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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 —
J.W.
Before: Justice G.P. Renwick
Written Submissions Received: 08 and 09 April 2020
Reasons for Judgment Released: 09 April 2020
Counsel:
- K. Slate, counsel for the Crown
- M. LeBlanc, counsel for the defendant J.W.
Reasons for Sentence
Introduction
1Following a brief trial, I found the Defendant guilty of one count of sexual assault and not guilty of assault.
2Given the recent decision of Chief Justice Maisonneuve of the Ontario Court of Justice to suspend the regular sittings of the court in response to the global pandemic (the Coronavirus, also known as COVID-19), I suggested, and the parties agreed to conduct the sentencing hearing by way of written submissions. I have received a Pre-Sentence Report ("PSR"), the written submissions of the parties, a Victim Impact Statement ("VIS"), and two letters of support from family members of the Defendant.[1]
3At trial, I found that the sexual assault took place when the Defendant had asked his older aunt to accompany him into the basement to show her something. Once in the boiler room, he exposed his penis, he touched himself, and he said"give me lip." The defendant's penis became partially erect. When the aunt left the boiler room, the Defendant followed her to the kitchen and forcefully grabbed her by the hair.
4The parties have jointly submitted that a suspended sentence and two years of probation is an appropriate sentence in all of the circumstances.
Discussion
5The law is well settled: "a trial judge should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest."[2]
6The PSR was generally positive. It outlines a difficult childhood and on-going mental health issues suffered by the Defendant, who since the offence has been diagnosed with schizophrenia. The Defendant has also had a history of drug use, which he has now appeared to have ended.
7Both the PSR and the character letters filed support a finding that the Defendant comes from a loving family with whom he maintains positive relations. The Defendant is fortunate to have the on-going support of his family, which seems to have been lost by the complainant for having reported the sexual assault to the police.
8I am satisfied that the Defendant has made significant strides to better himself since committing this offence: he has taken steps to complete his high-school education, he has stopped taking non-medically prescribed drugs, he has given up negative peer influences, and he has maintained therapy with his treating psychiatrist.
9I have also taken into account the victim impact statement of Ms. L.D. She continues to fear the Defendant. She is no longer comfortable going to her childhood home, where her mother and sister live (the Defendant's grandmother and mother, respectively), given that this is where the sexual assault took place and it is where the Defendant lives.
10For the following reasons, I am prepared to accede to the joint submission:
i. The parties have jointly recommended this sentence following a trial – they are experienced counsel and are ad idem on all items;
ii. It is not contrary to the public interest – I find that it would adequately protect the public, while maintaining the governing sentencing principles of deterrence and denunciation;
iii. The joint submission would not bring the administration of justice into disrepute – in fact, because the sentence takes into account the pre-trial custody credit earned by the Defendant, the sentence is significant;
iv. The proposed sentence takes into account 102 actual days of pre-trial custody, which I have credited at 1.5:1, for a total of 153 days in jail;
v. This offence seems out of character for the Defendant – I acknowledge the Defendant is not a first-offender (his record is attached and recorded in the PSR), however, this is his first conviction for a sexual offence;
vi. The Defendant is youthful (he was 19 at the time of the offence);
vii. The Defendant has the support of his family;
viii. Through the PSR, the Defendant has acknowledged the harm he has caused: he wished it had not happened, and "He expressed regret for his actions and admitted there was an alternate and more fitting way to address the situation" (pp. 5 and 7 of the PSR) – this helps to establish that the Defendant has insight into this offence and he is not likely to re-offend;
ix. Although misguided as a reason to explain this crime, the Defendant believes that he was sexually molested by his aunt, numerous times as a child – again, this is not a mitigating factor for the sexual assault, but may serve to explain the Defendant's motive in committing this offence and the unlikelihood that he would re-offend;
x. The author of the PSR suggests that the Defendant is a good candidate for supervision in the community (p. 7 of the PSR);
xi. At the time of the offence, the Defendant was undiagnosed for a major mental illness and I find that he had been self-medicating by taking drugs to deal with his underlying mental state;
xii. At the start of his trial, the Defendant admitted an assault by having pulled his aunt's hair, which plea was refused; and
xiii. The Defendant's psychiatrist believes that the Defendant's mood and behaviour have stabilized over the course of her treatment of him and she has discharged him to the care of his family physician (p.8 of the PSR).
Sentence
11For the offence of sexual assault, J.W. is sentenced as follows:
i. He has served 102 actual days in pre-trial custody, which has been credited as the equivalent of 153 days of incarceration, which shall be noted on the Information;
ii. I am imposing a suspended sentence with probation for two years with the following terms:
a. Keep the peace and be of good behaviour;
b. Attend court when required;
c. Notify your probation officer within 48 hours of any changes of name, address, or occupation;
d. Attend upon a probation officer within 5 business days of the effective date of this sentence (that is to say within 5 business days after 17 April 2020), and thereafter as required by your probation officer and in the manner required by your probation officer;
e. Have no contact, directly or indirectly, with L.D.;
f. Do not attend at or within 100m of the places of residence, education, employment, or worship of L.D., or any other place you know or find her to be, except if she attends [address removed], at which point, you will leave your residence while she visits your family members during the hours of 8:00 am and 10:00 pm;
g. Possess no weapons as defined in the Criminal Code of Canada;
h. Take counselling as directed by your probation officer;
i. Attend a sexual behaviour assessment as directed by your probation officer, including, but not limited to, attendance at the Centre for Addiction and Mental Health (CAMH), and/or the Manasa Clinic;
j. Continue any course of treatment advised or prescribed by your treating psychiatrist or family physician;
k. Possess no controlled drugs or substances except with a validly obtained medical prescription; and
l. Complete releases of information in favour of your probation officer to supervise your attendance, participation, and completion of any counselling or medically required treatments;
iii. On 24 April 2020, between the hours of 9:00 am and 5:00 pm you will attend the Peel Regional Police Sir Robert Peel Centre located at 7750 Hurontario Street, Brampton and surrender yourself at the front counter for the purposes of submitting a sample of your deoxyribonucleic acid ("DNA") for the national databank under the following conditions:
a. Your DNA will be taken in a way that respects your bodily integrity, health and safety, and privacy, as much as the circumstances allow;
b. Police are authorized to take a DNA sample from you by plucking hairs from your head and/or taking buccal swabs from your mouth and/or taking blood from your finger by use of a sterile lancet; and
c. Force can be used to take your DNA if you do not cooperate with the DNA sampling procedure;
iv. You are subject to a weapons prohibition under s. 110 of the Criminal Code for two years;
v. You are required to register under the Sex Offender Information Registration Act as required by s. 490.011(a), s. 490.012(1), and s. 490.013(2)(a) of the Criminal Code, for 10 years; and
vi. This sentence shall not take effect until 17 April 2020.[3]
12As this sentence will not take effect until 17 April 2020, the Defendant remains on bail, under his current conditions until 5:00 pm on 17 April 2020.
Released: 09 April 2020
Justice G. Paul Renwick
Footnotes
1All documents will be filed with the Information and my sentencing judgment. The PSR is exhibit #1A. The VIS is exhibit #1B. The prosecutor's written submission is exhibit #1C. The letter of R.W. is exhibit #2A. The letter of S.D. is exhibit #2B. The written submission of the Defendant's counsel is exhibit #2C.
2R. v. Anthony-Cook, 2016 SCC 43, [2016] S.C.J. No. 43 at para. 32.
3This is to permit the Court to prepare the necessary Orders to carry out this sentence.