[Indexed as: R. v. B. (D.)]
2013 ONCA 691
Court of Appeal for Ontario, Weiler, Watt and Pepall JJ.A.
November 14, 2013
Criminal law — Sentencing — Aboriginal offenders — Forty-year-old first offender pleading guilty to sexual interference — Offence consisting of repeated digital penetration and one act of unprotected sexual intercourse with 14-year-old friend of accused’s daughter — Crown appeal from sentence of eight months’ incarceration allowed — Accused having one aboriginal parent and growing up off-reserve with limited knowledge of aboriginal culture — Sentencing judge failing to tie Gladue factors to accused and offence thereby underemphasizing his moral culpability — Nothing in Gladue report warranting sentence outside normal range — Sentencing judge also failing to appreciate gravity of offence including breach of trust and victim’s particular vulnerability — Crown arguing on appeal that usual range being five to six years — Given that Crown only seeking two to three years at trial, seeking three years on appeal — Although similar offences normally resulting in sentence at mid- to high single digits given Crown’s position, appropriate sentence three years’ imprisonment.
The accused, who was a married first offender, pleaded guilty to sexual interference. He was 40 years old at the time of the offence and the complainant, a close friend of the accused’s daughter, was 14. The victim was being bullied at school and the accused told her that he had also been bullied and that he could help her deal with it. She initially rebuffed his sexual advances and he threatened suicide. He groomed her over time and she came to feel that they were in a relationship. The offence involved repeated digital penetration of the complainant’s vagina and one act of unprotected sexual intercourse. The victim and her family were greatly affected by the offences. The accused had no criminal record. His mother was aboriginal, but he grew up off-reserve and had limited knowledge of aboriginal culture. The sentencing judge sentenced the accused to eight months’ incarceration. The Crown appealed.
Held, the appeal should be allowed.
The sentencing judge erred in failing to tie the Gladue factors to the accused and the offence. The accused’s circumstances did not diminish his moral culpability. Moreover, the sentencing judge failed to appreciate the gravity of the offence and the accused’s culpability. This was an exploitative, repeated and demeaning series of sexual assaults against a vulnerable 14-year-old by a person in a position of trust. An eight-month sentence could not adequately reflect the principles of denunciation and deterrence. Generally the range of sentence for such offences was the mid- to upper single digits. However, the Crown at trial had only sought a sentence of two to three years and in light of that the Crown sought a three-year sentence on appeal. Given the Crown’s position, the appropriate sentence was three years’ imprisonment, less a credit for time spent in post-conviction custody.
Cases referred to
R. D. (D.) (2002), 58 O.R. (3d) 788,  O.J. No. 1061, 157 O.A.C. 323, 163 C.C.C. (3d) 471, 53 W.C.B. (2d) 188 (C.A.); R. v. Gladue,  1 S.C.R. 688,  S.C.J. No. 19, 171 D.L.R. (4th) 385, 238 N.R. 1, J.E. 99-881, 121 B.C.A.C. 161, 133 C.C.C. (3d) 385,  2 C.N.L.R. 252, 23 C.R. (5th) 197, 41 W.C.B. (2d) 402; R. v. Ipeelee,  1 S.C.R. 433,  S.C.J. No. 13, 2012 SCC 13, 428 N.R. 1, 91 C.R. (6th) 1, 318 B.C.A.C. 1, 2012EXP-1208, J.E. 2012-661, 288 O.A.C. 224, EYB 2012-204040, 280 C.C.C. (3d) 265,  2 C.N.L.R. 218, 99 W.C.B. (2d) 642; R. v. M. (P.),  O.J. No. 644, 155 O.A.C. 242, 53 W.C.B. (2d) 408 (C.A.); R. v. Woodward (2011), 107 O.R. (3d) 81,  O.J. No. 4216, 2011 ONCA 610, 284 O.A.C. 151, 276 C.C.C. (3d) 86, 97 W.C.B. (2d) 665
Appeal by the Crown from the sentence imposed by George J.,  O.J. No. 3338, 2013 ONCJ 389 (C.J.).
Michelle Campbell, for appellant.
Robert C. Sheppard, for respondent.
 Endorsement By the Court: — The Crown seeks leave to appeal the respondent’s eight-month sentence for sexual interference.
 The appellant submits that the sentencing judge erred:
(a) by overemphasizing the Gladue [R. v. Gladue,  1 S.C.R. 688,  S.C.J. No. 19] principles; and
(b) by failing to give proper effect to the principles of denunciation and deterrence resulting in a sentence that is manifestly unfit and outside the appropriate range.
 At trial, the appellant requested a sentence in the range of two to three years. While the appellant now submits that the appropriate sentence is in the range of five to six years, in light of its position at trial, the appellant seeks a sentence of three years.
 At the time of the offence, the victim was 14 years of age. She was a close friend of the respondent’s daughter whom she had known since grade four. The victim was being bullied at school. She began to attend at the respondent’s home on a daily basis. The respondent, who was 40 years old at the time, told her that he too had been bullied and could help her deal with it. The two began to exchange text messages. After a few months, the respondent began telling the victim that his sex life with his wife was unsatisfactory. He invited the victim to engage in his sexual fantasies. When the victim was unresponsive, he threatened to kill himself.
 While the victim initially resisted the appellant’s advances, he persisted and the victim began to feel that she was in a relationship with him. She would regularly meet him in his truck before and after school. He digitally penetrated the victim without her consent and, after this the respondent routinely digitally penetrated the victim. On one occasion, he had sexual intercourse with her without using a condom. He also penetrated her with a vibrator and placed a ball gag in her mouth.
 The police were contacted when the victim’s father discovered some of the text messages on the victim’s cell phone. By this time, the respondent and the victim would communicate upwards of 600 times per day.
 The respondent pled guilty to the offence of sexual interference.
 The respondent obtained a secondary school diploma. He has worked as a fabricator for the past 12 years. He has no prior criminal record. He has been married for many years and has three children.
 The respondent and his mother are members of the Kettle and Stony Point First Nation. She attended a public off-reserve school where she was subject to racism. The respondent’s father is of German descent. The respondent’s parents have been married for over 45 years and continue to live in London where they raised the respondent and his sister. They owned and successfully operated a variety store and a Dairy Queen there. They worked hard and with substantial savings, were able to retire when the respondent was 14 years old. The respondent was disciplined by his father through corporal punishment. The respondent felt that his parents doted on his sister and that he was unloved.
 The respondent did not grow up in an Aboriginal community. His father was a disciplinarian who disapproved of any Aboriginal cultural involvement or practices within their home. Accordingly, the respondent’s knowledge of, and participation in, Aboriginal culture is limited. The respondent asserted that his only connection to Aboriginal culture was through regular visits with his maternal grandparents who resided on the reserve. His grandfather died when he was 13 and his grandmother died when he was 30.
 The impact of the offence on the victim and her family has been enormous. She had previously been an A student. Her marks fell. She switched schools and lost most of her friends. She commenced self-cutting and was on suicide watch. She suffers frequent panic attacks and has been put on anti-depressants. She has been accused of lying about the offence. Her father admonishes himself for having failed to protect her.
Grounds of Appeal
(1) Did the sentencing judge err in the Gladue analysis by overemphasizing factors that had limited application to this particular accused?
 The respondent accepts that the sentencing judge imposed a lesser sentence than he would have if not for the Gladue principles. He submits that there is no way of quantifying the differential and submits that the overall sentence was nonetheless fit.
 While the sentencing judge did correctly state the Gladue principles, he failed to “tie them in some way” to the offender and the offence and in so doing, underemphasized the respondent’s moral culpability for this offence. While an Aboriginal offender need not establish a direct causal link between his circumstances and the offence, the Gladue factors need to be tied in some way to the offender and the offence (R. v. Ipeelee,  1 S.C.R. 433,  S.C.J. No. 13, 2012 SCC 13, at para. 83. See also R. v. Gladue, supra). The rationale for Gladue is that many Aboriginal offenders come from situations of social and economic deprivation with few opportunities for positive development and these circumstances may diminish their moral culpability (R. v. Ipeelee, at para. 73).
 In this case the respondent’s circumstances did not diminish his moral culpability. As the Gladue report indicated, the respondent’s knowledge of, and participation in, his Aboriginal culture was limited. He grew up off-reserve and was raised by parents who have been married for over 45 years and who ran a successful business. There was no suggestion of any residential school history within his mother’s family of origin. The respondent never attended a residential school and there is no evidence he experienced any sexual abuse, discrimination, or forced displacement.
 In the circumstances, the judge’s emphasis on addressing the impact of residential schools, displacement from communities, and higher incidents of suicide, substance abuse and incarceration among Aboriginal people was misplaced in this case. There was nothing in the Gladue report that would warrant a sentence outside the normal range.
(2) Does the sentence imposed fail to give proper effect to
denunciation and deterrence and result in a sentence outside the range and that is manifestly unfit?
 Quite apart from the foregoing, the sentencing judge failed to appreciate the gravity of the offence and the culpability of the offender. This was an exploitative, repeated and demeaning series of sexual assaults against a vulnerable 14 year-old by a person in a position of trust. An eight-month sentence cannot adequately reflect the principles of denunciation and deterrence. The judge appears to have treated the child’s acquiescence as a mitigating factor; he said that she had not been raped. However, a child’s willing participation is not a mitigating factor in circumstances where the respondent made the victim feel that she was in a relationship with him (R. v. M. (P.),  O.J. No. 644, 155 O.A.C. 242 (C.A.)).
 Mid-to-upper single digit penitentiary sentences are appropriate where an adult in a position of trust sexually abuses a young child on a regular basis over a substantial period of time (R. v. D. (D.) (2002), 58 O.R. (3d) 788,  O.J. No. 1061 (C.A.), at para. 44). This range may apply even to a single instance of sexual abuse (R. v. Woodward (2011), 107 O.R. (3d) 81,  O.J. No. 4216, 2011 ONCA 610, 284 O.A.C. 151).
 The respondent groomed the victim and used emotional blackmail. Not realizing that she was being manipulated by the offender, the complainant was seduced into thinking that she was in a relationship with him. This was not an isolated incident of sexual interference. The first instances were forced. The respondent used a vibrator and a ball gag without the victim’s consent. The abuse escalated over time to include one incident of full unprotected intercourse thereby exposing the victim to the possibility of an unwanted pregnancy and the risk of sexually transmitted disease.
 It is of paramount importance that children be protected from seducers and predators through sentences that emphasize the principles of denunciation and deterrence. The sentence is manifestly unfit and an unjustifiable departure from the range.
 Under the circumstances, a three-year sentence of incarceration less time spent in post-conviction custody is fit and appropriate. We calculate time spent as amounting to 162 days (June 6, 2013 — November 14, 2013). In giving this sentence, we are not departing from the R. v. D. (D.) range but are giving effect to the range of sentence sought by the appellant. The ancillary orders remain in place.
 Leave to appeal sentence is granted, the appeal allowed, and the sentence imposed at trial varied in accordance with these reasons.