In a recent sexual assault trial, R. v. R.D., the judge was required to make a determination on two key issues: 1) whether the Kienapple principle applies to this case, given that the defendant faced multiple sexual charges which essentially applied to the same action; and 2) whether the defendant should be designated a dangerous offender or a long-time offender.
On both questions, the judge found in favour of the defendant. Justice Charney concluded that the Crown prosecutor failed to show that there were reasonable grounds to believe that the defendant “might be found” to be a long-time offender or dangerous offender, as defined in the Criminal Code s. 753. Also, on the basis of the Kienapple principle, Justice Charney stayed the charges of sexual assault and invitation to sexual touching, which meant that the defendant faced sentencing on the charge of sexual interference only.
This case involved a man who was initially found guilty of sexual assault, sexual interference and invitation to sexual touching. These charges arose from one incident when the defendant inappropriately touched an 8 or 9-year-old guest who was in attendance at his son’s birthday party. Evidence was given that the young boy was asked by the defendant to take a shower in the backyard change room; the defendant then allegedly followed the boy into the shower, proceeded to wash the boy, and moved the boy’s hand to stroke the defendant’s penis.
The Kienapple principle
The Kienapple principle prohibits multiple convictions for two or more offences which arise out of the same criminal action or where the circumstances of the offences essentially apply to the same wrong. In this case, since all three offences arose from the same occurrence and all were variations of sexual assault, the Crown and defence agreed that the Kienapple principle applies but disagreed on which of the three offences should be stayed.
The Crown argued that the counts of sexual interference and invitation to sexual touching should be stayed but the count of sexual assault should be held against the defendant. This argument was based on the Crown’s view that sexual assault is defined as a “serious personal injury offence” under the Criminal Code s. 752, unlike the offence of sexual interference. The Crown prosecutor further stated a concern that if the count of sexual assault were stayed, it would prejudice the Crown’s application to have the defendant designated to be a dangerous offender under 752.1(1) of the Code.
With respect to differences in the treatment of sexual interference and sexual assault, the Criminal Code s. 752(1) states:
On application by the prosecutor, if the court is of the opinion that there are reasonable grounds to believe that an offender who is convicted of a serious personal injury offence or an offence referred to in paragraph 753.1(2)(a) might be found to be a dangerous offender under section 753 or a long-term offender under section 753.1, the court shall, by order in writing, before sentence is imposed, remand the offender, for a period not exceeding 60 days, to the custody of a person designated by the court who can perform an assessment or have an assessment performed by experts for use as evidence in an application under section 753 or 753.1.
The defence disagreed with the Crown’s argument and asserted that the charge of sexual interference is the only charge that should remain and is the more serious of the two charges as it involves sexual assault against a minor. Justice Charney agreed with the defence and further stated that sexual interference more accurately describes the actions taken by the offender against the minor complainant. The judge based his finding on the positions taken in R. v. Hussein (2017) and R. v. F.C. (2016) which similarly involved multiple sexual assault-related charges for the same action and where the Court found that the sexual interference charge was the more complete and precise description for a sexual crime against a child.
The ‘dangerous offender’ and ‘long-time offender’ designations
Following the initial conviction and pursuant to 752.1(1) of the Code, the Crown applied for an order requiring the defendant to submit to an in-custody psychiatric assessment within 60 days to determine whether the defendant may be designated a long-time or dangerous offender.
In order to determine whether there are reasonable grounds to believe that a person ‘might be found’ to be a dangerous offender, the Court must consider the following relevant portions of the Criminal Code:
Section 753(1)(a)(i)… the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour,
Section 753(1)(b) … the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.
Although Justice Charney agreed that the sexual assault charge should be stayed in this case, the judge stated that the nature of the sexual interference action taken by the defendant against the eight-year-old boy could conceivably inflict serious psychological damage on the child and therefore satisfied part of the test under 753(1)(a) of the Criminal Code.
The Crown argued that the defendant had shown a pattern of placing himself in circumstances where he has an opportunity to sexually exploit young boys. In 1989, the defendant was convicted of sexual exploitation – the act occurred during his association with the Big Brother organization, when he took pictures of a 12-year-old boy after asking the boy to remove his clothing and touch himself. Then, in 2006, he faced a second conviction for possession of child pornography and the making of child pornography, after his wife found pornographic pictures involving children on her computer. In 2012, he was again convicted for child pornography.
The defence disagreed with the Crown’s arguments and stated that the defendant’s offences do not fit a pattern of repetitive or escalating behaviour, and the only prior case involving physical contact with a victim occurred in 1989, many years prior to the current trial. Further, although possessing child pornography is not a victimless crime, it is not a violent or dangerous act and likely won’t result in injury or death or severe psychological damage to other persons. Finally, the defence pointed to a risk assessment report prepared by police after the defendant’s release from a prison sentence in June 2014. The report stated that after completing treatment programs provided in prison, the defendant displayed “a marked improvement in all areas of identified risk” and there was only a moderate risk to the public.
After considering all the evidence, Justice Charney concluded that there was insufficient evidence of reasonable grounds to believe the defendant would be found a dangerous offender. Although the possession of child pornography is viewed as a serious crime, since it creates a market and incentive for other people to produce pornography, possession of child pornography is not sexual assault and doesn’t led to an inference that the defendant is likely to sexually assault children. Further, the defendant’s possession of child pornography in 2012 did not display “enough of the unrestrained elements of dangerous conduct” to suggest likely sexual assault actions against a child in the future.
On the question of whether a person should be given a long-time offender designation, the Criminal Code s. 753.1(2) states that there is a substantial risk of reoffending if: a) the defender has been convicted of sexual interference, invitation to sexual touching, sexual exploitation, or any offences involving child pornography; and b) the offender shows a pattern of repetitive behaviour for which they were convicted, as well as a likelihood of causing injury, death or severe psychological damage to others in the future. Justice Charney found that there was insufficient evidence that there is a substantial risk that the defendant would reoffend; and therefore, he did not meet the definition of a long-time offender as defined under the Criminal Code. Accordingly, the Court dismissed the Crown’s application to have the defendant assessed to determine if he is a dangerous or long-time offender.