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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
BRANDON CRYSTAL
Before Justice B.M. Green
Reasons for Sentence
March 26, 2021
Counsel: Ms. T. Jackson.......................................................... as counsel for the Crown Ms. R. Abraham and Ms. C. McKeown............... as counsel for the Defendant
A. Introduction:
1Mr. Crystal plead not guilty to assaulting his girlfriend, Ms. P.D., on two occasions and to sexually assaulting her. The crown elected to proceed by indictment and the trial proceeded in March of 2020. Mr. Crystal was found guilty of both assaults and the sexual assault contrary to sections 266 and 271 of the Criminal Code. He also plead guilty to one count of failing to appear in court on a set date appearance. A presentence report was ordered, and the matter was adjourned for the sentencing.
2As a result of the COVID-19 related closures of the courts, the sentence hearing was adjourned again but it eventually proceeded via audio and written submissions. There were several more delays after sentencing submissions were completed including a change in counsel. Considering the convoluted history of this matter, I will briefly outline the very unusual delays that have occurred with proceeding with the sentencing.
3The crown requested short sharp jail sentences for the assaults and a fine for failing to appear in court. The most contentious issue was the sentence for the sexual assault. The crown changed her initial position and sought a penitentiary sentence in the range of 2 and a half to 3 years incarceration consecutive to the other offences as well as ancillary orders of a section 743.21; prohibition on communication while in custody with the victim, DNA orders on each count, a 10 year weapons prohibition and a 20 year S.O.I.R.A. order.
4Mr. Crystal’s trial counsel advocated for a sentence of 15 to 18 months incarceration for the sexual assault with a period of probation to follow. She recommended that the sentence ought to be served at the Ontario Correctional Institute or O.C.I., because it has programs available to assist with rehabilitating sex offenders and individuals struggling with addictions. Counsel did not oppose any of the ancillary orders. In terms of the other offences, considering their minor nature, counsel sought a suspended sentence and concurrent periods of probation.
5Mr. Crystal discharged his trial counsel after she completed her sentencing submissions. He eventually retained new counsel for the sentencing. Mr. Crystal’s new counsel made further submissions in writing seeking a sentence in the range of 12 to 15 months incarceration.
6The crown’s position is too harsh considering that Mr. Crystal is a first offender, his ongoing efforts with rehabilitation and his personal circumstances. Concomitantly, counsel’s position is unreasonably low considering the aggravating circumstances of the offences and the suggested sentence range for sexual violence within intimate relationships.
7A detailed review of the aggravating and mitigating facts, a contextualized consideration of the various applicable sentencing principles and an analysis of any comparable precedents is essential to arrive at a just sentence for this offender for these offences.
B. Delays in the proceedings:
8The sentencing was initially delayed for counsel to obtain a presentence report and character references. On the return date, the crown presented a series of cases involving sexual assaults with non-intimate partners to support the position of 3 and a half to 4 years custody. The crown submitted that the accepted sentence range for sexual assaults is 3 to 5 years incarceration. Trial counsel did not address the different sentencing ranges applicable to different types of relationships.
9After I adjourned to render a decision, I found a number of authorities from the Ontario Court of Appeal that suggested the crown’s initial sentencing position was excessive. Before making a decision, it was incumbent on me to bring this issue to counsel and the crown’s attention. Due to the pandemic and difficulties with reconvening court, on July 6th, 2020, I emailed counsel and the crown various cases and invited further written submissions on this discreet issue. The email was attached to the information to form part of the court record.
10The crown subsequently provided written submissions acknowledging that there is a long line of authorities with respect to the applicable sentence range of 21 months to 4 years for sexual violence within intimate partner relationships. The crown altered her position to 2 and a half to 3 years incarceration which falls within this range. Trial counsel made further written submissions advocating for a sentence below this range and distinguishing the various cases referred to by me. However, counsel went beyond submissions and included additional sentencing materials with new evidence that had not been introduced during the sentencing hearing.
11We reconvened court before the date set for the sentencing to address the issue of inappropriately emailing new evidence directly to me, after the hearing had been completed, without the crown’s consent or leave of the Court. While this was highly unusual and completely inappropriate, COVID-19 has caused such disruptions to ongoing court proceedings that some flexibility was warranted in this unprecedented situation.
12I allowed counsel to tender three additional letters detailing Mr. Crystal’s community service work and his ongoing counseling efforts. However, I found the contents of one of the letters to be inadmissible and quite improper. The letter was entitled “psychologist’s letter”. However, there is no evidence that the author, Ms. Penny McQueen is a Doctor of Psychology nor was she qualified as an expert in these proceedings. This letter, purportedly authored by a professional, was a thinly veiled attempt at advocacy as opposed to a genuine expert opinion or letter of support. It was a deceptive mimicry of an expert opinion. The writer was obviously biased, proffered “expert” opinions without the appropriate qualifications or foundation and she relied on material misstatements of fact. As a result, I will not rely on the contents of that letter in any way.
13After ruling that Ms. McQueen’s letter was inadmissible, the matter was adjourned again to the sentencing date. Before the return date, Mr. Crystal sent a fax to my office addressed “to whom it may concern” but the end of the letter was addressed to me and the Ontario Judicial Council. The contents of the fax were an inflammatory personal attack, referenced the evidence that I excluded and included requests for Charter relief that can only be addressed by me as the presiding trial judge. Mr. Crystal demanded that I reconsider the evidence that I had already excluded and that I should take into account the post traumatic stress disorder he suffered as a result of being charged and convicted. He requested a mistrial for bias and/or a stay of proceedings. I forwarded copies of the letter to the crown and counsel and attached it to the information to form part of the record of proceedings.
14When we returned for the sentencing, Mr. Crystal was furious that his purportedly confidential correspondence was shared with his counsel. Mr. Crystal’s upset was misplaced because there should never be any attempted private communications between a defendant and the court while a matter is outstanding. All communications must be part of the public record.
15Mr. Crystal discharged his trial lawyer. He was given another fulsome opportunity to address me. I dismissed each of the applications that were outlined in his letter in an oral ruling.
16It must be emphatically stated that sending a letter directly to a jurist while awaiting a decision is completely unacceptable, ill-advised, potentially contemptuous and could be considered as an attempt to intimidate a justice participant. Part of the reason why I did not take further steps to address this matter is that I doubt that Mr. Crystal authored the letter. The language, tone and content of the letter were very similar to Ms. McQueen’s inappropriate and misguided letter of support that I found to be inadmissible. In contrast, Mr. Crystal has always presented himself in a polite, respectful and cordial manner whenever addressing the Court. Other than an unequivocal admonition about the impropriety of this transgression, I will not consider the contents of the letter sent to me further. It is not relevant to the sentencing other than observing that Mr. Crystal’s misconduct delayed the proceedings again.
17I was fully prepared to sentence Mr. Crystal on that date but the crown was concerned about Mr. Crystal not having counsel to address this unusual situation. In addition, Mr. Crystal made it clear that he wishes to exercise his right to appeal my findings and, without a lawyer, I was concerned that he may not know how to proceed with applying for bail pending appeal. After some discussion, he indicated that he wanted another lawyer. The sentencing was adjourned again for him to get a new lawyer. There were additional adjournments for new counsel to review all the materials and make further written sentencing submissions. Mr. Crystal has had a fulsome opportunity to address any issues that he felt were not addressed by his trial counsel.
18The crown has been professional and accommodating throughout this process. I understand that the delays in sentencing have been stressful for Mr. Crystal. However, every delay in proceeding with the sentencing since July of 2020 has been as a result of the requests made by Mr. Crystal’s counsel or because of Mr. Crystal’s counsel’s conduct or his own conduct or for the benefit of Mr. Crystal.
C. Facts:
i. The aggravating circumstances of the offence:
19Mr. Crystal was involved in a short-term romantic relationship with a younger woman. They shared many common interests. After being in a relationship for a little over a month, Ms. P.D. invited Mr. Crystal to live with her while he was looking for a new apartment. Their entire relationship lasted approximately two months from the time that they met until it ended abruptly when Mr. Crystal was arrested for sexually assaulting Ms. P.D.
20The couple’s relationship began to change after Mr. Crystal moved in with Ms. P.D. He became physically aggressive with Ms. P.D. The couple spent an evening partying with friends. During an argument while walking home, he pushed her twice. She was not injured, and she did not fall down. They did not speak about his conduct that night.
21The next day, Mr. Crystal’s physically aggressive behavior towards Ms. P.D. escalated in a second pushing incident. Once again, after a night of partying and some arguing, Mr. Crystal pushed Ms. P.D. using two hands. He assaulted her in front of her friends and within the safety of her own home. Even though he was specifically told to keep his hands to himself, he persisted and continued to push Ms. P.D. with enough force that she stepped backwards. I found that the second assault was:
A two-handed push as described by both Ms. D. and Ms. G., three or four times, while Ms. D. was telling him not to touch her. Mr. Crystal was aggressively touching Ms. D. without her consent. This pushing occurred the day after he already pushed her twice when he was upset. I find that he chose to escalate a verbal dispute into a physical altercation.
22Ms. P.D. did not suffer any injuries as a result of either of these pushing incidents and she did push him back to stop the second assault. Nevertheless, it is aggravating that his physically aggressive behavior escalated to mistreating her within the safety of her own home and embarrassing her in front of friends. After the second pushing incident, the couple discussed the matter and Mr. Crystal agreed that what he did wasn’t right. On both occasions, Mr. Crystal was under the influence of alcohol and/or drugs. The relationship resumed with no further physical aggression until approximately two weeks later.
23On June 6th, 2018, the couple went out for the night to local bars. Ms. P.D. became very intoxicated. She felt so physically ill that they had to return home early. Mr. Crystal’s evidence about his level of intoxication that night was inconsistent, but he agreed that he was feeling the effects of having consumed a quantity of alcohol.
24Mr. Crystal was well aware that Ms. P.D. was very intoxicated, she felt like vomiting and her head was spinning. When they arrived home, she went straight to bed. One of them grabbed a pail to put beside the bed just in case she threw up. She laid down in bed fully clothed and Mr. Crystal laid down beside her. Ms. P.D. fell asleep with a man who she trusted to look out for her best interests.
25At some point, based on what Mr. Crystal claimed were some cues that Ms. P.D. was receptive to having sex with him, Mr. Crystal had full penetrative vaginal intercourse with his unresponsive, intoxicated and physically ill girlfriend. I found that Ms. P.D. did not and could not communicate her consent to have sex with Mr. Crystal by words or actions because she was either asleep or semi-conscious. She did not initiate or invite this sexual encounter. Rather, Mr. Crystal was aroused, he was completely apathetic to the state of girlfriend and he was entirely focused on his own sexual gratification. He thrust himself into his partner, who was not initially responding verbally or physically. Mr. Crystal was briefly interrupted while Ms. P.D. moved over to the edge of the bed to throw up. As soon as she finished throwing up and she was turtled on the bed, he immediately resumed gratifying himself without any concern for her physical state or her suffering. Disturbingly, Mr. Crystal is firmly entrenched in his beliefs that this was a mutually beneficial sexual experience.
26I find the following facts particularly aggravating:
- Mr. Crystal assaulted his domestic partner twice, one day apart;
- Even though the assaults were minor, the second assault showed an alarming lack of respect for Ms. P.D. He did not stop aggressively touching her in an unwanted manner despite the fact that he was clearly and consistently told not to push her;
- After already assaulting her twice, his behavior intensified to sexual violence;
- The sexual assault was a breach of trust between intimate partners;
- The victim was violated in the safety of her own bed when she was completely vulnerable;
- He was fully aware that she was both intoxicated and feeling physically ill, but he prioritized his own sexual needs over her sexual integrity and safety;
- He callously described “thrusting” himself into his girlfriend from behind, vaginally penetrating her and he continued to do so even after she threw up. He did not stop to offer her any assistance or show the slightest bit of compassion;
- He continued with “thrusting” himself into his helpless girlfriend until he was sexually satisfied and ejaculated without a condom. He rolled over, seemingly content with himself, until he was verbally confronted by Ms. P.D.; and
- This was dehumanizing and degrading treatment of his partner as an object for his own gratification without any regard for her needs or well-being.
27I note that there are significantly mitigating factors that are absent in this case:
- Mr. Crystal did not plead guilty and Ms. P.D. had to go through the rigors of a trial; and
- He has not expressed any remorse other than through his trial counsel during submissions. Counsel’s submission that Mr. Crystal was sorry for sexually assaulting Ms. P.D. was contradicted by the statements that he made to the probation officer during the preparation of the presentence report. He reiterated that the sexual intercourse was “consensual”. He denied any sexual violence and, shockingly, he intimated that the victim wanted what he did to her because she had a “high sex drive”. Finally, he blamed the victim for his current predicament asking, “why is she doing this” to me and that he can no longer “trust women”. He is not sorry at all because he does not believe that what he did was wrong.
28Mr. Crystal is entitled to maintain his innocence, and this is not an aggravating factor. Nevertheless, Mr. Crystal’s statements in the presentence report are relevant to the outcome of the sentencing. In R. v. Shah, 2017 ONCA 872, [2017] O.J. No. 6141 at para 8, the Ontario Court of Appeal explained that, while the lack of a guilty plea or an expression of remorse must not be treated as aggravating factors, a Court can still consider these facts when assessing the need for specific deterrence and an offender’s potential for rehabilitation:
Lack of remorse is not ordinarily a relevant aggravating factor on sentencing: R. v. Valentini, [1999] O.J. No. 251 (C.A.), at para. 82. It cannot be used to punish the accused for failing to plead guilty or for having mounted a defence: Valentini, at para. 83; R. v. J.F., 2011 ONCA 220, at para. 84, 105 O.R. (3d) 161; aff'd on other grounds in 2013 SCC 12, [2013] 1 S.C.R. 565. Absence of remorse is a relevant factor in sentencing, however, with respect to the issues of rehabilitation and specific deterrence, in that an accused's absence of remorse may indicate a lack of insight into and a failure to accept responsibility for the crimes committed and demonstrate a substantial likelihood of future dangerousness. [emphasis mine]
29Mr. Crystal cannot be penalized in any way for exercising his right to a trial however, he is not entitled to the benefit of the mitigated sentencing ranges considered appropriate in other cases because of a plea of guilty. Moreover, I am concerned about his potential for rehabilitation and whether he is dangerous to future intimate partners. Mr. Crystal has absolutely no insight into the seriousness of his misconduct. As a result, it is difficult to conceive of his potential for rehabilitation with respect to the sexually offending behaviour. It is important to send a clear message to him that will specifically deter him from treating any other intimate partners as objects for his sexual gratification.
30There has been a successful public awareness campaign that “no means no” in the context of sexual assaults. Unfortunately, cases like this one demonstrate that there needs to a more education that not saying “no” or not responding physically or verbally to being touched, doesn’t mean “yes”. A clear, consistent message must be sent to like-minded individuals that passivity is not consent. Offenders who sexually assault vulnerable victims must receive a substantial jail sentence to achieve both specific and general deterrence and denounce these crimes.
31It must be made unequivocally clear to Mr. Crystal and other like-minded offenders that there is no such thing as implied consent to sexual interactions within relationships or with strangers. Consent must be communicated in some manner, by words or actions, prior to any sexual encounter. It does not matter if there have been intimate relations in the past. Each and every sexual encounter is an individual experience. Consent cannot be assumed no matter how many times a person has previously consented to sexual relations, if ever. Obviously, if a person is unresponsive because s/he is sleeping or semi-conscious or intoxicated past the point of being able to make an informed decision, that person cannot communicate their consent. It is an egregious breach of trust within a relationship to violate the sexual integrity of an intimate partner.
ii. Victim impact
32Ms. P.D. told Mr. Crystal immediately after he sexually assaulted her that what he did was wrong, and she reported the incident to police the next day. She described feeling “vulnerable” and “frozen” during the sexual assault and she was obviously upset. She had to go through a full forensic examination and sample collection at the hospital. During the trial, Ms. P.D, presented as a thoughtful, fair and cautious witness. She declined to provide a victim impact statement when she was asked to do so by the crown, and she did not respond to the probation officer who prepared the presentence report.
33A sexual assault is undoubtedly a traumatizing experience. In R. v. E.M., [2018] ONSC 6951 at para 17 (Ont.S.C.J.), the Court explained that this type of offence has a profound impact on victims:
The act of sexual assault strips the victim of their dignity and the ability to make a choice about acts of intimacy and what happens to their body. The courts have commented about this in the past. At paragraph 272 in R. v. Arcand, 2010 ABCA 363, 264 C.C.C. (3d) 134, the Alberta Court of Appeal notes that "non-consensual sexual intercourse under any circumstances constitutes a profound violation of a person's dignity, equality, security of the person and sexual autonomy".
34Ms. P.D. related during the trial that she felt betrayed, shocked and degraded by this violation of her sexual integrity. In addition, by reporting this matter to the police, going through the examination at the hospital, sharing these intimate details of her life and having to relive the experience in court, this process compounded her humiliation.
iii. The mitigating circumstances of the offender:
35Mr. Crystal is a relatively young, first time offender. He is 35 years old. He has no criminal record despite an unstable childhood. His mother was a teenage parent who raised him on her own. He experienced some instability as a boy because they moved around often. He grew up without a male role model in his life. He acted out as a result of these issues and he also struggled with learning disabilities. He did not function well in school settings. Despite his personal challenges, he was able to obtain a high school diploma through an adult learning center.
36When Mr. Crystal was 14 years old, his stepfather was introduced into his life. They developed a strong bond and he shares a positive and loving relationship with his mother. Ms. Crystal is very supportive of her son. She confirmed that he did not have an “easy life growing up” but he is a “kind” and “caring soul”. She consistently described her son as a “great father” to his ten-year-old autistic son. She was shocked by these offences and she attributes her son’s behaviour to being under the influence of alcohol. She advised that Mr. Crystal socially isolated himself after he was arrested, and he is deeply ashamed by the nature of the charges. She confirmed that he attended counselling. She feels that he would benefit from continued participation in counseling.
37In the pre-sentence report, Mr. Crystal related only sporadic periods of employment and that he supported himself on Ontario Works. He didn’t appear to have any plans to further his education or any employment goals. However, after the presentence report was prepared, Mr. Crystal has taken great strides towards altering the direction of the path that he was following in life.
38Counsel obtained an email from a sponsor from Alcoholics Anonymous who indicated that they “talk weekly about his recovery, life and issues in his life. Recently, I’ve hired him, and he’d be able to return after his jail term. He’s very serious about staying sober and continuing to change in a positive way”. While awaiting sentencing, he has been consistently taking steps to better himself as a person and he has a support system waiting for him once he is released from custody.
39Mr. Crystal had a long-term relationship with a former domestic partner, Ms. Tims. They share a ten-year-old son. She described their relationship as amicable and he sees their son on a “regular basis”. Sadly, any period of incarceration is going to impact Mr. Crystal’s son because his father will be out of his life, at such a young age, for a significant period of time. Ms. Tims was interviewed by the author of the presentence report. She related that, throughout her seven-year relationship with Mr. Crystal, there was never any domestic or sexual violence. Ms. Tims’ positive descriptions of Mr. Crystal attenuate my concerns with respect to any future dangerous with other partners. Moreover, every family member who provided character references emphasized that he has learned a very difficult life lesson that will never be repeated with any future partners.
40There were multiple exhibits filed during the initial sentencing hearing as well as updated exhibits considering that a year has past since Mr. Crystal was convicted. I will summarize the older exhibits and then the newer exhibits.
a. Evidence presented by trial counsel:
41Trial counsel provided character references from Mr. Crystal’s uncle and his aunt, Ms. Blanchard. They both spoke very highly of him as a person and as a loving, devoted father. His uncle was shocked and “a little numb” when he learned about the criminal charges. He feels that this experience has profoundly changed his nephew in a way that has “greatly diminished the light in him”. Ms. Blanchard related that Mr. Crystal has changed from a “kind, lovable, gentle character that would brighter up any room and be happy to lend a hand” to someone with remorse that “weighs on him” and he feels “hopeless”.
42Mr. Crystal’s uncle advised that Mr. Crystal is working hard at removing the “negative influences in his life such as drugs and alcohol”. He has been attending AA meetings and he has a sponsor. A letter was also filed from Mr. Barron confirming that Mr. Crystal is attending a men’s group for counseling. Mr. Barron fostered a relationship with Mr. Crystal while attending these sessions and he observed that Mr. Crystal is committed to the support group and “personal growth” and “improvement”. He related that he has also done volunteer work with Mr. Crystal. I received additional letters from the Humane Society and St. John’s Mission confirming that Mr. Crystal has been volunteering with these organizations.
43Ms. Blanchard advised that Mr. Crystal has been taking “positive and affirming steps” to better himself. Mr. Crystal has always struggled with depression, so he has been attending counseling sessions with a psychotherapist, Mr. Hunt, for “over twenty years”. Mr. Hunt was interviewed, and he advised that their counseling focused on family dynamics and mental health in the past, but they began more focussed sessions surrounding alcohol consumption and substance use.
44During the audio submissions, trial counsel advised that, through therapy sessions with Mr. Hunt, Mr. Crystal understands that he made certain decisions that may have harmed Ms. P.D. He is sorry for the way that Ms. P.D. feels. However, he has not taken ownership or responsibility for how he made her feel because of his actions. Trial counsel indicated that Mr. Crystal is remorseful for pushing her.
45Mr. Crystal’s evidence during the trial certainly did not reflect any insight into his own admitted misconduct. For example, even though he admitted that he was pushing his girlfriend and she was saying no, he justified how he behaved because he was just joking around. It didn’t matter to him that Ms. P.D. clearly didn’t think it was funny or that she didn’t want to be touched that way. As noted by the probation officer, Mr. Crystal continues to deny the sexual assault and minimize the other offences.
46Despite all of the support that Mr. Crystal has in his life and the very positive steps that he has been taking to better himself, he made troubling statements during additional submissions on his own behalf that do not reflect the character of the person described by his supporters. Undoubtedly, this process has been challenging emotionally, mentally and psychologically for Mr. Crystal from the date of his arrest until now. I have considered his mental health issues and long-standing struggles with depression as a factor that is relevant to the sentencing. However, I will not consider his claims that he is suffering from post traumatic stress from his wrongful arrest and unjust conviction. Mr. Crystal has the right to appeal my findings, his conviction and this sentence. The appropriate venue for his expressed concerns about the convictions is the Court of Appeal.
b. Exhibits filed by new counsel:
47The delays in the sentencing have benefited Mr. Crystal. He has demonstrated a continuing commitment to rehabilitation. He provided an updated letter from his AA sponsor confirming that he has maintained his sobriety. He also secured employment with the assistance of his sponsor. Similarly, John Barron provided an updated letter that Mr. Crystal has been dedicated to attending the men’s support group “each and every week”. They have since become friends. He believes that Mr. Crystal has shown “personal growth and improvement”. They completed volunteer work together. Mr. Barron fully supports Mr. Crystal’s potential to be successful and contribute to society in a meaningful way.
48Ms. Blanchard provided another character reference for her nephew. She confirmed that he just completed his first year of sobriety. He is on a better life path and he is “taking positive and affirming steps to reset his life and get back to a better place”. She described him as a loving and devoted father to his special needs son. Mr. Crystal’s uncle also provided an updated letter of support. He described his nephew in genuinely glowing terms and that he is “loved dearly by our whole family”.
49Mr. Crystal completed an additional 75 hours of community service work with a mission. He was described as an “enthusiastic, dedicated and dependable volunteer” and that he was an “exemplary volunteer”.
c. Gladue considerations and collateral consequences:
50The presentence report indicated that Mr. Crystal was effectively abandoned by his biological father as a child. He reported that he grew up “not knowing” his biological father. His mother raised him as a single parent. He reported that he had “an estranged relation with his biological father” and that he has only met him “about a handful of times”. Mr. Crystal related that many of the issues that he struggled with as a teenager were because he had “father issues” which required counseling at a young age.
51Counsel disclosed that Mr. Crystal recently discovered more about his father’s history and background. Mr. Crystal has made more connections with his father who identifies as half Metis although he kept his heritage hidden from people. Counsel submitted that a link may be drawn between Mr. Crystal’s father’s and grandfather’s experiences as self-identifying Indigenous persons and Mr. Crystal tumultuous childhood experiences. There may be a link between Mr. Crystal’s father’s challenges and his absence from Mr. Crystal’s life. Mr. Crystal’s struggles growing up are linked to not having a father figure until his stepfather became involved in his life.
52At counsel’s request, I ordered a Gladue report to be prepared. The author of the report explained that Mr. Crystal learned of his Indigenous ancestry seven or eight years ago and advised that he did not have a relationship with his father until eight years ago. Mr. Crystal was unable to provide further information about his background. He was unable to speak to his own experiences as an Indigenous person.
53Aboriginal Legal Service contacted Mr. Crystal’s father. He explained that he “did not play a big part in Brandon’s life until a couple of years ago”. He and Mr. Crystal have recently reconnected, but Brandon had no exposure to Indigenous culture. Aboriginal legal services also researched Mr. Crystal’s background and concluded that:
We trust that this letter provides all the relevant information with regard to our efforts to respond to the Gladue Report request we received. At this point in time, we are unable to prepare a Gladue Report for Brandon Crystal for two reasons. First, we are unsure, as is he, about the specific nature of his Aboriginal ancestry and second, even if his ancestry was somehow able to be confirmed, we cannot address how being an Aboriginal person has affected his life circumstances.
The purpose of a Gladue Report is to discuss the way in which the individual, before the court has been influenced and affected by their Aboriginal ancestry – either directly, or by systemic and historical factors. This letter should not be read in any way as stating that Mr. Crystal is not an Aboriginal person – we are not in a position to draw such a conclusion. Neither should this letter be read as stating that there may not be relevant Gladue issues at play in this case. The fact that we are not able to prepare a Gladue Report for him does not mean that there are no Gladue related issues counsel may wish to raise with the court.
54Finally, counsel urged me to consider the collateral consequences of serving a custodial sentence in a forced congregate setting during a global pandemic. She submitted that Mr. Crystal should have the benefit of some prospective credit to reflect the harshness of the conditions in which he will be serving his sentence.
55It is challenging to arrive at a sentence that effectively balances the aggravating circumstances of the offence, the mitigating circumstances of this offender and addresses the absence of some important mitigating factors.
D. Legal Analysis:
56To arrive at a just sanction that balances the competing considerations, I must consider the guiding sentencing principles and any similar sentencing precedents.
i. The purposes and principles of sentencing:
57The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
58Section 718.01 of the Criminal Code provides that any sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. As a result, depending on the circumstances of the offence and the circumstances of the offender, a Court may focus on specific principles of sentencing as the most important factors to guide the Court’s decision.
59Unquestionably, the predominant sentencing principles in sexual assault cases are general deterrence and denunciation. The Criminal Code was recently amended to reiterate the importance of these sentencing principles when victims are particularly vulnerable:
Objectives — offence against vulnerable person
718.04 When a Court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances — including because the person is Aboriginal and female — the Court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.
60Ms. P.D. was intoxicated, ill and completely vulnerable when she was sexually assaulted by her partner. In addition, section 718.2 of the Criminal Code specifically directs that a Court “shall take into consideration”, when sentencing Mr. Crystal, the following statutorily aggravating factors:
(ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family; and
(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim.
61While the predominant principles of sentencing are denunciation and deterrence, both specific and general, rehabilitation remains an important goal with any sentencing particularly in a case involving a first-time offender.
ii. Principle of restraint
62Sentencing is a delicate balancing act of competing considerations to achieve a just disposition. The Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, [2015] S.C.J. No. 64 at para 12 (S.C.C.) explained:
The more serious the crime and its consequences, or the greater the offender's degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime's consequences, but also on the moral blameworthiness of [page1103] the offender. Determining a proportionate sentence is a delicate task. As I mentioned above, both sentences that are too lenient and sentences that are too harsh can undermine public confidence in the administration of justice.
63Youthfulness and a lack of criminal antecedents should weigh heavily in terms of tipping the scales towards a more lenient sentence. Except for very serious offences or crimes of violence, the primary objectives when sentencing a first offender are considerations of individual deterrence and rehabilitation. However, there are some offences, like sexual assaults, that are so serious that a custodial sentence is required even for first offenders.
64The Ontario Court of Appeal in R. v. Batisse, 2009 ONCA 114, [2009] O.J. No. 452 at paras 32 to 35 (Ont.C.A.) explained how the principle of restraint ought to be applied in this type of case:
The principle of restraint operates in three ways in the present case. First, it is an important consideration because the appellant was a first offender. As such, the restraint principle requires that the sentencing judge consider all sanctions apart from incarceration and where, as here, incarceration must be imposed, the term should be as short as possible and tailored to the individual circumstances of the accused: see R. v. Priest (1996), 30 O.R. (3d) 538 (C.A.), at p. 545.
Second, the principle of restraint requires the sentencing judge to consider rehabilitation in determining the appropriate length of the sentence. In lowering a sentence given to a first offender, this court stated in R. v. Blanas (2006), 207 O.A.C. 226, at para. 5:
[G]eneral deterrence cannot be the sole consideration. The appellant is relatively youthful and has no prior record and appears to have the full support of her family and community. Appropriate consideration must be given to the rehabilitation of the appellant.
In serious cases and cases involving violence, rehabilitation alone is not the determinative factor - general deterrence and denunciation are also significant factors to be considered. However, as this court ruled in [R. v. Dubinsky, [2005] O.J. No. 862, 2005), at para. 1, it is an error to focus almost exclusively on general deterrence and fail to consider individual deterrence and rehabilitation, especially when sentencing a first offender.
Third, Parliament has codified the principle of restraint to limit the use of incarceration as a sentencing alternative, particularly for Aboriginal offenders. Subsection 718.2 (d) of the Criminal Code provides that "an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances".
65While I am troubled by the potential impact of incarceration on Mr. Crystal as a relatively youthful first offender and I recognize his potential for rehabilitation, these factors are not my only concerns. I must balance the opposing considerations of denunciation and deterrence when crafting the least restrictive sentence in the circumstances. In order to achieve a fair sentence that addresses each of the principles of sentencing, it is essential to review any similar authorities that have considered the appropriate sentence ranges for this type of offence and where or whether Mr. Crystal’s sentence should fall within that range.
iii. The principle of parity
66In addition to the guiding sentencing principles, I must also address the principle of parity as set out in subsection 718.2 (a) of the Criminal Code:
A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
67While this is a worthy goal, each individual case is often so unique that it is difficult to achieve parity in sentencing. Ultimately, considering the unfortunately countless ways to commit a sexual assault, the distinctiveness of each offence and each offender, it is often challenging to find comparable cases. As Chief Justice Lamer stated in R. v. M. (C.A.), [1996] 1 S.C.R. 500, (1996), 105 C.C.C. (3d) 327, at paragraph 92:
...Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction.
68Sexual offences range from minimally intrusive momentary occurrences to horrifying facts. Offenders can be responsible, sympathetic and apologetic or they can be recalcitrant, unrepentant recidivists. The Ontario Court of Appeal pointedly stated in R. v. E.C., 2019 ONCA 688, [2019] O.J. No 4460 (Ont.C.A.):
The offence of sexual interference can be committed in any number of ways, and with varying levels of moral turpitude. The broad range of available sentences is rooted in the "infinitely variable ways in which the offence can be committed": R. v. M.B., 2013 ONCA 493, at para. 21. Within the wide range of available sentences, the court must impose an appropriate sentence - one that is proportionate to the gravity of the offence and the degree of responsibility of the offender, and, respecting the principle of parity, is proportionate to sentences imposed for similar offences committed in similar circumstances: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 53.
69The seminal decision that addresses the sentence range for sexual assaults within a domestic relationship is R. v. Smith, 2011 ONCA 564, [2011] O.J. No. 3832 at para. 87 (Ont.C.A.). Justice Epstein reviewed various precedents and found that:
Finally, in cases of sexual assault involving forced intercourse with a spouse or former spouse, sentences generally range from 21 months to four years: see R. v. R.(B.S.) (2006), 81 O.R. (3d) 641 (C.A.), R. v. Jackson, 2010 ONSC 3910, R. v. M.(B.), 2008 ONCA 645, R. v. Nolan, 2009 ONCA 727, R. v. Toor, 2011 ONCA 114.
70While sentencing ranges may change over time, this decision has been favourably and repetitively cited for over a decade. In R. v. H.E., 2015 ONCA 531, [2015] O.J. No. 3733 at para. 44 (Ont.C.A.), the Court of Appeal cited Smith and found that:
In R. v. Smith, 2011 ONCA 564, 274 C.C.C. (3d) 34, at para. 87, this court held that the sentence range for cases involving forced intercourse with a spouse is 21 months to 4 years. The cases at the lower end of the range involve single events. [emphasis mine]
71In R. v. L.S., 2017 ONCA 685, [2017] O.J. No. 4586 (Ont.C.A.), the defendant appealed a sentence of two years for facts involving forced vaginal intercourse with a spouse. The Court of Appeal dismissed the appeal from the sentence and stated:
The appellant raped his common law spouse. He also physically abused her twice, although the assaults were relatively minor. Denunciation, above all other sentencing principles, dictated the sentence to be imposed on the appellant. A penitentiary sentence was fully warranted in light of the gravity of the sexual assault even having regard to the appellant’s rehabilitative potential.
72In R. v. S.M.C., [2017] O.J. No. 590 (Ont.C.A.), the accused plead guilty to engaging in an act of anal intercourse while the victim, his estranged spouse, was asleep. The victim was in a highly intoxicated state at the time of the commission of the offence. The appellant argued that his sentence of 15 months incarceration was unjust because he had not “forced” himself on the victim. In a brief endorsement, the Court observed at paragraph 6 that:
The sentencing judge accepted that R. v. Smith, 2011 ONCA 564, [2011] O.J. No. 3832 (C.A.), at para. 87, identified the appropriate sentencing range. Smith held that sentences in the range of 21 months to four years are appropriate in cases of sexual assault involving forced intercourse with a spouse or former spouse. He noted that the Crown's sentencing position of 18 months was below this range. After considering the mitigating circumstances, including the appellant's lengthy restriction of liberty while on bail pending sentence, he imposed a lesser sentence than that sought by the Crown. The sentence that he imposed was within the range that the appellant says is correct.
73In R. v. Orwin, 2017 ONCA 841, [2017] O.J. No. 5663 (Ont.C.A.), the accused and the victim were involved in a short-term relationship. They went to bed after drinking wine. The next morning, the accused penetrated the victim’s anus with his finger and then his penis without her consent. He stopped penetrating her and she rolled over and said, “what the fuck”. She had some injuries on her body. She reported the matter to the police the next day. The accused was a youthful first offender with no record who was found guilty after trial. He claimed that he honestly but mistakenly believed that she was consenting to the sexual encounter. The accused struggled with some mental health issues. The victim suffered significant impact as a result of the offences. The facts in the Orwin decision are very similar to this case.
74The crown sought a sentence of 3 and a half years incarceration. Counsel sought 9 months incarceration and probation. The trial judge ordered a sentence of 2 years less 1 day to be followed by 1 year of probation. The Court of Appeal reviewed the sentence and found at paragraph 56 that:
The trial judge accurately identified the appropriate range of sentence for the appellant and his offence. He imposed a sentence at the low end of that range. In these circumstances, we cannot say that the trial judge paid no or insufficient heed to the appellant's status as a youthful first offender, his rehabilitative prospects or the principle of parity.
75Based on the Court of Appeal’s remarks, presumably the trial judge relied on the sentence range of 21 months to 4 years since 2 years is at the lower end of that range.
76In R. v. E.D., [2019] O.J. No. 2760 (Ont.C.J.) the accused was convicted of assaulting his girlfriend by pushing her to the ground. On another occasion, he broke her cell phone. Finally, during an argument, he grabbed her by or near her throat and she ended up on their bed. She didn’t want to have sex with him, so she feigned unconsciousness. He proceeded to have vaginal intercourse with her and attempted to penetrate her anally. She “nudged” him, and he stopped what he was doing. The victim recanted her statement, but Mr. E.D. was convicted after a trial. The Court noted at paragraph 78 that:
While she appeared to be unconscious, he presumed that he was entitled to have sex with her whenever he chose to and then he proceeded to do so. He made no effort to determine if she was conscious at the time, let alone whether she wanted to have sex with him.
77When determining the appropriate sentence, Justice Harris relied on the sentencing range established by the Court of Appeal of 21 months to 4 years for this type of offence. The accused was also a relatively young man and a first offender. The Court ultimately concluded that a sentence of 21 months and 3 years of probation balanced the competing sentencing considerations.
78In R. v. Studd, 2020 ONSC 2810, [2020] O.J. No. 2035 at para 13 (Ont.S.C.J.), Justice Davies engaged in a similar review of all of the sentencing precedents for sexual assaults in a domestic context. The Court concluded that “the Court of Appeal has held that cases falling at the low end of the 21-month to 4-year range typically involve a single incident”.
79The Ontario Court of Appeal, in R. v. D.B., [2020] ONCA 512 (at paragraph 9) reiterated that:
First, there is no issue that the sentence is well within the appropriate range of 21 months to four years in cases of sexual assault involving forced intercourse with a spouse or former spouse, as identified by this court in R. v. Smith, 2011 ONCA 564, [2011] O.J. No. 3832 (C.A.), at para. 87.
80I am aware that Justice Spies engaged in an extensive review of sentencing ranges for cases involving intimate partners as opposed to non-intimate relationships in R. v. P.M., [2020] O.J. No. 3207 (Ont.S.C.J.). The crown urged the Court in that case to find that “there is no basis upon which the Court could legitimately suggest that the range of sentence in the case of sexual assault of a domestic partner should be lower than that of a friend or stranger” (at para. 50).
81Justice Spies considered the rationale behind these differing sentence ranges and observed that (at para. 100):
Measuring the Smith range alongside the sentencing range proffered outside the intimate partner context raises the question of why the former range is less severe. In the absence of any direction from Smith, the perceived rationale may be that courts believe that the bodily integrity or autonomy of complainants who have a pre-existing intimate relationship with a defendant is less important. Such beliefs are outdated and have no place in our jurisprudence. As the Crown submits, the notions underlying the minimization of sexual assaults in the intimate partner context have been repeatedly debunked in academic literature and admonished in Canadian jurisprudence. Consequentially, there is no principled reason to continue perpetuating the notion that sexual assault cases involving intimate partners should be treated less severely than those involving acquaintances/strangers. [emphasis mine]
82I agree that misogynistic assumptions should have no role in determining an appropriate sentence. However, with great respect, I do not agree that there are no principled reasons underlying this disparity.
83Victims of domestic/intimate partner violence often struggle with various influences when providing their input during a sentence hearing: cultural, religious, familial and socioeconomic pressures; concerns about the impact of a lengthy period of incarceration on shared children and emotional bonds with their abuser. The cycle of violence in intimate relationships is well recognized in the criminal justice system. Intimate partners are far more likely to recant or minimize, excuse, justify, defend and even forgive their abusers than strangers or other types of relationships. There may also be instances when victims in domestic relationships have been intimidated into refraining from sharing the true extent of the harm done to them.
84Whatever the reason, sentencing judges may not have the aggravating factors of victim impact statements that truly reflect the overwhelming and traumatic impact of these offence(s) on an intimate partner that is more likely to be available with sexual violence inflicted on strangers. Instead, Courts may have no victim impact evidence, like in this case, or the victim urging an emphasis on rehabilitation and the least restrictive sanction for various reasons.
85For example, a victim may be economically dependent on the offender to support their shared children. S/he may urge the court to consider the detrimental impact on the children and the victim, if the offender is sentenced to a lengthy period of incarceration. A Court may consider a lower sentence range in these circumstances, within reason, to ensure that the victim does not feel that s/he or their children suffer more harm because of reporting the abuse. Conversely, reporting intimate partner violence may negatively impact every aspect of victim’s life and s/he may provide extensive compelling victim impact justifying a higher sentence.
86The broad spectrum of sanctions considered in the Smith decision may reflect the laudable objective of ensuring that the voices of victims of intimate partner violence are not muted, that their unique concerns are factored into a Court’s sentencing decision and that more victims are encouraged to report these types of crimes because their individual perspectives will be considered by the Court. I am not suggesting, in any way, that violence perpetrated against a partner is a less serious crime than sexually assaulting a stranger or an acquaintance. However, a sentencing hearing is not solely focused on the seriousness of an offence. The circumstances of the offender and the victim impact are also important factors. The disparate sentencing ranges reflect the flexibility required to balance these sometimes, competing sentencing considerations.
87Ultimately, Justice Spies acknowledged in P.M., supra, that, for a single incident of sexual assault with an intimate partner, the Ontario Court of Appeal has endorsed a range of sentence commencing as low as 21 months. Moreover, the Court of Appeal in Smith, supra, specifically cited earlier judgements and engaged in a review of the law when setting out this sentencing range.
88Since the Smith decision, the Ontario Court of Appeal has consistently endorsed the range of 21 months to 4 years for sexual assaults involving domestic and intimate partners. As Her Honour observed, “it will be up to the Court of Appeal to consider and hopefully revisit these two parallel lines of sentencing ranges in Bradley and Smith that it has established in sexual assault cases” (para. 105). Perhaps the answer is not to increase the lower end of the range but to have a broader sentencing range of 21 months to 5 years depending on the aggravating and mitigating factors.
89While this is an important sentencing issue to address, it does not necessarily impact the outcome of the proceedings because trial judges are not bound to follow a suggested sentencing range in any event. It must be emphasised that these ranges are not intended to be straight jackets nor are they set in stone. They are only intended to provide guidance when deciding the appropriate sentence. There may be cases of such egregious violence or with various aggravating factors that a sentence of more than 4 or 5 years incarceration is warranted. Similarly, there may be extraordinarily mitigating factors that justify a sentence below 21 months or 3 years incarceration notwithstanding the nature of the relationship between the offender and the victim.
90The Court of Appeal observed in R. v. S.M.C., [2017] O.J. No. 590 at para. 7 (Ont.C.A.) that:
We note that both at trial, and in this court, there was much discussion about different sentencing ranges for sexual assaults, depending on specific features of the sexual assault. The range of sentence imposed for similar offences can be helpful in fixing the appropriate sentence in a given case. However, it must be stressed that the ultimate question is not what range does or does not apply, but whether the sentence imposed is appropriate in the specific circumstances of the case. This sentence was fit in these circumstances.
91The sentence in this case must be reflective of the distinctive aggravating and mitigating factors. I can order a sentence outside the range, one way or the other, if the facts justify it. As the Supreme Court of Canada recently acknowledged in R. v. Friesen, 2020 SCC 9, [2019] S.C.J. No. 100 at para. 37 (S.C.C.):
This Court has repeatedly held that sentencing ranges and starting points are guidelines, not hard and fast rules. Appellate courts cannot treat the departure from or failure to refer to a range of sentence or starting point as an error in principle. Nor can they intervene simply because the sentence is different from the sentence that would have been reached had the range of sentence or starting point been applied. Ranges of sentence and starting points cannot be binding in either theory or practice, and appellate courts cannot interpret or apply the standard of review to enforce them, contrary to R. v. Arcand, 2010 ABCA 363, 40 Alta. L.R. (5th) 199, at paras. 116-18 and 273. As this Court held in Lacasse, to do so would be to usurp the role of Parliament in creating categories of offences.
92Both counsel for Mr. Crystal provided a few sentencing decisions below the range of 21 months to 4 years incarceration to support their positions. However, these cases were either factually distinguishable, outdated or exceptional sentences due to a variety of reasons. Many of the decisions involved guilty pleas with an offender who recognized the harm done and expressed remorse. These are substantially mitigating facts that are absent in this case. In contrast, I found the sentence ranges in the cases that I reviewed above, including the decade long series of appellate authorities, to be quite helpful when determining a starting point with respect to the appropriate sentence considering the facts in this case.
iv. Gladue considerations:
93Section 718.2(e) states that’s all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. As a result, when presented with a self-identifying Aboriginal offender, I am required to pay particular attention to his circumstances in order to achieve a truly fit and proper sentence. The Supreme Court of Canada in Gladue affirmed and recognized that, courts in Canada have historically failed to consider the unique circumstances of Aboriginal offenders that may bear on the sentencing process. This section of the Criminal Code is intended to remedy this failure by directing judges to craft sentences in a manner that is meaningful to Aboriginal peoples.
94The mere suggestion that an offender has some ancestral connection to an Indigenous person is not sufficient to trigger considerations of how that heritage or those life experiences should be factored into the sentence. There must be something more personal to the offender and how their Indigenous history has impacted their life or played a role in the circumstances of the offence either directly or indirectly having regard to systemic and/or historical factors.
95In R. v. F.L., 2018 ONCA 83, [2018] O.J. No. 482 (excerpts from paras. 31 to 47), the Ontario Court of Appeal provided comprehensive and helpful guidance with respect to how and when Gladue principles should be considered when crafting a sentence for an offender who self identifies as Indigenous (case citations have been omitted):
The law is clear that courts must "pay particular attention to the circumstances of Aboriginal offenders" in all cases, even those involving the "gravest of offences”. When sentencing an Aboriginal offender, courts must consider:
(1) the unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts;
(2) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection (Gladue, at para. 66).
When assessing the first branch of the Gladue framework, courts should not require offenders to establish a causal connection between "systemic or background factors" and the crimes for which they have been convicted. Such a requirement "displays an inadequate understanding of the devastating intergenerational effects of the collective experiences of Aboriginal peoples" and "imposes an evidentiary burden on offenders that was not intended by Gladue". This court has rejected a "causal connection" requirement in multiple decisions.
It is also insufficient for an Aboriginal offender to point to the systemic and background factors affecting Aboriginal people in Canadian society. While courts are obliged to take judicial notice of those factors, they do not "necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel.
The correct approach may be articulated as follows. For an offender's Aboriginal background to influence his or her ultimate sentence, the systemic and background factors affecting Aboriginal people in Canadian society must have impacted the offender's life in a way that (1) bears on moral blameworthiness, or (2) indicates which types of sentencing objectives should be prioritized in the offender's case. This approach finds support both in Ipeelee and decisions of this court.
The Supreme Court made clear in Ipeelee, at para. 83, that systemic and background factors need to be "tied in some way to the particular offender and offence". LeBel J. went on to note that "[u]nless the unique circumstances of the particular offender bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized, they will not influence the ultimate sentence." LeBel J. elaborated on the concept of "culpability" at para. 73, explaining that "systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness."
… From a sentencing judge's perspective, adhering to this approach requires attention to two factors.
First, a sentencing judge must take judicial notice of the systemic and background factors affecting Aboriginal peoples in Canadian society. These factors include "such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples": Ipeelee, at para. 60. This list is not exhaustive.
Second, a sentencing judge must consider whether those systemic and background factors "bear on the [offender's] culpability or indicate which types of sanctions may be appropriate in order to effectively achieve the objectives of sentencing": Kreko, at para. 23. This inquiry, by necessity, requires the sentencing judge to consider whether those factors have impacted the offender's own life experiences -- in other words, whether the offender has "lift[ed] his life circumstances and Aboriginal status from the general to the specific". If systemic and background factors have impacted an Aboriginal offender's own life experiences, the sentencing judge must then consider whether they "illuminate the offender's level of moral blameworthiness" or disclose the sentencing objectives that should be prioritized: Radcliffe, at para. 53; Kreko, at para. 23.
Sentencing judges must therefore be attentive to whether the circumstances of Aboriginal offenders -- viewed in the light of the systemic and background factors described above -- "diminish their moral culpability". In conducting this inquiry, however, courts must display sensitivity to the "devastating intergenerational effects of the collective experiences of Aboriginal peoples", which are often difficult to quantify: Ipeelee, at para. 82. When inquiring into "moral blameworthiness", courts must ensure they do not inadvertently reintroduce the same evidentiary difficulties that Ipeelee sought to remove.
Systemic and background factors, however, do not operate as an excuse or justification for an offence: Ipeelee, at para. 83. They are only relevant to assessing the "degree of responsibility of the offender", and to considering whether non-retributive sentencing objectives should be prioritized. Accordingly, Gladue and Ipeelee do not detract from the "fundamental principle" that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: Ipeelee at para. 73. What Gladue and Ipeelee recognize is that evaluating the degree of responsibility of an Aboriginal offender requires a "different method of analysis": Ipeelee, at para. 59. A different method of analysis does not necessarily mandate a different result: Kakekagamick, at para. 36. Crafting a just and appropriate sentence may, in some cases, require giving greater weight to sentencing objectives such as deterrence and denunciation: Gladue, at para. 78; R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, at para. 44. As this court recognized in Kakekagamick, at para. 42:
To be clear, s. 718.2 (e) does not require, nor is there a general rule, that Aboriginal offenders must be sentenced in a way that gives the most weight to the principle of restorative justice. It may be that in certain cases the objectives of restorative justice articulated in s. 718.2 (e) and Gladue will not weigh as favourably as those of separation, denunciation and deterrence.
96Even though Aboriginal Legal Services were not able to confirm Mr. Crystal’s father’s history, Gladue principles remain relevant to this sentencing. However, in the absence of an informative report, the evidence about Mr. Crystal’s Indigenous ancestry and the impact of that ancestry on his life circumstances is limited. Mr. Crystal’s father confirmed his ancestry and that he has had little contact with his son. He has been involved in the criminal justice system in the past and there is some suggestion that he struggled with alcoholism. This parental alienation and abandonment negatively impacted Mr. Crystal as he attributed his “acting out” behavior as a youth and substance abuse, in part, to unresolved issues with his father’s absence from his life.
97Counsel referred to the Court of Appeal’s recent decision in R. v. Reddick, 2020 ONCA 786 (at paras 7 and 8), that considered the application of Gladue principles in the absence of a fulsome report outlining the offenders’ history. The Ontario Court Appeal emphasized that:
Despite the fact that Aboriginal Legal Services declined to provide a Gladue report because Mr. Reddick and his family members lacked specific information about his Aboriginal ancestry, or evidence of how his Aboriginal ancestry affected Mr. Reddick's life, the sentencing judge accepted that Mr. Reddick was Indigenous and drew on relevant information in the presentence report in order to comply with s. 718.2(e). She identified and considered Mr. Reddick's childhood trauma and its link to his addiction and psychological issues, and expressly confirmed that she was imposing a "low-end" sentence on Mr. Reddick because of Mr. Reddick's Indigenous ancestry and his displacement from his culture. She applied the Gladue principles appropriately and sensitively.
Nor do we agree that the sentencing judge failed to pay adequate attention to rehabilitation. She included "rehabilitation" when describing the sentencing objectives that she was required to consider, and she reaffirmed the importance of restorative sentencing for Indigenous offenders. She ultimately rejected the rehabilitative sentence that Mr. Reddick proposed precisely because that sentence did not respect the primary sentencing objectives of deterrence and denunciation that apply to the offences he committed. She also encouraged Mr. Reddick to pursue his links to his Aboriginal community, a clear invitation to assist in his rehabilitation. Simply put, the sentencing judge considered rehabilitation, and made an appropriate decision to give priority to denunciation and deterrence in the sentence she imposed.
98Mr. Crystal is trying to heal from his past traumas and grow as a person. Part of his path towards rehabilitation is understanding his Indigenous history and how his grandfather’s and father’s conduct may have been influenced by systemic and background factors unique to Aboriginal people. A link, albeit not the strongest, may be drawn between the Mr. Crystal’s father’s and grandfather’s experiences as self-identifying Indigenous persons keeping that part of their lives hidden and Mr. Crystal’s father’s own struggles and his absence from Mr. Crystal’s life. The devastating impact of intergenerational familial displacement within Indigenous communities is almost impossible to quantity and difficult to connect to individual families.
99I accept that Mr. Crystal’s challenges growing up without a father figure when he was younger played a role in his substance abuse later in his life. The consumption of alcohol and drugs before each offence negatively influenced his conduct towards the victim. The parental alienation and related substance abuse that he experienced may be linked to generational systemic and background factors unique to persons of Indigenous descent. A carefully crafted probation order can address some restorative justice goals while supporting Mr. Crystal’s ongoing rehabilitation. However, the application of the Gladue principles are only one factor to consider within a constellation of many other relevant factors. Considering the nature of these offences and the violation of Ms. P.D.’s sexual integrity when she was so vulnerable, I must give priority to the principles of denunciation and deterrence while still acknowledging Mr. Crystal’s potential for rehabilitation.
v. Summary of the applicable legal principles:
100Mr. Crystal pushed Ms. P.D. around on two separate occasions leading up to the sexual assault. The second pushing incident demonstrated that he did not respect Ms. P.D.’s personal boundaries and he did not take no for an answer. After physically assaulting her twice, there was a single incident of sexual violence within a domestic relationship that was immediately reported to the police. The fact that he persisted with having sexual relations with his drunk, physically ill and unresponsive girlfriend before and after she vomited without any apparent concern for her well-being is particularly aggravating.
101The sentence proposed by counsel of 12 to 15 months is unjustifiably lenient and unsupported by any precedent with similar facts. It falls significantly below the suggested sentence range for sexual assaults within intimate partner relationships. Counsel overemphasized the circumstances of the offender and failed to adequately address the aggravating circumstances of the offence. This offence was a serious breach of trust and the violation of the sexual integrity of an intimate partner within the safety of her own home. Although Mr. Crystal has taken great strides to better himself as a person, he has not addressed his potential for rehabilitation with respect to sexually assaulting his domestic partner. His attitude of entitlement to gratify his needs while ignoring the safety and sexual integrity of his partner is alarming.
102Concomitantly, the penitentiary sentence advocated by the crown is not reflective of the remarkable steps that Mr. Crystal has taken on the path towards becoming a better person in the past year, his lack of any criminal antecedents and the immense support that he enjoys which will ensure a successful reintegration into the community when he is released from custody. Moreover, it fails to recognize the added context that his substance abuse issues may be rooted in parental alienation unique to Indigenous people that is related to systemic and background factors which may impact his culpability and contributed to the offending behaviour. Mr. Crystal’s judgement was impaired by the consumption of drugs and/or alcohol during each offence.
103The crown submitted that Gladue principle do not apply in this case, I do not agree. However, this issue does not necessarily alter the outcome of the sentencing, it is one factor to consider when assessing a fit sentence.
104While a significant period of incarceration is necessary to address the predominant sentencing principles, a penitentiary sentence would prohibit me from ordering an extended period of community supervision after Mr. Crystal is released from custody. It is evident that Mr. Crystal needs continued help to address various issues. A lengthy probation order would be particularly beneficial to ensure the ongoing protection of the victim, the long-term interests of protecting the public by ensuring that Mr. Crystal receives counseling and, hopefully, gains insight into his deviant behaviour. In addition, extensive counseling terms can be specifically tailored to Mr. Crystal’s background to accomplish some restorative justice.
105A probation order can serve as a rehabilitative tool, but it can also achieve specific deterrence. I will be ordering Mr. Crystal to comply with the maximum period of probation, in part, to act as a constant reminder of the consequences of his misconduct. The Ontario Court of Appeal observed in R. v. Inksetter, (2018) 2018 ONCA 474, 141 O.R. (3d) 161 at paragraph 18 that:
Probation has traditionally been viewed as a rehabilitative sentencing tool. It does not seek to serve the need for denunciation or general deterrence: R. v. Proulx, [2000] 1 S.C.R. 61, [2000] S.C.J. No. 6, 2000 SCC 5, at p. 87 S.C.R. Further, in this case the trial judge specifically viewed probation as a rehabilitative sentencing tool: he noted how it would assist in ensuring that the respondent continued to receive counselling. To the extent that probation was not intended as a rehabilitative tool, it was intended to address specific deterrence. The trial judge included a period of probation to achieve these objectives although he had found they had already been significantly accomplished.
106A sentence should be looked at holistically in terms of assessing its denunciatory and deterrent impact. Considering the cumulative impact of a period of incarceration and all of the orders that will be imposed, including the fact that Mr. Crystal will be a registered sex offender for the next 20 years, all of these sanctions, collectively, accomplish the predominant sentencing principles of denunciation and general deterrence while still addressing the principle of restraint and hope for Mr. Crystal’s rehabilitation.
vi. COVID-19 considerations:
107Counsel urged me to consider the risks that Mr. Crystal will face when being sentenced to a period of incarceration amid a global pandemic.
108I acknowledge that when Mr. Crystal is remanded into custody, he will be in a forced congregated setting with other individuals without any personal control over social distancing measures, personal protective equipment or sanitizers. It is understandable that he is worried about being in jail during a pandemic and that his health and well-being could be put at risk.
109In R. v. Studd, 2020 ONSC 2810, [2020] O.J. No. 2035 at para 42 (Ont.S.C.J.), Justice Davies observed that:
The Supreme Court of Canada has recognized that there will be situations that call for a sentence outside the normal sentencing range because of the specific circumstances of a particular case. However, proportionality must still prevail. Individual or collateral consequences cannot reduce a sentence to the point that it becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender.
110In R. v. A.A., [2020] O.J. No. 3243 at paragraphs 66 and 67 (Ont.S.C.J.), the Court addressed a sentencing with an offender who contracted COVID-19 while in custody. Justice Corrick emphasized that:
I have also considered the fact that A.A. will be required to serve his sentence while the pandemic is ongoing. As numerous jurists have already commented, the fear of transmission of this virus adversely affects the conditions of imprisonment and increases the psychological stress of inmates who can do little to protect themselves: Hearn, at para. 16; R. v. Kandhai, 2020 ONSC 1611, at para. 7; R. v. Studd, 2020 ONSC 2810, at para. 44.
The fundamental principle of proportionality remains paramount however. Collateral consequences cannot be used to reduce a sentence to the point where it is no longer proportionate to the gravity of the offences or the moral blameworthiness of the offender: Suter, at para. 56.
111In addition to ensuring that the sentence is proportionate, I have to consider that the custodial facilities are responsible to ensure Mr. Crystal’s care and safety. In R. v. Stone, [2020] O.J. No. 2953 at para. 14 to 20 (Ont.C.A.), Justice Juriansz addressed COVID-19 concerns in the context of an application for bail pending appeal. The Court noted that:
If, in the future, there is an outbreak of COVID-19 at Bath Institution, it will up to the prison authorities to take appropriate measures to ensure the health and safety of those who are incarcerated or work in the institution, as well as of the general public.
112The crown presented a document that is circulating throughout the courts in Ontario outlining the steps that are being taken to alleviate concerns about the spread of the pandemic within institutions. This document provided important information about the protective policies and practices that have been adopted in response to COVID-19 in correctional facilities across the province. The “Response to COVID-19 Information Note” authored by the “Strategic Advisor Institutional Division” within the Ministry of the Solicitor General summarizes all current and resolved cases of COVID-19 in institutions across the province and all measures that are being taken by these facilities, including C.E.C.C., to protect the health and safety of the staff and prisoners.
113While conditions at the C.E.C.C. are far from ideal, I hope that Mr. Crystal will not be housed there for a significant period of time. I will be strongly recommending on the warrant of remand that Mr. Crystal serve his sentence at the Ontario Correctional Institute where the inmates have access to more rehabilitative programming and better treatment. With ongoing counselling, I am optimistic that Mr. Crystal will gain insight into his responsibility for his offending conduct and he fully appreciates that he cannot assume that a person is consenting to his sexual advances.
114I am sympathetic to the concerns of Mr. Crystal and other incarcerated individuals with respect to their inability to control their exposure to the virus. No one knows what the future holds, whether there will be another wave of this deadly virus or how correctional institutions will continue to handle this ongoing crisis. However, I will be sentencing Mr. Crystal close to the lowest end of the applicable sentencing range. If I were to reduce his sentence any further, in the unique circumstances of this case, it would result in a disproportionate sentence that does not reflect the predominant sentencing considerations. It will be up to the provincial institutions to continue to address this challenging situation and ensure the safety of the individuals in their institutions.
vii. The appropriate sentence:
115After considering the aggravating and mitigating facts, the applicable sentencing principles and the guiding legal precedents, Mr. Crystal will be sentenced to a period of incarceration of 22 months for the sexual assault to be followed by a period of 3 years of probation as well as the requested ancillary orders.
116I recognize that this period of incarceration is at the bottom end of the range of sentences for this type of offence. However, considering the lengthy period of probation with extensive counselling requirements, it is the least restrictive sanction for a relatively youthful first-time offender, with particular attention to his circumstances as a person of Aboriginal descent, that balances the competing sentencing considerations of denunciation and deterrence.
117None of the other offences warrant a period of incarceration.
E. Conclusion:
118It is important that Mr. Crystal continues on the path towards rehabilitation while in custody. Accordingly, it is strongly recommended that he serve his sentence at the Ontario Correctional Institute or O.C.I. so he will have the opportunity to participate in the programs that they offer for sex offenders and individuals struggling with addictions.
119Mr. Crystal is sentenced as follows:
Sexual assault:
- 22 months custody;
- 3 years of probation with the terms and conditions attached in schedule I;
- 20 year S.O.I.R.A. order;
- Section 109 weapons prohibition for 10 years; and
- Section 743.21 order prohibiting communication while in custody with P.D. or any member of her immediate family
For both assaults and the failing to appear there will be concurrent sentences:
- Suspended sentence and 3 years of probation with the terms and conditions attached in schedule I;
- Section 110 weapons prohibition for 10 years; and
- D.N.A. orders for all four offences with an execution time of 5 p.m. today.
120These offences predate the recent changes in the legislation relating to victim fine surcharges. As a result, the victim fine surcharges on all counts are waived.
Schedule I – Terms of the Probation Order
Statutory conditions:
- Keep the peace and be of good behavior;
- Appear before the court when required to do so;
- Notify the court or probation officer in advance of any change of name or address and promptly notify the court or probation officer of any change in employment or occupation
REPORTING
- Report in person or by telephone or by zoom to a probation officer:
- Within two weeks of your release from custody; and
- thereafter at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision
- Your reporting requirements will end when you have satisfied your probation officer that you have
- Completed all of your counselling
- You must cooperate with your probation officer. You must sign any releases necessary to permit the probation officer to monitor your compliance and you must provide proof of compliance with any condition of this Order to your probation officer upon request
NO CONTACT AND NOT ATTEND TERMS:
- Do not contact or communicate in any way, directly or indirectly, by any physical or electronic or other means with P.D. or any member of her immediate family;
- Do not to post any information about, depictions of, recordings of or photographs of P.D. on any social media site; and
- Do not be within 250 meters of any place where you know P.D. to live, work, go to school, frequent or any place that you know P.D. to be;
EXCEPT
- While attending at required court appearances;
COUNSELLING AND TREATMENT
- Attend and actively participate in all assessments, counselling or rehabilitative programs as directed by your probation officer and complete them to the satisfaction of your probation officer including but not limited to:
- Alcohol and substance abuse;
- The P.A.R.S. program;
- Respecting sexual boundaries; and
- Restorative justice programs unique to Indigenous offenders;
- You shall sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed; and
- You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed
