Court File and Parties

Date: April 16, 2019

Court File No.: 0611-998-18-194-00

Ontario Court of Justice

Her Majesty the Queen

v.

C.K.

Reasons for Sentence

Before the Honourable Justice B. Pugsley

on April 16, 2019 at Orangeville, Ontario

Appearances

M. Balogh – Counsel for the Crown

B. Brody – Counsel for C.K.

Decision

PUGSLEY, J. (Orally):

The defendant is before the Court for a sentence on a single count of assault after a plea of guilt. On the morning of the sexual assault trial after lengthy discussions, it was agreed that the matter would be resolved by a plea to the included offence of common assault. The context here is important. As just indicated, although the defendant initially faced a sexual assault allegation, he pled guilty to and was before – and was convicted by the Court before trial of the included offence of common assault. The complainant therefore, did not have to testify. The facts disclose a sexual context to the common assault however, he is being sentenced on the charge that he's been found guilty of.

The facts disclose that there was a get together at the defendant's house. Among the attendees were the complainant Ms. S and the defendant's younger sister, Ms. K. Ms. S and Ms. K were friends. At the time, the defendant was 20 years of age and the complainant 15. The defendant was 4 years and 10 months older than the complainant. Alcohol was consumed at the get together, including by the defendant and the complainant. The complainant herself brought alcohol to the party and the defendant also provided alcohol to her later.

Some party-goers left and the complainant started to go to her room where she was going to sleep. As she passed the defendant's room, he pulled her into his room. They sat on the bed and they kissed each other and started to have sexual intercourse, but the complainant told the defendant to stop because it hurt when he inserted his penis into her vagina. The defendant did stop. The complainant picked up her clothes to leave the room and the defendant then placed her back onto the bed and the complainant said to him, "We can't do this." He again, inserted his penis partly into the complainant's vagina and she said, "Stop." The defendant again stopped. The complainant got up, dressed and left the room. The defendant's sister Ms. K noticed that her friend was disheveled and confronted her brother.

Counsel agree that the first sexual contact between the complainant and the defendant was consensual, but the second touching was without the consent of the complainant and amounted to an assault under Section 266 of the Criminal Code. The defendant has no criminal record.

Two victim impact statements were provided by Ms. S and by her mother. Those statements eloquently describe a significant emotional and mental health trauma suffered by Ms. S. She went from being a confident academically successful young woman to becoming overwhelmed with anxiety, insecurity, depressions and at times thoughts of self-harm. She resists physical contact and she became reclusive. She has embarked upon a course of counselling to try and repair the trauma that was created by the defendant's criminal actions.

A presentence report was prepared to assist the Court in trying to understand this defendant. He accepts responsibility for what took place here and has pled guilty to an included criminal charge with the consent of the Crown. By this plea, he has avoided the necessity of the complainant having to testify and relive the events of the assault. The presentence report notes that he's working, is in a relationship with a peer and it is generally a positive report. The report notes that the defendant engaged in counselling after the assault and before his sentencing.

Both counsel recommended a period of incarceration. The Crown seeks six months in jail and probation on terms that encourage rehabilitation and also protect the complainant and her family. The defendant submits that the maximum intermittent sentence is appropriate here plus probation. As both counsel recognized, the defendant is being sentenced on the charge of assault today, not sexual assault. Assaults run the gamut from a minor nonconsensual contact to a serious assault with consequences falling just short of bodily harm. The facts of the assault here fall on the higher end of that scale of seriousness. The assault here was the defendant's penis being partially inserted without consent into the complainant's vagina. The consequences of that assault were demonstrably very serious. Ms. S's life has been badly affected by the defendant's criminal act. He supplemented the alcohol the complainant brought to the party with alcohol he as an adult provided to the complainant, an underage teenager. The assault took place at his residence and the complainant was a close friend of his younger sister. I think both counsel are realistic in noting that jail is required for this defendant on these facts.

The Crown provided several cases to me as guidance on what other Courts have done on other facts. In each case, the caselaw reflected sentencings for a sexual assault. But as already stated, the defendant is before me for sentencing on a common assault, not a sexual assault.

The facts of this assault are serious but notably the Crown elected to proceed by summary conviction procedure. It's not for this Court to look behind the circumstances that led to the Crown agreeing to accept a plea to this included offence, nor the route by which the defendant came to accept his guilt here. Highly experienced counsel accepted that the plea matched the facts and by registering a conviction, I agreed.

Reading Ms. S's victim impact statement suggests that there was probably a real benefit to her mental health when it became known that she would not have to relive this assault in court. The Crown is right to suggest that even on a summary conviction election, jail is required in this case. Their submission is a recommended sentence of six months plus a lengthy period of probation. The defendant submits that a lesser period of jail plus probation is appropriate.

My task here is guided by the principles of sentencing set out in Section 718 and following of the Criminal Code. Those principles promote the protection of society and respect for the law and include principles that denounce criminal behaviour, deter the defendant and others from future criminal behaviour, help the defendant rehabilitate himself, help repair damage done to the victims of crime and encourage defendants to accept responsibility for their criminal actions and acknowledge the harm that they have caused.

Where, as here, a complainant is under the age of 18 years, denunciation and deterrence gain extra weight under subsection 718.01 and paragraph 718.2(a) (2.1) of the Criminal Code. The effect of the assault upon the complainant is also to be considered an aggravating factor under 718.2(a)(3.1). Some other principles of sentencing may in inure to the benefit of the defendant. Section 718.1 requires that a sentence be proportionate to the gravity of the offence. Here the defendant is being sentenced on a serious common assault, not on a sexual assault. Subsection 718.2 (d) and (e) require that I consider less restrictive sanctions before depriving a defendant of his or her liberty if other sanctions will serve the principles of sentencing.

Youthful first offenders such as this defendant are often said on the caselaw to be the focus of emphasized specific deterrence and rehabilitation. Both counsel agree that the defendant is a likely candidate for rehabilitation. They agree that the presentence report is a positive one and that before sentencing, the defendant has himself reached out for counselling. He has stood before the complainant and her family and his community and accepted responsibility for his criminal actions. He has demonstrated an understanding of the effect his action had upon the complainant.

I agree with the general principle here that jail is required. Had the defendant been convicted after a trial there is little doubt that a significant period of jail would have been imposed. Such however, is not the case here.

Unlike other jurisdictions where sentencing is sometimes reduced to the application of an offence to a mandatory chart, in Canada it is sometimes said that sentencing can be an art. Lady Justice is often shown as a blindfolded woman holding a scale. A judge when sentencing a defendant, tries hard to balance the offence and the offender, the victim and the offender, society and those individuals who make up that society. There is little room for one size fits all sentencing. Often there is much room for agreement and disagreement on an ultimate sentencing decision.

Caselaw can be helpful, but blind application of precedent merely suggests that a different judge on different facts with a different offender is better able to sentence this defendant. The Code and appellate caselaw provide guidance but each sentencing judge tries to strike a proper balance on the facts of the case before her or him.

In my view, a proper balance is to require a jail sentence here but one that denounces this defendant and his serious assault while recognizing his youth and his good prospects for rehabilitation. I'll ask you to stand up now please.

Sentence

You're sentenced to 90 days in jail. The sentence will be served on an intermittent basis to allow you to continue to work, to be a citizen and pay taxes. Every weekend you'll spend in jail until your sentence is served. You'll be taken into custody today. You'll be processed and will then be released. This weekend is an extended religious holiday therefore, you report to jail on Friday April 26; that's a week from this Friday. I'm going to suggest 7:00 p.m. Mr. Brody.

MR. BRODY: Sir, absolutely sir.

THE COURT: And be released on Monday April 29th at 6:00 a.m.?

MR. BRODY: That's agreeable, thank you very much, Your Honour.

THE COURT: And thereafter, each Friday to Monday until your sentence is fully served. While serving your sentence, you'll be on a term of probation that requires you to keep the peace and be of good behaviour and report to the jail in a fit and sober condition.

After you've completed your sentence, you'll be on probation for two years.

The terms of that probation are as follows:

• You'll keep the peace and be of good behaviour.
• Return to court when required to do so.
• Report to and be under the supervision of a probation officer as soon as you're released from custody and thereafter as required by your probation officer.
• You will not associate directly or indirectly except through legal counsel with the complainant Ms. S or any member of her immediate family.
• You'll not attend within 200 metres of the place of residence, employment, school or any other place you know Ms. S or her family to be.
• You'll seek and maintain employment and/or go to school.
• You'll not possess any weapons as defined by the Criminal Code.
• You'll take such counselling, assessment and/or treatment as directed by your probation officer with respect to relationships and consent and cooperate in information flowing to your probation officer as to how you're doing with that counselling, including signing any necessary consents so they can talk to the service providers directly.

Are there any other terms suggested?

MS. BALOGH: No weapons term, please Your Honour. And also....

THE COURT: Yes, there'll be – there will be no weapons – you won't possess any weapons, I already said that.

MS. BALOGH: Oh, I'm sorry.

MR. BRODY: How long Your Honour, was that five years or ten years? I'm sorry.

THE COURT: Sorry?

MR. BRODY: The weapons prohibition, for five years....

THE COURT: No, it's the term of his probation, not possess any weapons. We haven't got to the 110 order yet.

MR. BRODY: Thank you, sir.

MS. BALOGH: Thank you. And Your Honour, would Your Honour consider putting a no-contact while he's serving the 90 days either in custody or during that period of time he's not on the two year probation?

MR. BRODY: Absolutely, that's agreeable Your Honour.

THE COURT: All right. One of the terms of probation while serving the sentence is that you're not to have contact with Ms. S or her family. Do you understand those terms, sir?

C.K.: Yes.

THE COURT: It's a serious matter to breach this court order. If you're found to have done so, it's quite likely there'll be a jail term considered. Do you understand that?

C.K.: Yes.

THE COURT: If this order needs to be reviewed or changed or if you're doing spectacularly well, it can even be ended early. You can make that request through your probation officer or your lawyer or by coming here to the courthouse and a judge will decide whether the order should be changed or ended early. In a few minutes, you'll get a copy of this order. It sets out your rights but also your duties under this court order. Please make sure you understand those rights and obligations. If you have any questions, Mr. Brody or your probation officer will sort those out for you.

This is a DNA secondary offence. There will be DNA sample taken downstairs for the National DNA Databank. And for five years under Section 110 of the Criminal Code you won't possess any firearm ammunition or explosive device. Again, anything I've missed counsel? No?

MS. BALOGH: Not to my knowledge.

MR. BRODY: Not to my knowledge either, Your Honour. Thank you for your time.

THE COURT: All right. Thanks for very much to counsel...

MR. BRODY: Thank you, sir.

THE COURT: ...and to supporters of both the complainant and the defendant for coming out today. Thank you.

MR. BRODY: Thank you, sir.

THE COURT: Step into custody please, sir.

... MATTER CONCLUDED