Case Name:

R. v. Davis
Between
Her Majesty the Queen, and
Danny Davis
[2009] O.J. No. 6449
Information Nos. C1100-07, C2371-07, C2404-08,
C828-07 and C2316-08
Ontario Court of Justice
Cornwall, Ontario
P.R. Adams J.
Oral judgment: November 24, 2009.
(82 paras.)
Charges: s. 156 x 8, 157 x 11, 246.1(a), 246.1(1) x 3 - Criminal Code of Canada
Counsel:
J. Pilon: Counsel for the Crown.
L. O'Brien: Counsel for the Accused.
REASONS FOR SENTENCE
1 P.R. ADAMS J. (orally):-- The sentence of Mr. Danny Davis involves historical sexual offences
committed over an extended period of time. The acts committed were on adolescent boys between the ages
of 13 to 16, and Mr. Davis was a person in authority and the offences occurred at a time when he was
between the ages of 19 to 32 years of age.
2 The Crown election was by indictment and the accused elected to proceed in the Ontario Court of
Justice, and Mr. Davis entered guilty pleas to three counts of gross indecency, contrary to s. 157 of the
Criminal Code as it then was.
3 The sentence submissions were made on November the 17th of 2009 and there was an agreed
statement of facts which was filed as an exhibit in the proceedings before me.
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4 Although the agreed upon statement included facts relating to PM or complaint number two, I have
omitted consideration of these facts in my decision in this sentence hearing. The accused, at the time, was a
juvenile himself. He was between the ages of 15 and 16 years. The victim impact statement and the facts
should be considered separately as a juvenile matter after sentence has been completed in these matters.
5 Exhibits were filed including the pre-sentence report from the Probation and Parole Officer Jim
Stienberg, on July the 23rd of 2009; the Sexual Behaviour Assessment Report from Dr. Gray, the staff
psychiatrist at the Royal Ottawa Hospital, on July the 27th of 2009; and all of the victim impact statements.
6 Both, the Crown and the defence, agree to the following orders: a DNA order, a s. 109 order for 20
years, a s. 490.012 order for ten years, and a s. 161 order for lifetime. And I agree with the submissions
relating to the orders and the conditions attached and all the orders shall go as of today's date.
7 The sole issue remaining in the sentence of Mr. Davis, in this hearing, is whether the sentence on the
charges outlined in the agreed statement of facts should be a period of incarceration in the penitentiary or a
reformatory period to be served in the community under s. 742 or what's known commonly as house arrest.
8 The Crown position is that a period of three and a half years in custody is appropriate in all of the
circumstances. The offences require a penitentiary period because of the nature of the offences; that they
are numerous, that they involve several victims, and that Mr. Davis was in a position of trust. The length is at
the lower end of the spectrum. And the Crown relies upon the various decisions mentioned in submissions.
9 The defence position is a period of nine to 15 months custody to be served conditionally under s. 742 or
under house arrest with strict conditions. The offences are at a lower end of the continuum. And the defence
relies upon various decisions also mentioned in submissions.
10 There is a positive report from the probation officer and, as well, a positive report from the Royal
Ottawa.
11 I have reviewed the entirety of the precedent presented by both counsel and I find that, first of all, that
these are the facts.
12 The agreed statement of facts, as I said, is found in the exhibits in the proceeding. And I find it
necessary, however, to review some of the points that were made.
13 Mr. Davis was a lieutenant with the Stormont, Dundas & Glengarry Highlanders Cadet Corps. He was
born on March the 19th of 1954.
14 When he was 20 to 21 years of age, he told 13 year old VR that if he did what he was told to do then
he would become a corporal. He was told to lie on a cot and lower his trousers. Mr. Davis performed fellatio
on him but VR couldn't have an erection. Mr. Davis became verbally abusive. It was the winter and VR left
the building and left without his overcoat. Shortly thereafter, VR quit the Cadet Corps. At the time, VR was
considered a child under s. 140 of the Criminal Code. And further, at the time, he was unable to consent to
any activity under s. 157 because of his young age.
15 When Mr. Davis was 21 to 24 years old, he met 15 year old SF at the Corps. He befriended SF and
took him home after cadet meetings. He didn't go straight home. He took SF to a secluded area and on two
occasions instructed SF to lower his pants. SF felt compelled to do so. Mr. Davis fondled SF and performed
oral sex on him. SF thought that it was consensual and after speaking with a psychologist concluded that the
age difference was inappropriate. After the second incident, SF quit air cadets and had no ties with Mr.
Davis. At the time, SF was unable to consent to activity or any activity under s. 157 of the Criminal Code
because of his young age.
16 Between February the 1st of '85 to September the 30th of '86, Mr. Davis called a 16 year old JB at
home on the telephone and told him to attend the Cornwall Armouries to get his uniform. Lt. Davis was in
charge of uniforms at the time.
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17 The agreed statement says that Mr. Davis was 28 to 29 years of age. But after February 1995,
however, given his date of birth being March the 19th of '54, Mr. Davis was in his early thirties.
18 When he arrived, Mr. Davis was the only one there. JB was escorted to the basement quartermaster's
area and was told to disrobe and lay on a blanket. Mr. Davis then fondled JB's genital area and performed
fellatio on JB. This happened on two other occasions. After the third time, JB resigned the cadets. And
finally, JB was unable to consent to any activity under s. 157 of the Code by virtue of the then s. 158(1)(b)
and s. 158(2).
19 When Mr. Davis was in his early thirties he met JG, who was 13 or 14 at the time. JG was at an
excursion for cadets at the Ipperwash Military Base. JG knew Mr. Davis to be a senior officer. After suffering
a groin injury because he was at a soccer game, JG got an ice pack and went to his barrack and lied on his
bunk. Mr. Davis entered the barrack, walked directly to JG's bunk, removed the ice pack and cupped his
testicles. The following day, JG reported the incident to the Commander.
20 In this matter, the Crown withdrew the information and counsel agreed that it be part of the agreed
facts. The accused asserts that the incident had no sexual value as it was an investigation to see if JG was
all right at the time. I have reviewed the 1970 decision of the Ontario Court of Appeal in Garcia. Although I
find it peculiar that this 30 year old with no medical experience would walk up to a 13 year old JG's bunk and
cup his testicles, I am unable to conclude, without the benefit of a trial or a finding of guilt, that this portion of
the agreement of facts as sexual in nature, and I will not do so. However, I will read his statement later in my
reasons as part of the agreed facts.
21 As well, the facts included the assertion that the accused told the police in 2007 during their
investigation that his memory was bad. But he offered, however, the names of two other boys that he
admitted to having sexually assaulted. And the police were not able to locate them.
22 Finally, the agreed statement says that all sexual misconduct occurred without physical coercion.
Instead, the victims felt that Mr. Davis's senior rank, his large physical structure, and his adult status carried
the weight.
23 In summary, these offences occurred between 1974 and 1986 which is a 12 year time period. The
victims of crime were between the ages of 13 to 16 years of age. During those offences, Mr. Davis was
between the ages of 20 to 32 years of age. The offences were numerous in that there were at least five
described. Mr. Davis was a person in authority throughout the time period as a lieutenant for the Cadet
Corps, and in each of the offences he was older than the victims.
24 Now, when I consider the offender I consider that Mr. Davis is now 55 years of age and lives alone. He
has no criminal record. He's no longer a member of the Cadet Corps. He is not working. He told his probation
officer that he attributes part of this behaviour with these offences on this parents and his mother in particular
who suggested that he not be involved in sexual intercourse before marriage because of possible pregnancy.
He finished high school and attended Community College on two different occasions. The last time was in
1989. His longest job over the years was approximately one to two years. He is currently on a pension from
Ontario Disability Support Program because of his back problems. He has no evidence of substance abuse,
alcohol or drugs. He is remorseful in that he has entered guilty pleas. He told the probation officer that he is
aware that the victims must feel betrayed and are angry with him. And he suggested they may feel
depressed, lonely, and isolated on occasion. And he has never breached his bail conditions.
25 The assessment in the pre-sentence report suggests that Mr. Davis has been convicted for historical
sexual offences while an adolescent. I disagree with the description that he was an adolescent. Adolescent is
one who is growing up between childhood and manhood. And the victims of these offences were in
adolescence, but Mr. Davis began these offences when he was 20 or when he began adulthood. And he was
in his thirties when the last two matters were explained in the agreed statement of facts.
26 Mr. Davis has been involved in his community up to the date of the charges.
27 Mr. Davis told his probations officer that he is aware that he breached a trust when he became sexually
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involved with the victims. He was found to be remorseful and regrets the actions. He said that he was
sexually abused by a faith leader who is now deceased. And he said that he never provided this information
to the authorities, and he did not provide the name of the perpetrator to anyone.
28 In summary, the experienced probation officer concludes that in the event the court considers such, Mr.
Davis would be a suitable candidate for community supervision.
29 I do not consider this suggestion to be inappropriate. Mr. Stienberg said specifically his opinion is
made, " ... should the court consider this as a sentencing option". In fact, I find that any and all information
relating to sentence especially from an experienced probation officer such as Mr. Stienberg, to be of
assistance for me in making my ultimate decision.
30 Dr. Gray, the staff psychiatrist from the Royal Ottawa, prepared a sexual behaviour assessment of Mr.
Davis under s. 21 of the Mental Health Act. He reviewed the facts and met with Mr. Davis. Mr. Davis told him
of his past sexual history by a priest in the 1970's, and he said that he was 11 or 12. Not discussed was the
apparent contradiction in his age as Mr. Davis, born in 1955, would have been at least 14 and upward in the
70's. But Dr. Gray performed biochemical laboratory tests relating to blood, alcohol, and medical illness and
found no abnormalities.
31 A series of self-reported psychological questionnaires were completed. On the Derogatis Sexual
Functional Inventory, Mr. Davis performed very low indicating poor sexual functioning. Sex offenders and
people with pedophilia typically score low on various measures in this assessment. In the Buss Perry
Aggression Questionnaire, were found no problems with anger. There were no problems with alcohol abuse
in the Michigan Alcohol Screening Test. He showed that his scores on cognition scales in the Bumby
Cognition Scales which were consistent with cognitive distortions which may serve as rationalizations for
sexual offences. And on the Paulhus Deception Scale, which was a measure to create a favourable
impression of himself or is unaware of his character deficiencies, he scored a very high and his overall scale
was a high average.
32 Mr. Davis performed phallometric testing. After various tests, Dr. Gray concluded that Mr. Davis's
scores were relatively low, below the level of clinical significance and did not show any clear evidence of
sexual preference. The second level confirmed the first level.
33 The objective risk assessment included scorings on the Static-99 which estimates groups of men but
not specific predictions for individuals. Mr. Davis is in the medium low actuarial risk category. He scored two.
And even those who score zero have a predicated recidivism rate of 13 per cent in ten years. And his was
19.1 per cent.
34 The opinion on the DSM-IV TR Diagnosis shows the following:
On Axis II, Mr. Davis meets some of the criteria of schizoid personality disorder but not
full criteria.
On Axis III, he suffers from degenerative disc disease.
On Axis IV, he has relationship difficulties and social isolation.
And on Axis V, his global assessment of functioning is 65.
35 Dr. Gray said that Mr. Davis's explanation of what motivated him to commit the offences was odd. His
main problems were interpersonal deficits and problems with communication. And he seemed unaware that
the offences involved a breach of trust. He saw them as consensual.
36 Finally, in Dr. Gray's clinical opinion, Mr. Davis is a medium low risk to reoffend.
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37 I heard in the sentence hearing from our victims in this matter. VR said that, "I thought less of myself. I
thought it was my fault. I have a hard time with persons of authority. I'm very moody and have mood swings.
One minute I'm fine, the next I'm depressed and withdrawn. I have lots of anger and it affects my
relationships with whoever I am with. Sometimes I feel I'm not worthy of happiness or joy. I feel at time very
inferior than others. I don't have friends with other males. Since I have started dealing with this it's affected
my work in many ways and lost jobs because I unblocked this from behind my mind. I have been fighting
suicidal thoughts all of my life since this horrible incident and I have seen a psychiatrist when I was younger
and later in my thirties. I was always in trouble with the law when I was younger. And it also deprived me of
an education."
38 SF said that, "I was a sea cadet at the Armouries. And I felt trust and Officer being involved with me
built up my pride in being a cadet. It was easy, he said, to get his trust." He spoke himself at the sentence
hearing, but I think it's necessary for me just to repeat a few things that I heard in addition to what he said.
He said he still has problems with trust and he always submitted to doing to doing the act of sex. "I was
always afraid that my friends would find out about it or they'd suspect it." And he was very ashamed or "I was
very ashamed of my sex and I felt that I couldn't talk to anyone. Many times," he said that, "I had felt my
friend were suspecting things that were going on. And I had very powerful negative feeling and I'd freeze up."
39 Later, he moved on with his life and he had forgotten about those things until he had joined the Armed
Forces. And during the training, the memories of what Davis did to him resurfaced. He functioned, he said,
poorly and began to withdraw. And he said, "I felt they found out by this time I started to develop a serious
stress problem." He said, "I have no children. And it's hard to trust people. And I started seeing a
psychologist who is helping me. It's going to take time. I have been taking medication for my stress condition
for the last 26 years and I'm now 48.
40 JB said that, "I lost an important part of my social and emotional support system when I dropped out of
the cadets. I feel like I was stripped of everything. I was able to work for a while and now I don't feel like
doing anything. I don't trust anybody. I can't have a social relationship with anybody, not even members of
my own family. I was used. My life would have been a lot better if it hadn't happened. I can't even enjoy sex
with my girlfriend. The abuse caused me to drop out of school. It caused me to drop out of jobs too because I
was too preoccupied with the abuse. I've worked on year in the past 12 years because I'm more preoccupied
with the abuse than before."
41 JG said that, "Having to travel back 22 years in life generates a lot of laughs along the way except for in
this case. I'm 14, at a Military camp in Ipperwash, attending a six week band camp course. In the Military you
have the recruits and you have the staff that train the recruits. These people of the staff are officers. As a
recruit, or in this case cadet, you learn to listen, obey, and most importantly respect your officers. Any
disrespect to an officer and consequences are given. Therefore, you listen and trust what is being said
without question or grievance. I remember being intimidated by Captain Davis, very businesslike. I can't
recall ever seeing him smile that much, at least around us cadets anyway.
42 As an Officer in Command of the band that summer, Captain Davis took advantage of his power. As a
14 year old teenager, he took away my innocence and left me with scars that'll last forever. Still, to this very
day, the thought of the events that were to unfold that afternoon bother me, not only about what happened to
me but the fact that it has taken 22 years before something has to be done about it or has been done about
it. Who knows how many other people he's come in contact with and taken from them their rights as humans,
to be free from such monstrosity. That summer had a permanent impact on the rest of my life. Relationships
never became easy, my family life changed and trust was and still is my biggest obstacle when dealing with
people. I never told anyone about this. I tried to forget about that it ever happened and ignore the images but
was never successful. I tried to seek counseling on a few different occasions to cope with a lot of different
emotions. I never found it helped. I even thought about dealing with these emotions by educating myself. I
went to college and became a child and youth worker. Fresh out of college I found myself working with CAS
on a case known as Project Jericho. After two to three years of helping and rehabilitating children, I couldn't
put my own issues behind me and move on. So the training and education that I received didn't help me
overcome my own ghosts, an expensive lesson. I never went back to that line of work. In the end it helped
me to a degree to understand, and through other children in helping them, I began to finally cope.
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43 Growing up I began to judge people and there preferences in their partners of the same sex. Is it
wrong, not in today's society, but you have the right to choose. The incident has affected me in many ways,
but it's also taught me to hate.
44 I have seen Mr. Davis out in public on occasion and it makes me sick to think that someone like himself
gets to live his life as he does, freely, and doesn't seem to mind the fact that he has left permanent and
emotional scars on people, and up 'til now continued to do it. The damage has already been done to the
victims of this case. So will we get any restitution out of this? Probably not. The fact of the matter is that this
disgrace of a human being will live the rest of his life knowing that his fantasies came at the expense of
others. Is there really justice in this case? My personal feelings when it comes to individuals such as this is
that they deserve nothing. Put him away in a maximum security penitentiary and leave him in the public
population. Let him feel scared for the rest of his life and maybe someday he'll get his. This man deserves to
have no dignity because he has taken away that of others. I just hope that someday I will be able to put this
behind me, but I also know that the scars from that day will remain always. I now look at my own children
and pray that I can protect them from this sort of ignorance, hoping that they will never have to face this. I
just hope that Mr. Davis will not just get a slap on the wrist and that he will be punished to the fullest extent of
the law."
45 I find that in the circumstances of this case, these are the aggravating factors. First, there were
numerous and repeated acts, including fondling, fellatio, simulated intercourse and ejaculation.
46 There were numerous victims all of whom were under the age of 18.
47 The length of the time period was 12 years from 1974 to 1986.
48 Mr. Davis or Lt. Davis stood in a position of authority and used that authority to his advantage, in that
he ordered persons to succumb to his sexual activity, he offered a young person a promotion if he would
engage in sexual activity, and he took away the consent required to have a relationship. There were no
physical threats and no physical injury although the psychological and emotional trauma and injury is clearly
born out in the victim impact statements.
49 And finally, there is a significant disparity in the respective ages between the ages of the accused and
that of the victims. From six years (VR was 13 and Mr. Davis was 20 to 21, SF was 15 and Mr. Davis was 21,
JG was 13 and Mr. Davis was 30) to about 16 years when JIB was 16 and Mr. Davis was about 31 or so.
50 In this case I find that these are the mitigating factors. He entered pleas of guilty and has shown
remorse by obviating the need for the victims to testify at either a preliminary hearing or a trial. He has no
prior criminal record. The pre-sentence report is positive and recommends that Mr. Davis is a suitable
candidate for supervision, should that be an order. The sexual behaviour assessment shows him as a
medium low risk to reoffend. This includes his present age which exceeds 50 and is helpful on an actuarial
scale. And Mr. Davis himself was a victim of crime.
51 In this case, the offences are of an historic nature. They took place between the years 1975 to '86 or
so. And the charges or offences were laid in 2007.
52 When I consider the historic factor, I find the 20 year period or so, in this case, to be mitigating. When
considering historic offences in R. v. WWM, [2006] O.J. No. 440, Justice Juriansz, in 2006 in the Ontario
Court of Appeal confirmed that the sentencing judge should reply on the decisions in Alberta and Manitoba in
R. v. Spence, [1992] A.J. No. 1129 and R. v. AR, [1994] M.J. No. 89.
53 As evidenced in the pre-sentence report, Mr. Davis has no record and he's been actively involved in his
community. In the statement of facts, Mr. Davis made no threats. And in 2007, he admitted his wrong doing
to the police and also named two other boys who the police couldn't find. And finally, he's entered guilty
pleas.
54 After considering the law and the facts, I find the history to be a mitigating factor and which will impose
a reduced sentence.
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55 Sentencing principles, themselves, are found in s. 718 of the Criminal Code. Recently, in 1995, the
Criminal Code was amended as follows:
"When a court imposes a sentence for an offence that involved the abuse of a person
under the age of 18 years, it shall give primary consideration to the objectives of
denunciation and deterrence of such conduct."
56 In the case of Mr. Davis, I am aware that the sentencing considerations must be considered as they
were enacted up until 1985. The maximum penalty, at the time, for an offence of gross indecency was five
years for each offence.
57 A sentence must give consideration to the victims of crime, the community as a while, and also to the
accused. The sentence must not be so severe as to eliminate any prospect of rehabilitation.
58 The totality of the sentence in all of the offences must be such that it is fitting and fair in all of the
circumstances.
59 The court must consider both general and specific deterrence and also rehabilitation.
60 In particular, in historic sexual offences involving children, the principles of denunciation and deterrence
must be paramount and carefully addressed.
61 In the case of Mr. Davis, the boys were in their adolescent ages and the numbers of sexual acts
amounted to at least five or six. He was a person in authority who used his power to either entice or order
those much younger to fulfill his sexual purposes.
62 What I must first consider is the time amount that's required in this particular case in relation to custody.
Both counsel have indicated a range and I must determine what is appropriate.
63 I have reviewed all of the cases that have been cited in this hearing by both counsel and others and I
will attach the citations to the record when it's transcribed.
64 Way back in '98 in Stuckless the accused was a pedophile with a 20 year history in hundreds of
offences involving young boys in Toronto and he was sentenced to a five year period in custody.
65 In R. v. DD [2002], [2002] O.J. No. 1061, there were four young boys ranging from five to eight years
over a period of two to seven years, and the accused was 25 to 32 at the time. And the sexual acts were
regular and persistent.
66 Moldaver in the Court of Appeal, Justice Moldaver, summarized the general rule as follows:
... as a general rule, when adult offenders in a position of trust, sexually abuse innocent
young children on a regular and persistent basis over substantial periods of time, then
they can expect to receive mid to upper single digit penitentiary terms."
67 In R. v. Esmonde in the same year, in 2002, [2002] O.J. No. 2544, the same court, Court of Appeal,
Justice Feldman considered the issue of a conditional sentence. And in that case, the trial judge sentenced
the accused to a period of 13 months in custody. There were numerous incidents. There was one victim and
that victim was between 12 to 16 years of age. There was a guilty plea, a positive PSR, and that person was
a low risk reoffending party.
68 In the same year, again, in Cromien, [2002] O.J. No. 354, in the same city, in Toronto, there was an
historic offence involving one thirteen year old boy which took place 20 years earlier. The offences took place
over a three year period and the accused was a person in authority. He had led an exemplary life after that.
And he entered a guilty plea and was sentenced to two years less a day. In that case, Justice Finlayson said
that:
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"Circumstances that involve multiple sexual acts over an extended period of time and
escalating in intrusiveness generally warrant a severe sentence."
69 In R. v. F (GC), reported in 2004, [2004] O.J. No. 3177, the Ontario Court of Appeal considered a case
of two 13 year olds sexually assaulted over a two month period. The Appeal Court imposed a maximum
reformatory sentence and said, and I quote, that:
"This court has repeatedly stressed both the serious nature of sexual abuse against
children and the importance of sentencing sexual offenders with the principles of
denunciation and deterrence in mind."
70 And refer to the decisions in Palmer [1985], [1985] O.J. No. 988, and also D. (D.) [2002].
71 In 2008 in B.A., [2008] O.J. No. 2739, the Court of Appeal described a one and a half year abuse on a
complainant physically, sexually, and psychologically as a gross breach of trust. In that case, there were
inducements with threats and demeaning and humiliating acts. And Justice Moldaver set the sentence on an
altered basis in the Court of Appeal to that of five to six years period.
72 In Decator [2009], [2009] O.J. No. 1392, the case was an historic one. The accused in that case was
the leader of the Scouts of Canada group. The appeal dealt solely with the finding by the jury on both counts.
And the Court of Appeal, in that case, split on the issue of guilt and dismissed the appeal on both counts.
There was no issue relating to the sentence that was raised.
73 So if you could stand up please, sir. In my conclusion in all of the precedents, I find that the principles
of denunciation and general deterrence of the utmost concern. And in Mr. Davis's case, I also consider
denunciation and deterrence in that fashion.
74 These sexual offences arose from a position of authority. There were numerous and repeated acts.
They occurred over a period of 12 years but the total number of offences amounted to five or six. There was
no physical injury, but there is a dramatic effect on the younger persons who were the victims of crime.
75 I consider the mitigating factors that Mr. Davis has entered pleas of guilty and shown his remorse. He
has no criminal record and, specifically, no sexual offences since 1985. His pre-sentence report is positive
and his risk assessment is low. They are historic in nature. And he, himself, is a victim.
76 I find that these factors lessen the degree of specific and general deterrence. Had there been any or all
of these absent then the sentence would have been much greater.
77 The maximum sentence on the charge of gross indecency is a five year period. I find that this sentence
with these circumstances should be on the lower end of the period.
78 And in totality, I find that a fit sentence in this case is the following:
79 On the offence involving JR [sic], a period of nine months in custody.
80 On the offence involving JB, a period of nine months in custody consecutive.
81 And on the offence involving SF, a period of nine months in custody consecutive.
82 The total sentence, then, is 27 months in custody. You can have a seat, sir.
P.R. ADAMS J.
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