Court File and Parties
Court File No.: CR-17-10000612-0000 Date: 2019-02-19 Ontario Superior Court of Justice
Between: Her Majesty The Queen And: Patrick Walsh, Defendant
Counsel: Brigid McCallum, for the Crown Zachary Kerbel, for the Defendant
Heard: January 7, 2019
Publication of Any Information Tending to reveal the identity of the Complainant Herein is Prohibited under s. 486.4(2.1) of the Criminal Code of Canada
Byrne J.
Reasons for Sentence
[1] On September 28, 2018, Patrick Walsh was found guilty by a jury of one count of sexual assaulting M.S. on May 13, 2016.
[2] The matter was put over to today for sentence.
Positions of Counsel
[3] Crown counsel takes the position that the range of sentence for a sexual assault involving forced vaginal intercourse is 18 months to three years in custody. In this case, Crown counsel is seeking a custodial sentence of three years based on the aggravating factors and the demeaning treatment of the victim following the offence.
[4] Defence counsel on behalf of Mr. Walsh submits that a sentence of 12 months in custody is fit and proper for this youthful, first-time offender.
[5] Defence and Crown counsel have filed numerous cases in support of their respective positions, all of which I have thoroughly reviewed.
Findings of Fact
[6] The sentence imposed on Mr. Walsh turns in large measure on the facts as I find them to be. Defence counsel urges me to find that the jury verdict was based solely on a finding of forced oral sex. It is this finding of fact that drives their sentencing position. Whether I accept that position or not will depend entirely on the facts as I find them to be.
[7] I do not have the benefit of knowing the factual findings made by the jury in support of their verdict. I am, however, entitled pursuant to section 724 of the Criminal Code to make factual findings based on the evidence led at trial. Section 724 of the Criminal Code sets out the procedure to be followed in circumstances like this where the facts upon which a conviction is based are in dispute.
[8] The relevant portion of section 724 of the Criminal Code reads as follows:
Section 724 (2)
Where the court is composed of a judge and jury, the court
(a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty and;
(b) may find any other relevant fact that was disclosed by evidence at the trial to be proven or hear evidence presented by either party with respect to that fact.
[9] Pursuant to section 724(3)(a) of the Criminal Code, where there is a dispute respecting a fact relevant to the determination of a fit sentence, the court is statutorily obliged to request that evidence be adduced as to the existence of that fact unless the court is satisfied that sufficient evidence was adduced at the trial.
[10] In this case, no one sought to call further evidence concerning the facts upon which the court should impose sentence. I am satisfied that sufficient evidence was adduced at trial and it is unnecessary to call further evidence.
[11] In practical terms, the analysis requires the trial judge to reach their own conclusions about disputed questions of fact which are relevant to sentence. The trial judge should not endeavor to guess or reconstruct the reasoning of the jury. To do so would be an error. In R. v. Ferguson, 2008 SCC 6, speaking for the Court at para 18, McLachlin C.J. stated: “When the factual implications of the jury’s verdict are ambiguous, the sentencing judge should not attempt follow the logical process of the jury, but should come to his or her own independent determination of the relevant facts.”
[12] I find that there is no ambiguity in the factual basis upon which the jury found Mr. Walsh guilty.
[13] At trial, Mr. Walsh testified that Ms. M.S. was the aggressor in their sexual interaction and that she performed consensual oral sex on him. He testified that he never vaginally penetrated Ms. M.S..
[14] Ms. M.S. testified that on May 12, 2016, she and her roommates went to a local bar called Grace O’Mally’s to celebrate her 20th birthday. They arrived at the bar shortly after 11 p.m. This is when Ms. M.S. ran into Patrick Walsh, a person she had met briefly a year earlier. Mr. Walsh suggested that they go to his condo, which was only a short walk way. On the way to the condo they engaged in consensual kissing. Once inside the condo, Ms. M.S. testified that things quickly escalated. They moved to the bedroom, she removed her clothes and that is when Mr. Walsh put his hand on her head and forced her to perform oral sex on him. She testified that she started freaking out and was attempting to push herself up. Ms. M.S. testified that after approximately five minutes, the oral sex ended. She further testified that while lying on the bed in shock, Mr. Walsh got on top of her and started vaginally penetrating her. Ms. M.S. testified that she said the word “no” four or five times but Mr. Walsh just ignored her. Ms. M.S. further testified that she was panicking and in survival mode. Ms. M.S. told Mr. Walsh she was going to throw up and that is when she ran to the bathroom and started vomiting.
[15] Ms. M.S. gave a detailed and vivid account of what happened to her on this occasion. She testified to two distinct sexual acts during the course of one uninterrupted interaction. There were no intervening events and the entire incident last only minutes.
[16] In my view, the only reasonable conclusion consistent with the jury’s verdict is a conviction based on both the forced oral sex and the forced vaginal intercourse. I find that these are the facts relied upon by the jury and, as the sentencing judge, I am bound by them.
[17] The more difficult issue arises from the evidence that Mr. Walsh was FaceTiming Ms. M.S. naked and vomiting in the bathroom after the sexual assault.
[18] Crown counsel argues that Mr. Walsh’s demeaning treatment of the victim following the offences is an aggravating factor to be taken into account on sentence. In cases like this where the facts are not essential to the jury’s verdict, but in dispute, it falls to the sentencing judge to make that determination. The onus, however, is on the Crown to prove it beyond a reasonable doubt.
[19] In this case, Mr. Walsh admitted that he had his phone out and was FaceTiming with friends after the offence. He denies ever transmitting images of Ms. M.S. and said he made the calls to get advice on what to do in the situation. Ms. M.S. believed that Mr. Walsh was transmitting images of her naked and vomiting to his friends. She said Mr. Walsh was holding the phone away from him and pointing it towards her. Ms. M.S. said that although she was unable to decipher what exactly was being said, she could hear laughing and believed it was about her.
[20] I do not believe Mr. Walsh’s evidence that he was FaceTiming male friends to get advice on how to help Ms. M.S.. His evidence on this point is simply and totally unbelievable. I do accept that Ms. M.S. was being truthful in her account. Unfortunately, her ability to fully perceive what was going on was significantly compromised. Ms. M.S. was not able to say for certain that Mr. Walsh was FaceTiming images of her to his friends. Nor do the facts amount to that being the only logical inference that could be drawn from the circumstances. After a review of all of the evidence, I am not satisfied beyond a reasonable doubt that Mr. Walsh was FaceTiming images of Ms. M.S.. I do, however, find that Mr. Walsh was at the very least FaceTiming friends and laughing about Ms. M.S. naked and vomiting in the washroom. He then invited his male friends into the condo, which only increased Ms. M.S.’s anxiety and distress. His conduct was nothing less than deplorable and demeaning.
Legal Principles
[21] I will now turn to the applicable legal principles.
[22] In criminal proceedings, sentences are meant to reflect and reinforce the basic values of our society.
[23] It is often said that determining an appropriate sentence is one of the most difficult of tasks for judges. This case is no exception. Sentencing is a highly individualized process that takes into account not only the case law, but the circumstances of the offence and the circumstances of the offender. I also must take into account the objectives of sentencing set out in sections 718, 718.1 and 718.2 of the Criminal Code.
[24] How much emphasis a court places on each of these objectives will vary according to the nature of the crime and the circumstances of the accused.
[25] In circumstances involving a youthful, first-time offender like Mr. Walsh, the sentencing judge is directed to proceed with restraint. In R v. Priest, (1996), 110 CCC (3d) 289 at 296, the Court of Appeal for Ontario instructs that: “a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence.”
[26] However, in cases of sexual assault, the objectives of denunciation and deterrence take on a more principal role. In R v. Thurairajah, 2008 ONCA 91, Doherty J.A. observed at para 41 that, generally speaking, sentences imposed on young, first-time offenders will stress individual deterrence and rehabilitation, whereas general deterrence will play little if any role. However, for serious crimes of personal violence, particularly sexual assault, while rehabilitation and the other sentencing objectives remain important, denunciation and deterrence “gain prominence”: R. v. Ijam, 2007 ONCA 597; R v. Wells, 2000 SCC 10, at para 26.
[27] Finally, I am ever mindful that whatever sentence is imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
Victim Impact
[28] In her victim impact statement, 22 year old M.S. speaks to the traumatic impact this sexual assault has had on every aspect of her life. Not a day goes by that she does not think about this incident. Her relationships have suffered, resulting in the loss of friends and partners. Most of all, she has lost time. The last three years of her young life have been focused on this offence. Every stage of the proceedings from the investigation to the trial has forced her to re-live events she so desperately wants to forget. Her pain has also manifested physically. She has spent days and weeks barely eating, moving or wanting to live. She lives life now through a damaged lens; she feels vulnerable and isolated from others.
[29] M.S.’s parents also provided a victim impact statement. In it, they speak about the pain and suffering their daughter has had to endure throughout this process. They speak about the changes they have seen in her and how this offence has impacted every aspect of her life and, by extension, their lives. They worry about her ability to cope moving forward and feel deeply frustrated in their struggle to support her.
The Offender
[30] Patrick Walsh comes before this court as a 22 year old first-time offender. He was 20 years old at the time of this offence. Mr. Walsh’s upbringing was, by all accounts, stable and positive, despite his parents splitting up when he was two years old. Mr. Walsh is the youngest of 4 siblings. He has three older sisters and a half-brother. Mr. Walsh enjoys the love and support of his entire extended family. In that way, he is a very lucky young man. I have been provided with ten letters from Mr. Walsh’s family, friends and current employer. I have read them all thoroughly. Collectively, and individually, they paint a picture of kind, caring, hardworking, generous, intelligent and loving young man. That man is Mr. Walsh.
[31] At the time of this offence, Mr. Walsh was on a mixed academic and athletic scholarship at the University of Detroit. Mr. Walsh is a talented Lacrosse player who had plans of turning professional. In addition to being a talented athlete, Mr. Walsh also thrived academically. He was named to the Detroit Mercy Athletic Director’s Honor Roll (2017-2018) along with two other Honor Rolls that same year. Prior to this conviction, Mr. Walsh had planned to continue his coaching role and complete his Master’s Degree at the University of Detroit. All of that came to an abrupt halt as a result of his conviction and his inability to enter into the United States.
[32] To his credit, Mr. Walsh has continued with on-line courses in the hopes of completing his degree. He has also obtained full-time employment with a heating and air conditioning company and, by all reports, is a hard-working, valued employee.
[33] Finally, as stated in the presentence report, Mr. Walsh offers no insight or understanding about the current offences. He accepts no wrongdoing on his part and instead places the blame on Ms. M.S.. He has, to date, demonstrated no acceptance of responsibility or any remorse.
Media Coverage
[34] Turning now to the media issue.
[35] Defence counsel argues that the media and social media attention that has arisen as a result of this trial amounts to public shaming and should be considered a mitigating factor on sentence.
[36] Courts have recognized that where media attention is exceptional and has a quantifiable impact upon the convicted offender, it may be considered a mitigating factor. This is due to the deterrent and denunciative effect that may be achieved by this kind of overwhelming coverage: R. v. Laboissonniere, 2013 BCPC 182, at para 84; R v. Kovtanuka, 2017 ONCJ 843; R v. Hood, 2016 NSPC 78; R v. Ambrose, 2000 ABCA 264, at para 143.
[37] However, some media coverage is to be expected in a criminal case. Further, such media coverage is constitutionally protected by s. 2(b) of the Charter and our open court principle.
[38] In this case, I was presented with six newspapers articles, all from reputable sources. The content of each is accurate, fair, and balanced. There is no evidence of pervasive or inaccurate media reporting that would create an exceptional circumstance deserving consideration as a mitigating factor.
[39] Defence counsel also raised concerns about the social media publicity attached to the trial. This form of publicity has been recognized by the legislature and the Courts as a potential source of public shaming, bullying and harassment that may have severely negative impacts on its victims, which might amount to a mitigating factor. However, evidence of a deterrent or denunciative impact of such publicity must be proven in order for this principle to be met: R v. Ewanchuk, 2002 ABCA 95, at para 66. It is natural that some publicity will arise in the life of a person convicted of a crime, potentially leading to the disapproval of peers, colleagues and the public at large. Negative impact must be linked to such exposure, be it through traditional or social media, in order for a mitigating effect to be found: R v. Will, 2018 ONSC 4045, at para 30.
[40] In this case, one page of social media publicity was provided to me. It appears to be an Instagram page with a picture of Mr. Walsh and some written content. I have no information as to who posted it, when it was posted, or how many people viewed it. There is a second page with what appears to be a picture of Mr. Walsh with the words “expose patrick walsh” written across it multiple times. I have no information as to where this photograph originated, or if it was published on social media. In my view, this evidence falls well short of what would be required to substantiate a claim of public shaming. Further, there is an absence of evidence as to the negative impact these media accounts had on Mr. Walsh, and thereby no basis for a finding of mitigation.
Analysis
[41] There are a number of significant aggravating factors attached to this particular case. Of note is the serious and violent nature of the offence itself. Mr. Walsh perpetrated not one but two acts of significant personal violence on Ms. M.S. on this occasion. An act of forced vaginal penetration, as in this case, is at the more serious end of the spectrum and highly aggravating. Our courts have long recognized sexual assault to an act of violence. In R v. McCrow, [1991] S.C.J. No. 69 at para 29, the Supreme Court acknowledge the long lasting emotional and psychological trauma suffered by victims of sexual assault.
[42] It is clear that the acts perpetrated by Mr. Walsh on Ms. M.S. will have a lifelong psychological and emotional impact on her. I find this to be a significant aggravating factor.
[43] Next, I turn to Mr. Walsh’s treatment of Ms. M.S. during and after the sexual assault. His conduct was demeaning and callous and amounts to a serious aggravating factor on sentence.
[44] During the forced vaginal intercourse, Ms. M.S. repeatedly told Mr. Walsh “no” in an effort to make him stop. He did not. Mr. Walsh continued until she told him she was going to vomit. In R v. Garrett, 2014 ONCA 734, [2014] O.J. No. 5031, the Court of Appeal found that this type of conduct constitutes demeaning behaviour and a contemptuous disregard for the personal integrity of the complaint. This engages the predominant sentencing principles of denunciations and deterrence.
[45] Mr. Walsh’s disregard for Ms. M.S.’s dignity continued after the offence when he FaceTimed friends, laughing about Ms. M.S.’s vulnerable condition. Further aggravating is that he then allowed a group of young males into the apartment, all the while she was naked on the bathroom floor with the door ajar. Mr. Walsh did nothing to preserve her dignity. His conduct was demeaning and callous and thereby amounts to an extremely aggravating factor on sentence.
[46] My analysis does not end there. I must go on to consider the mitigating factors.
[47] The most significant mitigating factors are Mr. Walsh’s youth and the absence of any criminal antecedents. Mr. Walsh is a young man. He is currently 22 years old and was 20 at the time of this offence. He has his whole life ahead of him, with ample opportunity to rehabilitate himself. He also has no criminal record. Combined, these are primary considerations deserving of significant mitigation.
[48] Further, Mr. Walsh has the full support of his family and friends. Although not directly mitigating, it does increase his prospects of a full rehabilitation and significantly decreases the likelihood that Mr. Walsh will re-offend.
[49] I am mindful that Mr. Walsh has achieved much in his young life and is held in high regard by his friends and family. He is described as someone of exemplary character, consistently putting the interests of others before his own. Be that as it may, a very different aspect of Mr. Walsh surfaced at the time of this offence. On this occasion he did not put M.S.’s needs before his own, or even at equal level with his own. Instead he put himself first and sexually assaulted her. I accept that this conviction has currently changed the trajectory of Mr. Walsh’s life. However, his loss of academic and athletic opportunity will likely be easily recuperated. For M.S. it will take many years, perhaps a lifetime to recuperate the loss of self-esteem and trust that his incident resulted in. Although I am confident that Mr. Walsh will get his life back on track due in large measure to his family support, I remain concerned about Mr. Walsh’s ability to fully rehabilitate himself. True rehabilitation is grounded in understanding. In my view Mr. Walsh has a lot of work to do to gain the necessary insight to appreciate the seriousness of this offence and the damage he has caused.
Summary
[50] After a thorough consideration of the law, the submissions of counsel, and the unique circumstances that are attached to this case, I find that a custodial sentence in the penitentiary is warranted. Crown counsel submits that three years is justified. The position is not an unreasonable one and is well within the range for given the serious nature of this offence. I am aware that whatever sentence I impose will seem unreasonably low to some and impossibly high to others. Of significance to me it is that Mr. Walsh is a youthful first offender. Accordingly, I remind myself that the sentence must invoke the principle of restraint. On balance, if find that a sentence of 2 years in the penitentiary is fit and justified under the circumstances.
Ancillary Orders
(1) An order made under s. 109 of the Criminal Code prohibiting the defendant for the next ten years from owning, possessing or carrying any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance;
(2) An order pursuant to s. 490.012 of the Criminal Code requiring the defendant to comply with the Sex Offender Information Registration Act for a period of 20 years (being the applicable term provided for in s. 490.013(2)(b) of the Criminal Code);
(3) An order authorizing the taking from the defendant such bodily substances as are necessary for the purposes of a forensic DNA analysis, pursuant to s. 487.04 of the Criminal Code; and
(4) An order pursuant to s. 743.21 of the Criminal Code that the defendant shall not communicate directly or indirectly with the complainant while in custody.