Court File and Parties

COURT FILE NO.: 17-SA5098 DATE: 2021-01-08 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – STEVEN REDDEN-COX Accused

Counsel: Ms. J. Martel, for the Crown Ms. K. Lundrigan, for the Accused

THIS DECISION IS SUBJECT TO A PUBLICATION BAN ORDERED PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE. Any information that could identify the COMPLAINANT OR ANY WITNESS shall not be published in any document or broadcast or transmitted in any way. This decision has been edited in compliance with this order.

Sentence Decision C.T. Hackland, J.

The Conviction

[1] The accused has been convicted of one count of sexual assault, contrary to section 271 of the Criminal Code of Canada. The court’s reasons are reported at R. v. Steven Redden-Cox, 2020 ONSC 1454. This is an offence which carries a maximum sentence of 10 years imprisonment with no statutory minimum.

Circumstances of the Offence

[2] Prior to this the offence, the accused had met the complainant on one occasion while she was visiting her girlfriend who lived next door to the accused. On that occasion, the accused struck up a conversation with the both young women and they went over to his condominium unit and visited with him for about an hour. A week later, the complainant was again visiting her girlfriend when the accused, late in the evening, knocked on the door of the girlfriend’s residence with a view to inviting the girlfriend to come over for a drink. Observing that the accused appeared to be intoxicated, the girlfriend declined the offer and the accused returned to his unit. The complainant testified that her personal preference would have been to accept the invitation, but she deferred to her girlfriend’s wishes. Later in the evening, the complainant left the girlfriend’s residence and went for a brief walk by herself in the neighborhood. She had consumed several glasses of wine and was mildly intoxicated.

[3] Upon returning from her walk, instead of going back to the girlfriend’s residence, the complainant went next door “on the spur of the moment” and knocked on the accused’s door in order, she said, to ask him if he would sell her a beer. I concluded that the complainant was interested in the accused and had decided to accept his earlier invitation to drop over. The accused answered the door, invited the complainant in and they went downstairs to his room in the condominium unit which he shared with another roomer, who was not home at the time. The accused and the complainant consumed a beer, had a conversation and engaged in some kissing and intimate touching, including touching of the complainant’s breasts. The complainant confirmed this was “okay” with her and that she was willingly participating. The accused ripped the complainant’s blouse at one point, but the complainant confirmed in her testimony that this was accidental and occurred during some intimate touching that she was “ok with”.

[4] However, at one point the accused pulled off his pants and exposed himself. The complainant asked, “what are you doing?’, but got no response. He then tried to pull off the complainant’s shorts over her active resistance and in spite of her telling him to stop. He then pulled one leg of her shorts to the side and penetrated her with his penis. This act of intercourse lasted two or three minutes during which the accused pinned the complainant on her back using his hand to press downward on her neck and mouth. He then forced her briefly to perform oral sex on him by pulling her head up and forcing her to comply. This fairly brief but forceful sexual attack, over the complainant’s protests, ended when the complainant made a derogatory comment about the accused’s sexual performance. Following this comment, the accused stopped his attack they each got dressed and the accused led the complainant up the stairs to leave. At the door they hugged and the complainant left. Within a minute, she entered her friend’s residence next door. According to the friend’s testimony, she observed the complainant to be upset, crying and looking disheveled. The friend also observed bruising along the complainant’s jaw line. This bruising was evident in photos taken shortly afterward at the hospital by a sexual assault nurse. The nurse testified as to her observations and the photographs were entered into evidence.

[5] The accused admitted in his testimony that he did not have any conversation with the complainant about whether she was willing to have intercourse nor as to whether she would engage in unprotected sex. He said he believed the complainant was willingly participating.

Circumstances of the Offender

[6] The accused was 29 years of age at the time of the offence – some 11 years senior to the complainant. He is a tall, powerfully built man. He had been drinking over the course of the evening of this offence. He was employed as a supervisor with an auto servicing company. The Pre-Sentence Report (PSR) indicates that the accused’s father died at a young age and his mother later remarried and then separated. He maintains supportive relationships with his mother, his former stepfather and his current domestic partner. The accused has a dated criminal record going back seven years, for three assault convictions, involving a former domestic partner and alcohol abuse. He has maintained relatively steady but intermittent employment and has expressed an interest in completing high school. According to the PSR he is regretful that he upset the complainant, but maintains his innocence, and he apologized to her at the sentencing hearing. I would consider the accused to be a good prospect for rehabilitation if only he can succeed in overcoming his alcohol addiction.

Impact on the Complainant

[7] The complainant was and remains a vulnerable person. She was 18 years old at the time of this offence and had been accepted to begin a university program within several weeks. She testified at trial that prior to this incident, she had been diagnosed with a serious psychiatric illness and was also being treated for anxiety attacks. She was on potent medications at the time, all of which would have been unknown to the accused. Nevertheless, what the accused undoubtedly did observe was that he was having a late-night unexpected visit from a very petite, much younger woman, whom he hardly knew and who evidently had been drinking.

[8] In the court’s view, the accused behaved in a predatory manner in forcing intercourse on this young woman. The complainant’s father outlined in a victim impact statement that after this incident, or in his view because of it, his daughter soon dropped out of her university program, developed a serious alcohol addiction, often went missing from the family home for days at a time and has attempted suicide. While I do not think all of this tragic scenario can be attributed to the sexual assault by the accused, the incident would doubtless have exacerbated or aggravated the complainant’s psychiatric illness and would have been a significant contributing factor to the complainant’s very serious ongoing challenges and to the great worry and stress placed on her parents.

Position of the Parties

[9] The Crown’s position is that a period of incarceration of 3 to 4 years in penitentiary is appropriate for this offence. The defendant’s position is that two years in penitentiary is justified by the circumstances and the relevant case law. As explained below, I view this case as falling within the date rape category of sexual offences where the normal sentence range is between two and three years imprisonment. The Crown’s position is not supported by the case law presented to the court.

Aggravating and Mitigating Circumstances

[10] While this late-night unexpected visit from the complainant was a matter of her choosing, I view the accused’s subsequent actions as being predatory in nature. He knew the complainant had placed herself in a vulnerable position and chose to take advantage of it. He is a powerful muscular individual, 11 years senior to the complainant. He candidly admitted that once the complainant acquiesced in kissing and allowing him to touch her breasts, he then proceeded on to intercourse and oral sex with no effort to ascertain her ongoing wishes and no questions were asked about using a condom. If he did not hear her repeatedly say stop, as he claims, it was because he was forcing his hand over her mouth and neck, which caused noticeable bruising and would have prevented any meaningful communications.

[11] The accused has a criminal record, although it is from the 2013 time frame and is not a major factor here. The PSR is relatively favourable. The accused’s potential for rehabilitation is reasonable if only he can control his alcohol addiction and come to grips with some apparently serious underlying issues in his interactions with women.

Case Law and Legal Analysis

[12] On my view of the case law, as noted previously, the present case falls generally within the date rape category of cases where the sentence range is usually 2 to 3 years in penitentiary. The predominant sentencing objectives are recognized to be denunciation and deterrence.

[13] A leading appellate decision is R. v. Garrett, 2014 ONCA 734. In this case, a couple who had known each other for many years, met by chance one day and decided to go out on a date. After having dinner and drinks, the complainant invited the accused back to her apartment where they engaged in kissing. The accused became aggressive, pinned the complainant down and forced intercourse over her objections. The attack left visible bruising on the complainant. The Court of Appeal set aside the three-month sentence given by the trial judge and observed at paragraph 19:

In our view, the facts were neither exceptional nor unique. The complainant repeatedly told Mr. Garrett to stop. He did not. This, in itself, constitutes demeaning behaviour and contemptuous disregard for the personal integrity of the complainant and engages the predominant sentencing principles of denunciation and deterrence…In addition, the complainant’s initial consent to kissing does not render less serious the subsequent non-consensual intercourse.

[14] In R. v. Cepic, 2018 ONSC 3346, the accused, a male dancer in a strip club, subjected the complainant, in the club’s champagne room, to brief unconsented to and unprotected vaginal intercourse and fellatio. The trial judge sentenced the accused to two years less a day. The accused’s employment status with the club and his familiarity with his surroundings enabled him to take advantage of a mildly intoxicated young woman who was visiting the club for the first time. While a new trial has been ordered by the Court of Appeal in this case, I find that the trial judge’s carefully considered sentencing decision is nevertheless of assistance.

[15] In R. v. Hughes, 2017 ONCA 814, the Court of Appeal upheld an 18 month sentence (the range suggested by both counsel at trial), observing, at paragraph 23, that “this was a rape” and even where, as in this case, “there are many legitimately strongly mitigating factors, a significant reformatory sentence is a fit sentence”. The accused in this case was a youthful first offender who forced intercourse on a fellow student in a university dormitory.

[16] In R. v. Lamure, 2019 ONSC 2144, Parfett, J. sentenced a 25-year-old first offender to two years penitentiary in circumstances where the accused had forced intercourse on a 17-year-old acquaintance who had purchased marijuana from him and had accepted his invitation to stay and play chess. He was considered by the court to be at the low risk of reoffending.

[17] In R v. Stankovic, 2015 ONSC 6246, Spies, J. sentenced an accused to three years penitentiary in factual circumstances similar to the present case, except that the accused forced not only vaginal but also anal intercourse on the victim. This incident took place at the accused’s home following a date arranged over the internet, and after some consensual kissing and touching.

Disposition

[18] The present case is illustrative of the dangerous misapprehension and ignorance of the law exhibited by too many offenders in social situations who choose to believe that any consensual sexual activity is an invitation to proceed to intercourse or other acts that the other person had not consented to or, as here, has actively resisted. It is understandable and necessary therefore that general and specific deterrence are the principal sentencing objectives in these situations. A message needs to be sent that there must be consent to each sexual act and there is no implied consent to intercourse arising simply from consensual kissing or touching. And most importantly, in a sexual context, no means no.

[19] In this case the accused took advantage of a much younger, physically smaller and mildly intoxicated young woman who displayed an interest in socializing with him. He forced unprotected intercourse and fellatio on her and applied considerable force to her head and neck in so doing. While the unconsented to sexual acts were brief, they were nonetheless a serious violation of the victim’s sexual integrity. While the accused was unaware of the full extent of her vulnerability, he bears significant responsibility for the devastating effect his actions have had on the complainant.

[20] Mr. Redden-Cox, will you please stand. I sentence you to a period of incarceration of two years in penitentiary. There is no credit for time served as you have been on bail for this charge. You will also be bound by the following ancillary orders:

• A weapons prohibition for a period of 10 years (sec. 109 Criminal Code).
• A D.N.A. order (sec. 487.05(1) Criminal Code).
• A S.O.I.R.A. order for a duration of 20 years (Sec 40.013(2.1) Criminal Code).
• An order that you shall not have any contact with the complainant while you remain in custody (sec.743.21 Criminal Code).

Released: January 8, 2021