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COURT FILE NO.: CR-22-50000533-0000 DATE: 20230508 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – ROYBURN DICKSON

Counsel: Kelly Simpson, for the Crown John Kaldas, for the Accused

HEARD: April 14, 2023

Restriction on Publication

An order has been made pursuant to s. 486.4(1) of the Criminal Code directing that any information that could identify the complainant shall not be published in any document or transmitted in any way. An order has also been made pursuant to ss. 278.95(1)(a) and (b) that the contents of the application that is the subject of this ruling and any evidence taken, information given or representations made at the hearing shall not be published in any document or transmitted in any way, except that this ruling may be published pursuant to s. 278.95(1)(d). This ruling complies with those orders and may be published.

Reasons for Sentence

1Royburn Dickson entered a plea of guilty to one count of sexual assault contrary to s. 271(a) of the Criminal Code. He elected to be tried by a judge sitting alone.

2Mr. Dickson confirmed that he was entering this plea voluntarily, that he understood that the plea was an admission of the essential elements of the offence, that he was aware that he was giving up his right to have a trial, that he understood the nature and consequences of the plea including immigration consequences under the Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 36(1)(a) (“IRPA”) that had been reviewed with him by counsel and that he was aware that this court was not bound by any agreement made between counsel regarding the sentence. The following are my reasons for sentence.

Factual Background

3The parties filed an Agreed Statement of Facts in accordance with s. 655 of the Criminal Code. The victim and Royburn Dickson were in a dating relationship from November 2017 until July 2021. They have two children together: L.D. who is now four years old and C.D. who is one year old. The complainant has a child from a previous relationship. At the time of the offence, the complainant was pregnant with their child. On November 26, 2021, Mr. Dickson attended at the complainant’s apartment to drop off a can of paint that she had asked him to get for her. She had left the front door unlocked as she was taking a shower. When he arrived, the complainant was in her bedroom getting dressed. Mr. Dickson entered her bedroom, saw her putting lotion on her legs and offered to put some on her but she said no. He walked out of the room.

4The complainant put on clothing and walked out of the room. He pushed her back into the bedroom, inserted his fingers into her vagina and she told him to stop and that he was hurting her. Mr. Dickson told her to stop resisting. He turned her around and bent her over face down on the bed. He inserted his penis into her vagina and had intercourse with her. The complainant asked him to stop as the children were just down the hall in the other room. He continued until he removed his penis and ejaculated into his hands. He used baby wipes to clean himself. The assault lasted approximately 10 to 15 minutes. Mr. Dickson lay on the couch for half an hour before leaving the apartment.

5The complainant attended a medical clinic and reported the assault to a doctor on December 3, 2021. She discovered she had contracted chlamydia as a result of the assault. She confronted Mr. Dickson over text messages and telephone calls. On December 14th, at approximately 2:35 p.m., Mr. Dickson said over the phone, “It’s not what you want, it’s what I want. I’m going to take you at my own free will.” She believed this to mean that he would have sex with her whenever he wanted even without her consent. Mr. Dickson was arrested on Monday, December 20, 2021. The injuries suffered by the victim were soreness to her vagina and that she contracted chlamydia.

Evidence Led at the Sentencing Hearing

6The Agreed Statement of Facts signed by the Crown and defence was filed as an exhibit at the sentencing hearing. Crown counsel, Ms. Simpson, filed a Victim Impact Statement which was also read aloud to the court by the complainant.

7Mr. Kaldas, on behalf of Mr. Dickson, filed a letter from Clarice Brooke who was a reference for Mr. Dickson and she indicated that she provides childcare to assist him with the care of his daughters. Counsel also filed copies of statements showing that Mr. Dickson has been providing regular support to the complainant for the support of the children.

Positions of the Parties

8Crown counsel submits that an appropriate sentence in this case is a period of imprisonment of three years in the penitentiary. This is because Mr. Dickson committed a sexual assault involving vaginal penetration where the complainant repeatedly said no and where she was diagnosed with chlamydia as a result of the assault. While a conditional sentence is an available sentence, because of the nature of the offence, the Crown argues it is not a suitable sentence in light of the principles of denunciation and deterrence. She points to the provisions of s. 718 of the Code which reference intimate partner violence and sexual assault by a person in a position of trust particularly and submits that here, Mr. Dickson is the father of the victim’s children, the offence took place in her home, she was extremely vulnerable as she was pregnant at the time, the children were sleeping down the hall and she suffered physical and emotional harm from the assault.

9Crown counsel recognizes that the victim wants Mr. Dickson to remain out of custody and that she relies on his financial support. Ms. Simpson also acknowledges the mitigating factors that Mr. Dickson has no criminal record, that he has entered a guilty plea which has saved the victim from having to testify and that he works and contributes to the support of his children. However, she also points to the decision of R. v. A.J.K. [2022] O.J. No. 2862, 2022 ONCA 487, where the Ontario Court of Appeal upheld a sentence of five years’ imprisonment and discussed the principles of sentencing involving cases of intimate partner violence. There, the complainant and the accused had gone out prior to the date of the offence, decided to go out on the night in question, went to a bar and on the drive home, the accused went to a parking lot. The trial judge found that he forced vaginal intercourse, argued with the complainant and hit her prior to her leaving the car. The accused had a criminal record. The complainant suffered a concussion, bruising and swelling and experienced a long period of mental recovery. The court discussed the range of sentence for a sexual assault on intimate partners at para. 76 but also highlighted how sentencing is an individualized process. The court considered the factor that the offender had been in a position of trust which was an aggravating factor.

10Ms. Simpson also seeks an order that a DNA sample be taken, that there be an order to comply with the Sex Offender Information Registration Act, 2007, c. 5, s. 12 (“SOIRA”) under s. 490.012 for 20 years, that there be an order made pursuant to s. 109 of the Code for a period of 10 years and an order for non-communication with the complainant for a three-year period.

Position of the Defence

11Counsel for Mr. Dickson asks this court to impose a sentence of two years less a day served as a conditional sentence followed by a period of probation. Mr. Kaldas submits that in addition to the mandatory conditions that additional conditions be imposed of house arrest for the first third of the sentence, a curfew for the second third of the sentence and the statutory conditions for the final third followed by two years of probation. This would result in four years of supervision in the community which is longer than the sentence of imprisonment sought by Crown counsel.

12Mr. Kaldas outlined Mr. Dickson’s background and that he has been in Canada as a permanent resident since 2011. He has no criminal record. He has two daughters who reside with him while their mother serves in the British armed forces. He has parented the five year old child of the complainant and he has two children with the complainant. They are now four years old and one year old respectively. He has been continuously employed and earns $75,000 per year.

13Counsel for Mr. Dickson referenced the decision of R. v. Priest (J.), 903 O.A.C. 163 (C.A.) at p. 296 where the court said that it is a well-established principle that the first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence: at para. 23. In that Mr. Dickson has no criminal record, has an excellent work history and that he provides for his children and is a single father to two children, counsel submits that a conditional sentence is appropriate. Denunciation can be met with the terms of the sentence. Further, counsel referenced that the immigration consequences for his client were such that if Mr. Dickson receives a conditional sentence, he will have the right to appear before the Immigration Appeal Board and explain his life circumstances should he be ordered deported in accordance with the case of Tran v. Canada Public Safety and Emergency Preparedness, 2017 SCC 50. It is in the best interests of the victim and the children to have Mr. Dickson living in the community and supporting his children. The Victim Impact letter states that the complainant’s views are more about forgiveness than just the money involved in having him serve his sentence in the community.

14Mr. Kaldas recommends to the court that the sentence of two years less a day be divided in thirds as outlined above with the following conditions: that Mr. Dickson be subject to house arrest for eight months with exceptions that he may be permitted to leave his house with the permission of his Conditional Sentence Supervisor (“CSO”) provided in advance; for medical emergencies involving him or his children; to obtain the necessities of life and to work on a schedule provided to his supervisor as approved by the CSO.

15He recommends that the period of house arrest be followed by eight months of having a curfew with exceptions for medical emergencies for himself or his children, for the purpose of work and for any other reasons as approved by his supervisor. The final eight months there will be no restrictions other than the statutory conditions.

16Mr. Kaldas takes no position on the s. 109 order or the order for a DNA sample to be taken. He asks that the SOIRA order be for as short as possible.

The Law

17The courts have repeatedly stated that the principles of denunciation and deterrence are paramount objectives for offenders who have been convicted of sexual assault. In R. v. Barton, 2019 SCC 33, 435 D.L.R. (4th) 191, the Supreme Court recognized the devastating effects of sexual violence on women: at para. 1. Holding offenders who commit sexual violence accountable in light of the long-term effects of sexual assault on victims has significant salutary effects.

18A conditional sentence had not been available for a conviction of sexual assault tried by way of indictment from 2012 until recently because of s. 742.1(f)(iii) of the Criminal Code which expressly prohibited it. However, in 2021, some judges declared the section unconstitutional applying the same reasoning on ss. 7 and 15 Charter grounds as the Ontario Court of Appeal did in R. v. Sharma, 2020 ONCA 478. As a result, some courts subsequently imposed a conditional sentence for indictable sexual assault offences. On November 17, 2022, Bill C-5 received Royal Assent, removing the unavailability of a conditional sentence for this offence.

19The Ontario Court of Appeal had discussed some of the relevant principles in a case decided prior to the enactment of s. 742.1(f)(iii) in R. v. Nolan, 2009 ONCA 727. There, a 21-month conditional sentence was imposed for an offender who pleaded guilty to sexual assault on his wife, where he covered her mouth with tape, punched her in the face, and ultimately attempted to force intercourse. Mr. Nolan had originally been given a 100-day custodial sentence which the Crown appealed on the basis that it was demonstrably unfit. The Court of Appeal agreed this sentence was demonstrably unfit but imposed a 21-month sentence served in the community because it considered that the offender had to provide for his two children who relied on him to meet their day-to-day needs: at para. 13. Conditional sentences were also imposed in R. v. Nikkanen, 1999 C29487 and R. v. Pecoskie, 2002, C33904.

20The same concern for the support of the offender’s children was considered in R. v. Browne, 2021 ONSC 6097. There, the offender was convicted of sexual assault with a weapon and was given a conditional sentence of two years less a day followed by six months’ probation. He had inserted a vibrator into the complainant’s vagina or anus for a brief time while she was unconscious. In arriving at this sentence, McArthur J. considered the fact that the offender was a first-time offender and the offence was out of character. He committed the offence while intoxicated and had since stopped using drugs or drinking. He was steadily employed and was supporting his child. The fact that if the offender went to jail, he could not financially support his son or pay restitution to the complainant in a timely way was a significant factor: at para. 105.

21In the case of R. v. Holland, 2022 ONSC 1540, the complainant was unsure whether the offender penetrated her with his finger or his penis. She underwent testing for sexually transmitted diseases and had to deal with the stress associated with it: at para. 20. She suffered from anxiety and depression and was eventually diagnosed with post-traumatic stress disorder. The offender was 45 years old at the time of the offence, had no criminal record and there was significant delay between the date of the offence and the sentencing. Justice Schreck followed Nakatsuru J.’s analysis in R. v. R.S. 2021 ONSC 2263 as well as some other jurisprudence in finding s. 742.1(f)(iii) which removed the availability of conditional sentences for indictable sexual assaults to be unconstitutional and sentenced the offender to eight months served as a conditional sentence.

22In R. v. R.S., Nakatsuru J. imposed a conditional sentence for an offender who was found guilty of sexual assault and choking with intent to overcome resistance. The offender and the complainant had had a brief and minor intimate relationship before the offence. A conditional sentence order was imposed despite the significant violence inherent in choking to overcome resistance. There were other factors present: the offender was Indigenous, he had a turbulent upbringing, there was no penile penetration although there was digital penetration and the offender had a significant alcohol problem.

23In the case of R. v. G., 2021 ONSC 8270, Schreck J. considered whether to accept a joint submission for a conditional sentence where the offender was convicted of two counts of touching his niece for a sexual purpose in the 1980’s and 90’s when she was 12 or 13 years old. He also pleaded guilty to sexual interference charges in British Columbia. The assaults did not involve penile penetration but did involve digital penetration. Justice Schreck noted that in light of R. v. Friesen, 2020 SCC 9, he had “serious reservations” about imposing a conditional sentence (at para. 34) but imposed the sentence because it was a joint submission. He sentenced the offender to two years less a day served as a conditional sentence followed by three years of probation.

24In the decision of R. v. Ali, 2022 ONCA 736, the Ontario Court of Appeal substituted a sentence of 15 months imposed as a conditional sentence for a sentence of 15 months in custody albeit for a different offence but wrote that the trial judge erred by excluding the conditional sentence based on the level of violence and by not weighing the ability of a conditional sentence to meet sentencing objectives including not only denunciation and deterrence but also restraint and rehabilitation. There, the offenders were two brothers who were convicted of aggravated assault arising out of an attack on the complainant who was punched, knocked to the ground and kicked in the head. They also caused injuries to his eye, lips and cheek as well as a cut on his face. The Ontario Court of Appeal wrote that a conditional sentence may be appropriate in a case involving violence where the sentencing judge has considered all the circumstances and has concluded that the conditional sentence can meet the deterrence and denunciation objectives as well as the other objectives of sentencing including restraint and rehabilitation: at para. 28.

25In the decision of A.J.K., regarding intimate partner violence, the Court of Appeal rejected what was known as the “Smith” range of sentence as discussed in R. v. Smith, 2011 ONCA 564, which stated at para. 87 that, “in cases of sexual assault involving forced intercourse with a spouse or former spouse, sentences generally range from 21 months to four years.” A.C.J. Fairburn wrote that the time has come to not treat former intimate partner sexual violence as any less serious than the sexual assault of a stranger (at para. 76) and to recognize that a pre-existing relationship between the accused and the complainant places them in a position of trust which is an aggravating factor (see s. 718.2(a)(ii)) and can attract a greater sentence.

26I find that the circumstances of A.J.K. however, are distinguishable from the case at bar in light of the serious violence involved and the physical and emotional injuries caused to the complainant in that case as well as the prior criminal record of the offender. I am satisfied that there are “highly mitigating factors” in the case before me that make A.J.K. less applicable.

Decision

27I turn to some of the general principles of sentencing set out in section 718 of the Criminal Code. The fundamental purpose of sentencing is to ensure respect for the law and to promote a just, peaceful, and safe society. The imposition of just sanctions requires that I consider the sentencing objectives referred to in this section. They are: denunciation of unlawful conduct, deterrence of the offender and other persons from committing offences, separating offenders from society where necessary, rehabilitation of offenders, providing reparation for harm done to victims or to the community, promoting a sense of responsibility in offenders, and acknowledgement of the harm done to victims and the community.

28A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. When imposing sentence, I am to take into account certain factors which may increase or reduce the sentence because of aggravating or mitigating circumstances. The sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; where consecutive sentences are imposed, the combined sentences should not be unduly long or harsh; the offender should not be deprived of liberty if less restrictive sanctions are appropriate; and all available sanctions, other than imprisonment, that are reasonable in the circumstances should be considered for all offenders, particularly Aboriginal offenders.

29I now consider the application of the law to the circumstances of this case. A proper sentence must take into account the circumstances of the offender and the circumstances of the offence. I first look at the circumstances of the offender and consider Mr. Dickson’s background.

30Mr. Dickson is 33 years of age and was born on January 18, 1990. He immigrated to Canada from St. Vincent in 2011. He has custody of two daughters who are 13 and 11 years old and brought them from St. Vincent to live with him. Their mother is in the armed forces in the United Kingdom. He also has two children ages four and one with the complainant. Mr. Dickson has a high school education. He works as a short-haul truck driver for AJS Delivery Services driving in Ontario only and earns approximately $75,000 per year. He works five days each week and sometimes six days and supports all his children. Records from bank deposits show payments regularly made to the complainant for the children. He has a close family friend, Clarice Brooke who looks after his children when he is working late.

31I now turn to the circumstances of the offence. Mr. Dickson entered a plea of guilty to one count of sexual assault. In treating the complainant in this way, he demonstrated a callous disregard for her dignity and her right to choose. He put his sexual gratification above her wishes and feelings. This has had a significant effect upon her as she outlined to the court. However, in her Victim Impact Statement, she has stated that she forgives Mr. Dickson for his actions.

32In summary, I consider the sentencing principles and the circumstances of the offender and the offence. I consider that deterrence and denunciation are important objectives of sentencing in cases of this kind. However, I also recognize that a sentence must take into account Mr. Dickson’s circumstances including his background, family, his employment, his education and his potential for rehabilitation.

33With respect to mitigating factors, Mr. Dickson has no prior criminal record. He has entered a plea of guilty to the charge for which he is being sentenced which demonstrates an expression of remorse. He has shown a sense of responsibility with his children. An important factor is that the complainant herself does not wish to see Mr. Dickson incarcerated as she has indicated to the court and through Crown counsel. The reasons are two-fold: she forgives his actions and she is satisfied that he has shown support for her and the children. Mr. Dickson has been on judicial interim release without incident since his arrest in December 2021.

34As Mr. Dickson was arrested on December 20, 2021 and released on December 21, 2021, he is credited on a 1.5:1 basis in accordance with R. v. Summers 2014 SCC 26, [2014] 1 S.C.R. 575 for a total of two days. He was released on bail with one surety and ordered not to have contact with the complainant or be within 200 metres of where she resided. He was permitted to see his children in the presence of a third party pursuant to a Family Court order. It is a mitigating factor that he has been able to be on bail for almost two years without incident.

35The aggravating factors in this case are that Mr. Dickson committed a very serious offence involving violence against his former partner. The gravity of the offence is a critical factor.

36In conclusion, I take into account the sentencing objectives set out in s. 718 of the Code and the circumstances of the offence and of the offender. I recognize that denunciation and deterrence are paramount sentencing principles for offences of this kind but that rehabilitation of the offender is also a key objective which ultimately protects society. I agree that the statutory conditions are met for a conditional sentence. There is no presumption that certain offences are excluded or that a conditional sentence can only be available in exceptional or rare circumstances. Where onerous conditions are imposed such as house arrest, a conditional sentence achieves a level of denunciation. I am of the view that denunciation and deterrence can be achieved as can rehabilitation with the imposition of a period of imprisonment served as a conditional sentence. As counsel points out, a conditional sentence for two years less a day followed by a period of probation will mean that there will be supervision over Mr. Dickson for a longer period of time. Should he breach any terms, he may be brought back before the court and face the consequences of such a breach.

37One of the purposes of the conditional sentence as set out in Proulx includes to decrease reliance on incarceration and increase restorative justice. In the case of R. v. Morris 2021 ONCA 680, [2021] O.J. No. 5108 (C.A.), the court discussed the use of the conditional sentence when sentencing a Black offender, in appropriate cases, as it has the added advantage of addressing the ongoing systemic problem of the over-incarceration of young Black offenders, as least as it related to the offender before the court: see Morris at para. 129. The court wrote that there is an over-incarceration of Black men and that the restraint principle favours the use of the conditional sentence over incarceration if a conditional sentence is consistent with the proportionality principle: see para. 125. I have also considered the decision of R. v. Downes, [2006] O.J. No. 555 (Ont. C.A.), where the court reviewed the sentencing judge’s obligation to take into account restrictive terms of judicial interim release on sentencing. Unlike the circumstances in Downes, the terms in this case were not particularly restrictive but they did affect Mr. Dickson’s liberty. Rather than assign an amount of time as Downes credit, I exercise my discretion and consider the almost two years of judicial interim release with terms restricting Mr. Dickson’s liberty in fashioning the overall sentence.

38Sentencing is a fact-driven process where the court must consider the unique circumstances of the case. Mr. Dickson has demonstrated remorse. He has pleaded guilty to the offence and saved valuable court time, particularly at a time of significant backlog arising from the COVID-19 pandemic. He has demonstrated an ability to live in the community and not be involved in any crime. He has worked throughout his time in Canada and wants to continue to work to support his family. He is the sole caregiver of the two daughters and supports his other children as well. He wants to be involved in the lives of his children and has been to date. The complainant’s views are also relevant.

39I am satisfied that counsel has provided the court with information that would justify a conditional sentence with terms that will meaningfully address denunciation, deterrence and the need for ongoing supervision. I am satisfied that Mr. Dickson is committed to the terms of supervision and will make the conditional sentence work. I am also of the view that the safety of the community would not be endangered by having Mr. Dickson serve the period of imprisonment remaining in the community. He has no criminal record and he has shown throughout the period of judicial interim release that he can be a law-abiding person. The objectives of denunciation and deterrence can be met with onerous conditions and the objectives of rehabilitation may more realistically be achieved with a sentence served in the community.

40For the reasons outlined above, I am of the view that a sentence of two years less one day served as a conditional sentence is an appropriate sentence for the s. 271(1) offence.

41Accordingly, Mr. Dickson is sentenced to two years less a day of imprisonment less credit of two days of pre-sentence custody. The period of imprisonment is to be served in the community as a conditional sentence.

42In addition to the statutory conditions in s. 742.3, Mr. Dickson shall report to a supervisor forthwith and attend as often as his supervisor deems appropriate. He shall reside at 1442 Lawrence Avenue West, North York, Ontario or such address approved by his supervisor. He shall be under house arrest for the first eight months of the conditional sentence and shall only leave the house for the purpose of attending at appointments with his supervisor, to attend medical emergencies for himself or his children but he must provide proof to the CSO within 48 hours of that absence to justify that it was a legitimate emergency, to shop as permitted by the conditional sentence supervisor once each week for no more than four hours to obtain necessities, for the purpose of work at a specified schedule provided to his CSO and to leave the house for any other reason as approved in advance by his CSO.

43For the next eight months, Mr. Dickson shall be on a curfew between the hours of 10:00 p.m. until 6:00 a.m. and he shall reside at an address approved by his supervisor. He may only leave the house during the hours of 10:00 p.m. to 6:00 a.m. if he has the permission of his supervisor or for medical emergencies involving himself or a member of his household or for work purposes provided that his supervisor has approved the schedule or any other reason with the prior written approval of his CSO.

44For the remainder of the conditional sentence, he shall reside at a place approved by his supervisor and he shall be subject to the statutory conditions. During the entire period of the conditional sentence, he shall abstain from owning, possessing or carrying a weapon, he shall not apply for or possess a firearm acquisition certificate or gun licence and he shall report to a supervisor as often as his supervisor deems appropriate.

45Following this period of imprisonment, Mr. Dickson is placed on probation for two years. In addition to the statutory conditions, he shall reside at an address approved by his probation officer, he shall maintain employment or attend school and provide proof to his probation officer, he shall abstain from owning or possessing any weapon and he shall report to his probation officer forthwith following the conclusion of the conditional sentence and as often as the probation officer deems necessary. He shall attend and participate in any counselling and/or treatment as directed by his probation officer.

46I further make an order under s. 109 prohibiting Mr. Dickson from possessing any weapons as defined by the Criminal Code for ten years. I also order that Mr. Dickson provide a sample of his DNA pursuant to s. 487.051(3) of the Criminal Code. There will be an order under SOIRA for a period of 20 years. There will be an order for non-communication with the complainant for three years unless there is the written revocable consent of the complainant.

Himel J.

Released: May 8, 2023

Reasons for Sentence

Factual Background