R. v. MacKay, 2017 BCSC 1146

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. MacKay, 2017 BCSC 1146 Date: 20170602 Docket: 165264-12 Registry: Victoria Regina v. Kurk Joshua MacKay Restriction on Publication: Pursuant to 486.4(2) C.C.C. Restricted Access Before: The Honourable Mr. Justice B.D. MacKenzie Oral Reasons for Sentence Counsel for the Crown: R. Picha L. Phipps Counsel for the Accused: J. Gustafson Place and Date of Hearing: Victoria, B.C. June 1 and 2, 2017 Place and Date of Judgment: Victoria, B.C. June 2, 2017 [ 1 ] THE COURT: Mr.

MacKay is before the court today for sentencing following his conviction by a jury on March 9, 2017, of offences of sexual assault pursuant to s. 271 of the Criminal Code , and sexual touching under s. 151 , involving two complainants who were foster children placed in the MacKay residence when they were young. [ 2 ] The Crown has, however, conceded that the principles enunciated in R. v. Kienapple are applicable as between the two counts involving each complainant.

The Crown points out that while the maximum penalty is presently the same for each offence, 14 years' imprisonment because of the age of the complainants, and both offences now carry a minimum punishment of one year of imprisonment, when these offences occurred there was a minimum penalty for the offence of sexual touching, but no minimum for sexual assault, such that the Crown today submits there should be conditional stays on the two sexual assault counts. [ 3 ] The defence agreed Kienapple applies and takes no position on which count should be conditionally stayed. [ 4 ] As the Crown has acknowledged, there have been conflicting views on which of these two offences is the more serious: see R. v.

D.L.W. , where the court concluded the sexual assault count should be stayed as opposed to sexual touching.

Conversely, in 2010, Madam Justice Bennett in the Court of Appeal in R.A.J. concluded that the conviction for sexual assault "best captures the delict in this case." The same conclusion was reached by Justice Bruce in T.J.B. , where she stated that "sexual assault more clearly reflects the serious nature of the misconduct". [ 5 ] While I agree with these general observations by Justices Bennett and Bruce, given the position of both Crown and defence, I will accede to the Crown's submission that there should be a conditional stay of proceedings on Counts 2 and 4, those being the sexual assault charges pertaining to R.C. and N.L.

Convictions will be entered on Counts 1 and 3. [ 6 ] The salient facts in this case are as follows: R.C., who is now 17, lived in the MacKay residence as a foster child from the age of four to 11. He testified that commencing when he was five years of age, and between 2005 and 2009, Mr. MacKay had anal intercourse with him, as well as forcing him to perform fellatio on Mr. MacKay on several occasions.

R.C. told the jury he could not recall the exact number of incidents of anal intercourse, but testified that there were more than 10 occasions. [ 7 ] N.L., who was 15 when she testified, said she specifically recalled Mr. MacKay had anal sex with her three or four times, but "it could have been more." She testified Mr. MacKay once made her lick his penis and on one occasion put a vibrator in her anus. She also described Mr.

MacKay getting his dog to lick her vagina while she was sitting on the garage floor. [ 8 ] N.L. testified these offences occurred between June 2008 and December 2009, when she was six to seven years of age. N.L. described to the jury how Mr. MacKay would have her sit on his lap and would anally penetrate her. She also testified that Mr.

MacKay would show her pornographic images on his computer. [ 9 ] As the trial was held before a court composed of a judge and jury, for the purpose of determining the appropriate sentence, it is necessary to find the facts underlying these convictions pursuant to the provisions of s. 724 of the Criminal Code . Section 724(2) of the Code provides:

Where the court is composed of a judge and jury, the court (

a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty; and (

b) may find any other relevant fact that was disclosed by evidence at the trial to be proven … [ 10 ] Thus, for sentencing purposes, as the trial judge, I must accept as proven all facts that were essential to the jury's verdicts of guilty, and I may, in addition, find any other relevant facts that were disclosed by the evidence at trial and that are not inconsistent with the jury's verdicts. [ 11 ] In making such findings of fact, I am not limited to that version of events most favourable to the accused. [ 12 ] In this regard, both complainants testified as to the allegations against Mr. MacKay. Mr.

MacKay took the stand in his own defence and denied any wrongdoing. He told the jury the incidents described by both R.C. and N.L. simply did not occur. Mr. MacKay's wife, Nicola, and their eldest daughter testified as well, both supporting Mr. MacKay's assertion that these allegations were not true, given the number of young children in the home during the relevant time periods, his very busy work schedule, and many out-of-town trips, and the fact that as a trained foster parent, Mr.

MacKay would ensure that he would not put himself in the position where he would be alone with N.L., in order to prevent unsubstantiated claims of inappropriate conduct on his part. As a result, Mr. MacKay submitted that he would have little or no opportunity to commit these offences as alleged by each of these young persons. [ 13 ] Given the guilty verdicts on all four counts, it is clear the jury accepted the evidence of each complainant and rejected Mr. MacKay's denial of any sexual misconduct. [ 14 ] As a result, I must accept as proven the fact that Mr.

MacKay had anal intercourse on several occasions with both of these young children who were in his care, as well as fellatio with R.C. on several occasions, in addition to the other events described by each complainant. [ 15 ] The events described by N.L. and R.C., and accepted by the jury, are therefore very serious and, as the Crown submits, in order to properly reflect the principles of deterrence and denunciation, demand a significant term of imprisonment. [ 16 ] As a result, the Crown submits that an appropriate range of sentence would be six to nine years on each of the two counts on which convictions have been entered, to be served consecutively.

However, Crown counsel suggested a "global sentence" of 12 to 14 years, even though at the same time he submitted that 18 years in total would not, in his view, be grossly disproportionate given what the Crown submits is Mr. MacKay's extremely high moral blameworthiness.

The Crown also seeks several mandatory ancillary orders which I will deal with at the close. [ 17 ] The defence, on the other hand, submits a global sentence in the range of six to eight years would satisfy the relevant principles of sentencing, notwithstanding the seriousness of the allegations, the jury having clearly accepted the evidence of R.C. and N.L. The defence realistically acknowledges deterrence and denunciation have a significant role to play in these circumstances, but at the same time reminds the court that rehabilitation should not be lost sight of when sentencing Mr.

MacKay. [ 18 ] In support of its position on sentence, the Crown points out what it says are significant aggravating circumstances. [ 19 ] First, of course, is the serious nature of the actual sexual activity, with the acts of anal intercourse being serious, invasive, and violent assaults on a young boy and girl. Moreover, the fact that R.C. and N.L. were in the care of the Ministry when they were placed in the MacKay residence, in addition to their young ages, made them extremely vulnerable to the predatory advances of Mr. MacKay.

At the same time, it is hard to imagine a more significant breach of trust, given the foster parent relationship between Mr. MacKay and these two foster children. As our Court of Appeal said in K.R.J. at paragraph 35: This Court has recognized that sexual exploitation of a child by the very person entrusted to nurture and protect that child from harm must be seen as a particularly heinous crime. [ 20 ] These aggravating circumstances are now specifically codified in s. 718.2(

a) of the Code , referencing the young age of N.L. and R.C., the abuse of a position of trust and authority, and the significant impact the offences have had on each young person considering their age and other personal circumstances. [ 21 ] Of relevance, again, is also s. 718.01. On this point, the victim impact statements that have been presented describe the ongoing traumatic effect Mr. MacKay's offending has had on both his young victims, necessitating professional assistance for both and medication for N.L. to help her cope.

All of the victim impact statements, not just those from R.C. and N.L., but also those from N.L.'s adoptive parents and R.C.'s adoptive father, confirm the accuracy of the following statement by Justice Hinkson in the Court of Appeal in R.E.L. , where at paragraph 10 he states: The harm to young children that results from sexual assaults is well known, and recognized by the requirement that denunciation and deterrence must be a primary sentencing consideration pursuant to s. 718.01 of the Criminal Code .

Such assaults not only violate the child’s physical integrity, but erode the child’s ability to develop emotional trust, and create the sort of profound and long-lasting consequences that are evident in the appellant’s victim. [ 22 ] While all the relevant sentencing principles outlined in the Criminal Code must be applied, s. 718.01 mandates that the primary sentencing objectives for offences involving the abuse of young persons are denunciation and deterrence. [ 23 ] Moreover, by mandating a minimum sentence of one year imprisonment for the offences for which Mr.

MacKay was convicted, Parliament has made it very clear that the protection of children is a basic value of Canadian society which the courts must defend: see R. v. Allen , a 2012 decision of our Court of Appeal at paragraph 60.

[ 24 ] Turning to s. 718.1 and the fundamental sentencing principle of proportionality and cases involving the sexual abuse of children, Madam Justice Bennett said in R.A.J. at paragraph 30: A sentence must not exceed what is just and appropriate given the moral blameworthiness of the offender and the gravity of the offence ...

I cannot conceive of a more morally blameworthy act than a parent sexually offending against his or her child, particularly, as here, commencing at a young age and being repeated many times over a [couple] of years. [ 25 ] Given the guilty verdicts, the following comments of Justice Goepel when he was a trial judge in R. v. J.L.C. are also apropos of the present case and summarize the principles of sentencing in cases involving the sexual abuse of children.

At paragraph 30, he states: The authorities make clear that the sexual abuse of children is an abhorrent socially damaging act which warrants strong condemnation by the courts ... In R. v. Stuckless … Madam Justice Abella (as she then was) characterized the sexual abuse of children as inherently violent, saying: [44] Sexual abuse is

an act of violence. When committed against children, the violence is both physical and profoundly psychological. It is coercive and exploitative conduct, and represents the use of compulsion against someone who is defenceless. [ 26 ] In R. v. C.G.D. , Justice Griffin in the Supreme Court of British Columbia stated the following at paragraph 51 along the same lines: … it is also now well understood that often a sexual assault on a child will have a profound long-lasting effect on the child’s development, negatively impacting the victim’s future relationships and psychological health as an adult.

Society condemns sexual assault of children, even more so when the child was violated by a parent, the one person in the world who is supposed to be devoted to protecting and keeping the child safe. [ 27 ] To summarize, the aggravating circumstances in the present case are the seriousness of these offences, the extreme vulnerability of children in care, the foster parent/foster child breach of trust, the young age of both R.C. and N.L. when the offences occurred, the fact that the offences occurred over a considerable period of time and were not isolated, the trauma and harm done to both young persons, and the severity of the actual assaults, that being anal intercourse. [ 28 ] At the same time, the Crown accepts there are mitigating factors and acknowledges that Mr.

MacKay's lack of any criminal record is clearly a relevant factor on sentencing, as is his strong work history with the Department of National Defence. The Crown acknowledges Mr. MacKay has family and community support. In addition, Mr. MacKay has complied with all his bail conditions for over three years. [ 29 ] The Crown points out, however, that what often is the most significant mitigating factor, a plea of guilty that alleviates the necessity for victims of sexual assault to testify, is not present.

On this point, while the Crown properly acknowledges that the lack of a guilty plea can never be taken as an aggravating factor or increase what otherwise would be a fit sentence, as Mr. MacKay has exercised his right to have the Crown prove the charges at trial beyond a reasonable doubt, the significant mitigating factor of a guilty plea is absent. [ 30 ] Similarly, while Mr. MacKay maintains his innocence, as he is entitled to do, remorse and acceptance of responsibility on his part are again mitigating factors that are absent in this case. [ 31 ] In this regard, while Mr.

MacKay was cooperative and participated in the preparation of the pre-sentence report, the report states: Mr. MacKay cannot be assessed regarding attitude and understanding of the offence due to his position on the outcome of the trial. [ 32 ] The report also states that Mr. MacKay says he is prepared to comply with conditions that he attend a treatment program for sexual offenders, but notes that Mr.

MacKay remarked, "It will not serve me or society in any way." [ 33 ] In this regard, as both Crown and defence acknowledge, apart from background information, the pre-sentence report has limited utility on the sentencing hearing. [ 34 ] The psychological assessment that was prepared by Dr. Scott in conjunction with the pre-sentence report is also of limited assistance, given Mr. MacKay's assertion that, "I did not do what those kids said I did." [ 35 ] Defence counsel also submits that as no risk assessment was attempted, there is no evidence of an elevated risk of Mr. MacKay reoffending in the future.

In this regard, in my view, it is important to recognize that while future risk is always a relevant consideration, Mr.

MacKay is today being sentenced for the offences he has committed in the past against these two young persons, such that the absence of an assessment as to future risk does not play as significant a role as it clearly would do when contemplating lengthy supervision orders and treatment plans pursuant to other sections of the Code . [ 36 ] In support of its position that a sentence in the range of six to nine years for each offence is justified, the Crown has provided several authorities for my consideration, not only with respect to the actual sentences that were imposed, but for the general principles that have been enunciated therein. [ 37 ] At the same time, as the defence has emphasized, sentencing is always an individualized process.

Appellate case authorities do, however, provide guidelines that inform what is a fit and proper disposition in any particular case. I have considered all of these precedents and will refer to a few, although it is unnecessary to mention in detail the various circumstances in each case. [ 38 ] In support of its sentencing position, the Crown acknowledges, as well, that sentencing is an individual exercise and that a range is only a guideline.

As a result, any sentence must reflect the particular circumstances of the offence, as well as the individual offender, and take into consideration the aggravating and mitigating factors and all of the fundamental principles of sentencing now codified in the

relevant sections in the Criminal Code . [ 39 ] Notwithstanding that acknowledgment, the Crown points out that the Court of Appeal in R.A.J. referred to the following observation of the Court of Appeal in a 1995 decision, T.A.D. , a case that involved repeated sexual offences against one young child.

In T.A.D. at paragraph 9, the court stated: Sentences for such a series of offences of up to 12 years or more have been approved by the Court but the usual range is more like five to eight or nine years. [ 40 ] In addition to the principles stated by Justice Bennett in R.A.J. , the Crown notes that in that case the offender received an eight-year sentence for sexually assaulting his daughter over several years, incidents that involved oral sex, digital penetration, and one incident of anal sex. [ 41 ] In the 2014 decision of K.R.J. , a case of incest involving the offender's three-year-old daughter, a sentence of six years was upheld on appeal. [ 42 ] In agreeing with the length of imprisonment imposed, Justice Groberman stated at paragraph 32: I am not persuaded that the sentence in this case was unfit.

While B.C.M. and B.C.L . were very serious cases, neither involved a charge of incest, which carries a maximum sentence of fourteen years. Further, the age of the victim in this case is a factor that greatly aggravates the offence. [ 43 ] I note, as well, that the court has signalled a preparedness to accept more severe sentences for sexual abuse of children than may have been imposed in the past. [ 44 ] In this regard, Justice Groberman referred to another Court of Appeal decision, R. v.

Rich , where the court stated: I … agree with the Crown’s observation that "as society becomes more aware of the impact of sexual abuse on children, there has been an escalation in the severity of sentences imposed where children are the victims of sexual offences" … [ 45 ] In my view, all the authorities the Crown has referred to support the Crown's contention that the appropriate range of sentence in this case is from five to nine years on each offence. [ 46 ] I now turn to Mr. MacKay's personal circumstances. He is now 44 years of age. He was born and raised in Victoria.

He has a high school education and some post-secondary education. As defence counsel points out, he has an excellent work history, having been continuously employed with the Department of National Defence for 15 years as an electrician. [ 47 ] He has been married to his wife for nearly 23 years. They have three biological children, two daughters aged 20 and 19, and a son aged 18. They have an adopted son who is now seven. [ 48 ] Mr. MacKay and his wife have acted as foster parents for many years up until Mr.

MacKay being charged with these offences in August 2014. [ 49 ] In support of its position that a sentence in the range of six to eight years would satisfy all the relevant principles of sentencing, the defence emphasizes Mr. MacKay's lack of any prior criminal record, as well as his family and community support and work history. [ 50 ] The defence has also provided several character references from friends and colleagues who support Mr. MacKay, references that outline his church activities and what these people say are Mr.

MacKay's positive contributions to the community and his overall generosity. [ 51 ] I have read each one of those letters, just as I have read and considered the contents of all five victim impact statements. [ 52 ] As I say, given these circumstances, the defence submits that a total sentence in the suggested range would adequately reflect the seriousness of these offences, and in this regard has provided three authorities for my consideration. [ 53 ] In one of those decisions, R. v.

M.A.J. out of Ontario, a six-year sentence was imposed for sexual interference involving intercourse over a two-year period with one complainant, offences that occurred some 20 years earlier. The accused was a stepbrother who babysat the complainant. [ 54 ] Of note in that case, however, is the reference to the following comment by Justice Moldaver when he was in the Ontario Court of Appeal prior to his elevation to the Supreme Court of Canada. In R. v.

D.D. , Justice Moldaver stated the following at paragraph 34, when referring to cases involving the sentencing of offenders convicted of sexual offences against young persons: The overall message however 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. [ 55 ] It is also of note that, in that particular case, Justice Moldaver said that when adult offenders are in a position of trust and sexually abuse young children on a regular and persistent basis, "mid to upper single-digit penitentiary terms [are warranted]." [ 56 ] The Crown here says this statement by Justice Moldaver when he was in the Ontario Court of Appeal is consistent with the authorities in British Columbia and support the Crown's position that an appropriate range of sentence is one of six to nine years.

Again, I agree with that submission. [ 57 ] The defence also referred to R. v. S.D.D. , a 2012 Supreme Court decision where an uncle was convicted of sexually assaulting a nephew and niece when the victims were between the ages of four and 10. That young person received a five-year sentence. There is no

question the assaults in that case were serious, as they involved anal intercourse and fellatio. [ 58 ] However, as Crown counsel in the present case points out, the issue of consecutive versus concurrent sentence was not canvassed by counsel in that case.

Instead, both Crown and defence simply referred to a global disposition. [ 59 ] I also note that there are significant differences in the circumstances in that case, as S.D.D. was 18, of First Nations heritage, a person who had a most difficult childhood that resulted in suicidal ideation and substance abuse, as well as a severe personality disorder, circumstances that are a far cry from Mr.

MacKay's background and circumstances. [ 60 ] I have also referred to Justice Bruce's decision in T.J.D. , where a four-and-a-half-year sentence was imposed where the acts consisted of fondling a 10-year-old boy and masturbation. In that particular case, as well, the offender had no prior criminal history. [ 61 ] As a result of these dispositions and the circumstances in the present case, defence counsel in submissions realistically stated that in Mr.

MacKay's case, "we are getting into the five-year range." [ 62 ] In determining what is a fit and proper sentence, I have considered the guidelines established by all of the authorities both Crown and defence have provided.

It is clear from those authorities that it is well settled that in cases involving serious sexual assaults against vulnerable young children committed by adults who are in a significant trust relationship with their victims, the principles of denunciation and deterrence must be given primary consideration, again without losing sight of the fact that rehabilitation is also a relevant factor. [ 63 ] Considering the seriousness of the offences for which the jury returned verdicts of guilty, and balancing all of the competing principles of sentencing, along with the aggravating and mitigating factors, I am unable to accede to the defence submission that a sentence between six to eight years would be appropriate or satisfy the fundamental principles of sentencing. [ 64 ] Again, as I have stated, given the totality of the circumstances, I am of the view that an appropriate range of sentence on each count, notwithstanding Mr.

MacKay's lack of any criminal record, is between six and nine years. [ 65 ] There will therefore be a sentence on Count 1 of six years and on Count 3 of six years. [ 66 ] As Mr. MacKay was convicted and now has been sentenced on more than one offence, I must now determine whether the sentences should be served consecutively or concurrent with each other. In this analysis, the sentencing judge is required to consider any offender's overall culpability in fixing a global sentence. [ 67 ] In K.R.J. , the Court of Appeal referred to its previous decision in R. v.

Li , and agreed that the two-stage approach is appropriate, stating: The first stage is to determine the appropriate sentence for each offence, and decide whether the individual sentences should be made consecutive or concurrent. If consecutive sentences are imposed, then the second stage is to determine whether the sentences, in the aggregate, offend the totality principle.

If the sentence, as a whole, is unduly harsh or disproportionate, then the length of the individual sentences should be adjusted in order to arrive at an appropriate global sentence. [ 68 ] In the present case, the defence submits the sentence should be concurrent, one with the other.

However, as the offences here involved two separate complainants over different time periods, and even though there was some overlap in the commission of the offences, I am satisfied these are "wholly unconnected incidents", as outlined in K.V.E. , a 2013 Court of Appeal decision, and as a result there is, in my view, no doubt the sentences pertaining to each complainant must be consecutive, one to the other.

In this regard, to borrow from the conclusion reached by the trial judge in P.H. , in the present case each sentence must reflect the fact that separate and significant consequences have befallen each victim. [ 69 ] In my opinion, to grant concurrent sentences would be to minimize the conduct of the offence and to effectively grant Mr. MacKay a sentencing discount for having severely traumatized and adversely affected two young lives instead of one.

As a result, the sentences will be served consecutively. [ 70 ] As consecutive sentences have been imposed, I must now determine whether the sentences in the aggregate offend the totality principle. That is, whether in these particular circumstances, the 12-year sentence as a whole is unduly harsh or disproportionate to Mr. MacKay's moral culpability, given the jury's guilty verdicts and the facts I have accepted as being proven as a result of the verdicts. [ 71 ] On this point, again because of the serious nature of Mr.

MacKay's sexual offending and taking into consideration all the aggravating and mitigating factors, and having regard to the totality of the circumstances, I am satisfied the total sentence of 12 years is not unduly harsh or disproportionate to Mr. MacKay's moral culpability or the relevant sentencing principles outlined in sections 718, 718.01 , 718.1, or 718(2), so there will be no reduction in the total sentence of 12 years. [ 72 ] Finally, I also have to take into consideration the fact that Mr. MacKay has been in custody since being convicted and awaiting disposition.

In these circumstances, I am satisfied that, pursuant to R. v. Summers , Mr. MacKay is entitled to enhanced credit for pre- sentence custody of 1.5 to one. Therefore, as counsel agree Mr.

MacKay has been in custody from March 9 to today, a total of 85 days, the sentence on Count 1 of six years will be reduced by those 128 days for an effective sentence of five years and 237 days consecutive to the six-year sentence on Count 3. [ 73 ] There will also be the following ancillary orders which have not been contested by the defence. [ 74 ] Given the violence perpetrated on these young children, pursuant to s. 109, there is a prohibition order consistent with the provisions of that

section of the Code . [ 75 ] Pursuant to s. 487.051, as this is a primary designated offence, Mr. MacKay is to provide a DNA sample as soon as is practicable.

[ 76 ] Given that Mr. MacKay was convicted of two separate offences, there will be the mandatory lifetime SOIRA order pursuant to s. 490.013 of the Code . [ 77 ] The Crown also seeks a lifetime prohibition under s. 161 (

b) of the Criminal Code that will preclude Mr. MacKay from being employed or seeking employment or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years. Again, the defence does not oppose such an order. In these circumstances, I am satisfied such an order is appropriate and in the public interest and I so order. [ 78 ] Finally, the victim surcharge is payable forthwith and the brief sentence is concurrent to the sentences I have already imposed. [ 79 ] Mr. Gustafson, is there anything for clarification? [ 80 ] MR.

GUSTAFSON: Nothing further, My Lord. [ 81 ] THE COURT: Yes, Ms. Picha? [ 82 ] MS. PICHA: One point of clarification, you -- at the very beginning, you mentioned the maximum being 14 years, which it is today, but at the time it was 10 years. [ 83 ] THE COURT: I was hoping I made it clear that at the present time it was 14 years. [ 84 ] MS. PICHA: Today it's 14. [ 85 ] THE COURT: Today, yes, then it was not. [ 86 ] MS. PICHA: Then it wasn't. [ 87 ] THE COURT: I appreciate that. [ 88 ] MS. PICHA: Thank you. [ 89 ] THE COURT: Nothing else? [ 90 ] MS. PICHA: No. “B.D. MacKenzie, J.” The Honourable Mr. Justice B.D.

MacKenzie