SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-17-4136

DATE: 20190822

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Robert Kissner

Offender

Jennifer Holmes, for the Crown

Kenneth Marley, for the Offender

HEARD: June 28, 2019

reasons for sentence

hebner j.

[1] On April 16, 2019, I found Mr. Kissner guilty of nine sexual offences, namely:

1. Two counts of sexual assault on G.H. contrary to s. 271 of the Criminal Code and two counts of sexual exploitation of G.H. contrary to s. 153(1)(a) of the Criminal Code;

2. One count of sexual exploitation of T.W. contrary to s. 153(1)(a) of the Criminal Code;

3. Two counts of sexual assault on S.M. contrary to s. 271 of the Criminal Code; and

4. One count of sexual assault on H.N. contrary to s. 271 of the Criminal Code and one count of sexual exploitation of H.N. contrary to s. 153(1)(a) of the Criminal Code.

[2] These are my reasons on sentencing. In order to arrive at a fit and just sentence I have had the benefit of receiving and reviewing the following:

1. A pre-sentence report;

2. A total of 29 letters of support filed on behalf of Mr. Kissner;

3. Victim Impact Statements of H.N. and his mother, T.N.;

4. A Victim Impact Statement of S.M.;

5. Victim Impact Statements of G.H., his father and stepmother, Ke.M. and Ki.M. and his grandmother, L.M.;

6. Victim Impact Statements from T.W. and his parents, To.W. and P.W.; and

7. The submissions of counsel.

Overview of the Offences

[3] The offences are described in some detail in my ruling dated April 16, 2018. For the purposes of my sentencing decision, I summarize them briefly here.

[4] Mr. Kissner has been convicted of two counts of sexual assault on S.M., a volunteer firefighter at the Kingsville Fire Department since May 1, 2006. In 2013, S.M. became the full-time fire prevention officer. Mr. Kissner sexually assaulted S.M. on many occasions. Some of the sexual assaults took place in a work vehicle. Mr. Kissner was a passenger in the vehicle. S.M. was the driver. Mr. Kissner put his hand in S.M.’s lap and groped his genitals. Some of the sexual assaults took place at the fire hall, in S.M.’s office. While S.M. was seated at his desk, Mr. Kissner knelt next to S.M.’s chair to look at something on the computer screen and groped S.M.’s penis and testicles.

[5] I accepted S.M.’s evidence that he did not want it; that he did not enjoy it; that he did not consent to it. S.M. did not protest because he was concerned about losing the job of fire prevention officer – a job he had just started and had left secure employment for.

[6] Mr. Kissner has been convicted of sexual exploitation of T.W., who was a young person at the time of the offences. He was only 15 – 16 years of age. He completed a co-op placement at the Kingsville Fire Department as part of his high school curriculum. Mr. Kissner became his mentor and his confidante. There were occasions when T.W. stayed overnight in Mr. Kissner’s home, with his parents’ knowledge and permission. I found that Mr. Kissner was in a position of authority towards T.W.; that he was in a position of trust over T.W.; that T.W. was in a relationship of dependency with Mr. Kissner.

[7] On approximately eight occasions, with most of the occasions happening at lunch time and some of the occasions happening at night, Mr. Kissner drew T.W. a bath in his Jacuzzi tub. After T.W. had a bath, he lay on Mr. Kissner’s bed. Mr. Kissner massaged his shoulders, back and buttocks, told him to roll over and massaged his chest. The massage eventually culminated in Mr. Kissner masturbating T.W. On one occasion, Mr. Kissner was naked and asked for reciprocation. T.W. gave him a back massage and grazed his penis. On one occasion, when he was staying overnight, T.W. woke up and Mr. Kissner was rubbing his penis with his hand. On one occasion, Mr. Kissner gave T.W. an empty film container and told him to try to fill it with ejaculate.

[8] Mr. Kissner has been convicted of one count of sexual assault on H.N. and one count of sexual exploitation of H.N. The events took place when H.N. was 15 – 16 years of age. H.N. was a paid summer student employee at the fire hall and contemporaneously completed a co-op placement at the fire hall for his high school curriculum. I found that Mr. Kissner was in a position of authority towards H.N.

[9] On approximately a dozen occasions during the summer of 2015 and the summer of 2016, while H.N. was working at the fire hall under Mr. Kissner’s direction, Mr. Kissner massaged H.N. starting with his back, legs and shoulders. He directed H.N. to rollover onto his back. Mr. Kissner massaged his arms and shoulders. The massage culminated in the touching of H.N.’s genitals over top and underneath his shorts.

[10] On one occasion, when H.N. was driving Mr. Kissner’s Fire Department vehicle with Mr. Kissner in the passenger seat, Mr. Kissner put his hand in H.N.’s lap and touched his penis over top of his pants.

[11] Mr. Kissner has been convicted of two counts of sexual assault and two counts of sexual exploitation of G.H. G.H. was 17 years of age at the time. He was a co-op student at the Kingsville Fire Hall. Mr. Kissner was his supervisor. I found that Mr. Kissner was in a position of authority towards G.H.

[12] On the morning of December 6, 2016, while at the fire hall, Mr. Kissner brought G.H. to his office. He told G.H. to watch a YouTube video with him on his computer. G.H. knelt down beside Mr. Kissner’s office chair. While watching the video, Mr. Kissner massaged G.H.’s thigh moving his hand towards the groin area. He made contact, rubbing his hand down a G.H.’s penis towards his testicles. He grabbed G.H.’s penis and testicles in one hand and then let go.

[13] On December 8, 2016, when G.H. was at the fire hall during his co-op placement, Mr. Kissner took him to his residence. He told G.H. to take his hat, shirt and pants off and lay down on the bed so that he could give him a massage. He told G.H. to lay on his stomach. Mr. Kissner rubbed his shoulders and back and then put his hands on the waist band of his underwear and massaged his buttocks. Mr. Kissner told G.H. to rollover. He then massaged his chest moving downwards towards the groin area. Mr. Kissner rubbed his hands about G.H.’s penis and testicles, grabbing both at the same time.

[14] On the same day, after the massage, Mr. Kissner gave G.H. a bathing suit and towel and took him to his hot tub. While both were in the hot tub, Mr. Kissner told G.H. to sit in the reclining seat. He moved to G.H.’s side and rubbed and squeezed his thigh. He ran his hand over G.H.’s penis, rubbing it firmly, over top of the swimming trunks.

[15] After the hot tub, Mr. Kissner gave G.H. a tour of his home. While standing in the doorway to the storage room, Mr. Kissner grabbed G.H.’s buttocks over his clothes. Mr. Kissner told G.H. not to put the hot tub and massage in his log book, kept for purposes of his co-op placement.

Impact on the Victims

[16] Each of the four victims suffered significant impact as a result of the offences. The notoriety of the case in the Town of Kingsville served to compound the impact on the victims, particularly H.N. and G.H. who were still in high school at the time the charges were laid.

[17] All four of the victims struggle to understand why the assaults occurred. All four of the victims have difficulty with relationships and an inability to trust others. All four of the victims have lost confidence and self-esteem. All four of the victims have suffered heightened stress that they find difficult to endure. Two of the victims have developed a strong homophobia.

[18] S.M. has developed a quick temper with those closest to him and struggles to understand why Mr. Kissner would put him in such an uncomfortable position. He said the entire ordeal has “robbed me of my confidence and self-esteem”. He said “the stress of starting a new job with the added pressure of sexual advances was difficult to endure”. He finds the lack of remorse disturbing.

[19] T.W. has suffered significantly as a result of the crimes against him. He described suffering with the “horrible burden” of the events for almost 20 years. He said that he has tried to take his own life on two occasions. He has had two failed marriages and lost his career in the Canadian Forces. He said he was never able to deploy overseas because of the concerns of his doctor. He suffers from PTSD and has been deemed to be 43% disabled by Veterans Affairs. Currently, he said he is unable to obtain full-time employment based on his doctor’s recommendations and appointments he has to attend for mental health issues.

[20] T.W.’s parents were also significantly affected by the offences. They carry a heavy burden of guilt. His father said, “My wife and I thought we were doing the right thing when [T.W.] fell in love with the fire service and sought out Bob Kissner to be his mentor and role model.” They said they knew Mr. Kissner as a well-respected fire chief and thought they could trust him. They had no knowledge of the offences until after Mr. Kissner was first charged and they contacted their son. They said, “The feeling we have failed him will always be with us.”

[21] H.N. described shame and embarrassment, both at the time of the events and currently. He has had difficulty in relationships and is withdrawn from sports teams and activities. He missed school and his grades suffered. H.N. described that, when the events were taking place, he felt extreme discomfort and helplessness.

[22] The impact of the events on H.N. were aptly described by his stepmother T.N. She described a strong, determined child who excelled in sports and academics becoming withdrawn, disengaged and morose. At one point, he wanted to take his own life. She said he started university but left and has not returned. She described a stark difference in her son.

[23] G.H. was the first complainant to come forward. G.H. has suffered from depression, anxiety and suicidal thoughts as result of the events. He feels embarrassment, shame, guilt and confusion. He missed a significant amount of his last semester of high school. He withdrew from his friends and family and stopped attending social events.

[24] According to G.H.’s parents, G.H. had always wanted to be a firefighter. He wanted to follow in the footsteps of his grandfather. G.H. no longer wants to be a firefighter. He has been in counselling since the events occurred.

Circumstances of the Offender

[25] Mr. Kissner is a 63-year-old man. He does not have a criminal record. He remains unmarried and has no children. He was born and raised in Kingsville, Ontario by a strict father and a loving mother. Mr. Kissner’s father worked for the local fire department and his mother was a nurse. He has two younger siblings who remain supportive. His parents are deceased. His mother, who he was particularly close to and lived with for the past two and half years, recently passed away on June 11, 2019.

[26] Mr. Kissner identifies himself as bisexual and has indicated that he has had casual sexual relationships with males. He has felt embarrassed by his sexual attraction towards men.

[27] Mr. Kissner attended school in Kingsville, Ontario. He had above average grades and had been identified as a gifted student. However, he experienced anxiety in high school surrounding socialization. He attended a local university and completed an Honours Bachelor of Arts degree in geography and history. He completed a Bachelor of Education. He became a part-time firefighter. He began a career teaching school, grades 7 and 8, from 1984 to 1995. In 1995, he left teaching and was hired as the full-time Kingsville Fire Chief. He remained in this position until December 2016 when he was charged with these offences and he went on paid leave. In March 2017, he retired and began to receive his pension.

[28] Mr. Kissner was also employed by his church as choir director and organist. He was discharged from this position when the church congregation discovered the nature of his criminal charges.

[29] Mr. Kissner was dedicated to his career as a firefighter. His father and paternal grandfather were active members of the local fire department. He began volunteering at the fire department when he was 17 years old and he continued as a volunteer throughout his teaching career. By all accounts he was a committed firefighter who dedicated the bulk of his working years to firefighting.

The Pre-Sentence Report

[30] According to the author of the pre-sentence report, Mr. Kissner was cooperative and polite during the preparation of the report. However, he did not accept responsibility for his actions. He does not view the complainants as victims. He did not offer any remorse. He maintained that the actions were either consensual, or did not happen. He focused on the losses that he suffered, including the loss of his job, his church and his colleagues. He indicated to the author of the pre-sentence report that he has strong feelings of anger towards his “accusers” due to “everything that has happened”.

[31] According to the pre-sentence report, Mr. Kissner has difficulty with the loss of control over his present situation. He suffers from anxiety when faced with change. He has recently been prescribed medication for anxiety. He is receiving counselling.

[32] The pre-sentence report states that Mr. Kissner has no insight to, and does not accept accountability for, the offences with which he has been convicted. He continues to deny any wrongdoing associated with his behaviours and has minimized any impact his actions may have had on the victims. Although Mr. Kissner is involved in counselling, the focus of the counselling is to assist him with his own losses. The author suggests that Mr. Kissner could benefit from intensive group and individual counselling as a means of identifying his offence pathways and developing healthy boundaries.

Letters of Support

[33] There are significant letters of support provided for Mr. Kissner, 29 in total principally by members of his community. Many of the authors have known Mr. Kissner for years. The authors of the letters include people who grew up with Mr. Kissner; people from his church community; members of his family; people he met and/or worked with during his firefighting career; the former minister of his church; the former principal and former teachers of Emmanuel Christian Academy, where Mr. Kissner taught school; members of the community who have had contact with Mr. Kissner in his role as Fire Chief; people who described themselves as his close friends; parents of children he taught; former students; and neighbours. I have read them all.

[34] The letters of support include the following information:

1. Mr. Kissner is described as a man of strong Christian faith.

2. Mr. Kissner is described as a committed and passionate firefighter. He is described as someone who is giving of his expertise to firefighting students.

3. Mr. Kissner is described as courteous, respectful, kind and caring.

4. Mr. Kissner’s brother described him as intelligent and knowledgeable. He said that Mr. Kissner has been his confidante and mentor. Mr. Kissner was the sole caregiver of their mother.

5. Mr. Kissner is described as a “very good and sincerely trusted friend”.

6. Mr. Kissner is described as someone who treats others with respect and dignity.

7. Mr. Kissner is described as a “caring and considerate man” who puts others before himself.

8. The former school teacher at Emmanuel Christian Academy said that Mr. Kissner was “an amazing schoolteacher”. She said that Mr. Kissner was the only teacher at the school that had been given a full school going away party when he left teaching to become a full-time firefighter.

9. Mr. Kissner has been described as someone who is giving of his time to assist individuals in need.

10. Mr. Kissner is described by more than one author as a “good man”.

[35] Some of the authors of the letters of support do not accept that Mr. Kissner is guilty of the charges with which he has been convicted. Some of the authors accept that he is guilty of those charges and point out that he has already paid the price of the loss of his career and reputation.

[36] On the whole, the letters of support paint a picture of a man who gave his life to community service; a man of faith who is active in his church; a man who is kind and generous with his time and expertise; a man who was greatly respected in his community. I do note, however, that the sexual offences here occurred in private. Mr. Kissner’s public persona is much different than the persona disclosed to each of the four victims in this case. In that respect, “the propensity value of character evidence as to morality is diminished”: see (R. v. Profit, 1993 CanLII 78 (SCC), [1993] 3 S.C.R. 637).

Position of the Parties

[37] Mr. Marley, on behalf of the offender, suggests a custodial sentence of two years less one day. He submits that, in so far as the type of acts that can make up a sexual assault and sexual exploitation, the offences were relatively minor. He points to Mr. Kissner’s standing in his community, his lengthy service in firefighting and the loss of his career and reputation. He points to the number of individuals who have provided letters of support. Mr. Marley submits that Mr. Kissner would benefit from counselling and he is more likely to receive counselling should he be incarcerated in the provincial reformatory rather than a federal penitentiary.

[38] Mr. Marley points out that Mr. Kissner was in pre-sentence custody for five days and so should receive seven and one-half days credit against his sentence. He points to the bail restrictions that Mr. Kissner had after he was released and suggests there ought to be some further reduction as a result.

[39] Ms. Holmes, on behalf of the Crown, submits that an appropriate sentence is seven to eight years of incarceration. She points to the substantial impact suffered by the victims, the lack of evidence of any meaningful counselling to address Mr. Kissner’s offending behavior and the lack of any empathy or remorse. She suggests the primary focus in the sentencing analysis must be deterrence and denunciation. She points out that although Mr. Kissner has lost his career and his reputation, he has been able to retire with his pension intact. She points out that Mr. Kissner’s current focus, even now, is on the losses he suffered as a result of the convictions.

Legal Principles

[40] I am grateful to both counsel for their fulsome submissions and the case law briefs setting out the appropriate legal principles to apply.

Double Jeopardy

[41] The first principle I would like to deal with is that of double jeopardy.

[42] The rule against double jeopardy has its genesis in the Supreme Court case of R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729. In that case, the accused was indicted jointly with another male person on two counts of sexual offences against a girl who was 13 years of age at the time. The offences were, (1) rape, contrary to what was then s. 143 of the Criminal Code; and (2) unlawful carnal knowledge of a female under 14 years of age, contrary to what was then s. 146(1) of the Criminal Code. The appeal to the Supreme Court was decided on the basis of a five to four majority. Laskin J., speaking for the majority, said:

It is plain, of course, that parliament has defined two offences in sections 143 and 146(1), but there is an overlap in the sense that one embraces the other when the sexual intercourse has been with a girl under age 14 without her consent. It is my view that in such a case, if the accused has been charged, first, with rape and, secondly, with a section 146(1) offence, and there is a verdict of guilty of rape, the second charge falls as an alternative charge and the jury should be so directed.

[43] The Supreme Court found that convictions could not be entered for both the offence of rape and the offence of carnal knowledge of a female under 14. The carnal knowledge offence had the added element of the complainant’s age. The majority quashed the conviction for unlawful carnal knowledge. Laskin J. gave the following explanation:

In the circumstances of the present case, the super added element of age in section 146(1) does not operate to distinguish unlawful carnal knowledge from rape. Age under 14 is certainly material where consent to the sexual intercourse is present; but once that is ruled out as it is in the present case, it becomes meaningless as a distinguishing feature of the offences of rape and unlawful carnal knowledge.

[44] The principle has been identified over the years since as the Kienapple principle.

[45] The Supreme Court clarified the Kienapple principle in R. v Prince, 1986 CanLII 40 (SCC), [1986] 2 S.C.R. 480. In that case, the accused stabbed a pregnant woman in the abdomen causing the premature birth of her child and the child’s death. The accused was convicted of assault causing bodily harm to the mother on her first trial. She made a preliminary motion requesting a stay of proceedings on the charge of manslaughter of the child on the basis of the principle in Kienapple. The trial judge denied the motion holding that Kienapple was inapplicable. The Court of Appeal allowed the appeal and found that the accused could not be convicted of the charge of manslaughter. The Supreme Court overturned the Court of Appeal.

[46] In its decision, the Supreme Court said that the Kienapple principle is applicable when there is a relationship of sufficient proximity firstly as between the facts, and secondly as between the offences which form the basis of the charges. The factual nexus requirement is satisfied by an affirmative answer to the question: “Does the same act of the accused ground each of the charges?” The proximity between the offences is a more complicated issue and requires an examination of the elements of the offences. On that point, at paras. 31 and 32, the court said:

No element which parliament has seen fit to incorporate into an offence and which has been proven beyond a reasonable doubt ought to be omitted from the offender’s accounting to society, unless that element is substantially the same as, or adequately corresponds to, an element in the other offence for which he or she has been convicted.

I conclude, therefore, that the requirement of sufficient proximity between offences will only be satisfied if there is no additional and distinguishing element that goes to guilt contained in the offence for which conviction is sought to be precluded by the Kienapple principle.

[47] In the case at hand, the Kienapple question arises in so far as the convictions respecting both H.N. and G.H. are concerned. In the case of H.N., Mr. Kissner is convicted on counts 16 and 17, sexual exploitation and sexual assault, which arise from the same factual nexus. In the case of G.H., counts 1 and 2, sexual exploitation and sexual assault, arise from the same factual nexus. The same can be said of counts 3 and 4. If the Kienapple principle applies, then one of counts 16 and 17, one of counts 1 and 2 and one of counts 3 and 4 must be stayed. The factual proximity in each case is satisfied. The issue is proximity of the offences, which requires an examination of their elements.

[48] As I explained in my April 16, 2019 ruling, the elements of the offence of sexual assault are the application of force by the accused; in the circumstances of a sexual nature; without the complainant’s consent; and that the accused knew the complainant did not consent. The elements of the offence of sexual exploitation is that the complainant was a “young person” at the time; that the accused touched the complainant; that the touching was for a sexual purpose; and that the accused was in a position of trust or authority towards the complainant, or in a relationship with the complainant that was exploitative of him.

[49] The question of whether the legal nexus between these two offences is sufficient to engage the Kienapple principle was considered by Greenberg J. of the Manitoba Court of Queen’s Bench in R. v. Desjarlais, 2014 MBQB 224. On the point, the court said at para. 7:

…[T]he focus of the offence of sexual exploitation is the abuse of authority for a sexual purpose. This element distinguishes it from sexual assault. As a result, Kienapple should not prevent convictions being entered on both counts in this case.

[50] I agree with Greenberg J. I also point out that the focus of the offence of sexual assault is the lack of consent of the complainant, which element distinguishes the offence of sexual assault from the offence of sexual exploitation. Each offence has a significant element that is not an element of the other.

[51] Accordingly, I find that the Kienapple principle does not apply and all nine convictions will stand.

Consecutive/Concurrent Sentences

[52] The next question is whether the sentences are to be consecutive or concurrent.

[53] To address this question, I turn to the provisions of the Criminal Code. The Code, s. 153(1.1)(a) provides a minimum punishment of imprisonment for one year on conviction of the offence of sexual exploitation. The current minimum punishment applies to the sexual exploitation convictions for both H.N. and G.H. At the time of the events relating to T.W., namely 2001 – 2003, the mandatory minimum was 90 days.

[54] The Criminal Code, s. 718.3(4) directs the court to consider that the terms of imprisonment imposed at the same time for more than one offence be served consecutively when “the offences do not arise out of the same event or series of events”. The Code, s. 718.3(7) requires that, when a court sentences an accused at the same time for more than one sexual offence committed against a child, the court shall direct “that a sentence of imprisonment it imposes for a sexual offence committed against a child…be served consecutively to a sentence of imprisonment it imposes for a sexual offence committed against another child…”.

[55] By reason of these sections, I agree with the Crown’s submission in so far as the following is concerned:

1. The convictions on counts 1, 2, 3 and 4 all relate to G.H. The sentence imposed for counts 2, 3 and 4 ought to be served concurrent to the sentence imposed for count 1.

2. Count 7 is the only conviction for T.W. The sentence imposed for count 7 ought to be served consecutive to the sentence imposed for count 1.

3. The convictions on counts 12 and 13 relate to S.M. The sentence imposed for count 13 ought to be served concurrent with the sentence imposed for count 12 and the sentence imposed for count 12 ought to be served consecutive to the sentence imposed for count 1 and count 7.

4. The convictions on counts 16 and 17 relate to H.N. The sentence imposed for count 17 ought to be served concurrent with the sentence imposed for count 16 and the sentence imposed for count 16 ought to be served consecutive to the sentence imposed for count 1, count 7 and count 12.

Sentencing Principles

[56] I turn now to the sentencing principles applicable to this case.

[57] The fundamental principle of sentencing is set out in s. 718.1 of the Criminal Code, namely: “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. Additional principles contained in s. 718.2 include, in subsection (b): “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”.

[58] Section 718.2(a)(iii) requires that a sentencing court take into consideration, “evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim”. That section is applicable certainly to the offences against the three younger victims.

[59] The Court of Appeal and the Supreme Court have provided additional sentencing principles to consider when dealing with sexual offences against young persons by a person in authority.

[60] In the recent case of R. v. Stuckless, 2019 ONCA 504, the accused was convicted of 102 counts of sexual offences against 18 young boys committed over a 20 year time period. Most of the victims were 9 – 11 years old at the time of the offences. Mr. Stuckless acquired positions of trust, working as a teacher’s assistant, working at a community centre, coaching minor hockey and lacrosse in order to gain access to young boys. Mr. Stuckless groomed his victims, providing them with hockey sticks and sports memorabilia. The sentencing judge imposed a sentence of six and one-half years. The Court of Appeal found the sentence to be demonstrably unfit and imposed a sentence of ten years. In doing so, the Court of Appeal set out the appropriate approach to sentencing in sexual abuse cases as determined by Moldaver J.A. (as he then was) in R. v. D.(D.) (2002), 2002 CanLII 44915 (ON CA), 58 O.R. (3d) 788 (CA), para 44:

To summarize, I am of the view that as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms. When the abuse involves full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats of physical violence, or other forms of extortion, upper single digit to low double digit penitentiary terms will generally be appropriate. Finally, in cases where these elements are accompanied by a pattern of severe psychological, emotional and physical brutalization, still higher penalties will be warranted.

[61] At para 34 of D.(D)., Moldaver J.A. said:

Adult sexual predators who would put the lives of innocent children at risk to satisfy their deviant sexual needs must know that they will pay a heavy price. In cases such as this, absent exceptional circumstances, the objectives of sentencing proclaimed by Parliament in section 718(a), (b) and (c) of the Criminal Code, commonly referred to as denunciation, general and specific deterrence, and the need to separate offenders from society, must take precedence over the other recognized objectives of sentencing.

[62] The Supreme Court in R. v. R.A.R., 2000 SCC 8, [2000] 1 S.C.R. 163, identifies the key aggravating factor as “the offender’s abuse of his position of authority by assaulting the complainant in the workplace” (para. 32).

Totality

[63] As Mr. Kissner is to receive four consecutive sentences, I am required to consider the totality principle. The principle “requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender”: see R. v. Ahmed, 2017 ONCA 76. The principle is a particular application of the general principle of proportionality.

[64] In dealing with the totality principle, the approach is set out by the Court of Appeal in Ahmed and in R. v. Jewell (1995), 1995 CanLII 1897 (ON CA), 100 C.C.C. (3d) 270. I am to “first identify the gravamen of the conduct giving rise to all of the criminal offences, and next determine the total sentence to be imposed. ‘Having determined the appropriate total sentence, [I am to] impose sentences with respect to each offence which result in the total sentence, and which appropriately reflect the gravamen of the overall criminal conduct.’ ” See: Ahmed para 85.

[65] The use of the approach was explained by Huscroft J.A. in Stuckless at paras. 77 – 80. I quote from her comments as follows:

77 As the sentencing judge recognized, many of the offences in this case would normally result in consecutive sentences. The offences were committed against separate victims, unconnected with each other in time or place. The only common thread was that they were victimized by the respondent, and joined on the same indictment.

78 When consecutive sentences are imposed, the totality principle is designed to ensure that the imposition of consecutive sentences does not result in a total sentence that is unjust.

80 By first identifying the gravamen of the entirety of the offending conduct, this approach aids in ensuring that the sentence is proportionate to the offending conduct and the offender before the court. The imposition of consecutive sentences should not lengthen the sentence imposed beyond what is just and appropriate: see R. v. M.(C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500. At the same time, however, the offending conduct should not be viewed in a compartmentalized fashion that minimizes the interrelation of the crimes and the corresponding heightened gravity of the offences and moral blameworthiness of the offender: see R. v. D.G.F., 2010 ONCA 27.

Range

[66] I turn then to the range of sentences imposed on similar offenders for similar conduct under similar circumstances.

[67] In R. v. T.(E.), [2009] O.J. No. 4290, the accused was convicted of gross indecency, two counts of sexual assault and touching for a sexual purpose while in a position of trust or authority. The complainant was born in Jamaica. She came to Canada at the age of eight. The accused was a member of the family by marriage. He engaged in a pattern of conduct from time to time over a ten-year period with the complainant that included kissing, fondling, touching of genitals and oral sex. The trial judge imposed a sentence of three years incarceration. The Court of Appeal, in dismissing the accused’s appeal, said the following about the trial judge’s sentence:

The trial judge referred to the aggravating and mitigating factors, the latter of which included the appellant’s age (then 68), no criminal record, strong community ties, an operating business, a new wife and young daughter, and some deficiency as a result of an earlier head injury. The trial judge considered that these factors caused him to give a sentence at the lower end of the range of three years.

See: R. v. T.(E.), 2011 ONCA 86, para. 7.

[68] In R. v. I.H., 2018 ONSC 2481, the accused was charged with four counts of sexual assault and four counts of sexual interference over a number of years involving four female complainants. The complainants were the accused’s nieces and a step-granddaughter. The assaults occurred over a lengthy period of time, particularly when the complainants were between the ages of nine and 13. The allegations included kissing, inappropriate touching over clothing, inappropriate touching under clothing, digital penetration of one victim’s vagina, touching of breasts over and under clothing, and touching of buttocks. The court found that digital penetration was a serious aggravating factor. The Court imposed a sentence of two years and six months for each of the offences of sexual interference, to be served concurrently. At para. 79, the court said:

In order to denounce such conduct and to deter others as well as the accused specifically, the courts have repeatedly imposed significant sentences for such offences. The Court of Appeal for Ontario has made it clear that a substantial sentence of incarceration is warranted where a family member abuses a position of trust by committing sexual offences against children over a lengthy period of time in an escalating severity. Cases that have imposed a lesser sentence have identified mitigating factors not present here. Conversely, cases that impose significant sentence of incarceration have generally involved aggravating factors that include intrusive sexual assaults that took place over a lengthy period of time.

[69] The Court of Appeal dismissed the Crown’s appeal of the sentence.

[70] In R. v. Adams, 2011 NLTD(G) 157, the accused was convicted of touching a person under age 14 for a sexual purpose. The accused was the brother of the victim’s stepfather. The victim was between 12 and 13 years of age at the time. The events included fondling of the victim’s vagina and breasts and having the victim touch the accused’s penis over his clothing. The accused denied responsibility for the offences and had no prior related record. The court imposed a sentence of 18 months imprisonment.

[71] In R v. Boudreau, [1996] NWTJ No. 107, the accused was convicted of sexual assault. The accused was the complainant’s boss. The accused had no criminal record and was 51 years of age. The assault included oral sex and sexual intercourse. The accused was sentenced to a term of imprisonment of three and one-half years. In imposing the sentence, the court said:

The fact that Mr. Boudreau was E.P.’s boss is an aggravating factor. It would be aggravating on its own, but it is particularly aggravating in the circumstances of this case because of the use of his relationship, the use that he made of the fact that he was her boss in the commission of the offence.

She was quite clear in her evidence that he had told her that she had to do what he wanted because he was her boss. There is a certain trust between a boss and employee, or even co-workers. E.P. was entitled to respect from Mr. Boudreau and, instead, she was treated with contempt.

Mitigating Factors

[72] Mr. Marley has suggested that I am in an unenviable position in having to make this sentencing decision. I agree. On the one hand, I have an offender who is 63 years of age. He does not have a criminal record. In public, he has lived an exemplary life. He has spent the bulk of his adult years in service to his community as a firefighter. He is giving of his expertise, time and personal and financial resources to those in need. He has a large number of supporters who vouch for his character, although as indicated previously the value of the character evidence is diminished in light of the nature of the offences.

Aggravating Factors

[73] On the other hand, Mr. Kissner abused his position of authority. He put himself in a position of trust by taking on the role of mentor, particularly towards T.W. and H.N. He abused not only the trust of all four of the victims, but the trust of the parents of the three younger victims. He engaged in grooming behaviour, giving T.W. and H.N. special privileges such as trips to New York and allowing H.N. to drive his Fire Department vehicle, sometimes to fire calls with lights flashing and sirens blaring. Mr. Kissner had taken a heightened interest in T.W. and H.N. He took steps to make them feel special. Towards the three young victims, Mr. Kissner took advantage of his position of trust, his position of authority, and the victims’ vulnerabilities for his own self-gratification.

[74] Mr. Kissner was the supervisor of S.M. He knew that S.M. was vulnerable given his change of career path. He did not give S.M. the respect he deserved in his employment.

[75] In terms of the offences themselves, they took place over the span of years, from 2003 with T.W. to December 2016 with G.H. The offences illustrate a pattern of abusive conduct on the part of Mr. Kissner towards young males. The sexual acts were repetitive over many years. There was no digital or penile penetration. However, where the victim is a male youth, I have difficulty differentiating between a digital penetration of a girl’s vagina from the act of wrapping one’s hand around a boy’s penis. The latter act is no less abhorrent than the former.

[76] I consider the age difference between Mr. Kissner and each of the three young victims as an aggravating circumstance.

[77] The impact on each of the victims, as disclosed in the victim impact statements, has been profound. All four of these men suffered a violation of their sexual integrity. All four of these men described feeling helpless at the time they were violated. All four of these men have been significantly impacted. T.W. in particular has suffered serious psychological harm. Ms. Holmes has said that Mr. Kissner has left devastation in his wake. That is an accurate statement. The lives of these four young men have forever been changed as a result of Mr. Kissner’s selfish actions.

[78] Ms. Holmes points to a lack of remorse on the part of Mr. Kissner. I do not see a lack of remorse as an aggravating circumstance and I do not consider it as such. Rather, I see it is an absence of what could have been a mitigating circumstance.

Decision

[79] The purposes of a sentencing order are set out in s. 718 of the Criminal Code. Ms. Holmes requests that I have regard to the purposes of deterrence and denunciation. Mr. Marley requests that I have regard to the purpose of assisting in rehabilitating offenders. I also note that one of the purposes of sentencing is to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and the community. I note that s. 718.01 requires that where the offence involved the abuse of a person under the age of 18, primary consideration is to be given to the objectives of denunciation and deterrence.

[80] It has been said that sentencing is an art and not a science – it is an individualized process. An appropriate sentence must be tailored to meet the particular circumstances of the offence and the offender. In this case, the circumstances of the offences, as described above, and the substantial impacts the offences have had on the victims and their families pull towards a lengthier period of incarceration. On the other hand, the offender’s age, the lack of any criminal record and his lifetime of service in the community pull towards a shorter period of incarceration.

[81] Ms. Holmes has suggested a range of seven to eight years. I agree with Mr. Marley that such a sentence would be crushing for Mr. Kissner. Such a sentence would not take into account the mitigating circumstances outlined above.

[82] Mr. Marley has suggested a sentence of two years less a day. I agree with Ms. Holmes that that sentence would be completely inappropriate. Such a sentence would not reflect the principles of denunciation and deterrence; the substantial impact Mr. Kissner’s actions have had on his victims; and the abhorrence that society has of sexual offences against young persons. Such a sentence would not reflect, in particular, the substantial aggravating circumstance of Mr. Kissner’s abuse of his position of authority and trust.

[83] Taking all of these factors into account, and considering the gravamen of the entirety of the offending conduct, in my view, an appropriate global sentence is five years or 60 months.

[84] I apportion the sentence as follows:

1. For the offences against G.H., who was subject to two instances of sexual exploitation and sexual assault when he was under the age of 18 years and Mr. Kissner was in a position of authority:

a. On count 1, a sentence of 12 months;

b. On counts 2, 3 and 4, a sentence of 12 months each, all concurrent with count 1.

2. For the offences against T.W., who was subject to repeated abuse over a two-year period, when he was under the age of 18 years and Mr. Kissner was in a position of authority, on count 7, a sentence of 20 months, consecutive to count 1.

3. For the offences against H.N., who was subjected to repeated abuse over a 15 month period, when he was under the age of 18 years and Mr. Kissner was in a position of authority:

a. On count 16, a sentence of 20 months, consecutive to counts 1 and 7;

b. On count 17, a sentence of 20 months concurrent with count 16.

4. For the offences against S.M., who was subjected to repeated sexual assaults in the work place:

a. On count 12, a sentence of eight months, consecutive to counts 1, 7 and 16;

b. On count 13, a sentence of eight months, concurrent with count 12.

Credit

[85] Mr. Kissner spent five days in custody after his arrest. He is entitled to a credit of seven and one-half days.

[86] After the first five days, Mr. Kissner was released on bail. He was not subjected to house arrest. Rather, the conditions of his bail included a condition that he not attend within 100 meters of a residence or place of occupation of any of the complainants. As a result, there were places in Kingsville he could not go and routes he could not take. Mr. Marley suggests that some additional credit against the sentence be afforded to Mr. Kissner as a result of these conditions. Mr. Marley relies on the Court of Appeal decision of R. v. Downes, 2006 CanLII 3957 (ON CA), 79 O.R. (3d) 321. In that case, the accused spent 18 months under presentence house arrest. The Court of Appeal found an appropriate credit to be five months.

[87] In Downes, the Court of Appeal said that “where the offender asks the trial judge to take presentence bail conditions into account, the offender should supply the judge with information as to the impact of conditions.” Mr. Marley indicated that Mr. Kissner has three alternate routes to take from his home. Given the bail conditions, he was unable to take two of the routes. This is a restriction on his liberty. But there was no indication that he was significantly impacted by his inability to take the other two routes from his home. Similarly, there was no indication that he was significantly impacted by his inability to attend at places in Kingsville.

[88] This was not a case where Mr. Kissner was subject to house arrest. This was not a case where Mr. Kissner was required to wear a monitoring device. There was no evidence that the restrictions on Mr. Kissner’s movements were anything more than an inconvenience to him. Under the circumstances, I decline to grant any credit for bail conditions.

Ancillary Orders

[89] There will be a DNA order under s. 487.051.

[90] There will be an order that Mr. Kissner be placed on the Sex Offender Registry for life, under s. 490.013(2.1), (3) and (4) of the Criminal Code.

“original signed and released, provided as Exhibit, by Hebner J.

Pamela L. Hebner

Justice

Released Orally: August 22, 2019

COURT FILE NO.: CR-17-4136

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Robert Kissner

REASONS FOR Sentence

Hebner J.

Released Orally: August 22, 2019