COURT OF APPEAL FOR ONTARIO
- DATE: 20020422 DOCKET: C34858/C34893
RE:
HER MAJESTY THE QUEEN (Appellant) -and- H. H. (Respondent)
BEFORE:
CHARRON, MOLDAVER and ARMSTRONG JJ.A.
COUNSEL:
Chris Webb
For the appellant
Paul Calarco
For the respondent
HEARD:
April 11, 2002
RELEASED ORALLY:
April 11, 2002
On appeal from the sentence imposed by Justice J. Robert MacKinnon on July 28, 2000.
E N D O R S E M E N T
[1] On February 3, 2000 the respondent was found guilty of sexual assault following a four day trial in the Superior Court of Justice before the Honourable Justice MacKinnon and a jury. On July 28, 2000 Justice MacKinnon sentenced H to a conditional sentence of two years less a day.
[2] The facts giving rise to the conviction may be briefly stated. The victim, then 18 years old, was H’s employee. She found it “hard to say no” to H due to her fears of workplace repercussions. She testified that H “did not take no for an answer and did not like to be questioned by his employees.”
[3] On the day of the sexual assault, H told her to accompany him to his home during the lunch hour, ostensibly to get an electronic organizer that she needed for work. On the way, he stopped at a liquor store and bought alcohol. Once inside his home, he gave her some of the alcohol. She became uncomfortable and suspicious, so she drank “really, really slowly”. She also felt that he was “pushing” her to drink. She became “very drunk”. She told him several times that they should return to work but he did not respond. She did not push the matter because he had a temper and she did not want to upset him because he was her boss. She eventually passed out. Rather than rendering assistance, H put the unconscious victim on his shoulder, carried her upstairs, undressed her and had vaginal intercourse with her in his teenage daughter’s bed. She woke to find him on top of her. She tried to push him off and told him to “get off me”. She started to cry. He did not stop. He continued until he was finished having vaginal intercourse.
[4] Shortly thereafter, H drove the complainant back to work. As soon as they arrived, the complainant told two employees what had happened and the police were called. H was subsequently arrested.
[5] Having regard to the gravity and seriousness of the offence and the respondent’s degree of moral blameworthiness, including his abuse of a position of authority, the fact that he took advantage of the complainant while she was unconscious and his failure to heed her plea to “stop” when she realized what was happening, we are of the view that the sentence imposed by the trial judge was manifestly unfit. In the circumstances, considering the nature of the crime and the personal circumstances of the offender, a custodial sentence was clearly called for and, in our view, a penitentiary term would have been appropriate.
[6] The conditional sentence order must therefore be set aside. In its place, we would substitute a sentence of 18 months incarceration commencing on the day that the respondent surrenders into custody. In imposing this sentence, we recognize that the respondent has already served the better part of the conditional sentence imposed upon him. However, we note that the delay in this appeal is attributable solely to the respondent and the terms of the conditional sentence order were not onerous.
[7] Accordingly, leave to appeal sentence is granted and the sentence is varied to give effect to these reasons. If required, a warrant is to issue for the arrest of the respondent.
_____ Signed: "Louise Charron J.A."
_____ "M.J. Moldaver J.A."
_____ "R. P. Armstrong J.A."
