Her Majesty the Queen v. John Drinkwater, 2015 ONSC 3513

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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

CITATION: R. v. John Drinkwater, 2015 ONSC 3513

COURT FILE NO.: CR-14-300000-23-0000

DATE: 20150605

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

– and –

John Drinkwater

Accused

Jon McGrath, for the Crown

Fariborz Davoudi, for the Accused

HEARD: April 17, 2015

SENTENCING

B.A. ALLEN J.:

BACKGROUND TO CHARGES

[1] The offender, John Drinkwater, was convicted by a jury in a trial conducted in January 2014.

[2] Drinkwater stood charged under the Criminal Code with sexual assault (s. 271), sexual interference (s. 151) and invitation to sexual touching (s. 152). He was charged with having committed these acts against DS sometime between January 1, 1988 and October 10, 1993 when he was a child around age nine to 12 years. Drinkwater was between 24 and 29 years of age when he abused DS. He was age 51, and DS was age 35, at the time of trial. DS met Drinkwater when he was about five years old when Drinkwater lived in an apartment below DS’s family’s residence. So DS knew Drinkwater for several years before the abuse started.

[3] Drinkwater lived with DS’s family for a period of time in their apartment. DS’s mother, who suffered challenges with alcohol abuse, allowed Drinkwater to sleep on the floor of DS’s bedroom while DS slept on the bed. DS alleges that Drinkwater lived with the family from about late December 1987 until 1990/1991. During this time Drinkwater engaged DS in mutual fondling, masturbation, oral sex and he made a failed attempt at anal sex, but ended up thrusting his penis between DS’s legs. DS, supported by other witnesses, testified that Drinkwater and DS were always together and that he used to carry DS around like a baby. DS testified he regarded Drinkwater as a big brother.

EVIDENCE

Gladue

[4] On the jury pick there was a challenge for cause based on a belief Drinkwater may have an aboriginal heritage. However, no evidence was adduced at trial in this regard.

[5] The Criminal Code contains special sentencing principles to be considered in sentencing aboriginal offenders. Section 718.2(e) requires the court to consider: (a) the unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the Courts (such as systemic disadvantages, discrimination and other factors) and (b) the effectiveness of the sentencing by looking at the types of sentencing procedures and sanctions which may be appropriate in the circumstances of the offender because of his or her particular aboriginal heritage or connection. The Supreme Court of Canada in R. v. Gladue provides a framework for the application of s. 718.2(e) in sentencing aboriginal offenders: R. v. Gladue 1999 679 (SCC), [1999] 1 S.C.R. 688.

[6] I requested a Report on Drinkwater’s background. Aboriginal Legal Services of Toronto prepared a report dated December 16, 2014. It concluded that for two reasons it could not do a Gladue report for Drinkwater. The Report stated:

First, we are unsure, as is he, about the specific nature of his Aboriginal ancestry and, second even if his ancestry was somehow able to be confirmed we cannot address how being an Aboriginal person has affected his life circumstances. The purpose of a Gladue Report is to discuss the way in which the individual before the court has been influenced and affected by their Aboriginal ancestry, whether by systemic factors or historical reasons.

[7] The Report however provides the information Drinkwater gave ALST in an interview. Drinkwater believed his maternal grandmother and great grandmother had a cottage on a First Nations Reserve and had attended school on the Reserve during their childhood. There is no documentary proof of Drinkwater’s belief and the Reserve confirmed it has no records of persons with Drinkwater’s relatives’ names associated with the Reserve.

[8] According to ALST, even if it was confirmed that his family members might have lived on the Reserve, that would not establish his relatives were members of the First Nation Reserve. As well, the only school in the area, which was on another Reserve, also had no record of people with his relative’s names. The Reserve indicated non-aboriginal children also attended that school. The Reserve’s experience has been that many people have approached them enquiring about whether their relatives might have been aboriginal based solely on their attendance at that elementary school.

[9] I find this is not the appropriate case to consider the Gladue principles. Except for Drinkwater’s belief he might be of aboriginal ancestry, there is nothing before the court that confirms this. As well, as far as the available information on Drinkwater’s life is concerned, it appears his life did not connect him in any way to aboriginal history or the systemic disadvantages faced by aboriginal people. I do not believe the Criminal Code provisions and the Gladue principles are meant to be applied in the abstract or in a vacuum.

Drinkwater’s Life Experiences

[10] Drinkwater was born in Toronto and lived with his parents and his four siblings in Toronto until age four when CAS apprehended them. He left school before obtaining a grade 10 education. From ages ten to 14 he was transferred from foster home to foster home, separated from his siblings, only living with his sister in one of the foster homes. He received psychiatric treatment during those years. At age 14 he ran away from his foster home and was not found until age 18. He decided to leave the care of CAS at age 18. From age 18 to 21 he began associating with criminal elements and got involved in the sex and drug trade. He has not had much of a relationship with his siblings up until the present.

[11] Drinkwater prepared a written statement where he details abusive conditions he experienced in his foster homes, the physical, emotional and sexual abuse. It was those conditions that prompted his escape from foster care at age 14 and his move to be independent of CAS at age 18.

[12] Drinkwater began using and selling drugs and developed an addiction problem. He began dating Robin Simpson (Peddle) at age 20, with whom he remains friends and who testified for him at trial. Drinkwater has acted as a surrogate father for her children over the years. Drinkwater has moved to different cities and provinces and to the U.S. for a period of time. Drinkwater only found out the identity of his biological father in 2014 and was able to visit his grave.

[13] Drinkwater has been on bail since his arrest on August 24, 2011 and lives with his surety whom he has known for 30 years. The terms of his bail have prohibited him from visiting his non-biological stepchildren and step-grandchildren. He hopes one day to be reunited with his family, to see his sister, and to see his grandchildren.

[14] Drinkwater suffers from a variety of medical conditions. He was diagnosed in August 2014 with high cholesterol and coronary disease (heart attack) and is required to take six types of medications.

Criminal Record

[15] Drinkwater has a dated criminal record starting in 1983 and ending in 2002. The offences are thefts under, failure to comply with recognizance/probation and obstruct police officer. His sentences were brief and involved intermittent custodial terms and suspended sentences. There are no previous sexual offences.

DS’s Victim Impact Statement

[16] DS stated that he lost his childhood because of hanging around with Drinkwater from such a young age. He rarely associated with children of his own age. He has felt guilt that his abuse was his fault so he never told anyone. When he reached his teens he began to drink and do drugs to drown out the memories of his abuse by Drinkwater and today he struggles with addictions. He has had trouble forming relationships with women because he fears their rejection. DS indicates he suffers from anxiety and fear of seeing Drinkwater again. He has no career because he was not able to apply himself in school.

[17] More recently, DS has received psychiatric treatment and has been diagnosed with post-traumatic stress disorder and has been prescribed medications. He has attempted treatment for his substance abuse but thus far has not succeeded in kicking his habits. DS stated that although today he knows his abuse was not his fault he continues to feel guilt and shame. DS stated that since he has reported the abuse to the police he has attempted suicide twice. He has since realized that professional guidance will help him cope with his past and he hopes someday to get closure and be able to live a normal life.

DS’s Mother’s Victim Impact Statement

[18] The mother stated that she had felt very guilty since she learned what happened to her son. She has suffered insomnia with the thoughts of his suffering. She indicates it pains her to watch her son crying, not sleeping and not eating. She confirmed DS’s two suicide attempts. The first time he cut his wrists and was hospitalized and the second time he took pills. The mother feels guilty because she thought she was helping Drinkwater by allowing him to stay in her home and for her generosity he abused her son. She feels her life has been changed forever. Her family now shuns DS and her.

SENTENCING PRINCIPLES

Basic Objectives of Sentencing

[19] Section 718 of the Criminal Code sets out the principles for sentencing to be considered by the court: 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.

[20] Proportionality is also a guiding principle for sentencing. It requires a sentence to be proportionate to the gravity of the offence, to be determined on the particular facts of the case. The narrow focus of the sentencing process is directed to imposing a sentence that reflects the circumstances of the specific offence and the attributes of the specific offender: [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html), s. 718.1 and R. v. Hamilton (2004), 2004 5549 (ON CA), 186 C.C.C. (3d) 129, 72 O.R. (3d) 1 (Ont. C.A.).

[21] Parity is another governing principle. It requires a sentence be similar to sentences imposed on similar offenders for similar offences committed under similar circumstances. Sentencing is however an individualized process which necessarily means that sentences imposed for similar offences may not be identical: R. v. Cox, 2011 ONCA 58 (Ont. C.A.) and R. v. L.M, [2008] 2 S.C.R. 163, 2008 SCC 31 (S.C.C.).

Offences against Children

[22] Section 718.01provides that with offences against children under age 18 years, the objectives of denunciation and deterrence are to be given primary consideration. One of the leading Ontario Court of Appeal cases that considered sentencing an offender convicted of sexual violence against children stressed the operative principles of denunciation and deterrence and the need to separate offenders from society. The Court in R. v. D.D., held:

… 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.)]

[23] The offender in R. v. D.D. was convicted 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 five to eight years. He engaged them in various types of sexual activity over a prolonged period of time. The court ruled 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.

[24] The scope of that ruling came under debate, as to whether its applicability was limited to cases involving the abuse of multiple victims and multiple forms of abuse. Subsequent Court of Appeal cases dealt with 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.)].

[25] 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: [R. v. Woodward, at para. 75]

Statutory Aggravating Factors

Abuse of Person under 18 and Breach of Trust

[26] Section 718.2 provides for a sentence to be increased or reduced to take account of any relevant aggravating or mitigating circumstances related to the offence or the offender. This provision contains a non-exhaustive list of examples of aggravating and mitigating factors to consider. Under s. 724(3)(e) the Crown must prove any aggravating factor beyond a reasonable doubt.

[27] The Crown argues the following two 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

[28] 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 issue that DS was under age 18 when Drinkwater abused him. He was about nine years old when the abuse began and Drinkwater was about 24. The disparity is 15 years. The youthful age of the victim is recognized as an aggravating factor [R. v. M. (D.) 2014 CarswellOnt 8579 Ont. C.J.)].

Position of Trust

[29] The parties differ on whether Drinkwater was in a position of trust or authority over DS.

[30] 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 played a more traditional role of trust such as parents, stepparents, other adult relatives, teachers, sports coaches, pastors, someone who stands in loco parentis, etc. In R. v. D.D. the court found the offender, a close family friend, who assumed a role akin to a stepfather, stood in a position of trust in relation to the four boys. It is the defence’s view that Drinkwater did not assume such a role in relation to DS. He did not occupy a position of trust or authority. He did not stand in loco parentis.

[31] The Ontario Court of Appeal has found trust relationships between adult offenders and children in less traditional situations. 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:

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.)]

[32] The Ontario Court of Appeal found a trust relationship in a circumstance where 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 four. The offender engaged the child in many types of demeaning sexual acts that escalated overtime. 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.)]

[33] I find beyond a reasonable doubt that the facts of the case before me disclose a trust relationship between DS and Drinkwater. DS knew Drinkwater for several years before the abuse began. DS would visit Drinkwater in his basement apartment below DS’s family’s home. DS has an older brother I. who did not live with DS. He saw him rarely. DS testified that when Drinkwater moved in he and Drinkwater became very close. They would hang out together and do things together. DS’s brother, I., his mother and his friend J.W. all confirmed DS’s evidence that Drinkwater and DS were always together. Each of those witnesses testified they would see Drinkwater carrying DS around like a baby even when he was 12 years old.

[34] There was 15 years’ difference in their ages. DS said he looked up to Drinkwater as an older brother. He looked to Drinkwater for friendship and support. He rarely associated with friends his age. His mother had alcohol abuse issues and did not give the care and attention to him expected of a mother of a young child. After all, it was with DS’s mother’s blessing that Drinkwater moved in and was allowed to sleep on his bedroom floor. DS was vulnerable. It is understandable, and I accept, that he regarded Drinkwater like a big brother, a person in a relationship of trust.

[35] I find this situation falls within the type of non-traditional trust relationships found in other cases.

Other Aggravating Factors

[36] In addition to the statutorily recognized aggravating factors, 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:

Length of time of the abuse

[37] 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. The Crown and defence disagree on the length of time Drinkwater stayed with DS’s family and slept on DS’s bedroom floor. Naturally, the jury’s verdict does not disclose the length of time it considered in arriving at the verdict.

[38] A prolonged period of abuse is recognized as an aggravating factor that the Crown must prove beyond a reasonable doubt. A guilty verdict amounts to a finding by the jury that the Crown has proved the essential elements of an offence beyond a reasonable doubt. Any aggravating facts that underpin the jury’s verdict must be proved by the Crown beyond a reasonable doubt. Any reasonable doubt on those facts must be resolved in favour of the offender. What this means is where the basis of the jury’s verdict is unclear the sentencing judge should make their own independent determination of the facts, consistent with the jury’s verdict: [R. v. Gardiner, 1982 30 (SCC), [1982] 2 S.C.R. 368, at p. 9, (S.C.C.) and R. v. Roncaioli, 2011 ONCA 378, [2011] O.J. No. 2167, at para. 59, (Ont. C.A.)]

[39] The Crown relied on the evidence of DS, the mother and J.W. to establish that Drinkwater lived at DS’s apartment for more than a year. DS testified Drinkwater moved in around late 1987 and left in 1990/1991, over two years. The mother testified Drinkwater arrived in late December 1987 and spent two Christmases with them, about one-and-a-half years. J.W. testified Drinkwater lived with DS’s family for about two years

[40] Drinkwater’s evidence about the period of time he lived with DS’s family changed. He first testified he moved in with DS’s family in November 1990 and stayed for four to six weeks. He then stated he moved in at the end of 1990 and left in April 1991 when he was kicked out.

[41] Drinkwater presented alibi evidence attempting to establish he lived elsewhere for a part of the period he is alleged to have abused DS. That evidence conflicts with that of Robin Peddle whom he called to support his alibi. Drinkwater’s evidence was that he moved to Edmonton to live with Peddle in June 1987 and left in November 1987. Peddle’s evidence was that he moved to Edmonton in June 1988 and left in November 1988. Drinkwater testified he lived with Peddle in Barrie from November 1987 to December 1987 and Peddle’s evidence was that they lived together in Barrie in November and December 1988.

[42] Drinkwater brought evidence of a domestic violence occurrence report from Edmonton, dated August 29, 1988 as proof he lived there at that time. Of course that does not prove Drinkwater lived in Edmonton at that time.

[43] Drinkwater’s evidence on the period of his stay with DS was internally inconsistence and inconsistent with his alibi witness. It does not raise a reasonable doubt as to the period of time the Crown’s witnesses allege the abuse occurred. I am persuaded beyond a reasonable doubt that the abuse occurred over a period of about two years.

Frequency of sexual activity

[44] This factor is self-explanatory. DS testified the abuse occurred several times per week over the approximate two years Drinkwater lived at DS’s apartment. This means Drinkwater abused DS several hundred times during his stay at the apartment. Repeated abuse has been recognized as an aggravating factor: [R. v. D.D., at para. 26].

DS’s vulnerability

[45] DS is from a socially and financially disadvantaged background. His mother had alcohol addiction problems and was not available to him to provide care and protection. Once Drinkwater entered into his life, he dominated DS’s time causing DS to be isolated from friends of his own age. He depended on Drinkwater as a big brother for friendship and social interaction. Vulnerability of the victim is a factor considered on sentencing: [R. v. D.M., at para. 47].

Types of abuse

[46] 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.)].

[47] The abuse was prolonged, frequent and varied. It involved mutual fondling, masturbation and oral sex. There was no anal penetration but not for a lack of trying. Drinkwater could not achieve anal penetration after an attempt so he resorted to thrusting his penis between DS’s thighs. The Crown was able to establish beyond a reasonable doubt through reference to various areas of the evidence before the jury and the final jury charge that those forms of sexual abuse underpin the jury’s verdict.

[48] DS was a small child. By law there is no issue of consent. There were no threats of violence or actual violence in these encounters.

Lost normal childhood and life experience and harm to DS

[49] 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., at para. 45](https://www.canlii.org/en/on/onca/doc/2002/2002canlii44915/2002canlii44915.html); and [R. v. Woodward, at paras. 72 and 73]

[50] DS’s Victim Impact Statement shows the ways in which the childhood abuse has gone on to haunt his life. It sets out his feelings about how he became socially isolated from what other kids of his age were doing. In his teens he turned to drugs and alcohol to try to forget the abuse. He has continuously feared the prospect of seeing Drinkwater again.

[51] DS’s education was abruptly ended at grade 10. He had problems applying himself to his school work. This has presented a barrier to him achieving a career as an adult.

[52] DS related how he has had difficulty forming relationships with women because of his fear of rejection. He has suffered depression and anxiety and after he went to the police he attempted suicide twice. This is confirmed by his mother. He has been diagnosed with PTSD. He hopes the professional help he has been receiving will help him to attain a normal life.

Drinkwater’s criminal record

[53] Drinkwater has a dated criminal record containing eight charges spanning from 1983 to 2002. His last conviction was about ten years before he was arrested for the offences before the court. His offences are minor theft charges and failure to comply with recognizance and probation and obstruct police officer. There were no sexual abuse related charges. The criminal record is not a strongly aggravating factor.

Lack of steady employment

[54] There is not much evidence about Drinkwater’s employment. He did not appear to have steady employment. His life was rather transient. He moved from town to town and to and from living at other peoples’ homes. What came out in evidence is that he did odd jobs, fixing cars, and he worked at Tim Hortons. There is no evidence he sought a bail review to request an opportunity to work.

No expression of remorse

[55] The fact Drinkwater did not express remorse for the offences against DS cannot be considered an aggravating factor although such an expression can be regarded as a mitigating factor.

No Grooming

[56] The Crown argues this is a case where Drinkwater engaged in grooming to induce DS into a close relationship with him to facilitate the sexual abuse. 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.)].

[57] The Ontario Court of Appeal has held that grooming can take the form of cultivating a relationship of trust or undertaking a process of relinquishing inhibitions all with a view to advancing a plan to sexually exploit a young person: [R. v. G.C.F., 2004 4771, at para. 21, (Ont. C.A)].

[58] The evidence the Crown relies on is DS’s visits to the basement apartment where Drinkwater lived before he moved to DS’s family’s apartment. The evidence suggests DS visited Drinkwater in the basement apartment when he was about five years old several times to play with model cars. There was an approximate four year gap before Drinkwater moved into DS’s apartment. There is no evidence DS was involved with Drinkwater during this gap period. I agree with the defence that this is not a case of grooming.

Mitigating Factors

Drinkwater’s background

[59] Drinkwater had a very sad life as a child and young person. At age 4 he and his siblings were apprehended by CAS and he had been separated from his brothers and sister from that time. He was bounced from foster home to foster home. He was physically, sexually and emotionally abused. He ran away from foster care at age 14 and dropped out of school with only a grade 9 education.

[60] Drinkwater then started to associate with criminal elements involved in the sex and drug trade. He developed drug and alcohol addictions. He got involved in petty crime. He has not made much of his life as an adult.

Drinkwater’s health and age

[61] Drinkwater is now 51 years of age. He has a heart condition and high cholesterol and takes several medications.

Social and family connections

[62] Drinkwater lost his biological family early in life through no fault of his own. He only recently discovered the identity of his father. He has had little connection with his siblings. However, it appears, and this was confirmed in evidence by Robin Peddle, he became close to her children and became what she described as a stepfather for her sons. They have remained close and it appears there are grandchildren in that family with whom Drinkwater has a family connection.

[63] His surety, Rene Vaillancourt, an elderly man, has been in Drinkwater’s life for 30 years and has remained a close friend.

No repetition of sexual offences against children

[64] There is no evidence or suggestion Drinkwater has gone on to commit further sexual offences against children from the early 1990s when he left DS’s family’s home. This can be regarded as a mitigation factor in that it suggests a low risk to re-offend.

Strict Bail Conditions

[65] Drinkwater has now been on strict bail conditions for 46 months, nearly four years, with no incidents of non-compliance since his arrest on August 24, 2011. He has been under house arrest at his surety’s home and is prohibited from leaving the home without accompaniment by his surety. He is required to report to the police each week. He cannot possess any recording devices, computers or any device capable of recording still images.

[66] Courts have recognized strict bail conditions especially involving house arrest as a mitigating factor. There is no strict formula for how much to reduce a sentence in consideration of bail conditions. This is a matter to be determined at the discretion of the trial judge: [R. v. Downes, 2006 3957 (ON CA), [2006] O.J. No. 555 (Ont. C.A.)].

[67] The Crown advanced the position that a portion of Drinkwater’s bail time is the result of a delay in setting a second date for trial that was caused by the defence. This factor was considered by the Ontario Court of Justice when looking at credit on sentencing: [R. v. Singh, 2011 ONCJ 394, [2011] O.J. No. 3581 (Ont. C.J)]. The original trial date in the case at-hand was in March 2013 and the trial proceeded ten months later in January 2014.

[68] That delay involved the defence seeking an adjournment of the initial trial date in order to bring a motion to obtain DS’s youth records which the defence could have sought to obtain earlier. In the Crown’s view any credit to the defence in reducing the sentence in view of bail conditions should be limited by the defence’s part in the delay.

[69] I note there were also other delays that have contributed to the length of bail. The sentencing hearing was also adjourned. The court ordered an adjournment asking the Crown to obtain a Gladue report and a further adjournment because of a scheduling conflict on the court’s part. There were further adjournments granted because of ALST’s administrative problems that delayed the preparation of the report.

[70] I considered the defence delay and delays that were not the fault of the defence in the context of the lengthy and strict bail terms and I will allow six months’ credit.

THE PARTIES’ POSITIONS

Kienapple

[71] The parties agree, as do I, that count 1, sexual assault, should be Kienappled, or stayed, as being a lesser charge arising out of the same legal and factual nexus as counts 2 and 3. Therefore, counts 2 and 3 remain for sentencing.

The Crown’s Position

[72] The Crown seeks a prison term of three to five years and the following ancillary orders and orders of prohibition. The defence did not challenge those orders.

[73] The Crown seeks, and I agree, the imposition of a mandatory DNA order and a SOIRA (Sex Offender Information Registration Act) order. The SOIRA order is to be effective for life.

[74] The Crown also seeks the imposition of an order under s. 161(1)(b) of the Criminal Code. Section 161(1)(b) 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 age 16. The Crown asks for the order to be for life.

[75] I find s. 161(1)(a) is also pertinent to the circumstances of this case. Section 161(1)(a) prohibits the offender 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, school ground, playground or community centre.

[76] I find it appropriate that after release from prison, Drinkwater not attend a public park or public swimming area where persons under the age 16 years are present or would reasonably be expected to be present, or a daycare centre, school ground, playground or community centre. Further, after release from prison, Drinkwater is not to seek employment as a volunteer in any place that would put him in a position of trust or authority over a child under the age of 16 years. Given the nature and lengthy duration of his abuse of a small vulnerable child, the s. 161 orders shall be for life.

[77] There will also be a Criminal Code, s. 109 mandatory weapons prohibition for ten years to commence after Drinkwater is released from prison.

The Crown’s Case Authorities on Length of Sentence

[78] The Crown relies on the following cases to support its position on the imposition of a prison term.

• R. v. B.(J.), [1990] O.J. No. 36 (Ont. C.A.) the adult male offender sexually abused his stepdaughter for 10 years from age six to 14. He had a previous conviction for sexual assault including intercourse on his stepdaughter’s eight year old girlfriend. The court found his sentence for his prior conviction had no effect on him. The court held a penitentiary sentence of three to five years is appropriate for offenders who stand in loco parentis, and engage in sexual assault on children.

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

• R. v. D.D. (2002), 2002 44915 (ON CA), 163 C.C.C. (3d) 471 (Ont. C.A.) , the adult male offender, a close family friend, over a seven-year period starting when he was 25, befriended four young boys ages five to eight 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 nine years, one month imprisonment which was reduced by one year for pre-trial custody.

• R. v. E.T., 2011 ONCA 86, [2011] O.J. No. 374 (Ont. C.A.) the adult male offender, age 68 with no criminal record was sentenced to three years’ imprisonment for gross indecency, sexual assault and sexual exploitation committed against the child of his spouse’s cousin from when she was age 10 to age 17 years. The Court of Appeal upheld the sentence.

• R. v. G.A.G., [2006] O.J. No. 67 (Ont. C.A.) the Court of Appeal upheld a four-and-a-half years sentence for an adult male offender who committed progressively more severe sexual assaults for many years on his son and nephew from fondling, mutual masturbation to fellatio.

[79] I also find the further case authorities instructive:

• R. v. Woodward (2011), 276 C.C.C. (Ont. C.A.) the adult male 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 six-and-a-half 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. J.B., 2012 ONCA 805 (Ont. C.A.) involves an adult male offender who stood in loco parentis and forced a nine year old to fellate him on one occasion. For that one act he was sentenced to five years’ imprisonment.

The Defence’s Authorities on Length of Sentence

[80] The defence seeks a conditional sentence or in the alternative, a prison term of two years less a day.

[81] Regarding the availability of a conditional sentence, the defence points to the legislation passed in 2008 that precluded a conditional sentence for serious personal injury offences. I agree with the defence that this legislation does not apply to Drinkwater’s offences since the offences with which he was convicted arose long before 2008. Therefore, a conditional sentence is not foreclosed to Drinkwater.

[82] The case authorities presented by the defence are as follows:

• R. v. Stockton, [2001] O.J. No. 128 (Ont. C.A.) the Ontario Court of Appeal upheld a global 21-month sentence for an adult offender on two counts of sexual intercourse and one count of luring a 12-year old child on a computer.

• R. v. Leigh, [2011] O.J. No. 128 (Ont. C.A.) the adult male offender with no previous criminal record pleaded guilty to a single count of sexual assault committed on a male victim from ages 11 to 13 in connection to two incidents involving anal intercourse and mutual fellatio. The sentence was two years less a day.

• R. v. R.B., [2003] O.J. No. 3450 (Ont. C.J.) the adult male offender, age 68 at sentencing and with bad health, sexually abused his daughter more than ten times when she was between ages eight and ten and he was in his 40s. The abuse involved placing his mouth on the vagina of his daughter and digital penetration. The court noted his lack of propensity for recidivism and absence of paedophilic tendencies. He received a sentence of two years less a day.

• R. v. L.T., [2003] O.J. No. 5851 (Ont. S.C.J.) the adult male offender, age 32 at the time and age 58 at sentencing, was charged with one instance of fellatio on his 14-year-old foster daughter. He was a United Church Minister. He expressed remorse and began receiving counselling.

SUMMARY ON LENGTH OF SENTENCE

[83] By way of summary, Drinkwater’s sentence takes into account the following aggravating factors:

• DS’s particular vulnerability and his young age;

• Drinkwater’s trust relationship with DS;

• The 15-year difference in their ages;

• The many hundreds of acts of sexual abuse involving mutual fondling and masturbation, oral sex and an attempt at anal sex committed over a period of about two years;

• the emotional and psychological impact on DS of the abuse by Drinkwater;

• Drinkwater’s prior criminal record; and

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

[84] The following mitigating factors have been considered:

• Drinkwater’s own experience with sexual abuse, emotional and physical abuse while in the care of CAS;

• Drinkwater’s removal and alienation and disaffection from his birth family;

• Absence of evidence he engaged in further incidents of sexual abuse of children since his offences against DS that ended in 1991;

• Drinkwater’s age of 51 years;

• his health conditions;

• his longstanding social connections with his surety and his surrogate stepsons and prospective relationships with his step grandchildren; and

• Drinkwater’s 46-month strict house arrest bail conditions and his compliance with these conditions for this prolonged period.

[85] Certainly, the mitigating facts of Drinkwater’s background bear some consideration. His very sad and broken life circumstances from early childhood must be taken into account. However, I do not find this reduces his blameworthiness or the devastating effect of his acts on DS’s life. The other mitigating factors of the lack of evidence of re-offence since 1991, Drinkwater’s compliance during a lengthy bail period, and his health and age are all factors to also be weighed against the aggravating factors.

[86] However, looking at the whole of the evidence, I find the aggravating factors significantly outweigh the mitigating ones. Drinkwater was 15 years older than DS who was a small boy when he encountered Drinkwater’s abuse. Drinkwater testified he knew DS’s mother had alcohol abuse problems and that she was not protecting DS. He assumed a position of trust in relation to a vulnerable young boy. Drinkwater took advantage of the situation and abused DS hundreds of times over an approximate two year period when he was around ages nine to 12, progressing from mutual fondling and masturbation to oral sex to an attempt at anal intercourse. The devastating social, emotional and psychological toll of this abuse on DS must also be taken into account. The case authorities support a finding that this type of abuse is deserving of a penitentiary term.

[87] The cases presented by the Crown imposed penitentiary terms on adult offenders in a position of trust who, over prolonged durations, committed progressive acts of sexual abuse of children below 14 years of age. Upper end of the range penitentiary sentences were imposed in cases that had some or all of the following factors. The offenders groomed their victims, engaged in full sexual or anal intercourse, engaged in threats, extortion or violence, or gave unlawful substances to the victims. None of the latter factors are present in the case at-hand.

[88] The cases presented by the defence where reformatory or conditional sentences were imposed had distinguishing features. The offences were either not committed over a lengthy duration, the sexual abuse did not get progressively worse, there was a single or small number of incidents, the offender pleaded guilty, the offender had no past criminal record or the offender was not in a position of trust. Some of the defence authorities also pre-dated R. v. D.D.

[89] 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. I find a sentence on the lower end of the range, a global three-and-a-half years’ sentence with six months’ credit for the strict bail conditions, is appropriate in the circumstances.

SENTENCE

[90] I will now pronounce sentence. John Drinkwater, will you stand.

[91] You have been convicted for sexual assault, sexual interference and invitation to sexual touching. You stand to be sentenced for the sexual interference and invitation of sexual touching convictions.

[92] I sentence you to three-and-a-half years’ imprisonment for sexual interference and to three-and-a-half years’ imprisonment for invitation to sexual touching. The sentences on those convictions shall run concurrently.

[93] Your sentence will be a three-and-a-half year prison term. You will receive six months’ credit for your strict 46-month bail conditions. You will therefore serve three years in the penitentiary.

[94] In addition there shall be the following ancillary orders and orders of prohibition:

a) a SOIRA order for life.

b) an order to provide a DNA sample;

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

d)(i) a Criminal Code, section 161(1)(a) order that John Drinkwater shall not attend a public park or public swimming area where persons under the age of 16 are present or can reasonably be expected to be present, or a daycare centre, school ground or play ground or community centre . This order shall be enforceable for life to commence after release from prison.

(ii) a Criminal Code, section 161(1)(b) order that John Drinkwater 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 age 16. This order shall be enforceable for life to commence after release from prison.

B.A. Allen J.

Released: June 5, 2015

CITATION: R. v. John Drinkwater, 2015 ONSC 3513

COURT FILE NO.: CR-14-300000-23-0000

DATE: 20150605

ONTARIO

SUPERIOR COURT OF JUSTICE

Her Majesty the Queen

– and –

John Drinkwater

Accused

REASONS FOR sentence

B.A. Allen J.

Released: June 5, 2015