WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Between:
Her Majesty the Queen
-and-
L.A.A.
Before: Justice Michael G. March
Submissions of Counsel Heard: October 2, 2020
Reasons for Sentence Released: November 27, 2020
Counsel:
- Nathalie Castonguay — Counsel for the Crown
- Will Murray — Counsel for L.A.A.
Introduction
1On January 6, 2020, L.A.A. was convicted by his Honour, Justice R. G. Selkirk, of one count of sexual assault upon L.H. contrary to section 271 of the Criminal Code ("the Code") and one count of voyeurism contrary to section 162(1) of the Code.
2Due to illness, Justice Selkirk was unable to conduct the sentencing of L.A.A.
3On August 4, 2020, the Crown applied under s. 669.2 of the Code to have another judge assume the task of passing sentence upon L.A.A. The defence consented to the application.
4I granted this application and agreed to fulfil the role.
5Before preparing these Reasons, I heard submissions from Crown and defence counsel. I am indebted to both for their expansive reviews of the relevant case law. At the time of hearing submissions, I had not read the entirety of the transcripts of all the evidence adduced on the trial proper. I have since done so.
Brief Summary of the Evidence
6L.A.A. and L.H. connected through an online dating app, Tinder, in March 2018.
7On March 31, 2018, L.A.A. picked L.H. up at her parents' home around 9:30 PM.
8They went to L.H.'s sister's place to drink alcohol and to do cocaine.
9After a while, L.H., her sister and L.A.A. went to the offender's home. L.A.A. wished to consume alcohol himself. He could not do so at L.H.'s sister's residence because he was driving.
10Around 12:30 AM on April 1, 2018, L.H.'s sister left to go back to her place.
11L.H. asked if she could stay at L.A.A.'s house for the night. He agreed.
12Both were intoxicated. L.H. described herself as a heavy sleeper when drinking.
13As they got into bed, L.H. told L.A.A. that she was not interested in anything romantic or sexual.
14L.A.A. proceeded to turn on the television. Using the Netflix streaming service, he tuned in to the series, The Office, at L.H.'s request.
15After some time, L.H. fell asleep.
16L.H. woke up around 5:00 AM with her pants pulled down to her ankles. L.A.A. was on top of her. There was a light shining in her face from a cellular phone. Her shirt was pulled up to expose her breasts.
17L.A.A. was using his penis to penetrate her vagina. L.H. was on her back. Her legs were spread open.
18She asked L.A.A., "What the fuck are you doing?"
19She pushed him off of her.
20As she did so, he said, "Oh fuck!" He seemed startled.
21L.A.A. drove L.H. home to her parents' house thereafter.
22Reflecting on what had occurred, L.H. decided to call a friend to take her to the hospital.
23Initially, L.H. did not wish to report the incident to police. After meeting on a couple further occasions with the sexual assault nurse, L.H. changed her mind.
24At the time the sexual assault occurred, L.H. agreed that she was using alcohol and cocaine. She conceded as well that her memory would be patchier after using those substances.
25Further, she allowed for the possibility that she could also have been taking an antidepressant, citalopram, at the time the incident occurred.
26She was not truthful when reporting the incident to police about her cocaine usage. She felt she could get in trouble if she did. She had concerns about losing her job.
27She confirmed that she told the sexual assault nurse she had 40 ounces of wine and 4 to 5 mixed drinks at the time the incident occurred. She omitted telling the nurse about her cocaine usage as well.
28She was unclear about what she wore to bed.
29She adamantly denied initiating any sexual activity with L.A.A. by touching his penis.
30She disagreed that she lifted her hips to pull down her pants.
31In essence, she denied consenting to any sexual interaction with L.A.A.
32While sleeping, she testified that she awoke to a bright light in her face.
33She denied that she rolled over and went back to sleep after discovering what L.A.A. had been doing to her.
34The sexual assault nurse agreed that L.H. was unsure about taking HIV medication on the day she presented at the hospital. However, she decided to follow this course of treatment by the next day.
35The video recording taken by L.A.A. on April 1, 2018, was 23 seconds in duration. It depicted L.H.'s and his genitals in the act of sexual intercourse.
36L.A.A. confirmed that L.H. had told him that she would be doing cocaine at her sister's place on March 31, 2018. He had no objection to it.
37L.A.A. was a newcomer to the area. He had recently been stationed in Petawawa a month or two before the incident.
38He characterized L.H. as being a little tipsy when he picked her up. She brought a bottle of vodka with her.
39While at L.H.'s sister's place, L.A.A. contributed to payment for the purchase of some cocaine and did a line with the others present.
40He permitted L.H. to take her sister along to his place.
41He could not recall how much cocaine he used at home. He drank alcohol as well.
42He testified that he gave a pair of boxer shorts and a white T-shirt to L.H. prior to them going to bed together. She changed into them.
43They watched two characters on TV kiss, and he suggested, "We should try that." He attributed to L.H. the response, "You could try, but I would not."
44As L.H. was falling asleep, L.A.A. went to turn off the TV. She woke up and asked him to leave it on.
45Eventually, he turned it off after she had in fact fallen asleep. A short while later, he drifted off as well.
46L.A.A. testified that he awoke when he felt L.H.'s hand down his pants. He moved it away.
47Later, she touched him again in a similar matter. When she did so, he kissed her neck. He put his hand on her stomach. She pushed it lower to her vaginal area.
48She then took off her shorts. He inserted his fingers into her vagina. She used her own hands to fondle her breasts.
49L.A.A. described L.H. as being "into it." She was moaning. They then had sexual intercourse.
50The sex was lasting longer than normal for him, so he decided he would videotape it. This was a practice his former girlfriend and he had engaged in. He intimated that it assisted him with ejaculation.
51L.A.A. stated that L.H. must have been startled by the light from his cell phone. She said, "What the fuck?"
52He stopped the recording and the intercourse. He turned away.
53She said nothing. She just put her pants back on and faced away from him.
54L.A.A. denied that L.H. told him she did not want anything physical that night.
55He did agree that he had four or five shots of alcohol at his house. He was buzzed. Maybe his speech was slurred, but he could walk. He denied that he may have forgotten things.
56Although he did not ask L.H. to engage in sexual activity, he assumed her actions readily disclosed her consent. She took off her shorts. She lifted her T-shirt to expose her breasts. She looked wide-awake and pleased with what was occurring. She was moaning, arching her back, and touching herself.
57He conceded that he did not tell her when he reached under his pillow for his phone to begin recording the act of sexual intercourse. It was not until after the 23 seconds had elapsed that she became startled and said, "What the fuck?"
58He confirmed that he did not use a condom. Nor did he ejaculate.
59He assessed that both L.H. and he were evenly intoxicated.
60Dr. Shahmalak, a forensic psychiatrist, was qualified by the defence as an expert on the effects of psychotropic drugs, as well as their side effects when combined with the use of alcohol and street drugs.
61Dr. Shahmalak opined that the side effects of citalopram as experienced by one individual to the next can differ.
62He was unaware of the dosage which L.H. was taking.
63He explained that it is SSRI [Selective Serotonin Reuptake Inhibitor] medication. It should not be taken where an individual is using mood altering substances such as alcohol and cocaine. Alcohol can exponentially affect the possibility of side effects.
64Citalopram must be taken daily. Usually, it requires 4 to 6 weeks of daily use before it becomes effective.
65Combining citalopram with alcohol can cause disinhibition with respect to violent or sexual behaviours. It can lead to distorted recall.
66Dr. Shahmalak concluded that it would be difficult to rely on the memory of a person who combined the use of citalopram, alcohol and cocaine.
The Findings of the Trial Judge
67The trial judge rejected L.A.A.'s evidence as it bore on the sexual activity which occurred between L.H. and L.A.A.
68Selkirk J. found beyond a reasonable doubt that L.H. was sleeping when L.A.A. began having sex with her, and he surreptitiously video recorded it.
69On his factual assessment of the evidence, Selkirk J. concluded that L.H. did not know what was occurring until she awoke to L.A.A. being on top of her. She was consistent in her account of what happened to her physically. Her evidence displayed no lack of reliability. It was clear and compelling. It was corroborated by the video recording. At no point did she consent to the sexual intercourse.
70Further, there was no evidence to support the proposition that the complainant consented to a 23 second recording of the sexual activity before protesting.
71In sum, the trial judge found that L.A.A.'s reaction to being caught in the act was consistent with guilt.
Crown Position on Sentence
72The Crown seeks an 18 month period of incarceration for L.A.A. to be followed by 2 years of probation.
73The Crown further asks that L.A.A. be required to submit a sample of his DNA to the authorities, and that he be subject to a 10 year weapons prohibition.
74Lastly, the Crown requests that L.A.A. comply with the provisions of the Sex Offender Information Registration Act ("SOIRA") for 10 years.
Defence Position on Sentence
75Defence counsel argues that a period of 9 months incarceration will suffice to satisfy the purposes and principles of sentencing set out at ss. 718 to 718.3 of the Code.
76The defence points out that both SOIRA and DNA are mandatory components to L.A.A.'s disposition by this Court.
77However, due to the Crown's decision to elect summarily against L.A.A., the imposition of a weapons prohibition would be discretionary.
Analysis
Denunciation and Deterrence
78In my view, denunciation and deterrence are the paramount sentencing considerations where an offender sexually assaults and videotapes an intoxicated, sleeping victim. In R. v. Garrett, 2014 ONCA 734, a 'date rape' case somewhat analogous to the facts upon which I must sentence L.A.A., the Court of Appeal for Ontario considered the principles of denunciation and deterrence as "predominant" where there is "... contemptuous disregard for the personal integrity of the complainant".
79Society, properly so, holds a particular revulsion for those who ignore a lack of consent in the engagement of sexual activity. L.A.A. did exactly that. Further, he videotaped his furtive assault upon L.H. I must denounce him for such conduct.
80Further, I must deter him from repeating any such behaviour. I must dissuade him, as well likeminded others, from ever taking the same liberties with a sleeping victim.
Aggravating Factors
81In committing the offences which L.A.A. did, I find the following features aggravating:
a) the vulnerability of the victim, L.H.,
b) the unprotected, penile penetration of the victim's vagina which caused her to suffer the stress and worry of possible contraction of a sexually transmitted disease,
c) the extreme violation of the victim's personal and bodily integrity,
d) the decision by L.A.A. to videotape the act of sexual intercourse to memorialize the event, and
e) the psychological, emotional and economic impact which the offences have had on the victim.
Mitigating Factors
82The following mitigating factors are present in this case:
a) L.A.A. is a relatively youthful, first time offender,
b) he has otherwise demonstrated himself to be a person of good character with familial and community support,
c) he has spent 2 ½ years on conditions of release without breaching them and has thereby demonstrated a willingness to adhere to Court Orders, and
d) he held down his employment in the Canadian military, although I would expect his career to now be in serious jeopardy.
Parity
83Sentencing must always be an individualized process. No two cases are the same. However, guidance should be taken in determining the sentence to be imposed with regard to similar offences committed by similar offenders in similar circumstances.
84The Crown drew my attention to the following authorities:
a) R. v. Smith, 2015 ONSC 4304 – a 25-year-old offender sexually assaulted an 18-year-old victim. Campbell J. held that the usual range for this type of invasive, sexual assault on a sleeping or unconscious victim is somewhere between 18 months and three years. However, where the Crown elects to proceed summarily, somewhat lesser sentences are required. On the summary conviction appeal, Campbell J. set aside a 16 month conditional sentence and imposed a nine-month period of incarceration.
b) R. v. Colbourne, 2013 ONCA 308 – The Court of Appeal for Ontario upheld the trial judge's imposition of a sentence of 14 months incarceration for sexual assault involving intercourse upon a sleeping, intoxicated victim.
c) R. v. J.W.M., [2004] O.J. No. 1295 – Hill J., sitting on a summary conviction appeal, affirmed the imposition of an 18 month period of incarceration and 2 years probation for an offender who raped an extremely intoxicated 20 year old, female co-worker. In so doing, he found that there was a "gross abuse of trust", a factor absent from the circumstances in the case before me. Further, he opined that the reservation of the maximum penalty for the worst offender in the worst set of circumstances had no application in the circumstances of the case before him. The fundamental principle of sentencing set out in s. 718.1 of the Code, as well as restraint and the exhaustion of all other sanctions prior to resort to imprisonment, prevent an improper imposition of a maximum penalty.
d) R. v. Garrett (supra) – the Court of Appeal for Ontario set aside a 90 day period of imprisonment for a 'date rape' sexual assault and imposed an 18 month period of incarceration. The Court of Appeal upheld the two year period of probation meted out by the trial judge as well as the ancillary orders she made.
e) R. v. M.R., 2018 ONSC 583 – Boswell J., after a careful and lengthy review of the cases involving sexual assault perpetrated upon unconscious, sleeping victims, sentenced a 64-year-old, successful businessman, and a first time offender to 14 months in custody and two years probation. The 22-year-old victim was a short-term employee of the offender, who digitally penetrated his anus after plying him with alcohol.
f) R. v. Scinocco, [2017] O.J. No. 2901 – Renwick J. found that sexual assaults involving a sleeping or incapacitated complainant attracted ranges of sentence from nine months imprisonment to three years in the penitentiary. Renwick J. imposed a period of 12 months incarceration and two years probation. The sexual assault involved the offender touching the victim's vagina while she slept, and partial or attempted penetration with either an object or a part of the offender's body.
85Defence counsel referred me during his submissions to the following authorities:
a) R. v. Khan, 2016 ONCJ 282 – Schreck J. sentenced the offender to 6 months jail and 1 year probation for touching the breasts and vaginal area of the victim. Drawing from the language of the Court of Appeal for Ontario in R. v. Hayman (1999), 1999 CanLII 3710 (ON CA), 135 C.C.C.(3d) 338, Schreck J. restated the principle that "... a first sentence of imprisonment especially for a first offender should be as short as possible and tailored to the individual circumstances of the accused."
b) R. v. Adams, 2008 NBPC 18 – Brien J. held that the appropriate sentence for a sexual assault on a sleeping victim where intercourse was involved ranged from 6 to 18 months. Brien J. imposed 12 months jail where the 25 year old offender "took advantage" of the 20 year old victim.
c) R. v. San Salvador, 2007 ONCJ 390 – Harris J. convicted the offender of sexual assault involving intercourse. He decided that an appropriate range of penalty was 10 to 12 months imprisonment. He then offered a choice to the offender of either a 10 month period of incarceration, or 90 days jail to be served intermittently, plus 1 year probation where the first 6 months involved a home confinement condition, and the latter 6 a strict curfew condition.
On the reported version of the case, it is unclear which option the offender chose. With the greatest of respect, the case is unorthodox in its approach to sentencing. A judge considers options, settles upon and imposes a sentence proportionate to the gravity of the offence(s) committed and the degree of responsibility of the offender. Options granted to an offender are not an option.
d) R. v. McKenzie, 2017 ONCA 128 – The Court of Appeal for Ontario upheld the 9 month sentence of imprisonment imposed upon the 33 year old offender in spite of the immigration consequences for having anally penetrated a 19 year old victim for 20 to 35 seconds. The Court of Appeal commented that the sentencing judge could find no jurisprudential support for a lenient sentence less than 6 months on facts similar to those involved in the case. Nor could counsel on appeal point to any such authority.
Restraint
86L.A.A. committed extremely serious offences which violated the dignity, privacy and sexual integrity of a young woman, L.H. While I must punish him for having done so, I cannot lose sight of the fact that this was his first brush with the criminal justice system.
87I must exercise restraint in depriving L.A.A. of his liberty.
88I cannot crush his desire, as expressed to me in exercising his right under section 726 of the Code, "…to do better and to be better."
Rehabilitation
89Although I do not have a Presentence Report to assist me with determining an appropriate sentence for L.A.A., I have been provided through defence counsel with letters of support.
90I have no doubt that L.A.A. was raised in a loving and caring family. His parents' and siblings' devotion to him will serve him well as he attempts to rehabilitate himself.
91In one of the letters, a former girlfriend speaks of her shock and dismay upon learning of the particulars of L.A.A.'s offences. She characterized him as "... the one person I know who makes me still feel safe as a woman".
92L.A.A.'s fellow soldiers described him as a genuine, caring, compassionate and trustworthy friend and coworker.
93Reliance upon friends and family will be invaluable to L.A.A. upon his release from custody.
Concurrent vs. Consecutive Imposition of Sentence
94In R. v. W.Q., 2006 ONCA 21035, the Court of Appeal for Ontario quoted extensively with approval from Sentencing, 6th ed., (2004) Clayton C. Ruby et al. The learned authors wrote:
We have frequently noted that the Code seems to require consecutive sentences unless there is a reasonably close nexus between the offences and time and place as part of one continuing criminal operation or transaction ... We must use common sense in determining what is a "reasonably close" nexus and not fear to impose concurrent sentences if the offences have been committed as part of a continuing operation in a relatively short period of time.
Ultimately, the tests are very flexible, and it becomes a fact-specific inquiry whether the connection between two offences is sufficiently or insufficiently close to merit either consecutive or concurrent sentences.
95In R. v. Jewel, 1995 ONCA 1987, the Court of Appeal for Ontario held that the proper approach is to first identify the gravity of the conduct giving rise to all of the criminal offences. Second, the trial judge should determine the total sentence to be imposed. Third, having determined the appropriate total sentence, the trial judge should impose sentences with respect to each offence which result in that total sentence, and which appropriately reflect the gravamen of the overall criminal conduct.
96Last but not least, section 718.2(c) of the Code directs that, if and where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh (i.e. the totality principle).
Prospective Credit on account of the COVID-19 Pandemic
97Defence counsel has asked me to consider and to reduce the global sentence I see fit to impose due to COVID-19. Crown counsel opposed this request.
98In R. v. Morgan, 2020 ONCA 279, the Court of Appeal for Ontario decided that certain aspects of the COVID-19 pandemic were worthy of judicial notice. The panel stated at para. 8:
[8] In our view, it is not necessary to decide whether this court could take judicial notice of the effects of the COVID-19 pandemic to the extent to which the appellant would have us do that. We do, however, believe that it falls within the accepted bounds of judicial notice for us to take into account the fact of the COVID-19 pandemic, its impact on Canadians generally, and the current state of medical knowledge of the virus, including its mode of transmission and recommended methods to avoid its transmission.
99The panel went on to find at paragraph 9 that the effects of the pandemic on the appellant's confinement were a "collateral consequence". They held:
[9] In our view, the appellant's submissions fall into the category of collateral consequences for sentencing purposes. As Moldaver J. noted in R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 48:
The question is not whether collateral consequences diminish the offender's moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances.
100At paragraph 11, the panel emphasized the prevailing importance of proportionality. They wrote:
[11] In our view, the sentence imposed on the appellant was at the very low end of an acceptable range of sentence for the offence of aggravated assault. It was, indeed, a lenient sentence, given the injuries sustained by the victim and the fact that the appellant had a criminal record. To reduce the sentence any further would result in a sentence that is unfit, one that would be disproportionate to the gravity of the offence. As was observed by Wagner J. in R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at para. 18:
It follows that where a sentence is varied to avoid collateral consequences, the further the varied sentence is from the range of otherwise appropriate sentences, the less likely it is that it will remain proportionate to the gravity of the offence and the responsibility of the offender.
101In R. v. Lariviere, 2020 ONCA 324, the Court of Appeal for Ontario drove home the point that the fundamental principle of sentencing, as embodied in section 718.1 of the Code, is paramount. The panel reaffirmed the approach taken in Morgan and wrote at paragraph 16:
[16] The COVID-19 pandemic does not impel us to intervene and disturb a sentence that is fit: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089.
102In R. v. S.M., 2020 ONCA 427, Paciocco J.A., in a bail pending appeal decision, gave consideration to COVID-19 at paragraph 26 as follows:
[26] The risk that institutional incarceration can increase exposure to COVID-19 infection is a relevant and important consideration. However, S.M. has presented no case-specific foundation raising concern based on his health or demographic profile. Moreover, the Crown has provided evidence that at Joyceville Institution, where S.M. is currently residing, there have been no positive tests for COVID-19 among inmates. Without case-specific evidence of particular risk, COVID-19 considerations are of reduced weight: R. v. Kazman, 2020 ONCA 251, at para. 20 (Harvison Young J.A., in Chambers); R. v. Jesso, 2020 ONCA 280, at paras. 36-38 (Brown J.A., in Chambers). Appropriately, S.M. has not stressed his personal safety as a central consideration in his judicial interim release application.
103From a review of the cases emanating out of the Court of Appeal for Ontario thus far, one can see a real emphasis placed on the need for case specific evidence to be put before the sentencing judge in order for a sentence to be reduced on the basis of COVID-19.
104It should be noted that none of the cases out of the Court of Appeal for Ontario referred to or disapproved of the reasoning employed by Pomerance J. in R. v. Hearns, 2020 ONSC 2365. After a very thorough, thoughtful and considered review of the reported cases considering COVID-19 as a sentencing factor, Pomerance J. set out at paras. 15 to 24:
IMPACT OF THE PANDEMIC ON SENTENCING PRINCIPLES
15How does all of this impact the fitness of sentence? Clearly, the pandemic does not do away with the well-established statutory and common law principles. However, the pandemic may impact on the application of those principles. It may soften the requirement of parity with precedent. The current circumstances are without precedent. Until recently, courts were not concerned with the potential spread of a deadly pathogen in custodial institutions.
16COVID-19 also affects our conception of the fitness of sentence. Fitness is similar to proportionality, but not co-extensive with it. Proportionality dictates that the sentence should be no more than is necessary to reflect the gravity of the crime and the moral blameworthiness of the offender. Fitness looks at a broader host of factors. A sentence may be fit even if it is not perfectly proportionate. Fitness looks, not only at the length of a sentence, but the conditions under which it is served. As a result of the current health crisis, jails have become harsher environments, either because of the risk of infection or, because of restrictive lock down conditions aimed at preventing infection. Punishment is increased, not only by the physical risk of contracting the virus, but by the psychological effects of being in a high-risk environment with little ability to control exposure.
17Consideration of these circumstances might justify a departure from the usual range of sentence, such as that contemplated in R. v. Lacasse, 2015 SCC 64, para. 58:
There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender's degree of responsibility and the specific circumstances of each case. [Emphasis added.]
18The "specific circumstances of each case" would, in today's environment, include the ramifications of the current health crisis.
19The Supreme Court has, in other cases, used extraneous circumstances to reduce a sentence. In R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, it was held that state misconduct, falling short of a Charter violation, could operate in this fashion. This flowed from the operation of basic sentencing principles and did not require a constitutional analysis. In R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, the court found that misconduct by private citizens, who engaged the offender to a brutal act of vigilante violence, warranted a reduction in penalty. Characterizing the violence as a collateral consequence, the court clarified the scope of that doctrine, in three respects:
A collateral consequence includes "any consequence arising from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence, that impacts the offender";
"The question is not whether collateral consequences diminish the offender's moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances"; and
There is no requirement that collateral consequences emanate from state misconduct in order to be considered as a factor at sentencing.
20In the current context, the issue is not state misconduct. No one is to blame for the pandemic. I accept that those in charge of jails are doing their best to control the spread of infection. Nor does the issue fall neatly into the category of collateral consequences. There is nothing collateral about the conditions of imprisonment – they are as direct a consequence as one can imagine. Yet, the impact of the pandemic is a matter that is extraneous to the pillars of proportionality – the gravity of the offence and the moral blameworthiness of the offender. The point to be taken is this: a sentence may be reduced where it is necessary to denounce state conduct, or where it is necessary to account for other punitive consequences, or where the sentence would have a more significant impact on an offender. In this case, the impact is not attributable to the characteristics of the offender, though in some cases there may be heightened vulnerability. The impact is attributable to the social conditions of the time, which are very different than those in the past. COVID-19 is not a mitigating factor in the classic sense. However, it adversely affects conditions of imprisonment, and increases health risks for those in jail. On that basis, it is an important part of the sentencing equation. (my emphasis)
21I offer two caveats to this analysis.
22First, I am not suggesting that the offender receive more than the statutory credit for pre-sentence custody. The accused is entitled to credit on a 1.5 to 1 basis and that is what he will receive. I am not at liberty to assign credit beyond that prescribed in the Code. The question is not whether, looking backwards, the offender is entitled to more credit. The question is whether, looking forward, the pandemic warrants reduction of the sentence yet to be served. The question is whether the sentence already served, calculated with 1.5 to 1 credit, is a sufficient penalty. Given the pandemic, it may be that a sentence of shorter duration is not only tolerable, but appropriate, in the interests of personal and public safety.
[23] Second, I am not suggesting that the pandemic has generated a "get out of jail free" card. The consequences of a penalty – be they direct or collateral – cannot justify a sentence that is disproportionately lenient, or drastically outside of the sentencing range. It cannot turn an inappropriate sentence into an appropriate one or justify dispositions that would place the public at risk. See: R. v. Day, 2020 NLPC 1319 A00658 at para. 1. It is ultimately a question of balance. As noted by A.J. Goodman J. in R. v. T.K., 2020 ONSC 1935, at para. 74:
In summary, even in these very challenging times, the court must fully recognize the potential harmful health impact on detained persons in the various institutions, while at the same exercising the balancing required to sustain its fundamental role in the administration of justice and protection of the public.
24That balance is best informed by our collective approach to these issues. During these challenging times, people are being asked to call upon their sense of community, decency and humanity. That humanity must obviously extend to all individuals, including those incarcerated due to criminal charges or convictions. There will be cases where release from custody is not a viable option. There must be consideration of the safety of the community and the need for a proportionate sentence. Where, however, a period of time served can address sentencing principles, even imperfectly, our sense of humanity tells us that release from prison is a fit and appropriate response.
105I agree with Pomerance J. COVID-19 adversely impacts conditions of confinement and increases health risks for inmates.
106The insistence that offenders provide case specific evidence of how their future time in custody will be spent as a result of COVID-19 is tantamount to demanding they foretell the future. Offenders have no idea how long they will spend in lockdown to prevent a risk of spreading the virus.
107I am very aware that most offenders upon arrival at a jail are routinely quarantined for a period of 14 days to determine whether they exhibit symptoms of COVID-19.
108In R. v. Studd, 2020 ONSC 2810, Davies J. aptly pointed out the following regarding conditions within the Toronto South Detention Centre and Ontario Correctional Institute at paragraph 39 and 40 respectively:
[39] In addition, it does not appear that detainees are able to decide for themselves whether to wear personal protective gear while in custody. The Information Note says that as of April 27, 2020, staff and visitors are required to wear masks at all times while in the institutions. However, the Information Note says that detainees are only provided with personal protective equipment "where necessary". This suggests that detainees are not being provided with masks and other personal protective equipment on a routine basis to wear at their own discretion.
[40] There has already been a significant outbreak at one correctional institution in Ontario, the Ontario Correctional Institute, where more than 82 detainees and 22 staff have tested positive for COVID-19. Again, I do not mention this to criticize the Ministry's response to that outbreak. Rather, it simply demonstrates the reality that the virus can spread quickly and widely within an institution where people are confined and cannot engage in proper physical distancing or other protective measures.
109In R. v. Kandhai, 2020 ONSC 1611, Harris J. succinctly and eloquently stated the rationale for prospective credit at para. 7:
[7] Hardship in serving a jail sentence has always been a proper consideration in crafting an appropriate sentence. There is no specific evidence before me as to the effects on Mr. Kandhai, but there need not be. It is obvious at least up to a certain degree. The entire country is being told to avoid congregations of people. Jail is exactly that, a state mandated congregation of people, excluded from the rest of the population by reason of their crimes or alleged crimes. The situation, which has led to drastic measures in society at large, is bound to increase day to day hardship in prison and the general risk to the welfare of prison inmates . . .
110In R. v. Kochanska, 2020 ONCJ 385, my colleague, Ghosh J., adopted the reasoning of Pomerance J. in Hearns. At paragraph 75, he observed:
[75] . . . There is no apparent end in sight to the health crisis. He [Mr. Kochanska] is going to serve a lengthy penitentiary sentence. I am erring on considering restraint and proportionality in according otherwise exceptional, and likely excessive in quantum, post-sentence reduction due to the crisis.
111L.A.A. will serve substantial period of time in custody. He will suffer the psychological pain of not knowing what lies ahead. His risk of contracting COVID-19 will be higher in jail. No doubt, he will be subject to sporadic lockdowns. The time he serves will be harder for that very reason. He deserves some credit for that reality.
Conclusion
112My focus on L.A.A. is not to the exclusion of what he did to L.H.
113L.A.A. will live out his days knowing how he affected her life. Sadly, it appears he did not think of how his mother or his little sister, two women he dearly loves, would have felt had they been sexually assaulted by a strange man in a like manner.
114In her Victim Impact Statement, L.H. spoke of the profound impact L.A.A.'s conduct had on her mental health and her ability to trust others. Her confidence is low. She described her suffering as "havoc on her mind".
115She missed many days of work and school. She lost wages.
116The stress of the pending charges and being forced to come to court to testify must have been at times unbearable. Hopefully, she has found some solace in the counselling sessions she has attended.
117She has gone as well to several medical appointments seeking treatments to ensure she did not contract a sexually transmitted disease. She feared bumping into L.A.A. in the community. Psychologically, the whole ordeal was devastating for L.H.
118Having considered all of the relevant purpose and principles of sentencing, I shall impose upon L.A.A. a period of 12 months jail for the sexual assault he perpetrated upon L.H. contrary to s. 271 of the Code.
119I would have imposed a further 3 months consecutively for the offence of voyeurism contrary to s. 162(1) of the Code. The gravamen of the offence of voyeurism is the surreptitious recording of L.H.'s genitalia without her consent and for a sexual purpose. This further delict crystallized when he reached for his iPhone and pressed the 'record' button. His purpose was to memorialize the event.
120However, I will take into account the harder time L.A.A. will be serving in light of the COVID-19 pandemic. As a result, he shall serve those 3 months concurrently.
121Globally, the custodial component of the sentence to which L.A.A. will be subjected is 12 months from today's date.
122Upon release, L.A.A. shall be placed on probation for a period of 2 years on the following conditions:
a) report to a probation officer within 48 hours of your release and thereafter as required,
b) attend for any assessment and counselling recommended by your probation officer including sexual behaviours and substance abuse,
c) abstain from any contact directly or indirectly with L.H.,
d) refrain from attending within 100 m of her person, place of residence, place of employment, place of schooling, place of worship or any other place you know her to frequent, and
e) keep the peace and be of good behaviour.
123Under authority of section 487.051(2) of the Code, L.A.A. shall provide such samples of bodily substances as may be required for forensic DNA analysis and inclusion in the National Data Bank.
124Under sections 490.012(1) and 490.013 of the Code, L.A.A. shall comply with all statutory requirements of SOIRA for a period of 10 years.
125I shall decline to impose any weapons prohibition upon L.A.A. under section 110 of the Code. No weapon was used or threatened in the commission of the offences for which L.A.A. was found guilty by Selkirk J. The offender has not demonstrated himself to be inclined to the use of weapons.
126Again, I wish to thank counsel for their able and helpful submissions.
Dated: November 27, 2020
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March, M.G., J.