COURT FILE NO.: CR-15-275-0000 DATE: 2016-06-10

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen Andrew C. Shatto, for the Crown

- and -

Gene Cassidy Karen E. Jokinen, for the Accused

Accused

HEARD: April 29 and June 3, 2016

REASONS FOR SENTENCE

Conlan J.

I. Introduction

[1] Gene Cassidy, a former high school teacher and highly regarded member of the community, sexually exploited a 17 year-old girl, his former student. He pleaded guilty to the charge under section 153 of the Criminal Code. An Agreed Statement of Facts was filed.

[2] There must be consequences to befall upon Mr. Cassidy for having abused his position of trust and authority in victimizing, for a sexual purpose, a teenager.

[3] What should those consequences be?

[4] Whatever sentence this Court imposes on Gene Cassidy today, one side, maybe both, will be disappointed.

[5] The victim and her family and supporters may believe that the sentence is too lenient, while Mr. Cassidy and his family and friends may think that the punishment goes too far.

[6] Members of the public, knowing what they know through the media, will cast their votes as well. That is part of the beauty of our criminal justice system in Canada – it is open and transparent and, in some ways, accountable to the citizenry.

[7] I am tasked, however, to do what I think is right. That is different than what is popular. I must craft a sentence that is proportionate to the gravity of the offence committed and the degree of responsibility of the offender and yet, at the same time, one that is responsive to the unique circumstances of the offender, Gene Cassidy.

[8] Whatever punishment I impose must reflect the highly discretionary and individualized process of sentencing. No two sets of circumstances are alike. No two offenders are the same.

[9] I must carefully weigh the mitigating and aggravating factors in this case, and there are several on each side of the equation.

[10] I must consider the principles of sentencing as set out in the Criminal Code, the most important ones here being denunciation, deterrence and rehabilitation, likely in that order.

[11] I must recognize that Mr. Cassidy is a first-offender, and the jurisprudence is clear that a certain degree of restraint ought to be applied to a first term of imprisonment.

[12] We know that Mr. Cassidy is going to jail. There is a minimum term of 45 days in custody (that has since been increased but only after the offence period). We know that he could go to prison for a very long time – ten years is the maximum penalty.

[13] We also know, and counsel essentially conceded this, that Mr. Cassidy will not receive either the minimum or the maximum penalty available. He will go to jail for a duration in between those two extremes but much closer to the minimum.

II. The Positions of the Crown and the Defence

[14] In a careful and thorough fashion, the Crown articulated its position as being one that is balanced: 18 months to two years less a day in jail, three years’ probation, a Sex Offender Registry Order for twenty years, a primary DNA Order and a firearms and weapons prohibition Order, whether under section 109 or 110 of the Criminal Code, for ten years.

[15] In what I have considered to be a rather compelling argument, the Defence submits that something closer to the minimum, 45 days in jail, or at least significantly less than 18 months as suggested by the prosecution, ought to prevail. No issue is taken with the Sex Offender Registry and DNA Orders. The firearms and weapons prohibition Order is opposed. In terms of probation, a duration of 18 months is suggested, and a couple of the terms advocated for by the Crown are disputed.

III. The Ancillary Orders, including Probation

[16] The applicable victim fine surcharge will apply, with thirty days for payment upon Mr. Cassidy’s release from custody.

[17] Unopposed, the Sex Offender Registry Order for twenty years is issued, along with the primary DNA Order.

[18] On whether a firearms and weapons prohibition Order is mandatory in this case, my view is that it is not. Whether section 109 of the Criminal Code applies to a conviction for sexual exploitation depends on the facts of the case, specifically, whether violence or attempted violence was used or threatened.

[19] Those factors are absent in this case.

[20] On the discretionary Order under section 110 of the Criminal Code, I decline to make it. There is nothing in the facts of this case or the circumstances of this offender that call for such a penalty beyond the term of the probation Order. A firearms and weapons ban will be a condition of the probation Order.

[21] Turning to the probation Order that shall follow Mr. Cassidy’s term of imprisonment, it shall be for two years. I agree with the Defence that three years, the maximum length available under the Criminal Code, is too long, especially given the bail restrictions that have been in place and the rehabilitative steps that Mr. Cassidy has already taken since his arrest.

[22] Eighteen months would have been reasonable as well, however, an additional six months will not hurt Mr. Cassidy’s continuing rehabilitation and will afford the victim and her family some peace of mind.

[23] All of the statutory terms shall apply to the probation Order, plus reporting, counselling as directed (including the signing of any necessary releases to monitor compliance), no communication with the victim or her parents, no attendance at any known residence, place of employment or place of education of the victim or her parents, and no firearms or weapons.

[24] I decline to include in the probation Order two further conditions proposed by the Crown.

[25] First, the prosecution requested a term that Mr. Cassidy stay 500 metres away from the victim and her parents. That is unnecessary – as the offender must not communicate with them in any way and must not attend at any place where he knows they live, work or go to school, there is no risk of any mischief.

[26] Second, the Crown asked for wording similar to that found in subsection 161(1)(b) of the Criminal Code, prohibiting Mr. Cassidy from engaging in any employment or volunteer work where he would be in a position of trust or authority vis à vis persons under 18 years old. I see no basis for that condition in the facts of this case. This was not an indiscriminate criminal enterprise on the part of Mr. Cassidy; rather, he chose to engage with this particular victim. Further, the risk of recidivism is very low.

IV. The Length of Imprisonment

The Facts

[27] Before turning to the specific aggravating and mitigating factors at play in this case, a brief review of the circumstances of the offence is required. This is taken from Exhibit 1 – the Agreed Statement of Facts filed with the Court.

[28] The offender, born in 1955, was a teacher and basketball coach at the high school where the victim, born in 1993, attended. He had taught the victim mathematics. He had coached the complainant’s basketball team. The victim’s parents were also teachers at the same school, and they were friends with Mr. Cassidy.

[29] The offender retired in June 2009, however, he continued to coach the victim basketball in 2010.

[30] The inappropriate sexual touching of the victim by Mr. Cassidy began in January 2010. The victim turned 17 years old that month. He would hug her, put his hands under her shirt and on to her back and touch her bra.

[31] In May 2010, he gave her a massage while out of town at a basketball tournament. He convinced her to remove her clothing. He fondled her breasts and buttocks. He touched and digitally penetrated her vagina. There was no oral sex performed by either party on the other. He did not expose himself. She did not touch his penis. There was no intercourse.

[32] The sexual encounters continued throughout 2010, at various locations, even after the coaching stopped. He masturbated her on occasion. Simulated intercourse occurred, while fully clothed. She did not masturbate him. There was no oral sex. There was no intercourse.

The Case Law

[33] The following is a summary of the Court decisions relied upon by each side.

[34] The Crown filed the decision of Bovard J. of the Ontario Court of Justice in R. v. Biss, 2012 ONCJ 560. The male offender, a high school teacher, pleaded guilty to one count of sexual exploitation involving a 16 year-old female student. Over a period of about six months, there was fondling, mutual oral sex, masturbation, digital penetration and attempted sexual intercourse. The offender had no prior criminal record. The sentence included 14 months’ imprisonment.

[35] There is no doubt that the Biss, supra decision bears similarities to the case before this Court, although the mutual oral sex in the facts of the decision relied on by the Crown is a distinguishing feature.

[36] The Crown filed the decision of the Court of Appeal for Ontario in R. v. Aird, 2013 ONCA 447, [2013] O.J. No. 3027. The male offender, a grade 8 teacher, was found guilty after trial of sexually exploiting a 17 year-old female that he was hired to tutor. The sexual activity began with touching and then progressed to oral sex and finally to intercourse. The sexual activity took place over a period of about 15 months. The offender had no prior criminal record. The trial judge had imposed a sentence that included one year in custody. The appeal by the accused was dismissed.

[37] The sexual intercourse is a major distinguishing feature of the facts in Aird, supra as compared to what happened between Mr. Cassidy and his victim.

[38] The Crown filed the decision of Woolcott J. of the Ontario Court of Justice in R. v. P.G., 2005 ONCJ 462, undisturbed by the Court of Appeal for Ontario in its short Endorsement reported under the name Gaukrodger at, [2006] O.J. No. 3614. The female offender, an elementary school teacher and sports coach, pleaded guilty to sexual exploitation of a 14 year-old male former student. There were multiple acts of full sexual intercourse. The offender had no prior criminal record. The sentence imposed included a jail term of 15 months.

[39] I do not find the P.G., supra decision instructive. The facts, including multiple incidents of full sexual intercourse, are simply too far removed from those before this Court.

[40] The Crown also filed numerous case digests, which I have reviewed.

[41] The Defence filed the decision of Koturbash J. of the British Columbia Provincial Court in R. v. Roberts, 2015 BCPC 217. This was not a teacher-student case, and the facts and the ultimate disposition are unimportant as the decision is being relied on for its analysis, helpful in my view, of the relevant aggravating and mitigating factors to consider, many of which are germane to the sentencing of Mr. Cassidy.

[42] The Defence filed the decision of Stone J. of the Ontario Court of Justice in R. v. P.E.S., 2010 ONCJ 112. The male offender, a hockey coach, pleaded guilty to sexual exploitation of a 17 year-old female player. On one occasion, the offender had digitally penetrated and performed oral sex on the victim. The offender had a very dated, limited and unrelated criminal record. The sentence imposed included 114 days in custody.

[43] This is no doubt the best case that the Defence could find. It is distinguishable primarily on the basis that there was just one isolated incident of sexual activity between the offender and the victim during the offence period. The same cannot be said for the case before this Court.

[44] The Defence filed the decision of Nordheimer J. of the Ontario Superior Court of Justice in R. v. Debidin, 2007 ONSC 4000, reversed on an unrelated issue regarding the Sex Offender Registry by the Court of Appeal for Ontario in its decision reported at 2008 ONCA 868, [2008] O.J. No. 5219. The male offender pleaded guilty to one count of sexual exploitation and one count of making child pornography. He was the 15 year-old female victim’s dance teacher. There were multiple incidents of sexual activity, which activity included mutual oral sex, attempted sexual intercourse and digital penetration. The offender had no prior criminal record. The sentence imposed included six months’ imprisonment.

[45] The decision of Nordheimer J. is quite relevant to my consideration for Mr. Cassidy. The facts are very similar – a teacher-student relationship, a female victim in her mid-teens, a guilty plea, multiple incidents of sexual activity including digital penetration, no sexual intercourse, and a first-time offender.

[46] The Defence filed the decision of Robichaud J. of the New Brunswick Court of Queen’s Bench in R. v. C.A.C., 2006 NBQB 372. The male offender, a high school teacher, was found guilty after trial of sexually exploiting a 16 year-old female student. Over the course of about ten months, there was unspecified sexual activity between the offender and the victim. The offender had no prior criminal record. The sentence imposed included six months in custody. The Court, at paragraph 27 of its decision, opined that the range of sentencing for adult offenders who sexually exploit young persons, including cases involving sexual intercourse, is six months to 18 months’ imprisonment.

I will say now that I do not necessarily agree with the latter point. In my view, actual sexual intercourse will usually take the range of sentencing to a rock-bottom starting point higher than six months in jail, even on a guilty plea and even assuming no prior criminal record.

[47] With respect, I do not find the decision in C.A.C., supra that helpful. If there was actual sexual intercourse in that case, especially considering the absence of any guilty plea and the offensive attitude of the offender spoken about in the decision, I find the six-month custodial sentence imposed to be surprisingly low.

[48] Finally, the Defence filed the decision of Cacchione J. of the Nova Scotia Supreme Court in R. v. Fraser, 2010 NSSC 286. After trial, the male offender teacher was found guilty of having sexually exploited a 15 year-old female student. The sexual activity persisted for more than one year and included various forms of sexual intercourse on multiple occasions. The victim was a particularly vulnerable person. The offender had no prior criminal record. The sentence imposed included nine months’ imprisonment.

[49] For the same reasons outlined above, respectfully, I do not find the Fraser, supra decision that helpful. It seems to have turned out remarkably well for that offender.

The Aggravating Factors

[50] That Mr. Cassidy engaged in sexual activity with the victim more than once and over a period of many months are aggravating factors.

[51] That the sexual activity intensified over time, from hugs to digital penetration and grinding while clothed, reveals a grooming element to this case that is aggravating.

[52] It is aggravating that Mr. Cassidy was so much older than the victim at the time of the sexual misconduct – the age difference is nearly forty years.

[53] The gross breach of trust is an aggravating factor here. Not only was Mr. Cassidy the victim’s former teacher, he was her basketball coach and a friend of the family.

[54] The impact on the local community is an aggravating factor. This is a relatively small place. There is a chilling effect when a trusted adult in an authoritarian role abuses, for sexual gratification, a minor person. Our schools are supposed to be places where young persons learn and grow, not where they meet adult teachers who seek to prey upon them.

[55] Finally, the impact that this crime has had on the victim and her family cannot be overstated. I listened carefully when the victim read out her statement in the Courtroom, often crying. From bed-wetting, to sleep problems, to feelings of guilt, to unrelenting trust issues, to a loss of a sense of innocence and feelings of betrayal and embarrassment, nobody deserves to be victimized in the way that this young lady has experienced. The family as a whole has been traumatized.

[56] “I lived a secret life”, said the victim. It must be very difficult to struggle with that today. She will never get back that time.

[57] I commend the victim for having the strength and fortitude to eloquently explain to the Court how her experiences with Mr. Cassidy have changed her life forever.

The Mitigating Factors

[58] The fact that Mr. Cassidy pleaded guilty at a relatively early juncture in the process is highly mitigating. It is a sign of remorse. It is an acceptance of responsibility. It saves the victim and her family from having to endure a very lengthy and painful litigation process.

[59] The degree and sincerity of Mr. Cassidy’s remorse is a mitigating factor. Many of the character letters filed by the Defence speak to this issue. The letter from his counsellor, Mr. van Steyn, confirms that Mr. Cassidy is deeply regretful and remorseful and apologetic for his criminal misbehaviour.

[60] The offender’s unblemished history and lack of any prior criminal record is a mitigating factor.

[61] Mr. Cassidy’s lifetime of achievement, including his solid employment history, and otherwise good character are mitigating factors. There is no need to outline in detail the content of the fourteen character letters filed by the Defence, other than to say the following. First, the letters are likely the most impressive collection that I have seen in a sentencing matter. Second, they are from a myriad of persons including Mr. Cassidy’s wife, his son, his daughter, his wife’s sibling, his mother-in-law, fellow teachers, a former student and basketball player, friends, and community leaders. Third, the letters portray a man in Mr. Cassidy who has spent a lifetime giving to others. Fourth and perhaps most important, the letters speak to Mr. Cassidy’s insight in to what he has done and how he can change for the better.

[62] Although facing a stint in jail and a massive civil lawsuit, Mr. Cassidy’s family and friends are standing with him. That is a testament to his good character.

[63] After his arrest, Mr. Cassidy took steps to rehabilitate himself. He went to marriage counselling. He went to individual counselling, and Mr. van Steyn’s letter is evidence of the offender’s insight in to his criminal behaviour and his very low risk of ever re-offending. Mr. Cassidy’s post-offence conduct has been impeccable, as was his pre-offence conduct. That is a mitigating factor.

[64] Also mitigating is that Mr. Cassidy has complied, without incident, with very restrictive bail conditions for more than one year now. His Recognizance of Bail contains a catalogue of terms including reporting to the police, not attending at numerous public places, not coaching, tutoring or teaching anyone under 18 years old, not attending an entire City close to where his daughter lives, not attending any school or building or event organized by the local School Board, not being in the presence of any minor person except a relative, and no firearms or weapons. Frankly, the bail document reads as if Mr. Cassidy was a random sexual predator at loose in the community, which was not the case.

[65] Mr. Cassidy’s cooperation with the police is a mitigating factor. Upon arrest, he gave an inculpatory statement. It has never been a secret to those involved that Mr. Cassidy always intended to plead guilty to what he did to the victim.

[66] Beyond the bail restrictions and the outstanding civil lawsuit, the collateral consequences that the offender has already experienced is a mitigating factor. The case, from the outset, has been covered extensively by the local media, understandably so. The public humiliation and stigma that has resulted will follow Mr. Cassidy until he dies, and it will impact his family members as well, particularly his wife. The loss of his reputation and position in the community is irreversible. Even those community members who authored the character letters, if they were being completely forthright, would admit that they will forever look at Mr. Cassidy differently, even a little, than they did before.

General Observations

[67] Of course, Mr. Cassidy brought all of this upon himself. If he wants to blame someone for what has occurred, he need not look past the image in the mirror. He knows that. In a small fraction of his life, he surrendered to temptation and violated the trust of a young girl. For that, aside from anything decided today, he has and will continue to pay a heavy price.

[68] Career criminals and otherwise bad or immoral people often feel less sting from a criminal charge and sentence because the fall is a much shorter one. In Mr. Cassidy’s case, the fall is multi-storied.

[69] He is a sixty year-old, retired teacher and coach with a devoted wife, loving children and a group of loyal supporters, but the truth is that, at coffee shops, schools and downtown stores, when the name Gene Cassidy is mentioned it will be his having taken advantage of a female student that will be mentioned first most of the time. That is a haunting thought for anyone to harbour.

[70] As I read the character letters filed by the Defence, I was struck that some of them have a spiritual or religious undercurrent to them. Ironically, so does the victim impact statement filed by the young lady who was sexually exploited by Mr. Cassidy. Perhaps both sides will find some comfort in that important part of their lives.

[71] “I think that it is important for the scales of justice to take into account the overall weight of a person’s life work when deciding what price will be paid for these bad decisions”. Paul Matthies wrote that in one of the letters filed by the Defence. I agree with that sentiment.

V. Conclusion

[72] Having regard to the circumstances of the offence, its seriousness and its devastating effect on the victim, the circumstances of the offender, the principles of sentencing and the aggravating and mitigating factors that exist in this case, and having reviewed the submissions of counsel, the filings and the case law, I have come to a determination on the length of imprisonment.

[73] As alluded to above, I am of the view that 45 days in jail is insufficient. The denunciatory and deterrent objectives of the sentence would not be adequately met with that minimum term of imprisonment.

[74] At the same time, 18 months’ imprisonment is too long and would not adequately recognize the many mitigating factors existing here.

[75] In the end, I have decided to impose a term of imprisonment that is similar to but a little longer than that imposed by Justice Nordheimer in the Debidin, supra case, as I think that the breach of trust here, overall, is more serious.

[76] Mr. Cassidy shall be imprisoned for a period of eight (8) months.

[77] During the term of incarceration, he shall have no contact or communication with the victim or her parents.

[78] The other Orders outlined above shall issue.

[79] To counsel, I am grateful for your assistance. To Mr. Cassidy, I wish you a healthy return to the community from custody. And most important, to the young lady and her family, I hope that your strength and perseverance will bring you much happiness and success in the days and years ahead.

Conlan J. Released: June 10, 2016