Sex assault sentence a miscarriage of justice

Man gets two years; boy scarred for life

Warning: This column contains content of a graphic nature, which some readers may find offensive.

In the ancient, demeaning language of sexual assault, they are asking for it — only in this instance, “they” are the judges and lawyers who run the Canadian criminal justice system, and “it” is another mandatory minimum sentence.

It’s the only sane conclusion.

If the key players in the courts are either so constrained or so cowed by the dog’s breakfast that is this country’s sentencing regime that John Leonard MacKean gets only two years in prison, then Parliament should do what they are unable to bring themselves to do.

Now 65, MacKean was sentenced Tuesday in Nova Scotia Supreme Court in Bridgewater, N.S., for his role in a case that saw the utter ruination of a vulnerable teenage boy.

The portly man was sent to jail for 24 months plus three years’ probation.

The sentence originated with senior Crown prosecutor Lloyd Tancock. It was then adopted by MacKean’s lawyer, Mike Taylor. They presented it as a joint submission to Nova Scotia Supreme Court Judge Richard Coughlan, who accepted it.

Asked why he didn’t seek a harsher sentence, Tancock said in a brief phone interview that the regime in Canada has so many variables: The “extremely wide” range provides for everything from no jail time at all, to a six-month minimum for the offence of “communicating for the purposes of obtaining sexual services from a person under 18,” to significant prison terms. As well, judges must take into account the particular offender, the individual victim and the unique circumstances.

In the end, MacKean’s “limited involvement” in the crime, his lack of a relevant prior offence and “a relatively good pre-sentence report” were all factors in Tancock’s decision.

This is the pragmatic weighing and measuring that goes on in the courts all the time. It takes a bold prosecutor or judge to depart from the script, and bring the hammer down.

Yet it was 12 years ago that Michael Moldaver, then a judge on the Ontario Court of Appeal and now on the Supreme Court of Canada, wrote in a case called R v D.D. that the message to sexual predators must be clear: “Prey upon innocent children and you will pay a heavy price!”

But the message is not clear. All that is clear is that prosecutors and judges still struggle mightily with the existing regime, so perhaps it’s time to relieve them of the burden.

Now, MacKean’s limited role in what happened to a 16-year-old boy went as follows.

In the fall of 2012, this boy was living on the streets of Halifax when he met David James LeBlanc, then 47.

He offered him a painting job; the boy leapt at the chance to make some money. He got into LeBlanc’s van, but instead of taking him to a store to get supplies, he drove him to a remote cabin, its walls covered in pictures of male genitalia and sex acts, in Lunenburg County, about 125 kilometres southwest of Halifax.

Le Blanc’s long time partner, 31-year-old Wayne Alan Cunningham, was waiting there.

They took the boy’s clothes and sexually assaulted him.

The next day, they left him alone, warning him not to leave. He escaped, and began walking the rural road. The two men found him and forcibly returned him to the cabin.

Now, they secured him, naked and spread-eagled, by chains attached at the wrists and ankles to bolts in the floor and ceiling. He was repeatedly, daily, assaulted orally and anally, and threatened with death. LeBlanc and Cunningham shaved his genitals and buttocks. The boy’s hands turned blue from the restraints; the nerves in one hand were damaged. The men talked about selling him for sex, and once, they did.

That’s where MacKean came in.

The boy testified at MacKean’s trial that he was chained to a bed and blindfolded when a fat, balding man with glasses (the boy had only a partial view) came to the cabin and performed oral sex on him. He said he was crying and helpless.

The jury heard that MacKean’s DNA was found both on the boy and on the bed. Text messages showed he had arranged the encounter through Cunningham.

In one exchange, MacKean asked if “everything is a go” and Cunningham replied, “Oh yes, sexy.”

“See you tomorrow, it should be fun,” MacKean wrote, and the day after, he wrote, “thx, that was great.”

Tancock told the jurors MacKean even asked about having another sexual encounter with the boy.

MacKean pleaded not guilty. He testified in his own defence. He said he had no idea, none, the boy was so young. He said he didn’t see any chains. He admitted being in the cabin, but said he only touched the boy’s penis.

He even had the chutzpah to suggest that, for heaven’s sakes, if he’d had any idea the boy was being held against his will, he would have rescued him.

The jurors didn’t believe him. They convicted MacKean of sexual assault and the communicating offence in March.

Last May, LeBlanc pleaded guilty to kidnapping, forcible confinement, sexual assault and threatening to cause death. He also pleaded guilty to child pornography offences in 2010 involving two little boys, one five and one two, whose pictures he had posted on an American website. He was on bail for those offences when he kidnapped the 16-year-old.

He was sentenced last June to a total of 11 years, minus the 258 days he spent in pretrial custody.

He and Cunningham had fled after the boy smashed his chains and broke through a boarded window in the cabin.

Half-naked, chains dangling, he walked to safety at a house two kilometres down the road.

After a manhunt, LeBlanc was arrested in Northern Ontario on Sept. 30; Cunningham’s body was found a few days later in a nearby woods. No foul play was suspected.

MacKean, by contrast, had that “limited” role. By comparison to LeBlanc and Cunningham (and the same judge, prosecutor and defence lawyer were involved in LeBlanc’s case), it appears, he was, well, a relative good guy.

What kind of man goes to a secluded cabin to force sex upon a boy in chains? The kind who gets two years in prison, that’s what kind.