COURT FILE NO.: CR-18-508 DATE: 20200608 CORRECTED DATE: 20240111 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – M.W. Defendant
Counsel: Samantha Herbert for the Crown Blake Jefferies for the Defendant
Heard by Teleconference: June 5, 2020
Corrected Decision: The text of the original decision was corrected on January 11, 2024 and the description of the correction is appended.
Reasons for Sentence
C. Boswell J.
[1] MW was before the court on February 12, 2020 for a judicial pre-trial on a charge of sexual assault. He elected on that date to enter a guilty plea, which I accepted following a plea comprehension inquiry. The matter was put over to March 30, 2020 for sentencing submissions.
[2] On March 17, 2020 the normal operations of the court were suspended due to the COVID-19 pandemic and MW’s sentencing hearing could not proceed as scheduled. With the consent of all parties, sentencing submissions were received by way of a teleconference on June 5, 2020, which MW was able to participate in.
[3] Counsel’s positions on sentence are not far apart. The Crown seeks a one year prison term, together with probation for three years and a number of ancillary orders. Defence counsel does not take issue with the terms sought by the Crown, save for the length of the term of imprisonment and the length of the probationary term. He proposes a term of nine months, which is, in effect, time-served, given that MW has served, as of today, 181 days of pre-trial custody.
[4] The following reasons explain why I agree with the Crown that twelve months imprisonment is just and fit sentence in the circumstances of this case. I turn to those circumstances now.
The Circumstances of the Offence
[5] The parties filed an agreed statement of facts for the purposes of sentencing.
[6] MW and the complainant, AB, had known one another for about four years at the time of the offence, which occurred on May 5, 2018. They lived within walking distance of each other. AB was a single mother of two children. She lived with her father, who suffered from dementia.
[7] AB attended at MW’s residence for the purpose of obtaining some insulation he had offered her father, who was rebuilding a chicken coup. MW was drinking a can of 7-Up mixed with vodka. She became dizzy, light-headed and nauseous. MW brought her inside his motor home with an offer that she could use the bathroom. One of MW’s friends, TK, was outside and heard crying and whimpering coming from inside, so he went in to check on AB. He found that AB and MW were in MW’s bedroom. MW yelled at him to leave, which he did.
[8] TK re-entered the motorhome, however, out of concern for AB’s well-being. He found AB in MW’s bedroom, lying on MW’s bed, with her head hanging partially over the side. She was in a semi-conscious state and was muttering, “why, why?” MW was naked and on top of AB.
[9] TK pulled MW off AB. He found that AB’s pants were around her ankles and her underwear had been pulled down to her knees. Her top was pulled up to just underneath her breasts. After a short altercation between TK and MW, TK was able to assist AB in getting dressed and he removed her from the motorhome. AB was unable to function independently.
[10] TK flagged down a passing motorist, who turned out to be a friend. Together they took AB to the friend’s home where she remained for five hours, until she was well enough to go home. The next day she attended at a local hospital and reported that she had been sexually assaulted. She was transported to Peterborough General Hospital where a formal sexual assault examination was conducted. A swab taken from inside of her underwear was analysed by the Centre of Forensic Sciences and found to contain MW’s saliva.
The Circumstances of the Offender
[11] MW is 41 years old. He was 39 at the time of the offences. He is unmarried and has no children. He was in a common law spousal relationship with a woman that ended a short time prior to the offence.
[12] MW is a part owner of a parcel of land about 500 metres from where AB lives with her father. He was in the process of constructing a residence on the property when a severe storm toppled the partially built structure, causing him significant financial distress. MW and his partner were living temporarily in a motorhome on the property and the stress became too much for their relationship to bear. Thereafter MW began to abuse alcohol as a maladaptive coping mechanism.
[13] MW has a criminal record with a number of dated offences. In September 1998 he was convicted of break and enter with intent. In December 1998 he was convicted of taking a motor vehicle without the owner’s consent. He has two convictions in 1999 for possession of controlled substances. In 2002 he was convicted of pointing a firearm and discharging it with intent. He has no criminal antecedents of a sexual nature and the index offence was out of character for him. He is remorseful for what happened.
[14] There is a lengthy gap in MW’s record between 2002 and 2019 when he was convicted for breach of recognizance. That breach of recognizance resulted in MW being detained pending trial. As I noted, he has served 181 days in pre-sentence custody.
The Impact on the Complainant
[15] AB filed a victim impact statement. The impact of being sexually assaulted has been significant. She became depressed, even bed-ridden at one point. She lives in fear for herself and two young daughters. She has become grossly over-protective of her girls. She has closed herself off from family and friends. She has issues with trust and with being touched. She cannot stand to look at herself and is unhappy with the person she has become.
[16] AB is damaged emotionally. She cries regularly. She has flashbacks. She feels disgusted with what happened and with herself. She is in pain.
The Governing Principles
[17] Section 718 of the Criminal Code codifies the fundamental purposes of sentencing. They include the denunciation of unlawful conduct, deterrence - both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to the victims and the community, and promotion of a sense of responsibility in offenders and acknowledgment of the harm done.
[18] Section 718.1 expresses the overarching principle of sentencing: a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[19] Section 718.2(a) provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances.
[20] Section 718.2(b) provides that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
[21] No one sentencing purpose trumps the others. In each case, the weight to be put on the individual objectives varies depending on the facts and circumstances of the offence and of the offender. In this instance, there is no dispute that deterrence and denunciation are of particular importance.
Discussion
[22] The circumstances of this offence are very serious. MW, for his own selfish pleasure, interfered with the dignity and sexual autonomy of a young woman who was vulnerable, semi-conscious and entirely at his mercy. The circumstances undoubtedly call for a term of imprisonment. MW’s conduct must be denounced in no uncertain terms and he and others must be deterred – to the extent the law is able to do so – from committing sexual assaults against others who are vulnerable and defenceless because they are asleep, unconscious or otherwise incapable of consenting.
[23] My colleague, Justice Campbell, observed, in R. v. Smith, 2015 ONSC 4304, at para. 32 that:
Generally speaking, in cases where the accused has been prosecuted by indictment, the usual range of sentence for this type of invasive sexual assault on a sleeping or unconscious victim is somewhere between an upper reformatory term of imprisonment and a lower penitentiary term of imprisonment (i.e. between 18 months and three years).
[24] Justice Campbell went on to site a significant number of other cases that support the identified range. In my view, he has accurately described the established range for invasive sexual assault. By “invasive” I understand him to mean sexual assault involving penetration. Non-penetrative sexual assaults may involve a somewhat expanded range.
[25] Both Crown and defence counsel suggested that the range for this offence is 9 months to 3 years. Defence counsel submitted a number of cases where a sentence of nine months was imposed in circumstances of non-invasive sexual assaults on incapacitated victims, including R. v. Dahouky, [2008] O.J. No. 1665 (S.C.J.) and R. v. Sarkar, 2015 O.J. No. 51 (S.C.J.). The Crown submitted other cases where sentences of twelve months were imposed in similar circumstances, including R. v. Micula, 2016 ONCJ 467, R. v. Tuffs, [2012] S.J. No. 30 (Sask. C.A.) and R. v. Scinocco, [2017] O.J. No. 2901.
[26] The facts in Micula are reasonably close to the facts here. The accused undressed a female who had passed out in his apartment as a result of the ingestion of drugs and alcohol. He performed oral sex on her. The Crown sought a sentence of 12 to 14 months. The accused sought a conditional sentence. In rejecting the proposal of a conditional sentence, Sparrow J. of the Ontario Court of Justice commented as follows, at paras. 28-29:
…[T]he offence was callous, frightening, and hugely intrusive into the victim's private sexual domain. There is no evidence of penetration, as in certain cases of forced intercourse cited; however, that fact does not make the accused's act less intrusive to a great degree, given that he made oral contact with the most private part of her body.
In my view, the range of 12 to 14 months in custody is correctly stated.
[27] I note that Micula and the other cases cited by the Crown, were all cases proceeded with summarily by the Crown. One would expect that the sentencing range may be somewhat higher in cases proceeded upon by indictment.
[28] To a large extent fussing over a lower end of the range at 9 or 12 months is inconsequential. In the aggravated circumstances of this case, a sentence of 9 months would, in my view, be inappropriate.
[29] Ranges are, in any event, not set in stone. They are guidelines, as appellate courts have repeatedly reminded sentencing judges. Sentencing remains an acutely individualized exercise and it is necessary for sentencing judges to carefully consider the particular circumstances of the offence and the offender.
[30] Crafting a sentence proportionate to the gravity of the offence and the moral responsibility of the offender requires the court to carefully consider any aggravating and mitigating circumstances.
[31] The most significant aggravating circumstance in this case is obvious. AB was ill and semi-conscious. She was vulnerable, completely unable to protect herself. MW took advantage of AB’s incapacitated state to sexually assault her.
[32] That MW undressed and touched AB in a sexual manner without her consent is clear. What specific sexual acts he engaged in with her is less clear. An available inference, and one which I draw, is that he performed oral sex on AB, whether over or under her underwear. What more he did, or may have done if not stopped by TK, is purely speculative. There is no evidence of penetration of any sort.
[33] Penetration, or the lack thereof, remains a material distinguishing feature in terms of sentences imposed on conviction for sexual assault. Whether it should be so is a matter of debate. There is no doubt that non-penetrative sexual assault can, and frequently does, have a profoundly negative impact on the well-being of the victim. But on the present state of the law, an absence of penetration tends to make the circumstances somewhat less aggravating and distinguishes this case from others, like Smith, where the sexual assault included full-on intercourse.
[34] Having said all of that, I agree with the observation of Sparrow J. that performing oral sex, while perhaps not technically invasive, is an extreme breach of the victim’s sexual integrity and personal dignity.
[35] Arguably, an additional aggravating factor is the fact that MW has a criminal record. His criminal antecedents are, however, so dated that they tell me little, if anything, about his prospects for rehabilitation. I place virtually no weight on it.
[36] In terms of mitigating circumstances, there is just the one in my view. MW entered a guilty plea, avoiding the need for AB to testify at trial. The plea occurred only after a preliminary hearing, where AB testified, so it was not an early plea, but it has some mitigating effect nevertheless.
[37] This was a serious sexual assault on a defenceless woman, which has had profound consequences to her well-being. In my view, an appropriate sentence, in view of all of the circumstances, is 18 months in the reformatory.
[38] There remain, however, three other factors to take account of. First, the credit MW is to receive for the 181 days he has spent in remand prior to this sentence. Second, what, if any, enhanced credit MW is entitled to due to the particularly harsh conditions he has experienced in remand, due to lockdowns and other COVID-related restrictions. Finally, the determination of whether the pandemic has a role to play in attenuating the length of any remaining sentence to be served by MW. I will address these issues in turn.
The Credit for Time Served
[39] MW is entitled to a credit of 1.5 days for each day of pre-sentence detention he has served: see R. v. Summers, 2014 SCC 26. His 181 days of remand detention translate, in the result, to 272 days, which is the equivalent of 9 months.
Enhanced Credit for Harsh Conditions
[40] MW has been detained at the Central East Correctional Centre. CECC is, by now, well-known for its chronic lockdown conditions generally associated with staffing shortages.
[41] MW produced a report from CECC that indicates that, to February 20, 2020, he had been subjected to lockdowns on 29 days, almost all for over 6 hours. These lockdowns were almost entirely related to staff shortages.
[42] It is further well-known that since the pandemic hit in mid-March, inmates have been restricted in their movements, subjected to additional lockdowns, and visitations have been suspended.
[43] MW did not file any evidence about how the lockdowns and other restrictive conditions associated with the pandemic have impacted upon him specifically. That said, I take judicial notice that lockdowns and other COVID-related restrictions have a strong tendency to increase stress amongst inmates and tend to lead to feelings of depression and hopelessness.
[44] In R. v. Duncan, 2016 ONCA 754, the Court of Appeal instructed that, in appropriate cases, particularly harsh pre-sentence incarceration conditions may warrant mitigation beyond the 1.5:1 credit provided for in s. 719(3.1) of the Criminal Code and addressed in Summers, as above. I am prepared to grant MW three months’ additional mitigation to account for the particularly harsh conditions he has experienced due to lockdowns and other COVID-related restrictions.
The Impact of COVID-19 Going Forward
[45] The health, social and economic impacts of the COVID-19 pandemic are universally known. How they play out in the sentencing process is unsettled. The presence of a pandemic is not a mitigating circumstance, nor is it a recognized credit. Moreover, it does not undermine the established principles and objectives of sentencing, as I have set out above.
[46] The pandemic, nevertheless, is a factor that must be considered in crafting a fit and just sentence. I say this because, as many other courts have recognized, persons in congregate living facilities, like jails, nursing homes and cruise ships, have a heightened risk of contracting the virus.
[47] It is well-known that the central strategy for the population health management of COVID-19 has been, and remains, to “flatten the curve”. Social distancing is the key focus of the flatten the curve strategy. Inmates are unable to effectively practice physical distancing given the circumstances in which they are detained.
[48] Heightened risks to inmates create a heightened risk of spread to the general population as staff and service providers go in and out of jails. See R. v. Kazman, 2020 ONCA 251 at paras. 17-18.
[49] A fit sentence, as my colleague, Justice Pomerance, observed in R. v. Hearns, 2020 ONSC 2365, at para. 16, must consider not only the length of a sentence of imprisonment, but also at the harshness of the conditions under which it is served. A sentence is, after all, the imposition of suffering on an offender. Suffering is a function not only of term, but of the impact of the sentence on the offender given his or her particular circumstances: see R. v. Suter, 2018 SCC 34, at para. 48.
[50] The pandemic has been a daily force in the lives of all Ontarians for three months. It continues to pose significant challenges. There is, moreover, a genuine concern for a second wave of the virus in the late fall or early winter. The risk that the pandemic poses to inmates remains a factor that courts will consider in fixing the terms of a custodial sentence.
[51] Going forward, any period of additional incarceration to be served by MW, will be subject to the same COVID-related restrictions he has been experiencing over the past three months, which will include increased time alone in his cell, reduced contact with other inmates, a heightened risk of contracting the novel coronavirus and a suspension of visits from family and friends. In other words, the conditions of his detention will continue to be particularly harsh.
[52] For that reason, I am prepared to further reduce the sentence to be served. Having said that, even with a further reduction, the sentence to be served must remain true to the overarching principle of proportionality. It need not be perfect, but it must still take into account the gravity of the offence and the moral responsibility of the offender.
[53] My colleague Justice Davies had the following to say about the impact of COVID-19 on sentencing in R. v. Studd, 2020 ONSC 2810:
As the Court noted in R. v. Hearn, our sense of community, decency and humanity during this public health emergency must extend to incarcerated individuals. If the time an individual has already served in custody will address the principles of sentencing, even imperfectly, the Court should not impose a further term of imprisonment in the unique circumstances of the current global health crisis. In those cases, a sentence that will ensure immediate release from custody will be just and appropriate, even if it is below the range that might otherwise be imposed
[54] Defence counsel urged me to impose a sentence of time-served, which would reflect a COVID-related reduction of 6 months, or roughly 1/3 of the total sentence imposed. The question is whether such a sentence will adhere to the principles of sentencing, even imperfectly. In my view, it will not. I have already indicated my view that the gravity of the offence is significant as is MW’s moral blameworthiness. While I am prepared to adjust the remaining sentence due to the anticipated harshness of the conditions under which it will be served, a further reduction of 6 months will not result in a sentence sufficiently proportionate to the gravity of the offence. I agree with the Crown that 12 months, while on the low end, is necessary to meet the objective of proportionality.
[55] At 12 months, MW will not be entitled to an outright release. But given that his net sentence to be served is 3 months, I am able to order it to be served intermittently. An intermittent sentence will attenuate some of the stresses and harshness of the conditions under which the sentence will be served.
[56] In the result, I sentence MW to 18 months in prison, less a credit for 9 months for time served, a Duncan credit of 3 months and a further COVID-related reduction of 3 months, for a net sentence of 3 months, which is to be served intermittently, on weekends from Fridays at 6:00 p.m. until Mondays at 6:00 a.m. commencing Friday, June 12, 2020.
[57] In addition, MW will be subject to 2 years probation, on the following terms:
(a) To report to a probation officer within 2 business days of his release and thereafter as required by the probation officer;
(b) To keep the peace and be of good behaviour;
(c) To appear before the court when required to do so by the court;
(d) To notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation;
(e) To attend and participate in all assessment, counselling, or rehabilitative programs as directed by the probation officer;
(f) To refrain from communicating, either directly or indirectly, by any physical, electronic, or other means, with any of the following: AB or her immediate family, TK, JS and NP;
(g) Do not be within 200m of any place you know AB or her immediate family to live, work, go to school, frequent, or any place you know AB or her immediate family to be, except for the limited purpose of going directly to or from your own property.
[58] The terms of probation will apply at any time that MW is not in confinement during the period that the sentence is being served and thereafter when on release from prison after completing the intermittent sentence.
[59] While in custody, MW is not to communicate directly or indirectly with AB.
[60] In addition, I impose the following ancillary orders:
(a) A s. 110 weapons prohibition for 5 years;
(b) An order that MW provide a sample of his DNA; and
(c) MW shall comply with the Sex Offender Information Registration Act for 20 years.
Boswell J.
Corrected: January 11, 2024
January 11, 2024 – Correction:
- Para. 3, last sentence now reads: He proposes a term of nine months, which is, in effect, time-served, given that MW has served, as of today, 181 days of pre-trial custody.
