeaning sexual acts that escalated over time. The child’s phone disclosed communications with the offender upwards of 600 times per day. The offender used emotional blackmail in grooming the child. The court held:

… the sentencing judge failed to appreciate the gravity of the offence and the culpability of the offender. This was an exploitative, repeated and demeaning series of sexual assaults against a vulnerable 14 year-old by a person in a position of trust.

[R. v. Bauer, 2013 ONCA 691, 2013 CarswellOnt 15520, para. 16, (Ont. C.A.); see also R. v. C.R., 2012 ONCA 85, 2012 ONCA, at para. 85, (Ont. C.A.)]

[34] I find the facts of the case before me disclose a trust relationship between MF and Mr. Stephenson. Mr. Stephenson connected with MF through her friendship with his younger sister. He became a listening ear, a confidante for a troubled and vulnerable 12 year old girl. He groomed her through his attentiveness and caring, getting her things she wanted including alcohol and involving her in the daily consumption of alcohol and marijuana.

[35] Mr. Stephenson provided places of refuge and protection from neglectful parents who were adrift in their own world of substance abuse. Except for her periods in care facilities, Mr. Stephenson was MF’s source of food, shelter and social interaction over a two-year period. MF lost connection with friends of her own age and her family members. She stopped going to school and returning home. Mr. Stephenson aided and supported her in her escapes from the controlling grip of NCFS. Mr. Stephenson was her world.

[36] This situation clearly falls within the type of non-traditional trust relationships found in other cases.

Other Aggravating Factors

[37] In addition to the statutorily recognized aggravating factors, the courts have identified other factors to be considered. The Crown argues, and I accept, the following facts are relevant as aggravating factors in this case:

a) Length of time of the abuse

This factor is self-explanatory. The longer the period of abuse the more aggravating the offence. There were numerous incidents of sexual abuse and assault over a two-year period.

b) Frequency of sexual activity

This factor is also self-explanatory. MF testified they had daily sexual intercourse at times and every other day at other times. Over the two-year period, this would amount to hundreds of times. Repeated abuse has been recognized as an aggravating factor [R. v. D.D., supra, para. 26].

c) Grooming

I have set out above the grooming activity Mr. Stephenson engaged in with MF over the time before he began to take advantage of her sexually. The Ontario Court of Appeal has found grooming activity to be an aggravating feature of abuse [R. v. Woodward, supra, at para. 43; see also R. v. F (G.C.) 2004 4771 (ON CA), 2004, 188 C.C.C. (3d) 68 (Ont. C.A.)]

d) Types of abuse

The numerous occasions of abuse and the infliction of various types of abuse have been accepted by the courts as aggravating factors [R. v. Bauer, supra, at para. 18; and R. v. D.M., 2012 ONCA 520, [2012] O.J. No. 3616, at para. 48, (Ont. C.A.)]. Mr. Stephenson engaged in unprotected, non-consensual sexual activity with MF that involved full intercourse hundreds of times. MF spoke of being pressured at times into sex against her will. Mr. Stephenson also physically assaulted MF on numerous occasions resulting in physical injury to her. I accepted as medical records show that Mr. Stephenson kicked her in the head on September 16, 2010 causing her to lose consciousness. He choked her on about 12 occasions causing her to lose consciousness on about six of those occasions. There was another occasion that Mr. Stephenson punched her in the right eye causing a bruise and a goose bump. Mr. Stephenson also repeatedly emotionally and verbally abused MF, calling her demeaning names.

e) Mr. Stephenson’s hiding MF from authorities

On several occasions while MF was involved with Mr. Stephenson, NCFS apprehended MF as a child in need of protection. Mr. Stephenson assisted MF to escape from a residential facility. He arranged for her to escape by a taxi. She escaped a number of times and with Mr. Stephenson’s assistance and support she was able to elude the police, her parents and NCFS, on one occasion, for eight months while she was being sought under an Amber Alert.

Defence counsel submitted Mr. Stephenson’s blameworthiness for MF being at large should be reduced by the fact that the authorities and her parents were remiss in their efforts to quickly find her and take her into care during the eight-month escape.

I cannot accept that submission. Mr. Stephenson was one of the reasons MF needed protection and of course responsible for keeping her from protection. Surely, the fact that the authorities and her parents might not have demonstrated optimal effort in finding and returning her to care cannot reasonably be seen as a cause to reduce Mr. Stephenson’s own responsibility for acting against her interests in hiding her.

f) MF’s vulnerability

MF is of indigenous heritage from a socially and financially disadvantaged background. She and her siblings were apprehended in their tender years by NCFS as children in need of protection. MF returned home at age 8 only to be treated as an outsider. She was neglected and unprotected by her substance addicted parents. From that background, MF walked innocently into Mr. Stephenson’s world where he groomed her into a life of sexual, physical and verbal abuse. Vulnerability of the victim is a factor considered on sentencing [R. v. D.M., supra, at para. 47].

g) Provision of alcohol and drugs

MF was in grade 7. After she met Mr. Stephenson he encouraged her to stay with him during the day and night. While they were “hanging out” at his place, Mr. Stephenson introduced her to alcohol and marijuana. The use of drugs and alcohol increased over time and led to more destructive drugs like powder and crack cocaine and ecstasy, which Mr. Stephenson bought in abundance when he got his settlement from CCAS. MF had to recover from an addiction when she was finally returned to the residential care facility.

h) MF robbed of normal childhood and life experience

Courts have consistently recognized the devastating and lasting effect that childhood sexual abuse has on children’s psychological and emotional development. Children are robbed of their youth and innocence and families are impacted. Adult predators responsible for sexual offences against children committed to satisfy their deviant sexual cravings must expect to face significant penitentiary time [R. v. D.D., supra, at para. 45; and R. v. Woodward, supra, at paras. 72 and 73]

i) Mr. Stephenson’s criminal record

I have summarized Mr. Stephenson’s criminal record above in the discussion on his background. His record starts in 1995 when he was 14 years of age. There were numerous thefts and assaults, and uttering a threat and an escape from custody. There are numerous failures to comply. Very disturbing and indicative of his violent tendencies and his potential danger to the community is the risk he put to human lives and property by lighting an inhabited house on fire. He pleaded guilty and received a custodial sentence in a provincial detention centre. Correctional records disclose that his conduct while in the facility was a matter of some concern. I will discuss that matter below when I deal with his potential for rehabilitation.

j) Harm caused to MF

Mr. Stephenson stole MF’s innocence and set her life on a destructive path. She became trapped in a world of drugs, sex with a much older man and sexual promiscuity. She was isolated from her family and friends of her own age. She missed years of schooling after leaving school at grade 7. She was left behind in her education and had to study hard while in care to catch up with her education in order to achieve grade 12. MF had to overcome a drug addiction when she finally decided to remain in care. She needed help to accept the fact the relationship she had with Mr. Stephenson was unhealthy, that the man she called her boyfriend, who she thought she could trust, was a sexual predator. MF, through her own innate courage and fortitude was able to overcome great odds and become a shining example to her caseworkers and other young women in care that there can be light after a dismal start to life.

I reject the defence’s submission that because MF has persevered and at age 18 is on the path to a healthy life, this should be seen to minimize the effects of her harrowing treatment at Mr. Stephenson’s hands or to reduce the aggravating effect. Just because she in some measure has survived the trauma is not to say MF did not suffer the full intensity of her abuse by Mr. Stephenson.

Potential for Rehabilitation

Mr. Stephenson’s Conduct in Custody and on Bail

[38] There are aspects of Mr. Stephenson’s history that raise questions about the potential for rehabilitative measures to be effective with him.

[39] Mr. Stephenson’s criminal history is marked from the start by breaches of court orders and promises to appear. He shows a lack of respect for authority even when faced with the prospect of further criminal charges. This conduct and attitude can translate into, and did in fact translate into, a general disregard for advice, instruction and rules. While in custody, Mr. Stephenson rejected recommendations for rehabilitation in relation to his mental health, his addictions and educational deficits.

[40] Two sexual offending risk assessments were conducted by the probation officer to measure risk factors by looking at the subject’s personality and characteristics, predilections, and learned behaviours that relate to sexual recidivism. To change a negative rating on those factors requires cooperation by the subject and a dedicated effort to learn and adopt over time new patterns of behaviour and new ways of thinking. It was concluded that Mr. Stephenson had deficits on all factors which increased his risk for recidivism.

[41] When Mr. Stephenson was incarcerated in the provincial detention centre for the arson related charges from September 2011 to May 2012, he engaged in misconduct and was uncooperative. The facility found him unmotivated for treatment and prone to minimizing or excusing his criminal behavior. He was deemed a high risk to re-offend upon release because of his unwillingness to address his addictions, mental health and educational deficits. He was arrested in May 2012 on the current charges and released on bail in August 2012. Following his release from custody in August 2012, Mr. Stephenson was deemed an Intensive Supervision Offender which designated him as “an imminent risk to others and … at the highest risk of committing serious new offences.”

[42] Mr. Stephenson was under house arrest at his mother’s home for 12 months while out on bail and under the supervision of the author of the PSR. His conditions included not to be out without his sureties being present, not to be in the company of children under 16 years and abstinence from the use of substances. He was arrested in August 2013 with his stepfather and charged with sexual offences against a 13-14 year old girl he met online.

[43] Those charges relate to Mr. Stephenson chatting online with the victim and eventually meeting her without his sureties being present. There is no evidence he made any effort to ascertain her age. On the first meeting with the girl, Mr. Stephenson had sexual intercourse with her which continued after he knew her age. He had sex with her when she was unwilling on one occasion and was emotionally and physically abusive toward her. Further, Mr. Stephenson admitted to substance abuse during his bail and was in possession of a quantity of cocaine when arrested.

[44] Mr. Stephenson pleaded guilty to those offences. The parties arrived at a joint position on sentencing. A sentencing decision on those charges has not yet been made.

Subsequent Criminal Offences and Rehabilitation

[45] Criminal offences committed subsequent to the convictions before the court cannot be regarded as aggravating factors on sentencing. However, subsequent criminal charges can be considered in determining the appropriate weight to give the objective of rehabilitation. It stands to reason that effective rehabilitation requires an acceptance by the offender of responsibility for his crimes and an understanding of the harm done.

[46] Mr. Stephenson lacks any notion of his own blameworthiness and has no sense of remorse for his criminal deeds and their devastating effect on MF. His probation officer observed Mr. Stephenson was quick to blame others, directed his anger at his victims, the police, the courts and his sexual abuser. He avoided discussions about counselling. He stated he was not going to dwell on his wrongdoing because “others have done worse.” In relation to his crimes against MF his attitude was “his relationship with [MF] was just a fraction of her life.”

[47] Both Parliament and the courts have emphasized the paramountcy of the objectives of deterrence and denunciation over rehabilitation in the determination of sentence in cases of sexual assault on young persons by adult offenders. The Ontario Court of Appeal found in a case involving sexual abuse of a young person by an adult offender in a position of trust that the offender’s rejection of rehabilitative measures on conviction did not bode well for his prospects for future rehabilitation. The court went on to hold that greater emphasis on rehabilitation was not warranted [Criminal Code, s. 718.01 and see R. v. B.D. 2014 ONCA 621, at para. 16, (Ont. C.A.)].

[47]

[48] Mr. Stephenson has consistently rejected every attempt to involve him in counselling and other rehabilitative methods. The prediction of his risk to re-offend was most unfortunately borne out by the victimization of another young girl while out on bail on the current charges. This gives the court faint to no hope that rehabilitation is a viable consideration. I also find in this case no increased emphasis on rehabilitation is warranted.

Mitigating Factors

Few Mitigating Factors

[49] I agree with the Crown based the above discussion there is little room for consideration of mitigating factors with Mr. Stephenson.

[50] Crown counsel raised the following other considerations.

[51] Crown counsel submitted that the absence of the use of violence by an adult offender to force sexual activity with a child is not a mitigating factor. The adult uses their status and the trust the child places in them to carry out their assault. Courts have in fact recognized that sexual abuse is in itself violence and when carried out against a child is both physical and profoundly psychological [R. v. Stuckless (1998), 1998 7143 (ON CA), 127 C.C.C. (3d) 225 at 241 (Ont. C.A.)].

[52] The fact MF believed she was in love with Mr. Stephenson is not a mitigating factor but rather an aggravating one. In a case where an adult sex offender induced a vulnerable child into believing they had a boyfriend/girlfriend relationship the Ontario Court of Appeal found it reprehensible when adults take advantage of young teenage girls’ mixed feelings about their sexuality and their bodies. I find the court’s words applicable to Mr. Stephenson, “To exploit a young teenager as this man did reveals a level of amorality that is of great concern.” [R. v. M.(P.), 2002 15982 (ON CA), [2002] O.J. No. 644, at para. 19, (Ont. C.A.)].

Offender’s Own Childhood Abuse

[53] Defence counsel submits Mr. Stephenson’s own tragic experience with childhood sexual abuse should be given considerable weight as a mitigating factor. Defence counsel acknowledged the paramountcy of denunciation and deterrence in setting a sentence for an adult offender convicted of abusing a child. However, he asked the court to consider the fact that child sexual abuse is cyclical in its perpetuation across generations and that as such continues on to produce future victims. Defence counsel went on to argue, with a view to aiding to put an end to the sexual abuse cycle that further emphasis on rehabilitation is warranted with this type of offender.

[54] I was given no authorities on the cyclical incidence of child sexual abuse although I note that studies on this topic are not rare. One might make a general observation that childhood sexual abuse victimization often repeats itself across generations, which arguably raises the need for rehabilitative intervention in sentencing an adult offender who was himself a victim. However, even accepting this proposition, I find it is of limited assistance in assessing sentence for Mr. Stephenson. Rehabilitation requires both volition and cooperation which Mr. Stephenson lacks in abundance in his negative and dismissive attitude toward getting help for his problems.

[55] Mr. Stephenson went on to sexually abuse another innocent child while on bail on the charges before this court. Mr. Stephenson’s own experience with childhood sexual abuse cannot reduce his own blameworthiness or the devastating effect of his crime on MF particularly when he feels he has done no wrong. The reality is that Mr. Stephenson’s defiant resistance to change and his propensity to re-offend make him a dangerous risk to the public. In the circumstances, Mr. Stephenson’s childhood should have little mitigating effect on his sentence.

Credit for Bail Conditions

[56] The stringency of pre-trial bail conditions can be a relevant consideration on sentencing. Mr. Stephenson served house arrest for a year from August 31, 2012 to August 29, 2013 on the current charges. Defence counsel argues the restrictive nature of his house arrest should be considered on a 1.5 to 1 year basis in reduction of the sentence [R. v. Summers 2014 SCC 26, [2014] 1 S.C.R. 575(S.C.C.)].

[57] I do not have a great deal of information about Mr. Stephenson’s bail conditions. He was not employed, so he was not permitted to be out of the house for that reason as employed persons are allowed. He would have to remain at home all day. This, defence counsel posed as an extra restriction on Mr. Stephenson that should be considered. As well, he could not leave home without the presence of his sureties. He was not permitted to be in possession of substances. He no doubt was not permitted to be in communication with or in the company of young persons under age 16.

[58] The Crown disagrees that such credit should be allowed. The Crown relies on case law that emphasizes that bail is not equivalent to pre-trial custody. It is in fact the opposite. Granting credit for pre-trial bail conditions is not an automatic right [R. v. Downes (2006), 2006 3957 (ON CA), 79 O.R. (3d) 321 (Ont. C.A.)]. Stringent conditions on bail are only a potential mitigating factor [R. v. Lindsay 2009 ONCA 532, at para. 45 (Ont. C.A.)].

[59] As far as I can see, the type of restriction on Mr. Stephenson’s liberty is the purpose of bail conditions with an offender who is allowed to be in the community pending trial − all the more restrictive for offenders like Mr. Stephenson who was previously found to be at serious risk to re-offend.

[60] The circumstances of this case persuade me that credit should not be given. Although Mr. Stephenson argues the conditions were very restrictive, he did manage to breach the conditions, most disturbingly, by re-offending through the sexual assaults on the other young girl. He was also out of the home without his sureties and he admitted to indulging in substance abuse and in fact had drugs on his person when he was arrested in August 2013. As well, rather than seeing his unemployment as a fact in favour of leniency, his probation officer found, and I agree, that it is troubling that Mr. Stephenson failed to seek employment or to upgrade in his education while on bail. Further, I can see no prejudice to Mr. Stephenson as a result of his house arrest.

[61] For those reasons, I do not find this an appropriate case for any credit to be given for pre-trial bail conditions.

Certificates of Completion of Programs

[62] The defence presented to the court a Certificate of Completion for a substance abuse program dated May 4, 2012 and a Certificate of Achievement for an adult anger management program dated March 25, 2013. I do not have much information about those programs. Mr. Stephenson attended the substance abuse program while in custody during the period September 11, 2011 to May 2012 and attended the anger management course while on bail from August 2012 to August 2013. Given the negative report of his conduct and attitude while in custody and the fact he breached the bail conditions by assaulting a young girl months after the anger management program, I rather doubt Mr. Stephenson gained anything from the programs.

[63] I give no consideration to Mr. Stephenson’s attendance at those programs as a mitigating factor.

PARTIES’ CASE AUTHORITIES ON SENTENCING

The Defence

[64] The defence argues the sentences allowed by courts for the types of offences before the court range from higher-end reformatory sentences to lower-end to mid-range penitentiary sentences. It is the defence’s position that the court should consider a sentence between 22 months and approximately four years. The defence argues, with the mitigating factors taken into account that the sentence appropriate to Mr. Stephenson is 30 months’ incarceration.

[65] The defence prepared a chart of cases to demonstrate his position. As discussed earlier, the defence’s position is based on the view that Mr. Stephenson was not in a position of trust or authority in relation to MF. I have disagreed with that position. Thus, the cases the defence relies on to justify his position are those where no trust relationship was found. In the defence’s view the absence of a trust relationship distinguishes Mr. Stephenson’s case from the cases relied upon by the Crown where such a relationship was found.

[66] I find that even were I to have found no trust relationship existed, the cases presented by the defence in which this was the case, are distinguishable from the case before me.

[67] The defence submits the case of R. v. Cronin has closest parity with the case before this court. In that case, the Ontario Court of Justice imposed a reformatory sentence of two years less a day and three years’ probation [R. v. Cronin, [2007] O.J. No. 5494 (Ont. C.J.)].

[68] The adult offender in R. v. Cronin was convicted of sexual touching, sexual assault and assault causing bodily harm. The offences occurred over a three year period starting when the victim was age 13 and ending when she was age 17. He introduced her to marijuana and then crack cocaine resulting in her developing an addiction. He gave her a place to live with him which made her believe she and the adult offender had a special relationship of boyfriend and girlfriend. He forced anal sexual intercourse on her and physically assaulted her.

[69] The facts of R. v. Cronin, while somewhat similar, are distinct in important ways.

• the accused did not have a criminal record of any consequence;

• he was employed with a good relationship with his employer;

• he produced letters of support from friends and family;

• the court found him, outside the offences before the court, of good character;

• the accused did not re-offend and;

• there were good prospects for rehabilitation.

[70] The defence presented other cases with sentences closer to what he requests of this court where no trust relationship was found which I also find are distinguishable, for example:

• R. v. Hales, 2013 ONCJ 343, [2013] O.J. No. 2915 (Ont. C.J.) involves an adult offender, age 20-22 sexually and physically assaulted a girl age 13-14 over a 16-month period. The court considered the accused’s youthful age and his guilty plea in giving a sentence of 9 months imprisonment.

• R. v. Basit, [2011] O.J. No. 4246 (Ont. C.J.) involves a 19 year old adult offender sentenced to 23 months and three years’ probation for sexual assault of an 11 year old girl over an 18-month period. The offender had just completed a program at college and had stable community ties.

• R. v. E.T., [2010] O.J. No. 3333 (Ont. S.C.J.) the adult offender with no criminal record was sentenced to 22½ months’ imprisonment including credit for pre-trial custody for sexual activity with a 13 year old girl over a period of about one year.

• R. v. Robinson, 2002 44969 (ON CA), [2002] O.J. No. 2349 (Ont. C.A.) This decision was released a few months after R. v. D.D. The adult male offender was a 42 year old school teacher who met a girl age 13 on the internet and engaged in repeated incidents of sexual intercourse with her over a four-month period. The offender received one year imprisonment and two years’ probation.

[71] In the cases above, the differences in age between the offenders and the children, the duration of the abuse, the nature of the relationships, the existence/nonexistence of a criminal record for the offenders, the offenders’ characters and the existence of ties to the community and their families are areas of distinction from Mr. Stephenson’s situation.

[72] For the most part, the cases the defence refers to that involve a position of trust have prison sentences considerably longer than the 30 months Mr. Stephenson seeks. However, there are three cases that involve shorter periods of imprisonment, one with 2½ years and two others with 3 and 3½ years. These cases are also distinguishable, for example:

• R. v. J.B., [2013] O.J. No. 4652 (Ont. S.C.J.) involves an adult offender who, while babysitting a family friend’s daughter under age 16, engaged her in four inappropriate sexual acts. In rendering a prison sentence of 2½ years, the court considered the offender’s stable family, employment and community involvement and the absence of substance abuse.

• R. v. C.B., 2008 ONCA 486, [2008] O.J. No. 2434 (Ont. C.A.) involves an adult offender who sexually assaulted a young girl over several years from the time she was age 12 while his family shared a condominium with her family and thereafter. The offender had no prior criminal record and had longstanding gainful employment. The appeal court did not disturb the trial judge’s sentence of 3 years’ imprisonment.

• R. v. S.T., [2008] O.J. No. 3442 (Ont. S.C.J.) the adult offender assaulted a girl under 14 years old many times over a period of a year when he resided with the girl and her mother. He groomed her, engaged in various types of sexual assault including intercourse and anal rape and used threats to gain compliance. The court considered that the offender had a dated criminal record and she presumed he had stable employment in imposing a prison sentence of 3½ years.

[73] The other cases presented by the defence where a trust relationship was found involve prison sentences of from 4 years to 9 years. Given the trust relationship, the many aggravating factors, and the absence of any notable mitigating factors in Mr. Stephenson’s case, I find a prison sentence of 30 months would be manifestly unfit.

The Crown

[74] The Crown is seeking a prison sentence of 8 to 10 years in keeping with the principle expressed in s. 718.1 of the Criminal Code that a sentence must be proportionate to the gravity of Mr. Stephenson’s offences and his degree of responsibility for his criminal acts.

[75] The Crown relies on the pronouncement in R. v. Woodward that adult offenders whose abuse involved full intercourse, violence, threats of violence and other forms of extortion would attract penitentiary sentences from upper single digits to low double digits to reflect the increased gravity of the offence and the enhanced moral culpability of the offender. In cases such as these, a fit sentence is one that gives proper effect to denunciation and deterrence [R. v. Bauer, supra, para. 19].

[76] The Crown also points to the following cases where a position of trust was found, for example:

• R. v. D.D., supra, the adult offender, a close family friend, over a 7-year period starting when he was 25, befriended four young boys ages 5 to 8 years old and engaged in multiple types of demeaning sexual abuse including anal penetration. He groomed them and gained compliance with gifts and fun activities. The offender was sentenced to 9 years, 1 month imprisonment which was reduced by 1 year for pre-trial custody.

• R. v. M. (D.), 2012 ONCA 520 (Ont. C.A.) involves an adult offender who groomed the complainant and engaged in over 100 acts of sexual intercourse with his 15 year old niece over a 3-year period who was sentenced to 7 years’ imprisonment. The court held at para. 45, “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.”

• R. v. Woodward, supra, the adult offender lured a 12 year old girl over the internet, pretended to be providing her a large sum of money in a bank account, and met her and engaged in one act of full intercourse with her. The offender was sentenced to a prison term of 6½ years. At para. 76, the court held the focus of sentencing with an offender who preys on innocent children should be on the harm caused to the child by the offender’s conduct and the life-altering consequences that can and do flow from it. The court emphasized the need for denunciation and deterrence and the separation of the offender from society.

• R. v. Mullings, 2012 ONCA 911 (Ont. C.A.) an adult offender in a position of trust had a single act of sexual intercourse with a girl age 13 which resulted in pregnancy and was sentenced to 7½ years’ imprisonment. The court found that a term in the upper end of the range for this type of offence, more than 5 years’ imprisonment, was warranted.

• R. v. J.B., 2012 ONCA 805 (Ont. C.A.) involves an adult offender who stood in loco parentis forced a 9 year old to fellate him on one occasion. For that one act he was sentenced to 5 years’ imprisonment.

• R. v. G.M., 2014 ONCA 602 (Ont. C.A.), the adult offender sexually abused an 11½ to 12 year old girl who was his girlfriend’s daughter over two years. The court found a trust relationship existed between the girl and the offender. A sentence of five years’ imprisonment was imposed.

SUMMARY ON LENGTH OF SENTENCE

[77] I find based on the guidelines in the Criminal Code and the case authorities that a sentence of over 5 years’ imprisonment is appropriate. Taking into account the many aggravating factors and the limited mitigating circumstances, I find a sentence of 8 years’ imprisonment is a fit sentence. It gives proper effect to the principles of general and specific deterrence and denunciation and the need to separate Mr. Stephenson from society.

[78] By way of summary, this sentence takes into account the following aggravating factors:

• Mr. Stephenson’s grooming of MF;

• MF’s particular vulnerability and her young age;

• Mr. Stephenson’s trust relationship with MF;

• The 15-year difference in their ages;

• The 100s of acts of sexual abuse involving full unprotected intercourse over a 2-year duration;

• the physical and emotional violence and abuse of MF by Mr. Stephenson;

• Mr. Stephenson’s penchant for danger and his obsessive disposition toward MF in setting a house on fire where occupants were present;

• Mr. Stephenson conduct in helping MF to escape from care and hiding her from authorities, on one of the occasions for 8 months;

• his provision of drugs and alcohol to a young girl;

• his prior criminal record; and

• the harm to MF’s life socially, affecting a loss of childhood experiences, disaffection from her family, losses to her education, effects on her physical and emotional health and her drug addiction.

[79] Mr. Stephenson’s own experience with sexual abuse and his family problems bear some, though minimal, consideration as a mitigating factor, but as I pointed out earlier, this does not reduce his blameworthiness or the devastating effect on MF’s life. The aggravating factors clearly outweigh this mitigating factor.

[80] Increased consideration for rehabilitation is certainly not warranted in this case. Mr. Stephenson has displayed a pronounced lack of susceptibility to and interest in rehabilitation. He demonstrated this while in custody on the arson charges, while on bail for one year on the charges before this court, and when he breached bail when he re-offended by sexually and physically assaulting another young girl, for which he pleaded guilty.

ANCILLARY ORDERS

SOIRA Order

[81] The defence does not dispute the Crown’s request for a mandatory life-time SOIRA (Sex Offender Information Registration Act) order as Mr. Stephenson’s convictions fall under the requirements of sections 490.011 and 490.013 of the Criminal Code. The sections 151 and 271 convictions fall under section 490.011(1)(a)(ii). The endorsement, “This order is valid until executed.” shall be included on the indictment.

DNA Order

[82] Nor does the defence dispute the request for a DNA order under section 487.051(1) of the Criminal Code as sections 151 and 271 convictions meet the requirements of section 487.04(a) as being convictions on primary designated offences.

Section 109 Weapons Prohibition

[83] The defence does not disagree with a Criminal Code, section 109 mandatory weapons prohibition for ten years to commence after Mr. Stephenson is released from prison.

Section 161 Order

[84] Section 161(1)(a) of the Criminal Code provides that an offender shall not seek employment as a volunteer in any place that would put him in a position of trust or authority over a child under 16. Section 161(1)(b) provides that there shall be no contact by the offender with a child under 16 unless in the presence of an adult. This provision stipulates such an order can be put in place for up to life. The Crown asks for the order to be for life.

[85] The defence takes no issue with an order pursuant to section 161(1)(a). I order that for life Mr. Stephenson shall not seek employment as a volunteer in any place that would put him in a position of trust or authority over a child under 16.

[86] The defence submits that an order under section 161(1)(b) preventing Mr. Stephenson from being in the presence of any child under the age of 16 without the presence of another adult for life is too onerous and untenable. Defence counsel submits this would mean Mr. Stephenson would be prevented for life from being in the presence of children under 16 such as his own children, nieces and nephews and prospective grandchildren if there is not another adult present. It would also mean that for life being out in a public place where he would likely encounter children under 16 would put him in breach of such an order. The defence submits if any such order is granted it should not be for life, but for a 5 or 10-year period.

[87] The defence proposes that an exception should be made for his children and immediate relatives under 16. I agree that the order should not apply to prohibit him from being in the company of his immediate relatives under age 16 without the presence of another adult.

[88] For children under age 16 who are not Mr. Stephenson’s immediate relatives, I propose the following in recognition of defence counsel’s concerns. Mr. Stephenson shall not communicate with a child under 16, other than his immediate relatives, verbally or in writing, directly or indirectly, by any means, whether in person, by telephone, e-mail, the internet, or otherwise by computer, or by any other electronic or other means. I find given Mr. Stephenson’s negative attitude toward rehabilitation and his risk of recidivism, that the duration of the section 161(1)(b) order shall be for life.

SENTENCE

[89] I will now pronounce sentence. Brian Stephenson, will you stand.

[90] You have been convicted of 18 charges under the Criminal Code, 11 of which you stand to be sentenced.

[91] A penitentiary sentence is fit and will properly address the sentencing principles of denunciation and general and specific deterrence and the separation of the offender from society.

[92] I sentence you to 8 years in prison.

[93] In addition there will be the following ancillary orders:

a) a SOIRA order for life. The indictment shall be endorsed, “This order shall be valid until executed”;

b) an order to provide a DNA sample;

c) a section 109 weapons prohibition for 10 years to commence after release from prison;

d) (i) a section 161(1)(a) order that Mr. Stephenson not seek employment as a volunteer in any place that would put him in a position of trust or authority over a child under 16. This order shall be enforceable for life.

(ii) a section 161(1)(b) order on the following terms: Mr. Stephenson shall not communicate with a child under 16 who is not his immediate relative, verbally or in writing, directly or indirectly, by any means, whether in person, by telephone, e-mail, the internet, or otherwise by computer, or by any other electronic or other means. This order shall be enforceable for life.

B.A. Allen J.

Released: December 12, 2014

COURT FILE NO.: 13-30000577-0000

DATE: 2014/12/12

ONTARIO

SUPERIOR COURT OF JUSTICE

Her Majesty the Queen

– and –

Brian Stephenson

Accused

REASONS FOR JUDGMENT

B.A. Allen J.

Released: December 12, 2014