Mr. Merrick was in his mid 60’s when he fondled the genitalia of a 10 year old boy he babysat. He did this “countless” times to the boy over the following four years. He was caught and pleaded guilty to a single count of touching a person under 14 for a sexual purpose (s. 151(a) of the Criminal Code). He appealed his 5 ½ year sentence arguing that his actions did not constitute a “major sexual assault.” The Alberta Court of Appeal didn’t buy the argument: 2012 ABCA 319.

Earlier this year, the Ontario Court of Appeal also grappled with sentencing in child sexual assault cases but in a case where there could be no argument about whether the offender’s actions constituted a “major sexual assault.” Over a three year period, on a near daily basis, Mr. D.M. sexually abused his 15 year old niece who was completely dependent on him. The abuse started as sexual touching and culminated in sexual intercourse 2-3 times per week. The trial judge found that the mitigating factors put the appropriate sentence at the low end of the range and sentenced Mr. D.M. to 3 years. The Ontario Court of Appeal found that sentence to be manifestly unfit and sentenced him to 7 years, the sentence sought by the Crown at trial: 2012 ONCA 520.

Merrick: Semantic arguments don’t fly

Mr. Merrick’s abuse of his victim involved skin-to-skin contact of his hand on the boy’s genitalia countless times over 4 years. Merrick had a dated record for similar offences which lead him to be treated, unsuccessfully, for pedophilia. His risk for recidivism was high; his prognosis guarded. His PSR was negative and concluded that he was a poor candidate for community supervision. Against this backdrop, Merrick’s appellate counsel argued that the trial judge improperly characterized fondling as a “major sexual assault.”

The Alberta Court of Appeal disagreed:

“...while repeated fondling is not one of the “typical” categories of major sexual assault expressly identified in para 13 of R v Sandercock, 1985 ABCA 218, that category is not closed.

... This Court has found repeated fondling can amount to a major sexual assault, depending upon the circumstances.” [paras. 8 & 9]

In Merrick, neither victim impact statements nor any other direct evidence of harm was presented. Appellant’s counsel argued that a major sexual assault could not be found to have occurred in the absence of evidence of serious harm being suffered by the victim and that an inference of such harm could not be drawn from the nature of these assaults. The Court of Appeal countered by saying that defence counsel must put the Crown on notice either prior to or at the time of sentencing if the offender’s position is that the Crown cannot rely on the inference of harm. The notice to the Crown must be explicit and clear. [paras. 12-14]

DM: Range of sentence for obviously major sexual assault is reiterated and reinforced

D.M.’s niece came to Canada, alone, at the age of about 13 from Fiji. Canada held the promise of an education and a better life. Her hopes for that better life were undoubtedly left in tatters after D.M.s chronic abuse which started with sexual touching and progressed to sexual intercourse 2-3 times per week, for an estimated total of 124 times. She was forced to watch pornographic materials, made to take birth control pills by her abuser and threatened with deportation if she did not capitulate. At the age of 19, she asked her aunt, D.M.’s wife, to arrange a marriage for her so that she could escape D.M.’s clutches.

D.M. testified at the trial. He admitted having sex with his niece but said it only happened about 8 times, once she reached adulthood. According to him, it was consensual and initiated by his niece. The jury didn’t buy it and convicted him.

The trial judge made certain findings, based on the verdict and the record, for the purpose of sentencing. She also listed 7 aggravating and 4 mitigating factors. She went on to find that the appropriate range of sentence was 3-5 years and that, based on the mitigating factors; D.M. should be sentenced at the low end of that range.

The Ontario Court of Appeal undertook a careful analysis of Moldaver, J.A.’s (as he then was) comments in R v D.D., 2002 CanLII 44915 (C.A.) and how those comments have been applied since. The Court of Appeal reviewed the notion that the range for this type of offence is 3-5 years as well as the notion that multiple victims are required before higher sentences are attracted. Both ideas were rejected:

“To conclude on the issue of the proper range of sentence, although sentencing is always an individualized process of decision-making, where there is prolonged sexual abuse and assault of a child, including penetration, by an adult in a position of trust, the minimum sentence will be five or six years in the penitentiary.” [para. 44]

Not all mitigating factors are created equal

In both Merrick and D.M., the respective appellate Courts make interesting comments about the mitigating factors cited by the trial judges.

In Merrick, the trial judge, in arriving at the conclusion that a 5 ½ year sentence was appropriate, held that the four year “starting point” should be increased to 5 ½ because the aggravating factor of the breach of trust (babysitter) far outweighed the “very minor” mitigating factors of the guilty plea and the waiver of the preliminary inquiry. The Alberta Court of Appeal adopted this characterization of the mitigating factors as “[comparatively] minor.”[para. 15]

In D.M., the Ontario Court of Appeal summarizes the four mitigating factors found by the trial judge and their relative merit as follows:

“Although the fact that the respondent is an otherwise responsible member of his community is in one sense a mitigating factor, his status allowed him to be in a position of trust and thereby exploit the complainant and to be unsuspected as a sexual predator in private.”

This suggests that some of the traditionally cited mitigating factors in these cases may need to be taken with a grain of salt.