R. v.

Sutherland, 2006 CarswellOnt 8740

2006 CarswellOnt 8740

2006 CarswellOnt 8740

Ontario Superior Court of Justice
R. v. Sutherland
2006 CarswellOnt 8740

Her Majesty the Queen v. Dwayne Sutherland

Riopelle J.
Heard: August 11, 2006
Judgment: August 11, 2006
Docket: Timmins 14335/05
Counsel: Mr. Wayne O'Hanley, for Crown
Mr. Ted Tichinoff, for Accused
Subject: Criminal
Related Abridgment Classifications
For all relevant Canadian Abridgment Classifications refer to highest level of case via History.

Headnote
Criminal law --- Offences Sexual assault General offence Sentencing Adult offenders

Riopelle J., (Orally):

1 A jury of 12 strangers have declared that some of things you did to these young girls were not only socially inappropriate,
but, in fact, they amounted to criminal conduct. This jury was generous to you, returning verdicts of not guilty on the more
serious allegations against you.
2 The charges on which you were found guilty are not only socially inappropriate conduct but the significant thing is that it
is criminal conduct. Parliament and this community through the jury consider it to be criminal.
3
These proceedings have, no doubt, been a nightmare for you, your wife, your family, a profound embarrassment. It has
affected, I am sure, your social life, your association, your career with the sea cadets and their families and the friends that
you made there. It has also affected your family finances because you have had to defend these allegations against you. So,
I hope that these proceedings have been a wake-up call for you. You will have to re-evaluate your views of what is socially
inappropriate as opposed to what is criminal conduct. You have paid a dear price to have the difference laid out for you. I hope
that you were paying attention.
4 There are two convictions of sexual assault. They arise out of the same kinds of circumstances. You are a volunteer officer
with the sea cadet organization. Part of your responsibilities there were as a coach of the biathlon team and the gun range rifle
team. There are allegations of misconduct against you in the performance of those responsibilities. In the case of one of the
victims, it was a slap on the bum in the wax shack and in the case of the other victim it is one of three separate events, either
a slap on the bum or the swiping of the breast while pulse taking at the ski hill or it was perhaps touching of the breast when
you were helping her after an accident or a bad fall on the hill. I am going to assume, from the evidence, that the jury found
you guilty of the less serious of those three charges. It is open to a judge when the trial was before a judge and jury to not only
consider the less serious allegations against you but to decide that the jury may have found the more serious charges against
you to be the case. Section 724.2 of the Criminal Code gives me that discretion but I am not exercising it in this case.

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R. v. Sutherland, 2006 CarswellOnt 8740

2006 CarswellOnt 8740

5 The touchings were always over clothing. There was no touching of genitalia. In fact, in one of the incidents there were two
other girls present on the touching of the bum. What makes it reprehensible is that you were a person in a position of authority.
In the structure of the military you had certain authority over these girls. You were an officer. You were also their coach. You
decided on the composition of the teams, who would be on the team and who would be kicked off the team. You decided who
would go to competition and who would not go to competitions. You are 36 years old now but at the time of the offences were
34 or 33 years old. These children were 14 and 15 years old. They relied on you. You have heard from their impact statements
what impact this has had on them: academically they are having trouble at school, socially things are not the same between
them and their friends at cadets, and even their other friends at school, the loss of employment, different relationship with their
parents, loss of trust in people of authority. Their future relationships with men may be affected by this. The impact that it has
had, not only on the two young girls but the people who love them, their parents, their sisters, their grandparents. You may
have thought that these were innocent small events, but you now see that there are significant consequences involved, not just
to you and your family, but to the victims and their families.
6
When a person is convicted of sexual assault Parliament mandates a few rulings that I have to make. One of them is
called a section 109 Weapons Prohibition. That will affect you because you are a rifle/gun range person. For a period of ten
years you will not be allowed to possess any firearm, crossbow, ammunition, explosive substance. For the rest of your life you
will not be allowed to possess prohibited firearms, restricted firearms, prohibited weapons, prohibited devices. Within ten days
you are to turn in to the police all of your weapons, all of your ammunition, all of your permits and certificates relating to any
weapons that you may own personally.
7 The second thing which I am obligated to do according to Parliament is to make an order that you submit to DNA testing.
There has been a joint submission by the prosecutor and the defence that in their view this is one of those cases where it may
not be necessary for me to make that order. I disagree. The legislation is mandatory. The offences with which you are convicted
are what they call "primary designated offences". The presumption is that you must therefore submit to DNA testing. It is a
rebuttable presumption. You can have it set aside if you produce evidence that submitting to DNA testing is inappropriate
because of the circumstances of the offence, it being a low end offence, because of your personal circumstance or because
somehow or other the testing is something which will cause you some harm. Harm can be caused to you personally because it
is an invasive procedure but the procedure is so simple. It is a one time thing. It is a very simple test, so it is difficult for me
to accept that that would be a problem. What is more important is the informational privacy component of the DNA testing. It
was open to you and to your counsel to submit to me, through evidence, that there would be some informational prejudice or
risk to you if your DNA is entered into the federal data bank. I have no discretion but to impose the DNA testing. There will
be an order that you submit to DNA tests and that the results be entered into the national databank.
8
You have also heard that there is a federal sexual offender's registry. That is not mandatory: it is up to the prosecutor to
request the judge that you register with that system. The prosecutor has made that request and therefore you will be subject to
the requirement of the federal Sex Offender Registrations Act. Within 15 days you must register with the police and then report
to them annually. That will last for the next 20 years of your life.
9 With respect to the Ontario legislation, known as Christopher's Law, there too, you have 15 days within which to register
as a sex offender but you will have to report to them annually, for the rest of your life, not just for 20 years.
10
Parliament has decided that for sexual assaults the maximum jail term is ten years. No minimum is prescribed. The
prosecutor and the defence have agreed that in the circumstances of this case a suspended sentence would be appropriate, with
probation for one year. I am not bound by arrangements made by the prosecutor and the defence. If I think the arrangement
is too severe then I can lessen the impact on you. But if I think, as I do in this case, that the arrangement is too generous to
you, I can increase the penalties as agreed to between them. I am not bound by their agreement. I have heard the victim impact
statements. I have considered your circumstances and the circumstances of the offences. I know that you have a young daughter.
I know that you have a responsible job. You have never been in trouble before. I really do not expect to ever see you back here
again. Rehabilitation is not a concern for you. Specific deterrence and general deterrence are not important factors in this case.
Separation from society by way of a jail term is not an important consideration. If there had been on your part any indication of

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R. v. Sutherland, 2006 CarswellOnt 8740

2006 CarswellOnt 8740

remorse for the pain and the suffering that you have caused to these young girls, I probably would have considered a conditional
discharge. Without any such indication, reluctantly, I will agree to what the prosecutor and the defence have requested and
I will grant you the suspended sentence with probation for one year, on condition that you have no contact at all, directly or
indirectly, with the three alleged victims in this case; that you keep the peace and be of good behaviour, in other words, that
you not get in trouble for the next year. If you get in trouble in the next year, I will be able to sentence you for that, which, as
you have heard, in this jurisdiction, is a minimum 30 day jail term, but I will also be able to sentence you again on this matter
and you already know my view that the deal worked out between the prosecutor and the defence is too generous to you.
11
I remind everybody that there is still a publication ban in effect so that the names of the victims in this case are not to
be published, transmitted or broadcasted in any way.

End of Document

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reserved.

Copyright Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved.