CITATION: R. v. McColeman, 2018 ONSC 4388
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Paul McColeman
Kara Vakiparta and Lindsey Santerre, for the Crown
Robert J. Beckett, for the Accused
HEARD: June 27, 2018
REASONS FOR SENTENCE
Hennessy j. ORALLY:
Overview
1The facts of this case are fully set out in the Reasons for Judgment found in R. v. McColeman, 2017 ONSC 4019.
2There are two outstanding issues for the court in this sentencing matter. First, the length of the fixed sentence and secondly the request by the Crown that parole eligibility be delayed until 50 percent of the sentence has been served, to a maximum of ten years. The parties made a joint submission with respect to the finding and length of a long-term supervision order.
Facts
3Beginning in 2007, Mr. McColeman surrounded himself with adolescent boys, employing boys approximately 12 years of age to work in his garage, then invited them into his house, including to live there, when their own situations were precarious. McColeman offered access to alcohol, tobacco, electronic media, camping, moto-cross and a rifle range to vulnerable boys, and groomed and lured them. For the most part, the boys were drawn into an exchange of sex acts for money, drugs or alcohol through an anonymous offer from one of three fake profiles that McColeman set up on social media. These inducements were offered to approximately fifteen such boys, and McColeman sexually offended against seven.
4CX1 was ten years old when he met McColeman in 2012. He lived with McColeman on and off for a year and then full-time until McColeman’s arrest in June 2014. McColeman provided Percocet, hallucinogenic mushrooms, cannabis and alcohol in exchange for completing dares of a sexual nature. These dares were received over Facebook from Trebor Boucher, a fake account. These dares escalated from watching McColeman masturbate in the shower to masturbating McColeman, and engaging in oral sex. After admitting that he was Trebor Boucher, McColeman continued to engage in regular and frequent fellatio with CX1 as well as in anal sex on a few occasions. CX1 was used to recruit other boys.
5McColeman befriended CX3’s mother and visited the family’s home in 2009 when CX3 was 12-13 years old. His father was absent, and McColeman provided CX3 with attention, activity, and alcohol (which he became a serious user of). He was sent on sexual “missions” in exchange for alcohol. These dares included being fellated on a trail on a couple of occasions, participating in anal sex at least once, and performing “dream missions” that involved fellatio at McColeman’s home. Additionally, McColeman once fellated CX3 in his car after picking him up from school, and CX3 also masturbated McColeman for alcohol. McColeman promised him a snow machine if he didn’t speak to police. Like CX1, he was asked to recruit younger males.
6CX4 met McColeman when he was 14 years old, and from ages 16-18 he used drugs and alcohol. He was given alcohol or use of a quad in exchange for performing “pranks”. The first prank was proposed by Trebor Boucher and involved masturbation. The next set of pranks involved fellatio. McColeman also directly proposed hand jobs after confronted about his identity, but CX4 could not remember how often this occurred. He refused other proposed pranks, such as anal sex and sex with a dog.
7CX5 was 14 years old when he was contacted over Facebook and asked to perform two dares. Both involved receiving oral sex in exchange for cannabis. He was also asked to recruit younger males.
8CX6 was 13-14 years old when he was asked to perform three types of dares. The shower dare involved watching McColeman, who was naked in the shower, in exchange for marijuana. The blindfold dare involved fellatio in exchange for marijuana. CX6 also agreed to a dare to masturbate in a cup (“the cup dare”) and leave it for McColeman.
9CX7 was 13 or 14 years old when McColeman (via the Trebor Boucher account) asked him to perform dares. He completed the shower dare in exchange for marijuana, but he declined subsequent shower and fellatio dares.
10Several others were also contacted through the Facebook account of Trebor Boucher, but they did not respond. CX8, who was 13 years old at the time, was contacted three or four times. The first message invited him to find a “glory hole”, and subsequent messages offered marijuana in exchange for giving or receiving fellatio. CX9, who was 14 years old at the time, received two invitations, both involved going to a convenience store and looking for a glory hole in exchange for money or marijuana. CX10, who was 13 years old at the time, was offered cigarettes, alcohol, marijuana or money if he got “sucked”.
11When CY1 was 12 or 13 years old, he was approached over Facebook by Jennifer Johnson, which was another fake account used by McColeman, and he later became close with McColeman. He worked in McColeman’s garage from ages 12-16, staying at the residence at times. He regularly received money, cannabis, alcohol, Percocets and access to quads/motorbikes as part of the grooming process and in exchange for dares that included masturbation and fellatio. He declined a dare to perform anal sex. He was asked to recruit others, including younger boys.
12CY4, CY5, CY6, CY7 and CY8 were contacted by Jennifer Johnson through Facebook, and they were invited to perform dares or missions of a sexual nature. Only CY4 and CY5 completed a dare or mission in exchange for reward. With respect to CY6, CY7 and CY8, they received invitations and were the subjects of grooming.
13CY4 was 13-15 years old when he was invited to perform dares or missions by Jennifer Johnson, and he performed fellatio multiple times in exchange for money or cannabis, going with CY2 one or more times. CY5 performed the cup mission and provided oral and anal sex in exchange for money, cannabis and alcohol when he was 13-14 years old and using opioids.
14CY6 worked at the garage from ages 14-16; he declined Johnson’s overtures, but he saw others at the McColeman residence and witnessed the use of alcohol and drugs. CY7 was contacted when he was 12-13 years old. CY8 was contacted between ages 11-13. He accompanied CY5, but he declined the offers.
15McColeman testified and denied a link between himself and either the Trebor Boucher or Jennifer Johnson Facebook accounts. He also denied any inappropriate sexual acts. He was close to CX1 and was not strict about homework or school attendance, considering himself more of a brother than a father to CX1. McColeman claimed that he was generous and even exploited on occasion by CX1.
Mr. McColeman’s Background
16I had the advantage of hearing Mr. McColeman give evidence during the trial and also to hear from his sister. The pre-sentence report and psychiatric assessment also provide a full history and include interviews with the offender’s mother, sister and brother.
17McColeman is now 46 years of age. He was brought up in a family with both of his biological parents and two siblings. The family appears to have lived a stable life in a small town west of Sudbury, with a population just under 5,000. McColeman finished high school and apprenticed as a mechanic. He worked in mechanics, small engines or ran a garage for his working life. He does not report any family abuse or addictions in his family. His father remained employed throughout his working years. Mrs. McColeman was a stay at home mother who was fully supportive of her children. There is now illness in the family, but this was not the case during the time of the offences.
18McColeman has no apparent mental illness or personality disorder. He does have a diagnosis of pedophilia, more particularly hebephelia.
19McColeman had a long-term live in relationship with a woman from his late teens until his mid-thirties.
20McColeman enjoyed a full and active leisure and volunteer life, including photography, moto-cross, fishing, hunting and search and rescue.
21No concerns about any sexual misconduct on the part of the applicant were raised at any time.
Aggravating Factors
Number and Ages of the Victims
22There were 16 adolescent and teen boys who were the subject of McColeman’s luring, procuring, sexual exploitation and sexual touching. Of these, four were not touched by him. The offences were different with the different boys. The accompanying chart shows which offences related to which boy.
23The boys were between the ages of 11-16 when the abuse began. For the most part, the boys were between the ages of 12-14 when they were in some sort of relationship with McColeman.
Special Vulnerability
24The boys targeted by McColeman were particularly vulnerable to his attention and offers. They were without father figures or significant male relationships in their lives. Their living situations were often precarious; involving either an unstable home or a parent with illness or substance abuse issues. None of the boys appeared to have adequate family or social structure in place to provide them with a framework of discipline or protection. They lived in lower economic circumstances, especially vulnerable to offers of expensive toys and activities. Two of the boys were involved in some form of supervision from the Children’s Aid Society. Some of the boys had learning disabilities or pre-existing mental health issues. Some of the boys had already been introduced to and were using alcohol and drugs by the time they connected with McColeman. A few of them were employed by McColeman in his garage.
Length of offending period
25The abuse began with complainant CY2 in 2007 and continued with CX1 and others until 2014. During that seven year period, many other boys came into McColeman’s orbit and were abused in different ways by him.
Nature and Frequency of Abuse
26Most of the incidents were initiated by an invitation to the boy on social media to engage in a dare, prank or mission in return for a reward. Some of these pranks took place on a local trail, others happened in McColeman’s house and/or bedroom. As the relationship progressed, some boys began to ask if there were any missions that they could undertake for “weed”, booze or money. And for some of the boys, recruitment of other younger boys was part of the offer and reward relationship.
27The nature of the abuse usually escalated over time, starting with voyeurism (shower dares), masturbation, fellatio by and on McColeman and anal sex. Other acts don’t have easy identifiers but include ejaculation in different containers and drinking ejaculate or leaving the ejaculate for McColeman to consume. The anal sex only took place with those two boys who had the closest relationship with McColeman.
28Most of the sex acts took place with either the boys or McColeman keeping their identity hidden. The “reward” for the act would either be handed over directly or left in a designated place to be retrieved later by the boy.
29As I noted in my Reasons for Judgment, the boys described a chaotic and unstructured life when they were with McColeman. For that reason, they had few touchstones by which to gauge the number or timing of their pranks, missions and dares with him. Therefore, this was not a case where the court can say that things happened daily or weekly throughout the seven years. However, it is fair to say that for some boys, the abuse was weekly during extended periods. For others it was periodic, and for others it was frequent during more limited periods of time. During the seven year period, it appeared from the evidence that McColeman was engaging in some form of sexual acts with one or more boys on a frequent basis.
Pattern of Grooming
30McColeman deliberately offered the boys many of the things that their lives did not and could not offer them: attention, employment, a place to stay, a place to hang out during the day instead of going to school and where they could do drugs and play video games, food, video games, access to moto-cross bikes, fishing and camping trips, expensive gifts (e.g.; bikes, Xboxes and cell phones). His home became a boys’ haven.
31Some of the gifts and access to his home were provided with no strings attached. But when McColeman began to solicit sex by speaking to them in the language of adolescent boys; it was not easy for these boys, in their particular circumstances, to resist an anonymously posed dare, prank or mission, especially in return for some illicit substance. However, as each boy was drawn into McColeman’s world, their dependence on him grew. It was McColeman who provided the fun: the dirt bikes, the motocross bikes and races, the Xbox and video games. He supplied the home base, the food and the substances. He was their supplier for all things important to them.
Use of Fake Identities
32Many of the boys expressed reluctance or even outright refusal to participate in sex acts with a man. Some of the texts that were before the court showed that certain boys clearly articulated their own personal limits. At the same time, the use of blind folds and other methods of disguise during the sex acts allowed some of the boys to believe either that they were not engaged in a sex act with a man or at least not with a man that they knew.
33Many of the boys, by any objective standard, were wilfully blind to the fact that McColeman was the person behind the disguise, or hidden in the dark or on the dark trail. This made it all the more devastating when McColeman was arrested and the nature of the charges was made public. All of a sudden, these boys who had been known to be part of McColeman’s world were now also presumed to have been engaging in sexual acts with him when he was their assumed protector and benefactor. The shame that some of them already felt for being part of an exploitative and abusive relationship was augmented by this public revelation. Add to that, the homophobia of a small rural town. These boys were especially vulnerable to damaging gossip and chatter.
Provision of Alcohol and Drugs
34McColeman provided boys directly with cannabis, alcohol and/or money in return for sex acts. In addition, he supplied other boys with Percocets in return for ongoing sexual favours.
Position of Trust
35At least three boys were in relationships of direct dependency with McColeman. These three boys stayed at McColeman’s residence at the request of or with the approval of their mothers. McColeman provided a home for them. CX1 lived with McColeman for over three years, the others for shorter but significant periods of time. The defense accepts that McColeman was in a position of trust at least with respect to these three boys.
36Two of the complainants were employees of McColeman at his garage. I find that McColeman occupied a position of trust in regards to these two boys as well. They were underage employees working in the mechanic’s garage, and their pay was of considerable value to them.
37Further, the Crown contends and I accept that generally McColeman did his best to put himself in a position of trust with other boys as well. He did this by providing them with access to his residence, a space to spend their days, with food and fun activities. He listened to their stories and their troubles.
Threats
38Apart from the violence associated with sexual interference on a young person, McColeman did not inflict extra violence on the boys. However, McColeman did not hesitate to threaten boys if they either threatened to expose him or were non-compliant with his requests. Particularly aggravating was a threat to rape the younger brother of one of the boys, if he did not comply with a request to recruit younger boys and a threat to distribute a compromising video of another boy.
Recruitment
39McColeman asked a number of the boys to recruit other and younger boys to his dark world of pranks and dares. This particularly odious conduct was often successful, as it was made only once a boy was engaged in the pattern of receiving money, alcohol or drugs for sex. Four of those boys who were either drug or alcohol dependent or otherwise emotionally dependant on McColeman did recruit other boys. This recruitment added exponentially to their shame once they broke out of McColeman’s world.
Mitigating Factors
40McColeman has no prior criminal record.
41The defence submitted four character reference letters from McColeman’s mother, sister, brother and niece. His family members do not believe that McColeman committed these offences. They live in the same town as McColeman and were aware of his very singular habit of bringing boys into his home to live with him even when he was financially struggling and had lost his garage business. They knew, and it appears they accepted without question, that much of McColeman’s off-work hours were spent with 12-16 year old boys. Their letters describe a kind, helpful family member but otherwise provide no insight into the person or the circumstances.
Positions of the Parties
42The Crown contends that a global sentence of 20 years’ incarceration is the starting point for the fixed sentence. They further seek a deferral of parole eligibility for 50 percent of the penitentiary term as it relates to the eligible offences up to a maximum of 10 years, pursuant to s. 743.6(1) of the Criminal Code, R.S.C. 1985, c. C-46. Only counts #10 and #13 do not attract delayed parole eligibility.
43The Crown also seeks long-term offender designation for ten years.
44The Crown provided a chart setting out what they say the range of sentence would be for each offence if it were made on a per offence basis. The total sentence, if the offences drew a separate sentence, would, in their submission, be over 50 years.
45In summary, the Crown submits that in respecting the totality principle and the primary goals of denunciation and deterrence, the appropriate and fit sentence can only be met with a fixed sentence of 20 years, a deferral of parole for half of that sentence and a long-term offender designation) for 10 years supervision in the community after he is released from the penitentiary.
46The defence submits that a fixed sentence in the range of 12-13 years appropriately reflects the goals of s. 718. They contend that this is not a case where the facts attract the highest sentence.
Credit for Time Spent in Custody
47The Crown and defence agree on the amount of time and the credit that should be accorded for pre-sentence custody. McColeman spent 30 days in pre-trial custody, 93 days as a result of an alleged breach for which he was ultimately acquitted and a year since his conviction. The total time in pre-trial custody was 509 days. The pre-trial time outside of custody was spent on very strict conditions. The Crown proposes that McColeman should be credited at the rate of 1.5 days for every day spent in custody to date, for a total of 763 days.
48I agree with the joint position of the parties on credit and McColeman shall receive 25.5 months of credit on his sentence.
Analysis: Fixed Length of Sentence
49In this part of the analysis I will look at the two ranges proposed by counsel for the Crown and defence as they relate to existing case law.
50It is not controversial that the goal of sentencing is to fashion an appropriate sentence for this offender based on the circumstances, but also with respect to these offences to express society’s strongest denunciation, to achieve general deterrence and to protect society.
51The Crown explained their rationale for a proposed fixed term sentence of 20 years by saying that the sexual interference charges against 7 of the boys should attract a global sentence of 15 years. They submit that in these circumstances, each of the eight offences would attract a sentence of five to eight years’ incarceration.
52The Crown also submits that the 14 child luring convictions would separately draw a global sentence of 5 years. Some of the luring offences were much more serious than others, and I agree with the Crown that the luring offences with respect to CX1, CX3, CY2 and CY4, were the most serious and could draw a sentence of three years each. There are other luring offences at the lower end of the scale which I agree would draw sentences of only six months, i.e.: CX10, CY6, CY7, and CY8. The other six luring counts could draw between one and three years.
53The three procuring counts, two exposure counts and four invitation to sexual touching counts would, in the Crown’s calculation, draw concurrent sentences.
54The Crown relied on the following cases:
R. v. Stuckless (1998), 1998 CanLII 7143 (ON CA), 41 O.R. (3d) 103 (C.A.)
R. v. D.D., 2002 CanLII 44915 (Ont. C.A.)
R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163
R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81
R. v. D.M., 2012 ONCA 520, 111 O.R. (3d) 721
R. v. B.S., 2014 ONSC 7182
R. v. Stuckless, 2016 ONCJ 338
R. v. Morrison, 2017 ONCA 582, 136 O.R. (3d) 545.
55R. v. D.D. is often cited as authority for setting the range of sentences for cases of persistent sexual abuse against children.
56The Crown submits and I agree that in cases of child sexual abuse, an early plea is a significant mitigating factor. An early plea allows the victims to avoid the horror of recounting and re-living their sexual abuse and exploitation. It permits them to avoid the challenges to their credibility and reliability. And it allows them to avoid testifying in front of the media, who in this case reported almost daily during the four week trial.
57I cannot stress enough the significance of the fact that none of the complainants reported their abuse to any authority or to the police. Most were unwilling complainants and unwilling witnesses. Each day the press reported on the evidence, and did so without naming or identifying any of the complainants. However, it would not be hard for some of these boys to believe that in the small town where most of them still lived, they were revealing their personal horror story to their community through their testimony.
58McColeman’s victims were still young witnesses, who struggled mightily to recount their stories and who were subjected to the full range of cross-examination and attacks on their credibility and reliability. Two of the witnesses unravelled completely while giving their testimony and asked or demanded to leave the courtroom. One returned after a break of a couple of weeks.
59Therefore, those cases where the offender pleaded (see e.g. Stuckless; R. v. Kristian, 2017 ABCA 187, 58 Alta. L.R. (6th)81; R. v. J.C., 2011 MBPC 71, 271 Man. R. (2d) 242) on which the defence relied, where the sentencing followed a plea and an expression of remorse, are sharply distinguishable from the facts before this court.
60The defence relies on the decision of the Ontario Court of Appeal in D.D. at paras. 43 and 44 for the position that a low double digit penitentiary term is appropriate in cases of persistent sexual abuse of young children over considerable periods of time. A still higher period of time is warranted where these elements are accompanied by a pattern of severe psychological, emotional and physical brutalization. The defence seeks a sentence in the range pronounced by D.D.
61The defence submits that the facts before the court do not suggest any episodes or pattern of brutalization as was evident in cases which drew a higher sentence than D.D. The defence contrasted the circumstances between this case and R. v. L.K.W., 1999 CanLII 3791, 126 O.A.C. 39 (C.A.), J.C.; and R. v. C.A.M., 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, in order to demonstrate that a lower penitentiary sentence was warranted than that which was imposed in those three cases.
62In L.K.W., the Ontario Court of Appeal upheld an 18 and one half year sentence in the circumstances where the offender sexually abused his two step-daughters and the three sons who those young women bore as a result of the sexual abuse. The sexual abuse was accompanied by serious acts of brutality and degradation. The victims were left with permanent psychological scars.
63J.C. is another case where the father impregnated his daughter with whom he had sexual intercourse over an 11 year period beginning when she was aged six. The trial judge sentenced the offender to 12 years after a plea of guilt.
64In C.A.M., the Supreme Court of Canada upheld a sentence of 25 years where the father violently assaulted nine of his children within a pattern of uncontested sexual, physical and emotional abuse. Following a plea of guilt, the offender was sentenced to a period of 25 years. In that case, the court discussed circumstances where a crime which does not call for life imprisonment can in fact draw a global sentence of more than 20 years.
65Interestingly, both J.C. and C.A.M. were cases where the offender pleaded, which the court was required to consider as a mitigating factor. Nonetheless, the court was compelled to impose sentences much higher than the figures set out in D.D.
66I agree with the defence that the underlying facts before this court do not amount to the same level of brutality.
67I agree that McColeman did not beat his victims, nor did he deprive them of the necessities of life. Although McColeman was in a position of trust with some of the complainants, he was not their biological parent. In those respects, C.A.M. and L.K.W. do represent a different set of circumstances.
68On the other hand, McColeman’s motives and operating system were no less sinister. His methods were cleverly designed to draw boys into a secret and vile world, providing McColeman with sexual experiences usually in return for drugs, booze or money. Although the boys were intentionally recruited, groomed and made dependent by an outwardly responsible adult, they were made to believe that McColeman was caring for them, that he was their protector. He told a 12-13 year old CX1 that this is what fathers do with their sons. McColeman kept them so dependent or so enamoured with the life he could give them that only one boy spoke of trying to break with the lifestyle. The others followed a downward spiral of emotional despair, addiction and isolation.
69As detached onlookers, the court may enter into faulty reasoning if they consider the “horror” or brutalization of a sex abuse case to be limited to the hands-on details of the actual abuse. But we cannot forget, the ongoing re-lived “horror” that these victims will experience throughout their lives. That “horror” cannot be discounted because the children come to court when the abuse is still fresh and we have not yet seen the lifelong consequences. But we know from the literature and from our experience as trial judges the probable consequences to these boys. In fact, we may know better than these young victims the probable continuation of serious emotional, psychological and spiritual consequences which they face. And we also know in this case that most, if not all, of the boys are not in any type of treatment or program, nor have they been. They are rejecting professional assistance, perhaps not trusting the adults or institutions who stood by while they were systematically abused.
70The eight sexual interference charges related to seven different boys over the seven years. These charges include a wide range of behaviours from voyeurism to oral and anal sex. The sexual acts were committed over and over again.
71In D.M., the Ontario Court of Appeal substituted a sentence of 7 years with respect to a single victim of 15 years of age sexually assaulted by her uncle. In D.D. the court, upheld on appeal, sentenced the offender for eight years for sexual offences against four boys. In L.M. the Ontario Court of Appeal upheld a sentence of ten years for long-term sexual assault on the offender’s young daughter. He was sentenced to an additional five years for making and distributing child pornography, some of it arising out of the abuse.
72Looking only at the number of victims and convictions, the above cases support a higher sentence for McColeman. Therefore, I find that the range of sentence for these 8 sexual interference convictions, taking into account the primary goals of
denunciation, deterrence and protection of society,
the aggravating and mitigating factors
and the principles of
parity with the above cases, and
the totality principle,
goes beyond the single digits and hits the mid-double digits. It is important to distinguish the circumstances of this case from those where the offender’s sexual abuse targeted only one or two young victims, with whom the offender was in a position of trust.
73The appropriate range for the sexual interference counts in this case must be 12-15 years. Such a sentence would be proportionate to the moral blameworthiness of the offender in all of the circumstances.
74McColeman used the teen/child friendly platforms of MSN and Facebook to conduct his initial luring. He first contacted boys he knew, later he reached out to friends of friends and later to boys he did not appear to know. For the most part, McColeman directed his luring efforts to what I have called the most vulnerable boys.
75To lure the boys, McColeman often groomed them first, although that was not always necessary. In any event, the Ontario Court of Appeal in Woodward, at para. 43, permits this court to consider the grooming evidence an aggravating factor on the luring counts, as well as on the sexual interference counts.
76In Woodward, the 30 year old offender fabricated a story to lure a 12 year old girl with promises of extreme amounts of money in return for sex. The court upheld a sentence of 6.5 years. The court emphasized the life altering consequences and harm that flow from this predatory conduct.
77Again, taking into account the goals of denunciation and deterrence, protection of society and the principles of parity, totality and proportionality to moral blameworthiness, I find that the range for the 14 luring counts is 3-5 years.
78This brings the range for these two classes of offences 15-20 years.
79Parity remains an important consideration, no less than proportionality and totality, L.M., at paras. 34-37.
80For the most part, the boys did not appreciate how masterfully they were being exploited by McColeman, and so when the whole mess was disclosed, they blamed themselves. They especially blamed themselves for recruiting other boys to join McColeman’s group of sexual prey. That is a different type of psychological and emotional harm.
81And while this court did not have the benefit of a psychological report on the complainants, even if they could ever have been convinced to speak to a counsellor, it was plain and obvious how completely undone these boys were by the years of exploitation and the trial. One of the boys said that he started using drugs again, after being clean in the years prior to the trial. Others spoke of the horror of returning for the trial. One of the boys preferred to be returned to his cell rather than recount his experiences in the witness stand.
82One would be hard hearted indeed not to be moved by the anguish and suffering of these boys as they gave their evidence. Twelve of the 14 complainants would work with neither the members of the Crown’s office to provide victim impact statements nor with the probation officer who wished to speak to them in the context of the pre-sentence report. Their distrust in “adult” institutions will likely endure no matter how much they need assistance. In this way, the harm is ongoing.
83Two mothers of complainants filed victim impact statements. They spoke of their sons’ addictions and, in one case, of criminal charge for sexually assaulting a younger sister. McColeman didn’t simply have a devastating negative impact upon the lives of his victims, their parents and their families—it is quite possible that the serious negative impact upon the lives of succeeding generations has already begun.
84Suffice to say, after almost two decades on the bench, presiding over criminal trials across Northeastern Ontario, I have never seen such a path of human destruction wreaked on so many young people by a single perpetrator. Nor do I recall such an intentional, extended and self-gratifying pattern of destruction inflicted on more than a dozen young people over that time.
85When asked if he wished to address the court, McColeman expressed his regret that the media had repeated everything that was said in court. Consistent with his plea of not guilty and his evidence at trial, he did not express regret or remorse.
86I am satisfied that this range of criminal abuse of young teen boys, to whom he was in a position of trust, the overwhelming number of victims, their ages and the balance of the aggravating factors, not mitigated in any way by a plea or expression of remorse must draw a sentence that sufficiently expresses society’s abhorrence and denunciation of this offender’s conduct. McColeman played the role of a ruthless predator. The more vulnerable a young boy was, the more interesting he was as prey to McColeman’s vile attentions. The boys were defenceless and dependent upon him once he worked his “magic” with bribes, rewards and attention.
87In my view a sentence of 17 years adequately meets the goals and principles of sentencing in these circumstances. That sentence will be allocated as follows:
14 years for the 8 sexual interference convictions;
3 years consecutive for the luring convictions;
1 year concurrent on the 3 procuring convictions;
6 months concurrent on the exposure counts (2);
1 year concurrent on the exploitation count; and
1 year concurrent on the 4 invitation to sexual touching counts.
88This results in a sentence in a global sentence of 17 years.
Credit for Pre Sentence Custody
89There shall be credit as calculated above for 25.5 months.
Long-Term Order for Community Supervision
90McColeman has been convicted of serious personal injury offences and has shown a failure to control his sexual impulses. He is likely to cause injury and pain and other evils to persons through failure in the future to control his sexual impulses.
91Dr. Klassen completed a full psychiatric assessment on McColeman. In the opinion of Dr. Klassen, McColeman had otherwise made good adaptations in most major areas of his life. He does not suffer any substance use disorder or major mental illness. Dr. Klassen diagnosed McColeman with same-sex/homosexual hebephilia. He found that McColeman interfered with the phallometric testing, rendering it invalid.
92On certain actuarial tests, Dr. Klassen found that McColeman fell within the mean for sex offenders in terms of long-term probability of re-offending and therefore that McColeman was at a moderate risk of re-offending. Dr. Klassen went on to say, however, that he did not think that McColeman’s period at risk will be over even ten years from now.
93Dr. Klassen was of the view that in order to manage the risk of re-offending, McColeman receive sex offender treatment and or pharmacological sex drive reduction, as a way to reduce his risk of recidivism. Neither of these treatments/programs are likely given McColeman’s absolute denial of any sexual activity with the boys or any luring and grooming activities. Dr. Klassen goes on to say that if McColeman’s underlying sexual preference can be successfully managed, his risk to the community could be mitigated. He also suggested that any community supervision order be the longest possible, ten years as same-sex hebephilia is a serological diagnosis with the longest time horizon to desistance.
94The author of the pre-sentence report underscored McColeman’s lack of understanding of his offence cycle. The author stated that McColeman would benefit from intensive counselling but that in order to maximize the benefits of counselling, he would need to be genuinely engaged and willing to participate fully in counselling efforts. The author doubted that McColeman would avail himself of the benefits of counselling and therefore would remain at risk of re-offending in the absence of structured, intensive rehabilitative counselling.
95I am of the view that due to McColeman’s continued indifference to the harm that he has caused, his complete lack of insight into his own desires and impulses, and his likely rejection of any program of treatment, he remains at a substantial risk of re-offending. Given the magnitude of the number of boys victimized by him and the number of years over which he acted, the risk of re-offending is grave and serious. McColeman remains at a substantial risk of re-offending.
96Both the assessing psychiatrist and the author of the pre-sentence report recommend that McColeman be subject to a number of conditions during a community supervision order. They both recommend that he participate in sex offender treatment programming. Dr. Klassen recommends that the supervision be the longest possible.
97The defence and Crown jointly submitted a proposal that McColeman be designated under s. 753.1 as a long-term offender and subject to a 10 year supervision order in the community after he is released from his period of incarceration.
98I adopt the joint submission and order accordingly.
Crown Request for Delayed Parole
99The Crown requested an order under s. 743.6(1) to delay McColeman’s parole eligibility and asked the court to order that he serve at least one half of his sentence before he can apply for parole.
100A two-step analysis is required when determining the applicability of this section. I have completed the first step by determining the sentence fit for this offender. The second step requires another review of the facts from the perspective of denunciation and deterrence. In this respect the Crown bears the burden. See R. v. Zinck, 2003 SCC 6, [2003] 1 S.C.R. 41.
101The defence argued against the imposition of a delay to parole.
102The Crown further argues that this court is in the best position to observe the offender and to see the impact on the victims. I agree in part. I have confidence in the corrections system to observe their population over time. I cannot predict what McColeman might do over the next years as he is incarcerated. However, I do agree that my observations of the victims might be the only one that makes it into the institutional consideration. The victims have so far been loath to cooperate with “the system”. Who can blame them? Various social institutions in the town were aware that McColeman had a houseful of boys hanging around all day and not going to school. No one said a word. Gossip circulated but no one intervened. In any event, there is little likelihood of the victims participating in any discussion or meeting with correction services when it is time to consider parole.
103This decision on sentencing and my decision on facts of the case may be the only input they have of the consequences on the victims. At this time, the offender and the offences appear exceptional. They are out of the ordinary in terms of sheer numbers, frequency and degradation. See R. v. Goulet (1995), 1995 CanLII 1198 (ON CA), 22 O.R. (3d) 118. The effect on the victims is deep, wide ranging and completely destructive of their personal integrity, their sexuality, their emotional and psychological health.
104A delay in parole eligibility is warranted given the lack of insight and remorse shown by McColeman to his victims and his stated rejection of any need for treatment.
105There shall be an order under s. 743.6 delaying parole until at least half of his sentence has been served.
Ancillary Orders
106There shall be the following ancillary orders as requested by the Crown:
an order to provide a DNA sample;
a SOIRA order for life, pursuant to ss. 490.013(2)(c) and 490.013(2.1);
a lifetime weapons prohibition, pursuant to s. 109;
a s. 161(1)(c) order for life; and
a s. 743 order, prohibiting contact with the complainants or Crown witnesses.
The Honourable Madam Justice P.C. Hennessy
Released: July 17, 2018
Appendix 1
Summary of Counts from Indictment dated June 12, 2017
Complainant
Count
Charge
CX1
1
Luring a child under 16 – s. 172.1(1)(b)
2
Sexual interference – s. 151
CX3
3
Luring a child under 16 – s. 172.1(1)(b)
4
Sexual interference – s. 151
CX5
5
Luring a child under 16 – s. 172.1(1)(b)
6
Sexual interference – s. 151
CX4
7
Luring a child under 18 – s. 172.1(1)(a)
8
Procuring – s. 212(4)
CX6
9
Luring a child under 16 – s. 172.1(1)(b)
10
Exposure – s. 173(2)
11
Sexual interference – s. 151
CX7
12
Luring a child under 16 – s. 172.1(1)(b)
13
Exposure – s. 173(2)
14
Invitation to sexual touching – s. 152
CX8
15
Luring a child under 18 – s. 172.1(1)(a)
16
Procuring – s. 212(4)
CX10
17
Luring a child under 18 – s. 172.1(1)(a)
18
Procuring – s. 212(4)
CY5
21
Luring a child under 16 – s. 172.1(1)(b)
22
Sexual interference – s. 151
CY2
23 & 25
Luring a child under 16 – s. 172.1(1)(b)
24 & 26
Sexual interference – s. 151
CY4
27
Luring a child under 16 – s. 172.1(1)(b)
28
Sexual interference – s. 151
CY1
29
Luring a child under 16 – s. 172.1(1)(a)
30
Sexual exploitation – s. 153(1)
CY6
31
Luring a child under 16 – s. 172.1(1)(b)
32
Invitation to sexual touching – s. 152
CY7
33
Luring a child under 16 – s. 172.1(1)(b)
34
Invitation to sexual touching – s. 152
CY8
35
Luring a child under 16 – s. 172.1(1)(b)
36
Invitation to sexual touching – s. 152
CITATION: R. v. McColeman, 2018 ONSC 4388
COURT FILE NO.: C749/15
DATE: 20180717
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Paul McColeman
Reasons for SENTENCe
Hennessy J.
Released: July 17, 2018