



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    the complainant or a witness shall not be published in any document or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. M.B., 2013
    ONCA 493

DATE: 20130723

DOCKET: C55637

Laskin, Tulloch and Strathy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.B.

Appellant

Mark C. Halfyard, for the appellant

Michael Perlin, for the respondent

Heard: June 27, 2013

On appeal from the sentence imposed on June 11, 2012 by
    Justice K.B. Corrick of the Superior Court of Justice.

Strathy
    J.A.:

[1]

The appellant pled guilty to one count of sexual exploitation of the
    complainant, a sixteen-year-old concession stand worker at the movie theatre
    where he was the senior manager. He appeals his sentence of nine months
    imprisonment, followed by two years probation. He submits that a sentence of
    90 days, served intermittently, would be appropriate.

Background

[2]

The complainant had worked in the theatre for nine months. She had a
    dislocated upbringing and home life. She was living in a group home and was a ward
    of the state.

[3]

The appellant was a fitness enthusiast with a muscular physique. The
    complainant had made comments indicating to him that she found his body
    attractive.

[4]

The appellant was 36 years old at the time of the offence. As a senior
    manager, he was in a position of authority over the complainant. The first
    incident occurred when he was alone in his office with her. He asked her for a
    hug. When she complied, he lifted her up and told her she smelled good. He
    kissed her, licked her neck, felt her breasts and digitally penetrated her.
    This encounter lasted several minutes, after which the complainant returned to
    her duties.

[5]

About an hour and a half later, the appellant told the complainants
    supervisor to have her report to him to do a health and safety inspection. She
    complied with this direction, uncertain about whether it was a genuine request
    or an attempt to further engage her sexually. When she came to his office, he
    took her to a secluded room on another floor. On the way, he said to her, trust
    goes a long way. Once in the room, which required a managers access pass to
    enter, he kissed her and touched and kissed her breasts. He pushed her
    shoulders down, trying to get her to perform oral sex on him. She refused. He
    then motioned her to the floor and removed her pants. He put on a condom,
    penetrated her and ejaculated. At the end of the encounter, he said, You want
    to take my number and make this a booty call? Next time Im going to fuck you
    from behind. He told her to go to the washroom before returning to work.

[6]

It was agreed that the complainant did not want any of the sexual
    contact, but neither said so nor protested. In her mind, she was trying to
    articulate her lack of consent, but she was not able to do so. She submitted to
    him because of his position of authority, his size and his age. It was also
    agreed that the appellant believed that she was consenting. There was no
    evidence of what grounds, if any, he had for this belief or what steps, if any,
    he took to ascertain whether she consented.

[7]

Minutes after this incident, the complainant told a co-worker what had
    happened. The next day, she told a teacher and went to the police. She stopped
    coming to work.

Discussion

[8]

The appellant raises three grounds of appeal.

[9]

First, he submits that the trial judge failed to consider factors that
    mitigated the seriousness of the offence. He contends that the trial judge
    should have found that the level of exploitation was minimal.  He says that his
    level of authority over the complainant was low, there was no express use of
    his authority to procure the sexual interaction, and there was no breach of
    trust. He submits that, but for the relationship of authority, the sexual
    contact could have been consensual, as the complainant was over the legal age
    of consent. He also argues that the trial judge placed undue emphasis on the
    nature of the sexual conduct, pointing out that he used a condom, did not
    groom the complainant and respected her decision not to engage in oral sex.

[10]

I
    do not accept these submissions. As the trial judge noted, the offence of
    sexual exploitation recognizes the vulnerability of young people to
    exploitation by people in authority. Consent is irrelevant to the offence. To suggest
    that in other circumstances the conduct would have been consensual and lawful
    is to ignore the very nature, and seriousness, of the offence.

[11]

The
    appellant was the senior manager. He exercised his authority by telling her to
    report to his office. His reference to trust was to procure her cooperation
    and silence. He used his status as a manager to take her to a private and
    secure place. The complainant submitted to his sexual demands as a result of
    his authority over her. While the circumstances were not as bad as they might
    have been, they were physically intrusive, abusive and degrading.

[12]

Second,
    the appellant contends that the trial judge failed to consider the sentencing
    objective of rehabilitation, specifically the principle that a first offender
    should receive the shortest possible jail sentence that meets the principles of
    sentencing.

[13]

At
    the time, the offence carried a mandatory minimum sentence of 45 days
    imprisonment and a maximum sentence of 10 years. The minimum has since been
    increased to 90 days on summary conviction and one year on indictment.

[14]

The
    appellant submitted that a 90-day sentence would have been appropriate, noting
    that he pleaded guilty, this was his first offence, he lost his marriage, his
    home and his job, and he suffered shame and stigmatization as a result of his
    conviction.

[15]

All
    these factors were considered by the trial judge. She accepted that the
    appellant was remorseful and noted that the charge had been hanging over him
    for three years, during which time he had been on interim release without
    incident. She noted, however, that section 718.01 of the
Code

directs
    the court to give primary consideration to the objectives of denunciation and
    deterrence in cases involving the abuse of someone under eighteen years of age.
    She concluded that in view of the intrusive nature of the sexual acts and the
    severe impact of the offence on the complainant, an intermittent sentence would
    not be sufficiently denunciatory.

[16]

The
    appellant submits that in the case of a first offender, the principles of
    sentencing require that a fit sentence be crafted on the basis of the shortest
    possible sentence that will achieve the relevant objectives. This observation
    was made in the context of a youthful first offender:
R. v. Borde
(2003), 63 O.R. (3d) 417 (C.A.); see also
R. v. Priest
(1996), 30 O.R.
    (3d) 538 (C.A.).  While the principle can apply to older offenders, like the
    appellant, the circumstances and the gravity of the offence may be such that a more
    substantial custodial sentence is required:
R. v. Stein
(1974), 15
    C.C.C. (2d) 376 (C.A.).

[17]

The
    trial judge made express reference to the purposes of sentencing set out in s.
    718, including rehabilitation. While she did not expressly refer to the principle
    relied upon by the appellant, she made reference to the fact that he had no
    prior record and it is apparent that she took that factor into account.

[18]

Finally,
    the appellant submits that the trial judge erred in admitting the complainants
    victim impact statement, which was not in the form prescribed by s. 722(2)(a)
    of the
Code
and took the form of an email message. As well, he submits
    that the trial judge erred in finding that the complainant had seizures and
    attempted suicide as a result of the offence.

[19]

Section
    722(3) of the
Code

provides that whether or not a victim impact
    statement in the prescribed form has been filed the court may consider any
    other evidence concerning any victim of the offence for the purpose of
    determining the sentence to be imposed on the offender.  The appellants trial
    counsel expressly did not object to the form of the statement and in fact
    relied on portions of the statement in his submissions.

[20]

While
    the statement was ambiguous about the complainants suicidal thoughts, and the
    trial judge may have erred in stating that the complainant had attempted suicide,
    the complainant did state that she had suffered from insomnia, weight loss and
    depression, had thoughts of suicide and had difficulties in school, work and
    relationships. There was ample support for the trial judges conclusion that
    the complaint had experienced severe physical and psychological effects of
    the offence.

[21]

The
    essence of this offence is that a young person, who is deemed to be vulnerable,
    is exploited for sexual purposes by someone whose position enables them to do
    so. As the trial judge noted, the case law indicates a broad range of sentences
    for this offence, largely because there are infinitely variable ways in which
    the offence can be committed and a wide range of offenders. I am satisfied that
    in this case the trial judge took all relevant considerations into account, committed
    no error in principle and that the sentence falls within the appropriate range.

[22]

I
    would grant the appellants application to introduce fresh evidence concerning
    his personal, work and family circumstances, and additional letters of
    reference, but this evidence would not affect the outcome.

[23]

I
    would therefore dismiss the appeal.

Released: JUL 23 2013                    G.R. Strathy
    J.A.

JL                                                             I
    agree John Laskin J.A.

I
    agree M. Tulloch J.A.


