Crown wants six years for man who tied up, photographed woman during sex assault

Ernest McKinnon's "horrendous sexual attack" on a woman that was "sustained, intrusive, demeaning and demoralizing" calls for six years behind bars in a federal penitentiary, the Crown argued Monday.

The 61-year-old's actions in early 2016 were a "major sexual assault" involving forced anal and vaginal intercourse that occurred when he restrained the victim with elastic ties, prosecutor David Kirk said. 

"She's at his mercy, is defenceless."

He took advantage of the woman when she was most vulnerable - "unable to defend herself and treated her as an object to be used."

During the assault, McKinnon took photographs of the woman, "documenting" his actions, and tattooed his initials on the victim's thigh with a pen.

The pictures "remind me of conquest or trophy photos to show you caught the big fish," the assistant Crown attorney said

The initials, which the woman compared to "being branded like cattle" in her victim impact statement, have faded, but are a degrading, long-lasting physical reminder of a horrendous sexual attack, Kirk told the court.

Superior Court Justice Edward Gareau convicted McKinnon of four offences - forcible confinement, voyeurism and two counts of sexual assault - in October.

The offences occurred when consensual activity between the pair turned into a terrifying sexual assault.

A court order prohibits reporting any information that could identify the complainant.

On Monday, defence lawyer Bruce Willson said that because of the nature of the offences and the evidence heard at the trial, the emphasis at this sentencing is general and specific deterrence and denunciation.

"That means a significant jail time," he said, proposing a sentence (two years less a day) that would be served in a provincial facility and would permit the court to also impose probation.

Rehabilitation also has to be a consideration, he stated.

Willson suggested such a sentence could be served at the Ontario Correctional Institute in Brampton, a treatment centre which could help his client address his sexual behaviour and alcohol addiction.

A pattern that developed after the death of McKinnon's second wife may have led to his behaviour, he said.

The "hardworking" bricklayer seems to have changed after she passed away and began to cope with alcohol, Willson said, referring to a pre-sentence report.

"We are sending a good man to jail today. We have to, the law demands it."

The defence asked Gareau not to send McKinnon to a federal prison. 

"We're talking about one event here, not ongoing, repetitive abuse," Willson said.

Although there is a number of offences, the total context has to be examined and there can be concurrent sentences, he said.

Kirk countered that the sexual assault took place over a sustained period of time that night and "was not one of impulse."

The photographs taken over a 39-minute period document the sexual assault and are "a permanent record of the violence." 

McKinnon made decisions throughout the assault, Kirk said.

"It's not a spur of the moment thing. He takes time to think about things," the prosecutor said, suggesting there was ample time for reflection and stopping.

One of the two photos McKinnon deleted showed his face as he perpetrated the assault.

"That wasn't accidental," Kirk said.

He pointed to the woman's victim impact statement which "underscores the seriousness of these types of offences, not just to the victim, but to our community."

The psychological harm to the victim has been debilitating, is life changing and carries on today, he said. There also were consequences from McKinnon's egregious sexual assault.

"Whatever the sentence is he'll do his time, may get parole and eventually have no conditions," the Crown said.

"She has a lifetime of dealing with psychological harm."

In her statement, which was read into the court, the woman described the trauma she has experienced, the fear, anxiety, and depression, nightmares and "the tattoo that makes me feel broken."

Gareau heard she suffers from post traumatic stress disorder, is undergoing counselling, is financially destitute, has no job, no confidence and "has lost all trust in others."

The woman also has ongoing physical issues stemming from the sexual assault.

Kirk argued that McKinnon should be sentenced to five years for the sexual assaults, and six months consecutive each for the forcible confinement and voyeurism offences.

Reading from a written statement, McKinnon told the judge he is very sorry for his conduct and what has happened to the woman.

"I am ashamed for my actions," he said. "I'm ready to be punished severely.

"I expect to go to jail and while there am prepared to do whatever (it takes) so this never happens again."

Gareau will give his decision Friday.

EDITOR'S NOTE: SooToday does not permit comments on court stories