R. v. Christiansen, 2019 ONCJ 753

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code , which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

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

(2) MANDATORY ORDER ON APPLICATION — 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 victim of the right to make an application for the order; and (

b) on application made by the victim, the prosecutor or any such witness, make the order. . . . 486.6 OFFENCE —

(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. ONTARIO COURT OF JUSTICE CITATION: R. v. Christiansen , 2019 ONCJ 753 DATE: 2019 10 11 COURT FILE No.: 17-943 BETWEEN: HER MAJESTY THE QUEEN — AND — GARRY CHRISTIANSEN Before Justice ORSINI

Reasons for Sentence released on October 11, 2019 Jason A. Nicol...................................................................................... counsel for the Crown Lucas O’Hara............................................. counsel for the defendant Gary Christiansen ORSINI J.: Introduction 1 . Mr. Christiansen pled guilty before me on June 11, 2019 to one count of Sexual Interference upon a 15-year-old girl he met during the course of his employment as a police officer with the St. Thomas Police Service. The Crown proceeded by indictment. Circumstances of the Offence Agreed Statement of Fact 2 .

The Agreed Statement of Fact read into the record by the Crown is summarized below. 3 . On January 8, 2016, the victim, V.H., who was then 15 years of age (DOB […], 2000), attended the St. Thomas Police Service with her grandmother to obtain a criminal background check in order to obtain employment at a local […]. It was there that she met Constable Christiansen, who was working as a uniformed police officer at the front counter of the police station. She provided him with her personal identification, including her address, date of birth and personal cell phone number. 4 . Mr.

Christiansen provided her with a receipt for the $10 application fee, on the back of which he wrote, “Police Information Check applied for a person is too young for Vulnerable Sector Screening. Must be 18 years. For V.S. screening”. 5 . He told V.H. that the results of the police check would be mailed to her. 6 . Later that same day, Mr. Christiansen contacted V.H. via text message using his personal cell phone to advise her that the record check was ready to be picked up. They exchange further text messages about the St. Thomas Police Service Youth in Policing Program (YIPP).

At the request of V.H., a meeting was arranged for the following day to discuss the matter when he was off-duty. 7 . On January 9, 2016, Mr. Christiansen picked V.H. up in front of her residence and drove her to a local Tim Horton’s where they discussed the YIPP. During the course of this meeting they discussed the possibility of her attending at his residence to see his pets. 8 . The first sexual encounter between Mr. Christiansen and V.H. occurred the following day, January 10, 2016, at Mr. Christiansen’s residence. He had agreed to her request earlier that day to see his cats. 9 .

After watching television and engaging in small talk for approximately 45 minutes, Mr. Christiansen told her that he wanted to kiss her. She motioned for him to do so. Ultimately, this led to Mr. Christiansen performing oral sex on her. She did not perform any sexual acts upon him. 10 . Thereafter, the two began seeing each other on a regular basis for social and sexual activities while entering into a relationship.

11 . Prior to her 16 th birthday, the sexual activity between V.H. and Mr. Christiansen included V.H. masturbating Mr. Christiansen and Mr. Christiansen performing cunnilingus and penetrating V.H.’s vagina with dildos and vibrators. She would occasionally stay overnight at his home after telling her parents that she was visiting the female friend. 12 . Mr. Christiansen told V.H that he did not want people knowing about their relationship because he was afraid of going to jail. 13 . Prior to her 16 th birthday, Mr.

Christiansen discussed the possibility of V.H. having sex with a friend of his by the name of “Danny”. He told her that “Danny” was a firefighter and had a large penis. Through text messages, “Danny” offered V.H. $30,000 to sleep with him. She initially agreed. As a result, Mr. Christiansen purchased a large dildo and would occasionally use on her. 14 . “Danny” was in fact a fictional character created by Mr. Christiansen, who was simply exchanging fabricated text messages between two of his own cell phones. 15 . The relationship between Mr.

Christiansen and V.H. was acrimonious and included arguments during which Mr. Christiansen told her he wanted to break up because of his fear of going to jail for what he was doing. During some of those arguments, she threatened to call the police if he ever broke up with her. 16 . The relationship ultimately came to an end in the early part of 2017. 17 . As a result of a Crime Stoppers tip in September 2017, the SIU commenced a formal investigation which resulted in Mr. Christiansen’s arrest on October 5, 2017. Evidence of V.H. 18 . In addition to the Agreed Statement of Fact, the Crown called V.H.to testify.

This was done with a view to proving the following aggravating factors: (

i) that Mr. Christiansen sent her a text message on January 9, 2016 stating that he wanted to jump over the table and make out with her when they were at the Tim Horton’s earlier that day; (ii) that during the first sexual encounter on January 10, 2016, Mr. Christiansen was the one who removed her pants and underwear down to her ankles prior to performing cunnilingus upon her. She said Mr. Christiansen used his fingers to penetrate her vagina at that time; (iii) that she had intercourse with Mr. Christiansen on two occasions before her 16 th birthday; and (iv) that Mr.

Christiansen coached her on the various tactics police would use during any investigation into their relationship and that she should not give in to them. 19 . Pursuant to section 724(3) (

e) the Criminal Code , the Crown bears the onus proving aggravating facts beyond a reasonable doubt. 20 . Having reviewed the evidence of V.H. in its entirety, I note the following:

(

i) She said she never threatened Mr. Christiansen that if he broke up with her, she would call the police and expose their relationship. This was inconsistent with her statement to the police, which no doubt formed the basis of the Agreed Statement of Fact as it relates to this issue. When confronted with that statement, she maintained that she never made such a threat and was at a loss to explain why she said so to the police; (ii) She acknowledged initially telling the police in her statement on September 15, 2017, that she did not have intercourse with Mr. Christiansen until she was 16 years of age.

In her evidence before this Court, she said she first disclosed having had intercourse with Mr. Christiansen when she was 15 years old in her subsequent statement to police in July of the following year. She explained that she made the disclosure at that time because she was older, more mature and involved in a more appropriate relationship with another man. This explanation was inconsistent with the latter portion of her statement given on September 15, 2017, when she first disclosed that Mr. Christiansen had intercourse with her prior to her 16 th birthday.

When confronted with this, she said she matured during the course of her initial statement resulting in the disclosure of the intercourse at the end of that statement; (iii) In cross-examination, she acknowledged that Mr. Christiansen had told her on a number of occasions that he did not want to have intercourse with her until she was 16 years of age. She said these discussions occurred prior to Valentine’s Day, when she said the first incident of sexual intercourse occurred.

This was inconsistent with her statement to the police wherein she indicated that she thought these discussions occurred after Valentine’s Day; and (iv) She testified that she was initially reluctant to make any disclosure to the police because she loved Mr. Christiansen. She explained that she was unsure at the time whether she wanted to tell them everything he had done to her and she ultimately disclosed the intercourse when she realized that she was caught. 21 .

Given the inconsistencies in her evidence, I am unable to conclude that the aggravating factors noted above have been proven beyond a reasonable doubt. This is particularly so with respect to the allegation that intercourse occurred while V.H. was 15 years of age. 22 . While she may very well have been telling the truth when she testified before this court, I am left in doubt by the inconsistencies between her statement to the police and her evidence before this court. I am also left in doubt by her explanation for those inconsistencies and the fact, which I do accept, that Mr.

Christiansen had told her he did not want to have intercourse with her until she was 16 years old. Victim Impact 23 . The offence had a significant impact on V.H., as evidenced by her Victim Impact Statement. 24 . She disclosed the offence has created significant issues of trust that have affected her relationship with her parents, from whom she hid her affiliation with Mr. Christiansen. It has also affected her ability to have intimate relationships. She reported feeling worthless and unworthy of a healthy and happy relationship. Her sense of self-worth has been impacted by the sense that Mr.

Christiansen took advantage of her youth and vulnerability and “used me as a toy”. 25 . She now struggles with anxiety and depression, for which she has received counselling. In spite of this, she described feeling hopeless and “beyond being able to be helped”.

26 . She reported that she no longer trusts the police and said that “I don’t know who to call now if I need help”. 27 . The mother of V.H. also filed a Victim Impact Statement. 28 . She blames herself for “blindly” trusting Mr. Christiansen because he was a police officer. It would appear from this that she had at least some knowledge that her daughter was being assisted by Mr. Christiansen. She is understandably concerned about the impact the offence will have on her daughter’s ability to “find true happiness and comfort in an intimate relationship“.

This, together with the sense that her daughter has lost her innocence both physically and emotionally, has caused her a significant amount of stress. She describes the pain she and her husband feel as parents as a result of witnessing the pain their daughter is going through. She has ongoing concerns for her daughter’s recovery. Circumstances of the Offender 29 . Mr. Christiansen is now 57 years of age. He was 53 years old at the time of the commission of this offence. 30 .

As indicated in the Pre-Sentence Report, his family emmigrated to Canada from Scotland when he was approximately five years old, following the separation of his parents. He recalled witnessing domestic violence perpetrated by his father, who he described as an abusive alcoholic. He has lived independently since leaving home at the age of 17 due to a strained relationship with his stepfather. 31 . Although never married, he has one daughter from a brief relationship with a woman approximately 22 years ago. He is not seen or spoken to his daughter in several years. 32 . At the time of the offence, Mr.

Christiansen held the rank of Sergeant with the St. Thomas Police Service, where he had worked as an officer for 29 years. He is now unemployed and financially supported through his pension. 33 . He reportedly has very few friends or acquaintances and struggles with loneliness. Although he maintains a relationship with his brother, it would appear he otherwise has limited family support. 34 . He acknowledged feelings of shame, embarrassment and humiliation for his involvement in the matter before the court. He has been under the care of a psychologist for the past two years for depression. 35 .

He acknowledged to the author of the Pre-Sentence Report that he felt an attraction towards the victim but knew that the relationship was inappropriate. He maintained he made several attempts to separate from her but was unable to do so for fear that she would disclose their relationship. This corroborates what is contained within the Agreed Statement of Fact. 36 . Counsel provided the Court with a Psychiatric Report prepared by Dr. Gary Chiamowitz, dated December 14, 2018. Based on his interview with Mr. Christiansen and his review of the facts, Dr. Chiamowitz was of the opinion that Mr.

Christiansen did not have an ongoing or intrinsic predilection for prepubertal children. 37 . Counsel for Mr. Christiansen also filed a letter confirming Mr. Christiansen’s involvement in sex offender counselling from January through to August of this year. He is described as being open and actively engaged in his treatment while consistently acknowledging that his behaviour with the victim was both illegal and inappropriate. Although there is no indication as to precisely what Mr. Christiansen disclosed to the counsellor in relation to the offence, the counsellor indicated her agreement the conclusions of Dr.

Chiamowitz . 38 . In reviewing the Report of Dr. Chiamowitz , it is clear that Mr. Christiansen misrepresented the circumstances under which his relationship with V.H. commenced. According to the Report, he advised Dr. Chiamowitz of the following:

(

i) while at the police station, V.H. asked if they could talk outside, following which he said they met at the Tim Horton’s withher family; and (ii) V.H. subsequently began to walk her dog past his home, something she had not done before. He said they would arrange to meetat the end of his driveway, that they became friends and that, within a few weeks of connecting, they began to have some sexual contact. 39. Clearly, Mr. Christiansen did not want Dr.

Chiamovitz to know that he met V.H. alone at the Tim Horton’s after picking her up fromher residence or that the first sexual encounter occurred within two days of their first meeting at the police station. 40. As a result of these misrepresentations, and in the absence of any evidence of forensic risk assessment testing, I place little weight onthe opinion of Dr. Chiamovitz or the concurring opinion of the sex offender counselor. It would appear that their opinions were largelybased on the material misrepresentations of Mr. Christiansen. If anything, these misrepresentations speak to Mr.

Christiansen’s desire toconceal true nature of his predilections thereby increasing the risk he poses to the community. Position of the Parties 41. The Crown submitted that an appropriate sentence would be one of 30 months in custody if I had a reasonable doubt as to whetherMr. Christiansen had intercourse with the victim while she was 15 years of age. 42. The defence urges me to impose a sentence of between 18 to 24 months in custody followed by a period of probation. General Principles of Sentencing 43.

Any sentence I impose must be proportionate to the gravity of the offence and the degree of responsibility of the offender, bearing inmind aggravating and mitigating factors related to both the offence and the offender. 44. The court must also consider the principles of sentencing set out in

section 718.2 of the Code. 45. Given that the victim was under 18 years of age,

section 718.01 of the Code requires that I give primary consideration to theprinciples of denunciation and deterrence. While rehabilitation is still a relevant consideration, it nevertheless takes a backseat to theabove-noted principles. (See R v. Stuckless, 2019 ONCA 504 , [2019] O.J. No 3215 (Ont. C.A.) at para. 55.) Mitigating Factors 46. I note the following mitigating factors: (

i) Mr. Christiansen pled guilty.

This is a traditional sign of remorse which spares the victim the obligation of testifying at a trial. It is a factor which takes on heightenedsignificance in cases involving sexual offences, particularly where children are involved. While V.H. was called to testify at Mr. Christiansen’s sentencing hearing, the Crown submits that, in the circumstances of this case, thisshould not detract the credit Mr. Christiansen should otherwise receive as a result of his plea. Accordingly, I find that Mr. Christiansen is entitled to full credit for his plea.; (ii) Mr.

Christiansen does not have a criminal record; (iii) As a result of the offence, Mr. Christiansen lost his employment as a police officer. He has suffered significant public shame,which is heightened to a degree by the fact that he resides in a small community; (iv) Any custodial sentence that I impose will be particularly harsh for Mr. Christiansen, given his previous employment as a policeofficer and the measures that will no doubt have to be taken for his security while in custody; and (

v) Mr. Christiansen has made some efforts towards his own rehabilitation.; Aggravating Factors 47. The aggravating factors in this case are as follows: (

i) The offence involved the abuse of a person under the age of 18. This is a statutorily aggravating factor (see s. 718.2 of theCode). In cases involving the sexual abuse of children, this takes on a heightened significance; (ii) The first sexual contact occurred within two days of the victim’s attendance at the St Thomas Police Station and after onesubsequent meeting at a local Tim Hortons. This was not a relationship which progressed over any appreciable period of time. Mr.Christiansen was engaging the victim in sexual activity within two days of their first meeting.

This, I find speaks to the predatory natureof the offence. (iii) Mr. Christiansen was employed as a police officer during the time of the commission of the offence. Indeed, it was as a resultof this position that he first came into contact with V.H. As evidenced by the Victim Impact Statement of the V.H’s mother, she blindlytrusted Mr. Christiansen because of his position. Given the privilege position occupied by police officers and the trust that the community bestows upon them, our courts have generallyfound that officers are to be treated more severely than ordinary citizens. (See R v. Hansen,

(2018) O.J. No 286 (Ont. C.A.); R v.Schertzer (2015), 3235 C.C.C. (3d) 202 (O.C.A.); R v. Feeney (2008), 2008 ONCA 756 , 238 C.C.C. (3d) 49 (Ont. C.A.) atpara. 8; R v. Cusak (1978), (NS CA), 41 C.C.C. (2d) 289 (N.S.C.A.) Although the offences were not committed while Mr. Christiansen was on active duty, I find that he used his position as a police officerto facilitate a relationship with V.H. He met her at the police station. He engaged her in further communication in relation to the St.Thomas Police Service Youth in Policing Program. It was this that led him to her home.

His position as a police officer also caused hermother to place additional trust in him. (iv) The offence had a significant and lasting impact on V.H and her family. The consequences for V.H. largely correspond with

what our courts have repeatedly recognised in offences of this nature. As indicated by Justice Moldaver in R v. Woodward, 2011 ONCA610 at para.72, “Three such consequences are now well recognised: (

i) Children often suffer immediate physical and psychologicalharm; (ii) Children who have been sexually abused may never be able, as an adult, to form a loving, caring relationship with anotheradult; and (iii) Children who have been sexually abused are prone to become abusers themselves when they reach adulthood.” (

v) The offence did not involve an isolated incident but rather a series of sexual encounters occurring over a period of four months leading up to V.H.’s 16th birthday. I find the nature of sexual activity that took place during this time was particularly serious. Althoughit did not involve intercourse or the use of force, Mr. Christiansen, at the age of 53, involved a 15-year-old victim in an ongoing sexualrelationship that included masturbation, cunnilingus and penetration of her vagina by dildos and vibrators. He enticed her into consentingto having sex with a third party as part of a threesome.

Although this was a ruse perpetrated by Mr. Christiansen, it resulted in himpurchasing and using a large dildo on the victim and exposed her to the idea of having a sexual encounter with complete stranger. Analysis 48. Counsel have provided me with a number of cases with respect to the sentencing range for offences of this nature. Suffice it to saythat each case is dependant on its own facts. 49. Although there are some prospects for rehabilitation, as evidenced by the coun​selling Mr. Christiansen has already undertaken, hismisrepresentations to Dr. Chaimowitz are concerning for the reasons expressed above. 50.

Although not mitigating, the fact remains that sexual activity was factually consensual, in the sense that no force was used. Given myfinding above, this is not a case involving sexual intercourse. Mr. Christiansen did not commit the offence while on active duty and wasnot otherwise in an ongoing position of trust or authority towards V.H. These of course are not mitigating factors but rather the absenceof aggravating factors that would otherwise increase a custodial sentence. 51. In R v.

D.(D.) (2002), (ON CA), 163 C.C.C. (3d) 471 at para.33-35, Justice Moldaver stated the following: Before going further, I wish to emphasize that the ranges which I have identified are not meant to be fixed and inflexible. On thecontrary, sentencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases. Thesuggested ranges are merely guidelines designed to assist trial judges in their difficult task of fashioning fit and just sentences in similarcases. The overall message however, is meant to be clear.

Adult sexual predators who would put the lives of innocent children at risk to satisfytheir deviant sexual needs must know that they will pay a heavy price. In cases such as this, absent exceptional circumstances, theobjectives 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 recognizedobjectives of sentencing. 52. At the age of 53, Mr. Christiansen took advantage of a vulnerable 15-year-old girl to satisfy his sexual needs. As a police officer, hewas well aware of the seriousness of this conduct. This was not an isolated act.

He initiated the sexual contact almost immediately aftermeeting the victim in his capacity as a police officer and continued to involve her in a sexual relation over a four-month period. As aresult, I find that his moral culpability is high. 53. Had this case involved the other aggravating features discussed above, I would have no hesitation in imposing a sentence in the 3.5-4-year range. Sentence 54. Considering all of the above factors, it is my view that a sentence of 30 months as suggested by the Crown is appropriate.

55 . Accordingly, Mr. Christiansen is sentenced to a period of 30 months in custody. 56 . There will be an Order pursuant to the Sex Offender Information Registration Act, which will be in effect for 20 years. 57 . Sexual Interference is a primary designated offence. Accordingly, Mr. Christiansen will provide a sample of his DNA for analysis and admission to the DNA databank. 58 .

In addition , there will be an Order under s.109 of the Code prohibiting Christiansen from owning or possessing any of the weapons listed therein for the next 20 years and for the mandatory period of life for those weapons listed in s. 109 (2)(b ). 59 . Pursuant to s. 161 of the Code, and for five years following his release from custody, Mr. Christiansen is prohibited from : (

a) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming 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; (

b) having any contact — including communicating by any means — with a person who is under the age of 16 years, unless he does so under the supervision of a person 21 years of age or older and who is known to the young person; (

c) having any contact or communication, directly or indirectly, by any physical, electronic or other means, with V.H.; and (

d) attending within 100 meters of V.H., her residence, place of employment or schooling. 60 . Finally, there will be an Order pursuant to s. 743.21 prohibiting Mr. Christiansen from communicating, directly or indirectly, with. V.H. while he is in custody. Dated at St. Thomas, Ontario this 11 th day of October 2019 Justice G. Orsini