Court File and Parties

COURT FILE NO.: 14-114 DATE: 2017/03/30 ONTARIO SUPERIOR COURT OF JUSTICE

INFORMATION CONTAINED HEREIN REGARDING THE IDENTITY OF THE (WITNESSES OR COMPLAINANT) IS PROHIBITED FROM PUBLICATION BY ANY METHOD PURSUANT TO AN ORDER UNDER SECTION 486 OF THE CRIMINAL CODE OF CANADA

BETWEEN: HER MAJESTY THE QUEEN – and – Jamie Farrell-Cote

Counsel: Matthew Collins, Counsel for the Crown Norman Lee, Counsel for the Accused

HEARD: February 21, 2017

Judge: Leroy, J.

Reasons on Sentencing

Overview

[1] Mr. Farrell-Cote is before the court today for sentence. I convicted Mr. Farrell-Cote of sexual interference – 151(a), invitation to sexual touching – 152, and exposure – 173(2) on November 24, 2015. The complainant’s evidence was that during 2008 when she was twelve and Mr. Farrell–Cote was twenty, they embarked on a clandestine boyfriend/girlfriend relationship that evolved into inappropriate sexual relations.

Background

[2] The complainant’s parents invited Mr. Farrell-Cote into their home. The host household comprised the parents, an older brother and the complainant. Mr. Farrell-Cote left school in grade 10. He and older brother were friends. Mr. Farrell-Cote resided in the host household for between 3 and 6 months.

[3] Whether by reason of organics or life experiences, Mr. Farrell-Cote was immature for his age and exhibited behaviour younger than his chronological age. The host family took him in because his parents had evicted him from theirs. He was homeless.

[4] The complainant and Mr. Farrell-Cote were acquaintances before the decision to offer him a place. Circumstances offered the complainant and Mr. Farrell-Cote time alone. Their bedrooms were contiguous.

[5] The complainant declared her “love” for Mr. Farrell-Cote within the first month of his arrival. He declared his love for her within the next week. Their intimacy developed quickly from kissing to exposure, to masturbation, to digital penetration and fellatio times ten. The complainant went to Mr. Farrell-Cote’s bed for these activities. But for the incapacity inherent in the victim’s age, interest in this progression was mutual.

[6] Mr. Farrell-Cote was evicted after the victim disclosed feelings of affection for Mr. Farrell-Cote to her mother. The victim thought she was in love with Mr. Farrell-Cote and was heart-broken when he was evicted.

Sentence Provisions

[7] When these offences were committed, each of the offences of sexual interference, sexual touching and sexual exploitation attracted a maximum sentence of ten years imprisonment. More recently, since August 9, 2012, each attracts a minimum sentence of one year in prison. The offence of exposure attracts a maximum sentence of two years. More recently, since August 9, 2012, this offence attracts a minimum sentence of 90 days.

[8] Section 718.01 provides that the primary sentencing objectives for offences involving abuse of children are denunciation and deterrence. A conditional sentence was removed as an option on November 1, 2005.

[9] Evidence that the offender abused a person under the age of eighteen years or that in committing the offence, the offender breached a position of trust or authority in relation to the victim or that the offence had a significant impact on the victim considering her age and other personal circumstances are codified aggravating factors in s. 718.2(a)(ii.2), (iii) and (iii.1).

[10] There are corollary orders mandated in the Criminal Code. There is a mandatory firearms/weapons prohibition under s. 109. The sentencing judge shall consider making an order under s. 161. There is a mandatory DNA order – section 487.051. On Crown application, there is a mandatory sex offender registration order – s. 490.012(1).

The Offender

[11] Mr. Farrell-Cote experienced a traditional childhood, but adolescence brought personal chaos. He was the victim of bullying in secondary school. His defensive behaviour resulted in expulsion. He embraced street drugs and left school during grade 10. His behaviour at the time overwhelmed his parents who had to cut him loose. His development arrested.

[12] Presently Mr. Farrell-Cote is 30 and married. He has one biological child and his spouse has a child with special needs from another union His spouse and parents are supportive.

[13] The author of the PSR concluded that Mr. Farrell-Cote takes no responsibility for his actions in this matter.

[14] Mr. Farrell-Cote was convicted of unrelated offences in 2010, two or three years after the events at bar, for which he was sentenced to six months imprisonment. In submissions, counsel represented that Mr. Farrell-Cote served 60 days and the experience was life changing. He turned his life around.

Victim Impact Statements

[15] The complainant is now twenty-one years of age. Over time, she understood she was victimized. She takes medication for depression and anxiety she attributes to her experience with Mr. Farrell-Cote. The complainant’s mother articulated the family feelings of guilt for failing to protect their daughter and sister.

Positions of Counsel

[16] The Crown submits that a fit and just disposition in accordance with s. 718 includes a period of imprisonment of between four and six years together with corollary sanctions including a DNA sample as a primary designated offence, a non-communication order pursuant to s. 743.21, a ten-year weapons prohibition pursuant to s. 109, SOIRA for life - s. 490.013 and an order pursuant to s. 161 in relation to the victim and employment in a position of trust regarding children under age 16 except for his own children and when parents present. He submits that the global four to six years be allocated:

Count 12: 2.5 – 3 years; Count 5: 2 years consecutive; Count 7: 2 years concurrent; Counts 2, 4, 6: 12 – 18 months concurrent.

[17] The defence position is that a global period of imprisonment of two years less one day will meet the objectives of sentencing.

Sentence Purposes, Principles and Jurisprudence

[18] The fundamental purpose of sentencing as expressed in section 718 is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation; deterring the offender and other persons from committing offences; separating offenders from society, where necessary; assisting in rehabilitating offenders; providing reparation for harm done to victims or to the community; and promoting a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[19] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. The Court is required to consider relevant aggravating and mitigating circumstances relating to the offence or the offender. A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh.

[20] Although s. 718.2 provides that an offender should not be deprived of liberty if less restrictive sanctions can be appropriate in the circumstances, the submissions of counsel confirm this is not a case where a non-custodial disposition would be appropriate.

[21] The gap principle directs Courts to give consideration to gaps of time between offences. It gives credit to offenders who make an effort to avoid criminal charges.

[22] The fundamental principle of proportionality requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. In this sense, the principle serves a limiting or restraining function. However, the rights-based, protective angle of proportionality is counter-balanced by its alignment with the “just desserts” philosophy of sentencing, which seeks to ensure that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused (citations omitted). Understood in this latter sense, sentencing is a form of judicial and social censure. Whatever the rationale for proportionality, however, the degree of censure required to express society’s condemnation of the offence is always limited by the principle that an offender’s sentence must be equivalent to his or her moral blameworthiness, and not greater than it. The two perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary – R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206.

[23] The relevance and relative importance of each of these objectives and principles will vary according to the nature of the crime and the circumstances of the offender. They can come in conflict with one another. It is up to the trial judge to determine which merit the greatest weight given the particulars of the case. Fixing a sentence is particularly difficult where the gravity of the offence points strongly in one sentencing direction and the moral blameworthiness of the individual offender points strongly in a very different sentencing direction.

[24] The Ontario Court of Appeal dicta in R. v. D.(D.), 2002 ONCA 44915, [2002] O.J. No. 1061, R. v. D.M. 2012 ONCAS 520 and R. v. Woodward, 2011 ONCA 610, [2011] O.J. No. 4216 are cited in sentence hearings of this nature.

[25] The facts in those cases were such that both gravity of offence and moral blameworthiness of the offender were at the same end of the spectrum.

[26] In D.D., the offender was convicted of 11 sexual offences involving 4 boys, over a seven-year period starting when D.D. was 25. D.D. befriended the 4 victims who ranged in ages from 5 to 8 years and regularly and persistently engaged them in all manner of sexual activity including attempted or successful anal intercourse. He groomed them. He bought gifts, took them on trips, provided beer and cigarettes and exposed them to pornography. He used threats of violence or extortion to keep them quiet. He held one over his 30th floor balcony and warned that the victim would be thrown over the edge if he ever complained to anyone. D.D. stood in a position of trust towards the boys. He was a close and trusted family friend and, to the one he threatened to drop 30 stories, he assumed the role of step-father. The victim impact statements demonstrated the severe and devastating impact of the offences on the victims and their families.

[27] The Court cited relevant factors directed at moral blameworthiness including adult offender, position of trust, regular and persistent abuse over an extended period of time, involving full intercourse, acts of physical violence, threats of physical violence or other forms of extortion, psychological, emotional and physical brutalization, high risk of re-offending and little insight into the seriousness of the offences as aggravating circumstances.

[28] Justice Moldaver at paragraphs 44 and 45 summarized the sentencing policy to be:

[44] 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. When the abuse involves full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats of physical violence, or other forms of extortion, upper single digit to low double digit penitentiary terms will generally be appropriate. Finally, in cases where these elements are accompanied by a pattern of severe psychological, emotional and physical brutalization, still higher penalties will be warranted. (See, for example, R. v. M. (C.A.), 1996 SCC 230, [1996] 1 S.C.R. 500, 105 C.C.C. (3d) 327 in which the Supreme Court restored the 25-year sentence imposed at trial and R. v. W. (L.K.) (1999), 1999 ONCA 3791, 138 C.C.C. (3d) 449 (Ont. C.A.) in which this court upheld a sentence of 18 and a half years imposed at trial.)

[45] The appellant was prepared to risk the lives of innocent children to satisfy his sexual cravings. His conduct was reprehensible and it must be condemned in the strongest of terms. The harm occasioned by the appellant and others like him 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!

[29] The price in that case was nine years and one month imprisonment.

[30] The facts in DM were similarly egregious. DM was the victim’s uncle. The victim was born in Fiji and immigrated to Canada at the age of 15 for an education and better life. Over a period of 3 years, DM subjected the victim to sexual intercourse two or three time weekly, he made her watch pornography and threatened deportation if she disclosed. The Court of Appeal confirmed that where there was prolonged sexual abuse and assault of a child, including penetration, by an adult in a position of trust, the minimum sentence was five or six-years imprisonment.

[31] The considerations that are relevant in cases of child sexual abuse were articulated by Justice Moldaver in R. v. Woodward, 2011 ONCA 610 at para 72:

• Our children are our most valued and our most vulnerable assets;
• We as a society owe it to our children to protect them from the harm caused by sexual predators.
• 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.
• 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.
• 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.
• 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.

[32] In Woodward, a 30 year-old man lured a 12 year old girl, first through the Internet, then through texting to have sex with him in exchange for the transfer of millions of dollars to a bank account to be set up for her. Her family was experiencing financial difficulties at the time. She attended the location where he had her perform fellatio on him twice and had intercourse with her.

[33] He was sentenced to five years' imprisonment for sexual assault, four years concurrent for sexual interference, two years concurrent for invitation to sexual touching, 12 months concurrent for attempting to obtain sexual services for consideration and 18 months consecutive for child luring.

[34] In cases where offences arise out of the same incident, sentences should not necessarily be made concurrent if the offences constitute invasions of different legally protected interests, although the principles of totality must be kept in mind.

Aggravating and Mitigating Factors

[35] A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances. Mitigating factors are to be found on a balance of probabilities, while aggravating factors are to be considered after a finding beyond a reasonable doubt (s. 718.2 CCC). Mitigating and aggravating factors are only those that are related to the gravity of the offence or the moral blameworthiness of the offender.

[36] The absence of a factor that might be viewed as aggravating or mitigating is neutral. By way of example, Mr. Farrell-Cote does not take responsibility for his actions. I take that to mean he has little insight into the seriousness of the offences as aggravating circumstances. Sincere remorse can be mitigating. Lack of remorse, especially in the context of denial is not aggravating. A plea can be mitigating. Denial and trial are not aggravating. That Mr. Farrell-Cote did not engage in sexual intercourse is not mitigating. Had he done so would have been aggravating.

[37] The codified aggravating factors are in play.

[38] Certain other aggravating factors are absent. There are not multiple victims. There was no vaginal or anal intercourse. There was not the level of physical aggression often present in sexual assault cases. There is no evidence aside from the fact of the current offences to suggest Mr. Farrell-Cote poses an ongoing threat as a sexual predator.

[39] In terms of mitigating factors, at the time Mr. Farrell-Cote was himself a neophyte. He hadn’t experienced successful relationships. He was vulnerable to the first person who offered affection. He has not offended in the last seven years. He is married and fulfils the duties of parenting. He is pro-social now and has family support. There is no evidence to suggest he is a risk for re-offending.

[40] Although this is not Mr. Farrell-Cote’s first sentencing, these were his first offences. Sequentially, this ought to have been his first sentence. He was a youthful impressionable offender at the time. A first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence. An emphasis on individual deterrence rather than general deterrence is particularly applicable in the case of a youthful first offender. His record confirms counsel’s submission to the point that Mr. Farrell-Cote responded favourably to the incarceration in 2010 – R. v. Priest, 1996 ONCA 1381, [1996] O.J. No. 3369 ONCA.

Principles Applied

Gravity of Offence and Harm Occasioned

[41] The intuitive reaction that engenders on learning a 20 year-old male engaged in sexual activity with a 12 year-old female is repugnance.

[42] As Justice Moldaver wrote in Woodward, our children are our most valued and our most vulnerable assets. We as a society owe it to our children to protect them from the harm caused by sexual abuse.

[43] Victim impact is a factor in assessing gravity of the offences. The concerns include the possible immediate physical and psychological harm; the longer-term impact on the victim’s ability to form a loving, caring relationship with another adult; and the elevated risk a victim will become an abuser as adult.

[44] The victims in this case said the offences at bar had a profound effect on the victim and her family.

[45] S. 718.01 assigns prominence to the objectives of denunciation and deterrence to offences involving abuse of children. Section 718.2 designates the abuse of a child as an aggravating factor in sentencing.

[46] Parliament considers offences involving the sexual abuse of children in the serious category. The offences themselves attract maximum imprisonment of ten years.

Moral Blameworthiness

[47] The facts at bar are in a different dimension than those in any of D.(D.), DM or Woodward. The pre-residence emails reveal an immature young man generally mystified regarding relationship matters. Mr. Farrell-Cote did not accept the offering of a place to stay as predator seeing opportunity to sexually exploit the victim. He entered the home innocently. He cannot be categorized as a predator comparable to any of DD, DM or Woodward. He was opportunistic as opposed to predatory.

[48] The host family entrusted Mr. Farrell-Cote with the expectation he would obey house rules. He was given free reign. He broke that trust. That places Mr. Farrell-Cote in the position of trust towards the victim, albeit at the low end of the continuum. He did not stand in position of trusted adult long-time friend of family or extended family member assuming role of stepfather/uncle or the like.

[49] The victim initiated the more-than-friends relationship. There is no way to know why Mr. Farrell-Cote did not discern the prohibition inherent in their age differential and time of life. Instead of a gracious and outright refusal, he pandered to immediate gratification, exploited the vulnerable impressionable twelve-year old and became a criminal.

[50] Mr. Farrell-Cote knew that a sexual relationship with a twelve-year-old girl was morally blameworthy. He emphasized secrecy. He knew that disclosure was fatal. He exploited the complainant’s vulnerabilities when he suggested the consequences of disclosure would devastate her reputation.

[51] Although Mr. Farrell-Cote did not groom the victim in the same fashion depicted in the landmark cases, he did assume the role of teacher to feed his gratification and progress the sexual nature of the interaction.

[52] In both DD and DM, the abuse carried on for several years. Time was not a factor in Woodward, but luring was pre-eminent. Here the sexual relationship was between two and five months. There was no extortion or brutality involved. Although inherently misguided, they thought the emotional attachment was mutual.

Denunciation/Deterrence

[53] The educational function of sentencing is immersed in the purposes of sentencing articulated in s. 718. It is central to general deterrence and recognition by the offender of the harm caused. Justice Moldaver’s message is that there will be a price to pay for offences of this genre. That Mr. Farrell-Cote doesn’t accept responsibility for his complicity suggests the message has not resonated.

[54] That said, the range offered by the Crown, although appropriate for the gravity and harm caused, is too high for the moral blameworthiness involved. Mr. Farrell-Cote was a youthful and impressionable offender. He was not predatory. He did not cross the line of sexual intercourse. It was a brief interlude. If he was in a position of trust, it was low end. The grooming if it could be characterized as such was in a different dimension than the behaviours exhibited in D.D. and D.M.

[55] The gravity of the offence and the harm done takes these offences out of the provincial range. Each of these offences constitutes invasions of similar legally protected interests.

[56] Mr. Farrell-Cote, I am sentencing you to a global period of incarceration of thirty (30) months imprisonment, comprised of:

1. Count 12 s. 151(a) – 30 months;
2. Counts 5 s. 152, and 7 s. 271 – 30 months each to be served concurrently; and
3. Counts 2 s. 151(a), 4 s. 151(a), 6 s. 173(2) – 18 months each to be served concurrently.

[57] The corollary orders flowing from these convictions are:

1. These are primary designated offences: Mr. Farrell-Cote will provide a DNA sample;
2. Mr. Farrell-Cote is prohibited from communicating directly or indirectly with MP and SP during the custodial period of sentence – s. 743.21;
3. There will be a ten-year weapons prohibition pursuant to s. 109;
4. The SOIRA compliance order is for life - s. 490.013; and
5. Mr. Farrell-Cote is prohibited from being within two kilometres of any dwelling-house where MP ordinarily resides for a period of ten years pursuant to s. 161. For the reasons stated in all the circumstances, this is not a situation that merits the other prohibitions contemplated in s. 161.

[58] The message to young men sixteen to twentyish is that girls under the age of sixteen years are off-limits. They are unable to consent to sexual relations. It you choose to succumb, you spend time in a federal prison and bear the costs for life. Surely that information communicates society’s denunciation of such behavior and serves to deter otherwise law-abiding young men from getting involved.

The Honourable Mr. Justice Rick Leroy Released: March 30, 2017