R. v Chamberlain, 2017 ONSC 5089

COURT FILE NO.: CR-16-10000701-0000

DATE: 09/12/2017

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Ryan Chamberlain

Defendant

Tim di Muzio , for the Crown

Bella Petrouchinova, for the Defendant

HEARD: September 5, 2017

REASONS FOR SENTENCING

CAROLE J. BROWN, J.

[1] Ryan Chamberlain was found guilty by a jury of three counts of sexual assault against C.K., age 18 and one count of sexual assault against A.R., age 21. Mr. Chamberlain was, at the time, a fashion photographer and the victims were young, aspiring models. Neither model knew the other at the time of the offences.

Nature of the Offences

[2] The sexual offences for which Mr. Chamberlain was found guilty as against C.K. occurred between 2009 and 2012 and the offence against Ms. A.R. occurred in March 2011.

[3] All offences occurred at his photography studio in downtown Toronto where he also lived. All offences occurred during photographic “shoots” with each of the two models. As regards Ms. A.R., she testified that the sexual assaults comprised touching of breasts, vagina and digital penetration. Ms. C.K. testified that the sexual assaults included touching of breasts, vagina, digital penetration and penile penetration.

Impact of the Assaults on the Victims

[4] Both victims provided victim impact statements. Ms. C.K. had come from Alberta to try to develop and advance a career in fashion modelling. Ms. C.K., in her victim impact statement, wrote that she became distrustful of people, felt ashamed and dirty and was unable to tell anyone about what had happened for several years after the sexual assaults. She was afraid of what people would think of her. She was angry for not having pushed him off. She states that he had made her feel comfortable and then “took it all away”. “He replaced a comfortable professional relationship with three extremely painful incidents. He tainted my perception of the industry. He took away my ability to say no.… I remember feeling so strong and ready for my career, I wanted to establish myself and make connections with people to help me along. I thought that’s what he wanted too. Before the incidence I was under the impression that he wanted to help my career too, I trusted him and he tricked me…”. She cried, lost sleep and lost her appetite. She had significant depression and anxiety. For a period of time after she made a statement to the police, she was afraid for her security.

[5] Ms. A.R., who was a student at the time, states that she lost all interest in the things that she had previously been passionate about including soccer, drawing, singing, poetry and dance. She avoided friends and family. She stopped taking care of herself, stop eating and maintaining her personal hygiene. She became extremely ill in 2011. She has developed sleeping problems due to the trauma, has nightmares which cause her to be fearful of falling asleep and was diagnosed with post-traumatic stress disorder. She became depressed and suicidal, refusing to leave the house for a period of time. She finds it difficult trusting men and at a certain point was afraid to be in physical contact with men whether she knew them or not. She is paranoid about men’s intentions especially those in positions of power and authority. She has had difficulty getting into relationships with men since the sexual assault. Her education has suffered significantly. Due to physical and mental issues she was unable at the beginning to attend school, was petrified to sit in classes, in a confined space with people she did not know. She experienced severe anxiety attacks and terrible flashbacks. As a result she had to divide her academic workload into two years and graduated one year later than anticipated. She is fearful for her security and that of her family. She had developed low self-confidence and esteem.

[6] It is clear from the statements that both victims were significantly affected, both emotionally and psychologically, by the sexual assaults, and that the impacts of the sexual assaults on them remain through the present.

Particulars of the Offender

[7] The offender was born March 3, 1975 and is currently 42 years of age.

[8] He has no previous criminal record.

[9] According to the Pre-sentence Report (PSR), he comes from a good, solid, loving family. His parents reside in Arizona. As a child, he had no behavioural issues. He is single, without children, and in no long term relationships.

[10] He had been focused on his career. He obtained his Ontario High School Equivalency Diploma. At 20, he became interested in computers and taught himself computer software programming. He started a business providing services for network administration, webmaster and data processing and programming. In 2006, he began business as a photographer.

[11] He was raised in a religious family and has apparently, since the conviction, begun to reconnect with his religion.

Positions of the Parties

Position of the Crown

[12] It is the position of the Crown that the appropriate sentence in this case is 6 years and three months for the two offences, five years and three months for Ms. C.K. and one year for Ms. A.R., to be served consecutively, plus a DNA Order regarding each count and a SOIRA Order pursuant to sections 490.011, 490.013(2.1) and 490.012(1) for life.

[13] It is the position of the Crown that the offender preyed on the victims, taking advantage of the two young aspiring models who had little or no modelling experience. The offender was seen by the two young models to have significant experience as a fashion photographer, with connections in the industry, which each understood he was willing to use to assist them. He created an atmosphere of professional calm, in which they quickly came to trust him, and in which he manipulated them, connecting incidents of touching with modelling success. It was the position of the Crown that this amounted to an abuse of trust pursuant to section 718.2(a)(3.1) of the Code.

[14] It was the position of the Crown that, pursuant to the PSR, the offender revealed a lack of insight regarding his behaviour and failed to recognize accountability for his actions, maintaining, even after conviction, that the sexual encounters were consensual.

[15] The Crown maintains that, in the circumstances of this case, the principles of denunciation and deterrence, both specific and general were primary sentencing objectives. Specific deterrence was required because the offender failed to accept responsibility and rationalized his behaviour as normal in the fashion industry. General deterrence was required given that models tend to be young and inexperienced and vulnerable, such that a message must be sent to others in the industry who may try to prey on young models.

Position of the Defence

[16] Counsel for the defence concedes that, in the circumstances of this case, due to the penile penetration of Ms. C.K., a penitentiary sentence is appropriate and that a sentence of two years plus a day should be imposed. Counsel for the defence submits that consecutive sentences should not be imposed, but rather a global sentence of two years plus a day. The defence further submits that credit should be given for 13 days of pretrial custody at 1.5:1 (19.5 days) and credit for stringent bail conditions for one year (namely strict house arrest) and suggests 4 months based on the case of R v Downes, 2006 CanLII 3957 (ON CA), 79 O.R. (3d) 321. Finally as regards the SOIRA Order, counsel for the defendant submits that a 10 year order is appropriate.

[17] Counsel for Mr. Chamberlain contests that there was any breach of trust or authority. The photographer-model relationship is not one that is traditionally characterized as a position of trust or authority, are the parent-child, stepfather-child, teacher-student or coach-player relationships. Here, the models were trying to advance their careers, had some experience, there was no financial dependency and the models were gaining an advantage in having professional photographs for their portfolios. Counsel noted that Ms. C.K. was obtaining the photographs, at least initially, for free. Counsel described the complainants as “entrepreneurs” and the relationship as a business relationship. There were no threats, no violence and, according to Mr. Chamberlain, the relationships were consensual, a position that he consistently maintained through the trial and after, as noted in the PSR, which was his right. There was no planning on the part of the offender and no luring. The age differences were not significant, being on an average 15 years difference.

[18] Character references were provided. References from the parents described the offender as a selfless individual. A family friend for approximately four years, Rodney Delaney, who was about the age of Mr. Chamberlain’s parents, stated that the offender was intelligent, confident, affectionate, hospitable, always willing to help or give advice, professional, respectful of authority, an educator around children and a person who treated elders as if they were his parents. Mr. Delaney indicated that Mr. Chamberlain was attempting to re-establish himself in a Bible-centric life.

[19] Kathy Franklin, who had known the plaintiff for approximately 15 years read her character reference. She and her husband are sureties for the offender. She described Mr. Chamberlain as kind, caring and respectful. The Franklins took Mr. Chamberlain into their home, where he remains through the present. The Franklins have two daughters who were aged five and 11 at the time that Mr. Chamberlain first came to live with them and who are now 10 and 16. They have no concerns about having him in the home with their daughters. Ms. Franklin describes the offender as kind, caring, respectful, and considerate for others and respectful of personal boundaries.

Purposes and Principles of Sentencing

[20] The purposes of sentencing are set forth at section 718 of the Criminal Code, as follows:

718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

a. to denounce unlawful conduct;

b. to deter the offender and other persons from committing offences;

c. to separate offenders from society, where necessary;

d. to assist in rehabilitating offenders;

e. to provide reparations for harm done to victims or to the community; and

f. to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community.

[21] The principles of sentencing that must be applied are set forth at §§ 718.1 and 718.2 of the Criminal Code:

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

718.2 A court that imposes a sentence shall also take into consideration the following principles:

a. a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

i. evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor,

ii. evidence that the offender in committing the offence abused the offender’s spouse or common-law partner,

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of 18 years,

iii. evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,

(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,

iv. evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or

v. evidence that the offence was a terrorism offence shall be deemed to be aggravating circumstances;

b. a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

c. where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

d. an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

e. all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

[22] Pursuant to section 718.1 of the Code, the sentence must be proportionate to the offence and the degree of the offender’s responsibility. Proportionality is a principle of fundamental importance in the sentencing of any person, although it is not a principle of fundamental justice. An offender is not to be deprived of his liberty if less restrictive sanctions may be appropriate in the circumstances of the case. All available sanctions other than imprisonment that are reasonable in the circumstances must be considered for all offenders. Otherwise, aggravating and mitigating circumstances are to be considered by the court. Sentencing is an individualized process: see R v Gadam, 2016 ONSC 4664, [2016] O.J. No. 4316.

Mitigating Factors

[23] In this case, the most important mitigating factor is that there is no criminal record for Mr. Chamberlain. I note as well that he has a supportive family, although they are resident in Arizona. He appears to have respected his bail conditions and court appearances throughout.

[24] He appears to have reconnected with his religion. He has acknowledged that the offences are “morally wrong”. While, according to the PSR, he continues to maintain that his actions were consensual, as he did throughout the trial, this is his right. This is not considered an aggravating factor, but is a neutral factor.

Aggravating Factors

[25] In my view there was a pattern of behaviour as regards the two victims. Mr. Chamberlain took advantage of their youth and inexperience. As aspiring young models, they saw him as knowledgeable, experienced and someone who seemed willing to assist them in advancing their careers. They were advised that he had contacts in the industry and believed that he could assist them.

[26] According to Ms. C.K., Mr. Chamberlain was recommended to her by her modelling coach, Krystal Reeve. She was also told that Mr. Chamberlain would provide initial photographs for free. She went to an initial “shoot” with Mr. Chamberlain and subsequently attended at his studio a number of times. He suggested that in order to project a certain emotion in her eyes and in her modelling poses, she should think about sex. He subsequently touched her sexually on numerous occasions and, at one point, when she was changing at her change table, he pushed her over the table and penetrated her vaginally.

[27] She indicated that she was afraid to tell anyone or to report him, as she was afraid that he could use his contacts to damage her aspiring career.

[28] According to Ms. A.R., she wanted to try modelling and put her profile on a modelling website for models, photographers and others in the industry, called Model Mayhem. Mr. Chamberlain contacted her and invited her to come to his studio. On the first attendance she was with her boyfriend, although, according to her evidence, when the photo shoot began, he asked that her boyfriend wait for them at a nearby café. Ms. A.R. stated that she contacted her boyfriend to return when the shoot was over and they were going to look at the photographs.

[29] On the second occasion, about four days later, Mr. Chamberlain suggested that she needed to relax. He touched her breasts, her thigh and then touched her vagina. He touched the vagina again and then digitally penetrated it. He then indicated that the photographs he took thereafter were much better and exuded a certain “look”. She was initially afraid to leave, as she was afraid this may hurt her as regards any aspiring career. Further, when she attempted, at one point, to text her boyfriend, Mr. Chamberlain told her not to do so. She subsequently left and did not come back.

[30] In their testimony, the victims each stated that when the incident occurred they were shocked, frozen and could not respond. Each victim expressed fear at what the offender might do to them physically, or what he might do to harm their reputation and their aspirations for a career in the industry if they complained or spoke out during or after the incidents.

[31] Both models looked up to the offender as someone who was experienced and could help them in their careers. Both were told that sexual touching was normal in the industry and that it would help to relax them in order to get the proper fashion “look”. Both were made to feel comfortable with him and then were sexually assaulted.I have taken into account ss. 724(3) and I am satisfied beyond a reasonable doubt that there was a pattern. He used similar techniques as regards both Ms. C.K. and Ms. A.R..

[32] I do not accept the submission of counsel for Mr. Chamberlain that this was not a situation of an imbalance of power or authority, but was a business transaction among business people.

[33] This was not simply a business transaction between young aspiring models and an experienced fashion photographer. Nor were these instances of sexual encounters in a moment of weakness or under the influence of intoxicants. In my view, Mr. Chamberlain took advantage of two young, inexperienced aspiring models who perceived him as experienced, trusted him as a professional and were deceived. While this may not fall within the traditional category of a relationship of abuse of power or trust, Mr. Chamberlain was in a position of perceived authority vis-à-vis the victims.

[34] I further take into account the ages of the victims, the fact that there were two victims and several incidents of sexual assault and further that the victims were significantly affected. I take all of these into consideration in sentencing Mr. Chamberlain.

Legal Parameters

[35] Pursuant to section 271(a) of the Code, sexual assault is punishable by imprisonment for up to 10 years, when prosecuted by way of indictment.

Analysis

[36] In the circumstances of this case the purposes of denunciation and deterrence, both general and specific will be important. The starting point in determining a fit sentence is the principle of proportionality, namely that the sentence must be “proportionate to the gravity of the offences and the degree of responsibility of the offender” based on the circumstances of the offences and the offender. The offences show a serious lack of understanding of personal boundaries, the dignity of a person, and the right of a woman not to be touched. Mr. Chamberlain violated the victims’ autonomy as women and their sexual integrity.

[37] While Mr. Chamberlain may, as he testified, view this as normal in the fashion industry, it is not acceptable behaviour and, accordingly, both specific deterrence vis-à-vis Mr. Chamberlain and general deterrence are important. Given all of the circumstances of this case, specific deterrence as regards Mr. Chamberlain is important. General deterrence will also be important given that models tend to be young, inexperienced and vulnerable, such that a message must be sent to others in the offender’s position who may attempt to prey on or abuse young models.

[38] In imposing a fit sentence, I must also keep in mind the principle of parity, namely that similar offenders should receive similar sentences for similar offences committed in similar circumstances. Clearly, no two offenders are the same, nor are the circumstances in which similar crimes are committed. Nevertheless, the principal is important and must be considered. In this regard, counsel have each relied on a number of cases, which I have considered.

[39] The Crown relied on the following cases, all involving sexual assault: R v Ajimotokan [2013] O.J. No. 6344; R v S.A. 2014 ONCA 266, [2014] O.J. No. 1609; R v Gadam 2016 ONSC 4664, [2016] O.J. No. 4316; R v O.B. [2008] O. J. No. 4423; R v Mullins [2015] O.J. No. 1456.

[40] Ajimotokan involved a 23-year-old first-time offender, who sexually assaulted two acquaintances. The sexual assaults were each premeditated and deliberately planned. They involved violence. The offender was sentenced to five years. The Court of Appeal found the sentence to be appropriate, but lenient, reflecting the offender’s relative youth and lack of record. The Court of Appeal found that the offences, using violence, threats and attempted rape, merited a penitentiary sentence and that five years imprisonment was appropriate. However, the Court of Appeal found the trial judge had erred in suggesting that the range for these types of offences could be as low as a reformatory sentence.

[41] The other three cases involved situations of trust or authority. In Gadam, the offender was the mentor of the victim in a business setting. He was convicted and sentenced to three years, taking into account the closed community in which the parties, both originally from India, lived, and the fact that the offender had been of good character, with good prospects for the future with his family and financially, and the significant adverse effect deportation would have on him and his family, which were taken into consideration. Absent these factors, the trial judge indicated that a more severe sentence, in the range of four years would have been imposed.

[42] O.B. involved a stepfather who sexually assaulted his two minor stepdaughters, one of whom was impregnated and underwent an abortion at the age of 12. Consecutive sentences of 11 years in total were imposed.

[43] Mullins involved an offender who drugged and brutally raped the 18-year-old friend of his teenaged daughter. He had a previous criminal record. The incident was premeditated. He was sentenced to eight years three months with credit for time served.

[44] The defendant submits that there are very few cases involving photographers and models. Counsel for the defendant relies on R v Dow [2012] M.J.No.321(Man.Q.B.), involving a part-time photographer and model. There were 11 counts of sexual assault and one count of assault, involving 12 victims. No position of trust or authority was found. There was no violence, no threats, no penetration and the offender was a first offender. The total sentence imposed was 540 days reduced for excessive delay to 486 days.

[45] Counsel for the defence relies also on R v Colosie 2016 ONSC 1708, [2016] O. J. No. 1473, another case involving sexual assault by a photographer of a model. The victim was found not to be credible. The sentence imposed was nine months conditional and nine months’ probation.

[46] The defendant relies on R v Downes, 2006 CanLII 3957 (ON CA), 79 O.R. (3d) 321 for the proposition that credit should be given for strict bail conditions.

The Sentence

[47] As regards a fit and proportionate sentence, the defendant has conceded that the circumstances of this case warrant a penitentiary sentence, and submits that two years plus a day would be appropriate. As previously indicated, the Crown seeks a sentence of five years and three months for C.K. and one year for A.R., for a total of six years and three months.

[48] Counsel for the defence also seeks credit for 13 days pretrial custody at 1.5:1 or 19.5 days. Counsel further seeks credit for the strict bail conditions imposed on the offender, namely house arrest for one year. Relying on Downes, supra, which gave credit of five months for 18 months strict house arrest counsel proposes, in the circumstances of this case, four months credit, for a total of four months and 19.5 days credit.

[49] I have considered all of the case law, in addition to the circumstances of the case, the circumstances of the offender, the impact on the two victims, the mitigating and aggravating factors, as set forth above. In imposing sentence, I have taken into account the patterns of conduct vis-à-vis the young models, the abuse of the two models by a person they perceived as experienced and trustworthy, the age difference (Ms. C.K. stated that the offender was about the age of her father) and the significant impacts on the lives of the victims. I have also considered and taken into account the fact that the offender had no previous criminal record, the fact that he is no longer able to practice his profession, given that it is based on respect and establishing confidence and trust in the models with whom he works.

[50] In my view, an appropriate sentence is four years and three months in total, three years and three months as regards C.K. and one year as regards A.R., to be served consecutively. The crimes as against each of C.K. and A.R. are separate and distinct. As a general principle, assaults that are separate, unrelated transactions should receive separate, consecutive sentences: R v Chenette, (1990) 40 OAC 138 (C.A.); R v White, Dubeau and McCullough, (1974), 1974 CanLII 1495 (ON CA), 16 C.C.C. (2d) 162 (Ont C.A.); R v O.B., supra, at paragraph 50. I further give credit of 19.5 days for the pretrial custody and three months for the strict bail conditions imposed for the first year.

Ancillary Orders

[51] An Order is made pursuant to section 487.051 of the Criminal Code authorizing the taking of such bodily samples from the defendant as may be reasonably required for the purposes of a forensic DNA analysis.

[52] An Order is made pursuant to section 490.012 of the Criminal Code requiring the defendant to comply with the SOIRA for 20 years.

[53] An Order is made pursuant to section 743.21 of the Criminal Code prohibiting the defendant from communicating, directly or indirectly with C.K., A.R., their parents and family members for the custodial period of the sentence of four years and three months.

Carole J. Brown, J.

Released: September 12, 2017

CITATION: R. v Chamberlain, 2017 ONSC 5089

COURT FILE NO.: CR-16-10000701-0000

DATE: 09/12/2017

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Ryan Chamberlain

Defendant

REASONS FOR SENTENCING

Carole J. Brown, J.

Released: September 12, 2017