Court File and Parties

COURT FILE NO.: 19-DV5091 DATE: 2020/06/26 COURT OF ONTARIO, SUPERIOR COURT OF JUSTICE

RE: R. v. B.W.S.

BEFORE: Mr. Justice C. MacLeod

COUNSEL: Matthew Geigen-Miller, for the Crown B.W.S., defendant, in person

HEARD: Sentencing Submissions made April 14 & April 16, 2020 Decision given orally on June 23, 2020 (by teleconference)

Notice

This is a written version of a decision given orally. It has been anonymized for publication. There is a partial publication ban in this matter. Pursuant to s. 486.4 of the Criminal Code of Canada, it is an offence to publish information that might identify the complainant or any of the witnesses in this proceeding.

SENTENCING DECISION

Purpose of the Hearing

1This is the sentencing decision in the matter of R. v. B.W.S. It follows on my decision convicting the defendant of nine offences on a 12-count indictment. I gave oral reasons for conviction on March 12, 2020 and subsequently released those reasons in writing. The original decision may be found and is cited as 2020 ONSC 1557.

COVID-19 Disruptions

2On March 17, 2020, all in-court appearances were suspended due to the COVID-19 pandemic and all criminal matters were adjourned by the Chief Justice. The defendant remained in custody, however, and with his approval, I heard submissions by telephone on April 14, 2020. A victim impact statement was also read into the record. The VIS was marked as Exhibit No 1. Written submissions from the Crown were received on April 16, 2020. The defendant declined the opportunity to make written submissions in response. I am advised that a copy of the submissions was mailed to the defendant at the jail, but a copy was also provided to s. 486 counsel who has been assisting the defendant on other matters.

Material before the Court

3When I scheduled the date to deliver this decision, I asked the Crown to update the CPIC record and to provide the details of the offences which used up some of the credit involved in the offender’s pre-sentence detention. I now have those details and copies were provided to the defendant. A copy of the e-mail containing a calculation of time served and attaching the CPIC print out along with the records of conviction in the OCJ was also marked as an exhibit (Exhibit 4).

4In addition to that information and to the oral and written submissions, I have reviewed the pre-sentence report and the psychological report (Exhibits 2 & 3). Those documents were prepared for the earlier hearings in February of 2019 and were not specific to this matter. As discussed in court following the conviction, the defendant was opposed to the personal intrusion and delay involved in a new PSR or a new psychological evaluation and preferred to rely upon the reports that were before Justice Maranger and the Youth Court Judge at the time of his convictions in February of 2019.

5The PSR, of course, outlines the defendant’s background and family history and with his life circumstances as they stood at the beginning of last year. The psychological report does contain a diagnosis but was primarily focused on whether or not the defendant was a sexual predator and a danger to children. As such, and as the defendant is aware, that report does not deal with his subsequent history nor does it deal directly with his current rehabilitation potential, likelihood of re-offending or what mental health supports he might require.

6In deference to the defendant’s strong views on the subject and his wish to proceed to sentencing without delay, I declined the request of the Crown to order a further mental health assessment. I proceeded on the basis of the evidence heard at trial, those reports, the victim impact statement and the sentencing submissions.

7In court appearances remain suspended and Mr. S. remains in custody. He is anxious to have this matter disposed of and has requested that I give my decision by conference call. A hearing was convened this afternoon for that purpose.

8At the opening of the hearing, the defendant questioned the calculation of time served prepared by the Crown, but ultimately was satisfied it is correct. The defendant also asked to make an additional statement prior to the passing of sentence and was given an opportunity to do so.

Summary of the offences for which sentence is to be imposed

9As discussed at the time of conviction, the offences with which Mr. S. was charged arose in the context of an intimate relationship between Mr. S. and the complainant (whose name is protected by the publication ban). The offences centre on three separate incidents which took place on May 13, June 9 and June 11, 2019.

10The detailed description of the events and my findings of fact can be found in the original decision. The following summary is for context, but the findings of fact upon which I am relying are found in the original decision.

a) Incident No. 1 – May 13, 2019

11After the complainant told the defendant she did not wish to engage in sexual relations, the defendant told her he was going to have sex with her anyway and began to grope her over her clothes. After the complainant pushed him off, told the defendant to leave and advised she was calling the police, the defendant pushed the complainant against a door and made threats against the complainant and her daughter.

12I convicted the defendant on Count 1, a charge of sexual assault contrary to s. 271 of the Criminal Code ¹. I convicted the defendant on Count 2 which is the charge of assault contrary to s. 266 of the Code and Counts 3 and 4 which are the charges of threats contrary to s. 264.1 (2) and intimidation contrary to s. 423 (1) (b) of the Code. In his submissions, the Crown concedes that the application of the Kienapple principle should result in staying of Count 3 which would be based on the same facts as Count 4. Accordingly, Count 3 is conditionally stayed and the defendant is to be sentenced on Counts 1, 2 & 4.

13Count 5 is a charge of breach of probation. As discussed extensively at the time of conviction, the defendant was on probation at the time these offences were committed. Thus, each group of offences is also a breach of the two probation orders that had been imposed only months earlier.

b) Incident No. 2 – June 9, 2019

14This is the incident in which the defendant assaulted B.G. As discussed, B.G. was the boyfriend of one of the complainant’s friends who had come to the complainant’s home. The friends were staging what the Crown described as an “intervention”. That is, they were seeking to convince the complainant that she should end her relationship with the defendant.

15As described in detail in the evidence and as found by me at the time of the conviction, the accused came up the stairs, shirtless, having removed his glasses and picked up a hammer. He punched B.G. in the face two or three times before ultimately being subdued. The hammer played no direct role in the assault and no weapons charges were laid. I convicted the defendant on Count 6, assault contrary to s. 266 of the Code. I also convicted him on Count 7, breach of probation contrary to s. 733.1 (1) of the Code because he failed to abide by the requirement to keep the peace and be of good behaviour as required by his probation orders.

c) Incident No. 3 – June 11, 2019

16I found that the defendant was guilty on Count 8, uttering threats by telephone contrary to s. 264.1 (2) of the Code. The circumstances are detailed in paragraphs 38 – 40 of the decision.

17This incident was also a breach of probation and led to conviction on Count 9.

Position of the Crown

18The position of the Crown is that there should be an overall sentence of 42 months imprisonment less credit for pre-sentence detention with the result that I am asked to impose a further sentence of 28 months and three days followed by a term of probation and the various ancillary orders discussed below.

19The Crown seeks a sentence of 30 months on the sexual assault (Count 1) and six months on each of Counts 2, 4 and 5. Those offences are all part of the sequence of events involved in incident No. 1 and the sentences should run concurrently – that is at the same time.

20The Crown seeks a further six months to run consecutively to the offences arising from incident No. 1 but concurrently to each other for Counts 6 & 7.

21Finally, the Crown seeks six months for each of Counts 8 & 9, to run concurrently to each other but consecutive to the other sentences. These arise from the incident on July 11, 2019.

22These calculations produce a total sentence of 42 months for all the offences combined.

23There are also a series of mandatory or discretionary ancillary orders. The Crown asks for a DNA order, a lifetime s. 109 weapons prohibition and a SOIRA order placing the defendant on the sexual offender registry pursuant to s. 490.012 (1) of the Code for life.

Pre-Sentence Credit

24I will speak briefly about the pre-sentence credit. There does not appear to be any dispute about the time served or the credit that should be given.

25As of today, the day of sentencing, the defendant has been in custody for 349 days after deducting seven days when he was inadvertently set at liberty in January of this year. 66 days of his pre-sentence custody has already been used as credit towards a series of offences dealt with in the Ontario Court of Justice while this matter has been pending.

26Those credits are 40 days used on October 10, 2019, four days used on January 10, 2020, 20 days used on April 6, 2020 and two days used on April 9, 2020. Consequently, in sentencing the defendant, I must give him credit for the net period of 283 days already served in detention. This is the 349 days time actually served minus the 66 days credit referred to above.

27The Crown submitted that it would be appropriate to give enhanced credit for the “dead time” at the rate of 1.5 days for every day served. This would require credit for 425 days or 13.9 months.

28If I accept the Crown’s submissions on sentencing and sentence the defendant to 42 months imprisonment, less this credit, the net sentence would be 28.1 months or 28 months and three days. This of course would require incarceration in a federal penitentiary.

Position of the Defendant

29The defendant argues for what is colloquially known as “time served”. That is, he seeks a term of imprisonment equal to the credit he should receive for the time spent in pre-sentence detention. Functionally, this is an argument for a total sentence of 13.9 months imprisonment already served and immediate release from custody.

30The defendant also acknowledges that he should be placed on probation for three years. This, he argues, is the means by which he will be provided with mental health supports, anger management training and other life skills he requires to become a functional member of society. It was his submission that he would be more likely to get those supports under a longer probation order than through a relatively short additional prison term in either a provincial or federal institution.

31The defendant was able to correctly identify the sections of the Code which guide the court in sentencing and was able to articulate the factors which he submitted should be applied in his favour.

32The defendant also argued that a contributing factor in his overreaction to the threat by the complainant to break off the relationship was the fact that he would have been homeless. He stated that he will be homeless for some time upon his release and it would be better for him and better for his chances of successfully integrating into society if he is released in the summer and not in the winter.

Sentencing Considerations

33Sentencing an offender such as this defendant is a delicate task. I described the defendant’s youth and the fact that he has spent almost all of his adult life in custody in the original decision. I also spoke about his evident intelligence and capacity to articulate his position, to appreciate points of law and evidence and his ability under certain conditions to comport himself appropriately. A youthful offender who appears to be a candidate for education and training would ordinarily lead the court to emphasize the objective of rehabilitation. There is no denying that if the defendant could harness the skills he demonstrated during the trial and learn to regulate his anti-social behaviour, it would be in his best interests and in the interests of society that he be given an opportunity to do so.

34Now that I have had an opportunity to review the family history in the pre-sentence report as well as the information contained in the psychologist report, I am also aware of the background of the defendant and his history of anger management issues. His early childhood and his upbringing, as well as his diagnosis of ADHD, possible learning disorder and PTSD are factors that would bear on his level of moral culpability and speak to the need for counselling and mental health supports rather than incarceration.

35Standing in contrast to this, however, is the defendant’s history of criminal offences and his apparent inability to restrain himself even when subject to probation orders or other supervision. In examining the record, of course, the court must be careful not to punish an offender a second time for offences that have already been disposed of. But I am entitled to consider the record of offences in weighing the prospects for rehabilitation and in balancing the factors that must be considered in fashioning an appropriate sentence. Of particular concern are his previous convictions for sexual assault, his repeated noncompliance with probation orders and the fact that he has continued to offend while in detention and during this trial. An appropriate sentence must also reflect the need for denunciation and deterrence as well as protection of the public.

36There are other factors that must be taken into account. The fact that most of the offences before the court were offences against an intimate partner is an aggravating factor. The impact on the victim as described in the victim impact statement must also be given some weight. The fact that the offences were committed so soon after his previous convictions, within months of his release from custody is also to be considered.

37Apart from his youth and his expressed wish for rehabilitation with appropriate mental health supports, I also commented in the original decision on the fact that the defendant was excoriated in the press before and during the trial. The newspaper repeatedly ran his photograph and described him as a sexual predator and a rapist. This form of public denunciation at a time when he was still entitled to the presumption of innocence is relevant as well.

38In his submissions, the defendant sought to explain his offences. Particularly in addressing the court today, he showed insight into the way that he might have acted differently and he professes to understand his need for anger management. On the other hand, he expressed no actual remorse and no empathy with the complainant. Some of his submissions on the sentencing hearing bordered on victim blaming. Lack of remorse is not an aggravating factor, but remorse for a crime and reparations to the victim of the crime may be considered in mitigation of a sentence. That is not the case here.

39In his sentencing submissions, the defendant categorized the offences as minor. In particular, he described the sexual assault as simple touching. It is true that the sexual assault in this case is on the minor end of the physical scale compared with truly horrific cases that sometimes come before the court, but the essence of the offence is the violation of an individual’s sexual integrity and the emotional and psychological harm to the complainant. It is not for the perpetrator to minimize the harm by arguing that it could have been worse. In this case the sexual touching was accompanied by a threat to have non-consensual sex in circumstances where the defendant knew that the complainant was aware he had previously served a sentence for sexual assault. The offence was not trivial.

40I am obliged to state a specific sentence for each individual offence, but I am also required to take into account the totality principle. The Crown concedes that the overall sentence must not be “crushing” although in this case the Crown is asking for penitentiary time even after credit for the time served.

41I agree that the overall sentence must demonstrate to the defendant that these crimes are taken seriously. The sentence must be sufficient to demonstrate that the court regards this series of offences as significant and should seek to deter the defendant from continuing down this path.

42I agree with Crown counsel that the defendant is at a crossroads. This is his opportunity to change the trajectory he is on. Either he will rehabilitate himself and learn to live in society or he will continue down the path of violent interactions with those around him. I agree that a further term of incarceration is warranted. I do not agree that it should be the penitentiary time proposed by the Crown.

Disposition

a) Term of Incarceration

43For Count 1, the sexual assault, for the reasons given above; I calculate that the appropriate sentence is 22 months. For disposition purposes, this will be reduced by the credit for 13.9 months already served so that the sentence on Count 1 will be a further eight months and three days.

44I agree with the Crown that six months is the appropriate sentence for each of Counts 2 & 4 & 5 and those sentences should run concurrently to the sentence for Count 1. As indicated above, there will be a conditional stay on Count 3.

45I consider four months appropriate for the assault on B.G., which is Count 6 and a concurrent four months on Count 7. Although this assault charge is related to the same sequence of events involved in the end of the relationship with the complainant, it is sufficiently distinct, that I agree with the Crown, the sentence for these two offences should be calculated consecutive to the sentences for Count 1 (but concurrent with each other). For clarity, this four-month sentence will run from the end of the sentence on Count 1.

46The threats by telephone, which are the basis for Counts 8 & 9 were a repetition of the threats made in person during the events forming the basis for Count 4, but in this case they were designed not to coerce the complainant to abstain from calling the police but to manipulate her into continuing the relationship.

47An appropriate sentence for these offences is also four months to run concurrently with each other. While separated in time from Counts 1 – 5, in this case I disagree with the Crown’s submissions for consecutive sentences. The sentence for Counts 8 & 9 will be concurrent with that for Counts 1, 2, 3, and 5.

48In summary, and in considering the totality principle, the appropriate sentence would have been a total of 26 months. From this must be deducted the credit referred to above of 13.9 months so that the total sentence will be 12.1 months or 12 months and three days starting from today.

49There will be an order that during the term of incarceration the defendant is not to contact the complainant, any of the witnesses in the proceeding or any of their family members. The Crown is to provide the names of those individuals to the Registrar so that they may be included in the order.

b) Probation

50The defendant will require supervision upon his release. The defendant himself suggested three years of probation, but that was based on his request for immediate release. I sentence the defendant to two years and four months of probation following his release from prison.

51The actual probation order will set out the terms in the usual form. They will include the standard requirement to keep the peace and be of good behaviour, to report to a probation officer immediately upon release and weekly thereafter or as directed by the probation officer, to participate in such counselling, educational and mental health programs as directed, to obtain and maintain employment unless enrolled in an approved educational program, to maintain and report his address and contact information. The defendant is not to contact the complainant or any of the witnesses in this proceeding or their family members and will be prohibited from attending at their residences or places of employment.

c) Ancillary Orders

52The ancillary orders requested by the Crown are either reasonable or required by law or both. I agree that a lifetime weapons prohibition and a lifetime SOIRA order are appropriate. This is the third conviction for a sexual offence. There will also be a DNA order although the defendant is already subject to such orders.

Recommendation

53A sentencing judge has no power to determine where an offender is to be incarcerated but a judge may make recommendations. Following the imposition of sentence, the defendant requested that I make a recommendation he be placed in the St. Lawrence Valley Correctional Institute. That is in line with one of the recommendations made by Dr. Fedoroff in the psychological report and is not opposed by the Crown. I am pleased to make such a recommendation.

Mr. Justice C. MacLeod Date: June 26, 2020

Summary of Decision (Redundant Block from Original)

Footnotes

1. 1Criminal Code of Canada, R.S.C., 1985, c. C-46