Her Majesty the Queen v. M.C., 2017 ONSC 2667

ONTARIO

SUPERIOR COURT OF JUSTICE

CITATION: Her Majesty the Queen v. M.C., 2017 ONSC 2667

COURT FILE NO.: CR911/15

DATE: 20170501

BETWEEN:

Her Majesty the Queen

Mr. Craig Brannagan, for the Crown

• and -

M.C.

Mr. Hedley Thompson, for the Accused

Accused

HEARD: April 26, 2017

REASONS FOR SENTENCE

Conlan J.

I. Introduction

1This is a terrible case of repeated sexual abuse of a minor relative.

2M.C. was tried before me, without a jury, in Walkerton in January 2017. He was facing thirteen counts of historical sexual offences alleged to have been committed against two young males.

3In written Reasons for Judgment reported at 2017 ONSC 776, I found M.C. not guilty of four of the charges regarding one of the complainants and guilty of the remaining nine counts involving the other victim.

4The sentencing hearing was held in Walkerton on April 26, 2017.

5At the commencement of that hearing, we dealt with Kienapple issues. After hearing submissions from counsel, three of the nine findings of guilt were conditionally stayed (counts 5, 8 and 11, the section 151 matters). Convictions were registered on the other six counts – 6, 9 and 12 (the section 152 charges), and 7, 10 and 13 (the section 271 charges).

II. The Facts

6To appreciate the background, set out below are the following paragraphs taken from the Reasons for Judgment: 1 through 4, 11, 17, 29 through 36, and 105 through 115.

1In total, the accused faces thirteen counts of historical sexual offences alleged to have been committed against two young males between the years of 1998 and 2005.

2At Court on January 30, 2017, just prior to closing submissions by counsel, at the request of the Crown and without any opposition by the Defence, many of the counts were amended. The amendments were all relatively minor in nature. All but one of them concerned the dates of the alleged offences. Count 2 was amended to coincide with the trial evidence of the complainant as to which part of his body he was invited to use in touching the accused.

3All references to the counts below are to the amended wording.

[4] M.C. is charged with four counts of sexual interference. The formal charges read:

Count 1. M.C. stands charged that between the 1^st day of September, 1998 and the 31^st day of December, 1998 at the First Nation of S[…] in the said region did for a sexual purpose touch A.R.-A., a person under the age of fourteen directly with a part of his body, to wit his penis, contrary to Section 151 of the Criminal Code of Canada.

Count 5. M.C. further stands charged that between the 1^st day of June, 2001 and the 1^st day of September, 2002 at the First Nation of S[…] in the said region did for a sexual purpose touch N.A., a person under the age of fourteen directly with a part of his body to wit his penis, contrary to Section 151 of the Criminal Code of Canada.

Count 8. M.C. further stands charged that between the 1^st day of September, 2003 and the 31^st day of December, 2004 at the First Nation of S[…] in the said region did for a sexual purpose touch N.A., a person under the age of fourteen directly with a part of his body, to wit his penis, contrary to Section 151 of the Criminal Code of Canada.

Count 11. M.C. further stands charged that between the 1^st day of September, 2004 and the 31^st day of December, 2005 at the First Nation of S[…] in the said region did for a sexual purpose touch N.A., a person under the age of fourteen directly with a part of his body, to wit his penis, contrary to Section 151 of the Criminal Code of Canada.

[11] M.C. is also charged with four counts of invitation to sexual touching. The formal charges read:

COUNT 2: M.C. further stands charged that between the 1^st day of September 1998 and the 31^st day of December, 1998 at the First Nation of S[…] in the said region did for a sexual purpose invite A.R.-A. a person under the age of fourteen years to touch directly with his mouth to wit his penis the body of M.C., contrary to Section 152 of the Criminal Code of Canada.

COUNT 6: M.C. further stands charged that between the 1^st day of June, 2001 and the 1^st day of September, 2002 at the First Nation of S[…] in the said region did for a sexual purpose invite N.A. a person under the age of fourteen years to touch directly with his hand to wit his penis the body of M.C., contrary to Section 152 of the Criminal Code of Canada.

COUNT 9: M.C. further stands charged that between the 1^st day of September 2003 and the 31^st day of December, 2004 at the First Nation of S[…] in the said region did for a sexual purpose invite N.A. a person under the age of fourteen years to touch directly with his hand to wit his penis the body of M.C., contrary to Section 152 of the Criminal Code of Canada.

COUNT 12: M.C. further stands charged that between the 1^st day of September 2004 and the 31^st day of December, 2005 at the First Nation of S[…] in the said region did for a sexual purpose invite N.A. a person under the age of fourteen years to touch directly with his hand to wit his penis the body of M.C., contrary to Section 152 of the Criminal Code of Canada.

[17] M.C. is also charged with five counts of sexual assault. The formal charges read:

Count 3: M.C. further stands charged that between the 1^st day of September, 1998 and the 31^st day of December, 1998 at the First Nation of S[…] in the said region did commit a sexual assault on A.R.-A., contrary to Section 271 of the Criminal Code of Canada.

Count 4: M.C. further stands charged that between the 1^st day of June, 1999 and the 1^st day of September, 1999 at the First Nation of S[…] in the said region did commit a sexual assault on A.R.-A., contrary to Section 271 of the Criminal Code of Canada.

Count 7: M.C. further stands charged that between the 1^st day of June, 2001 and the 1^st day of September, 2002 at the First Nation of S[…] in the said region did commit a sexual assault on N.A., contrary to Section 271 of the Criminal Code of Canada.

Count 10: M.C. further stands charged that between the 1^st day of September, 2003 and the 31^st day of December, 2004 at the First Nation of S[…] in the said region did commit a sexual assault on N.A., contrary to Section 271 of the Criminal Code of Canada.

Count 13: M.C. further stands charged that between the 1^st day of September, 2004 and the 31^st day of December, 2005 at the First Nation of S[…] in the said region did commit a sexual assault on N.A., contrary to Section 271 of the Criminal Code of Canada.

29A.R.-A. is currently 24 years old. He was between 5 and 6, maybe 7, years old at the time of the alleged offences.

30N.A. is currently 21 years old. He was between 6 and 10 years old at the time of the alleged offences.

31The two alleged victims (sometimes referred to herein, collectively, as the "boys") are brothers. There is a third brother, the youngest in the family.

32The youngest sibling has some serious medical issues. He was born without any eyes. Throughout his life, his parents have had to transport him for many appointments in larger cities like London, Ontario. Frequently, A.R.-A. and/or N.A. were left with their paternal grandmother during those trips.

33The boys’ parents separated a few years ago. They were together at the time of the alleged offences.

34The accused is related to the alleged victims. His mother, S.C., is the paternal grandmother of the boys. The boys' father and the accused are half-brothers in that they share the same mother, S.C., but have different fathers. That makes the accused, in the words of A.R.-A., the boys' half-uncle.

35At the time of the alleged offences, the accused was an adult, much older than the boys. He was born in 1976. As of September 1998, he was 22 years old. He is currently 40 years of age.

36The offences are alleged to have occurred at the home of the boys' grandmother, S.C., on the First Nation of S[…]. As a child, the accused lived there, as did his siblings. The boys visited there frequently, as they and their younger brother and their parents also lived on the First Nation of S[…].

105I am not sure what happened, if anything, between the accused and A.R.-A.

106I am sure that the accused sexually abused N.A.

107Based on the evidence of the boy, I find that, when he was 6 or 7 years old, in the accused’s bedroom, M.C. took out his penis and asked N.A. to “jerk” him off. M.C. took the boy’s hand, pulled it towards his penis and made N.A. stroke M.C.’s penis. The accused then pushed the boy’s head down and made him suck M.C.’s penis. The accused then turned the boy around and got out a condom from the dresser and put it on. N.A. was on his hands and knees on the bed, face down. M.C. pulled down the boy’s clothing and stuck his erect penis inside N.A.’s anus. The accused ejaculated.

108When he was 8 years old, maybe a little older, during Thanksgiving celebrations at S.C.’s house, in the detached garage at the rear of the property, M.C. put his hand down the boy’s pants and stuck his finger inside N.A.’s anus. Then, with the boy leaning up against the car, M.C. put his erect penis inside the boy’s anus and began thrusting. The accused was not wearing a condom. The accused then had N.A. stroke M.C.’s penis with his hand until ejaculation.

109When he was 9 or 10 years old, in the living room at S.C.’s house, the accused asked the boy to sit on his lap. The accused’s penis was exposed and erect. N.A. was pulled by his wrist towards M.C. The accused turned the boy around to face away from the couch. The accused then pulled the boy’s waist so that N.A. sat down on M.C.’s erect penis. With a condom on, thrusting occurred inside the boy’s anus. There was no ejaculation.

110The first incident makes out counts 5 through 7 on the Indictment. The oral sex and the anal intercourse amount to sexual touching – count 5. They also constitute sexual assault – count 7. M.C. invited the boy to both touch and suck his penis – count 6.

111The second incident makes out counts 8 through 10. The digital penetration of the anus and the anal intercourse amount to sexual touching – count 8. They also constitute sexual assault – count 10. M.C. invited the boy to touch his penis – count 9.

112The third incident makes out counts 11 through 13. The anal intercourse amounts to sexual touching – count 11. It also constitutes sexual assault – count 13. M.C. invited the boy to touch and sit on his penis – count 12.

113For all of the above reasons, the verdicts are as follows.

114On counts 1, 2, 3 and 4, the charges involving A.R.-A., I find M.C. not guilty.

115On counts 5, 6, 7, 8, 9, 10, 11, 12 and 13, the charges involving N.A., I find M.C. guilty.

7In summary, this adult offender had the victim, N.A., who was between six and ten years old at the time and related to the offender, stroke the offender’s penis on one occasion, and he had the boy give the offender oral sex on one occasion, and he digitally penetrated the boy’s anus on one occasion, and he anally raped the boy on three occasions.

8Simply abominable and grotesque behaviour.

III. The Offender

9As M.C. is a first-nations man, I have the benefit of a thorough Gladue report. I am indebted to Jillian Collins of Aboriginal Legal Services in Guelph for her assistance.

10M.C. is currently forty years old. He reports no physical, mental health or substance abuse issues.

11He has a prior criminal record but nothing related – impaired driving and over 80 convictions, other driving-related convictions, property-related convictions, and an assault with intent to resist arrest, all between 1996 and 2005.

12As indicated, M.C. is an Aboriginal man. He is a “Status Indian” and is registered with the First Nation of S[…].

13M.C. has two half-siblings through his mother. He also has three younger sisters. His older brother was killed in an automobile accident in 1997.

14M.C. is currently in a relationship with an Aboriginal woman named D.. They have been together for about fifteen years. D. has two daughters, 23 and 22 years old, who live with M.C. and D. at their home on the First Nation of S[…] reserve.

15Both of M.C.’s parents are from First Nation of S[…].

16Tragically, there are Residential School survivors in M.C.’s family. Some of the offender’s mother’s siblings attended the M[…] Residential School.

17As Ms. Collins points out at page 10 of her report, the profound impacts of the legacy of residential schools in Canada, not only for survivors but also for their families and communities, cannot be overstated. After all, the residential school system has been described as “cultural genocide”.

18Fortunately, M.C. has described growing up in a tight-knit family. He was never subjected to any form of abuse by a parent or a relative.

19As a child and teenager, M.C. did fairly well in school. He enjoyed the outdoors. He got involved in racing cars.

20The offender has a grade 11 education. He has kept up a solid employment history, whether part-time or full-time, since the age of 15. Since his arrest on the sexual offences, he worked for many months, reliably, at a gas bar located on the reserve. He very recently started a new position in home restoration through the Band’s housing department.

21The death of his older brother had a serious effect on M.C. To cope, he turned to alcohol.

22In 2001, M.C. attended an Aboriginal alcohol treatment and recovery facility called R[…] Lodge. He attended another addictions day treatment program in 2004 or 2005.

23There have been other tragedies in the life of M.C. He lost a cousin and another relative to suicide in 1995. In 2002, D.’s brother committed suicide.

24D.’s daughters describe a healthy and loving relationship with M.C.

25Collateral contacts, including Chief A. of First Nation of S[…], describe M.C. as having a strong work ethic and being a generally good person.

26I conclude this portion of these Reasons with somewhat of a clarification. Notwithstanding what one may conclude from certain comments, taken in isolation, contained in the Gladue report, I am not so naïve as to think that everything was always rosy and happy in the offender’s household as he grew up.

27Suffice it to say, even as sad as it may sound, that M.C. was more fortunate than many and certainly not the victim of abuse.

IV. The Positions of the Parties

28The Crown requests the following sentence: seven (7) to ten (10) years’ imprisonment, plus ancillary Orders.

29The Crown focusses on the sentencing principles of denunciation and deterrence.

30The Defence requests a custodial sentence at the very low end of that range as suggested by the Crown, perhaps a little lower.

31The Defence does not oppose any of the ancillary Orders sought by the Crown.

32The Defence focusses not so much on mitigating circumstances but more on the lack of certain aggravating factors in this case.

33Neither side particularized how the global sentence of imprisonment ought to be apportioned among the various convictions, and neither side took a position on whether consecutive or concurrent sentences ought to be imposed.

V. Analysis

The Legal Parameters

34Although currently there would be, because of when these crimes were committed, there are no minimum penalties for any of the convictions.

35The maximum penalty for each of the convictions is imprisonment for ten years.

The Basic Legal Principles on Sentencing

36Sentencing is a highly discretionary and individualized process.

37I must have regard to the principles of sentencing outlined in section 718 of the Criminal Code of Canada – denunciation, specific and general deterrence, the need to separate certain offenders from society, rehabilitation, restorative justice and the promotion of responsibility in offenders.

38The paramount sentencing principles most applicable here are denunciation, general deterrence, and the need to separate M.C. from society. Rehabilitation, however, remains an important sentencing objective.

39Any sentence imposed must be proportionate to the gravity of the offences and the degree of responsibility of the offender – section 718.1.

40These are very serious offences.

41M.C. should not be deprived of his liberty if less appropriate sanctions are appropriate in the circumstances – subsection 718.2(d). I should consider all available sanctions other than imprisonment that are reasonable in the circumstances – subsection 718.2(e).

42Here, no sentence will suffice except for a lengthy penitentiary one.

43In fashioning an appropriate sentence, I am at liberty to consider what other consequences will be suffered by the accused besides a period in jail. Those other consequences include the criminal justice system experience itself, the criminal record, and community stigma. R. v. M.B., [2006] O.J. No. 5876 (S.C.J.), at paragraph 27.

44The helpful Gladue report prepared in this case illustrates that M.C. and his family have experienced some troubles as a result of the charges and the findings of guilt. For example, since the judgment was rendered, according to family members, M.C. has been “stressed out”. Apparently, everyone was in shock because it was assumed that M.C. would be acquitted of the charges (see page 22 of the report).

The Aggravating and Mitigating Factors

45The major aggravating factors here are (i) the breach of trust and authority committed by an adult uncle, and occasional babysitter, against a very young family member, (ii) the repetitive nature of the sexual abuse, and (iii) the degree of the sexual abuse which included multiple forced anal rapes and two instances of ejaculation on the part of the offender.

46The facts are simply disgusting. It is no surprise that the victim felt embarrassed and humiliated as he testified in Court. He tried his best, after many years, to maintain a stoic presence but eventually succumbed, put his head down and cried in shame. It is an image that I have thought about many times since the trial concluded.

47There is very little by way of mitigation except some of the comments in the Gladue report, for example, the offender is a hard and reliable worker who is generally well regarded by his family and members of the community and who has been a dependable support person for his partner and her two daughters.

48Mr. Thompson is correct, that there exists an absence here of certain other aggravating features that are present in some cases of this nature.

49As examples, M.C. was not engaged in a prolonged, regular caregiving role vis a vis the victim, and there were no overt threats made by M.C. against the victim, and there was no obvious “grooming” of the child, and the crimes committed do not appear to have been premeditated.

The Jurisprudence

50No two cases are ever the same. Sentencing decisions can always be distinguished on their facts.

51The Crown filed a Book of Authorities. In my view, those decisions most relevant are the following. I have selected these cases because they all involve Aboriginal offenders, as M.C. is, and they all involve multiple incidents of sexual abuse, as in our case, and they all involve familial or quasi-familial relations between the offender and the victim, as in our case.

52In R. v. Holland, [2003] B.C.J. No. 1099, the British Columbia Court of Appeal upheld a penitentiary sentence of five years for a mid-twenties Aboriginal man who pleaded guilty (unlike M.C.) to five incidents of sexual abuse of a 12-year old girl (younger was N.A.). The victim was the daughter of a woman whom the trial judge described as a kind of surrogate mother to the offender (not a family member, as N.A. is). The sexual misconduct included four incidents of sexual intercourse and one of forced fellatio on the victim.

53In R. v. G.M.M., [2005] A.J. No. 248, the Alberta Court of Queen’s Bench imposed a penitentiary sentence of six years for a 44-year old Aboriginal man who pleaded guilty (unlike M.C.) to sexually assaulting his 16-year old niece (older than N.A.). The sexual activity included forced vaginal and anal intercourse during one incident (there are three distinct incidents in our case). The offender (unlike M.C.) had a related criminal record. The offender (unlike M.C.) was himself the victim of a horrific childhood in his family.

54In R. v. P.J., I sentenced a 35-year old Aboriginal man who was found guilty after trial of three counts under sections 271, 151 and 152 of the Criminal Code to a penitentiary sentence of four years, less one month for presentence custody. The offender had sexually abused the daughter of his live-in partner. The victim was less than ten years old at the time of the abuse. The sexual activity did not include any intercourse, a significant distinguishing factor from our case.

55In terms of general principles, at paragraph 44 of its decision in R. v. D.M., 2012 ONCA 520, [2012] O.J. No. 3616, after discussing the case law to that date including the seminal decision of Moldaver J.A., as His Honour then was, in R. v. D.D. (2002), 2002 CanLII 44915 (ON CA), 58 O.R. (3d) 788, the Court of Appeal for Ontario stated that “where there is prolonged sexual abuse and assault of a child, including penetration, by an adult in a position of trust, the minimum sentence will be five or six years in the penitentiary”.

What is a fit Sentence for M.C.?

56There are certain cases where the offences are so serious, the facts so disturbing, that the sentence imposed on an Aboriginal offender is not markedly different, if different at all, than that which would be imposed on a non-Aboriginal offender. R. v. J.N., 2013 ONCA 251, [2013] O.J. No. 1834 (C.A.), at paragraph 51.

57This is one of those cases.

58For this heinous sexual abuse of N.A., I am of the view that a fit sentence for this offender is a global one of eight (8) years’ imprisonment.

VI. Conclusion

59The sentence of the Court is as follows.

60A primary DNA Order is issued on each conviction.

61On each conviction, a section 109 Order is issued for ten years and life according to the two subsections.

62A Sex Offender Information Registration Act Order is issued for life.

63The victim fine surcharges are waived (that is possible here because of the offence dates).

64While in custody, a non-communication Order is in place between M.C. and both N.A. and his brother, A.R.-A.

65Finally, M.C. is sentenced to a global term of imprisonment of eight (8) years.

66As there were three distinct incidents of sexual abuse separated by a significant amount of time, one from the next, the custodial sentence is apportioned as follows:

on count 7, the first sexual assault, three (3) years in custody;

on count 6, the first invitation to sexual touching, two (2) years in custody, concurrent with the sentence imposed on count 7;

on count 10, the second sexual assault, three (3) years in custody, consecutive to the sentence imposed on count 7;

on count 9, the second invitation to sexual touching, two (2) years in custody, concurrent with the sentence imposed on count 10;

on count 13, the third sexual assault, two (2) years in custody, consecutive to the sentence imposed on count 10; and

on count 12, the third invitation to sexual touching, two (2) years in custody, concurrent with the sentence imposed on count 13.

Conlan J.