R. v. McKinnon, 2018 ONSC 6951

Court File and Parties

COURT FILE NO.: 7723/17, 7915/18 DATE: 2018-11-23 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN David Kirk/Marie-Eve Talbot, Counsel for the Crown

- and -

ERNEST MCKINNON Bruce Willson, Counsel for the Defendant Defendant

HEARD: November 19, 2018

GAREAU J.

Reasons for Sentence

Background

1After a trial, Ernest McKinnon, on October 5, 2018 was convicted of Count 1, sexual assault; Count 2, unlawful confinement; Count 3, voyeurism, and the lesser included offence of sexual assault with respect to Count 5 in the indictment. The reasons for the convictions were set out in written reasons for judgment released that day. A sentencing hearing took place on November 19, 2018 and the court reserved its decision on sentencing to today’s date, November 23, 2018.

2On November 19, 2018, the accused pled guilty to two charges related to his breach of his recognizance; the first count relating to his communication with the complainant and the second count being within 25 metres of the complainant. The evidence at the trial was applied to these counts and a conviction was registered. Sentencing was put to November 19, 2018 to allow Mr. McKinnon to be sentenced globally for all the offences for which he has been convicted.

3Apart from the breach of recognizance charges, all other convictions relate to events which occurred on February 4, 2016. During that evening consensual sexual relations developed into non-consensual sexual relations whereby Ernest McKinnon had anal sexual intercourse with the complainant, sexually assaulted the complainant by the use of a black marker inserted into the complainant’s vagina and anus, confined the complainant by tying her up, took photographs of the complainant in various sexual positions and while he and the complainant were engaging in sexual relations and placing his initials “E.M.” on the thigh of the complainant.

4These events were not isolated in time but took place over the course of the evening of February 4, 2016.

5It is against the findings of facts set out in the court’s reasons for judgment that Mr. McKinnon is to be sentenced.

Sentencing Principles

6In determining what is a fit and just sentence the court is guided by section 718 of the Criminal Code of Canada, which sets out a list of principles and objectives that the court must consider when determining the appropriate sentence to be imposed for Mr. McKinnon. Section 718 reads as follows:

718. The fundamental purpose of sentencing is 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.

7As indicated in section 718.1 of the Criminal Code, “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”.

8With respect to the sentence to be imposed on Ernest McKinnon, his counsel urges the court to impose an Ontario correctional sentence in the “mid-range” of 12 to 18 months with a recommendation that Mr. McKinnon receive counselling while he is in an Ontario institution. With respect to the breaches, defence counsel suggests time served as Mr. McKinnon was in pre-trial custody for 26 days with respect to the breach charges. Crown counsel has a very different view with respect to the appropriate penalty to be imposed. The Crown is suggesting a global sentence of six years, which would include the breach of recognizance charges.

Mitigating Factors

9Mr. McKinnon is 61 years of age. He comes before the court with no related record. His criminal record consists of one conviction for impaired driving in 2011 for which he received a fine (Exhibit S-2). Any custodial sentence imposed on Mr. McKinnon would be his first and would undoubtedly have an impact on him. These can be considered mitigating factors.

10Mr. McKinnon’s pre-sentence report (Exhibit S-1) can also be considered favourable overall, which is another mitigating factor to be considered by the court. This report describes the devastating effect the death of his wife had on Mr. McKinnon and how he turned to alcohol in an effort to cope with that loss. It appears that the incidents and events of February 4, 2016 were out of character for Mr. McKinnon. Even the complainant reported that the incident “is completely out of character for the subject” and described Mr. McKinnon as a “kind and easy going man”.

11In the pre-sentence report, the author noted that “the subject expressed empathy toward the victim and reported he does not know why he did the things he did to bring him before the court”. The accused indicated to the author of the pre-sentence report that he “does not understand why he acted in such a way” toward the complainant. I do not take the comments of the offender as indicating that he does not appreciate the consequences of his actions or does not accept responsibility for them. In his statement to the court, Ernest McKinnon indicated that he was remorseful for his actions and conduct toward the complainant. I accept that Mr. McKinnon’s remorse is sincere and genuine and that he understands and accepts the consequences of his actions.

Aggravating Factors

12Against these mitigating factors there are a number of aggravating factors for the court to consider. Mr. McKinnon and the complainant were domestic partners in a common-law relationship at the time of the incident. The incidents represent a significant breach of trust. The fact that the offender abused a position of trust and that in committing the offences Mr. McKinnon abused his common-law partner are identified as aggravating factors to be considered by the court in sentencing as set out in section 718.2 of the Criminal Code. Mr. McKinnon should have treated his spouse with respect in their acts of intimacy. He did the exact opposite by exploiting, degrading and humiliating his partner during his actions toward her on the night of February 4, 2016.

13It is clear that the acts of Mr. McKinnon have had a devastating effect on the complainant. That was apparent during her testimony. It is also apparent from the Victim Impact Statement the complainant entered as Exhibit S-3. In that statement the complainant describes as being “in a constant state of fear and anxiety”. She describes that “the anxiety and nightmares continue today although slightly diminished. My whole personality has changed. I used to be outgoing and confident, now I am fearful and introverted”. The complainant describes being unable to work by going into people’s homes due to her distrust of people. She has experienced financial devastation. She sees a counsellor at the Sexual Assault Centre on a weekly basis. The complainant describes still suffering from “PTSD, anxiety disorder, depression and nightmares”. The complainant describes the night of February 4, 2016 as changing her life forever. As she indicated in her Victim Impact statement,

I used to be a highly confident, outgoing, self-employed person with many social contacts and healthy relationship. I now suffer from anxiety, fear, nightmares, depression, self-doubt and hopelessness. I used to be financially independent with a high credit rating and a thriving business. Now I am financially destitute with no credit, no job and still unable to work. I owe members of my family for financial help they have given me these past 2 years. I have lost all trust for others and will never be in a relationship again so I am destined to be alone for the rest of my life.

The common-law spouse who was to protect and encourage in fact devastated and destroyed his partner by his actions on February 4, 2016.

14By his actions on the night of February 4, 2016, Mr. McKinnon reduced the complainant to less than human status. He confined her and made her an object of his dominance. He branded her with his initials as if she was a chattel who he owned and possessed. He took pictures of her in a compromised position over which she had no control. A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. In my view, the aforementioned facts indicate a high degree of moral blameworthiness on the part of Mr. McKinnon which must be taken into account with respect to the sentence that is to be imposed on him.

Analysis

15At the commencement of his submissions to the court, defence counsel indicated that general and specific deterrence and denunciation are the paramount factors to be considered by the court in the sentence to be imposed and that from this “we know that it means a significant jail term”. The jurisprudence clearly indicates that in cases of sexual assault the principles of deterrence and denunciation are the primary considerations for the court to consider. The rehabilitation of the offender should be taken into account, as is indicated in section 718 (d) of the Criminal Code, but this is to take secondary place to the primary consideration of deterrence and denunciation. The actions of Ernest McKinnon call for a custodial sentence. As to the length of the sentence, the court is guided by the comments of the Ontario Court of Appeal in R. v. Smith, 2011 ONCA 564, 274 C.C.C. (3d) 34, where at paragraph 87 the court states that,

In all cases of sexual assault involving forced intercourse with a spouse or former spouse, sentences generally range from 21 months to four years.

This statement in Smith was quoted with approval by the Ontario Court of Appeal as recently as February 8, 2017 in R. v. S.M.C., [2017] O.J. No. 590.

16Courts must be careful when considering ranges for sentence which are only a helpful guide. At the end of the day, the sentencing exercise is not an exact science but rather an art – one that must be tailored to the individual and reflect the gravity of the offence and the degree of responsibility of the offender. As noted in paragraph 7 of the Ontario Court of Appeal in R. v. Smith,

The range of sentence imposed for similar offences can be helpful in fixing the appropriate sentence in a given case. However, it must be stressed that the ultimate question is not what range does or does not apply, but whether the sentence imposed is appropriate in the specific circumstances of the case.

17The act of sexual assault strips the victim of their dignity and the ability to make a choice about acts of intimacy and what happens to their body. The courts have commented about this in the past. At paragraph 272 in R. v. Arcand, 2010 ABCA 363, 264 C.C.C. (3d) 134, the Alberta Court of Appeal notes that “non-consensual sexual intercourse under any circumstances constitutes a profound violation of a person’s dignity, equality, security of the person and sexual autonomy”. In R. v. McCraw, [1991] 3 S.C.R. 72, the Supreme Court of Canada stated at paragraph 29 of its decision,

For women, rape under any circumstances must constitute a profound interference with their physical integrity. As well, by force or threat of force, it denies women the right to exercise freedom of choice as to their partner for sexual relations and the timing of those relations. These are choices of great importance that may have a substantial effect upon the life and health of every woman. Parliament’s intention in replacing the rape laws with the sexual assault offences was to convey the message that rape is not just a sexual act but is basically an act of violence.

18The psychological trauma experienced by J.B. as a result of the actions of Ernest McKinnon mirror the comments made at paragraph 32 in McCraw wherein the Supreme Court of Canada states,

The psychological trauma suffered by rape victims has been well documented. It involves symptoms of depression, sleeplessness, a sense of defilement, the loss of sexual desire, fear and distrust of others, strong feelings of guilt, shame and loss of self-esteem.

19In urging the court to impose a mid-range Ontario correctional sentence on the offender, defence counsel referred the court to the case of R. v. Bodosis, (2009) O.J. No. 2707, which is a decision of the Ontario Court of Justice. In that case, Lane J. imposed a sentence of seven months incarceration in a case of domestic violence and breach of trust where a spouse forced sexual intercourse on his partner. I am not persuaded by the case of Bodosis, which is not binding on me. I am more persuaded by the reasoning of the Ontario Court of Appeal in R. v. Smith and R. v. S.M.C. as to the principles to be applied and the range of sentence to be imposed in cases of sexual assault involving a spouse or partner.

20The fundamental duty of the court is to impose a sentence that is just and fit for the offender and for the offense. In determining the appropriate sentence to be imposed on Ernest McKinnon, I have taken into account all the pertinent facts and factors which I have commented upon in my reasons; including the background of Mr. McKinnon, his pre-sentence report, the Victim Impact statement of the complainant, the aggravating and mitigating factors, the guidance provided by the jurisprudence, and the principles of sentencing as set out in section 718 of the Criminal Code of Canada in arriving at a sentence that I believe is fit and just.

Disposition

21In the case at bar the aggravating factors far outweigh the mitigating factors. The facts identified in the court’s reasons for judgment and in these reasons call for an elevated sentence. Accordingly, Ernest McKinnon is sentenced as follows:

Count 1 – 4 years incarceration; Count 2 – 6 months incarceration concurrent to the sentence on count 1; Count 3 – 6 months incarceration concurrent to the sentence on counts 1 and 2; Count 5 – 2 years incarceration concurrent to the sentences on the other counts.

In total, the sentence is four years imprisonment on the counts pertaining to Court File No. 7723/17. In my view, concurrent sentences are appropriate with respect to counts 2, 3 and 5 given the fact that there is one set of events on one day (February 4, 2016) and one victim.

22With respect to counts 1 and 2 in Court File No. 7915/18, being the two charges of breach of recognizance, the offender served 26 days of pre-trial custody with respect to those charges. With the enhanced credit this converts to 39 days. That being the case, the sentence on the two breaches is time served plus one day, which is equivalent to a 20-day sentence in respect to each of the counts 1 and 2 in the indictment dated November 13, 2018.

Ancillary Orders

23The Crown has requested and I am imposing the following ancillary orders:

(a) A DNA order; (b) A SOIRA order for life; (c) A mandatory firearms prohibition for life, pursuant to section 109 of the Criminal Code of Canada; (d) An order pursuant to section 743.2(1) of the Criminal Code of Canada that the offender not have any contact with the complainant while he is serving his custodial sentence.

24In the circumstances, I am not prepared to make the restitution order requested by the Crown.

Gareau J.