R. v. MacPherson, 2024 ONCJ 57

CITATION: R. v. MacPherson, 2024 ONCJ 57 DATE: January 30, 2024 Information No. 21 – 292 ONTARIO COURT OF JUSTICE (at Cayuga, Ontario) B E T W E E N: HIS MAJESTY THE KING - and - STUART MacPHERSON Mr. F. McCracken for the Crown Mr. J. Neuberger for Stuart MacPherson Reasons for Sentence An order has been made under s. 486.4 directing that any information that could identify the complainant, M.K.H., shall not bepublished in any document or broadcast or transmitted in any way.

NADEL, J.: Introduction [1] After a trial, by indictment, I found Stuart MacPherson guilty of one count of exposing his genitals to M.K.H., contrary to s.173(2) of the Criminal Code, and one count of inviting her to masturbate him, contrary to under s. 152 of the Criminal Code. [2] Counsel are agreed that pursuant to R. v. Kienapple, (SCC), [1975] 1 S.C.R. 729, the exposure count should beconditionally stayed, and I do so.

These are my reasons for the sentence that I am about to impose upon Stuart MacPherson for invitingM.K.H. to masturbate him on more than one occasion during the summer of 2016, contrary to s. 152 of the Code. [3] The offences occurred in Mr. MacPherson’s trailer at an RV resort on the Grand River during the elementary school summervacation of 2016. M.K.H.’s family had a trailer at the resort, which is how Mr. MacPherson came to befriend her. [4] Stuart MacPherson, who is currently 68 years old, was born on August 30, 1955. He turned 61 at the end of August of thesummer of 2016.

M.K.H., who is currently 15 years old, was born on […], 2008. She was seven and turned eight during the summer of2016. [5] Mr. MacPherson was a gregarious resident of the trailer park. He was well known and well thought of by the residents of thetrailer park. He regularly gave golf cart rides to M.K.H. and to her older sister and to many other residents of the trailer park. He alsotook M.K.H. and other children in the park out onto the Grand River for jet-ski rides.

He sometimes took M.K.H. and her sister and hisgranddaughter out of the park to get treats at McDonalds or to visit The Dollar Store for craft supplies. The Crimes [6] During the summer of 2016 Mr. MacPherson repeatedly brought M.K.H. into the bedroom of his trailer and invited her tomasturbate him. She complied with his invitations. As detailed in my reasons for judgment, I was unable to determine the precise

number of times that this occurred. While I was satisfied that it occurred on multiple occasions, I did not accept M.K.H.’s evidence that it happened once or twice on every weekend of the primary school summer vacation of 2016. [1] [ 7 ] M.K.H. was unable to remember how Mr. MacPherson put his requests to her. She simply said that after the first time “he would ask me to do it, he would just ask – he would tell me to come in and I would.” The first time this happened Mr. MacPherson gave her the cream and showed her where to put it on himself.

He told her to rub it on for him and pointed to his penis and she complied. [ 8 ] Other than the first time, when Mr. MacPherson put the lotion on her hands, and other than on one occasion when he masturbated himself after she had first done so, the incidents always happened in the same way. Mr. MacPherson would ask her to use both of her hands to rub the lotion on his penis. While he would become erect, he never ejaculated. [ 9 ] At the conclusion of these episodes, he was sometimes still erect and sometimes not.

Despite telling M.K.H. that “white stuff would come out” she never saw that occur. [ 10 ] These incidents only occurred during daylight hours and only lasted for what M.K.H. estimated to be about seven minutes in total. [ 11 ] Mr. MacPherson would bring M.K.H. into the bedroom of his trailer where she would sit on the bed. He would drop his pants and underwear to his ankles but not step out of them and M.K.H. would then apply lotion to her hands and rub his penis. [ 12 ] Afterwards he would pull up his pants and say “okay, let’s go now” and he often said “thank you” to her.

Then they would get on his golf cart, and he would take her away from the trailer or she would leave and walk elsewhere in the trailer park. [ 13 ] These invitations were only accepted by M.K.H. that one summer.

While she accepted rides on his golf cart the following summer nothing ever happened again because “… [she] knew it wasn’t right and it was bad and – so [she] would make up an excuse ‘cause he would ask [her] to do it the year after that, and [she] would make up an excuse so then [she] wouldn’t have to, or [she] would just pretend like [she] didn’t hear him.” M.K.H.’s Main Concern [ 14 ] M.K.H. first disclosed these events in April of 2021 when she was 12.

She told the officer who interviewed her that: “My main concern – this is the main reason why I never told anybody – I was afraid that people were gonna get mad at me or judge me ‘cause I – at the time, like, I didn’t know it was bad or wrong, but then at the same like it – like afterward it was more s-, it felt more – so wrong and then I – like that – like I was afraid to tell my parents ‘cause I feel like they would get mad at me.” [ 15 ] M.K.H. said that she never felt afraid of Mr. MacPherson at all. “No, he wasn’t a s – he’s not a scary guy.

It’s just my main concern, like I was always afraid that he was gonna tell someone but I didn’t know about that. My mom told me like when I told her that, he would ne-, never have told anybody. That was my main concern, I was also afraid of that ‘cause I found it embarrassing and I – like I said, I thought my parents would get mad at me.” [ 16 ] Mr. MacPherson never asked M.K.H. to do anything else to him. He never asked her to take her clothes off and he never kissed her or otherwise touched her. Stuart MacPherson’s Circumstances [2] [ 17 ] As noted earlier, Mr. MacPherson was born on August 30, 1955.

He is currently 68 years old. He has been married to his wife, Gail, for more than forty years. Together, they raised a son and a daughter who have developed successful and productive lives as adults. Each child wrote a letter in support of their father that I will comment on. [ 18 ] Mr. MacPherson currently makes his living as a transport truck driver. He has been employed by his present employer since 2015, driving long-haul routes throughout Ontario, Manitoba, and Quebec. [ 19 ] Mr. Neuberger provided a letter from Mr. MacPherson’s doctor, (W.T. Evans, M.D.), outlining Mr.

MacPherson’s medical history and current status. The letter provides the following diagnoses or conditions: 1. Melanoma in situ abdomen 2011; 2. Squamous cell carcinoma left temple 2022; 3. Hypertension; 4. Prostate adenocarcinoma 2012; 5. Mallory Weiss tear – upper gastrointestinal bleed August 2023. Despite this multiplicity of diagnoses, Mr. Neuberger advised that Mr. MacPherson is medically stable. [ 20 ] In her letter on behalf of her father, Mr. MacPherson’s daughter extolled his qualities as a father and as a person. Among other attributes, she described her father as nurturing, dependable and encouraging.

It is clear that Mr. MacPherson and his wife provided a

safe home life in which their daughter could grow and flourish. [ 21 ] Mr. MacPherson has a prior criminal conviction that I will outline momentarily. I infer that none of his referees are aware of this prior conviction since none of them adverted to it directly or by implication in their reference letters. [ 22 ] Mr. MacPherson’s son, a police officer, also wrote a letter in support of his father. This letter contains comments that ought not to have appeared in it and that I shall ignore. Despite that inappropriate commentary, it is clear that Mr. MacPherson’s children love and revere him.

Each has urged me to take their father’s prior life, (as they know it), into account in arriving at a fit sentence. [ 23 ] Mr. MacPherson’s daughter’s mother-in-law also wrote a reference letter in support of him, in which she also urged leniency for him. Mr. MacPherson’s Prior Criminal Record [ 24 ] On October 31, 2017 at Milton, Ontario, Mr. MacPherson was convicted of theft over $5,000.00. He was sentenced to a one-year conditional sentence and ordered to pay restitution of $52,696.00, as well as being placed on probation for two years.

The Victim Impact Statements [ 25 ] M.K.H. and her mother wrote victim impact statements. [ 26 ] M.K.H.’s victim impact statement identifies many sad changes to her life since she disclosed the crimes that Mr. MacPherson committed against her. She has lost the friendship of Mr. MacPherson’s granddaughter and both she and her mother have been treated differently by some people in the trailer park. M.K.H. said that some people have blamed her mother for what occurred and have been mean to her mother. Worse, her disclosure has made M.K.H. feel bad and guilty that she could have tried to stop Mr.

MacPherson’s crimes or that she could have prevented them from occurring. [ 27 ] M.K.H.’s mother described her life since M.K.H. made her disclosure as nightmarish and heartbreaking. She feels that she and her husband have failed their daughter. Rather than attempt to continue to paraphrase this victim impact statement I shall append it as a footnote. [3] R. v. Friesen , 2020 SCC 9 [ 28 ] Friesen has changed the parameters of sentencing in cases involving the sexual abuse of children.

In it the Supreme Court of Canada has given specific directions to trial judges about “how to impose sentences that fully reflect and give effect to the profound wrongfulness and harmfulness of sexual offences against children.” ( Friesen , at [1]) [ 29 ] Friesen sends “a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities.” The Supreme Court states quite specifically and categorically that “[s]entences for these crimes must increase.

Courts must impose sentences that are proportional to the gravity of the sexual offences against children and the degree of responsibility of the offender.” ( Friesen , at [5]) [ 30 ] Despite these express directives the Supreme Court also acknowledged that “[s]entencing judges have considerable scope to apply the principles of sentencing in any manner that suits the features of a particular case.” ( Friesen , at [38]) [ 31 ] Mr. Neuberger provided the defence’s written submissions ahead of the sentencing hearing held on November 8, 2023. Below, I have copied and pasted them into these reasons.

Rex v Stuart MacPherson Sentencing Memorandum Background Stuart MacPherson was born on August 30, 1955. He has a wife, Gail, and two adult children. Mr. Macpherson met the victim, M.K.H., because both the MacPhersons and the H.’s had trailers in the same Grand River trailer park. On September 6, 2023, Stuart MacPherson was found guilty of exposing his genitals to M.K.H. contrary to section 173(2) of the Criminal Code and of inviting her to masturbate him contrary to

section 152. The Offences

During the summer of 2016, Mr. MacPherson brought M.K.H. into the bedroom of his trailer and had her apply lotion to her hands and masturbate him. He became erect but did not ejaculate. This was the full extent of the abuse. Mr. MacPherson never asked M.K.H. to perform other sexual acts, never kissed or touched her, and never issued threats. M.K.H. was between seven and eight years old at the time of the offences. Mr. Macpherson was 61 years old. Although M.K.H. alleged the incidents occurred on multiple occasions one summer, the frequency of the abuse was not established at trial. Mr.

MacPherson pled not guilty and maintains his innocence. He has a prior criminal record for theft over $5,000, but no history of sexual abuse or violent crime. He has not spent time in jail. Sentencing Principles

Section 718.01 of the Criminal Code directs courts to prioritise denunciation and deterrence when crafting sentences for the abuse of a person under 18 years. This principle is reinforced by s. 718.2(a), which designates evidence of such abuse, or evidence that the offender abused a position of trust or authority in relation to the victim, as aggravating factors in sentencing. The Supreme Court in R v Friesen , 2020 SCC 9 found these statutory sentencing principles to reflect the profound harm to victims caused by sexual offences against children.

Under Friesen , an offender’s degree of responsibility increases where the victim is a child, with higher moral blameworthiness attaching to the intentional exploitation of vulnerable groups. A sentence, however, must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Per Friesen : “The proportionality principle requires that the punishment imposed be just and appropriate, and nothing more” (para 91).

Section When considering the gravity of a sexual offence, courts must recognize and give effect both to inherent wrongfulness, and to the potential and actual harm to children. Friesen provides a non-exhaustive list of aggravating factors for courts’ consideration in crafting an appropriate sentence for sexual offences: 1. Risk of reoffending 2. Abuse of a position of trust or authority 3. Issuance of threats 4. Duration and frequency of sexual violence 5. The age of the victim 6.

The specific type of sexual violence Defence Position on Sentencing Under the sentencing principles set out in the Criminal Code and by the Supreme Court in Friesen , Mr. Macpherson seeks a sentence of imprisonment between 12 and 18 months. Aggravating and Mitigating Factors Any sexual offence against a child is serious, and denunciation and deterrence are paramount factors in sentencing. Low risk of reoffending. As a 61-year-old first-time sexual offender with no history of violent crime or substance abuse, the risk of Mr.

MacPherson reoffending is low. Mr. Mackenzie is a dutiful husband to his wife, Gail, and a devoted father and grandfather. He has been gainfully employed during his adult life, has no previous criminal convictions for sexual assault, and enjoys the continued support of his family. Degree of physical interference. While Mr. MacPherson’s offences against M.K.H. are the more serious for the victim’s young age, and while courts under Friesen must not correlate types of physical act with a particular degree of harm, it is relevant to sentencing that Mr.

MacPherson’s physical interference with M.K.H. did not extend to the touching of her person. His offences, though highly morally blameworthy and indisputably serious, comprise instances of exposure and invited masturbation. Mr. MacPherson did not coerce, aggress, or physically interfere with M.K.H. otherwise. No position of trust/authority. Mr. MacPherson submits he did not abuse a position of trust or authority; he was known to M.K.H. only as the grandfather of her friend. He had occasionally given her rides in his golf buggy, and she moved freely about the trailer park including in the vicinity of Mr.

MacPherson’s trailer. But despite social familiarity, Mr. MacPherson was never charged directly with M.K.H.’s care. Case law typically defines a position of trust and authority in terms of direct superintendence – parents, custodians, teachers, carers – which give rise to a duty of care and indicate a relational proximity lacking in the present case. Mr. MacPherson submits that his position in relation to M.K.H. should have a neutral impact on his sentencing. Frequency of abuse. The frequency of abuse, in this case undetermined over the course of a summer, is an aggravating factor in Mr. MacPherson’s sentencing.

On M.K.H.’s testimony, the duration of the offences was approximately seven minutes. Though the original claim cited abuse on multiple occasions, the Court was unable to determine frequency. The Judge flagged the “issue of frequency” as the “major contradiction in M.K.H.’s evidence” (para 267), and twice repeated that M.K.H. had been wrong about the frequency of abuse (paras 269–270). It is, however, likely that Mr. MacPherson abused M.K.H. on more than one occasion, if not on several. Mr. MacPherson submits that the Court’s lack of a precise finding should partially restrain frequency as an aggravating factor.

Further considerations. Mr. MacPherson has a previous criminal conviction, though not for sexual assault or violent crime. He pled not guilty to the charges and maintains his innocence, acts under Friesen which are not aggravating factors but rather deprive the offender of potential mitigation. The main mitigating factor is that Mr. MacPherson has strong character references and the continued support of his community and family.

Case Law In R v RLS , 2020 ONCA 338 , the appeal court refused to lower a nine-month sentence for a 51-year-old father who pled guilty to repeatedly counseling his four- to six-year-old daughter to touch him for a sexual purpose over a two-year period, and to touching her for a sexual purpose. The perpetrator’s degree of interference exceeded Mr. MacPherson’s, occurred frequently for a significantly longer period, and involved an egregious abuse of trust. Despite viewing the sentence as lenient under Friesen , the Court found that the sentencing judge had not erred in imposing a nine-month sentence (para 12).

The 60-year-old offender in R v KK, 2020 ONSC 7198 received a two-year sentence for sexual interference and invitation to sexual touching on multiple occasions over a three-year period. Mr. KK’s physical interference with a victim aged 10 to 12 years was both more frequent and more egregious than Mr. McPherson’s – it included thrusting and aggressive groping – and continued for significantly longer – several years against one summer. Though Mr. KK, like Mr. MacPherson, was grandfather to the victim’s friend, Mr. KK more clearly occupied (and abused) a position of trust.

Specifically, the abuse took place when the victim visited Mr. KK’s house to see his family, during which time Mr. KK was understood to share in the victim’s close superintendence and direct care (para 3). In R v TJ, 2021 ONCA 392 the Crown successfully appealed a nine-month sentence for a single incident of sexual abuse on a 7-year-old girl. TJ had forced the victim’s hands onto his penis late one night when the victim was staying at his house for a sleepover with his sons, telling her “This is how you do it”, and instructing her to put his penis into her mouth (she refused). In contrast to Mr.

MacPherson, the offender occupied a clear position of authority, having been entrusted directly with the victim’s care. The appeal court imposed a 24- month custodial sentence. The offender in R v Eichner , 2021 ONSC 520 received two concurrent two-year sentences for twice inviting a 13-year-old to touch him sexually – the court imposed additional longer sentences for repeated sexual interference that involved vaginal penetration. Mr. Eichner was 29 years old at the time of the offence and did not occupy a position of trust. A significant aggravating factor, absent in the present case, was that Mr.

Eichner had four previous convictions for assault, one involving domestic violence (para 94).

The Court in R v Rusk, 2021 ONCJ 343 imposed a one-year sentence for three counts of sexual assault against a girl below the age of 16. The offences occurred on a single date and the victim was unknown to the perpetrator. Like Mr. MacPherson, Mr. Rusk had a prior criminal record unrelated to sexual or violent offences; he was unremorseful at trial and pled not guilty. While Mr. Rusk, 29 years old at the time of the offence, was considerably younger than Mr. MacPherson, he had a significantly increased chance of reoffending due to ongoing alcohol abuse. Mr.

MacPherson has no such history of alcohol abuse and a much lower risk of reoffending (para 131). R v Patel, 2023 ONSC 890 . Mr. Patel received a sentence of two years’ incarceration for two counts of sexual interference and one count of invitation to sexual touching. The offences occurred on a single occasion. Mr. Patel was 18 years old at the time; the victim was 14 years. Although a first-time and one-time sexual offender, Mr. Patel, unlike Mr. MacPherson, was the victim’s religious counsellor and therefore occupied a position of trust. There were other aggravating factors absent from the present case: Mr.

Patel ignored the victim’s protests, issued serious threats to the victim, and attempted to physically coerce fellatio (para 30). The Court issued a seven-month sentence in R v Fluet, 2023 ONSC 3858 for invitation to sexual touching via two text messages to a police officer posing as a 15-year-old girl. The lower sentence reflects the lack of physical contact, the absence of a position of trust, the one-off nature of the offence, Mr. Fluet’s admission to the offence, and his pre-trial efforts at rehabilitation.

Despite factual dissimilarities with the present case, the low sentence is consistent with a 12- to 18-month sentence range for Mr. MacPherson’s more serious offences. [ 32 ] Mr. McCracken responded to the defence’s written submissions in like manner. I have appended those submissions next. R v Stuart MACPHERSON – Crown Sentencing Memorandum “Children are the future of our country and our communities. They are also some of the most vulnerable members of our society. They deserve to enjoy a childhood free of sexual violence.

Offenders who commit sexual violence against children deny thousands of Canadian children such a childhood every year.” [1] These are the opening words of the Supreme Court of Canada in Friesen , which held that “[s]entences for these crimes must increase.” [4] [2] Stuart MacPherson has been found guilty of exposing his penis to M.K.H., and then having her masturbate him. She was a young child, 7-8-years old. Throughout the summer of 2018 he repeatedly invited her into his trailer, had her apply lotion to her hands, and then had her rub his penis.

He was a family friend, sharing a vacation community in which children freely roamed during their summer holiday. [3] For Mr. MacPherson’s sexual abuse of M.K.H., the Crown seeks a sentence of 3 years imprisonment along with the ancillary orders set out in Appendix A. [4] The Crown relies on the following aggravating factors: 1. The offences involved the abuse of a person under 18 - s. 718.2(a)(ii.1) [5] 2. M.K.H. was a young 7/8-year-old child at the time of the offences ( Friesen at para. 134 ). 3. The accused abused the position of trust that he garnered with M.K.H. and her parents – s. 718.2(a)(iii). 4.

The significant impact on M.K.H. and her family – s. 718.2(a)(iii.1). [6] 5. While dated and unrelated, the accused’s prior criminal record. 6. The accused committed multiple acts of sexual abuse against M.K.H. [5] Of these factors, perhaps the most acute is the impact of these offences on M.K.H.. A part of her childhood was taken from her by the accused. She lost what should have been a carefree summer holiday destination.

The accused took “a first time experience for [her] and made it into a bad thing.” He made her “feel bad and guilty that [she] could've tried to stop it or prevent it from happening.” [7] [6] The Crown acknowledges that the degree of physical interference is a factor to consider on sentence. Nevertheless, the Supreme Court in Friesen cautioned against the overreliance on this factor, writing: […] courts should not assume that there is any clear correlation between the type of physical act and the harm to the victim.

In assessing the significance of the degree of physical interference as a factor, as Christine Boyle writes, "judges should think in terms of what is most threatening and damaging to victims" (p. 180). Judges can legitimately consider the greater risk of harm that may flow from specific physical acts such as penetration. However, as McLachlin J. explained in McDonnell, an excessive focus on the physical act can lead courts to underemphasize the emotional and psychological harm to the victim that all forms of sexual violence can cause (paras.

111-15). Sexual violence that does not involve penetration is still "extremely serious" and can have a devastating effect on the victim (Stuckless (1998), at p. 117). [emphasis added] [8] [7] Indeed, the text of M.K.H.’s victim impact statement highlights the aptness of the Supreme Court’s comments. [8] In I.L. [2015] N.J. No. 305 (P.C.) , the accused pled guilty to invitation to sexual touching and sexual interference, and sexual assault. He sexually abused his partner’s 5-year-old grandson. There were multiple incidents over the course of a 1-year period.

The abuse consisted of the accused masturbating the victim and having the victim masturbate him. The accused also placed his penis against the victim’s bum, and had the victim do the same to him. He was 74 with no prior record. He received a 3 and ½ year sentence . [9] While the degree of physical intrusiveness along with the position of trust and authority occupied by the accused were more aggravating, I.L. benefited from the mitigating factor of a guilty plea. The case was also pre- Friesen . [10] In K.P. 2017 ABPC 172 , the accused pled guilty to invitation to sexual touching.

No less than 20 times over the course of a 15- month period, the accused offered his 11–12-year-old granddaughter money to watch him masturbate, to touch his penis, or to perform oral sex on him. Although the victim agreed to watch him masturbate, she tried to look away. She did not perform oral sex on him. The Court found that the guilty plea was a ‘significant mitigating factor’ and sentenced the accused to 18 months of jail , to be followed by probation. [11] Like in I.L. , the accused occupied a more acute position of trust and authority.

Nevertheless, also like in I.L. , the accused also benefited from the ‘significant mitigating factor’ of a guilty plea. It also is a pre- Friesen decision. [12] In J.T. 2011 ONSC 7275 , the accused was convicted after trial of sexual assault, sexual interference, and invitation to sexual touching. He was the on-again, off-again partner of the victim’s mother. When the victim was between the ages of 5 and 7 on several occasions the accused removed the victim’s pants and masturbated him. On at least one occasion, he forced the victim to masturbate him.

He had a very lengthy criminal record that included 132 convictions, but none for sexual offences . He was sentenced to 2 years less 1 day on top of 4 months credit for presentence custody. [13] In R.H. 2022 ONCJ 225 [9] , the accused was convicted after trial of sexual interference. The accused was convicted of making his step-grandchild touch his penis over his clothes on one occasion. He had no record. Citing the impact on the victim, and Friesen , the Court sentenced him to 2 years less 1 day plus probation.

While the accused occupied a greater position of trust towards the victim, this case involved one instance of sexual abuse rather than multiple. [14] In J.(T.) 2021 ONCA 392 , the Court of Appeal heard a sentence appeal involving one instance of sexual touching. The victim – a 6 or 7 year-old girl – was at the accused’s residence for a sleepover with his sons. During the night, he directed the victim into the bathroom where he took her hands, placed them on his penis, and then used her hands to rub it. He told her that she could put her mouth on his penis, at which point she pulled away and left the room.

The accused had no prior record. [15] The trial judge imposed a sentence of 9 months imprisonment. The Court of Appeal, citing Friesen , held that this sentence was too lenient. They increased the sentence to 24 months of jail but stayed the sentence, declining to re-incarcerate. The sexual abuse in J. (T.) is most similar to that of which Mr. Macpherson has been found guilty. In J.(T.) there was one instance. Here, there are multiple.

Aside from this aggravating feature, it is perhaps the most like the case at bar. [16] Ultimately, the latter cases demonstrate a marked increase in sentences in a post- Friesen world. Given the multiple instances of sexual abuse visited by the accused on M.K.H., they also support a sentence of 3 years incarceration. APPENDIX A:

SUMMARY OF ORDERS SOUGHT 1. 3 years of custody 2. DNA databank order (primary designated) (s. 487.05) 3. 10-year weapons prohibition 4. 743.21 non-communication order with M.K.H. 5.

SOIRA order (20 years) [10] 6. s. 161(a) (public parks) – 5-year prohibition 7. s. 161(a.1) (non-attendance) – 10 years (within 2KM of any dwelling-house of M.K.H. or of (name and address of campground removed) 8. s. 161(b) (employment or volunteering with children) – Lifetime prohibition 9. s. 161(c) – 5-year prohibition, except in the presence of a parent or guardian who is aware of your criminal record The Submissions of Counsel at the Sentencing Hearing on November 8, 2023 [ 33 ] On November 8, 2023, I had the benefit of oral sentencing submissions from counsel after first creating a sentencing record of filings.

Those filings consisted of the reference letters, employment and health letters and the victim impact statements already referred to. A copy of Mr. MacPherson’s prior criminal record had been filed as a trial exhibit, so it was not duplicated at the sentencing hearing.

[34] Mr. Neuberger stated that Mr. MacPherson respectfully declined to make a s. 726 statement. [35] While counsel were free to frame their sentencing submissions as they wished, I specifically asked them to assist me with respectto two matters: whether Mr. MacPherson stood in a position of trust to M.K.H. when he committed his crimes against her and whetherthe availability of probation ought to be a factor on sentencing on the facts of this case. The Crown’s Sentencing Submissions at the Hearing [36] Despite Mr. MacPherson’s prior record being somewhat dated and unrelated, Mr.

McCracken submitted that “we’re here becauseof what Mr. MacPherson did, its impact on M.K.H., her family … and our community.” [37] He submitted, albeit in other words, that the directives of the Supreme Court of Canada in Friesen have resulted in markedincreases in child sexual abuse sentences and that its teachings have guided his submissions in seeking a three-year penitentiary term. [38] The Crown acknowledged that while the Court in Friesen identified a number of drivers of any sentence to be imposed, theparties differed on where their application led. [39] Mr. McCracken keyed into the issue of whether Mr.

MacPherson was in a position of trust when he committed his crimes againstM.K.H. In the Crown’s submission he was. There is a continuum or spectrum of trust relationships. While Mr. MacPherson’s trustrelationship with M.K.H. was not as robust as a parental or pedagogical one, as explained at paragraph [125] of Friesen, one existedbetween them. 125 We also wish to offer some comments on the factor of the abuse of a position of trust (Code, s. 718.2(a)(iii)). Trust relationshipsarise in varied circumstances and should not all be treated alike (see R. v. Aird, 2013 ONCA 447, 307 O.A.C. 183, at para. 27).

Instead, itmakes sense to refer to a "spectrum" of positions of trust (see R. v. R.B., 2017 ONCA 74, at para. 21 ). An offender maysimultaneously occupy multiple positions on the spectrum and a trust relationship can progress along the spectrum over time (see R. v.Vigon, 2016 ABCA 75, 612 A.R. 292, at para. 17). In some cases, an offender's grooming can build a new relationship of trust, a regularoccurrence in child luring cases where children are groomed by complete strangers over the Internet, or move an existing trustrelationship along the spectrum.

Even where grooming does not exploit an existing relationship of trust or build a new one, it is stillaggravating in its own right. [40] Mr. McCracken submitted that Mr. MacPherson developed a relationship of trust with M.K.H. over time as a result of theactivities that he engaged in with her. In effect, he groomed and garnered M.K.H.’s trust so that she would comply with his direction. She did so because he became a trusted and close family friend to M.K.H. [41] The Crown noted that as this relationship developed it became common to see M.K.H. in Mr.

MacPherson’s company, whetherbeing driven around by him on his golf cart or being seen around and at his trailer. It was this growing familiarity and common-placeness, this growing of a trusted family friendship with her that allowed him to commit these offences. Accordingly, this abuse of atrust relationship is an aggravating feature of his crime. [42] I tend to agree with this submission. Since Mr.

MacPherson was allowed to take M.K.H. out on jet-ski rides no reasonable parentwould allow their child to be subjected to a potentially dangerous situation without reposing trust in the person being responsible for theirchild’s well-being in that situation. [43] I asked Mr. McCracken to assist me with his submissions respecting how to rationalize the Supreme Court’s direction thatsentences must increase with their comments at paragraph [124] respecting probation as an aid to reducing recidivism: 124 The offender's likelihood to reoffend is clearly also relevant to the objective of rehabilitation in s. 718(

d) of the Criminal Code.Courts should encourage efforts toward rehabilitation because it offers long-term protection (Gladue, at para. 56). Rehabilitation mayalso weigh in favour of a reduced term of incarceration followed by probation since a community environment is often more favourableto rehabilitation than prison (see Proulx, at paras. 16 and 22). At the same time, depending on the offender's risk to reoffend, theimperative of providing immediate and short-term protection to children may preclude early release.

In these cases, efforts atrehabilitation must begin with such treatment or programming as is available within prison (see R. v. R.M.S. (1997), (BC CA), 92 B.C.A.C. 148, at para. 13). In some cases, the only way to achieve both short-term and long-term protection of childrenmay thus be to impose a lengthy sentence (see R. v.

Gallant, 2004 NSCA 7, 220 N.S.R. (2d) 318, at para. 19, per Cromwell J.A., as hethen was). [44] While conceding that there is some attraction to a two-year sentence and a further three years of state control via probation, Mr.McCracken submitted that that disposition ought not to carry the day because of the many aggravating features referenced in Friesen thatapply to this case, all of which favour a higher sentence. [45] The Crown submitted that those factors (including breach of trust, the nature of the acts, the number of times they occurred andtheir psychological effect on the victim and her family), preclude a sentence that allows for probation. [46] Mr.

McCracken noted that the Supreme Court in Freisen declined to set a national sentencing floor for child sexual offences. The Court held that it was the role of provincial appellate courts to do that. As a result, Mr. McCracken stressed R. v. J. (T.), 2021ONCA 392, a post-Friesen decision as being on point. The Crown submits that, while it is difficult to find cases that are precise factualmirrors, J. (T.) is a very close analogue to Mr. MacPherson’s crimes. Notably, there was only one incident of impropriety in J. (T.) asopposed to the several that Mr. MacPherson engaged in over the summer of 2016.

[ 47 ] In J. (T.) the offender used a young child’s hands to rub his penis and invited her to put her mouth on it on one occasion only. The child pulled away and fled. The trial judge imposed a sentence of nine months and two years probation. The Court of Appeal found that sentence to be unfit and declared that a sentence of 24 months would have been appropriate. Given the many aggravating features present in Mr. MacPherson’s case a more severe sentence ought to be imposed, in Mr.

McCracken’s submission. [ 48 ] Those aggravating features include the multiple occurrences of masturbation that necessarily had a greater effect on M.K.H. and subsequently on her family. Additionally, Mr. MacPherson’s repeated breaches of trust demonstrates a much greater degree of responsibility by him. [ 49 ] In addition to J. (T.) Mr. McCracken urged reliance on R. v. R.H. , 2022 ONCJ 225 as another roughly comparable post- Friesen fact pattern and sentence. Given these two roughly comparable fact patterns and sentencing precedents, the repetitive nature of Mr.

MacPherson’s crimes requires a three-year penitentiary term. The Defence’s Sentencing Submissions [ 50 ] Mr. Neuberger began with some non-controversial matters. First, that Kienapple ought to apply as noted above at paragraph [2]. Additionally, he submitted that the defence and the Crown were ad idem on most of the ancillary orders including the application of s. 109, s. 743.21 and the length of a SOIRA order. [ 51 ] Counsel took issue with breadth of the s. 161(

c) order being sought by the Crown. Mr. MacPherson has grandchildren. Both his son and his daughter are aware of this conviction. Both of his children remain staunchly supportive of him. The defence asks that any s. 161(

c) order except biologically related children from its ambit. [ 52 ] Mr. Neuberger noted that the events that his client was convicted of happened in the summer of 2016 and that there is no indication of any risk to his family. Further, Mr. MacPherson has been on a release on an undertaking since May 2, 2021 without issue or incident. [11] [ 53 ] Mr. Neuberger agreed with the Crown about the aggravating factors present in this case but urged that on the spectrum of trust relationships these facts were at the lower or less aggravating end of that factor. Mr.

Neuberger submitted that the facts adduced lacked the typical indicia or hallmarks of someone who is actually in a position of trust. In addition, the defence contended there was very little actual evidence of grooming activities. [ 54 ] Mr. Neuberger relied upon his written submissions that I have embedded into these reasons. That said, relying upon J. (T.) , Mr. Neuberger submitted that 18 months incarceration together with three years on probation would be a fit sentence. In his submission, Mr.

MacPherson presents as a low risk to re-offend and, despite his unrelated and somewhat dated prior record, his client has strong prospects for rehabilitation. Moreover, 18 months of incarceration would be a difficult sentence for a 68-year-old man who had never previously been in custody. [ 55 ] As I noted during Mr. Neuberger’s submissions, Mr. MacPherson “was so convivial, so gregarious, so friendly with everyone that everyone reciprocated and so he was not a person who was frightening. M.K.H. said specifically that she was never frightened of him.

He was simply a friendly guy who traded on that friendship.” [ 56 ] Mr. Neuberger submitted that Mr. MacPherson enjoyed strong support from his family and from other residents of the trailer park. Other than his conviction for theft over he had a very pro-social life with obviously strong values as a parent who has raised two lovely children, who have both succeeded in life. So, there are very good aspects to Mr. MacPherson. He has a dedicated wife and a long-term marriage.

These are positive elements that bode well for his future rehabilitation. [ 57 ] The defence provided the medical letter to give the court an idea of his health and prospects. Fortunately, nothing is acute at this time. Things are well-managed at the moment but given his age he will need some ongoing monitoring, which is one of the reasons why the defence has contended for a reformatory sentence. [12] [ 58 ] Additionally, Mr.

Neuberger urged that a shorter sentence together with a probation order would give a more prolonged period of time for supervision in the community, which could run in conjunction with the s. 161 order. Discussion and Imposition of Sentence [ 59 ] I have had the benefit of able and fulsome submissions from the Crown and the defence. [ 60 ] In addition to applying s. 718 of the Criminal Code , I have heeded the directives of the Supreme Court of Canada in Friesen . Additionally, I have taken the following provisions into account:

SECTION 718.01 Objectives - offences against children 718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

SECTION 718.04 Objectives - offence against vulnerable person 718.04 When a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances - including because the person is Aboriginal and female - the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.

SECTION 718.1 Fundamental principle 718.1. A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

SECTION 718.2 Other sentencing principles 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust … in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health …, shall be deemed to be aggravating circumstances; and (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders … [ 61 ] The foregoing provisions of the Criminal Code must all be applied and weighed in the balance together with the express directive from the Supreme Court of Canada that sentences for sexual crimes committed against children must increase. As our Court of Appeal noted in R. v. M.M. , [2022] O.J.

No. 2527 at paragraph [15] : The Supreme Court's instructions from Friesen could not be clearer: sentences for sexual offences against children must increase. There are no qualifications here. Sentences have been too low for too long. Denunciation and deterrence are of primary importance: R. v. Inksetter , 2018 ONCA 474 , 141 O.R. (3d) 161 , at para. 3 . Those who commit sexual offences against children must understand that carceral sentences will ordinarily follow. [ 62 ] Mr. MacPherson will be 68 years of age when I incarcerate him. His health is stable but far from good.

This will be his first period of immediate incarceration. [ 63 ] Both the Crown and the defence agree that Mr. MacPherson must be incarcerated. They differ as to the extent of what is required to achieve a fit sentence. That period will determine the carceral system where he will be detained. [ 64 ] Mr. McCracken contends that J. (T.) and R.H. are very similar fact patterns and that what distinguishes them from Mr. MacPherson’s situation is that he repeatedly invited his victim to masturbate him during the summer of 2016.

Since the offenders in these two cases only committed their offence on one instance the Crown urges a higher sentence for Mr. MacPherson. [ 65 ] This point of distinction is a valid one. However, as I noted at length in my reasons for judgment, I was not able to determine with precision how many times he invited M.K.H. to masturbate him during the summer of 2016.

I did not accept her trial evidence on the issue as it was internally inconsistent and inconsistent with other evidence that I did accept. [ 66 ] In fairness to her, when she first volunteered evidence on the issue of frequency, she told the police the events happened, “ [l]ike maybe like once a weekend or something like that. ” At another point during her police interview she was asked to guess at how many times she went into Mr. MacPherson’s trailer. Her response was: A: I would say basically that whole summer when I was there maybe – say if I was there – depends on how many days I was there.

If it was just a weekend, usually once, maybe twice in one weekend, but if it was longer than that, it would’ve happened more that that. [ 67 ] I do not intend to repeat the extensive portions of M.K.H.’s cross-examination that are contained in my reasons for judgment. I

simply affirm that, at most, there were 11 potential weekends in the summer of 2016. During the trial Mr. Neuberger demonstrated that this “guessed at” answer was not and could not be accurate. [ 68 ] In the result, I am unable to say how many times these events happened but clearly it happened on several occasions. Accordingly, the repetitive nature of these invitations is a secure reason to distinguish Mr. MacPherson’s situation from the facts in J. (T.) and R. H. [ 69 ] However, there are aggravating aspects to those two cases that do not obtain in Mr. MacPherson’s situation.

For example, J.T. invited his child victim to fellate him. As noted earlier, Mr. MacPherson never asked M.K.H. to do anything else to him. He never asked her to take her clothes off and he never kissed her or otherwise touched her. Indeed, in J. (T.) the offender touched the child by using her hands to rub his penis. This is an aggravating feature absent from Mr. MacPherson’s offences. Similarly, while there is an aspect of breach of trust here, the trust relationship is of a lesser degree than in the “sleepover” situation that obtained in J. (T.) . [ 70 ] Similar points of distinction can be identified in R.H.

The offender there was a step-grandfather, and the child victim was much younger than Mr. MacPherson’s victim. Moreover, the victim in R. H. appears to have suffered even more greatly than here. [ 71 ] These kinds of parsing are not terribly helpful. At bottom, one exercises one’s best judgment to arrive at a fit sentence. That is what I have striven to do. [ 72 ] In crafting the sentence I shall now impose I have taken the comments at paragraph [124] of Friesen into account. [ 73 ] I sentence Mr.

MacPherson to two years in the penitentiary to be followed by three years on probation. [13] [ 74 ] In addition to the statutory terms of probation I impose the following additional terms: [14] 2 Reporting 1. You shall report to a probation officer within five working days of your release from custody and after that you shall report at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision. 5. Cooperate with your probation officer.

You must sign any releases necessary to permit the probation officer to monitor your compliance and you must provide proof of compliance with any condition of this Order to your probation officer on request. 8. No contact/communication/attendance: General 1. Do not associate or communicate, in any way, by any physical, electronic or other means, or be in the company of M.K.H. or any member of her immediate family. 2. Do not be within 100 metres of any place where you know any of the person(

s) named above to live, work, go to school, frequent or any place you know the person(

s) to be. 3. Immediately leave any place the person(

s) named above is known to be. 9. Weapons and Permits 1. Do not possess any weapons as defined by the Criminal Code . 11. Counselling 1. Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer Including, but not limited to: Interpersonal limits counselling together with any other matters personal to the probationer as identified by the probation officer.

Ancillary Orders [ 75 ] I make the following ancillary orders. • I make a primary designated DNA order that remains in effect until it is carried out. • I make a s. 109 order as follows.

For the period that you are under a warrant of committal and for the 10 years following from the expiry of your warrant of committal I order that you shall not possess any firearm, cross-bow, restricted weapon, ammunition or explosive substance and for the balance of your life you shall not possess any prohibited firearm, restricted firearm, prohibited weapon, prohibited device or prohibited ammunition. • Pursuant to s. 743.21 I order that you are prohibited from communicating, directly or indirectly, with M.K.H. or any member of her immediate family during the custodial period of your sentence. • I order that you shall be subject to Sexual Offender Information Registration Order for 20 years.

You shall be required to register as directed in the Order that will be served upon you and I must warn you that severe penalties can be imposed should you fail to comply with the terms of this Order.

Pursuant to s. 161 I make the following orders. • Pursuant to s. 161(a), I order that you shall not attend a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre for a period of five years. • Pursuant to s. 161 (a.1), I order that you shall not knowingly approach within two kilometres of any dwelling-house where M.K.H. ordinarily resides or within two kilometres of [name and address of campground removed]. • Pursuant to s. 161 (b), I order that you shall be prohibited from 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 for the balance of your life. • Pursuant to s. 161(c), I order that, your biological grandchildren excepted, for the next five years you shall be prohibited from having any contact, including communicating by any means with a person under the age of 16 years, except in the presence of a parent or guardian of that person who is aware of your criminal record of conviction for this offence, with the exception of your biological grandchildren.

Dated at Cayuga this 30 th day of January 2024 ​​​​_________________________ J.S. Nadel, (OCJ) [1] There was no evidence of precisely when M.K.H.’s primary school year ended in June of 2016 or when her primary school began again in September of 2016. The primary school year in Ontario normally ends near the end of June and begins again at or just after Labour Day in September. There were 11 weekends in the primary school vacation in 2016 between Friday, June 24, 2016 and Monday, September 5, 2016.

Two of those weekends, (Canada Day and Labour Day), were long weekends. [3] For me personally this has felt like living a nightmare. This has been one of the most devastating and heartbreaking experiences I have ever had to deal with in life. It was an innocent conversation with my daughter M.K.H. trying to be a good parent and warn her about bad people in the world, attempting to protect her. Which in turn to learn you had someone you considered a close friend whom you beyond trusted let alone with your girls had done something so horrible.

The past two and a half years has been like living an emotional roller coaster for me, from never ending tears feeling devastated to complete anger and betrayed feeling. Having to watch the pain this has caused my whole family, watching my husband cry numerous times let alone control his anger, my older daughter Sd.H. breaking out into a sob and crying when told what Stu had done and everything M.K.H. has had to go through has been extremely heartbreaking. As parents we feel in a sense that we failed her.

Not one person could have anything bad to say about my girls because they are very good girls which was only confirmed by others in this trial which did make me feel good. It has been difficult for me to constantly have to reassure M.K.H. that she did the right thing in telling me. Having to hear her say she wished she hadn't told me because of all the people this has hurt, not him but his family and ours. It has been awful watching her carry guilt in a situation that was not her fault as a young child. He has robbed my daughter of a first time natural experience which she can never get back.

As I've said numerous times we had become friends with the whole family so to learn in the end he was just a wolf in sheep's clothing has been a life changing experience for me, my family and especially my daughter M.K.H.