CITATION: R. v. Cayen, 2015 ONSC 3115

COURT FILE NO.: 1733/13 and 1734/13

DATE: 20150515

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

PATRICK MARTIN CAYEN

James Boonstra, for the Crown

Phillip Millar, for the Patrick Cayen

HEARD: April 24, 2015

DESOTTI, J.

A. Brief History

[1] The accused was found not guilty of two adult charges but guilty of 26 other counts in the adult indictment and all 26 counts in the Youth Criminal Justice Act indictment. As a result of the Kienapple principle and with the cooperation of both defence and Crown counsel, the following counts are stayed in the adult indictment:

[2] Counts #1, #3, #6, #15, #17, #21, and #25. Thus, there remain 19 counts in the adult indictment.

[3] With respect to the Youth Criminal Justice Act indictment and based on the same Kienapple principles and the cooperation of counsel the following counts are stayed:

[4] Counts #2, #4, #6, #8, #9, #11, #13, #18, #20, #22, #24, and #26. Thus, there remain 14 counts in the Youth Criminal Justice Act indictment.

[5] I have endorsed the two indictments accordingly with those counts as indicated as now stayed.

[6] With respect to sentencing on the Youth Criminal Justice Act indictment, the Crown has acknowledged that an application to have the young person tried as an adult would not be appropriate in these circumstances. The Crown also indicated that any sentence would have to include both a custodial disposition as well as a period of supervision.

[7] The Crown is seeking 12 months custody and supervision on the indictment with respect to the complainant, K.A., 6 months concurrent on the indictment with respect to the complainant, P. B. together with supervision, and 1 month concurrent on the indictment with respect to the complainant, L.C., together with supervision.

[8] The focus on any sentence under the scheme of this Act is whether a youth sentence could hold the accused accountable for his actions in the sense of reflecting the blameworthiness of the offence and the person that he was when he committed them. Pursuant to section 38 of the Act, the emphasis for any youth offence is not denunciation or deterrence but rehabilitation and reintegration.

[9] Nevertheless, these numerous sexual assaults constituted a serious violation of the complainants’ body and amount to serious harm traditionally associated with child sexual assaults and which are reflected in the victims’ impact statements filed on this sentencing hearing. The fact that sexual intercourse did not occur does not mean that a “violent offence” has not been committed.

[10] In these circumstances and given the frequency of the sexual assaults a custodial time is warranted.

[11] In reviewing the cases filed by counsel for the accused and the Crown, it is apparent that most of the decisions are driven by the facts. Nevertheless, in reviewing the following cases, R. v. G.L., R. v. J.E.T., R. v. C. H., R. v. J. N., R. v. I. R., R. v. D. H., R. v. T. B., R. v. Jason William Cawthorn, and R. v. D. D., and the reality that the accused was between 12 and perhaps 15/16 when these offences occurred does ameliorate the period of closed custody and the measure of his accountability as reflected in the Act and upon which I am mandated to consider.

[12] In the result, with respect to Count # 1, and the complainant, L. C., the accused Patrick Cayen is sentenced to one month in closed custody and 1/2 month of community supervision. With respect to Count # 3 and the complainant, P. B., the accused is sentenced to 2 months in closed custody and 1 month community supervision consecutive to Count # 1. With respect to Counts # 5, # 7, and # 10 with the same complainant, P. B., the accused is sentenced on each count to 2 months in closed custody and 2 months of community supervision but with respect to each of these Counts, the accused shall serve this sentence concurrently to Counts # 1 and # 3. With respect to Count # 12 and the complainant K. A., the accused is sentenced to 9 months of closed custody and 4.5 months of community supervision but consecutive to Counts # 1 and # 3. With respect to Counts # 14, # 15, # 16, # 17, # 19, # 21, # 23, and # 25 with the same complainant, K. A., the accused is sentenced on each Count to 9 months closed custody and 3 months community supervision, but with respect to each of these Counts, the accused shall serve this sentence concurrently to Counts # 1, # 3, and # 12.

[13] The total period of closed custody is thus 12 months and the total period of community supervision is 6 months. The period of closed custody of 12 months shall be consecutive to any other sentence imposed in any other proceeding such as the companion adult indictment involving the same accused, Patrick Cayen but a different complainant, K.T.

[14] With respect to the youth offences, given the age of the accused and the adult offences the accused shall serve his sentence in an adult institution.

[15] The accused, Patrick Martin Cayen, in the adult indictment, is convicted of nineteen counts in a 26 count indictment with respect to the complainant, K. T. The accused was the complainant’s step-father and the sexual assaults occurred from the time she was between 5-8 years of age living in Aylmer, Ontario until sometime in the latter part of 2006. I note that the parties separated in July of 2006 when the parties resided in Sarnia, Ontario but K. T. did describe other sexual assaults that took place when she was visiting the accused after the separation.

[16] The complainant, K. T. was 11 at the time that the parties separated. I accepted the evidence of K. T. and rejected the denial of the accused for reasons expressed in my written decision given on January 9th, 2015.

[17] The sexual assaults took the form of numerous acts of digital penetration of the complainant’s vagina; numerous times when the accused performed oral sex on the complainant; numerous times when the complainant, K. T. masturbated the accused; and at least one occasion where the complainant, K. T. attempted to perform oral sex on the accused.

[18] There is no issue that the accused, Patrick Cayen was in a position of trust with respect to this young female child and that the governing principle on sentencing is one of general deterrence and denunciation.

[19] The range of sentencing based on numerous cases filed by counsel and multitude of cases found in various Digests on sentencing including “Sentencing” (Clayton C. Ruby); and Canadian Sentencing Digest (Nadin-Davis and Sproule) are of some assistance. However, as with all criminal offences, the facts in support of these convictions are to some extent unique or at least have an element or elements that are not present in other cases.

[20] While there were many incidents of digital penetration and oral sex, there was no sexual intercourse performed by the accused on this female victim. I consider that as a mitigating factor.

[21] In addition, there were no threats made by the accused to K. T. about what might happen should she disclose these offences to her mother or other individuals in authority. I consider the absence of threats as a further mitigating factor. I would highlight a different reality in the Youth Criminal Justice Act indictment, where there was a veiled threat with the complainant, P. B. that she would get in trouble if she “told her mom”.

[22] The accused has no record and has been a productive member of the community. Counsel for the accused indicates that as a result of these charges and now the convictions, the accused has lost his employment as Fire-Chief in Sarnia and has had to declare bankruptcy. There is also the clear support of his wife and his natural children from his first marriage.

[23] I should also add that the accused has maintained his innocence and plans to appeal my decision but I do not consider this position as an aggravating factor nor is the accused’s lack of remorse an aggravating factor given his resolute claim of innocence.

[24] Nevertheless, any sexual offence against a child by a person in authority is such a detestable crime that only the firmest and clearest denunciation of this type of despicable behaviour is warranted in these circumstances. The victim impact statements make it abundantly clear the effects and long term harm that is occasioned by this type of insidious but targeted conduct towards a vulnerable young person.

[25] The Crown is seeking a term of 5 years while counsel for the accused submits that a term of 2 to 3 years would seem to be more appropriate.

[26] In the result, on Count # 2, the accused Patrick Martin Cayen is sentenced to 4 years’ incarceration. With respect to Counts # 4, # 5, # 7, # 8, # 9, # 10, # 11, # 12, #13, # 14, # 16, # 18, # 19, # 20, # 22, # 23, # 24, and # 26, the accused is sentenced on each Count to 1 year incarceration but with respect to each of these Counts the sentence shall be concurrent to Count # 2.

[27] I have been referred to s. 743.5 of the C.C.C., s. 92 (4) of the Y.C.J.A., s. 139 of the Correction and Conditional Release Act, s. 42 (13) of the Y.C.J.A. and s. 718.3 (4) of the C.C.C. in order to ascertain if a Youth Court sentence could be served consecutive to an adult sentence. I am satisfied that it can if I make it clear to the authorities that the youth sentence is to be consecutive to any adult sentence.

[28] This 4 year period of incarceration is consecutive to any other custodial sentence such as the 1 year custodial sentence that the accused, Patrick Martin Cayen was convicted of for offences committed while he was a young offender under the Youth Criminal Justice Act.

[29] The publication ban in naming the accused, Patrick Cayen as a young offender, is lifted.

[30] In addition to the period of incarceration that was imposed, the following ancillary orders shall issue:

1. There will be a DNA data bank sample provided by the accused, Patrick Cayen;

2. The accused, Patrick Cayen shall be placed on the Sexual Offender Registry for life;

3. Pursuant to section 109 of the Criminal Code, the accused, Patrick Cayen shall not possess any firearms or ammunition for a period of 10 years;

4. For a period of 10 years pursuant to Section 161.(1) (a) the offender is prohibited from attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre;

(b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years;

(c) having any contact – including communication by any means – with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the court considers appropriate.

5. While the accused is incarcerated, pursuant to section 733.21 of the Criminal Code, the accused Patrick Martin Cayen, shall not communicate with the following individuals:

a) K.T., J.T., V.B., L.C., P.B., K.A., and the complainant, K.F..

“Justice John A. Desotti”

The Honourable Mr. Justice J.A. Desotti

Released: May 15, 2015

CASES CONSIDERED

R. v. G.L., 2009 ONCA 501; R. v JET, 2013 ONSC 7586; R. v. C.H., 2012 ONSC 3352; R. v. Cawthorn, 2014 Cobourg OCJ; R. v. D.D., 2002 44915 (ON CA), [2002] O.J. No. 1061; R. v. J.N., 2013 ONCA 251, [2013] O.J. No. 1834; R. v. T.B., [2013] O.J. No. 5069; R. v. I.R., [2014] O.J. No. 3521;

R. v. D.H., [2014] O.J. No. 2475; R. v. M. (R.M.), 1998 1659 (ON CA), 1998 CarswellOnt 253, [1998] O.J. No. 255, 106 O.A.C. 191, 122 C.C.C. (3d) 563, 37 W.C.B. (2d) 1973; R. v, Q. (W.), 2006 21035 (ON CA), 2006 CarswellOnt 3774, [2006] O.J. No. 2491, 210 C.C.C. (3d) 398, 213 O.A.C. 217, 71 W.C.B. (2d) 126;

R. v. B.(C.), 2008 CarswellOnt 3651, 2008 ONCA 486, [2008] O.J. No. 2434, 237 O.A.C. 387, 78 W.C.B. (2d) 80

CITATION: R. v. Cayen, 2015 ONSC 3115

COURT FILE NO.: 1733/13 and 1734/13

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

PATRICK MARTIN CAYEN

REASONS FOR sentence

DESOTTI, J.

Released: May 15, 2015