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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
DATE: 2023 10 04 COURT FILE No.: Halton Info # 1211 998 21 4118
B E T W E E N :
HIS MAJESTY THE KING
— AND —
DWAYNE THOMAS
Before Justice Jennifer Campitelli Heard on September 19, 2023 Reasons for Judgment released on October 4, 2023
Counsel: Michael Godinho ................................................................................. counsel for the Crown Sean Biesbroek ............................................... counsel for the accused Dwayne Thomas
1Following a trial, Dwayne Thomas was found guilty of the following. That he:
a) On or about the 5th day of March in the year 2021 at the Town of Milton in the said Region, did commit a sexual assault on J.S. contrary to Section 271 of the Criminal Code of Canada; and
b) On or about the 5th day of March in the year 2021 at the Town of Milton in the said Region, being an official peace officer employed at the Vanier Centre for Women, did commit a breach of trust in connection with the duties of his office, contrary to section 122 of the Criminal Code of Canada.
2A detailed summary of the facts was included in my written reasons for judgment released on May 16, 2023. Therefore, only summary reference is required at this time.
3It was established at trial beyond a reasonable doubt that Dwayne Thomas, while he was working at the Vanier Centre for Women, and while he was acting in his capacity as a correctional officer, sexually assaulted J.S. At the time of the assault, J.S. was an inmate under his direct supervision. The assault occurred within a confined shower area, outside of the reach of any video surveillance. On this record, the sexual assault involved vaginal penetration, and it occurred after J.S. had refused to provide Mr. Thomas with oral sex. Mr. Thomas did not ejaculate inside J.S.; rather, he ejaculated on the shower floor. It was further established that when Mr. Thomas assaulted J.S. on March 5, 2021, he committed a breach of trust in connection with the duties of his office. Specifically, as a peace officer employed at the Vanier Centre for Women.
Background of the Offender
4Mr. Thomas is a 44-year-old first time offender. The pre-sentence report (PSR) provides some insight into Mr. Thomas’ upbringing and personal circumstances. Mr. Thomas was raised primarily by his mother and stepfather. He describes his childhood in positive terms, recalling that his parents worked hard to provide for the family unit. Although Mr. Thomas did not share a close relationship with his stepfather growing up, he describes him as a good provider. Currently, Mr. Thomas reports that he does not share a close relationship with any of his siblings, and neither his mother nor his siblings are aware of the charges before the court.
5Mr. Thomas was married between 2006 and 2015 to Dorettia Guoti, and the pair share two children together. Ms. Guoti is aware of these proceedings and provided a letter of support for my review [1]. Ms. Guoti describes Mr. Thomas as a reliable and trusted friend, and she confirms her support for him as he navigates these proceedings. Ms. Guoti identifies the significant impact a custodial disposition will have on their teenaged children. Certainly, the impact Mr. Thomas’ incarceration would have on his dependent children is inescapable; however, Mr. Thomas is the author of these consequences: R. v. Scott, [1996] O.J. No. 3419 at para. 5.
6I have also received and reviewed letters of support from Mr. Thomas’ employer [2] and Mr. Thomas’ close friend. [3] Both speak of Mr. Thomas in positive terms and confirm access to means of support within the community.
7As is his absolute right, Mr. Thomas maintains his innocence with respect to the sexual assault and the breach of trust he was found guilty of. This is an absence of a mitigating factor; but, may not be treated as an aggravating factor: R. v. Reeve, 2020 ONCA 381.
8Mr. Thomas has been on release without any issues since the time of his arrest.
Impact on the Victim
9J.S. provided a victim impact statement [4], which outlines the significant and long-lasting emotional and physical impact of the sexual assault she endured. She speaks of falling into a period of deep depression, where she isolated herself in her cell for eighteen months. She speaks of feelings of embarrassment, self-blame, and an increased level of continued anxiety.
10J.S. also recounts poor treatment by both guards and inmates at the Vanier Centre for Women after she reported being sexually assaulted. She speaks of feeling fearful and her presence at the institution constantly reminding her of what she experienced.
Position of the Parties
Crown
11The crown seeks an exemplary sentence for Mr. Thomas, arguing these facts present exceptionally aggravating circumstances. The crown submits the appropriate range of sentence, in Mr. Thomas’ individual circumstances, is a period of custody in the range of six-and-a-half to eight years. By way of ancillary orders, the crown seeks a DNA order, a s. 109 order for ten years, and a SOIRA order for twenty years. It is the crown’s position that Mr. Thomas should be sentenced on both counts concurrently.
12The crown grounds its position in the principles of general and specific deterrence and denunciation. The crown stresses the aggravating nature of these facts, namely: forced vaginal intercourse of an inmate by a correctional officer, who was directly responsible for J.S.’ supervision. The crown argues Mr. Thomas’ position as a correctional officer, and the degree of power he exercised over J.S. in that capacity, provided him with a unique opportunity to exploit her vulnerabilities. Finally, the crown urges me to consider it aggravating that Mr. Thomas proceeded to sexually assault J.S. by penetrating her vaginally, in the face of her refusing to provide him with oral sex.
13There is no dispute between the parties with respect to the guiding legal principles I must apply in the circumstances, given the nature of the offences committed. However, in support of its position that an exemplary sentence is required, the crown relies on the following cases in particular:
a) R. v. Snelgrove, 2021 NLSC 194. A decision of the Newfoundland and Labrador Supreme Court where Mr. Snelgrove was sentenced to four years imprisonment. Mr. Snelgrove, a police officer, was convicted of sexually assaulting a young woman who, having had too much to drink, sought his assistance in getting home. While on duty, Mr. Snelgrove escorted the complainant home, entered her place of residence, and sexually assaulted her. The sexual acts consisted of fellatio, vaginal and anal sex.
b) R. v. Redmond, which is an unreported decision of Justice J. O’Brien of the Ontario Court of Justice. Justice O’Brian agreed that a departure from the three to five-year range was warranted in Mr. Redmond’s individual circumstances, and sentenced him to six years imprisonment. Mr. Redmond, a police officer, was convicted of sexually assaulting an intimate partner while she remained unconscious. The assault involved vaginal penetration. He recorded the assault, made the complainant aware of the recording, and threatened to divulge it to her friends. Of note, Mr. Redmond was sexually assaulted by a family friend as a child, experienced mental health related challenges and struggled with a substance abuse related disorder.
Defence
14On behalf of Mr. Thomas, Mr. Biesbroek argues that an appropriate sentence in Mr. Thomas’ individual circumstances is one of four years. The defence takes no issue with the ancillary orders being requested by the crown. Mr. Biesbroek agrees that sexual assault is an inherently violent offence. However, he stresses with a view to the facts before me specifically, that there was no violence apart from what is inherent in such an offence: R. v. Bradley, 2008 ONCA 179, [2008] O.J. No. 955 at para. 18. He also points out that Mr. Thomas ejaculated on the shower floor, and not inside of J.S. In mitigation, Mr. Biesbroek points to Mr. Thomas’ support in the community, his pro-social relationships with his children and the mother of his children, and his compliance with the conditions of his undertaking while on release and awaiting trial.
15In support of its position, the defence relies on R. v. S.G., 2023 ONSC 2051. Mr. Biesbroek urges me to find that Mr. Thomas is a similar offender and thus, should receive a similar sentence:
a) In R. v. S.G., 2023 ONSC 2051, a decision of the Ontario Superior Court of Justice, S.G. was sentenced to 4 years imprisonment. S.G was 25 years older than the complainant. The complainant called S.G. “Dad” or “Old Man”, and he was A.G.’s father-in-law. S.G was convicted of a sexual assault, which included vaginal penetration.
Grounding Legal Principles:
16I note Justice Fairburn’s comments surrounding the offence of sexual assault in the Ontario Court of Appeal’s recent decision in R. v. A.J.K., 2022 ONCA 487, [2022] O.J. No. 2862:
72 In some cases, appellate courts are called upon to chart a new course and bring sentencing ranges into "harmony” with a new societal understanding of the gravity of certain offences or the degree of responsibility of certain offenders": Friesen, at para. 35. See also: R. v. Wright (2006), 83 O.R. (3d) 427 (C.A.), at para. 22. That is what we are being asked to do here. It is right to do so.
73 A sexual assault involving forced penetration is a sexual assault involving forced penetration. An act of sexual violence perpetrated on a stranger to the accused is not necessarily worse than a similar act of sexual violence perpetrated on an intimate or former intimate partner. Any suggestion to the contrary could only rest on unacceptable myths and stereotypes, ones that a fair justice system must continuously confront and eradicate: see R. v. Ewanchuk, 1999 SCC 711, [1999] 1 S.C.R. 330, at para. 82.
74 All sexual assaults are serious acts of violence. They reflect the wrongful exploitation of the victim whose personal autonomy, sexual integrity, and dignity is harmfully impacted while being treated as nothing more than an object. Whether intimate partners or strangers, victims of sexual violence suffer profound emotional and physical harm and their lives can be forever altered. So too can the lives of their loved ones.
75 As the years pass, enlightenment on the implications of sexual violence continues to permeate our conscious minds. In Friesen, the court noted, at para. 118, that "our understanding of the profound physical and psychological harm that all victims of sexual assault experience has deepened" and, I would add, is continuing to deepen: see also R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3, at para. 37. As Moldaver J. stated in R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 1: "Without a doubt, eliminating ... sexual violence against women is one of the more pressing challenges we face as a society" and "we can - and must- do better" (emphasis in original). This comment encapsulates why these sentencing ranges as they have come to be understood must be reconciled.
76 The fact that the complainant had a relationship or prior relationship with the accused cannot serve to justify a sentencing range below a range for non-intimate partner sexual violence. To the extent that the Smith has been interpreted as suggesting otherwise, it is no longer to be understood this way. Absent some highly mitigating factor, the forced penetration of another person will typically attract a sentence of at least three years in the penitentiary. While Bradley and the cases following it suggest that the range is three to five years, this is of course just a range, a quantitative sentencing tool designed to assist busy trial judges with where to start: Parranto, at paras. 15-17. Accordingly, there will be circumstances where a departure from the range, either above or below the range, is entirely appropriate.
17I am also mindful of the Supreme Court of Canada’s comments in R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579. Specifically, the court’s observation in the first paragraph that, “without a doubt, eliminating myths, stereotypes, and sexual violence against women is one of the more pressing challenges we face as a society”.
18Moreover, I found Justice Jones’ review of the law helpful in R. v. R.R., 2022 ONSC 5400:
35 The moral blameworthiness of an offender convicted of sexual assault is normally high. In R. v. Friesen, 2020 SCC 9 at para. 89 the Supreme Court of Canada held:
All 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 (see R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584, at paras. 45 and 48).
36 Denunciation and general deterrence are typically the primary sentencing principles in cases of sexual assault: see, for example, R. v. Forsellino, 2022 ONSC 262 at para. 24. Furthermore Criminal Code section 718.04 requires a sentencing court to give primary consideration to the objectives of denunciation and deterrence 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."
19With respect to my analysis related to the breach of trust committed by Mr. Thomas, I found Justice Hill’s review of the law in R. v. Cook, 2010 ONSC 5016, [2010] O.J. No. 4414 provided guidance. In particular, at paragraphs 29, 32, 35 and 36:
29 Police officers, as officials discharging public duties, occupy a special position of trust in the community: R. v. LeBlanc (2003), 2003 NBCA 75, 180 C.C.C. (3d) 265 (N.B.C.A.) at para. 32; R. v. McClure (1957), 118 C.C.C. 192 (Man. C.A.) at 200; United States v. Rehal, 940 F.2d 1, 5 (1st Cir. 1991). "[A] heavy trust and responsibility is placed in the hands of those holding public office or employ": R. v. Berntson (2000), 2000 SKCA 47, 145 C.C.C. (3d) 1 (Sask. C.A.) at para. 24 (aff'd 2001 SCC 9, [2001] 1 S.C.R. 365, at para. 2). Individuals working in the justice system "owe a duty to the public to uphold the values of that system" (R. v. Feeney et al., 2008 ONCA 756, 238 C.C.C. (3d) 49 (Ont. C.A.) at para. 5) with the administration of justice "depend[ant] on the fidelity and honesty of the police": R. v. McClure, supra, at 200.
32 The police, in the execution of their duties, gain access to places and situations which the ordinary person does not experience: United States v. Foreman, 926 F.2d 792, 795 (9th Cir. 1990). In such situations, an officer may be in a position "where he can commit offences without arousing suspicions": R. v. Shaw (1968), 66 W.W.R. 626 (B.C.C.A.) at 628. For example, where a police officer victimizes a drug dealer"the offender is likely to escape scot-free": R. v. Yaghi, supra, at para. 17. In R. v. LeBlanc, supra, at para. 27, the court stated:
Police officers have opportunities, practically on a daily basis, to cross the line and engage in prohibited conduct. The public trusts them to resist the temptation and relies upon the courts to deal firmly with those who stray.
So too, in R. v. Berntson, supra, at para. 25, the court referred to the statement of then Governor Franklin D. Roosevelt of New York in making his order removing Sheriff Farley from office, that public officers "are so close to the means for private gain that in a sense not all true of private persons" (The Public Papers and Addresses of Franklin D. Roosevelt, at pp. 583-4).
35 Because police compliance with the rule of law is presumptive, when sentencing a police officer for a crime involving breach of the public trust the court may properly take into account that the accused would necessarily be well aware "of the consequences of its perpetration": R. v. Cusack (1978), 26 N.S.R. (2d) 379 (C.A.) at 385 (cited with approval in R. v. Feeney et al., supra, at para. 8); R. v. Yaghi, supra, at para. 48 (as a police officer"the potential consequences" of the accused's criminality "should have been starkly obvious to him").
36 Not surprising is the reality that individuals who find themselves before a criminal court convicted of a breach of trust crime are able to adduce abundant good character evidence - "[i]t is, of course, this very type of character profile which allows an individual to attain a position of trust": R. v. Williams, [2007] O.J. No. 1604 (S.C.J.) (QL) at para. 25; R. v. Ranson, [2007] EWCA Crim 153 at p. 2 (as to police defendants"[a]s would be expected, each appellant was of good character"); R. v. Ryan, [2004] N.S.J. No. 338 (S.C.) (QL) at para. 30 (aff'd 2004 NSCA 115) (in the face of the number of character references filed with the court sentencing a police officer, trial judge remarked that it was difficult to "get any real understanding of why he engaged" in the criminal activity). Indeed, it has been observed that "law-abiding persons, with good employment records and families...are the ones most likely to be deterred by the threat of severe penalties": R. v. Proulx (2000), 2000 SCC 5, 140 C.C.C. (3d) 449 (S.C.C.) at 503.
Sentencing Principles
20Section 718 of the Criminal Code of Canada describes the purpose of sentencing: The fundamental purpose of sentencing is to protect society and 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 acknowledgement of the harm done to victims or to the community
21A sentence must be “proportionate to the offence and the degree of responsibility of the offender”: Criminal Code s. 718.1. The degree of responsibility of the offender requires a consideration of the offender’s moral blameworthiness. Assessing that moral blameworthiness must be done through the perspective of the offender’s life experiences and personal characteristics: R. v. Morris, 2021 ONCA 680 at para. 88. This process of individualization is “central to the proportionality assessment”: R. v. Parranto, 2021 SCC 46 at para. 12.
22Ultimately, the sentence imposed must reflect the gravity of the offence, the offender’s degree of responsibility and the unique circumstances of the case: R. v. Lacasse, 2015 SCC 64 at para. 58.
Aggravating and Mitigating Factors
23While not an aggravating feature, the fact that Mr. Thomas did not plead guilty, which would have evidenced acceptance of responsibility for his crimes, does impact the leniency or compassion, which might otherwise be available were the circumstances different: R. v. DaCosta, 2015 ONSC 4790 at para. 14.
24Section 718.2 (a) of the Criminal Code of Canada requires that a sentence be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. I find the following aggravating factors are present in this case:
a) The victim was penetrated vaginally;
b) The assault happened in a correctional facility where J.S., as an inmate housed therein, was significantly deprived of her privacy and ability to control her own movement. This placed J.S. in a situation of increased vulnerability;
c) Mr. Thomas sexually assaulted J.S. in a private shower area;
d) The assault occurred in an area of the correctional facility, which the offender knew was beyond the reach of any available video surveillance;
e) Mr. Thomas vaginally penetrated the victim after she explicitly refused to provide him with oral sex;
f) Mr. Thomas’ position as a correctional officer at the Vanier Centre for Women placed him in a position of authority, which significantly increased J.S.’ vulnerability relative to him. J.S. was an inmate under his direct supervision, and I find Mr. Thomas abused his position of trust by exploiting her vulnerabilities for his own sexual gain: s. 718.2 (a)(iii) of the Criminal Code of Canada.
25With a view to mitigating factors, I find the following mitigating factors are present:
a) Mr. Thomas has a positive relationship with his children and the mother of his children, whom he supports in the community;
b) The letters of support placed before me demonstrate that Mr. Thomas enjoys additional support and has other pro-social relationships in the community.
Conclusion:
26The vulnerability, which is created when the state deprives any person of their individual liberty cannot be understated. On the record before me, on the same day that Mr. Thomas sexually assaulted J.S., he also served her with a meal and provided her with her methadone treatment. His position at the Vanier Centre for Women provided him with a unique opportunity to gain insight into J.S.’ individual vulnerabilities; vulnerabilities he then exploited. To be very clear, Mr. Thomas’ actions on March 5, 2021 are reprehensible. They offend our basic values, and they bring our corrections system, and the administration of justice into considerable disrepute. Members of the public, including J.S., deserve to be secure in the belief that no harm will befall them at the hands of correctional officers, who have been entrusted with their direct care and supervision. Mr. Thomas’ conduct relative to J.S. serves to severely strain, if not shatter that belief: R. v. Snelgrove, 2021 NLSC 194 at para 36.
27I have turned my mind to the sentencing range for sexual assaults, which involve forced vaginal penetration outlined in R. v. A.J.K., supra at para 77. However, I have also reminded myself that, while courts should pay heed to these ranges, they are guidelines rather than hard and fast rules: R. v. Nasogaluak, 2010 SCC 6, [2010] S.C.J. No. 6 at para 44. Sentencing ranges should not be considered “averages”, let alone straitjackets. There will always be situations that call for a sentence outside a particular range: R. v. Lacasse, 2015 SCC 64, [2015] S.C.J. No. 64 at para 57-58. I have determined that the specific circumstances before me warrant exactly that, a deviation from the range: R. v. A.J.K., supra at para. 77. I find Mr. Thomas’ crimes reflect a very high degree of moral culpability. In perpetrating the sexual assault against J.S., Mr. Thomas not only abused his power, but he also exploited J.S.’ individual vulnerabilities. Given the nature of Mr. Thomas’ position, he would have been fully aware of the devastating consequences of his actions. I have reviewed and carefully considered the authorities submitted by both parties. However, in the result, I find the aggravating features of the factual record before me are distinguishable. None of the circumstances of the offences captured in the sentencing cases provided involved a sexual offence of comparable gravity to the instant case. Here, the victim was completely subject to the control and direction of the offender, whose position as a correctional officer permitted him with unique insight into her individual vulnerabilities.
28Mr. Thomas violated J.S.’ personal autonomy. He exploited her sexual integrity and her dignity. As a result of the sexual assault J.S. endured at the hands of Mr. Thomas, she suffered profound emotional harm. The events of March 5, 2021 altered her life.
29I conclude the principles of denunciation and general and specific deterrence are the primary sentencing principles on this record, which is where I have placed significant weight. The sentence I impose needs to send a message not only to Mr. Thomas, but to the community at large. Most notably, to those, like Mr. Thomas who hold positions of trust or authority over vulnerable members of our community. The severity of the breach of trust and exploitation of power in such cases makes this type of conduct intolerable and requiring of an exemplary sentence by the justice system.
30With a view to whether a consecutive or a concurrent sentence is appropriate on this particular record, I find the offences are so closely linked to each other as to constitute a single criminal adventure: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424 at para. 155. Therefore, a concurrent sentence is appropriate.
31Bearing all the foregoing principles in mind, the fit and just sentence is a global sentence of six and a half years in the penitentiary. The sentence will be reflected as follows:
a) Mr. Thomas will be sentenced to six and a half years with respect to the sexual assault (count #3); and
b) Mr. Thomas will be sentenced to eighteen months concurrent with respect to the breach of trust (count #4).
32There is a mandatory DNA order, which I will impose pursuant to 487.051(1) of the Criminal Code of Canada.
33I will put in place a 109 order for a period of 10 years.
34While Mr. Thomas is in custody, he will be bound by a 743.21(1) order preventing him from having any contact directly or indirectly with J.S.
35Pursuant to Criminal Code of Canada sections 490.012(1) and 490.013(2)(b) I will make an order the Mr. Thomas by added to the Sex Offender Registry and that he comply with the Sex Offender Registration Act for 20 years.
36A copy of my reasons for conviction, sentencing, the PSR, and the victim impact statement, will be forwarded to the Correctional Service of Canada to assist with the administering of this sentence: Criminal Code of Canada section 743.2.
Released: October 4, 2023 Justice Jennifer Campitelli
Footnotes
[1] Exhibit 3(b) – Letter of Dorettia Guoti [2] Exhibit 3(c) – Letter of Dean Bradburry [3] Exhibit 3(a) – Letter of Terrence Thomas [4] Exhibit 1
