Ontario Court of Justice
DATE: 2021 10 28 COURT FILE No.: 19-2717
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
ANDREW WYVILL
PUBLICATION BAN S. 486.4
Before: Justice Angela L. McLeod
Judicially pretried on: December 9, 2020 and February 19, 2021 Guilty plea on: March 12, 2021 and sentencing submissions September 10, 2021 Reasons for Judgment released on: October 28, 2021
Counsel: Julie Janiuk, for the Crown John Raftery, for the accused
Overview
1Mr. Wyvill has been convicted of sexual interference arising out of an incident that occurred on the 23rd day of March 2019.
2On that date, he was 19 years of age; the complainant A.D. was 14 years of age.
Summary of the Facts
3An agreed statement of fact was filed as Exhibit #1a.
4A brief summary follows:
(1) A.D. was a friend’s house for a sleepover;
(2) A number of other youths, most of whom were 14 and 15 years of age, were also in attendance. Mr. Wyvill was in attendance;
(3) The group planned to consume alcohol;
(4) A.D. became increasingly intoxicated over the course of the night. She was observed to be very intoxicated, not really able to function, looking confused, falling over and almost passing out;
(5) From time to time the group would call A.D. “baby” and tease her because she was the youngest of the group, the only one in grade 9;
(6) A.D. removed her jeans and laid down on the basement couch, dressed in a t-shirt and underwear. She passed out;
(7) Mr. Wyvill tried to pull off her blanket and took her pillow. She got up and went in the vacant basement bedroom in order to close the door and try to sleep;
(8) At approximately 2:00am, Mr. Wyvill entered the bedroom, took off the blankets, pulled A.D’s underwear off and then penetrated her vagina with his fingers. He then performed cunnilingus on her while saying “I’m going to fuck you” and “I know you want to”;
(9) Mr. Wyvill left the room and returned for a second time at about 3 am. He began touching her vaginal area. He removed his pants and underwear and moved A.D., who had been laying on her side, onto her back. He had sexual intercourse with her following which he dressed and left the room, saying that he would be back;
(10) To this point, A.D. had been in and out of consciousness. She told police that she was really drunk and was unable to move. She was aware of what was happening but was too intoxicated to move or speak;
(11) At approximately 3:30am, Mr. Wyvill entered the bedroom for the 3rd time. He rolled A.D. onto her stomach and got on top of her from behind. A.D. started to come around. He got off and laid on his back. He tried to get A.D. to go on top of him. A.D. began pushing his chest, trying to get him off of her. She said no, over and over. Mr. Wyvill said “okay, you don’t want to?” She replied “no”. He then apologized and said that had he known he would not have had sex with her. He told her that he couldn’t go to jail and she told him not to worry that she wouldn’t say anything. She told him to leave. He dressed and left the room;
(12) At approximately 3:46am, A.D. texted her mom telling her that she did not feel safe and needed to be picked up as she wanted to go home. When her stepfather arrived, she was wearing only her underpants and a t-shirt and walked barefoot across the icy, rocky driveway;
(13) A.D. attended at a local hospital. There was evidence of rectal and vaginal bruising. She had to take several medications including the morning after pill and STI/HIV medication which made her feel ill. She was subjected to a Sexual Assault Evidence Kit, including both anal and vaginal swabbing.
Circumstances of the Defendant
5A presentence report was filed as Exhibit #2.
6The salient facts are summarized hereafter:
(1) He has one conviction on his criminal record for ‘over 80’ in 2018;
(2) He was “exposed to turmoil and instability within the formative family home environment at an early age. Collateral sources identify that the subject’s father abused alcohol and that there was related conflict within the home.”;
(3) He has a girlfriend, whom he met at ‘The Pier’ in Collingwood, and she advised that he continues to maintain his innocence to her;
(4) He completed high school, took on a position as a co-op education student and progressed to a full-time position in a tire and car maintenance shop in 2015;
(5) His alcohol consumption has decreased since this incident;
(6) He rejected the option for referral to counselling supports;
(7) He acknowledged that the complainant would have experienced fear;
7A number of reference letters were filed as composite Exhibit #6, including a letter from Mr. Wyvill himself. All of the letters extol his virtues, none spoke of A.D. or of the offence itself. Each letter had a similar theme; to quote his mother “to remove such a bright star, and possibly destroy the wonderful career he had ahead of him would be absolutely devastating.”
Victim Impact
8Victim impact statements were filed as Exhibits # 3, 4, 5, 6, 7 and 8. All were read into the record.
9Several of the passages were of particular saliency and speak to the long-lasting and significant impact felt by A.D and her family:
(1) A.D. – “There once was a 14 year old girl who was very outgoing, happy go luck, A+ student, who would go out with her friends, without one care in the world. Now there is a girl, scared of her own shadow let alone anyone else.”;
(2) A.D. – “You completely screwed with not only by body but also my mind and my soul. You have put me in a state that I fear I will never find a way out of.”;
(3) A.D – “You took my innocence, my happiness, my drive in life and even my will to live for a while. I had 4 more years in my teenage life where I could be carefree and get away with just being a kid. You have taken that from me.”;
(4) A.D. – “Ever since I left that dark room on March 22, 2019, I have hated my body. I feel used, and like a piece of meat. I feel uneasy and gross in my own body. I hate the way I look, I hate my body, when I take pictures with my friends I want to break down because I think they are all beautiful humans inside and out and I feel disgusting.”;
(5) Mom- “She looked like an empty shell; the spark and light that she always emitted was gone. I took her hand, walked her to her room to find out what had happened. I had to try to contain myself as she told me what you had done to her … my 14-year-old baby girl.”;
(6) Mom – “What you did to my daughter has also caused the breakdown in strong male relationships in [A.D.’s] life. [A.D.] has had a strong bond with her ste-father ever since he came into her life when she was 6 yrs of age. But now, she no longer feels comfortable receiving any sort of affection from him or any of the other male figures in her life – her stepfather, her biological father, grandfather or uncles. She no longer hugs them and appears uncomfortable by even an arm or a shoulder. To this day, even for me to wrap my arms around her, she is apprehensive and seems nervous.”;
(7) Mom – “We did not feel it was appropriate to tell our youngest daughter, only 6 years old at the time, that her sister had been raped. So, we have continued to try and keep this hidden from her. This has caused further stress and tension in our household. We all have to be careful when talking to be sure our youngest is not in earshot. Which is difficult for a 14-year-old to remember. It also means [A.D.] cannot speak freely in her own home about the assault and rape. For over 2 years, when [A.D.] is emotional or needing to talk to me, it breaks my heart each time I have to ask or remind her to speak quietly.”;
(8) Stepfather – “Seeing my wife’s grief and guilt … seeing [A.D.]’s fear … a piece of you dies. You feel like you let your baby down. You know nothing will be the same.”;
(9) Father – “She often feels alone and isolated. She’s not the same person since that day.”
Aggravating and Mitigating Factors
10I find the following facts to be mitigating:
(1) The plea of guilt, heightened by the current global pandemic, (R. v. Gabourie, 2021 ONCJ 9);
(2) Mr. Wyvill’s familial and community support;
(3) Mr. Wyvill’s employment status.
11I find the following facts to be aggravating:
(1) A.D. was intoxicated, and to the degree that she passing out, confused and unable to function. This was known to the ‘party goers’;
(2) That A.D. was literally helpless due to her intoxication; such that Mr. Wyvill was able to perpetrate his attack without any resistance;
(3) That A.D. was violated three times, over the course of hours;
(4) That each violation increased in severity and invasiveness, noting that sentencing is not a question of which body part was touched, or what act was undertaken, but rather focusses on the breach of the integrity of the complainant;
(5) The profound impact upon not only A.D. but her family members as well;
(6) Mr. Wyvill’s history of criminal offending involving self induced intoxication;
(7) The failure of Mr. Wyvill to use a condom, and the resultant necessity for A.D. to take the morning after pill and STI/HIV medications;
(8) In addition to the emotional and psychological harm, A.D. suffered physically including both rectal and vaginal bruising;
(9) Mr. Wyvill’s expression of concern that he would go to jail to A.D. immediately after violating her for the 3rd time, and his request that she not tell anyone what had happened;
(10) Mr. Wyvill’s complete and utter lack of understanding about consent, such that having violated a non-functioning, often unconscious, intoxicated young girl who manages to mutter “no”, his response is “Okay, so you don’t want to?”, claiming that had he known of her lack of consent he would not have had sexual intercourse with her. Any apology given at the time in question was, I find, self motivated and insincere;
(11) Mr. Wyvill’s lack of understanding of his problem with alcohol as exhibited by his decreased, but not eliminated, consumption of alcohol since this incident;
(12) Mr. Wyvill’s unwillingness to participate in counselling;
(13) Mr. Wyvill’s continued denial of guilt to his girlfriend, which lessens the mitigation of his guilty plea.
Position of the Parties
12The Crown seeks a custodial sentence of 2 years less one day, 36 months probation, a DNA order, a s. 109 order for 10 years and a SOIRA order for 20 years.
13The Crown relies heavily upon the decision of R. v. Friesen, 2020 SCC 9, [2019] 391 C.C.C. (3d) 309, in support of this position and in particular urges this court to give primary consideration to the sentencing principles of denunciation and deterrence.
14The Crown submits that this position is at the low end of the range, noting the guilty plea, some triable issues, the current global pandemic and the potential impact upon A.D. should she have had to testify at a preliminary inquiry, trial, or both.
15Additionally, the Crown referred to the case of R. v. E.C., 2019 ONCA 688, [2019] O.J. No. 4460 (ONCA), the facts of which are similar to the case at bar and wherein the Court of Appeal overturned the original sentence of 6 months (post jury trial) and imposed a sentence of 18 months custody.
16The defence submits that this court should sentence “the person and not the offence”. That is clearly and manifestly wrong in law.
17The defence seeks a conditional sentence in the range of 18- 24 months.
18The defence submits that should the defendant be sentenced to ‘real jail’ there would be no incentive to apologize, to provide DNA or to spare the victim from testifying.
19I find this submission inappropriate and palpably offensive. It speaks to the complete lack of understanding about the impact of sexual abuse of children and the role of the criminal courts. Furthermore, it is in contradiction to the defence submission that Mr. Wyvill is remorseful for his actions.
Sentencing Principles and Caselaw
20The fundamental purpose of sentencing set out in s. 718 of the Criminal Code is to protect society and to contribute, along with crime prevention measures, to respect for the law and the maintenance of a just, peaceful and safe society by imposing sanctions that have one or more of the following objectives:
(a) denouncing unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) deterring the offender and others from committing crimes;
(c) separating offenders from society where necessary;
(d) assisting in the rehabilitation of the offender;
(e) providing reparations for harm done to the victim or to the community;
(f) promoting a sense of responsibility in the offender, and acknowledging the harm done to victims and the community.
21The fundamental principle in sentencing, as set out in s. 718.1, is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
22In Friesen, supra, the Supreme Court of Canada’s decision began with a statement about child sexual abuse:
5Third, we send a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase. Court must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament’s sentencing initiatives and by society’s deepened understanding of the wrongfulness and harmfulness of sexual violence against children. Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families, and society at large.
23The SCC decision underscores the need for sentencing jurists to begin with the harm caused:
50To effectively respond to sexual violence against children, sentencing judges need to properly understand the wrongfulness of sexual offences against children and the profound harm that they cause. Getting the wrongfulness and harmfulness is important.
51… Sexual violence against children is thus wrongful because it invades their personal autonomy, violates their bodily and sexual integrity, and gravely wounds their dignity.
56This emphasis on personal autonomy, bodily integrity, sexual integrity, dignity, and equality requires courts to focus their attention on emotional and psychological harm, not simply physical harm.
63The ripple effects of sexual violence against children can make the child’s parents, caregivers, and family members secondary victims who also suffer profound harm as a result of the offence.
80We wish to focus courts’ attention on the following two categories of harm; harm that manifests itself during childhood, and long-term harm that only becomes evident during adulthood.
24The SCC decision also speaks to the moral culpability of offenders who commit sexual violence against children:
88Intentionally applying force of a sexual nature to a child is highly morally blameworthy because the offender is or ought to be aware that this action can profoundly harm the child. In assessing the degree of responsibility of the offender, courts must take into account the harm the offender intended or was reckless or wilfully blind to.
89All forms of sexual violence, including sexual violence against adults, are morally blameworthy precisely because they involve the wrongful exploitation of the victim by the offender – the offender is treating the victim as an object and disregarding the victim’s human dignity.
90The fact that the victim is a child increases the offender’s degree of responsibility. Put simply, the intentional sexual exploitation and objectification of children is highly morally blameworthy because children are so vulnerable.
25In E.C., supra, the court noted that:
14 Nor does the parties' relative proximity in age detract from the complainant's vulnerability, or from the respondent's blameworthiness in taking advantage of that vulnerability. While a greater discrepancy in age can be an aggravating factor, the opposite is not true. It is not a mitigating factor that the respondent was only six years and two months older than the complainant. The gravamen of the offence of sexual interference was described by Feldman J.A. in R. v. B. (A.), 2015 ONCA 803, 333 C.C.C. (3d) 382 (Ont. C.A.), at para. 45, as follows:
[T]he protection for children is not simply from sexual exploitation but from any sexual contact or the invitation to sexual contact with adults. Parliament viewed the protection to be necessary because of the inherent power imbalance that undermines consent, and because of the physical and psychological consequences of a sexual encounter between a child and an adult stemming from that imbalance.
Analysis
26The Crown proceeded by Indictment. The mandatory minimum sentence was struck down in R. v. B.J.T., 2019 ONCA 694. The maximum sentence was increased in 2015 to 14 years.
27A.D. was 14 years of age; she was not legally capable of consenting AND she was unconscious for the majority of the sexual abuse.
28In R. v. A.(J.), 2011 SCC 28, the Supreme Court of Canada addressed the framework of sexual assault and the concept of consent and the capacity to consent. At paragraph 36, the Court wrote:
Section 273.1(2)(b) provides that no consent is obtained if "the complainant is incapable of consenting to the activity". Parliament was concerned that sexual acts might be perpetrated on persons who do not have the mental capacity to give meaningful consent. This might be because of mental impairment. It also might arise from unconsciousness: see R. v. Esau, [1997] 2 S.C.R. 777 (S.C.C.); R. v. Humphrey (2001), 143 O.A.C. 151 (Ont. C.A.), at para. 56, per Charron J.A. (as she then was). It follows that Parliament intended consent to mean the conscious consent of an operating mind.
29A.D.’s age, state of intoxication and/or state of unconsciousness was known to Mr. Wyvill. He took advantage of unconsciousness not once, not twice but three times.
30His actions were violent and devastating. His degree of responsibility and moral blameworthiness is high.
31In R. v. Percy, 2019 NSPC 12, the Nova Scotia Provincial Court reviewed the range of sentences across the country for sexual assault upon an unconscious victim:
43 Starting points or sentencing ranges for sexual assault involving intercourse or similarly severe conduct from other provincial appellate courts include: a starting point of three years in custody (Alberta - Arcand, Saskatchewan - R. v. Iron, 2005 SKCA 84 (Sask. C.A.)); a range of three to five years in custody with acknowledgement that the lower part of the range could extend to 18 months in some circumstances (Newfoundland/Labrador - R. v. Vokey, 2000 NFCA 14; R. v. Squires, 2012 NLCA 20 (N.L. C.A.), para. 77); a range of two to six years in custody (British Columbia - R. v. M. (G.), 2015 BCCA 165 (B.C. C.A.)); and, a range of 21 months to four years (Ontario - R. v. Smith, 2011 ONCA 564 (Ont. C.A.), R. v. Thurairajah, 2008 ONCA 91 (Ont. C.A.), para. 48; and, R. v. Garrett, 2014 ONCA 734 (Ont. C.A.)). Unfortunately, intercourse with sleeping or unconscious women is common enough that some courts have identified a range for that specific activity as being between 18 months and 3 years in custody (R. v. Smith, 2015 ONSC 4304 (Ont. C.A.) at para. 32).
46 I have reviewed these decisions and they have informed my decision. These cases suggest that the range, across Canada, for sexual assault involving intercourse is from 18 months to four years, even where the accused has no prior criminal record. Cases at the lower end generally include mitigating factors such as a guilty plea and genuine remorse. Aggravating factors such as the use of violence or threats to overcome resistance or having intercourse with an unconscious person generally moves the accused up within the range.
48 Cases with similar circumstances to those in the case before me have been useful in narrowing the applicable range. I will briefly review some of those cases:
R. v. J.A. M. (2018 NSSC 285) (N.S. S.C.) - a custodial sentence of 2 years. The offender was 39 years old with a prior unrelated record. He had unprotected vaginal and anal intercourse with the victim while she was asleep or unconscious;
R. v. Burton (2017 NSSC 181) (N.S. S.C.) - a custodial sentence of two years plus three years probation. The offender was 50 years old with no prior adult record. He had unprotected vaginal intercourse with the victim and engaged in other sexual acts while she was asleep or unconscious. After the verdict, he came to accept responsibility for the offence and expressed remorse. It appears from the reasons that the custodial sentence might have been higher but for the sentencing judge's belief that the public would be better served by a sentence that would allow for a period of probation;
R. v. Arcand (2010 ABCA 363) (Alta. C.A.) - a custodial sentence of two years less a day plus probation. The Court of Appeal agreed that a downward departure from the usual three-year starting point was warranted. The offender and the complainant were both intoxicated, and he began having intercourse with her after she passed out. He was 18 years old and had no criminal record;
R. v. Ouellet (2014 ONSC 5387) (Ont. S.C.J.) - a custodial sentence of 30 months. The offender was 53 years old and had a dated unrelated criminal record. He had sexual intercourse with the victim while she was significantly incapacitated by drugs and/or alcohol;
R. v. F. (J.) (2015 ONSC 5763) (Ont. S.C.J.) - a custodial sentence of 18 months followed by two years. The offender and the victim had been friends. After drinking together, he had intercourse with her while she was sleeping. He was 25 years old, had no criminal record, and had expressed remorse.
32In R. v. Smith, 2015 ONSC 4304, Justice Campbell spoke to the range wherein the Crown proceeds by Indictment:
32 Generally speaking, in cases where the accused has been prosecuted by indictment, the usual range of sentence for this type of invasive sexual assault on a sleeping or unconscious victim is somewhere between an upper reformatory term of imprisonment and a lower penitentiary term of imprisonment (i.e. between 18 months and three years). For example, in R. v. Shalley, 2005 MBCA 150, 201 Man. R. (2d) 142 (Man. C.A.), Twaddle J.A., delivering the judgment of the Manitoba Court of Appeal, stated, at para. 15: The appropriate range of sentences for "sexual assault involving non-consensual intercourse with a woman asleep or unconscious, assuming an offender of previous good character who pleads guilty and expresses remorse, is two to three years imprisonment" per Vertes J. in R. v. B.A.M., 2004 NWTSC 74, at para. 18.
33Many other judicial authorities similarly support this general range of sentence. See also R. v. Kennedy, [1999] O.J. No. 4278, 140 C.C.C. (3d) 378 (Ont. C.A.), at paras. 2-6, 23 [maximum reformatory term of imprisonment imposed on appeal]; R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207 (S.C.C.), at paras. 7-8, 10-12, 47-48 [a 20 month reformatory term of imprisonment was fit; the conditional sentence request was rejected]; R. v. H. (H.), [2002] O.J. No. 1509, 158 O.A.C. 272 (Ont. C.A.), at paras. 1-6 [conditional sentence set aside; accused sentenced to 18 months imprisonment]; R. v. R. (J.), 2008 ONCA 200, 59 C.R. (6th) 158 (Ont. C.A.), at paras. 2, 21-26 [two years penitentiary imprisonment; conditional sentence request rejected]; R. v. Colbourne, 2013 ONCA 308, [2013] O.J. No. 2095 (Ont. C.A.), at paras. 1-5, 17 [14 months reformatory imprisonment was at the "low end of the range"]; R. v. Rand, 2012 ONCA 731, 307 O.A.C. 64 (Ont. C.A.), at paras. 3-9, 19 [four year penitentiary sentence was well within the appropriate range]; R. v. Ouellet, 2014 ONSC 5387, [2014] O.J. No. 4942 (Ont. S.C.J.), at paras. 12-18, 25, 29, 33-40, 43-45 [30 months imprisonment].
33The above reference cases dealt with adult victims but are helpful in determining a starting point for the consideration of the appropriate sentence herein.
34In E.C., supra, the facts were similar to the case at bar. The victim was 15 and the respondent was 22 years of age; the victim was intoxicated and there were 3 instances of sexual encounters (including sexual intercourse); however, the respondent was found guilty after a jury trial and, the parties had engaged in de facto consensual intercourse, not legal in law. The Court of Appeal substituted a sentence of 18 months custody.
35Friesen, supra, was heard on October 16, 2019 and released in writing on April 2, 2020. E.C., supra was heard April 23, 2019, and released on September 4, 2019, thus the Court of Appeal did not yet have the guidance of the Supreme Court regarding sentencing in matters involving the sexual abuse of children. As noted above, Friesen, supra, stands, in part, for the need to increase the sentences imposed in these types of cases to appropriately address the resultant harm.
36The court in Friesen, supra held that:
114 D. (D.), Woodward, S. (J.), and this Court's own decisions in M. (C.A.) and M. (L.). make clear that imposing proportionate sentences that respond to the gravity of sexual offences against children and the degree of responsibility of offenders will frequently require substantial sentences. Parliament's statutory amendments have strengthened that message. It is not the role of this Court to establish a range or to outline in which circumstances such substantial sentences should be imposed. Nor would it be appropriate for any court to set out binding or inflexible quantitative guidance — as Moldaver J.A. wrote in D. (D.)"judges must retain the flexibility needed to do justice in individual cases" and to individualize the sentence to the offender who is before them (at para. 33). Nonetheless, it is incumbent on us to provide an overall message that is clear (D. (D.), at paras. 34 and 45). That message is that mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances. We would add that substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim, as in this case, Woodward, and M. (L.). In addition, as this Court recognized in M. (L.), maximum sentences should not be reserved for the "abstract case of the worst crime committed in the worst circumstances" (para. 22). Instead, a maximum sentence should be imposed whenever the circumstances warrant it (para. 20).
37Furthermore, the court wrote:
120 It is an error of law to treat sexual interference as less serious than sexual assault. As stated above, Parliament has established the same maximum sentences for both sexual interference and sexual assault of a person under the age of 16. The elements of the offence are also similar, and a conviction for sexual assault of a child and for sexual interference with a child can frequently be supported on the same factual foundation (R. v. M. (S.J.), 2009 ONCA 244, 247 O.A.C. 178 (Ont. C.A.), at para. 8).
And,
99 These successive increases in maximum sentences indicate Parliament's determination that sexual offences against children are to be treated as more grave than they had been in the past. As Kasirer J.A. (as he then was) reasoned in Rayo, the legislative choice to increase the maximum sentence for child luring [TRANSLATION] "must be understood as a sign of the gravity of this crime in the eyes of Parliament" (para. 125). We agree with Pepall J.A.'s conclusion in Stuckless (2019) that Parliament's legislative initiatives thus give effect to society's increased understanding of the gravity of sexual offences and their impact on children (paras. 90, 103 and 112).
100 To respect Parliament's decision to increase maximum sentences, courts should generally impose higher sentences than the sentences imposed in cases that preceded the increases in maximum sentences. As Kasirer J.A. recognized in Rayo in the context of the offence of child luring, Parliament's view of the increased gravity of the offence as reflected in the increase in maximum sentences should be reflected in [TRANSLATION] "toughened sanctions" (para. 175; see also Woodward, at para. 58). Sentencing judges and appellate courts need to give effect to Parliament's clear and repeated signals to increase sentences imposed for these offences.
38I do not have a joint submission as to the appropriate sentence.
39Considering all of the factors noted above and underscoring the need to address denunciation and deterrence, the appropriate sentence is 30 months custody, a DNA order, a s. 109 order for 10 years and a SOIRA order for 20 years.
Released: October 28, 2021 Signed: Justice Angela L. McLeod
