Her Majesty the Queen - v. -, 2014 SKPC 156

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 156 Date: August 18, 2014 Information: 24500615 Location: Estevan _____________________________________________________________________________ Restriction on Publication: In accordance with s. 486 of the Criminal Code , an order has been made prohibiting publication of any information that could disclose the identity of the complainant. Between: Her Majesty the Queen - and - Michael Joseph Tetlow Appearing: C. White For the Crown G. Wilson For the Accused SENTENCING DECISION K. BAZIN , J [ 1 ] Mr.

Tetlow is a young man, 19.5 years of age, who came to Canada from New Zealand to be a ski instructor in Banff, Alberta as well as to meet the 13.5 year old female child, AB. [ 2 ] He was charged and pled guilty to committing a sexual assault on AB, under s. 271 (

a) of the Criminal Code .

[ 3 ] Prior to coming to Canada, he had been in an online friendship with the complainant for about two years, commencing when AB was 11 years old. Mr. Tetlow was not aware of her young age at the beginning. [ 4 ] The relationship started by meeting over the Internet, by way of both playing the online game Minecraft. Mr. Tetlow when he was 17, originally thought that AB was 16 years of age. [ 5 ] The relationship is described by the parties as an online couple for about the first 6 to 7 months. Mr. Tetlow later is told by someone online that AB is actually 12 years old, not 16.

He has what the Crown describes as an online break up with AB, but they still maintain contact as friends. [ 6 ] The parties resume their online relationship as a couple in October 2013, with Mr. Tetlow having information from two years ago that AB in October 2013, may be actually 13-14 years old. In late November 2013, Mr. Tetlow goes to Banff to be a ski instructor. Things do not work out well for Mr. Tetlow in Banff, and there is some indication that he was bullied, picked on, assaulted by people there that he described as a gang. [ 7 ] During this time Mr.

Tetlow alleges that his phone was stolen and the people that had been tormenting him had wanted him to get nude photos from AB, and Mr. Tetlow did get some from AB and sent some to these people. The Crown acknowledges that Mr. Tetlow may have been bullied by a gang while he was in Banff, Alberta. [ 8 ] In April 2014, Mr. Tetlow decides to leave Banff and come and see AB before going back to New Zealand. His original plans were to visit AB, stay at a hotel and then go back home. AB’s mother, who is an unreliable and unstable parent, who was dealing with addiction issues, convinces Mr.

Tetlow to stay with her family. As a means of compensating for his room and board, AB’s mother has him look after her two younger sons in a sort of nanny role. The boys are 7 and 9 years of age. [ 9 ] Both Mr. Tetlow and AB indicate that while Mr. Tetlow was living at AB’s home, the sex just happened. Mr. Tetlow states that the relationship blossomed into something he did not expect. [ 10 ] AB in her statements indicated that she was never coerced, and does not see herself as a victim. She says that Mr. Tetlow was good to her and she blames herself as she states she instigated it all. AB continues to care for Mr.

Tetlow and indicated that she consented to the activity. [ 11 ] AB’s mother knew of the sexual activity between the parties and bought condoms for them, and supported the relationship. Equally, AB as well as Mr. Tetlow, indicated that they had bought condoms. [ 12 ] Mr. Tetlow and AB had frequent sexual intercourse. There are no threats or force involved. The sexual aspect of the parties’ relationship lasted approximately six weeks. They saw themselves as a couple. [ 13 ] Mr. Tetlow and AB had reached a mutual decision to break up and end the romantic aspect of their relationship.

AB indicated it was weird because of the age difference. [ 14 ] In light of AB’s mother’s addiction issues, Social Services became involved and the previous sexual relationship between Mr. Tetlow and AB is discovered.

[15] Mr. Tetlow pled guilty to one count of sexual assault contrary to

section 271 of the Criminal Code. [16] In submissions AB was described as mature for her age, and Mr. Tetlow as immature for his age. Position of the Parties [17] The Crown’s position is that a sentence of four years is appropriate. The Defence takes the position that based on thecircumstances a sentence would be in the 18 month range. [18] The parties both put forward that following R. v. Revet, 2010 SKCA 71 the starting point for consideration is threeyears, and the Court moves up or down from that point depending on the mitigating and aggravating factors.

Case Law [19] Revet sets the starting ground as three years, and the Court of Appeal upheld the sentence of three years imprisonment. [20] The Court of Appeal, also at paragraph 12, outlines that a child’s consent, means nothing more than an absence of aggravatingfactors such as use of force, violence, intimidation or trickery.

It is in a sense a neutral factor, indicating that there may be no otheraggravating factors as outlined. [21] The Court of Appeal in Revet stresses that the purpose of the legislation is to protect children, who are not sufficiently matureto appreciate all of the consequences of sexual activities. [22] Revet was a case of a 39-year-old adult, having sex with a 14-year-old girl, on two occasions. The victim did not object to orresist the offender’s advances. The offender knew of the victim’s age.

The 14-year-old victim had a learning disability and the motherof the victim indicated that the victim functioned at a 9 or 10-year-old level. [23] The victim impact statements in Revet indicated significant harm done to the victim including becoming withdrawn andsometimes refused to eat or became ill after eating. She isolated herself from friends and family, not trusting anyone, and suffered fromnightmares and panic attacks. The victim’s parents separated in the aftermath of the offence.

The father was a co-worker of the offenderand had to leave the company to avoid the appellant and was only able to obtain a lower paying job. [24] There were few mitigating factors, other than the offender had no criminal record, pled guilty, and expressed remorse, buttended in the pre-sentence report to blame the victim for bringing the matter on herself by sending text messages to him. [25] The Crown also put forward R. v. Piche, 2013 SKQB 202 . Piche is a case where a 25-year-old man who had aspouse and children, had sex with the 14-year-old babysitter when he was driving her home.

Remorse was equivocal, he did not have acriminal record, and no Gladue factors. Aggravating factors highlighted were the statutory

section 718.2(a) (II.1) mandatory aggravatingfactor of abuse of a person under the age of 18. He was in a position of trust. The act was not planned or premeditated but the offenderpersisted in his sexual advances towards the complainant. After evaluation of the relevant case law and sentencing principles, the Courtfound that a 30 month jail term was appropriate. [26] The Defence referred to the following cases:

a) R. v. Whiting, 2013 SKCA 101

b) R. v. Meadus, 2014 ONCA 445

c) R. v. Branton, (NL PC)

d) R. v. Ralph, 2014 BCSC 467

e) R. v. T.M.K., 2013 NSPC 134 [27] I also looked at R. v. McLachlan, 2014 SKCA 68 and also considered the many cases referred to in the forgoingdecisions. [28] Whiting and TMK are the closest in facts as well as age, with Whiting being also an initial connection through the Internet. [29] Whiting involves a 19-year-old offender who enters into a conversation with a 14-year-old female on a computer network siteand talked the complainant into meeting for sex that evening.

The age difference was 5 years and 32 days, being that, in the situation asthe complainant was 14, if she was 32 days older, or the defendant 32 days younger consent would be considered. The Court of Appealset aside the six month jail term and set the sentence at 14 months. The Court held that the proximity in age of the parties is somethingthe Court can consider. [30] The T.M.K. case which is a Provincial Court decision out of Nova Scotia, 2013, is also similar in circumstances of theoffender being 19 years of age and the complainant 13 years of age.

The offender was very close to the complainant’s family and olderbrother. The sexual conduct involved digital penetration and having the complainant feel the offender’s penis. The offender is the partypursuing the sexual activity. The complainant was very upset over the incident and indicated she felt she was pushed into sex before shewas ready. The sentence was a three month conditional sentence order. Sentencing Principles [31]

Section 718 of the Criminal Code outlines the sentencing principles. [32] The primary consideration involving a sentence for an offence that involves the abuse of a person under the age of 18 years, asset out in s. 718.01, is the objectives of denunciation and deterrence. [33] These objectives are to indicate to the general public, as well as the offender, that one is not to have sexual intercourse withchildren that are 13 and a half years old. The mandatory minimum of a one-year jail term for a s. 271(

a) indictable offence, where thecomplainant is under the age of 16 years outlines Parliament’s view, on behalf of Canadian society that such conduct will not be toleratedand offenders can expect to spend a minimum one year in jail, irrespective of the circumstances. [34] In this matter nothing in the circumstances and the offender’s character indicates that rehabilitation is not going to be effectivein relation to Mr. Tetlow. It is expected that Mr. Tetlow will not find himself in this situation again. Aggravating Factors [35] Deemed aggravating factors:

1)

Section 781.2(a)(II.1) Criminal Code . AB was under 18 years of age, being 13 ½ at the time. Mr. Tetlow had some information that AB could be 12 years old after he began his online relationship with her about two years prior to the offence. He originally believes AB to be 16 years of age, but this misconception was cleared up during the online relationship and at the time of the offence Mr. Tetlow knew the real age of AB. [ 36 ] General aggravating factors: 2) Mr.

Tetlow was alive to the issue of AB’s age when he comes to Canada. 3) Sexual intercourse takes place numerous times over an approximate six week period, all the while Mr. Tetlow knowing the young age of AB. 4) Mr. Tetlow knew that his action was wrong, but he continues in the relationship. 5) Mr. Tetlow is not in a position of trust to AB but placed himself in a position that would facilitate sexual activity with AB, knowing that he and AB were in a romantic online relationship, describing themselves as a couple. [ 37 ] Mitigating factors: 1) Mr.

Tetlow is a young adult being approximately 19 years, five months at the time of the offence. 2) No criminal record. 3) 5 years, 11 months in age between Mr. Tetlow and AB. 4) Mutual agreement between the parties to end the romantic aspect of their relationship. Mr. Tetlow was returning home back to New Zealand. 5) Early entering of guilty plea being approximate 20 days after being charged. 6) Cooperation with the police and provided a confession by way of a statement. 7) Mr. Tetlow is remorseful. 8) Mr. Tetlow has family support and community support set in the four letters of support outlining Mr.

Tetlow’s past good character. 9) Mr. Tetlow is newly arrived from New Zealand, where he previously lived with his parents. 10) AB’s mother, supported the relationship, and was fully aware of the sexual nature of the relationship.

The mother however had parental fitness issues, including drug and alcohol issues. [ 38 ] Gravity of the Offence: 1) The assault is a serious sexual assault, based on the age of AB. 2) No threats or force were used in relation to the offence, AB stating that she was never coerced into sexual activity. 3) No injuries, known to date, or any indication that AB is harmed by the offence, other than she blames herself and said in her statement that she instigated all of “this”. She stated she does not see herself as a victim. 4) The relationship between Mr.

Tetlow and AB, was a romantic one, but was totally misguided and improper, to which Mr. Tetlow being the adult should not have pursued. Position of Trust [ 39 ] The Crown puts forth that Mr. Tetlow was in a quasi-position of trust. They argued that he was placed in a position of a

nanny, to AB and her two younger brothers. The Defence argued that he was not in any position of trust as to AB, but was to the two younger boys. I find from the submissions that Mr. Tetlow was not in a position of trust as to AB. The two younger boys are nine and seven years old and he accepted the offer to live at AB’s home, as he had minimal funds and would have a place to stay by doing work around the house and looking after the boys. His relationship with AB was a romantic one, albeit being totally improper.

Analysis [ 40 ] The Crown is requesting a four-year sentence, however it is difficult to see where such a lengthy sentence would be appropriate in this situation. This matter is closest to the Whiting case in our jurisdiction. [ 41 ] In Whiting , the victim is a young 14-year-old girl, older than the complainant in this case. In Whiting the offender was also 19. Whiting was specifically online to engage in sex with the complainant. [ 42 ] The Court finds that it is clear that Mr.

Whiting is leading the conversation with the complainant to meeting with him for sex that evening. [ 43 ] I find that the present case does not have that predatory aspect to it. Mr. Tetlow is not online pursuing sex. [ 44 ] Mr. Tetlow and AB who live in two different countries, meet through an online video game. Mr. Tetlow is not looking for sex. They eventually online date, and consider themselves a couple, to the extent that occurs online and through technology, for a number of months. They then stopped dating online. They remain friends, and the online dating aspect starts again in October 2013. [ 45 ] Mr.

Tetlow does not come to Canada to specifically meet and have sex with the complainant, but is coming to Canada to work as a ski instructor in Banff, Alberta. He also plans to visit AB. [ 46 ] Matters do not turn out well for him in Banff and he decides to visit the complainant, fully intending to stay at a hotel as he visits. As outlined previously he ends up living at the home of the complainant, at the suggestion of AB’s mother. [ 47 ] It is put forth by the parties in the sentencing submissions that the sex between the parties simply happens, and there’s no indication that Mr.

Tetlow is in Estevan to have sex with AB. [ 48 ] I interpret the facts as a number of bad decisions by Mr. Tetlow, which start a number of years ago when he is a youth and because of the almost two years of their friendship, which included dating each other online, that Mr.

Tetlow ends up making bad decisions when he is now an adult. [ 49 ] For the most part he makes a bad decision to place himself in a situation with the complainant, while he was in a relationship with her without ever having met in person, by agreeing to live in her home, and not ensuring that his contact with AB is totally devoid of any sexual activity. [ 50 ] Although I find that Mr. Tetlow, was not acting in a predatory manner towards AB, unlike Whiting , and the many cases as outlined in the authorities, and that Mr. Tetlow and AB were in a caring relationship, the fact is that Mr.

Tetlow continued to have sex with AB fully understanding she was under the age of 14. This supports a higher penalty than Whiting, taking into consideration that AB is under 14 years old and the sexual intercourse continued on a regular basis for approximately 6 weeks. [ 51 ] A sentence of 18 months imprisonment would be an appropriate sentence in this matter.

[52] Accordingly Mr. Tetlow is sentenced as follows: a) 18 months imprisonment.

b) Time spent in remand, the parties requested to argue at the time of sentencing whether it would be 1-1 or up to 1.5 credit for remand.

c) There will be the DNA order in Form 5.03 pursuant to s. 487.051(1) of the Criminal Code.

d) There will be a firearm order for 10 years under s. 109, of the Criminal Code. [53] As to the Sexual Offender Information Registry Act order, it is my intention to hear further argument on this issue, particularlyas to whether it is discretionary as proposed by both counsel or mandatory in light of the second aspect of the Whiting appeal, relatingspecifically to a SOIRA order as set out in R. v. Whiting, 2013 SKCA 127 . K. Bazin, J