WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:
110. Identity of offender not to be published. —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
111. Identity of victim or witness not to be published. — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
129. No subsequent disclosure. — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.
Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:
138. Offences. — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Between:
Her Majesty the Queen
— AND —
A.R., a young person
Before: Justice P.H.M. Agro
Heard on: January 10th & 11th, 2019
Reasons for Judgment released on: July 10th, 2019
Counsel:
- Mr. James Nadel — counsel for the Crown
- Mr. V. Singh — counsel for the accused A.R.
Reasons for Sentence
[1] Convictions
A.R. was found guilty at trial of 3 counts of assault simpliciter, 2 counts of sexual assault and one count of unlawful confinement, offences committed when he was a 16 year old youth.
In addition A.R. entered pleas of guilty to one count of uttering threats, one count of criminal harassment and 2 counts of failing to comply with probation terms, committed as an adult.
[2] The Victim and Background to the Offences
E.P., the mother of his 14 year old son, is the victim in all offences. They met in 2004 and had a child together in 2005. They went their separate ways a year later.
In the spring of 2018, due to her concern about multiple Facebook messages received over the period February 2016 to April 2018 sent by A.R., and his threat to cause bodily harm to her, E.P. went to police. During her complaint regarding those events, she disclosed historical incidents that resulted in the youth charges.
Overall, A.R.'s behavior toward E.P. can only be described as gratuitously violent and depraved.
The Youth Convictions
The youth convictions (in chronological order) are founded in these facts:
Count 2: June 2004-March 2005 assault:
On one occasion, while pregnant with their son, and without any provocation, A.R. grabbed E.P. by the hair and threw her to the ground. He also threatened to throw her down the stairs.
Count 1: March 2005-March 2006 assault
On another occasion, the two were at a sleepover at the home of a friend. While she was sleeping, and again without provocation or warning, A.R. punched E.P. in the face. The punch was so hard it caused E.P.'s nose ring to lodge in the pillow and rip out of her nose. She bled profusely.
Counts 3, 4, & 5: March 2005-March 2006 sexual assault, unlawful confinement and assault:
Within the same 12 months, A.R. began physically assaulting E.P. with repeated punches to the face and head for no apparent reason. He then began sexually assaulting her. E.P.'s attempts to resist were met with further physical assault.
After this sexual assault, A.R. ripped E.P.'s clothing from her body, threw her on the toilet and dumped various lotions over her head. He then forcibly put her into a hot shower.
A.R. would not let E.P. leave the bedroom and she was forced to stay there against her will. She was not able to leave until her family came banging on the door telling him to let her out. She escaped through a bathroom window with two black eyes.
Counts 6 & 8: March 2005-March 2006 sexual assault and assault:
Another sexual assault occurred when A.R. took E.P. by the head and forced her to perform fellatio on him. When that assault stopped, A.R. left the room momentarily affording E.P. an opportunity to flee through the 1 ½ storey bedroom window.
While she was suspended from the window with feet dangling, A.R. re-entered the room and punched E.P. on the head repeatedly, causing her to fall to the ground below. A.R. caught up with her as she ran from the home and dragged her back inside.
The Adult Convictions
The adult convictions are founded on these facts:
Counts 9 & 10: April 3, 2018: utter threat to cause bodily harm & criminal harassment:
Beginning in February of 2016, A.R. repeatedly messaged E.P. on Facebook using his father's Facebook account. In October 2016, after E.P. first went to police to complain of this behaviour, A.R. was warned by police to stop the messaging. The messages were of an explicitly obscene nature.
Despite the warning, the messages continued through to the 3rd of April 2018 when E.P. again went to police. The messages caused E.P. to fear for her safety as they became increasingly more threatening and included pornographic pictures of a female being simultaneously anally and vaginally penetrated by two or more men. The messages were multiple and explicit and suggested that A.R. and their son would both perpetrate these acts on her.
Counts 11 & 12: April 3, 2018: breach of probation:
At the time of these offences, A.R. was on two probation orders. The first issued by Justice Halokowski on September 14th, 2017 for a period of twelve months; the second by Justice Caponecchia issued on January 10th, 2019 for a period of 2 years. Each of these orders contained the statutory term to keep the peace and be of good behaviour.
Background of the Offender
I have had the benefit of reviewing a pre-sentence report and both a psychological and psychiatric report prepared under section 34 of the Youth Criminal Justice Act. Each shed significant light on the accused's background, rehabilitative prospects and risk to re-offend.
Upbringing and Present Circumstances
A.R. is 29 years of age. He is single and is the biological father of three children, one of whom is in the custody of E.P.
The pre-sentence report speaks of a family background suited to his healthy maturation and development and that of his two brothers and one sister.
There is little contact if any between A.R. and his family members. They have become estranged due to his behavior. He has a no contact provision relating to his parents and has no significant contact with his siblings.
The family has not seen any positive changes in the last number of years and are concerned he will become more violent.
A.R. has limited education, not having completed Grade 10. An attempt to obtain high school equivalency as an adult was short-lived as he returned to custody.
He has not maintained gainful employment working only sporadically through temporary placements or supporting himself by pan-handling. He has never supported his children.
A.R. has a small number of friends but some of them also have criminal antecedents.
He has no leisure or recreational interests.
A.R. demonstrated little insight to these offences and his present circumstances. To the author of the pre-sentence report he presented as receptive and agreeable but offered little explanation for his criminal history. That lack of insight was also noted in the psychological report. To the psychiatrist, he denied any violence within his relationships with women.
Psychological testing revealed hostile animosity and a socially defiant attitude.
Criminal History
The offender began to accumulate findings of guilt as a youth. In the period 2005 to 2007 he had 4 findings relating to assaultive behavior and 8 findings for failing to comply with disposition or recognizance.
As an adult, the theme of violent behavior and non-compliance continued. There are 2 convictions for assault causing bodily harm (one of which was a domestic), 2 convictions for uttering threats, 1 conviction for each of mischief, theft, forcible confinement, and possession of a weapon for a purpose dangerous and robbery. In addition there are 22 convictions for failing to comply with probation terms, and one breach of recognizance.
The longest sentence A.R. has received was in 2013: 30 months, less time served, for the robbery.
Mental Health and Addiction Issues
From the age of 12 A.R. began using alcohol and marijuana. In 2005 he began using crack cocaine and more recently is a regular consumer of crystal methamphetamine.
Attempts to enroll A.R. in substance abuse programming through probation have been thwarted by his recurrent criminal activity and incarceration.
The psychiatric and psychological reports disclose an unspecified learning disorder, Attention Deficit Hyperactivity Disorder, Combined Type, Conduct Disorder with childhood onset (historical), Schizophrenia, Cannabis Use Disorder, Cocaine Use Disorder and Crystal Methamphetamine Disorder, all three in controlled remission.
The substance use had led to chronic psychosis, even when not using substances for several months. His sadomasochistic fantasies tend to increase with his drug use.
According to Dr. Chauhan, A.R. has some insight into his mental health difficulties and has demonstrated some interest in getting treatment. His insight into his substance abuse disorder however is more limited. She describes his executive functioning as impaired by his learning disorder, ADHD, substance use disorder and schizophrenia.
Dr. Chauhan opines that these circumstances strongly suggest the need for a residential concurrent disorder program to address the chronic mental health and substance use disorders before a transition to the care of a comprehensive mental health program before release into the community.
Rehabilitative Prospects & Risk to Re-offend
Rehabilitative programs offered by probation have been unsuccessful. The reasons are multi-faceted but include:
- Continued substance abuse, a triggering factor in many of these offences, has frustrated the start of community based programs due to the offender's repeated incarcerations
- The offender's low cognitive and executive functioning preclude his understanding the need for such programs
- The offender's socially defiant attitude make compliance difficult
- His mental health, particularly schizophrenia and recurring psychotic episodes make rehabilitation outside of a custodial or residential setting almost impossible to manage particularly if the offender persists in illicit drug use
- A.R. has been non-compliant with medication in the community
- He has little or no community-based supports or personal resources
Both Drs. Wong and Chauhan are of the view that A.R. presents a high risk for violent reoffending in the community without treatment for his mental health and substance abuse issues. The risk to re-offend in a sexual manner is moderate to high particularly while under the influence of illicit substances. A full sexual disorder consult is recommended by Dr. Chauhan and tailored sexual offence counselling is recommended by Dr. Wong.
Victim Impact
In addition to hearing the testimony of the victim and her mother at trial, I have reviewed her victim impact statement. It was brief.
The physical impact, while not trifling, has passed; but the psychological impact remains. E.P. suffers a high level of anxiety that she describes as "sometimes paralyzing". She relates that her anxiety levels affect how she thinks, acts and responds to people and situations. She tries to maintain strength for her son and other children.
Sentencing Principles and the Positions of the Parties
Youth Criminal Justice Act
The offences under the Youth Criminal Justice Act ("YCJA") were committed around the time that A.R. began accumulating other findings of guilt under that act. They include two findings relating to assault and five findings of failure to comply with recognizance or disposition in the period 2005 to 2006.
It is not clear whether the matters that are the subject of this sentence order pre-dated the first finding of guilt noted in May of 2005. What is clear is that from May of 2005 through all of 2006 A.R. was subject to multiple probation orders.
While the policy principles under the YCJA have a focus on rehabilitation, and that purpose is repeated in section 38 of the Act, subject to the principle of proportionality, denunciation and deterrence are also recognized principles.
Neither counsel in the case at bar have argued that anything less than custody would achieve the purpose of sentencing under the YCJA or this offender's rehabilitation. That position is fully supported by the facts of these occurrences, the pre-sentence report, and the two section 34 reports.
These are violent indictable offences and although A.R. would be eligible for combined sentences of up to three years under section 42(15) of the YCJA, the Crown is seeking a global sentence for all youth matters of two years custody and community supervision, which, pursuant to section 89 of the YCJA, A.R. would serve in a provincial correctional facility for adults.
The defence submits a one year custody and supervision order followed by a period of probation would more properly address the YCJA purposes and principles of sentencing.
Ancillary orders for DNA and a weapons prohibition for 2 years under section 51(4) of the YCJA are not in issue.
Criminal Code
The offences committed while an adult are governed by the sentencing purposes and principles in sections 718, 718.1 and 718.2 of the Criminal Code of Canada ("the Code").
These purposes are more directly focused on the protection of society and respect for the law and the principles to be applied are more specific to those purposes; hence, denunciation and deterrence and the protection of society are to be considered along with rehabilitation.
The Crown is seeking a global three year penitentiary term for the adult convictions of criminal harassment, uttering threats and failure to comply with probation.
The defence seeking a sentence that could be served in a provincial facility where A.R. could receive intensive treatment for mental health and addiction issues with a lengthy probation term that would offer A.R. community support once he is released.
Ancillary orders for DNA, a lifetime weapons ban pursuant to s.109(a) & (b) and a no contact order with E.P. pursuant to s. 743.21 are not in issue.
Case Law
Domestic Violence
In R. v. Dunlop, 2014 ONCA 49, my brother Justice Renaud set out a thorough review of both the historical and current law applicable to sentencing domestic violence offenders.
These are the relevant principles subsequent to the passage of s. 718.2 (a)(ii) as set out in that decision:
- Denunciation is a primary consideration
- Paramountcy in the graduation of principles is to be assigned to denunciation and deterrence
- Incarceration is not required by either legislative enactment or by reason of appellate direction
- Vulnerability of the victim, by reason of their participation in a relationship of some kind requires recognition as an aggravating circumstance
- Repetitive assaultive behavior in general and repeated convictions involving the same partner merit severity in order to protect a victim
- That domestic violence takes place in a place of safety is an aggravating circumstance
- A related record demonstrating a propensity for violence toward intimate partners warrants an increase in penalty
- Every offence of domestic violence involves a breach of trust.
In Dunlop, supra, Renaud, J., also included the use of alcohol as a known trigger for the offender's violent behaviour as a relevant consideration. In the case at bar there is no evidence of alcohol consumption but the offender acknowledged drug use as a mainspring for his behaviour, a fact that is reinforced in the two section 34 reports. I see no reason to distinguish between the two substances as a known trigger in this case.
Sexual Assault
It is an obvious conclusion that the sentencing of an offender for the sexual assault of a domestic partner involves the same factors for consideration as were set out in Dunlop, supra. Such offences are even a more egregious breach of trust particularly when accompanied by the level of violence as was perpetrated against E.P.
In the case of R. v. Ash, 2015 ONSC 3316, the 50 year old offender was found guilty of sexual assault and choking at trial, receiving a global sentence of five years. The facts were strikingly similar to those in the case at bar.
In R. v. Sawchyn, 1981 ABCA 173, the Alberta Court of Appeal considered the appropriateness of a sentence of two years less a day for a first offender who was convicted at trial of a violent sexual assault and death threat. At paragraph 35 of the appellate decision, Laycraft, J. stated for the court:
We must recognize that Sawchyn was very much under the influence of liquor at the time of the offence. He was a first offender and this circumstance considerably influenced the trial judge who expressed a desire token him, as a first offender, in the provincial goal system. Nevertheless, in my opinion, a sentence of imprisonment of two years less one day is a sentence so wholly inappropriate for a crime if this violence as to show an error in principle. I would grant the Crown application for leave to appeal, grant the appeal and substitute a sentence of four years imprisonment for that imposed by the learned trial judge.
I acknowledge that in Sawchyn the death threat was made while the offender had a rifle in hand, however that fact does not detract from the relevance of the degree of violence toward a domestic partner to the severity of the offence.
Criminal Harassment
The offence criminal harassment is often times committed within a domestic context. And it is oftentimes continued, as in this case, after a police warning to cease and desist and courts are mindful that "if the pattern of harassing conduct continues and is not properly dealt with by the sentence imposed, the result could be very serious physical and/or emotional harm to the victim.": R. v. Wall (1995), 136 Nfld. & P.E.I.R. 200 at 203.
In R. v. Bates, (2000), 146 C.C.C. (3d) 321, the Ontario Court of Appeal cited Wall with approval and emphasized that the focus of sentences for such cases must send a message to the offender and the public that harassing conduct against vulnerable victims is not tolerated by society and that a sentencing judge must ensure, as best as she can, that the offender is deterred from repeating the behavior lest a far more serious offence be committed: at para 32.
Hence penitentiary sentences are not unusual in a domestic context: Bates, supra, R. v. O'Donnell, [2009] O.J. No. 3101, R. v. Doherty, [2012] O.J. No. 5770.
Mitigating Circumstances
There are mitigating circumstances to be considered:
A.R. is a relatively youthful offender who struggled with significant behavioral issues as a child. His Attention Deficit Disorder and adolescent depression was untreated in part because of a lack of understanding by both A.R. and his parents of the benefits of medication. As a result he turned to street drugs, which in turn led to substance induced psychosis and schizophrenia.
While the use of street drugs was a choice, the early onset of mental health issues, left untreated, underlie these offences.
While A.R. was found guilty after trial of the YCJA offences, he did enter pleas of guilty to the adult charges.
Aggravating Circumstances
The aggravating circumstances are many.
A.R. was in a domestic relationship with E.P. and she was, during some of the assaults, pregnant with his child.
There were repeated assaults over a prolonged period of time and the assaults varied from hair pulling to punching to the face and body.
The assaults were particularly vicious: one occurred while E.P. was dangling from a window trying to escape.
The physical assaults were a means to coerce E.P. into performing sexual acts for the benefit of the offender.
The assault of E.P. with the body lotions and shampoo, after which she was thrown into the shower, were retributive and demeaning.
The confinement of E.P. to the bedroom continued for some hours.
The physical injury to E.P. was not trifling. They included blackened eyes, a tear to her nose from a nose ring being torn from a nostril and a goose egg to her head.
The psychological impact remains to this day and was exacerbated by the later commission of the adult offences.
While A.R. and E.P. had separated prior to the adult offences, the circumstances of those offences nonetheless had the character of a domestic situation. In the text messages A.R. made reference to prior sexual encounters and made the perverse suggestion that their son partake in the type of activity he was seeking with her.
That A.R. would continue to target E.P. years after their relationship ended is particularly aggravating. The threats he made to her and the graphic description of the sexual activities he intended to inflict were depraved. That he suggested their 14 year old son take part in the activity is particularly warped and debasing to both E.P. and her son.
The offender's criminal behavior has resulted in his estrangement from his parents, siblings and son.
The offender has no supports within the community and his prospects for rehabilitation are limited. He is considered at high risk to commit other violent offences particularly if his mental health issues and drug addiction, which is often a triggering event, are not addressed in an intensive treatment program.
It is particularly aggravating that A.R. was on two probation orders at the time of the adult offences.
Sentence Imposed
I take no issue with the sentences sought by the Crown, that is a global sentence of two years custody and community supervision for the youth offences and three years globally for the adult offences.
Those sentences address all of the purposes and principles of sentencing pursuant to both the YCJA and the Code as well as the circumstances particular to this offender, and the factors to be considered in domestic violence cases as mandated by s. 718.2 (a)(ii).
The Youth sentence of two years is to be served concurrently on each count, two thirds of which period will be served in custody and one third under community supervision subject to terms set by the Provincial Director. Ancillary orders for DNA will issue on all offences and a weapons prohibition for a period of two years pursuant to s. 51(1) of the YCJA on the sexual assaults and unlawful confinement.
I calculate time served to this date to be 443 days. The Crown and defence are ad idem that pre-trial detention be enhanced on a 1:5 to 1 basis. The credit then is 664 days rounded out to 22 months.
The weight of authority, including that of the Ontario Court of Appeal in R. v. T.B. requires that I take pre-trial detention into account pursuant to ss. 38(3) of the YCJA.
How such pre-sentence custody is to be credited was given extensive consideration in R v T. (D.M.), a decision of the Alberta Court of Appeal.
The court proffered four options for the calculation of the credit:
a) Credited to the global sentence, and the remnant divided into a two-thirds portion and a one-third portion;
b) Credited entirely against the custodial portion, with the community supervision portion remaining intact;
c) Credited entirely in the discretion of the judge; and
d) Credited entirely against the custodial portion and the community supervision portion would be one-half of the remnant of the custodial portion.
The court recommended that option b) be favoured in the normal course.
In the unusual circumstances of the case at bar, and given that A.R. will, as an adult, serve his youth sentence in a provincial correctional facility for adults, pursuant to s. 89(1) of the YCJA, I choose to exercise my discretion and apply the enhanced time served as follows: fourteen months to the custodial portion of the sentence and eight months to the community supervision portion of the sentence, leaving a remainder of two months of the custodial sentence only to be served.
The adult sentence is to be apportioned one year for the threat to cause bodily harm, three years for the criminal harassment and six months for each of the breaches of probation. These sentences are to be served concurrently but consecutive to the remainder of the youth sentence.
Ancillary orders for DNA will issue on the adult convictions for uttering the threat and criminal harassment, as well as a lifetime weapons prohibition pursuant to s. 109 (1)(a) and (b) for life.
In addition the offender will be prohibited from communicating with E.P., J.P., T.V., W.M. or members of their immediate families during his custodial sentence.
Released: July 10th, 2019
Signed: Justice P.H.M. Agro