



WARNING

The President of the panel hearing this appeal directs
    that the following should be attached to the file:

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of
the Criminal Code
provide:

486.4(1)       Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the complainant or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)      an offence under section 151, 152, 153,
    153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)      an offence under section 144 (rape), 145
    (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii)     an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

(b)     two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in any of subparagraphs (a)(i) to (iii).

(2)     In proceedings in respect of the offences
    referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)     at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the complainant of the
    right to make an application for the order; and

(b)     on application made by the complainant,
    the prosecutor or any such witness, make the order.

(3)     In proceedings in respect of an offence under
    section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b).

486.6(1)       Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bauer, 2013
    ONCA 691

DATE: 20131114

DOCKET: C57295

Weiler, Watt and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Applicant/Appellant

and

Dennis Bauer

Respondent

Michelle Campbell, for the appellant

Robert C. Sheppard, for the respondent

Heard: November 5, 2013

On appeal from the sentence imposed on June 6, 2013 by Justice
    J. C. George of the Ontario Court of Justice.

ENDORSEMENT

[1]

The Crown seeks leave to appeal the respondents eight month sentence
    for sexual interference.

[2]

The appellant submits that the sentencing judge erred:

(a)   by
    overemphasizing the
Gladue
principles; and

(b)  by failing
    to give proper effect to the principles of denunciation and deterrence
    resulting in a sentence that is manifestly unfit and outside the appropriate
    range.

[3]

At trial, the appellant requested a sentence in the range of two to
    three years. While the appellant now submits that the appropriate sentence is
    in the range of five to six years, in light of its position at trial, the
    appellant seeks a sentence of three years.

Facts

[4]

At the time of the offence, the victim was 14 years of age.  She was a close
    friend of the respondents daughter whom she had known since grade four.  The
    victim was being bullied at school.  She began to attend at the respondents
    home on a daily basis.  The respondent, who was 40 years old at the time, told
    her that he too had been bullied and could help her deal with it.  The two
    began to exchange text messages.  After a few months, the respondent began
    telling the victim that his sex life with his wife was unsatisfactory.  He invited
    the victim to engage in his sexual fantasies.  When the victim was
    unresponsive, he threatened to kill himself.

[5]

While the victim initially resisted the appellants advances, he
    persisted and the victim began to feel that she was in a relationship with him. 
    She would regularly meet him in his truck before and after school.  He
    digitally penetrated the victim without her consent and, after this the
    respondent routinely digitally penetrated the victim.  On one occasion, he had
    sexual intercourse with her without using a condom.  He also penetrated her
    with a vibrator and placed a ball gag in her mouth.

[6]

The police were contacted when the victims father discovered some of
    the text messages on the victims cell phone.  By this time, the respondent and
    the victim would communicate upwards of 600 times per day.

[7]

The respondent pled guilty to the offence of sexual interference.

[8]

The respondent obtained a secondary school diploma.  He has worked as a
    fabricator for the past 12 years. He has no prior criminal record.  He has been
    married for many years and has three children.

[9]

The respondent and his mother are members of the Kettle and Stony Point
    First Nation.  She attended a public off-reserve school where she was subject
    to racism.  The respondents father is of German descent.  The respondents
    parents have been married for over 45 years and continue to live in London
    where they raised the respondent and his sister.  They owned and successfully operated
    a variety store and a Dairy Queen there.  They worked hard and with substantial
    savings, were able to retire when the respondent was 14 years old.  The
    respondent was disciplined by his father through corporal punishment.  The
    respondent felt that his parents doted on his sister and that he was unloved.

[10]

The
    respondent did not grow up in an Aboriginal community.  His father was a
    disciplinarian who disapproved of any Aboriginal cultural involvement or
    practices within their home.  Accordingly, the respondents knowledge of, and
    participation in, Aboriginal culture is limited.  The respondent asserted that
    his only connection to Aboriginal culture was through regular visits with his
    maternal grandparents who resided on the reserve.  His grandfather died when he
    was 13 and his grandmother died when he was 30.

[11]

The
    impact of the offence on the victim and her family has been enormous.  She had
    previously been an A student.  Her marks fell.  She switched schools and lost
    most of her friends. She commenced self-cutting and was on suicide watch.  She
    suffers frequent panic attacks and has been put on anti-depressants. She has
    been accused of lying about the offence.  Her father admonishes himself for
    having failed to protect her.

Grounds of Appeal

(1)

Did the sentencing judge err in the
Gladue
analysis by
    overemphasizing factors that had limited application to this particular
    accused?

[12]

The respondent
    accepts that the sentencing judge imposed a lesser sentence than he would have
    if not for the
Gladue
principles. He submits that there is no way of quantifying the
    differential and submits that the overall sentence was nonetheless fit.

[13]

While
    the sentencing judge did correctly state the
Gladue
principles, he
    failed to tie them in some way to the offender and the offence and in so
    doing, underemphasized the respondents moral culpability for this offence.  While
    an Aboriginal offender need not establish a direct causal link between his
    circumstances and the offence, the
Gladue
factors need to be tied in
    some way to the offender and the offence (
R. v. Ipeelee
, 2012 SCC 13,
    [2012] 1 S.C.R. 433 at para. 83.  See also
R. v. Gladue
, [1999] 1
    S.C.R. 688).  The rationale for
Gladue
is that many Aboriginal
    offenders come from situations of social and economic deprivation with few
    opportunities for positive development and these circumstances may diminish
    their moral culpability (
R. v. Ipeelee
, at para. 73).

[14]

In
    this case the respondents circumstances did not diminish his moral
    culpability.  As the
Gladue
report indicated, the respondents
    knowledge of, and participation in, his Aboriginal culture was limited. He grew
    up off-reserve and was raised by parents who have been married for over 45
    years and who ran a successful business. There was no suggestion of any
    residential school history within his mothers family of origin.  The
    respondent never attended a residential school and there is no evidence he
    experienced any sexual abuse, discrimination, or forced displacement.

[15]

In
    the circumstances, the judges emphasis on addressing the impact of residential
    schools, displacement from communities, and higher incidents of suicide,
    substance abuse and incarceration among Aboriginal people was misplaced in this
    case. There was nothing in the
Gladue
report that would warrant a
    sentence outside the normal range.

(2)

Does the sentence imposed fail to give proper effect to denunciation and
    deterrence and result in a sentence outside the range and that is manifestly
    unfit?

[16]

Quite
    apart from the foregoing, the sentencing judge failed to appreciate the gravity
    of the offence and the culpability of the offender. This was an exploitative,
    repeated and demeaning series of sexual assaults against a vulnerable 14
    year-old by a person in a position of trust. An eight month sentence cannot
    adequately reflect the principles of denunciation and deterrence. The judge
    appears to have treated the childs acquiescence as a mitigating factor; he
    said that she had not been raped. However, a childs willing participation is
    not a mitigating factor in circumstances where the respondent made the victim
    feel that she was in a relationship with him (
R. v. P.M.
(2002), 155
    O.A.C. 242 (C.A.)).

[17]

Mid-to-upper
    single digit penitentiary sentences are appropriate where an adult in a
    position of trust sexually abuses a young child on a regular basis over a
    substantial period of time (
R. v. D.D.

(2002), 58 O.R. (3d) 788
    (C.A.), at para. 44).  This range may apply even to a single instance of sexual
    abuse (
R. v. Woodward
, 2011 ONCA 610, 284 O.A.C. 151 (C.A.)).

[18]

The
    respondent groomed the victim and used emotional blackmail.  Not realizing that
    she was being manipulated by the offender, the complainant was seduced into
    thinking that she was in a relationship with him. This was not an isolated
    incident of sexual interference.  The first instances were forced. The
    respondent used a vibrator and a ball gag without the victims consent. The abuse
    escalated over time to include one incident of full unprotected intercourse
    thereby exposing the victim to the possibility of an unwanted pregnancy and the
    risk of sexually transmitted disease.

[19]

It
    is of paramount importance that children be protected from seducers and  predators
    through sentences that emphasize the principles of denunciation and deterrence.
    The sentence is manifestly unfit and an unjustifiable departure from the range.

[20]

Under
    the circumstances, a three year sentence of incarceration less time spent in
    post-conviction custody is fit and appropriate.  We calculate time spent as
    amounting to 162 days (June 6, 2013  November 14, 2013).  In giving this
    sentence, we are not departing from the
R. v. D.D.
range but are
    giving effect to the range of sentence sought by the appellant.  The ancillary
    orders remain in place.

[21]

Leave
    to appeal sentence is granted, the appeal allowed, and the sentence imposed at
    trial varied in accordance with these reasons.

K.M. Weiler J.A.

David Watt J.A.

S.E. Pepall J.A.




