R. v. Gratton, 2022 MBPC 56

CITATION: R. v. Gratton, 2022 MBPC 56 IN THE PROVINCIAL COURT OF MANITOBA Brandon Centre BETWEEN: Her Majesty the Queen ) J. Mays ) for the Crown -and- ) ) Timothy A. Gratton ) A. Claros ) for the Accused Accused ) ) ) ) Sentence pronounced: ) November 28, 2022 ) ) Written reasons: ) December 5, 2022 Restriction on Publication: pursuant to s. 486.4 of the Criminal Code of Canada , any information that could identify the victim shall not be published in any document, broadcast, or transmitted in any way. S.

Hewitt-Michta, J Introduction [ 1 ] On November 29, 2022, after hearing the submissions of counsel, I sentenced Mr. Gratton (with brief oral reasons) to four years for the offence of sexual interference. I did so with the promise of formal written reasons to follow. [ 2 ] At issue was the appropriate sentence for Mr. Gratton whom I convicted after trial of sexual interference for a single incident of oral sex with a 12-year-old female.

The Crown sought a sentence at the upper end of a four to five year range while defence counsel urged me to impose a sentence of two years less a day with probation to follow. [ 3 ] Sentencing is an individualized process primarily focussed on identifying a sentence that is proportionate to the gravity of the offence and the moral culpability of the accused. Circumstances of Offence [ 4 ] The accused admitted exchanging text messages of a sexual nature and engaging a vulnerable twelve-year-old girl in sexual activity. He was twenty-six years old.

The victim was a ward of a Child and Family Services [CFS] agency and her CFS worker became aware of the sexually explicit messages exchanged between herself and the accused. Those messages referenced an in-person sexual encounter. More specifically, the messages included a picture of an erect penis, invitations to come to the accused’s home to engage in sexual activity, direction to say she was eighteen years old if anyone asked, and reference to an incident of oral sex. [ 5 ] Mr. Gratton testified during the trial saying he met the victim at a friend’s home where they talked and watched a movie together.

A day or two later, they began exchanging text messages. He admitted inviting her to his home to have sex. They used marijuana together then engaged in oral sex at his suggestion. [ 6 ] At trial, I rejected the accused’s assertion he believed the victim was old enough to consent and I concluded there was no air of reality to his mistaken belief defence, finding the Crown proved the sexual interference offence beyond any reasonable doubt. Circumstances of Mr. Gratton

[ 7 ] Mr. Gratton is now twenty-eight years old. He is presently on probation because of a recent guilty plea to an unrelated property offence for which he received a non-custodial sentence. That is the extent of his criminal record. [ 8 ] According to a Pre-Sentence Report [PSR], Mr. Gratton lost a grandparent in 2018 prompting a downward spiral in terms of alcohol and drug abuse. He says he last consumed alcohol in September of 2020 at which point he was drinking weekly to the point of blacking out. He reports regular marijuana use from age fourteen until August of 2022.

He began using methamphetamine in September of 2020 and described himself as a daily user at the time of his PSR interview. His mother suspects he was using methamphetamine as early as 2018. Mr. Gratton told the probation officer he hopes to quit drug use but he has never sought counselling or assistance in that regard. [ 9 ] The accused is single and continues to reside with his mother, who raised him on her own. His upbringing was stable, free from neglect or abuse. [ 10 ] Mr.

Gratton has a diagnosis of Attention Deficit Hyperactive Disorder as well as an unspecified cognitive disorder described as a learning disability elsewhere in the PSR. Consequently, he attended specialized life skills programming in place of a traditional high school program until age nineteen at which time anger and attendance issues resulted in his removal. He participated for a while in a Special Olympics soccer program but lost the opportunity to continue after he was caught shoplifting during a team trip. He qualifies for disability benefits until age 65 via Employment and Income Assistance.

Sporadically he has worked for cash to supplement his disability income. [ 11 ] The PSR author notes Mr. Gratton disclosed struggling with depressive thoughts throughout his life and suicidal ideation over the past year. Mr. Gratton’s mother expressed concern to the PSR author about the accused’s mental health and identified a suicide attempt in 2018. She believes fear about the potential for a custodial sentence has him currently “severely depressed”. The accused seems not to have accessed any counselling or medical assistance in terms of his mental health. [ 12 ] Probation assesses Mr.

Gratton at medium risk to reoffend generally and at average risk to reoffend sexually. The assessments utilized are predictive tools and actual risk may be better or worse than predicted. Victim Impact [ 13 ] The victim did not participate in the prosecution of Mr. Gratton and the Crown did not produce a Victim Impact Statement. The victim here was a permanent ward of the child welfare system and resident in a group home at the time of the offence. She was high risk for substance abuse, behavioural issues, running away, and suffering exploitation.

She was impressionable and easily manipulated, according to her worker. [ 14 ] The absence of an impact statement is not indicative of a lack of harm. The sexual abuse of children is by its very nature wrongful and harmful. Immediate and long-term harm to the victim in this case was and continues to be reasonably foreseeable. Mitigating and Aggravating Factors [ 15 ] The accused did not have a criminal record at the time of the offence. He has family supports albeit not ones that appear to acknowledge the seriousness of the offence or encourage him to accept full responsibility.

These are the only mitigating factors. [ 16 ] There are several aggravating factors. It is statutorily aggravating that the accused abused an underage victim. She was twelve years old and vulnerable due to her personal deficits and circumstances. The significant age difference is aggravating – the accused was more than twice the victim’s age. There was some forethought on the part of the accused, including persuading the victim to come to his residence and directing her to lie about her age, if asked. The sexual act itself was a serious and invasive violation of the victim’s bodily and sexual integrity.

The accused used drugs with the victim prior to the offence. Principles of Sentencing [ 17 ] Pursuant to

section 718.01 of the Criminal Code , R.S.C., 1985, c. C-46 [ CCC ], deterrence and denunciation are the primary sentencing objectives in this case.

The Court strives to construct a sentence that protects children from sexual victimization; holds the accused accountable for his criminal behaviour; and communicates the profound wrongfulness and harmfulness of sexual violence against children. [ 18 ] Other notable sentencing objectives include the need to separate the accused from society as well as promoting a sense of responsibility in the accused and an acknowledgement of the harm done to the victim and the community. Mr. Gratton lacks insight into the depth of his wrongdoing and expresses no remorse.

He has not taken any meaningful steps in pursuit of rehabilitation. His prospects for meaningful rehabilitation are unknown. Seriousness [ 19 ] Further to the description of the offence and inventory of aggravating factors, the following additional factors inform the seriousness of the particular offence. Sexual offences are crimes of violence that strike at the heart of a child’s personal autonomy, bodily and sexual integrity, dignity, and right to equality. The victim here is female and Indigenous and sexual violence disproportionately affects young Indigenous females. Moral Blameworthiness

[ 20 ] “ Intentionally applying force of a sexual nature to a child is highly morally blameworthy ” [ R. v. Friesen 2020 SCC 9 at paragraph 88] . [ 21 ] Here the accused was an adult and the victim a child. The age difference was significant. [ 22 ] Mr.

Gratton took steps to facilitate the commission of the offence including text communications of a sexual nature and sending a picture of his erect penis before inviting the victim to his home to have sex. [ 23 ] The accused measured risk and took precautions to avoid detection, telling the victim to lie about her age, demonstrating an appreciation of the wrongfulness of the behaviour. [ 24 ] Cognitive deficits, severe addiction, and mental disability can significantly mitigate moral blameworthiness but the reduction is not automatic. [See R. v. J.E.D. , 2018 MBCA 123 and R. v.

Okemow , 2017 MBCA 59 ] Certainly, there is some evidence in this case that the accused suffered from a cognitive deficit as well as addiction during the relevant time. The available evidence is insufficient, however, to establish or quantify the relationship between those circumstances and the offence. Defence counsel conceded the evidence about Mr. Gratton’s circumstances does not rise to the level contemplated by the Court in Okemow . [ 25 ] On the contrary, the evidence supports a finding the accused knew what he was doing was wrong and took steps to prevent detection. [ 26 ] I am mindful of Mr.

Gratton’s personal circumstances, cognitive limitations, and addiction in fashioning an appropriate sentence but his moral culpability is substantial and not meaningfully reduced by those factors. Caselaw [ 27 ] In support of its position, defence referenced R. v. B.A.J.N. , 2021 MBCA 32 . In that case, the eighteen-year-old accused had unprotected sex approximately five times with the thirteen-year-old victim in the context of a dating relationship. The victim became pregnant and gave birth to a child.

There was a conviction following a trial and the Court of Appeal ultimately endorsed a sentence of two years less a day. [ 28 ] B.A.J.N. is distinguishable from this case. The circumstances of the offence were more serious in the sense that there were multiple incidents of sex and the victim became pregnant. However, the offender in that case was youthful and the age difference was approximately five years. Mr. Gratton is not youthful and was more than twice the age of the victim at the time of the offence.

The victim in this case was highly vulnerable to exploitation and the accused used drugs with her prior to the sexual assault. There was expert evidence with respect to specified cognitive limitations in B.A.J.N. that the Crown conceded and the Court found were mitigating and reduced the accused’s moral culpability. There is no such evidence in the present case. The appellate court in B.A.J.N. identified “ significant mitigating factors ”, including “[t]he accused’s very young age, immaturity, cognitive deficits, and dysfunctional upbringing and family life ” [see para. 47]. [ 29 ] In R. v.

Sidwell (KA), 2015 MBCA 56 , the Court of Appeal identified a guideline starting point of four to five years imprisonment for serious sexual violence towards a child by a mature person in a position of trust with no prior criminal record. There was no position of trust in this case but the decision is still a meaningful guidepost.

Sidwell pre-dates the 2015 legislative amendments raising the maximum sentences for sexual offences as well as the pivotal decision in Friesen . [ 30 ] Friesen provides strong direction that the sentences for sexual offences against children must increase to communicate society’s recognition of the harmfulness and wrongfulness of child sexual abuse and to give effect to the 2015 Criminal Code amendments. The Court identified mid single digit penitentiary sentences for sexual offences against children as normal.

Sentence [ 31 ] Balancing the serious nature of this offence, the particular circumstances and culpability of Mr. Gratton, the aggravating and mitigating circumstances, and the paramount principles of sentencing, the imposition of a sentence of four years is appropriate. The Court made several ancillary orders orally on the date of sentencing as well. “original signed by Judge Hewitt-Michta” Judge S. Hewitt-Michta