SUPERIOR COURT OF JUSTICE

Court File No. CR-15-0052

CITATION: R. v. Kennedy-Money 2016 ONSC 7051

HER MAJESTY THE QUEEN

v.

KYLE KENNEDY-MONEY

R E A S O N S F O R S E N T E N C E

BEFORE THE HONOURABLE MADAM JUSTICE E.A. QUINLAN

on October 20, 2016, at BARRIE, Ontario

INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED,

BROADCAST OR TRANSMITTED PURSUANT TO SECTION 486.4(1)

OF THE CRIMINAL CODE OF CANADA BY ORDER OF

JUSTICE E.A. QUINLAN, SUPERIOR COURT OF JUSTICE,

DATED MARCH 14, 2016

APPEARANCES:

S. Sullivan Counsel for the Crown

A. White Counsel for Kyle Kennedy-Money

CITATION: R. v. Kennedy-Money 2016 ONSC 7051

Thursday, October 20, 2016

... COURT COMMENCES - OTHER MATTERS ADDRESSED

R E A S O N S F O R S E N T E N C E

QUINLAN J. (Orally):

OVERVIEW

[1] On March 23, 2016, Mr. Kennedy-Money was found guilty, after trial by jury, of sexually assaulting M.A.. He was found not guilty of touching her with his penis for a sexual purpose.

THE FACTS

Circumstances of the Offence

[2] As the sentencing judge, I am bound by the express and implied factual implications of the jury's verdict. Crown and defence have agreed, and I found, that those implications were that the jury was not satisfied beyond a reasonable doubt that Mr. Kennedy-Money had sexual intercourse with the victim (to use the words of the Indictment that he touched her with his penis), but was satisfied beyond a reasonable doubt that there was other sexual touching.

[3] On an earlier date, I heard submissions as to the facts I should find to have been proven beyond a reasonable doubt in order to decide the proper sentence. I was satisfied of the following.

[4] The offender initiated contact with the victim through Facebook by adding her as a friend. At the time she was 11 or 12 years old. They started talking by texting. She told him her age. They talked "basically daily." He would ask her how her day was. He would "keep her company" and she would do the same. She and the offender discussed Spotlight, the dance club where he worked as a disc jockey. She thought he was really nice.

[5] After talking about Spotlight with other friends, the victim and her girlfriends decided to go there on the night in question. The victim texted the offender and asked him to drop by. He did. While at the club they kissed while she sat on his lap. They played pool. He again asked her age and she told him she was 12. When the ride home for the girls fell through, the offender suggested they go to his place. On the walk there he told the victim he was not going to make her to do anything with him, but he was going to make her have a shower.

[6] When they got to the offender's place, they went into the bathroom. She felt very nervous and awkward and did not know what to do. He undressed her. She got in the shower first and started showering normally, washing her hair. The offender got in the shower and started showering too. The victim was feeling "pretty awkward and very uncomfortable." He touched her breasts and her vagina. While in the bathroom, the offender digitally penetrated her. She got dressed and they then went into the bedroom and lay on the bed. At one point he told her girlfriend to leave the room and it was just the two of them. The offender put his hands inside the victim's pants and again digitally penetrated her. He was aware that she was 12 years old.

[7] I found that the regularity of their online contact led to a connection between them such that, despite not having met in person, the victim felt sufficiently comfortable to invite the offender to Spotlight, to kiss him there and to go to his home when her ride fell through.

[8] Although this was not a traditional trust relationship and the offender was not in a position of trust to the victim, I found that she did come to trust him in light of the nature and frequency of the online contact that he initiated. His "basically daily" chats with this 12 year old girl were a type of grooming behaviour where he gained her trust, such that he was able to ultimately sexually touch her.

Circumstances of the Offender

[9] The offender was 21 years old at the time of the offence. He is now 24. He has no criminal record. A lengthy and thorough Gladue report was prepared. The author interviewed the offender, his biological parents and his fiance. The report set out the following information.

[10] His biological father, Bill Money, identified as Metis; Mr. Money's mother was 50 percent native. Mr. Money was adopted by his mother's friends when was eight years old after his mother had repeatedly left him with them. Mr. Money reported that he was sexually abused as a child.

[11] The offender is the eldest of eight children. When he was six months old, his mother separated from Mr. Money.

[12] The offender advised that he met Mr. Money for the first time when he was six years old. He reported that he was sexually abused by his father from the age of 8 until 10, although the frequency of the abuse that he reported to the author of the Gladue report was significantly different than that reported to the author of the pre-sentence report. After the offender disclosed the abuse to CAS, visits between he and his father were supervised for a period of time. The visits eventually became unsupervised and then stopped. He did not see his father from the time he was approximately 10 until 18, and they have limited contact now. When Mr. Money was interviewed by the author of the Gladue report, he denied sexually abusing his son. The offender reported that his father has had problems with substance abuse.

[13] The offender's mother remarried. Her husband was diagnosed approximately four years ago with schizophrenia. The offender refers to his stepfather as his father.

[14] The offender reported difficulty sleeping. He said he was bullied at school. He started working part-time at the age of 12, moved out of home at 16 and quit school. He has worked at various jobs including as a disc jockey at the Spotlight club. He does not use drugs and is only a social drinker. He has a child who is now six years old whom he has not seen since 2012. He reported that he has not and will not pay child support until the child's mother lets him see his child.

[15] The offender attempted suicide in 2011 after his son was born. He advised the author of the pre-sentence report that the attempt came after he found out the mother of his child, his then girlfriend, had cheated on him.

[16] He has been in a relationship since May 2014, and has recently obtained his Grade 12 equivalency through the Adult Learning Centre in Barrie. He has not been formally diagnosed with any mental health issues.

[17] The offender advised that he has always known that he was Metis. He knows little about his heritage but has expressed an interest in learning more.

[18] Mr. Money advised that he continues to support the offender but that his son "has to step up and recognize his issues." The offender's mother stated that he has a lot going for him and that he has a lot of support. His fiance is supportive, as are her parents.

[19] The author of the Gladue report made recommendations with respect to programming available in both the federal and provincial custodial systems.

[20] As mentioned, a pre-sentence report was also prepared. In it, the offender's mother described him as a "normal" child. He described his relationship with his mother and stepfather, who has been in his life since he was six, as "really good." The author noted that the offender presented as polite and cooperative. He maintains his innocence. He reported that he suffered from a number of mental health issues but, as noted in the Gladue report, there are no formal diagnoses.

[21] Three reference letters were filed on the offender's behalf. His fiance's parents, who have known him for two years, stated that he has always been courteous and respectful. He has been supportive and encouraging to their daughter and plans to continue to work and eventually start college. They describe him as "genuinely a good person who cares about others." A friend, who has known the offender for roughly 10 years, describes him as a "kind generous person willing to help out anyone he knows that is in need." A former work supervisor, who has known him since 2014, spoke positively of the offender's conduct at work and his kind and inclusive nature.

Impact on the Victim

[22] The victim filed a victim impact statement. She noted that she has been impacted in many ways. She does not trust many people, thinks the worst about situations and is frightened to make new friends. She described the offender as the man that ruined her childhood. The events have affected her family. She stated that she wishes she could go back to the day this took place and make smarter choices.

LEGAL PARAMETERS

[23] Sexual assault when prosecuted by indictment, if the complainant is under the age of 16 years, carries with it a maximum term of imprisonment of 14 years and a minimum punishment of 1 year. Certain ancillary orders are also mandatory or discretionary.

POSITIONS OF CROWN AND DEFENCE

[24] The Crown's position is that a custodial term of three years is appropriate.

[25] The Crown seeks a primary DNA order, a SOIRRA order for 20 years, a weapons prohibition and an order under Section 161(b) for 10 years, and an order under Section 743.21 prohibiting communication with the victim while in custody.

[26] The defence position is that a custodial sentence of 15 to 18 months is appropriate. The ancillary orders are on consent. The defence agrees that a conditional sentence is not available in the circumstances.

CASELAW

[27] The Crown filed a number of sentencing authorities to set out both the general principles of sentencing in cases of child sexual abuse and the principles relevant to sentencing an Aboriginal offender. The defence relied on the cases filed by the Crown.

[28] The Ontario Court of Appeal has emphasized that in cases of child sexual abuse, absent exceptional circumstances, denunciation, general and specific deterrence and the need to separate offenders from society must take precedence over the other recognized objectives of sentencing. As the court stated:

"The overall message however, is meant to be clear. Adult sexual predators who would put the lives of innocent children at risk to satisfy their deviant sexual needs must know that they will pay a heavy price." R. v. D.(D.), 2002 44915 (ON CA), 2002 CarswellOnt 881 at para. 34.

[29] D.(D.), which has been referred to with favour by the Court of Appeal on many occasions, held that:

"...as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms".

Where aggravating factors are present, the range is even higher: see para. 44.

[30] As our Court of Appeal confirmed in R. v. Woodward, [2011] ONCA 610 at para. 76, in cases such as this, the focus of the sentencing hearing should be on the harm caused to the victim by the offender's conduct. While the effects of a conviction on the offender and the offender's prospects for rehabilitation will always warrant consideration, the objectives of denunciation, deterrence and the need to separate sexual predators from society for society's well-being and the well-being of our children must take precedence.

[31] Section 718.2(e) is a:

"remedial provision designed to ameliorate the serious problems of overrepresentation of Aboriginal people in Canadian prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing." R. v. Ipeelee, 2012 SCC 13, 2012 CarswellOnt 4375 at para. 59.

[32] In that case, the Supreme Court went on to state:

"When sentencing an Aboriginal offender, the judge must consider: (a) the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and (b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection. Judges may take judicial notice of the broad systemic and background factors affecting Aboriginal people generally, but additional case-specific information will have to come from counsel and from the pre-sentence report." R. v. Ipeelee, supra, para. 59.

[33] Although Section 718.2(e) requires a different methodology for assessing a fit sentence for an Aboriginal offender, it does not necessarily mandate a different result. The court must impose a sentence that is fit for the offence and the offender. In certain cases the greatest weight will not be given to the principles of restorative justice, and less weight to goals such as deterrence, denunciation and separation. There are some serious offences and some offenders for which and whom these latter principles are fundamentally relevant. In such cases, the length of imprisonment must be considered: see R. v. Kakegamick, (2006), 2006 28549 (ON CA), 81 O.R. (3d) 664 at paras. 36, 42, 73, leave to appeal to S.C.C. dismissed; R. v. Wells, 2000 SCC 10 at para. 44; R. v. Gladue, 1999 679 (SCC), [1999] 1 SCR 688 at para. 78.

[34] The Court of Appeal in R. v. Bauer, 2013 ONCA 691, reminded sentencing judges that although an Aboriginal offender need not establish a direct causal link between his circumstances and the offence, the Gladue factors need to be tied in some way to the offender and the offence. The Court of Appeal noted the rationale for Gladue as follows:

"...many Aboriginal offenders come from situations of social and economic deprivation with few opportunities for positive development and these circumstances may diminish their moral culpability [cites omitted]."

MITIGATING AND AGGRAVATING FACTORS

[35] Mitigating is the fact that the offender has no previous record. He is youthful. He has the support of his family, his fiance and her family, friends and a former work supervisor. For the most part he has had a positive history of employment.

[36] He has had some challenges in his life. He has reportedly suffered sexual abuse at the hands of his father.

[37] The offender does not have the benefit of the mitigating factor of remorse. He has no insight into his actions and has taken no steps towards treatment. As in R. v. M.(D.), 2012 ONCA 529 at para. 18, his lack of remorse, the fact that the victim was forced to testify twice, and his failure to accept responsibility for the offence speak against mitigation.

[38] There are a number of aggravating factors. The victim was only 11 or 12 years old when the Facebook interaction started by the offender began. He was 21 at the time, significantly older than her. Through their frequent internet contact, he groomed the victim by gaining her trust through their conversations about the minutia of daily life. The evidence supports that the victim was enamoured of his position as a disc jockey at an all ages' club. After nurturing her confidence in him, the offender used the fact that the victim now trusted him to take advantage of her sexually. He knew she was only 12 years old when he digitally penetrated her. He penetrated her twice: first in the bathroom and then in the bedroom. The victim was in a vulnerable position: she was at his home because her ride fell through. She was in an enclosed bathroom alone with him when he first began his assault of her. Later, she was alone in the bedroom with him after he had told her girlfriend to leave.

[39] There has been a significant impact on the victim. She does not trust many people or let herself get close enough to them. She thinks the worst about situations and is frightened to make new friends. She considers her childhood to have been ruined. I am satisfied by what the victim stated in her victim impact statement that she blames herself for the events of the evening in question.

PRINCIPLES OF SENTENCING

[40] The objectives of sentencing long recognized at common law have been codified in Section 718 of the Criminal Code. They are the denunciation of unlawful conduct, deterrence both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to the victims or the community, and promotion of a sense of responsibility in offenders and acknowledgment of the harm done.

[41] Section 718.01 statutorily mandates what has been well established: when a court imposes a sentence for an offence that involved the abuse of a person under the age of 18 years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. Section 718.1 requires that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. Aggravating factors include that the offender abused a person under the age of 18 years. The section also requires that the sentence be similar to those imposed on similar offenders in similar circumstances, that the combined duration of consecutive sentences not be unduly long, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered, with particular attention to the circumstances of Aboriginal offenders.

ABORIGINAL HERITAGE

[42] That brings me to a consideration of the offender's Aboriginal heritage. According to the comprehensive Gladue report, neither the offender nor his biological father grew up on a reserve. There was no suggestion of any residential school history within his father's family of origin. The offender has not had any involvement with the Aboriginal community or its teachings.

[43] There has been substance abuse, family instability and a history of child sexual abuse in the offender's family. The offender reported he was subjected to sexual abuse by his alcoholic father. He has attempted suicide. As noted in Gladue, these systemic background factors figure prominently in the causation of crime by Aboriginal offenders. They may have played a part in bringing this particular offender before the courts.

[44] Here, there is no alternative to incarceration. In considering the length of imprisonment, I have considered the Gladue principles and the programming options available if the offender is sentenced to either a reformatory or penitentiary sentence. As set out in the Gladue report, both systems provide rehabilitative programming that would assist an Aboriginal offender.

[45] The comments of the Court of Appeal in D.(D.), considered in light of the Gladue principles, offer guidance in determining a fit sentence for this offence and this offender. This is a case where the greatest weight cannot be given to the principles of restorative justice. I am satisfied that a penitentiary sentence is necessary in the circumstances to give effect to the principles of denunciation, deterrence and separation of offenders from society, and accords with the principles set out in Section 718.2(e) and Gladue.

[46] Mr. Kennedy-Money, please stand up.

SENTENCE

[47] Having considered all of the relevant factors, including your Aboriginal heritage, I sentence you to a period of custody of three years. I recommend that you be placed in an institution with an Aboriginal Pathways Unit, with access to Aboriginal programming and a Native Inmate Liaison Officer, and that the recommendation portion of the Gladue report follow you to the penitentiary so that it can be reviewed in assisting with your classification.

[48] Pursuant to Section 743.21 of the Criminal Code you are prohibited from communicating, directly or indirectly with M.A. during the custodial period of your sentence.

[49] You are prohibited from possessing weapons pursuant to Section 109(a) of the Criminal Code for a period of 10 years and pursuant to Section 109(b) for life.

[50] The offence of sexual assault is a primary DNA offence. I am ordering that you provide such samples of your bodily substances that are reasonably required for the purpose of forensic DNA analysis for the DNA databank.

[51] There shall be an order that your name shall be published on the Sexual Abuse Registry for a period of 20 years.

[52] In addition, there shall be an order under Section 161(b) prohibiting you from seeking, obtaining or continuing any employment, whether or not it is remunerated, or being a volunteer in any capacity, that involves being in a position of trust or authority towards persons under the age of 16 years for a period of ten years.

Transcript Order Received: October 21, 2016

Draft Reasons Sent for Review: October 22, 2016

Reasons Approved for Release: November 14, 2016

Transcript Completed: November 14, 2016

Ordering Party Notified: November 14, 2016

FORM 2

CERTIFICATE OF TRANSCRIPT [SUBSECTION 5(2)]

Evidence Act

I, Alissa Livesey, certify that this document is a true and accurate transcript of the recording of R. v. Kyle Kennedy-Money in the Superior Court of Justice held at 75 Mulcaster Street, Barrie, Ontario, taken from Recording No. 3811-001-20161020-132345-10-QUINLAE, which has been certified in Form 1.

November 14, 2016 __________________________________

(Date) ALISSA LIVESEY, COURT REPORTER ACT#6245897698