Credits: File Photo
WINNIPEG -- There's no question former massage therapist Kyle Evan Smart is headed to jail for groping a young client who was too young to consent to the sexual activity.
But the real issue dogging Smart today is: for how long?
The Crown and defence lawyer Martin Glazer appeared worlds apart Monday on what constitutes a fit punishment for the 36-year-old, who was convicted a year ago of sexual assault, sexual interference and invitation to sexual touching following a trial.
The Crown is seeking between 12 and 15 months jail time plus probation to follow, while Glazer has asked Judge Rocky Pollack for no more than three months behind bars to be served on weekends. Smart faces a mandatory minimum of 14 days.
The 15-year-old victim was receiving treatment for a knee injury in December 2009 when Smart complimented and kissed her, and asked her to undress, according to Crown attorney Breta Passler.
He removed his clothes and fondled the girl but did not have sex with her.
Smart had a long-term relationship treating not just the girl, but also other members of her family.
She was "wanting the contact to a certain degree," Passler said, but wasn't old enough in law to consent.
The victim's life was turned upside down by Smart's conduct, Passler said, referencing a victim impact statement in which the once highly motivated teen describes how her self-image went down the tubes.
"I have strong beliefs and I couldn't believe I would let some guy get in the way of what I know to be right," she said.
Glazer spent hours Monday stressing that Smart's criminal behaviour stemmed from an unplanned, isolated and uncharacteristic "aberration" of character.
What Smart did wasn't part of a pattern of behaviour or a result of being sexually attracted to kids, he
told court, presenting psychological reports to support this.
"He's deeply ashamed and contrite," Glazer said, adding Smart has lost his massage-therapy career and now drives a forklift in Flin Flon, Man.
"The real deterrent is detection and being dealt with by the courts, not necessarily the sentence for the crime," Glazer said.
Pollack will deliver his decision later this year. Smart remains free on bail.