FILE NO. CR-15-82

NEUTRAL CASE CITATION NO. 5139

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

J.M.

P R O C E E D I N G S

BEFORE THE HONOURABLE JUSTICE QUINLAN

on JANUARY 6, 2016 at BARRIE, Ontario

Appearances:

F. Temple Counsel for the Provincial Crown

D. O'Connor Counsel for J.M.

WARNING

A NON-PUBLICATION AND NON-BROADCAST ORDER HAS BEEN MADE IN THIS PROCEEDING UNDER S. 486.4(1) OF THE CRIMINAL CODE OF CANDA

SUPERIOR COURT OF JUSTICE

T A B L E O F C O N T E N T S

WITNESSES

IN-CH

CR-EX

RE-EX

No Witness Examinations

Transcript Ordered....................... January 6, 2016

Transcript Completed..................... August 15, 2016

Ordering Party Notified.................. August 15, 2016

WEDNESDAY, JANUARY 6, 2016

THE COURT: Mr. J.M., do you have anything to say before I sentence you?

MR. J.M.: I've been a prisoner in my house for six years, ma'am, and I maintain my innocence and I will. I just beg the court to have leniency. It's the first time I've ever been through this, for anything.

THE COURT: All right, thank you sir.

NEUTRAL CASE CITATION NO. 5139

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

QUINLAN, J.(Orally):

OVERVIEW

After trial by jury Mr. J.M. was found guilty of sexual interference and sexual assault of M.P., his daughter, sexual assault of J.I., a girl in his care, and sexual assault of S.S., a girl who frequented an arcade operated by him. He is before me today for sentencing.

FACTS

CIRCUMSTANCES OF THE OFFENCE

As a sentencing judge I am bound by the express and implied factual implications of the jury's verdict. The Crown and defence disagree on those implications and on the facts I should find in sentencing Mr. J.M..

DEFENCE POSITION

The defence concedes that, as a result of the jury's verdict, the jury found as a fact that the essential elements of sexual interference and sexual assault, as related to the three victims, were established beyond a reasonable doubt. However, the defence argues that even if one assumes that the jury completely disbelieved the defence evidence, the Court in imposing a sentence still has to assess the credibility of the victims in determining whether the aggravating factors asserted by the Crown were proven beyond a reasonable doubt. Because the crime of sexual assault can encompass a wide range of criminal behaviour, the defence submits that considering the victims' lies and false memories the Crown has not proven any aggravating factors beyond a reasonable doubt and "the Court should make findings of fact in determining the appropriate sentence that are of the least serious in nature." As the defence noted in his written submissions, the lies and false memories the defence argues were told by the victims were fully outlined in counsel's address to the jury over the course of a full day.

With respect to J.I. such "lies" relate mainly to the mini-putt incident and discrepancies between what she testified to and what she disclosed to the police and had earlier discussed at various times with M.P.. The defence position is that these matters together with the delay in disclosure and the unlikelihood of someone with J.I.'s strong personality tolerating such abuse make Ms. J.I.'s evidence suspect and lacking in credibility.

The defence argues that M.P.'s evidence was unreliable given the passage of time, her uncertainty about specific details and the impact of other events in her life which may have led to the development of false memories of abuse. In addition, the defence argues that Ms. M.P. lied about the mini-putt incident and the discussion with J.I. in an attempt to support Ms. J.I.'s evidence.

Lastly, the defence argues that S.S.'s evidence is unreliable given the passage of time, her troubled youth and her uncertainty as to her age and details concerning timing of the assaults. The defence submits that Ms. S.S. must have lied when she testified that she had told no one of the assaults as both Ms. M.P. and Ms. J.I. were aware of her allegations.

CROWN'S POSITION

The Crown's position is that based on the evidence adduced at trial, the position of the parties taken at trial, the submissions of counsel, the Charge to the Jury and the verdicts themselves, implied in the jury's verdicts is an acceptance of all the victims testified to concerning the criminal relationship between them and Mr. J.M.. There was no ambiguity created by the verdicts such as that seen where there have been verdicts of guilty to lesser offences. Where there is no ambiguity the Court need not and must not embark on its own fact finding mission. Should the Court reject this position, the Crown argues that there is nothing in the record that would support what would essentially be an adverse finding of credibility against each of M.P., J.I. and S.S.. Such findings are the exclusive province of the jury and would be inconsistent with the jury's verdict. The Court should find that all of the evidence relating to the sexual offences has been proven beyond a reasonable doubt and sentence the offender according to the nature and frequency of the conduct described in the evidence of the three victims.

RELEVANT PRINCIPLES

The Supreme Court outlined the principles governing a sentencing judge in a jury case in R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96 at paras. 15 to 18,

"The appropriateness of a sentence is a function of the purpose and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code, as applied to the facts that led to the conviction...This poses a difficulty in a case such as this, since, unlike a judge sitting alone, who has a duty to give reasons, the jury gives only its ultimate verdict. The sentencing judge therefore must do his or her best to determine the facts necessary for sentencing from the issues before the jury and from the jury's verdict. This may not require the sentencing judge to arrive at a complete theory of the facts; the sentencing judge is required to make only those factual determinations necessary for deciding the appropriate sentence in the case at hand. Two principles govern the sentencing judge in this endeavour. First, the sentencing judge "is bound by the express and implied factual implications of the jury's verdict" [cite omitted]... Second, when the factual implications of the jury's verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury, but should come to his or her own independent determination of the relevant facts [cites omitted]. In so doing, the sentencing judge "may find any other relevant fact that was disclosed by the evidence at the trial to be proven" (s. 724(2)(b))... It follows from the purpose of the exercise that the sentencing judge should find only those facts necessary to permit the proper sentence to be imposed in the case at hand. The judge should first ask what the issues on sentencing are, and then find such facts as are necessary to deal with those issues".

In R. v. Medwid, [2009] O.J. No 1992 [S.C.J.] Justice Wein conducted a sentencing hearing for an offender who was charged with second degree murder but found guilty of manslaughter. After reviewing the basic principles as enunciated by the Supreme Court in R. v. Ferguson and R. v. Brown, 1991 CanLII 73 (SCC), [1991] 2 S.C.R. 518, Justice Wein stated at paragraph 12,

"It is not however required that the trial judge find a series of facts that least implicate the accused, particularly if the weight of the evidence convinces a judge of a more onerous foundation in the facts".

Only if there is an ambiguity based on the evidence, the defences asserted at trial and the verdicts does the Court have jurisdiction to undertake its own independent factual assessment. See R. v. Braun, 1995 CanLII 16075 (MB CA), [1994] M.J. No. 723 at paras 24 to 25 and 30 [Man.C.A.]; R. v. Gauthier, [1996] B.C.J. No. 1469 at para. 23 to 24 [B.C.C.A.]; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96 at para 16 to 18; R. v. L.M., 2014 ONCA 640, [2014] O.J. No 4343 at para 49 to 51 [C.A.].

As noted in R. v. Gauthier at paragraph 24,

"where an evidential conflict at trial is left unresolved by the verdict the trial judge must reach his or her own conclusion as to the facts surrounding the offence applying the usual standard of proof".

ANALYSIS

It is essential to first determine whether any real ambiguity has been created by the verdicts returned. In determining that issue, I consider how the case was presented by the parties and the nature of the evidence led.

The defence position at trial was that J.I. was a "big fat liar" trying to back up her friend M.P. to add credibility to M.P.'s allegations. M.P. misconstrued innocent interactions with her father due to the passage of time and the influence of outside factors. M.P. believed what she testified to was true because of false or illusory memory and threw in the odd lie to help win the trial. S.S. was a troubled young girl seeking attention and is now afraid to withdraw her allegations because of fear of repercussion.

The defence argued that none of the girls could be believed in relation to any of the sexual allegations. The defence conducted a fulsome attack on the credibility and reliability of the evidence of each of the three victims. The offender testified and denied all of the sexual touching.

The jury was not presented with the proposition that some but not all of the sexual touching had taken place in any evidence adduced in the cross-examination of the witnesses or in the closing addresses. It was clearly all, according to the Crown, or nothing, according to the defence.

In my Charge I instructed the jury that they could accept some, none or all of what a witness says. Consonant with the positions of the parties that this was an all or nothing case I instructed the jury with respect to each count that to find Mr. J.M. guilty they had to be satisfied beyond a reasonable doubt that Mr. J.M. touched each of the victims "in the manner she described". As noted, the jury returned verdicts of guilt with respect to all four counts.

In its written submissions the Crown has fairly described the nature of the evidence: "What was described by each, albeit less so in the case of S.S., was the contour and dynamic of a relationship and pattern of sexual misconduct that was of one cloth. As the evidence was seamless and whole in this regard it is implicit in the verdicts returned that the jury accepted the evidence in this way, especially in the face of the accused's rejected denials."

I find that implicit in the jury's verdicts of guilt on all four counts was not only a rejection of Mr. J.M.'s denials but of the defence position that the victims were fabricating, intentionally or otherwise, all of their evidence of sexual misconduct by the offender. I find that as a result of the manner in which the trial was conducted, the nature of the evidence, the positions of the parties and the Charge, it is implicit in the verdicts that the jury accepted the core evidence of all three victims as truthful and reliable, and accepted, beyond a reasonable doubt, the evidence of the three victims that Mr. J.M. touched each of them in the manner each described. The evidence which has been proven and is necessary for me to determine an appropriate sentence will be set out later in these reasons.

In the event that I am wrong I will now undertake the analysis as directed by Ferguson. I shall come to an independent determination of the relevant facts and in accordance with section 724(2)(b) "find any other relevant fact that was disclosed by evidence at the trial to be proven."

The implications of the jury's verdict were, at a minimum, that the jury rejected the offender's denials and were convinced beyond a reasonable doubt that the offender:

1. Touched his daughter M.P. for a sexual purpose when she was under 14, when the family lived in Chelmsford;

2. Sexually assaulted M.P. by touching her while the family lived in Springwater Township;

3. Sexually assaulted J.I. by touching her during the time she lived with the J.M. family; and

4. Sexually assaulted S.S. by touching her at the arcade where he worked.

In determining the appropriate sentence the nature and frequency of any sexual contact and any grooming behaviour is relevant. Any aggravating factor must, of course, be proven beyond a reasonable doubt.

The evidence as to what, if anything, happened in a "confrontation" at the mini-putt is inconsistent. Ms. J.I. and Ms. M.P. described S.S.'s father approaching the offender. They testified that Ms. S.S. was present. Ms. J.I. testified that Mr. S. accused the offender of touching his daughter. Ms. S.S. denied that any such confrontation occurred and testified that she had not told her father what the offender had done to her. There were internal inconsistencies in the evidence of J.I. and M.P. and inconsistencies between them and S.S. as to what occurred. In other respects, all three victims gave detailed and mostly consistent evidence. They never wavered about their core allegations of sexual impropriety, despite thorough cross-examination. Each victim's evidence was, for the most part, internally consistent. Their evidence, save and except in relation to disclosure of the incidents and the discussion between Ms. M.P. and Ms. J.I. following the incident on the couch, supported each other in material respects.

As with a jury I am entitled to accept some, none or all of a witness' evidence. I have considered each victim's evidence as a whole. I am satisfied that their recollections of what occurred at the mini-putt in about 1998 when they were teenagers, and about discussions between them and disclosure about the abuse, does not call into question the credibility or reliability of their detailed evidence of the nature and frequency of the sexual touching by Mr. J.M.. The defence reliance on the unlikelihood of Ms. J.I. not telling the offender to stop his abusive behaviour may very well be informed by stereotypes, but, in any event, does not detract from either the credibility or reliability of her evidence as to the extent of what the offender did to her. Having had the opportunity to hear all of the evidence, including the thorough cross-examination of the victims, I reject the defence position that issues with the credibility and reliability of each of the victims' evidence is such that I should find only the least serious facts to be proven beyond a reasonable doubt. In addition and unrelated to my rejection of that defence position, which is based on my assessment of all of the evidence, to accept these arguments could be seen to be inconsistent with the verdicts which demonstrate the jury's acceptance of the credibility and reliability of each of the victims' evidence.

CONCLUSION ON THE FACTS

I find that the following facts were implicit in the jury's verdicts. In addition, after my independent determination I also find these same facts to have been proven beyond a reasonable doubt:

M.P.

The offender repeatedly touched his daughter, M.P.'s vagina and clitoris, when M.P. was nine to thirteen years old. Although M.P. could only remember two occasions in particular, she testified and I accept that this abuse was "habitual". At times the offender tapped her thigh to signal her to open her legs. This demonstrated grooming behaviour by the offender. The offender repeatedly touched M.P.'s vagina and buttocks under the pretext of checking for bruises when she was in the shower, from the time M.P. was nine until she was in her late teens. The offender touched M.P.'s vagina when M.P. was in her mid to late teens while he and she were on the couch.

J.I.

When she was 16 M.P.'s best friend J.I. moved in with the M. to get away from her abusive family life. I am satisfied beyond a reasonable doubt that within a number of months the offender began touching J.I.. He rubbed the front of her jeans in the vaginal area and told her he loved her, that he was glad she was part of the family and she was special. Then the offender began touching J.I. when she lay in bed. From the time J.I. was 16 until she was around 19 the offender touched J.I. on multiple occasions, first over and then under her clothes, progressing to the point where the offender touched J.I.'s breasts and on more than one occasion put his fingers inside her vagina.

S.S.

For several years the offender operated a restaurant and arcade at a camp outside Elmvale. S.S. was a camper there. She became friends with the offender's son and was often in the arcade. On one occasion when S.S. was 14 or 15 years old the offender slid his hand up her shorts and rubbed his fingers up and down her vagina. On another occasion the offender put his hand down S.S.'s shorts and underwear and stuck his finger inside her vagina.

CIRCUMSTANCES OF THE OFFENDER

Mr. J.M. is 55 years old. He has been married 36 years and he has two children and five grandchildren. He was in the military for a period of time. Since then he has been regularly employed at various jobs supporting his family. For the last 17 years the offender has been steadily employed at T[…]. He has the support of many friends and some of his family. Other than the offences before the court he has been a law-abiding citizen.

IMPACT ON THE VICTIMS

Although each of the victim impact statements was overly broad in nature I have limited my consideration to the impact set out below. In particular, I have not considered as an aggravating factor with respect to any of the victims the fact of the trial.

The impact on all three victims has been devastating. It has affected their relationships, their sense of self and self-worth and their ability to cope with life. It has robbed them of their innocence.

The offender's daughter M.P. spoke of the abuse permeating her being. She suffered mental anguish when she learned her second child was a girl. She felt guilty when she found out her father had abused her best friend J.I. after J.I. moved in to get away from her own abusive family. The severing of ties by her family when she disclosed the abuse has had a profound impact on M.P.. At times she feels loneliness, anger, resentment and abandonment. She has lost her relationship with her mother, grandmother, brother, sister-in-law, nieces and nephew. She has lost trust. Her relationship with her husband has been affected since their first date. The effects of the abuse have even affected her work life.

J.I. spoke of the intimacy issues from which she suffers and the anxiety she feels when her daughter is out of her sight. She feels guilty that she has not been able to be the kind of role model she wants to be for her daughter. She believes the offender has changed her course in life. In J.I.'s words "I know what it feels like to have anxious afternoons, terrified nights and shameful mornings".

S.S. spoke of how the offender took things from her; things she did not know were hers to give away later in life. She was forced to grow up faster. She struggled emotionally.

POSITIONS OF CROWN AND DEFENCE

CROWN

The Crown's position is that the offences committed against M.P. and J.I. could merit sentences of three to five years each and against S.S. a sentence of at least one year. The Crown states that there is no basis for the sentences to be concurrent. Seven years would be an appropriate sentence, however considering the principle of totality the Crown seeks a total sentence of five years. The Crown seeks an order that the offender comply with SOIRA for life, a primary DNA order, a weapons prohibition for ten years, a section 161 order for ten years and an order prohibiting communication with the victims while in custody pursuant to section 743.21.

DEFENCE

The defence seeks that the Court give effect to the principle of totality by the imposition of a sentence of two to three years. The defence argues that these convictions have been a disaster for everyone and the family has been permanently destroyed. To survive, the offender has had to sell his house and downsize. The defence position is that the offender is a good man in all other respects, supported by family and friends.

The defence asks the Court to consider that the impact on J.I. and S.S. cannot be attributed solely to the abuse by the offender, given J.I.'s extremely deprived background and S.S.'s troubled character. The defence cautioned the Court about following the Ontario Court of Appeal decision of R. v. D. D., 2002 CanLII 44915 (ON CA), [2002] 58 O.R. (3d) 788, noting that some Court of Appeal decisions have failed to do so; the defence argues that D. D. should not be considered a benchmark decision.

CASE LAW

Both the Crown and defence filed a number of cases.

R. v. D. M., 2012 ONCA 894, [2012] O.J. No 6059 involved the sexual molestation of a step-daughter over eight years by "almost unrelenting" sexual touching and digital penetration. The Court of Appeal reduced the trial judge's sentence from five years to four years. In so doing the Court of Appeal referred to D. D. and Justice Moldaver's oft-quoted comments to which I will later refer. The Court of Appeal stated at paragraphs 68 and 71,

"First, in those cases where this court has either upheld or imposed penitentiary sentences of five years or more, one or more of the following aggravating circumstances has been present:

• Sexual intercourse (vaginal or anal)

• Oral sex

• Incest

• More than one victim

• Grooming of the victim

• Other acts of physical violence or threatened physical violence to obtain compliance and keep the abuse secret

• A previous criminal record for sexual abuse

Second, this Court has either upheld or imposed sentences of less than five years for seemingly more egregious conduct:

• In R. v. I. F., 2011 ONCA 203, this Court imposed a four year sentence for a man who abused his three step-granddaughters over an eight year period; the abuse included fondling, masturbation, oral sex, and acts of grooming.

• In R. v. C. B., 2008 ONCA 486, this court upheld a three-year sentence for a man who abused his niece when she was between 12 and 16 years old. The abuse included fondling and digital penetration; the victim also reported that her uncle would get on top of her with his shorts pulled down and she "would feel something going inside of her". (Para. 7) At times, the abuse was accompanied by threats.

• In R. v. B. A., 2008 ONCA, this Court imposed a three-and-a half year sentence for a man who abused both a girl he watched while her mother was at work, and the girl's friend. The abuse included digital penetration, oral sex, one act of vaginal intercourse and acts of violence and humiliation.

• In R. v. G. A. G. (2006), 206 O.A.C. 134, this court upheld a sentence of four years and six months imprisonment for a man who abused his son over many years. The abuse included mutual masturbation and oral sex.

• In R. v. A. G. (2004), 2004 CanLII 36065 (ON CA), 190 C.C.C. (3d) 508, this court imposed a two-year sentence for a man who abused his 12 year old niece; the abuse included fondling, attempted fellatio, and attempted intercourse. The victim struggled fiercely during the assaults".

In R. v. I. F., a 2011 decision, supra at para 5 the Court of Appeal referred to D. D. with favour.

The bulk of the cases set out in paragraph 71 of D. M. were relied on by the defence. In addition the defence provided the following cases in support of his position: R. v. D. G. H., [2008] O.J. No 3436 where the Court of Appeal found the sentence of six months imposed by the trial judge to be manifestly unfit and increased the sentence to two years less a day, the sentence sought by the Crown at trial. The offender had sexually abused his developmentally delayed step-daughter over a period of two years. In R. v. R. D., [2004] O.J. No 2086 the Court of Appeal increased a 90 day intermittent sentence it agreed was manifestly inadequate to 12 months. The Court did so even though this was below the range of 15 months to two years less a day that it found was appropriate, in view of the additional hardship of returning the offender to custody. The offender had frequently touched the victim's vagina and breasts while massaging her, examined her vaginal area while showering, plied her with liquor and digitally penetrated her. In R. v. B. E., [1999] O.J. No 3869, the Court of Appeal upheld a sentence of six years for an offender convicted of three sexual assaults against his two step-daughters for acts including digital penetration, oral sex and insertion of a vibrator into the vagina of one of the victims. The Court of Appeal found that, viewed in isolation, the sentence of two years imposed on each of the sexual assault counts would be inadequate, but considered in their totality the sentences were within the appropriate range.

In R. v. D. D. supra at paragraph 34, Moldaver, J. A. (as he then was), in his oft-quoted comment, stated:

"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. In cases such as this, absent exceptional circumstances, the objectives of sentencing proclaimed by Parliament in section 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".

With respect to serious sexual offences against children, Justice Moldaver made the following comments at paragraph 44,

"To summarize, I am of the view 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".

In R. v. Woodward, 2011 ONCA 610 at para 76, Justice Moldaver, as he then was, expounded on the principles enunciated in D. D.

"I wish to emphasize that when trial judges are sentencing adult sexual predators who have exploited innocent children, the focus of the sentencing hearing should be on the harm caused to the child by the offender's conduct and the life-altering consequences that can and often do flow from it. 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".

Justice Moldaver referred to the Court's decision in D. D. at paragraph 72 to 73:

"The case of D. D., it will be recalled, involved an adult predator in a position of trust who sexually abused a number of young boys on a regular basis over a lengthy period of time. The court in that case considered the appropriate range of sentences for offenders who engage in such conduct. In doing so, the court discussed the plight of children in general and the principles and objects of sentencing that must take precedence when adult predators choose to exploit innocent young children. The relevant considerations and principles from D. D., at paragraphs 34 to 38 are summarized below:

1. Our children are our most valued and our most vulnerable assets.

2. We as a society owe it to our children to protect them from the harm caused by sexual predators.

3. Throughout their formative years children are very susceptible to being taken advantage of by adult sexual offenders and they make easy prey for such predators.

4. Adult sexual predators recognize that children are particularly vulnerable and they exploit this weakness to achieve their selfish ends, heedless of the dire consequences that can and often do follow.

5. Three such consequences are now well recognized.

i. Children often suffer immediate physical and psychological harm.

ii. Children who have been sexually abused may never be able, as an adult, to form a loving, caring relationship with another adult.

iii. And children who have been sexually abused are prone to become abusers themselves when they reach adulthood.

6. Absent exceptional circumstances, in the case of adult predators, the objectives of sentencing 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".

The foregoing concerns inform the fundamental message that D. D. sought to convey at paragraph 45:

The harm occasioned [to children] by [adult sexual predators] is cause for grave concern. Children are robbed of their youth and innocence, families are often torn apart or rendered dysfunctional. Lives are irretrievably damaged and sometimes permanently destroyed. Because of this, the message to such offenders must be clear, prey upon innocent children and you will pay a heavy price.

Woodward emphasizes that courts must consider the sexual abuse of children to be a grave offence. Although the effects of a conviction on the offender and his prospects for rehabilitation always warrant consideration, the objectives of denunciation and the need to separate offenders from society for society's well-being and the well-being of our children must take precedence. The Court of Appeal added the direction that the sentencing hearing should focus on the harm caused to the child by the offender's conduct and the life-altering consequences that can and often do flow from it.

MITIGATING AND AGGRAVATING FACTORS

MITIGATING FACTORS

Mitigating is the fact that Mr. J.M. has no record and has the support of many friends and some of his family.

AGGRAVATING FACTORS

The offender abused three girls. His abuse of his daughter M.P. was a gross breach of trust and of his duties and responsibilities as a parent. The abuse occurred regularly and repeatedly during M.P.'s formative years, from the time she was nine until she was in her late teens. It involved grooming behaviour, such that as a nine year old M.P. knew that a tap to her thigh meant to open her legs.

His abuse of J.I. was also a grave breach of trust. He had agreed to take J.I. in from a physically and emotionally abusive family situation and then, while she was in his care, used her repeatedly over a number of years for his own sexual gratification. The abuse of J.I. escalated over time. The abuse of M.P. and J.I. took place in their own home where they were entitled to feel safe and protected from harm.

The abuse of S.S., a lonely, troubled and vulnerable young girl, a friend of his son, who just happened to be in the arcade alone with the offender, demonstrates the predatory nature of his conduct, the extent to which the offender would go to satisfy his sexual urges. He abused S.S. on two occasions with the second incident escalating in seriousness.

All three girls were subjected to intrusive digital penetration.

The impact on all three victims has been devastating, affecting their relationships and their lives, robbing them of their innocence. M.P.'s family has been torn apart by the offender's actions. M.P. has lost her relationship with her mother, her brother and her grandmother.

In R. v. Clayton (1982), 1982 CanLII 3860 (ON CA), 69 C.C.C. (2d) 81 at page 83 the Ontario Court of Appeal compellingly described the impact that sexual abuse within a family can have:

"It constitutes a tearing of the foundation fabric of society, for it can change the family from a unit generating support and love, to a unit fostering mistrust and loathing".

Although J.I. and S.S. have had troubled lives apart from the offender's abuse of them, and not all of the impact described by them can be attributed solely to the offender, I am satisfied that the offender's abuse has had a profound and long-lasting impact on them as well.

PRINCIPLES OF SENTENCING

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 acknowledgement of the harm done. Section 718.1 provides 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. It also requires that the sentences 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. Abuse of persons under the age of 18 years and abuse of a position of trust or authority in relation to the victim are statutorily aggravating factors. A sentence, of course, must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

It is well-established that the governing principles in sentencing offenders who commit sexual offences against children are denunciation and deterrence, both general and specific. Considering I. F., the 2011 decision in which the Court of Appeal continued to refer to D. D. with favour, and the abuse by this offender of multiple victims, two of them over a number of years, I find that D. D. is instructive.

Mr. J.M., stand up. Having considered the foregoing factors and giving effect to the principle of totality, I hereby sentence you to the following:

1. On count one, the sexual touching of M.P., to three years in

jail.

2. On count two, the sexual assault of M.P., to three years concurrent.

3. On count three, the sexual assault of J.I., to two years consecutive. Taking into account the presentence custody of 26 days and giving credit for that on a one and a half for one basis for a total credit of 39 days, that sentence will be one year and 326 days.

4. On count five, the sexual assault of S.S., to one year concurrent.

For a total sentence of four years and 326 days, having taken into account the presentence custody earlier mentioned.

Pursuant to section 743.21 of the Criminal Code you are prohibited from communicating directly or indirectly with M.P., J.I., and S.S. during the custodial period of your sentence. I make a weapons prohibition order under section 109(2)(a) for ten years; and 2(b) for life. In addition, the offences are primary DNA offences; 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. I order you to comply with the SOIRA for life. Considering the conviction in relation to S.S., I accept that the court should make an order under section 161(a) and (b) prohibiting you from attending the places and acting in the capacity specified for ten years.

Counsel is there anything else?

MR. TEMPLE: No. Thank you, Your Honour.

THE COURT: Mr. O'Connor?

MR. O'CONNOR: No, I can't imagine Your Honour doing anything more than you've done to my client.

THE COURT: Thank you.

FORM 2

Certificate of Transcript

Evidence Act, subsection 5(2)

I, Shannon Heryet, certify that this document is a true and

accurate transcript of the recording of R. v. J.M. in

the Ontario Superior Court of Justice, held at 75 Mulcaster Street,

Barrie, Ontario, taken from Recording 3811-2-20160106-084645-10-

QUINLAN which has been certified in Form 1.

August 15/16 Shannon Heryet ACT #3389634078