Court File and Parties
Court File No.: CR-19-1677-00 Date: 2023 04 03 Ontario Superior Court of Justice
Between: His Majesty The King K. Holmes for the Crown
– and –
Bernard LaCombe B. ElzingaCheng for the Accused
Heard: January 12, 2022
Reasons for Sentence
F. Dawson J.
1Bernard LaCombe has been found guilty of one count of sexual assault on B.B., a woman with whom he had a dating relationship that stretched over a period of approximately eight months from December 2017 to July 2018. The conviction is based on a finding that during the relationship the accused had or attempted to have sexual intercourse with B.B. without her consent on four occasions. The detailed facts are set out in my reasons for judgment, which can be found at 2022 ONSC 3311.
Summary of the Facts
2The accused is 54 years old. The complainant is somewhat younger. They met on a dating app. The complainant was looking for a serious relationship. The accused at first said he wanted a serious relationship and hoped to have a son. However, he later told the complainant he wanted a more casual relationship.
3Both the complainant and the accused have health problems. The complainant was suffering from depression when she met the accused. This was related to her mother’s illness with cancer. After her mother passed away the complainant was hospitalized on two occasions for depression during her relationship with the accused. Mr. LaCombe’s health problems include significant back and neck injuries arising from a motorcycle accident in 2010 and a car accident in 2014. He also has kidney disease, described as significant renal failure. He had a heart attack in April 2018 during his relationship with the complainant.
4The first incident occurred the first time the two met in person. The accused took the complainant to a home he owned in Barrie to watch a movie. When the complainant became sleepy the accused carried her to the bedroom, removed his and her clothing, got on top of her and attempted sexual intercourse. The complainant told the accused to stop and tried to push him off. The accused was not able to fully penetrate the complainant and after a short time he stopped trying. They then laid on the bed and talked. The complainant spent the night with the accused.
5Asked why she continued to see the accused after the first incident, the complainant said she liked his personality and wanted someone she could talk to due to the difficulty she was having caring for her mother. She also said she did not think the accused had raped her as he had not penetrated her fully and eventually stopped.
6The second incident occurred about six months later on July 8, 2018. The accused arrived at the complainant’s apartment in the morning. They had previously exchanged text messages. In those messages the accused said he was horny and wanted sex. The complainant texted that she was having cramps and did not want to have intercourse. She was on her period. The possibility of oral sex as an alternative was mentioned in the text exchange.
7When the accused arrived at the complainant’s apartment she told him she did not want to have intercourse. The accused then asked for a blowjob. She agreed. However, when the accused was not satisfied by her efforts he started to pull her underwear off. She initially resisted but desisted after the accused said he would tear them off. The complainant was crying. The accused told her to stop crying and relax. She did stop crying. The accused then had sexual intercourse with her without her consent and ejaculated.
8Afterwards the accused had a shower during which he stuck his head out and said, “It wasn’t that bad was it?” The complainant responded, “Yes it was.” She said she felt numb at the time. After they both dressed they went out for breakfast and then visited with the accused’s mother.
9The third incident occurred on Friday July 20, 2018 when the accused came to the complainant’s apartment to pick her up so they could go to a car show being held in Flamborough the next day. The plan was to sleep overnight in the accused’s van at a campground associated with the car show venue.
10When the accused arrived at the complainant’s apartment he touched her vaginal area. He then used his body to move her to her bed. He then got on top of her and started to have sexual intercourse. The complainant said she did not want that and was “just lying there”. The accused said he was “overheating”. He could not ejaculate. They then left for the car show in the accused’s van.
11The fourth incident occurred in the van at the location where they parked to spend the night. A bed was made up in the van. After they had undressed for bed, the accused said he needed to cum. The complainant told the accused “No”, but then gave up. The accused penetrated her with his penis but again he said he was overheating and could not ejaculate.
12After the accused drove the complainant home following the car show he decided the relationship was over. They never saw each other again although they did communicate the next day as described in my reasons for judgment. That is not of significance to the sentencing issue.
13Aside from the non-consensual sexual activity there was no other violence or abuse. The complainant said she liked the accused and had hoped for a longer-term relationship. It is apparent that, quite apart from the offending conduct, the sexual relationship between the two was unsatisfactory to both. The complainant told the investigating police officer and confirmed at trial that she was not very comfortable having sex with the accused. She said that almost every time she would refuse but then “would just give in because I felt that’s what I was supposed to do as a girlfriend”. She told the officer that she and the accused discussed having sex and whether it would be a problem. She said the accused told her he needed sex and wanted to be taken care of and wanted to take care of her as well. She said she agreed to that and decided to give in every time even though she did not want to. However, she distinguished the four incidents which constitute the offence because on these occasions she did not agree, expressed that, and resisted. It was conceded in closing submissions at trial that consent was not in issue in relation to these four incidents given this last aspect of the complainant’s testimony. Nor was any issue of honest belief in consent raised. The case was defended at trial based on the accused’s testimony that none of the incidents occurred. An alibi was unsuccessfully advanced in relation to the second incident.
Victim Impact
14The complainant prepared a brief victim impact statement. B.B. indicates that the sexual assaults as well as the investigation and court process have had a significant negative effect on her. She expresses that she has felt shame, sadness, isolation, and fear. She has felt embarrassment and has worried that she would not be believed. She isolated herself from friends and family for a time. The length of the proceedings has made things more difficult for her. Initially, she feared the accused might retaliate in some manner.
The Background of the Accused
15Mr. LaCombe is 54 years of age. He was born in Sudbury, where he lived continuously until he moved to Barrie in 2013. He has one sister. His parents separated when he was 12. He remained close to his mother and sister. The presentence report indicates that he built a home at the age of 18 where he, his mother and sister lived.
16The accused has a grade 12 education. He attended a community college for a time. He started to work in the mines in Sudbury at age 21. He later established his own excavation business which operated successfully for many years. He had to close the business due to disability resulting from his motorcycle accident in 2010. Since approximately 2012 he has been unable to work and has been supported by the Ontario Disability Support Program and the Canada Pension Plan.
17Mr. LaCombe was married to his first wife for 22 years and they have two daughters together. Mr. LaCombe adopted his ex-wife’s son from a prior marriage. The couple divorced in 2012. His ex-wife has written a letter expressing surprise at the charges. While there were difficulties between them that led to the accused being convicted of threatening her in about 2014, and to several breach of recognizance charges, she described the accused as a good husband and father. There was no sexual violence in their relationship. The accused’s daughters also advised the presentence reporter that the accused was an excellent father who was involved in their lives and activities. The presentence report indicates the accused was involved in his community and coached hockey for many years.
18The accused was a competitive body builder in the past. His former wife attributed the difficulties during the last five years of their marriage to his use of anabolic steroids. The accused maintains that he used only small amounts of steroids and attributes his behaviour and the decline of the marriage to his then undiagnosed kidney disease.
19After his first marriage ended the accused moved to Barrie. He had a relationship with Cheryl Morris who testified at trial. That relationship overlapped with his relationship with the complainant.
20Subsequently, the accused remarried in 2018. He and his wife have a son together. His wife has a 16-year-old son from a prior relationship. The couple purchased a home in Fredericton, New Brunswick. However, they are not currently living together. Mr. LaCombe’s wife is a citizen of the Bahamas. Mr. LaCombe’s immigration sponsorship of his wife was turned down based on Mr. LaCombe’s past criminal record and this charge. His wife voluntarily returned to the Bahamas with the children to avoid being removed from Canada and permanently prevented from returning. I am not fully apprised of efforts to have her and the children return to Canada. However, I am advised that the accused has returned to live in Ontario.
The Accused’s Medical Conditions
21Mr. LaCombe was injured in motor vehicle accidents in 2010 and 2014. He suffered back and neck injuries. In 2014 he was diagnosed with chronic renal failure secondary to overuse of pain medication. He is not on dialysis. He also has high blood pressure and in 2018 he had a heart attack. More recently he has been experiencing heart palpitations of unknown cause. Medical investigation is ongoing. He has difficulty walking and uses an electric scooter and a walker to get around. He has other medical history and problems. He has been experiencing difficulties with his medications. All these difficulties are described in an Agreed Statement of Facts and in numerous medical reports provided to the court. Mr. LaCombe’s cardiologist advises that it is important that he avoid stressful situations to improve his cardiac health.
22Although Mr. LaCombe has a variety of medical problems which cause him pain and limit his mobility, I have not been provided with any medical evidence that his life expectancy has been reduced or that incarceration will make his health worse. I have no evidence that his condition cannot be treated if he is incarcerated. It is obvious, however, that serving a jail sentence will be more difficult for Mr. LaCombe than it would be for a healthy individual of his age.
The Position of the Parties
23The Crown seeks a penitentiary sentence of three and a half to four and a half years, a s. 110 firearms and weapons prohibition order for five years and an order pursuant to s. 490.012(1) of the Criminal Code that the accused comply with the Sex Offender Information Registration Act (SOIRA) for 20 years.
24The accused submits that, having regard to his numerous health problems, he should receive a sentence of two years less a day to be served conditionally in the community. Conditional sentences have recently become available again for sexual assault due to amendments to the Criminal Code.
The Principles of Sentencing
25Section 718 of the Criminal Code describes the purpose of sentencing. Amongst other things, the purpose is to denounce unlawful conduct and harm done, to deter the offender and others from offending again, to separate offenders from society where necessary and to assist in the rehabilitation of the offender.
26Section 718.1 codifies the fundamental principles of sentencing: “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” Section 718.2 describes other principles of sentencing and provides that a sentence should be increased or reduced to take relevant mitigating and aggravating circumstances into account. Some aggravating circumstances are listed but the list is not closed. The section provides that similar sentences should be imposed for similar offenders who commit similar offences and that, where consecutive sentences are imposed, care must be taken so that the total sentence does not become unduly harsh. Restraint is also warranted in imposing a custodial sentence.
27I observe that, pursuant to s. 718.2 (a)(ii) of the Criminal Code, it is an aggravating factor that an offender abused their intimate partner. That obviously applies in this case. Intimate partner relationships are built on trust. Pursuant to s. 718.2 (a)(iii) it is an aggravating factor that an offender violated a position of trust in committing an offence.
Analysis
28This is a difficult case from a sentencing perspective. As Crown counsel correctly points out, it involves four rapes of an intimate partner. The intimate partner aspect is a statutory aggravating factor which involves a breach of trust. On the other hand, the complainant wanted to continue the relationship and both she and the accused discussed the problematic sexual aspect of their relationship. There is no hint in any of the background material regarding the accused that he has previously been involved in any form of sexual violence or nonconsensual sexual activity. While that is something that can remain hidden, the only evidence I have suggests that the accused’s serious misconduct in this case is out of character. There was no other verbal or physical abuse. Nonetheless, the accused’s offending conduct has had a significant negative impact on B.B. and it is clearly serious criminal misconduct which must be denounced and deterred.
29In terms of individualization of the sentence, there are also the accused’s health issues to consider. The principle of restraint must also be kept in mind for a first sentence of imprisonment.
30In terms of rehabilitation, as the presentence report demonstrates, the accused does not accept the result of the trial and feels he has been victimized by a system which favours female complainants. This is not an aggravating factor, but it shows a lack of remorse which augers against extending leniency. However, at the conclusion of the submissions on sentence Mr. LaCombe did indicate that he did and does care for B.B.
31As recently clarified in R. v. A.J.K., 2022 ONCA 487, previous cases which established a lower range of sentence for sexual assaults occurring inside a relationship than for those occurring in other contexts are out of sync with our current understanding of the harms caused by sexual assault. In A.J.K., Fairburn A.C.J.O. held as follows, at paras. 73-74:
A sexual assault involving forced penetration is a sexual assault involving forced penetration. An act of sexual violence perpetrated on a stranger to the accused is not necessarily worse than a similar act of sexual violence perpetrated on an intimate or former intimate partner. Any suggestion to the contrary could only rest on unacceptable myths and stereotypes, ones that a fair justice system must continuously confront and eradicate: see R. v. Ewanchuk, 1999 SCC 711, [1999] 1 S.C.R. 330, at para. 82.
All sexual assaults are serious acts of violence. They reflect the wrongful exploitation of the victim whose personal autonomy, sexual integrity, and dignity is harmfully impacted while being treated as nothing more than an object. Whether intimate partners or strangers, victims of sexual violence suffer profound emotional and physical harm and their lives can be forever altered. So too can the lives of their loved ones.
32Fairburn A.C.J.O. went on, at para. 77, to conclude that the fact a complainant and an accused were in a relationship “cannot serve to justify a sentencing range below a range for non-intimate partner sexual violence.” I observe, however, that this does not mean that the existence of the relationship is not a factor to be considered. Indeed, it must be considered as an aggravating factor. At para. 77, Fairburn A.C.J.O. adopted the range of three to five years as the appropriate range for both intimate partner and non-intimate partner sexual assaults, adding the qualifier that ranges are only a quantitative tool to assist trial judges and that there will be circumstances where a departure from the range is appropriate.
33Counsel for the accused stresses this last aspect of para. 77 of A.J.K. and points to the extensive evidence of the accused’s health problems as a basis for a downward departure from the range to a maximum reformatory sentence to be served in the community. Counsel refers to R. v. O’Neill, 2022 ONSC 5025 and R. v. R.V., 2022 ONCA 830 as two recent cases where a lower sentence was found to be appropriate based on poor health.
34In my respectful view, R.V. is readily distinguishable. In that case the Court of Appeal reduced a sentence of two years less a day imprisonment to an 18-month conditional sentence based on fresh evidence that the appellant had been diagnosed with terminal cancer. His condition was described as grave and painful and his prognosis as bleak. The sentence, which was found to be entirely appropriate when imposed, was reduced on compassionate grounds because of this compelling medical evidence. That is a far different situation than this case.
35In R. v. O’Neill, the court did not impose a conditional sentence but reviewed three decisions where conditional sentences were imposed in sexual interference cases where health issues were raised as a factor: see paras. 55-63 and 83-88. Counsel has referred me to this discussion. It is apparent from this discussion that health was but one factor considered together with many others, including the seriousness of the underlying offences, in determining the quantum of sentence and whether a conditional sentence was appropriate in the cases reviewed.
36As a matter of general principle, when an accused has a health problem which is not life threatening it may be considered as a mitigating factor but will not justify a departure from the usual range of sentence in the absence of evidence that it cannot be treated within a custodial institution: R. v. Drabinsky, 2011 ONCA 582, [2011] O.J. No. 4022, 274 C.C.C. (3d) 289 (C.A.), at paras. 169-170; R. v. H.S., 2014 ONCA 323, at paras. 37-38; R. v. Slobbe, 2011 BCCA 107, at paras. 40-41, R. v. Zabar, [1982] O.J. No. 186 (C.A.).
37A proportionate sentence in this case must be determined by giving substantial weight to the principles of denunciation and deterrence and recognizing the aggravating factors which are present. As Fairburn A.C.J.O. said at para. 77 of A.J.K., “Absent some highly mitigating factor, the forced penetration of another person will typically attract a sentence of at least three years in the penitentiary.”
38In this case there are four incidents of such penetration or attempted penetration. That might be expected to take the sentence up from the bottom of the range, particularly having regard to the intimate partner aspect of the matter and the associated breach of trust. Balanced against this, I take into account that these offences are out of character for the accused, who has been a contributing member of the community for many years. His criminal record is dated, relatively minor, and not a factor I place any weight on. The accused also has health issues which will make it more difficult for him to be incarcerated. This is a factor I place some weight on, but it is not something which is of such significance as to take the sentence below the general range of sentence.
39In my view, a sentence of three years is the appropriate sentence in this case which best balances all relevant factors and considerations. Given this determination there is no need to consider a conditional sentence.
40The accused is sentenced to three years in the penitentiary. The accused is ordered to provide a sample of his DNA for inclusion in the convicted offender’s data bank, unless a sample was previously obtained. The accused will be prohibited from possessing firearms, weapons or explosives pursuant to s. 110 of the Criminal Code for a period of five years. Pursuant to s. 490.012(1) of the Criminal Code, the accused is ordered to comply with the Sex Offender Registration Act for 20 years.
Justice F. Dawson
