Court File and Parties

Court File No.: 16-SA5085 Date: 2019-04-04 Superior Court of Justice – Ontario

Between: Her Majesty The Queen H. Shouldice, Counsel for the Crown

And: C.L. M. Day, Counsel for the accused

Heard: March 14, 2019

Reasons for Sentence

Madam Justice J. Parfett

[1] On October 19, 2018, Mr. C.L. was found guilty of sexual assault after a jury trial. He is now before court for his sentencing.

Circumstances of the Offence

[2] Mr. C.L. and the victim had known one another for several years. Mr. C.L. was a good friend of the victim’s brother. The victim was aware that Mr. C.L. sold marijuana. On the day in question, the victim went over to C.L.’s residence in order to purchase some marijuana. When she got off the bus, Mr. C.L. told her that the marijuana was at his apartment, so they went there.

[3] The victim said that after concluding the purchase, Mr. C.L. asked her to play chess with him. Shortly after starting the chess game, the victim indicated that Mr. C.L. went into the closet and got some peanut butter. She said that Mr. C.L. asked her if she wanted to lick the peanut butter off him. She stated that she refused in disgust and that Mr. C.L. got angry. The victim said that Mr. C.L. pushed her down on the bed, removed her leggings and underwear, removed his own pants and had sexual intercourse with her. The victim stated she told Mr. C.L. ‘no’ and also resisted by trying to push him off her, but she was unsuccessful.

[4] After the incident, Mr. C.L. texted the victim on several occasions. According to the victim, Mr. C.L. texted ‘it was not him. It was the drugs and alcohol.’ In addition there was a Facebook conversation between Mr. C.L. and the victim’s brother in which the victim’s brother said, “You try and get with my sister in the worst way possible. Now this. Don’t even both with me”. Mr. C.L.’s response was “Dude she consented and I was drunk it takes two to tango bro.”

Circumstances of the Offender

[5] Mr. C.L. is presently 25 years of age and has no prior criminal record. He maintains his innocence, as he has a right to do. At the time of the offence, he was 20 years of age. He was born in Ottawa and raised in the Prescott-Russell area. He returned to Ottawa as an adult. He advised the probation officer who prepared the Pre-sentence Report (PSR) that his upbringing was mostly positive. He is closer to his father than his mother. Mr. C.L. advised the probation officer that his mother suffered from substance abuse and mental issues that impacted on his childhood.

[6] Although he has never had a formal mental health assessment, Mr. C.L. believes that he also suffers from some mental health problems and he has recently been seeing a counsellor.

[7] Mr. C.L. is currently single and has no dependents. He completed high school and obtained some university credits. He is currently employed working at two jobs. The first job is as a team lead for a marketing company and the second job is with a diner in the Centertown area. In the PSR, it is noted that Mr. C.L.’s current employer ‘had only positive things to say about the subject, stating that he is an incredibly hard worker, respectful, and will do great things as he is very “career focused and driven.”’ [1]

[8] At the time of the incident, Mr. C.L. was supplementing his income with drug dealing. He has used marijuana and cocaine, but has been sober from both alcohol and drugs since June 6, 2017. Mr. C.L. advised the probation officer that he used illicit substances as a way to deal with resentment, anxieties and insecurities. Since deciding to remain sober, Mr. C.L. has been attending both Alcoholics Anonymous and Narcotics Anonymous.

[9] The conclusion of the PSR was that Mr. C.L.,

[p]resents as a prosocial individual who is conformant to society’s conventions, and is amenable to participating in any treatment as directed, including for sexual behaviours if recommended by the courts.

The subject would be suitable for community supervision if included in the disposition, given his willingness to participate in such programs as may be recommended. Without a sexual behaviour assessment having been completed, his level of risk and needs are unknown, however this writer believes that participation in sexual offending treatment or programming would be beneficial. [2]

Victim Impact Statement

[10] The victim in this matter filed a victim impact statement. She indicated that this offence continues to impact her daily life. She also stated that the offence had impacted on her relationship with her family in that her father and brother will not discuss the incident. Her mother will ask questions, but the victim said she found it difficult to provide answers. As noted earlier, Mr. C.L. was a friend of the victim’s brother.

[11] In conclusion, the victim noted,

I find that over the days and years, with good family and friends by my side, these feelings have gone away some. At times, I wish no one knew about [the incident] as sometimes I feel less of a woman…but then again I do not let myself feel that way and I do let myself know that I am nothing less of a woman, [instead] I am…a stronger, [more] independent woman than I ever was before. [3]

Positions of Counsel

[12] Defence counsel indicated that in his view, the appropriate sentence in the present case is a custodial period of 18 months’ jail, followed by 24 months’ probation. He acknowledged that in the present case – a single act of non-consensual vaginal intercourse with a young victim (17 years old), where the offender is also youthful, the broad range is 18 months to 4 years, but that 2-3 years is the most common sentence.

[13] Defence counsel pointed to a case that supported his view that a sentence at the very low end of the range was appropriate. In R. v. Garrett, 2014 ONCA 734, the victim and the offender had known one another for years. They decided to go out on a date. After dinner, they returned to the victim’s apartment and began kissing. The victim testified she did not like the kissing and she tried to slow things down. The offender ignored her efforts and ultimately there was non-consensual intercourse. [4]

[14] The trial judge imposed a sentence of 90 days, which was appealed. The Court of Appeal increased the sentence to 18 months. The court found the sentence imposed by the trial judge was outside the usual range and was manifestly unfit. [5] The court noted that the facts were ‘neither exceptional nor unique’. [6] Finally, the court indicated that the sentence of 18 months ‘should not be taken as a sentence within the appropriate or usual range’. [7] But, they felt themselves to be constrained by the position taken by the Crown at trial.

[15] The Crown’s position is two and a half to three years’ incarceration, plus the usual ancillary orders. He noted that the PSR is relatively positive and that the offender has put some of the issues of his life behind him.

[16] The Crown also indicated that although Mr. C.L. does not have a criminal record, he had admitted to living less than a pro-social life in that he was dealing drugs at the time of the offence. The Crown argued that although the word ‘rape’ is not used in the Criminal Code, that word reflected the seriousness of the offence in this case. He stated that the type of sexual assault that occurred in this case – sexual assault by someone known to the victim and who she trusts – is a very common type of sexual assault.

[17] The Crown argued that the sentence should reflect the fact that this incident is typical of sexual assaults involving penetration. In the Crown’s view, there were no exceptional circumstances that would justify a sentence in the very low range of sentences for this type of offence.

[18] The Crown relied on two cases. The first was the Garrett case as outlined above. The second case is R. v. Stankovic, 2015 ONSC 6246. [8] In this case, the victim went to see the offender in order to purchase drugs. They engaged in some consensual touching and kissing. However, the offender then pushed the victim onto the bed and had vaginal intercourse with her against her will. [9] The court imposed a sentence of three years.

Legal Principles

[19] Section 718 of the Criminal Code sets out the governing principles of sentencing. That section states:

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 acknowledgement of the harm done to victims and to the community.

[20] In a case involving sexual abuse, the primary sentencing principles are denunciation and deterrence. [10]

[21] There are two aspects to the principle of deterrence; they are general deterrence and specific deterrence. Specific deterrence relates to the offender himself and aims to deter that offender from re‑offending. General deterrence relates to the belief that an appropriate sentence will have the effect of deterring other members of the public from committing similar offences. In this case, general deterrence rather than specific deterrence is primarily applicable.

[22] Three other sentencing principles set out in the Criminal Code have a significant impact on this sentencing hearing. Section 718.1 states:

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[23] In addition, s. 718.2(d) points out that, ‘an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances.’

[24] Finally, s. 718.2(b) states that ‘a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.’ This section is a codification of the common law principle of parity.

Mitigating and Aggravating Factors

[25] The aggravating factors are as follows:

• the age of the victim, who was 17 years old at the time. This factor is a statutorily mandated aggravating factor. [11] However, as Mr. C.L. was only 20 years old at the time, the impact of this factor is reduced;
• the fact the sexual assault involved intercourse; and
• the text messages between Mr. C.L. and the victim’s brother which revealed a disregard for the victim’s feelings.

[26] The mitigating factors are:

• the age of Mr. C.L. who is now 25 years old and thus still youthful,
• the fact Mr. C.L. has no criminal record; and
• a positive PSR that indicates Mr. C.L. is at low risk to reoffend.

[27] Mr. C.L. maintains his innocence. He has a right to do so and therefore, this factor is neutral.

Sentence

[28] I turn now to what is a fit sentence in this case. Taking into consideration all the factors that I have outlined above, I find that an appropriate sentence is two years imprisonment. I agree with the Crown that this case does not possess any unique or exceptional features that would justify departing from the usual range, which I find to be two to three years. On the other hand, I find that within that range, this case falls at the low end.

Ancillary Orders

[29] There will also be the following ancillary orders:

• s. 109 weapons prohibition for 10 years;
• DNA order;
• a S.O.I.R.A. order for 20 years; and
• S. 743.21 – no contact with the victim while Mr. C.L. is in custody.

Madam Justice J. Parfett Released: April 04, 2019

Footnotes

[1] Exhibit #2 at p. 4 [2] Ibid at p. 6. [3] Exhibit #1 at p. 2. [4] 2014 ONCA 734 at paras. 2-3. [5] At para. 17. [6] At para. 19. [7] At para. 23. [8] 2015 ONSC 6246. [9] Taken from the headnote. [10] At para. 41. See also s. 718.01 of the Code. [11] Sections 718.01 and 718.2(a)(ii.1).