nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2013 SKQB 390 Date: 2013 11 21 Docket: NJ 4/2012 Judicial Centre: Regina PUBLICATION RESTRICTION: The publication of these reasons is restricted such that any information that could identify the complainants herein shall not be published in any document or broadcast or transmitted in any way. BETWEEN: HER MAJESTY THE QUEEN and OAKLEY ARNOLD MICHELIN Counsel: Erin L. Schrol and Maura Landry for the Crown Carson D. Demmans for the accused JUDGMENT DAWSON J. November 21, 2013 1. Oakley Michelin has been found guilty, after trial, of two counts of sexual assault contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46. CIRCUMSTANCES OF THE OFFENCES 2. These two offences occurred on February 25, 2011. There were two victims, J.M. and D.H. 3. Mr. Michelin and one of the victims, J.M., knew each other prior to the commission of the offence. 4. On February 25, 2011, J.M. called Mr. Michelin to ask him for cigarettes. J.M. and her friend, D.H., walked over to Mr. Michelin’s home to borrow some cigarettes from Mr. Michelin. When the two women arrived at Mr. Michelin’s home, they found that Mr. Michelin had been drinking. They thought he was drunk. The two woman stayed at Mr. Michelin’s home between ten and thirty minutes. While the women were there, Mr. Michelin touched J.M.’s breasts and vaginal area, over her clothing. Mr. Michelin also touched D.H.’s breasts and vaginal area, over her clothing. The touching was brief in both cases; matter of few seconds but no longer than minute according to D.H. Mr. Michelin asked both women to have sex with him. Both women told Mr. Michelin to stop the touching. The women left Mr. Michelin’s home shortly after the incident. THE ACCUSED 5. pre-sentence report was prepared by the probation officer and it provided pertinent background information in respect of Mr. Michelin. 6. Mr. Michelin is 61 years of age. He was born in Labrador and lived there until 1980 when he moved to Regina. Mr. Michelin is divorced and lives alone. He has no children. 7. Mr. Michelin indicates he only has one friend in Regina, but he does not see his friend very often. Mr. Michelin currently has 12 cats that keep him company. Mr. Michelin is on social assistance. He indicates he does not have any drinking or alcohol problems. 8. Mr. Michelin’s last employment was in 1992. He has been on social assistance since 1992. He indicates he has back problem. Mr. Michelin indicates that his back problem and his previous criminal record prevent him from gaining employment. 9. Mr. Michelin has previous criminal record. In 1992 he was convicted of sexual interference, contrary to s. 151 of the Criminal Code and sentenced to nine months incarceration, followed by one year probation. In 1999 he was convicted of sexual interference contrary to s. 151 of the Criminal Code, and sentenced to two years less one day incarceration followed by two years probation. Both victims of his previous sexual offences were children. 10. In addition, in 2002, Mr. Michelin was convicted of fail to comply with probation order and received $100.00 fine. In 2004, he was convicted of four charges of fail to comply with recognizance. These four charges relate to single incident where he attended the Calgary Zoo with friends and the friends’ children. Mr. Michelin was sentenced to 40 days incarceration, concurrent on each charge. 11. The probation officer conducted two risk assessments in preparing the pre-sentence report. The probation officer used the Saskatchewan Primary Risk Assessment, which is risk assessment for general criminal recidivism, to assess Mr. Michelin’s risk to re-offend generally. Using this tool, Mr. Michelin was assessed at medium risk for generalized re-offending. This tool is limited in its assistance in respect of sexual offenders, as it is generally recognized that measures used to predict general recidivism are not very effective in predicting sexual recidivism. 12. The Static-99 Risk Assessment was also employed by the probation officer. This is tool used to predict sexual recidivism. Mr. Michelin scored “one” on the Static-99 R, which places him in the low risk category for being charged or convicted of another sexual offence. CROWN AND DEFENCE POSITION ON SENTENCE 13. The Crown submits that sentence of two years incarceration, followed by three years probation would be an appropriate sentence in the circumstances for Mr. Michelin. The Crown filed the case of R. v. Bird, 2008 SKCA 65 (CanLII), 310 Sask.R. 222 in support their position on sentence. 14. Crown counsel, in sentencing submissions, suggested that Mr. Michelin’s criminal record establishes pattern of sexual assaults. Ms. Landry also suggested that an aggravating factor here is the fact that one of the victims, J.M., has severe cognitive impairment. Ms. Landry also suggested that Mr. Michelin’s previous relationship with J.M. established pattern of grooming. 15. Defence counsel acknowledged Mr. Michelin’s criminal record, but suggested that it does not establish pattern of behaviour, as there has been 14 years since Mr. Michelin’s last conviction for sexual interference. Defence counsel suggested that the court should impose sentence of probation. Defence counsel filed the following cases in support of that position: R. v. Ashby, 2011 SKQB 369 (CanLII), 384 Sask.R. 81; R. v. Epp, 2005 SKPC 71 (CanLII), 267 Sask.R. 191; R. v. Hayko, 1998 SKCA (Sent. Dig.) 58; R. v. Iron, 2005 SKCA 84 (CanLII), 269 Sask. R. 51. THE LEGISLATION 16. Section 718 of the Criminal Code sets out the purpose and principles of sentencing as follows: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. 17. As well, s. 718.1 and 718.2 are relevant to sentencing: 718.1 sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 court that imposes sentence shall also take into consideration the following principles: (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) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner, ... (b) sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; ... (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. 1. Is Mr. Michelin eligible for conditional sentence order? 18. The relevant provisions of the Criminal Code in force at the time of these offences do not allow a conditional sentence. The offence took place on February 25, 2011. The relevant provisions of the Criminal Code in force at that time (for the period between December 15, 2010 and April 14, 2011) read as follows: Imposing of conditional sentence 742.1 If person is convicted of an offence, other than serious personal injury offence as defined in section 752, terrorism offence or criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more or an offence punishable by minimum term of imprisonment, and the court imposes sentence of imprisonment of less than two years and is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the offender's compliance with the conditions imposed under section 742.3. 19. Section 752 provided this definition of "serious personal injury offence": 752. In this Part, nan "serious personal injury offence" means ... (b) an offence or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with weapon, threats to third party or causing bodily harm) or 273 (aggravated sexual assault). 20. Section 271, at the time of these offences, provided: 271. (1) Every one who commits sexual assault is guilty of (a) an indictable offence and is liable to imprisonment for term not exceeding ten years; ... 21. As stated, at the time that Mr. Michelin committed these offences, s. 742.1 of the Criminal Code precluded the use of a conditional sentence order for a “serious personal injury offence” which carried a maximum penalty of 10 years, when that offence was prosecuted by indictment. Sexual assault was defined as “serious personal injury offence” in s. 752. The offence of sexual assault under s. 271 carries maximum penalty of 10 years. Mr. Michelin was prosecuted by indictment here. conditional sentence order is not available in this case. (Also see R. v. Tuffs, 2011 SKQB 441 (CanLII), 381 Sask. R. 151, at para. 6, [varied 2012 SKCA (CanLII), 385 Sask. R. 178]). 2. What is the appropriate range of sentence? 22. The Crown and defence both filed cases setting out various sentences. In addition to these cases have considered other sentencing decisions to determine the range of sentence for sexual assaults similar to the facts in this case. 23. The Saskatchewan Court of Appeal in R. v. Revet, 2010 SKCA 71 (CanLII), 350 Sask. R. 292, said the following about sentencing in relation to major sexual assault: [24] This Court has repeatedly held that in major sexual assaults involving adult offenders and victims, three years would be considered starting point from which sentencing judge should start, increasing or decreasing the term according the aggravating and mitigating factors: R. v. A.W.C.,2007 SKCA 87 (CanLII), 304 Sask. R. 224, and the cases cited therein. [25] In this case, useful comparison may be made with sentences for sexual assaults upon women who were incapable of giving consent at the time of assault due to being under the influence of alcohol, drugs or sleep, or combinations thereof. These have been treated by this Court as sexual assaults drawing the same starting point sentences as those in all other major sexual assaults: R. v. A.W.C. [26] There is no reason why the same starting point should not be used in case such as this. Sexual assaults upon children are at least as high in terms of gravity, if not higher, than sexual assaults upon adult persons. 24. Other cases also provide guidance. In R. v. Hayko, supra, (a somewhat dated case) the accused was 26 year old single male suffering from epilepsy. He had Grade to education level and drinking problem. He was employed at low level position in his father’s company. During the course of his employment, the accused sexually assaulted and harassed four female employees over period of two years. This involved touching the complainants’ breasts and buttocks, kissing them, and brushing against their bodies. The accused used his status as the boss’ son to intimidate the complainants. The accused did not appear to have prior record. The accused entered guilty plea at the preliminary hearing. The original sentence of $2,000.00 fine and 18 months probation was upheld on his appeal, with the Court of Appeal noting that “certain leniency” had already been granted to the accused. 25. In R. v. Iron, supra, the complainant was hosting joint stag/stagette party for the accused and his fiancé. The accused had 20 drinks over the course of the evening. The complainant awoke to find the accused on top of her. The accused kissed the complainant. He fondled her breasts and digitally penetrated her vagina. The accused had two prior convictions for assault, and persistent problem with alcohol. The trial judge imposed conditional sentence of two years less day. The Court of Appeal set aside the sentence and imposed 20 month sentence of imprisonment. Aggravating factors included lack of remorse, sleeping complainant, and small degree of violence. 26. In R. L.T.W., 2006 SKQB (CanLII), 280 Sask. R. 254, the 13 year old complainant and her sister were approached by the accused in his store. The accused told the complainant’s sister to leave the premises. The accused grabbed the complainant’s breasts from behind and squeezed them. He asked her if she would “like to go downstairs to make some money.” The Queen’s Bench Justice overturned the initial three month custodial sentence and imposed three month conditional sentence. 27. In R. v. Bird, supra, the Crown appealed sentence of 12 months imprisonment and two years probation. The 14 year old complainant was babysitting at the accused’s home at the time of the offence. She was sleeping with the infant in the room and woke to find that the accused had removed her clothing. He fondled and kissed her breasts, stomach, and neck for 30 minutes. He threatened to kill her if she told anyone what had happened. The accused had 16 prior convictions, including convictions for sexual assault and indecent assault. The Court of Appeal held that the crime was serious with many aggravating factors. The Court of Appeal commented that sexual assault on minor will be treated with the utmost seriousness and must be subject to substantial periods of imprisonment, even where the accused is without criminal record. sentence of 30 months imprisonment was imposed. 28. R. v. Clark, 2008 SKQB 443 (CanLII), 326 Sask. R. 294 concerned an appeal from summary conviction. The accused was convicted on number of offences, including three convictions for sexually assaulting 14 year old children. global sentence of two years less day served in the community was imposed. The sentence was upheld on appeal from the Crown. The assaults did not involve penetration, but the accused was in position of trust. 29. R. v. Chrispen, 2009 SKCA 63 (CanLII), 331 Sask. R. 212, is instructive for cases involving brief sexual contact over clothing. The accused was initially sentenced to nine months incarceration. The accused’s appeal against sentence was allowed, with the Court of Appeal imposing nine month conditional sentence. 30. In Chrispen, the 18 year old complainant had advertised her vehicle for sale. The accused contacted her and arranged test drive. During the test drive, the accused braked suddenly on two occasions, putting his arm across the front of the complainant’s body, ostensibly in an effort to protect her. On both occasions, his arm touched the complainant’s upper chest. When the test drive was finished, the complainant sat in the drivers seat. The accused told the complainant that he had forgotten his phone in the vehicle. The accused reached across the complainant to retrieve the phone. In doing so the accused squeezed both of the complainant’s breasts over her T-shirt. The Court of Appeal noted that the offence was “at the lower end of the spectrum with respect to sexual offences that involve inappropriate touching. There was no violence and the touching was brief and took place over clothing” (ibid at para. 26). The court noted the offence was not committed against child and the accused was not in position of trust in relation to the complainant. The offence was singular incident, and the parties had no previous relationship. There was no historical or ongoing abuse. The criminal record of the accused was dated, but included over 40 break and enter and theft convictions for which he was sentenced to significant period of incarceration in 1994. He had no prior record for sexual offences. The court found that this was single incident of sexual touching that occurred over few seconds. The accused was assessed as low risk to re-offend. The Court of Appeal held that “the appropriate range for offences of this nature is conditional sentence ranging between three and twelve months” (ibid at para. 42). 31. In R. v. Tuffs, 2012 SKCA (CanLII), 385 Sask. R. 178, the Saskatchewan Court of Appeal spoke of the difference between sentence involving fleeting touching and one involving the use of physical force. In Tuffs, the complainant was an off-duty R.C.M.P. officer and the accused was local businessmen. Both attended house party. The complainant was sleeping in the basement when the accused moved onto the bed behind her, placed his hands down her pants, and touched her vagina. The accused grabbed the complainant’s hair to force her head around in an attempt to kiss her. There was no penetration. The incident took between thirty seconds to few minutes. The trial judge ordered suspended sentence and 18 months probation. The Court of Appeal varied the sentence, with Lane J.A. noting: 10 We are all of the view that sexual assaults of this nature should draw period of incarceration and, therefore, the sentence imposed was demonstrably unfit. The respondent used physical force which distinguishes this case from the cases of fleeting touching. (See, for example, R. v. Chrispen, 2009 SKCA 63 (CanLII), 331 Sask. R. 212 where conditional sentence was imposed.) ... 12 However, we agree with the trial judge this was case of sexual assault on the lower end of the scale. Although there was claim of bruising, the testimony of the investigating officer said it was slight and there was more of "redness." The duration of the incident was very brief, perhaps as little as 30 seconds and, after the complainant pushed off the respondent and told him to go upstairs, he said he was sorry and left. This is not to minimize the effect on the complainant who filed victim impact statement stating she was required to take time off work and was afraid of noises or movement when sleeping as such would scare her out of her sleep. She said she was forced to see psychologist and hated being left alone in the house. She said she found it extremely hard to leave the house on her own and she feared people around her, all as result of the assault. 13 We are satisfied in the circumstances of this case and, in particular, the limited force, the short duration, the lack of penetration and the immediate reaction of the respondent that he had gone too far, sentence of one year incarceration satisfies the sentencing principles and, in particular, does not offend the principle of parity. See, for example, R. v. Iron, 2005 SKCA 84 (CanLII), 269 Sask. R. 51 where the accused, with prior record including two assault convictions, fondled and digitally penetrated the victim and refused to stop until the victim pretended to cooperate was sentenced to 20 months incarceration which sentence took into account the accused having served part of the conditional sentence imposed by the lower court. The Court of Appeal in Tuffs noted the assault was still on the lower end of the spectrum, and was of short duration. The violence used against the complainant was minimal, resulting in “redness” instead of bruising. The Court of Appeal imposed sentence of one year incarceration. 32. In R. v. S.G.T., 2011 SKCA (CanLII), 366 Sask. R. 90, the accused was found guilty of sexually assaulting his 12 year old adopted daughter. The complainant awoke on two occasions to find the accused touching her vagina. On third occasion, the accused touched the complainant’s vagina while they were showering together. The trial judge’s sentence of 18 months imprisonment was upheld by the Court of Appeal. 33. In R. v. Ashby, supra, the accused appealed from conviction and sentence for charge of sexual assault. The sexual assault involved the touching of the complainant’s thigh. This was accompanied by suggestive comments that sex could be exchanged in lieu of payment for damage to the building in which the complainant had lived. Justice Schwann upheld the initial sentence of fine of $1,000.00 and nine month probation order. 34. R. T.T.L., 2012 SKPC 143 (CanLII), 407 Sask. R. 12 involved 29 year old accused who pled guilty to sexually assaulting 10 year old girl. The Crown proceeded summarily. The accused had spread the legs of the complainant and rubbed her vagina over her night clothes for few minutes. The complainant was the friend of the accused’s step-daughter. She was spending the night for sleepover. The accused claimed to have been disciplining the complainant, as he had noticed her engaging in sexually suggestive contact with his step-daughter about an hour earlier. The accused presented low risk to re-offend, either generally or sexually. However, the accused minimized his actions by claiming they were of disciplinary nature. Furthermore, he had no empathy for the effect of the offence on the complainant. Aggravating factors included the abuse of person under 18. However, there was no abuse of trust. The Provincial Court sentenced the accused to six month custodial sentence and one year probation. 35. R. v. Martell, 2012 SKPC 47 (CanLII), 392 Sask. R. 131 involved an accused with no prior record. The sexual assault was against an adult female. The Crown proceeded by indictment. The accused and complainant had attended wedding at Elk Ridge Resort where they, among others, had shared rented cabin. The accused had 15 alcoholic drinks during the evening. The complainant went to bed around 3:00 a.m. and fell asleep naked beside her boyfriend. The accused came into the bedroom, fondled the complainant’s breasts, removed his pants, and positioned himself on top of her. When the complainant awoke she participated briefly until she became aware that the accused was not her boyfriend. The assault lasted 20 seconds. The accused stopped immediately when the complainant indicated her lack of consent. The accused was chased out of the room by the complainant’s boyfriend, who proceeded to render beating unto the accused. There was no evidence of penetration or physical injury. The accused was sentenced to nine month incarceration, coupled with two years probation. 36. In R. v. R.L., 2013 SKPC 80 (CanLII), [2013] S.J. No 370 (QL), the accused pled guilty to assault under s. 266, prosecuted by way of indictment. Although charged with assault, the accused’s conduct was of distinctly sexual nature. The complainant was two months shy of her eighteenth birthday. The accused was her 58 year old uncle. She looked to him as father figure. At his home, the accused pushed the complainant onto his couch, and attempted to take off her clothes. The complainant began crying, but soon stopped as she felt helpless. The accused got on top of the complainant and attempted to undo her pants. The accused touched the complainant’s breasts and vaginal area over her clothing while touching himself under his pants. The accused denied the offence, and blamed the complainant. The accused was self-employed as carpenter. He was medium risk for re-offending generally, and high risk to re-offend sexually. The accused had lengthy, although dated, record for assault, gross indecency, indecent assault, sexual assault, and assault causing bodily harm. There was 17 year gap between offences; and the last sexual assault charge was 26 years prior. The accused was sentenced to 14 months incarceration followed by 12 months probation. 37. In R. v. A.B., 2013 SKQB 56 (CanLII), 413 Sask. R. 185, the accused was charged with sexual interference for touching, rubbing, and hugging 12 year old complainant over blanket. He later kissed her. The accused had criminal record for spousal assault. He was assessed as very high risk to re-offend, both sexually and violently. The accused was sentenced to nine months imprisonment and one year probation. 38. As can be seen from the cases, sentences for sexual assaults, at the lower end of the spectrum, that involve inappropriate touching range from sentence of fine up to sentence of 30 months incarceration. Many of the cases referred to involved the imposition of conditional sentence, which sentence is no longer available. However, those cases are still relevant as they suggest the appropriate period of custodial sentence, albeit at the time of those cases, the sentence was to be served in the community. The Saskatchewan Court of Appeal has indicated, however, that sexual assaults, even assaults on the lower end of the scale should draw period of incarceration. 3. What is the appropriate sentence for Mr. Michelin? 39. will deal firstly with the positions taken by the Crown on sentencing. The Crown bears the onus of proving any fact not admitted. It is the position of the Crown that the record of Mr. Michelin establishes pattern of sexual assaults. The defence counsel takes issue with this characterization. The Crown called no evidence other than the accused’s record on this issue. Mr. Michelin has two previous convictions of sexual interference on children. The most recent of these convictions was 14 years ago. am not satisfied that Mr. Michelin’s record establishes such pattern. 40. Crown counsel also took the position that it is an aggravating factor that J.M. is severely cognitively impaired. Ms. Landry argued, in oral argument, that J.M. was severely impaired. In written argument, the Crown asserted J.M. had noticeable cognitive impairment. J.M. testified at the trial. At the trial, both Crown counsel and defence counsel identified that J.M. had some cognitive impairment. However, neither suggested that J.M. was severely cognitively impaired. Neither counsel had any concern as to J.M.’s capacity to testify and did not suggest that it was necessary for the court to make any inquiry into her capacity or ability to testify. Having heard J.M.’s evidence, it was evident that she had some cognitive issues, but she was not, in my view, severely cognitively impaired. 41. Crown counsel also asserted that Mr. Michelin’s conduct established pattern of grooming in relation to J.M. The only evidence in respect of Mr. Michelin’s relationship with J.M. was from the trial. The evidence did not bear out this position taken by the Crown. There was evidence that J.M. had been involved previously in short relationship with Mr. Michelin. However, the evidence from J.M. appeared to indicate that it was consensual relationship and that the relationship ended consensually. After the relationship ended, J.M. and the accused continued to be acquaintances, such that J.M. sought out Mr. Michelin to get cigarettes and went to Mr. Michelin’s home to borrow cigarettes. The evidence did not indicate that D.H. had any prior acquaintance with Mr. Michelin. am not satisfied there was evidence of grooming. 42. In addition, Crown counsel, Ms. Landry, also challenged the probation officer’s assessment that Mr. Michelin was low risk to re-offend. However, Crown counsel, Ms. Schrol, acknowledged that the Crown was accepting that risk assessment. 43. The case filed by the Crown in support of its position on sentences is the case of R. v. Bird. The circumstances of Bird are far more egregious than the circumstances here. In Bird, the accused assaulted his 14 year old babysitter, who was babysitting in his home. The accused came home and found the victim sleeping with the accused’s infant. The accused removed the victim’s clothing, fondled her breasts, stomach and neck for 30 minutes. This was skin to skin touching. The accused threatened to kill the victim if she told anyone. The accused was in position of trust and the victim was child. The accused had 16 prior convictions, including convictions for sexual assault. Mr. Bird was sentenced to 30 months. 44. The circumstances of the offences here fall on the low end of the sexual assault spectrum. Mr. Michelin was found guilty of touching the breast and vaginal areas of the two complainants. The touching occurred over the complainants’ clothing. There was no skin to skin contact. The incident occurred over a very brief period of time, being a matter of seconds, but no longer than a minute. The touching was fleeting, to use the terminology used by the Court of Appeal in Tuffs. However, unlike the facts in Tuffs, there was no physical force used. In this case, Mr. Michelin did not use violence. Mr. Michelin did not threaten either complainant. Neither complainant was physically harmed. The offence was simply touching. In Tuffs, there was skin to skin touching and physical force used, resulting in redness. The offence also had significant impact on the victim in Tuffs. 45. Mr. Michelin was not in position of trust or authority in relation to either of these complainants. Both complainants were adults at the time of the offence. It was the complainants’ idea to come to Mr. Michelin’s home. Both complainants left Mr. Michelin’s home after the incident, at time of their choosing. 46. Only J.M. filed Victim Impact Statement. J.M. said she simply wants to be away from Mr. Michelin. 47. The mitigating factors here include the fact that Mr. Michelin has been released for two and one-half years on his own recognizance and has abided by all conditions. It is mitigating that Mr. Michelin was assessed as low risk to re-offend. It is also mitigating that the facts of the offence are on the low end of the spectrum. 48. The aggravating factors here include that Mr. Michelin has two previous convictions for sexual offences. It is also aggravating that there were two victims, one of whom had some cognitive disability. 49. The Saskatchewan Court of Appeal has been clear that sexual assaults, even those on the low end of the spectrum, attract custodial sentence. Taking into consideration both the aggravating and mitigating circumstances, the principles of sentencing, the facts, the circumstances of Mr. Michelin, the jurisprudence and the principle of totality, I am satisfied a sentence of one year on each count, to be served concurrently, followed by two years of probation, with conditions, is appropriate. 50. As such, I sentence you, Oakley Michelin, to a sentence of one year on each count, to be served concurrently, followed by two years probation with the following conditions: (a) to keep the peace and be of good behaviour; (b) to appear before court when required to do so by the court; (c) to notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation; (d) to report to probation officer within two working days after release from custody and thereafter when required by the probation officer and in the manner directed by the probation officer; (e) to remain within the jurisdiction of the court unless written permission to go outside the jurisdiction is obtained from the court or the probation officer; and (f) subject to the program director’s acceptance of Mr. Michelin, participate actively in and not cause to be discharged from sex offender treatment program approved by the province. 51. The Crown has asked that make an order under s. 487.051 of the Criminal Code for the taking of DNA samples. Pursuant to s. 487.051(2), the court shall make such an order unless Mr. Michelin has established that the impact of such an order on his privacy and security would be grossly disproportionate to the public interest. Mr. Michelin, here, did not seek such an exemption. There will be an order pursuant to s.487.051 authorizing the taking of samples of bodily substances that is reasonably required for the purpose of forensic DNA in accordance with that section. 52. There will also be an order pursuant to s. 109 of the Criminal Code prohibiting Mr. Michelin from possessing any firearm, crossbow or prohibited weapon and restricted weapon, prohibited device, prohibited ammunition and explosive substances for period of ten years. 53. The Crown also seeks an order pursuant to s. 490.012(1) requiring Mr. Michelin to comply with the Sex Offender Information Registration Act, S.C. 2004, c.10. Mr. Michelin has not suggested that such an order would impact his privacy or liberty or would be grossly disproportionate to the public interest. As such make an order in respect of Mr. Michelin under s. 490.012(1) for period of 20 years. J. C.L. DAWSON
HELD: The Court sentenced the accused pursuant to s. 742.1 of the Criminal Code in force at the time of the offence that precluded the use of conditional sentence order for a serious personal injury offence, which included sexual assault. The Court found that the offences fell on the low end of the sexual assault spectrum as there was no skin to skin contact, the contact was brief and without violence or threats. The aggravating factors were that the accused had two previous convictions for sexual offences and that one of the victims had some cognitive disability. The accused was sentenced to a term of one year imprisonment for each count, followed by a term of probation of two years. The sentences were to be served concurrently.