Her Majesty the Queen v. D.M.

COURT FILE NO.: CR-17-17

DATE: 20190927

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

D.M.

Defendant

Lyndsay Jeanes, for the Crown

Stephen Whitzman for D.M.

HEARD: September 6, 2019

REASONS FOR SENTENCE

RESTRICTION ON PUBLICATION: Pursuant to s. 486.4(1) of the Criminal Code, no information that could identify the victim or a witness in this case shall be published in any document or broadcast or transmitted in any way.

BOSWELL J.

[1] DM was convicted by a jury of three offences: sexual assault, sexual exploitation and sexual exploitation of a person with a disability. All offences were committed against a single complainant, a developmentally challenged male who was 17 or 18 years old at the relevant times.

[2] The following reasons explain the sentence imposed today.

THE CIRCUMSTANCES OF THE OFFENCES

[3] The Complainant, WC, is now 21 years old. He presents as a very pleasant and utterly guileless young man. I do not wish to define him by his disability, but the nature of the offences engaged in this case and the assessment of DM’s moral culpability compel me to describe WC’s challenges in some detail.

[4] Dr. Valerie Temple is a clinical psychologist and an expert in conducting functional assessments of persons with developmental disabilities. She testified at trial on behalf of the Crown. After conducting an assessment of WC in January 2018, she opined that he has a long-standing intellectual disability.

[5] Dr. Temple described some of WC’s results on standardized testing she conducted. All of his test scores fell within the first percentile, meaning 99% of individuals taking the same tests would score higher than WC. She rated his language skills as equivalent to a 5 ½ to 7 year old; his visual-spatial skills as equivalent to a 5 to 10 ½ year old; his math skills at a grade 1 to 2 level; his printing and writing skills at the range of a 5 to 6 year old; and in the range of a 2 to 6 year old in terms of a variety of daily living tasks, such as personal care and domestic chores.

[6] According to Dr. Temple, it is difficult for WC to understand abstract concepts. For instance, he can tell what an apple is, but cannot understand the concept of fruit. He also has difficulty identifying dangerous situations and how to react to them.

[7] WC described in his testimony three dangerous situations that he encountered over the summer and fall of the year 2015, which he was ill-equipped to defend against, and which gave rise to the charges against DM. DM was convicted of all charges, but since a jury does not provide reasons for its decisions, the court is left without a record of what factual findings led to the jury’s ultimate decisions. I must therefore make specific factual findings for the purposes of sentencing.

[8] Section 724(1) of the Criminal Code of Canada sets out the general rule governing fact-finding for sentencing purposes. A sentencing judge is entitled to accept as proven any information disclosed at trial or at the sentencing hearing, as well as any facts upon which counsel may agree. In the case of a jury verdict, as here, the court must accept as proven, all facts, express or implied, that are essential to the jury’s guilty verdict. The court is not confined to such essential facts, however, and may go on to make other findings of fact based on evidence adduced at trial or at the sentencing hearing. The sentencing judge must be careful, of course, not to make factual findings inconsistent with the jury’s verdict. See also R. v. Ferguson, 2008 SCC 6, [2008], S.C.J. No. 6.

[9] For the purposes of sentencing, I accept WC’s version of the relevant events giving rise to the charges against DM. WC described three incidents of sexual abuse perpetrated against him by DM. I will briefly set out each one.

[10] The first incident of sexual abuse occurred when DM and WC were alone at DM’s residence. WC was 17 at the time. They went into DM’s bedroom. DM instructed WC to perform oral sex on him; to “suck his weiner” as WC described it. DM then instructed WC to pull down his pants. DM put a condom on and had anal intercourse with WC. He stopped and WC went into the bathroom to urinate. When WC returned to the bedroom, DM instructed him to pull down his pants again and he continued to have anal intercourse with WC. WC told DM that it hurt. DM told him “just a minute, I’ll be done soon”.

[11] The second incident of sexual abuse occurred in the fall of 2015. DM and WC were going duck hunting together on a friend’s property. DM drove his truck to a secluded area of the property and instructed WC to perform oral sex on him while they were in the truck. They then got out of the truck. DM instructed WC to pull down his pants. WC asked, “why are we pulling down our pants” and DM told him to “just do it”. DM had anal intercourse with WC again. Again, WC told him it was hurting.

[12] The third and final incident occurred sometime later in the fall of 2015. The evidence is not clear if the incident occurred before or after WC’s eighteenth birthday in early December of that year. In any event, DM and WC were alone at a hunt camp. They were supposedly picking up some cigars for DM’s aunt. While in the cabin, DM again told WC to pull down his pants. And again DM had anal intercourse with WC.

[13] WC did not want any of the sexual contact to occur. He did not like it and it made him feel, in his words, “not good”. DM told him not to tell anyone what happened between them.

THE CIRCUMSTANCES OF THE OFFENDER

[14] DM is 24 years old. He is an only child. His parents separated when he was about six years old. He continued to live with his mother on a full-time basis. She died in July 2018. DM inherited the home he has lived in his entire life. He has a close and supportive family. He is engaged to be married to a supportive fiancé.

[15] DM has a grade twelve education. He is employed on a full-time basis driving heavy equipment for Allen’s Excavating and Haulage. His employer describes him as a model employee.

[16] DM is an avid outdoorsman. He enjoys hunting and fishing.

[17] I received some 38 letters of support from family, friends and co-workers of DM. All speak to his hard-working, kind-hearted, generous nature. The acts he has been convicted of are entirely at odds with the person his friends and family know. They are shocked by the outcome of the case. They invariably describe DM as hardworking, respectful and kind.

[18] DM has no criminal record.

THE IMPACT OF THE OFFENCES

[19] The impact of the offences has been predictable.

[20] The families of WC and DM were once quite close. They socialized together often. They are now estranged. The trial proceedings were well-attended and it is obvious that there are now two very distinct camps.

[21] WC filed his own victim impact statement, which he prepared with the assistance of the Victim Witness Service office. His comments are pretty straightforward. He has not felt good about what happened. He doesn’t trust people anymore and does not go out with people like he used to. He spends a lot of time in his room.

[22] WC’s mother, HC, provided more detail about the impact of the offences on WC. She said that WC was still attending school when the allegations in this case surfaced. He would cry and experience significant anxiety when his school bus passed by DM’s house. She had to lobby to have the bus route changed.

[23] HC described WC as formerly carefree, social and outgoing. He is now secluded and spends a lot of time lying in his room in the dark. He has had increased anxiety and picks at the skin on his face and body.

[24] HC is devastated by what happened to WC. She blames herself for not seeing what was going on. She suffers from MS and the increased stress and anxiety she has experienced have taken a substantial toll on her health. She was unable to attend the trial for health reasons.

[25] WC’s other family members – his father and two sisters – also filed victim impact statements. They echo the comments of HC. The whole experience has had a punishing impact on the family and especially, WC.

THE LEGAL PARAMETERS

[26] Pursuant to s. 153(1.1)(a) of the Criminal Code, a person convicted of sexual exploitation faces a maximum term of imprisonment of 14 years and a minimum term of one year.

[27] Pursuant to s. 153.1(1)(a) of the Criminal Code, a person convicted of sexual exploitation of a person with a disability faces a maximum term of imprisonment of 5 years. There is no applicable minimum.

[28] Pursuant to s. 271(a) of the Criminal Code, a person convicted of sexual assault faces a maximum term of imprisonment of 10 years. Again there is no applicable minimum sentence.

THE PARTIES’ POSITIONS

[29] The Crown sought a global sentence of five years imprisonment. Ms. Jeanes emphasized that this case involves repeated, considered, invasive assaults on a young man with an intellectual ability in the range of a five year old. The abuse was perpetrated by a friend – someone who breached the trust vested in him to look out for WC’s safety. The Crown urged the court to send a strong message to any like-minded predators in the community that this type of conduct is illegal and will not be tolerated.

[30] In addition to the penitentiary sentence, the Crown sought the following ancillary orders: an order that DM be subject to an order under the Sex Offender Information Registration Act for life; that he provide a sample of his DNA; that he be subject to a weapons prohibition order under s. 109 of the Criminal Code for ten years; that he be subject to orders under s 161(a.1), (b) and (c) of the Criminal Code for ten years; and that he not have any direct or indict contact with WC or any member of his immediate family while serving the custodial portion of his sentence.

[31] Defence counsel took the position that two of the three convictions should be stayed pursuant to the principles of R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729. He submitted that DM should be sentenced only for the offence of sexual exploitation which has the highest maximum sentence and is the only one of the three offences to include a mandatory minimum. That said, he urged the court to consider a much lower sentence than the global sentence proposed by the Crown. Mr. Whitzman’s position was that a sentence in the range of 15 to 19 months would be sufficient to satisfy the principles of denunciation and deterrence that undoubtedly govern in this instance, but which, in his submission, must be balanced against the principles of rehabilitation and proportionality.

[32] Mr. Whitzman urged the court to consider the lived experience of DM and the effect of these convictions on him over and above any custodial sentence imposed. In particular, the stigma, the ostracization, the rupture of family relationships, the impact on his employment and the effect of a ten year firearms ban on him.

[33] In terms of ancillary orders, defence counsel took issue with only the proposed s. 161 orders, arguing that they would be illegal given that they only apply where the victim of the defined offences to which the section applies is under the age of 16.

DISCUSSION

The Kienapple Issue

[34] I will begin my analysis of the live issues with a consideration of the defence request that two of three convictions be stayed. Mr. Whitzman relies, in support of his position, on the fundamental principle that a person cannot be convicted twice for the same criminal wrong. In Canadian criminal law, this principle was perhaps most famously expressed in the case of R. v. Kienapple, as above.

[35] Essentially, the Kienapple rule prevents multiple convictions arising from the same wrongful act. As Doherty J.A. explained in R. v. R.K., 2005 21092 (ON CA), [2005] O.J. No. 2434 at para. 28, “where the same transaction gives rise to two or more offences with substantially the same elements and an accused is found guilty of more than one of those offences, that accused should be convicted of only the most serious of the offences.”

[36] In this instance, Mr. Whitzman submitted that the wrongful act was sexual contact between DM and WC. He asserted that the offences are all based on the same factual circumstances. The same conduct, or transaction, should not, in the defence submission, give rise to three separate convictions with substantially the same elements.

[37] The Crown conceded that the conviction for sexual assault should be conditionally stayed pursuant to the Kienapple rule, but argued that the wrongful acts supporting the two exploitation convictions are not the same. The Crown contended that the act of encouraging WC to perform oral sex on DM and the act of DM having anal intercourse with WC are distinct acts giving rise to distinct offences.

[38] It is now well-settled that for the rule in Kienapple to apply, there must be both a sufficiently close factual nexus and a sufficiently close legal nexus between the offences in issue: R. v. Meszaros, 2013 ONCA 682, at para. 30.

[39] I will briefly compare the essential elements of the offences of sexual exploitation of a person with a disability and sexual exploitation, then examine both the factual and legal nexus between the two exploitation offences in this case.

[40] Sexual exploitation of a person with a disability is established when it is proven to the reasonable doubt standard that an accused person exploited a position of trust or authority, or a relationship of dependency, to counsel a disabled person to sexually touch him or her (or himself or herself).

[41] Sexual exploitation, on the other hand, is made out when a person exploits a position of trust or authority, or a relationship of dependency, to touch a young person (someone between the ages of 16 and 18) for a sexual purpose.

[42] The Crown submitted that in this case there are distinct facts that set the offences apart. In particular, she argued that the offence of sexual exploitation of a person with a disability was made out by the two occasions during which DM counselled WC to perform oral sex on him. On the other hand, the offence of sexual exploitation was made out by at least two of the occasions when DM had anal intercourse with WC.

[43] Defence counsel, as I noted, urged the court to conclude that the incidents involving oral and anal sex were essentially one transaction.

[44] In my view, in the circumstances of this case, there is a strong factual nexus between the conduct giving rise to the offence of sexual exploitation and that giving rise to the offence of sexual exploitation of a person with a disability. While I accept that oral sex and anal sex are two distinct acts, I find that in the circumstances of this case, they are bound together in single transactions of sexual abuse. They are proximate in time, with no intervening events and they are related by a common objective: the sexual degradation of WC for DM’s pleasure.

[45] The legal nexus issue is more difficult. It requires a careful consideration of the essential elements of the two offences. The task for the court is to determine “whether there are different elements in the offences which sufficiently distinguish them so as to foreclose the application of the Kienapple rule”: R. v. R.K., as above, at para. 38.

[46] The inquiry is more nuanced than simply assessing whether the offences in issue involve common elements. While there is no precise formula for determining whether similar offences contain sufficiently distinguishing elements, former Chief Justice Dickson provided at least some limited guidance in the case of R. v. Prince, 1986 40 (SCC), [1986] 2 S.C.R. 480. There he described three factors that will defeat a claim that there is a sufficient legal nexus between two or more offences to warrant application of the rule in Kienapple. They are:

(i) Where the offences are designed to protect different societal interests;

(ii) Where the offences allege personal violence against different victims; or,

(iii) Where the offences proscribe different consequences.

[47] In this instance, I am satisfied that the offences of sexual exploitation and sexual exploitation of a person with a disability are sufficiently distinguished that the rule in Kienapple ought not to be applied.

[48] I have noted already the facial distinction in the essential elements of the two offences. In particular, sexual exploitation involves victims in a particular age range (16-18) and requires that the accused touch the victim for a sexual purpose. Consent is an irrelevant consideration. Sexual exploitation of a person with a disability, on the other hand, is not limited to a particular age range. Victims must be afflicted with a physical or mental disability. And the offence involves counselling the victim to touch him or herself or the accused, without the consent of the victim.

[49] More compelling, in my view, are the different societal interests being protected. The offences protect two distinct vulnerable segments of society. WC just happened to fall into both vulnerable groups at the time of the offences.

[50] In my view, the Kienapple rule ought not to be invoked to stay either of the sexual exploitation offences. The sexual assault conviction will be conditionally stayed on consent of the Crown.

The Guiding Principles of Sentencing

[51] Section 718 of the Criminal Code codifies the purposes of sentencing, long recognized by the common law: the denunciation of unlawful conduct; general and specific deterrence; the separation of the offender from society where necessary; rehabilitation; reparation for harm done to the victims and the community; and the promotion of a sense of responsibility in offenders and acknowledgment of the harm done.

[52] The fundamental principle of sentencing is set out in s. 718.1 of the Code: a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Proportionality engages two concepts: censure and restraint. As Lebel J. explained in R. v. Ipeelee, 2012 SCC 13, at para. 37:

Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system…Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other.

[53] Proportionality must be assessed on an individualized basis. Sections 718.2(a) and (b) of the Criminal Code provide guidance in terms of some of the factors the court should consider in crafting a sentence in harmony with the fundamental principle of proportionality. In particular, sentences should be increased or decreased to account for any aggravating and mitigating circumstances present in the context of the offence. Moreover, any sentence imposed should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[54] No one sentencing objective trumps the others. In each case, the weight to be put on the individual objectives varies depending on the facts and circumstances of the offence and of the offender. In this instance, there is no dispute that deterrence and denunciation are of particular importance. The protection of the community is also of significant concern given the nature of the offences involved. Having said all of that, given DM’s age and his family and community support, rehabilitation remains a legitimate concern.

The Case Law

[55] The search for similar offences committed in similar circumstances by similar offenders is often an elusive one. Each case is unique. Often the best that can be done is to get a sense of the range of sentences typically imposed for the offences in issue and then try to determine where in that range the offender in issue falls, based on the aggravating and mitigating circumstances peculiar to the case. Even then it must be kept in mind that ranges are merely guidelines and there will inevitably be cases that fall outside the usual range, depending on the circumstances.

[56] The Crown’s submissions focused on the principles enunciated by the Court of Appeal in R. v. D.D., 2002 44915 (ON CA), [2002] O.J. No. 1061. D.D. was, of course, a markedly different case. It involved the grooming and sexual abuse of four young males over a period of seven years. The boys ranged in age from 5 to 8 when the abuse began and there were countless sexual acts involved. The accused stood in a position of trust in relation to each of the victims.

[57] The Crown did not cite D.D. because of its facts. She cited it because of a number of strong statements made by Justice Moldaver about how courts should deal with those who sexually abuse innocent children, including the following:

The overall message…is meant to be clear. 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 s. 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.

We as a society owe it to our children to protect them from the harm caused by offenders like the appellant. Our children are at once our most valued and our most vulnerable assets. Throughout their formative years, they are manifestly incapable of defending themselves against predators like the appellant and as such, they make easy prey. People like the appellant know this only too well and they exploit it to achieve their selfish ends, heedless of the dire consequences that can and often do follow. (Para.’s 34-35).

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. (Para. 44).

[58] Justice Moldaver repeated the same principles a number of years later in R. v. Woodward, 2011 ONCA 610. Woodward was a case where a 30 year old male lured a 12 year old female to a location for the purpose of having a sexual encounter, on the promise that he would pay her a substantial sum of money in exchange for sex. The offender had the victim perform oral sex on him and he had sexual intercourse with her. The offender was charged with luring, sexual interference, invitation to sexual touching and sexual assault. On conviction he was sentenced to six and a half years in prison, which was upheld by the Court of Appeal. Justice Moldaver cited his own decision in D.D. and reaffirmed that sexual predators who prey upon children will pay a high price.

[59] There can be no doubt that D.D. moved the yardsticks in terms of proportionate sentences for convictions for repeated sexual abuse of a child. In R. v. D.M., 2012 ONCA 894, a decision released a decade after D.D., the Court of Appeal recognized that twenty years earlier, a range of three to five years in the penitentiary was generally considered appropriate for cases where a person in a position of trust sexually abused a child. They further recognized that that range was no longer appropriate. Citing D.D., Laskin J.A. held, at para. 66:

We have recognized that sexual abuse of children by a person in a position of trust or authority now warrants more severe sentences, and where the abuse includes sexual intercourse, in most cases, a three- to five-year range is too low.

[60] I note that in R. v. D.M., the accused was convicted of eight counts of sexually molesting his step-daughter. The abuse stretched over 8 years while the victim was between the ages of about 12 and 20. The abuse involved sexual touching and digital penetration, but not intercourse. The trial judge imposed a sentence of five years. The Court of Appeal reduced the sentence to four years, citing the absence of a number of aggravating factors typically seen in cases where sentences of five years or more are imposed. Those factors include sexual intercourse (vaginal or anal); oral sex; incest; more than one victim; grooming of the victim; other acts of physical violence or threatened physical violence to obtain compliance and keep the abuse secret; or a previous criminal record for sexual abuse.

[61] The Crown referred the court to a number of other cases which were said to support the assertion that a five year penitentiary sentence falls within the appropriate range of sentences for the type of offences committed in this instance, by an offender with similar characteristics to DM. Those cases include:

(a) R. v. V.S., 2013 ONSC 6026 where Kelly J., imposed a four year sentence on a 59 year old offender convicted of sexual assault and sexual exploitation of a person with a disability. The offender engaged in a variety of sexual acts with his adopted daughter over a number of years after she turned 18. Those acts included touching and kissing her breasts; touching her vagina and penetrating it with his fingers; and attempted intercourse on at least two occasions. The complainant was developmentally delayed;

(b) R. v. M.V., 2019 ONSC 3135 where Molloy J., sentenced a 34 year old offender to seven years in prison for sexually assaulting the six year old son of his common-law spouse. There were multiple incidents over a number of months, including genital touching; putting his penis in the victim’s mouth; digital anal penetration; and anal rape. Molloy J. found that the appropriate range of sentence of repeated, invasive sexual assaults by a person in a significant position of trust is between five and nine years;

(c) R. v. J.J.H., where Aitken J., relying on the principles enunciated in D.D., imposed a sentence of three and a half years on a 38 year old offender who engaged in various forms of sexual contact with his 15 year old cousin. The court did not set out all of the acts engaged in, though they appear to have included oral sex and kissing. They did not include intercourse. The offender was convicted of five counts each of sexual assault, sexual interference and invitation to sexual touching; and,

(d) R. v. Ashley-Pryce, [2004] B.C.J. No. 2093, where the offender was convicted of sexual exploitation of a disabled person. The offender worked in a long-term care home. He was caught masturbating while holding the hand of an Alzheimer’s patient. A sentence of 18 months in jail plus one year’s probation was imposed. This case was offered by the Crown to demonstrate the sort of conduct that might attract a sentence in the range suggested by defence counsel.

[62] Defence counsel referred to four cases that he said reflect a lower range of sentence as appropriate based on the facts and circumstances of this case. Each of his cases involve convictions for sexual exploitation. In particular:

(a) R. v. M.B., 2013 ONCA 493, where the Court of Appeal dismissed a 36 year old offender’s appeal of a 9 month sentence following a conviction for sexual exploitation. The offender was the senior manager of a movie theatre. The complainant was a 16 year old concession stand worker. She was living in a group home and was a ward of the state. The offender sexually abused her twice in the same day. First, he kissed her, licked her neck, fondled her breasts and digitally penetrated her vagina. Later in the day he had sexual intercourse with her. It was agreed that she did not want the sexual contact to occur but did not convey that to the offender;

(b) R. v. A.A., 2013 ONCA 447, where the Court of Appeal dismissed a 28 year old offender’s appeal of a one year sentence imposed on conviction for sexual exploitation. The offender had been hired by the mother of the complainant to tutor her in math. The complainant was nearly 17 and in grade 12. The offender and complainant had a consensual sexual relationship which included touching, oral sex and intercourse. The trial judge concluded that the offender was in a position of trust with respect to the complainant, such that the offence of sexual exploitation was made out, notwithstanding the presence of consent. The Court of Appeal agreed;

(c) R. v. S.W., 2016 ONCJ 784, where Harris J., convicted the offender, on a guilty plea, of sexual exploitation of one complainant (JH), sexual interference with respect to another (BM), and sexual touching with respect to a third (MV). The Crown sought an 18 month sentence for the offence of sexual exploitation. The offender was 23 when he met JH at a sailing club. The offender was head instructor. JH was learning how to sail. He was 14. The offender and JH struck up a friendship. It culminated in a sexual encounter that included oral sex and anal intercourse. Given the age of the complainant it is difficult to understand how the offence of sexual exploitation applied. Nevertheless, on a guilty plea Harris J. sentenced the offender to 12 months plus probation for 3 years, concluding that this was not a case where the offender abused a young child on a regular and persistent basis over a long period of time; and,

(d) R. v. J.M., 2013 838003, where Mulligan J. convicted the offender of sexual exploitation after concluding that the offender had a sexual relationship with a 15 year old cousin of his step-daughter (“B.F.”). B.F. lived with the offender, his common-law wife (B.F.’s aunt), and the wife’s daughter. Mulligan J. found that the offender stood in a position of trust with respect to B.F. The sexual relationship continued for about two years and involved some 30 or so incidents of sexual intercourse. The offender was 56 at the time of sentencing in November 2013. The sexual relationship with B.F. ended in 2002, so it stands to reason that the offender was roughly 43-45 during the relationship. After referencing, with approval, the principles enunciated in R. v. D.D., Mulligan J. sentenced the offender to 16 months for the sexual exploitation offence.

Aggravating and Mitigating Circumstances

[63] Having canvassed the case law cited to me by counsel, I will move on to a consideration of the aggravating and mitigating circumstances of this case.

[64] Fixing a proportionate sentence requires the court to consider the unique aggravating and mitigating circumstances of the offender and the offences.

[65] I consider the following circumstances to be mitigating:

(a) The absence of a criminal record;

(b) The relatively youthful age of DM.;

(c) DM’s pro-social background, including his history of full-time employment, and his positive pre-sentence report; and,

(d) The substantial family and community support DM has.

[66] On the other hand, I consider other circumstances to be aggravating, including:

(a) The sexual abuse involved a mentally disabled male, with a functional age roughly equivalent to a five year old. At least two instances of abuse occurred when WC was under the age of 18, which is defined as an aggravating factor in s. 718.2 of the Criminal Code;

(b) There were repeated acts of sexual abuse over a period of several months;

(c) The acts were invasive and involved three instances of anal intercourse, which WC made clear to DM were hurting him;

(d) The abuse was a breach of the trust vested in DM by WC and his family. When alone with DM, WC was almost entirely dependent on DM to ensure his safety and well-being; and,

(e) The offences have had a devastating effect on WC and members of his family. The long-term risks to victims of sexual abuse are well-known and there will undoubtedly be many challenges for WC and his family in the years to come.

[67] The Crown submitted that there was evidence of grooming which would be a significantly aggravating circumstance. In particular, she pointed to an occasion prior to the first instance of sexual abuse where DM and WC travelled into town together to pick up some take away food for a joint family dinner. They were accompanied by a third male. After they picked up the food they stopped for ice cream. One of the males told WC not to tell DM’s aunt and uncle that they got ice cream. In direct examination WC said it was DM who instructed him not to tell anyone about the ice cream. The Crown contended that DM was testing whether WC would keep a secret if asked to do so. In cross-examination, however, WC expressed uncertainty as whether it was DM or the other male who told him not to tell anyone about the ice cream. I cannot be satisfied, in the circumstances, that evidence of grooming is made out to the reasonable doubt standard.

Sentence Imposed

[68] There are marked differences between this case and cases like R. v. D.D. In D.D., the accused committed repeated acts of sexual abuse over many years against multiple victims. His abuse involved extensive grooming. In this case there is one victim, with three discrete instances of abuse over a period of several months.

[69] There are also marked differences between this case and the sexual exploitation cases referred to by defence counsel. First, this case involves flat out sexual assaults. This case lacks the consensual nature of the relationships described in each of the cases referred to by the defence (with the one exception being R. v. S.W. where the complainant was too young to lawfully consent).

[70] The case now before the court involves the repeated sexual abuse of a developmentally delayed young man. WC was not a young child at the time of the offences by biological age. But he functioned, intellectually, at the level of one. WC is one of society’s most vulnerable members. He is innocent, naïve, incapable of recognizing dangers and certainly incapable of defending against them. He will also struggle to comprehend what has happened to him and how to deal with the emotional turmoil arising from the events in issue.

[71] The breach of trust involved here is not as serious as in some other cases, notably where the abuse is perpetrated on a child by a parent, step-parent, priest, or school-teacher. But it was a serious breach of trust nonetheless. WC’s family trusted DM implicitly. DM was one of the few friends WC had; one of the few friends that could be trusted to understand WC’s frailties and to look out for him.

[72] DM did understand WC’s frailties and he used them against him. He used WC for his own selfish sexual gratification, being oblivious, wilfully blind, or uncaring about the consequences that would inevitably flow from his actions.

[73] In my view, and in consideration of the case law referred to me by counsel, I consider the range of sentence appropriate to the kind of offences committed here to be roughly 4 to 9 years. The upper end of the range will tend to be applied where there are multiple victims, as well as repeated and persistent acts of abuse over lengthy periods of time. Cases like this one, where there is one victim, and relatively few incidents of abuse over a shorter period of time, will tend to fall towards the lower end of the range.

[74] That said, the exploitation involved in the abuse of WC is both severe and tragic. DM’s moral blameworthiness is exceptionally high in the circumstances. The conduct engaged in must be denounced in the strongest terms.

[75] I appreciate that DM has been an exemplary member of society, apart from the offences now before the court. I appreciate that the offences he has been convicted of are entirely out of character for him. No one who knows him well can believe that he perpetrated these acts. But he did. And despite the fact that I have every reason to believe he is capable of being rehabilitated and that it is highly likely he will not re-offend, the sentence I impose today must make it clear that the conduct engaged in by DM will absolutely not be tolerated in our society. As Justice Moldaver said some 15 years ago – those who sexually abuse innocent children must appreciate that they will pay a high price for doing so.

[76] In my view, the sentence proposed by the Crown is entirely appropriate in the circumstances of this case. In the result, I impose the following sentence:

(a) One Count Two, sexual exploitation – five years in the penitentiary;

(b) On Count One, sexual exploitation of a person with a disability – three years in the penitentiary, concurrent to count two;

(c) A weapons prohibition under s. 109 for ten years;

(d) A DNA order on both counts one and two;

(e) A SOIRA order for life; and

(f) An order that DM not communicate directly or indirectly with WC or any member of his immediate family while serving the custodial portion of this sentence.

[77] I decline to make an order under s. 161 of the Criminal Code. That section may only be invoked where the offender has been convicted of committing a designated sexual offence against a person under the age of 16. That section must refer to biological age. WC was not under the age of 16 at the time of the offences.

Boswell J.

Released: September 27, 2019