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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 212, 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 at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct 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 complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: September 27, 2018

Court File No.: Ottawa 16-RA19540

Between:

Her Majesty the Queen

— and —

Matthew Harper

Before: Justice Heather Perkins-McVey

Decision released on: September 27, 2018

Counsel:

• Ms. Anne Fitzpatrick — counsel for the Crown
• Mr. Christian Deslauriers — for the Defendant, Matthew Harper

Accused Present in Court

Decision

PERKINS-McVEY J.:

Facts

[1] Mr. Matthew Harper pled guilty to three counts of sexual assault on the following victims D.Z., L.M.-G. and M.K. contrary to section 271 of the Criminal Code of Canada. The Crown elected to proceed summarily on all counts.

[2] The facts in summary regarding D.Z. are as follows: On October 25, 2015 the victim Ms. Z., took a yoga class at Rama Lotus Yoga Studio where the Accused taught yoga. He spoke to the class about the importance of human touch and would offer to assist students with their poses. Each student was to indicate with a thumbs up or down if they welcomed such assistance.

[3] During the class the Accused approached Ms. Z. and offered her a belly rub which is done to ensure the victim is breathing properly during various yoga poses. Ms. Z. said she had indicated she was okay with this assistance. The belly rub happened under her sweatshirt. After class the Accused provided his website and contact information if anyone had any questions.

[4] While leaving class the Accused gave the victim a hug and they engaged in discussion about new yoga poses. The Accused asked the victim to assume the "saddle pose". While helping her into this pose his hands grazed over and around her pelvic region and pressed his bare hands into a muscle on her bare abdomen. The victim felt that although these are intimate areas she did not question him because he was an instructor.

[5] November 1st, 2015, Ms. Z. attended another class. On three separate occasions the Accused offered to assist her with her poses. He used his hand to press into her upper chest and breast bone under her clothing. He asked her if she was wearing lotion because his hands were slipping. He also used his hand to press into her stomach and pulled back her yoga pants to work into her hip muscles, her inner left thigh, lower abdomen and pubic bone under her clothing. He instructed her to do a "Kegel". She was unable to, given her discomfort with the Accused's hand placement. While removing his hand he grazed the victim's upper vagina with his fingers. After this, the victim and Mr. Harper exchanged emails and text messages as the victim was interested in the Accused's yoga knowledge and wanted to read some of the books he had on yoga and anatomy.

[6] Ms. Z. attended another class in November in a pose. He then put a blanket over her and gave her a belly rub under her clothes while covered by the blanket.

[7] After class they discussed the books and agreed to go for tea to discuss them. While at Starbucks, they spoke about the victim's current relationship problems and the books. The Accused started to explain some anatomy by touching Ms. Z.'s body. He asked her to do a backbend and while she did this, the Accused slid his hand under her shirt and bra and encouraged her to breathe while he pressed down on her breastbone. He placed her hand under his shirt onto his abdomen to show the proper breathing technique. Then the Accused guided her hand down his pants over his right thigh while he adjusted his penis to the left. They continued to go through the books and talked about breathing. The Accused placed his hand on the victim's lower abdomen under the waist band of her yoga pants and underwear. The Accused spoke about Kegel exercises and wanted her to try one. She could not do so as the Accused had moved his fingers until they were barely resting on her vagina. The Accused maintained the appearance that he was teaching her and that touching her in this way was okay thus the victim did not feel comfortable to ask him to stop. As such the victim suggested they leave.

[8] They left Starbucks and went to the side of the building where they continued to talk. The victim said good night and the Accused raised his arms for a hug. As the victim leaned in to hug him, the Accused slid his hands down to the victim's hips and said remember to practice tilting and tucking and guided her into a pelvic tilt with his hands guiding her hips. The victim shook her head but the Accused said "Tuck" as he slid his hand quickly down the victim's pants and underwear. In one motion he slid his hand down along her buttocks and between her legs and placed a finger on her anus while his other fingers were moving slightly making slight contact with her vagina. Ms. Z. did not consent to this contact and began to move away. The Accused counter-balanced her attempt to get away and with his other hand on the front of her body pressing into her and holding her in place. Ms. Z. said "Are you serious?" and backed away losing her balance falling into a pillar. The Accused said "No, no you almost have it." continuing to grin and encouraged her that everything was okay.

[9] The facts pertaining to L.G.-M. are:

• The victim took Yoga and was encouraged to take the Accused's Yin Yoga class;
• The victim took 5 classes between February 1st, 2015 and October 18th, during which she was sexually assaulted;
• During a class the Accused put his hand under her shirt near her shoulder/collar bone. She was fine with this action however, he progressed to moving his hands under both her shirt and bra reaching his hand further and further down her chest towards her breasts;
• On two occasions he put his hands under the victim's pants towards her vagina.

[10] At the end of class students quietly lay on their back with their legs and buttocks stretched against the wall. On the last class or second last class she took, she was lying under a skylight and the Accused suggested she move as the light would distract her. The Accused moved her behind a visually impaired student. While lying on her back, the Accused asked if he could adjust her pose to which she agreed. He began with his hands under her shirt on her collar bone and then moved his hands under her shirt and pushed down on her breasts. He continued to move his hands down to her pelvis to adjust her position. In doing this, he slid his hands under her pants but over her underwear and moved his hands touching the top of her vagina. The victim was embarrassed as she said he was touching her everywhere. The victim felt isolated and did not return to the Accused's classes. This victim had been practicing yoga for years and knew this was not normal to touch persons in this way while adjusting a pose.

[11] The facts pertaining to M.K. are:

• The victim attended one of the accused classes during which she was sexually assaulted;
• The victim herself is a Yoga teacher and practices massage therapy and thus is familiar with body boundaries and how to give and receive assists from teacher to student.

Position of the Parties

[12] The Crown seeks a sentence of six to 9 months jail followed by probation and the mandatory ancillary orders. Defence Counsel on behalf of the Accused asks the Court to impose a jail sentence of 90 days jail to be served on an intermittent basis followed by probation given that the Accused pled guilty, has no prior criminal record, lost his employment as result of being charged and suffers from a serious medical condition, multiple sclerosis which has caused a rapid deterioration of his health.

[13] The victims in this matter provided Victim Impact Statements. All of the victims have been significantly affected by the Accused's violation of their trust and sexual integrity. Ms. K. was a fellow yoga teacher and as result of the Accused's actions she rarely now practices yoga. She states she is beyond appalled that the Accused abused his role to fulfill his own disgraceful motives. She said she left his class feeling sick to her stomach, feeling anger, hurt and ashamed all at the same time. She felt emotionally hurt and continues to be wary of male instructors. She is ashamed that someone in the yoga community would betray his position in the way he did.

[14] Ms. Z. was similarly affected and is now crippled with anxiety. She is on edge and hyper and also full of angst. The Accused's actions also affected relationships and she is more reclusive around friends and family. Without question each of the victims were profoundly affected by the Accused's violation of their sexual integrity in all aspects of their lives as eloquently set out by their Victim Impact Statements.

Circumstances of the Offender

[15] In preparation for sentence, a pre-sentence report was prepared. The Accused pled guilty to the offences before the Court and has taken full responsibility for his actions. Mr. Harper has shown remorse for his actions. Mr. Harper is a 40 year old first time offender. The Accused has been involved with his current partner since 2016. They met when she was taking a yoga class where he was the teacher. She has remained supportive throughout the court process.

[16] The Accused had been working as a yoga teacher and had been employed with the City of Ottawa in the building maintenance division. Once the Accused entered his guilty plea, the Accused was placed on "investigative leave" until he was dismissed from that job in March 2018, as result of the matters before the Court. Prior to being placed on investigative leave, he had required accommodation of his tasks due to his deteriorating health condition. Mr. Harper was diagnosed with Multiple Sclerosis in 2013, and this is classified in the letter from his doctor as Primary Progressive Multiple Sclerosis. His most recent neurological examination showed remarkable weakness and spasticity of lower limbs and leg and gait ataxia. He also has sensory findings with neuropathic pain which explains his poor balance, limb fatigue, lack of co-ordination and frequent falls.

[17] He suffers from severe fatigue and neuropathic pain which affects his overall functioning. He is affected both physically and mentally by this disorder. Dr. Rush indicates that this is a chronic and progressive disorder that causes neurological deterioration in many domains over time. The degree or rate of such deterioration is impossible to predict. The Accused advised the probation officer who prepared the pre-sentence report, that in the last couple months, he has been experiencing more pain and physical issues with his back. The Accused does not have any substance abuse issues. He is described as a caring person with a pro-social lifestyle. He suffers from a serious degenerative health condition that impacts his strength and stability and he is often in pain. He has strong support from family, friends and his current partner. He is seen as suitable for community supervision.

Part I: Basic Sentencing Principles

[18] The starting point in considering an appropriate sentence is always a review of the sentencing principles set forth in the Criminal Code. Section 718 provides as follows:

The 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;

(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.

[19] Under Section 718.1, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[20] Under Section 718.2, a court that imposes a sentence shall also take into consideration the following principles:

(a) A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.

(b) A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(d) An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances;

(e) All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.

[21] A delicate balancing of the various sentencing principles and objectives is called for, in line with the overriding principle that it must be proportionate to the gravity of the offence and the degree of responsibility of the offender. An offender's level of moral blameworthiness will vary significantly depending on the aggravating and mitigating factors in any given case.

[22] Section 271 sexual assault is a hybrid offence. In this case, the Crown elected to proceed summarily. There is no mandatory minimum sentence when a sexual assault charge proceeds summarily. This means a conditional sentence is an available disposition. Because the Crown has decided to proceed summarily, the maximum possible jail term is 18 months.

Part II: Relevant Caselaw

[23] In R v Bedard, a chiropractor sexually assaulted 13 individuals, 11 adults and 2 mid-teens. He grossly abused his position of trust and power, and was sentenced to 9 months of imprisonment and 3 years of probation. In contrast, a "powerful spiritualist" in R v Muniyappa who could "fix love problems" was sentenced to 14 months of imprisonment and 2 years of probation. Both cases involved digital penetration in complainants' vaginas. In R v R(RA), the accused was convicted of one count of sexual assault and 2 counts of assault. After his appeals were overturned in the Supreme Court of Canada, his sentence of a one year imprisonment and three years of probation was restored. He had been convicted of one count of sexual assault.

[24] In R v Stone, the Supreme Court of Canada, citing R v CAM, said it is incumbent on the judiciary to bring the law into harmony with prevailing social values. This applies to sentencing. It is further noted that the court's jurisprudence indicates the law must evolve to reflect changing social values regarding the status between men and women.

[25] In R v Durnford, Justice Gorman, in passing sentence, noted that our basic code of values cherishes the personal and sexual integrity of every person. In addition, our society has evolved to the point that the application of non-consensual sexual touching is completely unacceptable. However, he also noted that sentencing is an individualized process that must take into account both the circumstances of the offence and of the offender.

[26] In R v Nijjar, the Court of Appeal considered an appeal of a sentence of 18 months imprisonment for a sexual assault. In that case the accused had pinched a young woman's breast as well as her buttocks. The court reduced the sentence to 12 months' imprisonment followed by three years of probation. In reaching its conclusion, the court noted this was a worrisome case because the accused, for no apparent reason, went up to a young woman and pinched her breast and buttock in a violent manner.

Mitigating Factors

• No prior criminal record;
• He pled guilty and takes responsibility for his actions and has shown remorse for his behavior. The Crown acknowledges that the plea of guilt is a significant mitigating factor;
• He has no substance abuse issues and otherwise leads a pro-social lifestyle;
• He has strong support from friends and family;
• The Accused suffers from a serious degenerative medical condition for which he requires ongoing medical care and attention.

Aggravating Factors

• These are serious offences which violated the sexual integrity of the victims;
• The victims have been significantly affected by the accused actions. Pursuant to Section 718.2(a)(3.1) the effect on the victims is a factor that must be considered by the court as an aggravating factor;
• The Accused, as the yoga Instructor in charge of the class, was in a position of trust. Although perhaps not a position of trust in the typical sense, the students in that yoga class trusted that he would guide them through the practice. While it is a trust position it is not the same as a position of trust enjoyed by a classroom teacher over any students.

Part III: Application

[27] The predominant sentencing principles for sexual assault charges are denunciation, and deterrence both general and specific. Mr. Matthew Harper is a 40-year old first time offender. He was a yoga teacher who ran classes in the Ottawa area, as well as maintaining regular employment (his last position was the City of Ottawa for over 10 years). In 2013, he was diagnosed with Primary Progressive Multiple Sclerosis, and has strong support from family and friends. Substance use is not something that needs to be addressed. According to the pre-sentence report, Mr. Harper takes full responsibility for his actions and is willing to accept whatever sanctions imposed by the Court. Mr. Harper has been specifically deterred by the fact of being charged, the media bulletins regarding his arrest, his plea of guilt and the court process.

[28] In R v Kulkarni, a decision of Justice Schwartzl of the Ontario Court of Justice, the facts are somewhat similar to Mr. Harper's situation. That accused was convicted after a trial and received a suspended sentence with two year probation. The court found him guilty of sexual assaults that the court described as brief and superficial. Each of them were committed during the yoga class and each of the complainants is described as mature female. The court found that they were crimes of opportunity. That accused had undergone counselling as a result of being charged with the offences before the court. The facts of the sexual assaults involved touching the crotch and vulva outside the clothing and two involved touching the buttocks. The facts of this case are similar to the facts before the court but the touching in class included touching of the upper chest and breast bone under the clothing. Further this touching extended to touching of the hip and inner thigh, lower abdomen and pubic bone under her clothing, fingers barely resting on her vagina and he also slid his hand along her buttocks between her legs and placed a finger on her anus, in the guise of showing her how to do a Kegel exercise and discussing anatomy. Other victims were touched in the chest/breast area and touching the vaginal area over clothing while readjusting a pose. The last victim was touched under her shirt but over her bra while adjusting her pose.

[29] Justice Schwartzl states that while the offences were shameful and disgraceful, they were modest by legal standards but not by emotional standards. The unwanted sexual touching of a private part of any person is a significantly intrusive matter and of grave public concern. That Court also commented that the imposition of the ancillary orders were substantial and would have long lasting impact on the accused. He found the imposition of the SOIRA Order would be a significant denunciation and deterrence to any like-minded persons.

[30] In R v Beasley, Justice Challenger imposed a 12 month prison sentence on the accused. That accused grabbed the breasts of two women passing by him on a city street during the day. Justice Challenger emphasized the trauma the victims suffered as a result of the unexpected attack, in a place where one would expect not to have to worry about that kind of conduct. She also noted: "Women in our society have to constantly worry about personal safety; when going to parking lots, or when we encounter unfamiliar men in isolated circumstances. We must be constantly vigilant. I agree with Crown counsel that the one place you do not think you have to worry is on a public street in broad daylight."

Parity (s. 718.2(b))

[31] The Criminal Code provides that "a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances". As you can see from the sentences imposed in other "somewhat" similar cases of sexual assault, that the range of disposition ranges from a suspended sentence to jail sentences of up to 12 months or more. But as I have found in other cases no one fact situation is the same and each offender is unique which is why sentencing is such an individualized process.

Collateral Consequences

[32] The Supreme Court of Canada stated that a sentencing judge must have "sufficient maneuverability to tailor sentences to the circumstances of the particular offence and the particular offender". Tailoring sentences to the circumstances of the offence and the offender may require the court to look at collateral consequences. A collateral consequence includes any consequence arising from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence, that impacts the offender. The Law of Sentencing (2001) by Professor Allan Manson notes that collateral consequences may also flow from the very act of committing the offence:

[33] "As a result of the commission of an offence, the offender may suffer physical, emotional, social, or financial consequences. While not punishment in the true sense of pains or burdens imposed by the state after a finding of guilt, they are often considered in mitigation."

[34] Justice Moldaver said that while collateral consequences are not necessarily "aggravating" or "mitigating" factors under s. 718.2(a), they still speak to the "personal circumstances of the offender". The relevance of collateral consequences stems, in part, from the application of the sentencing principles of individualization and parity. The question is not whether collateral consequences diminish the offender's moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a greater significant impact on the offender because of their circumstances.

[35] Collateral consequences do not need to be foreseeable, nor must they flow naturally from the conviction, sentence, or commission of the offence. In fact, "[w]here the consequence is so directly linked to the nature of an offence as to be almost inevitable, its role as a mitigating factor is greatly diminished". Nevertheless, in order to be considered at sentencing, collateral consequences must relate to the offence and the circumstances of the offender. Mr. Harper's progression into Primary Progressive Multiple Sclerosis and an end of his teacher career and employment can be examples of said consequences.

Conclusion

[36] As previously indicated, sentences in cases such as this requires a sentence that reflects society's condemnation of such behaviour and embodies the principle of general deterrence. Taking into account the mitigating and aggravating circumstances, it is my opinion that Mr. Harper should be sentenced to term imprisonment followed by two years' probation.

[37] Given that the Crown has elected to proceed summarily, given that I have determined that the sentence is one of less than two years and given there is no mandatory minimum sentence, I must consider whether the sentence will be a real jail sentence or one which is served in the community. A conditional sentence is defined in the Criminal Code as a sentence of imprisonment but one which is served under strict conditions in the community. A conditional sentence is distinguished from probation. The primary purpose of probation is primarily a rehabilitation tool. By contrast parliament intended conditional sentences to include both punitive and rehabilitative aspects.

[38] As indicated in R. v. Proulx, 2000 SCC 5, there are no offences that are excluded from the conditional sentencing regime unless statutorily precluded. In this case a conditional sentence is available provided this court finds that the safety of the community would not be endangered by this specific offender serving his sentence in the community and provided such, a sentence is consistent with the purpose and principles of sentence as set out in ss. 718 to 718.2 of the Criminal Code.

[39] Having found that general deterrence and denunciation must be part of any sentence imposed the question remains whether such a sentence can be achieved with the imposition of a conditional sentence or whether a real jail sentence is required.

[40] The Supreme Court of Canada in R v. Proulx, indicated at para. 107, that a conditional sentence may provide significant deterrence if sufficiently punitive conditions are imposed and the public is aware of the severity of the sentence. It is noted that a conditional sentence is not reduced by parole and there is high stigma attached to an offender serving a conditional sentence where their liberty is restricted by house arrest.

[41] In this case, I find that Mr. Harper with no prior criminal record and otherwise pro-social lifestyle does not pose a risk to the community should he serve his sentence in the community. Further there can be conditions imposed which will protect the victims in this matter while assisting Mr. Harper in his rehabilitation. I also find that general deterrence and denunciation can be achieved through a strict conditional sentence of a longer duration than I would otherwise have imposed and through strict house arrest for 2/3 of the jail sentence imposed. I have come to this conclusion given the mitigating factors with particular special consideration to Mr. Harper's serious degenerative medical condition.

[42] The sentence imposed will be a 6 month jail sentence served in the community followed by 2 years' probation.

Released: September 27, 2018

Signed: Justice Heather Perkins-McVey