COURT FILE NO.: CR-19-56 DATE: 2023 02 22
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – L.S.
Counsel: Ms. M. Ward, for the Crown Mr. A. Edgar, for Mr. L.S.
HEARD: February 22, 2023
REASONS FOR DECISION ON SENTENCING
CONLAN J.
I. The Background
[1] After a lengthy trial before this Court, without a jury, L.S. was found guilty of two counts stemming from the same incident that occurred in Oakville, Ontario in early September 2017 – sexual assault under section 271 and sexual interference under section 151 of the Criminal Code.
[2] The facts are outlined in the Reasons for Judgment dated September 29, 2022, R. v. L.S., 2022 ONSC 5497.
[3] L.S. was 21 years old at the time of the occurrence. The victim was 15 years old at the time. Below are paragraphs 105-107 of the Reasons for Judgment, which paragraphs summarize the factual findings made by the Court.
[105] This Court finds that the following occurred. A.M., 15 years old at the time of the incident, became tipsy from the consumption of vodka that was supplied to her by L.S. While A.A. and the second male were away from the area, A.M. found herself alone with the accused. They were in the back seat of the car. Without a condom, L.S. put his penis inside her vagina and had sex with her. One cannot conclude that he ejaculated. She blacked out a little around the time of the sexual intercourse, due to the booze. She kept saying over and over again “stop” and “I don’t wanna have sex”. But he persisted. She tried to push him off but could not do so. He would not stop until he finally did. She was crying. She was scarred. She did not want it to happen.
[106] A.M. had never met L.S., and did not know him at all, before that day. She thought that he was, and he in fact was, an adult and a few years older than her.
[107] Those findings, and the trial evidence as a whole, are not commensurate with any air of reality to the defence of honest but mistaken belief in consent. Any such defence is rejected by this Court. All of the essential elements of both offences have been proven beyond a reasonable doubt.
[4] At paragraph 68 of the Reasons for Judgment, the Court held that “the Crown has negated the mistake in age defence in that it has proven beyond a reasonable doubt that L.S. did not believe that A.M. was at least 16 years old”.
[5] At paragraph 70 of the Reasons for Judgment, the Court stated the following.
[70] There is a separate and distinct basis for this Court’s conclusion that the Crown has negated the mistake in age defence, however, in fact an even stronger basis than that of the accused’s belief. An even more compellable one. And that concerns whether the Crown has proven beyond a reasonable doubt that the accused did not take all reasonable steps to determine the complainant’s age. I find that the Crown has proven that. In actuality, I would go so far as to say that L.S. took virtually no steps to make that determination, never mind all reasonable steps.
[6] The sentencing hearing for L.S. took place at Court, in-person, today, February 22, 2023.
II. Victim Input
[7] A.M.’s victim impact statement (Exhibit 3) is compelling. She describes experiencing self-harm, a loss of trust in others, fear, anxiety, problems in school, depression, and a general loss of self-worth as a direct result of what happened with the offender.
[8] “In a lot of ways I feel like this has ruined my life and it scares me because I do not know how I will be able to move forward” – those are the words of the victim. This crime perpetrated by L.S. has had a devastating effect on her life.
III. The Circumstances of the Offender
[9] The Court has the benefit of a thorough presentence report (Exhibit 1 on sentencing).
[10] The offender is currently 26 years of age and without any criminal record. He was born in Jamaica. His father died, in an accidental shooting by police, when L.S. was about three years old. L.S. was raised in Jamaica until he entered his teenage years. He arrived in Canada in 2011, with his mother and his siblings. The offender is a Canadian citizen.
[11] After arriving in Canada, the family moved around frequently, which L.S. attributes to his mother’s difficulties in finding work.
[12] The offender has a girlfriend that he has been dating for more than one year. The couple is expecting their first child and hope to be married. The unborn child, a boy, has Down syndrome or autism, according to the results of prenatal testing (the information provided by the offender to the author of the presentence report conflicts with the information provided in the letter written by the offender’s partner and filed with the Court, in terms of what affliction the unborn child has been diagnosed with).
[13] L.S. went to elementary school in Jamaica until grade 7. He graduated high school in Oakville, Ontario.
[14] The offender has had employment recently, with a moving company, and before that with a truck and trailer repair shop. Currently, he has no income. The author of the presentence report recommended to the family that L.S. apply for Ontario Disability Support Program benefits.
[15] Alcohol and/or drug abuse are not reported problems for L.S., although alcohol was involved in the occurrence. The probation officer writes that “[t]here is no history of abuse, substance issues, pro-criminal attitudes, or antisocial pattern development”.
[16] The presentence report reveals that L.S. presented as a “well-mannered, polite, and unsophisticated man. He cooperated with the interview process to the best of his ability. He provided brief answers to [the interviewer’s] questions and often struggled with providing details”. He said to the probation officer, “I never meant for it to happen…it bothers me every day”. He expressed remorse and regret for what happened, saying “I would like to say sorry…I would love to apologize to her and her family”. He stated, further, that he feels stressed about his life situation and about the offences specifically.
[17] The major recommendation from the author of the presentence report is for L.S. to receive counselling, “to address his inappropriate sexual offending and to further reduce any risk of reoffending”.
[18] In addition to the presentence report, this Court has the benefit of a “Psycho-Sexual Risk Needs Assessment” report, dated February 28, 2022, prepared by Brandie Stevenson, psychological associate registered with the College of Psychologists of Ontario in the area of clinical and forensic/corrections psychology (Exhibit 2 on sentencing).
[19] That report, written before L.S. was found guilty of the offences, concludes that L.S. has a “mild/moderate intellectual disability and extremely low adaptive skills”. The author writes that the offender’s “overall risk of general recidivism is in the low risk/needs’ category for general recidivism and in the Average/Moderate range of risk/needs for sexual recidivism”. The author comments further that L.S. would benefit from counselling, and the following opinion is expressed: “[g]iven [L.S.] is well supported by his family, and he lives a fairly isolated life, I believe that his risk for potential future sexual offending can be safely managed in the community”. Near the conclusion of the report, the author writes, “I am hopeful that serious consideration can be given to [L.S.’s] diagnosis and the impact that incarceration would have on [L.S.] should he be found guilty of his charges”.
IV. The Legal Parameters and the Positions of the Crown and the Defence
[20] Both sides agree that there is no mandatory minimum penalty applicable in this case. The maximum penalty is a sentence of 14 years’ imprisonment.
[21] Pursuant to the “Kienapple” principle, at the request of the Crown, this Court enters a conditional stay on the finding of guilt for sexual assault. A conviction is entered on the sexual interference.
[22] The Crown recommends a sentence in the range of 3 to 5 years in the penitentiary, a DNA order, a sex offender registry order (“SOIRA”) for 20 years, a firearms and weapons prohibition order under section 109 of the Criminal Code, a no-contact order with the victim while L.S. is in custody serving his sentence, under section 743.21(1) of the Criminal Code, and orders under section 161(1), clauses (b) and (c), of the Criminal Code.
[23] The defence suggests a sentence of 2 years less a day in custody, from today (that is, after credit for presentence custody and bail conditions), to be served by way of a conditional sentence order, to be followed by a period of probation. The defence takes no issue with any of the ancillary orders sought by the Crown, except those under section 161(1) of the Criminal Code.
V. The Sentence of the Court
[24] In light of the rest of the sentence that this Court will be imposing upon the offender, the victim fine surcharge is hereby waived.
[25] The DNA order requested by the Crown, unopposed, is granted. Sexual interference is a “primary designated offence” under section 487.04, clause (a) of the definition, and as such the order is mandatory under section 487.051(1) of the Criminal Code.
[26] The SOIRA order requested by the Crown is granted, unopposed, under section 490.012(1) of the Criminal Code. The duration of the order imposed herein is for 20 years, pursuant to section 490.013(2)(b) of the Criminal Code.
[27] The section 109 order requested by the Crown is granted, unopposed, under section 109(1)(a) of the Criminal Code, and its duration is for 10 years in terms of the discretionary aspect of the order under section 109(2)(a)(ii) of the Criminal Code.
[28] This Court declines the invitation by the Crown to make the orders under section 161(1) of the Criminal Code. In my view, given the risk assessment conducted by Ms. Stevenson, and given the offender’s good rehabilitative prospects, such orders would not be a proportionate response in this case.
[29] This Court, for two reasons, rejects the defence request to impose a conditional sentence order. First, I am of the view that a sentence, from today, of less than two years in length would not be a fit penalty for this offender and for these facts. Second, I am not satisfied that a conditional sentence order in this case would be consistent with the fundamental purpose and principles of sentencing.
[30] There are mitigating factors here, including (i) the lack of any criminal history for L.S., (ii) his intellectual disability which I accept does lessen his moral blameworthiness, and (iii) his employment (Exhibit 5 on sentencing), his volunteer work and community commitment (Exhibit 6 on sentencing), and his role as a long-term partner to A.E. and as a father to their unborn child (Exhibit 4 on sentencing). I am also entitled to consider that L.S. is a youthful Black man who, without question, experienced difficult circumstances in Jamaica including the tragic loss of his father at a young age and, further, who has very likely experienced intolerance and prejudicial attitudes here in Canada.
[31] The facts, however, are extremely serious. The sheer gravity of the offence cannot be adequately addressed through the imposition of a reformatory period of imprisonment to be served in the community. L.S. had unprotected vaginal intercourse with a minor, over her repeated protestations, and while she was intoxicated from alcohol supplied to her by the offender and his male companion.
[32] Mr. Edgar is correct that L.S. must be treated as a fairly youthful first offender who has expressed remorse and regret for his actions and who has not had any issues with the law since his arrest, now years ago. The sentencing principles of restraint and rehabilitation are very important in this case.
[33] Denunciation and deterrence, individual and general, are also important, however. I agree with the Crown that the decision of the Supreme Court of Canada in R. v. Friesen, 2020 SCC 9, and the decision of the Court of Appeal for Ontario in R. v. A.J.K., 2022 ONCA 487, specifically paragraph 77 of the latter, justify a sentence of 3 years in the penitentiary for L.S., at the low end of the range.
[34] In my view, however, there is good reason to impose upon L.S. a custodial sentence that is lower than 3 years, on account of his intellectual disability and his soon-to-be role as a father to his child with special needs. Those circumstances, collectively, are the type of “highly mitigating factor” spoken about by the Court of Appeal for Ontario in A.J.K., supra, that would justify a departure from what might otherwise be the low end of the range.
[35] I have decided that a sentence of 30 months in the penitentiary is appropriate.
[36] I will accede to the request of the defence to deduct from those 30 months a period of 4 months as “Downes credit” for the time that L.S. was on a house arrest bail (which lasted about 16 months in duration).
[37] I reject the request of the defence to give any further credit for bail conditions, which included a curfew, since January 2019. For much of that time, L.S. was in Jamaica. I am not satisfied that those bail conditions were so punitive that they were in any way akin to punishment. R. v. Dodman, 2021 ONCA 543, at paragraph 11.
[38] That leaves a net sentence from today of 26 months’ imprisonment.
[39] Finally, an order under section 743.21(1) of the Criminal Code is made, prohibiting the offender from having any contact or communication, directly or indirectly, with A.M. while serving his custodial sentence.
Conlan J. Released: February 22, 2023