His Majesty the King v. A.G., 2023 ONSC 3049

Court File and Parties

COURT FILE NO.: CR-18-1196-00 DATE: 2023 05 19

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING Gursharn Gill for the Crown

- and –

A.G. Brian Eberdt for the Defendant

HEARD: March 29, 2023 and May 19, 2023

PUBLICATION OF ANY INFORMATION THAT WOULD IDENTITY THE COMPLAINANT IS BANNED PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE. THIS JUDGMENT CONFORMS WITH THIS BAN.

REASONS FOR SENTENCE

D.E HARRIS J.

[1] A.G. has been found guilty of five criminal charges including assault, sexual assault and forcible confinement committed against D.H. and must now be sentenced for these offences. The dilemma is to craft a sentence proportionate to the very serious nature of the offences while counterbalancing them against A.G.’s youth and previous lack of a criminal record. In addition, it is important to factor in that the offences were committed almost six years ago when A.G. was 20 years old. The Crown asks for a sentence of 7 years. The defence argues for a conditional sentence of two years less a day or lower.

[2] The two met in a Police Foundations course at Sheridan College. A.G., soon after the two started dating, with the blessing of Ms. H.’s parents, began living in the H. home with D.H., her parents and her sister.

[3] D.H. testified that the relationship was unhappy from the start. There were frequent arguments, almost every day. A.G. constantly criticized her and was very harsh with her. Nonetheless, the relationship lasted several months. But its disintegration began early on. In view of my confidence in D.H.’s evidence as found in the reasons for judgment and my rejection of A.G.’s evidence, I accept beyond a reasonable doubt D.H.’s evidence with respect to the discreditable conduct she testified to at the trial (R v. A.G., 2023 ONSC 1433 at paras. 9-12).

THE OFFENCES

[4] The seriousness of the offences is manifest. The bite to D.H.’s leg in count 5 committed in August 2017 caused her extreme pain and took several weeks to heal. The circumstances and reasons behind the offence, as with all of the offences here, is not easy to understand. A.G. was trying to make up with D.H. after an ugly argument. She was standing. He hugged her legs with both arms and then, for no apparent reason, bit her hard in the inner thigh. In my view, what lay behind this vicious assault was an obsession to ensure that D.H. did not break up with him as was in the air after the argument and his aggressions against her. As a reaction, it was almost as though he was branding her with his bite. She was his. A.G.’s possessiveness was a prominent thread in their relationship and can be seen running through all his abuse of her.

[5] The seriousness of the offences against D.H. escalated to a much higher level with the September 23-24, 2017 offences. The duration and severity of these offences is troubling. The confirmatory bruises inflicted on D.H. proved to be a major factor in A.G.’s undoing at this trial. As Ms. Gill submitted, the bruises were from head to toe.

[6] D.H.’s attempt to escape A.G. as seen in the video shows her fear and desperation. The forcible confinement lasted for many hours, beginning at just after midnight up until A.G. finally left the H. home after dinner. It included the driving incident towards Burlington and back again when D.H. was assaulted by A.G. in the car. During the time in the home, Mr. G. entered her room, lifted her bed onto its side, grabbed her face and head, and slammed her head into the wall. He headbutted her with his forehead and smacked her on the side of her head. She cowered in the corner. He then proceeded to drag her to the stairs, pulling her down the stairs. She missed the last six steps and fell down in pain. He carried her into the family room, tossed her onto a loveseat, squeezed her arms, and pulled her hair. He kicked her left ankle extremely hard leaving a bruise visible in the pictures. He then picked her up from the loveseat, dropped her on her back twice and then put her on the larger couch face first, putting his knee into her back with all his force, ripping her pajamas pants all the way up one side and her tank top as well. The two of them ended up in her parents’ room where he “whipped” his phone at her as hard as he could, hitting her twice. The bruise on her thigh from this part of the attack is particularly angry.

[7] A.G. was full of anger and took it out on D.H. He assaulted her repeatedly, at one point kneeing a large hole in her bedroom wall. The sexual assault of forced felatio and forced penetration over D.H.’s continual protest in her own home in the course of the lengthy forcible confinement and domination was the high point of his assaultive rampage against D.H. A.G. terrorized D.H. physically and sexually over a lengthy period of time. He subjected her to a series of indignities.

[8] In my view, the sage words of the Supreme Court in R. v. Friesen, 2020 SCC 9 are relevant here. The Chief Justice wrote,

68 Sexual violence also has a disproportionate impact on girls and young women. Like the sexual assault of adults, sexual violence against children is highly gendered (Goldfinch, at para. 37). The “intersecting inequalities of being young and female” thus make girls and young women especially vulnerable to sexual violence (”The ‘Statutory Rape’ Myth”, at p. 292). In 2012, 81% of child and youth victims of police-reported sexual offences were female and 97% of persons accused of such offences were male (Police-reported sexual offences against children and youth in Canada, 2012, at pp. 10 and 14). Sexual violence against children thus perpetuates disadvantage and undermines gender equality because girls and young women must disproportionately face the profound physical, emotional, psychological, and economic costs of the sexual violence (see R. v. Osolin, [1993] 4 S.C.R. 595 (S.C.C.), at p. 669; Goldfinch, at para. 37). Girls and young women are thus “still punished for being female” as a result of being disproportionately subjected to sexual violence (see The Hon. C. L’Heureux-Dubé, “Foreword: Still Punished for Being Female”, in E. A. Sheehy, ed., Sexual Assault in Canada: Law, Legal Practice and Women’s Activism (2012), 1, at p. 2).

[9] It is difficult to generalize when discussing the motivation behind the crime of sexual assault. There are many different causes depending very much on the particular accused’s psychology and other circumstances. One thing can safely be said. A sexual assault is always about dominance over the victim. That element is ever present underlying the crime. A sexual assault is all about the accused, a profoundly and thoroughly selfish act. [1] Sexual assault objectifies the victim and robs her of autonomy, dignity and her very identity as a person: R. v. Mabior, 2012 SCC 47 (S.C.C.) at para. 45. An attack against sexual integrity is a profound denigration of personhood.

[10] The consequences to a victim are in most cases profound and, unfortunately, long lasting. The road to recovery from the trauma can be long and painstaking. This can be seen in D.H.’s victim impact statement which she read in court and aimed directly at A.G.. It was a powerful description of the emotional and psychological damage caused by sexual assault in the context of an intimate partner relationship. She said,

The aftermath of everything sent me to a place mentally that I’ve never been in before. Crying uncontrollably, not being able to get out of bed, no appetite, overwhelmed with sadness and confusion. Just to name a few. Depression wasn’t the only result your actions caused. Adding on the heightened anxiety in public, the panic attacks that I had never suffered from before suddenly emerging. Scaring me so badly I rushed myself to emergency because I genuinely thought I was dying. No matter how much you put in to heal your mind, the body never forgets.

[11] The sexual assault and other assaults were deeply traumatizing:

The terror of realizing that nothing I did or said was making you stop. Not the screaming, not the tears, not the pleading, just a blank, soulless face staring back at me. The feeling of having zero control over what was being done to me. The feeling of complete and utter hopelessness. Knowing that no one was coming to save me. It was the single most heartbreaking and loneliest moment I’ve ever experienced. Something I think you need to understand, is that you got to leave. I’m the one who had to continue living in that house. I’m the one who had to deal with the constant reminders of that horrific night, no matter which room I entered.

[12] D.H. has made concerted efforts to heal and rebuild. The offences made her question herself and why she had entered into such a destructive relationship. She read from her statement,

I had so many questions going through my mind. The main one being why. Why did this happen? Why didn’t I do more to save myself? Why did I accept such disgusting behaviour? I think that’s what hurts the most. How upset I was with myself. How disappointed. The love and respect I once had for myself was slowly being drained, and I didn’t even realize it.

[13] The attack quite naturally affected her relationship with her family. She said,

Because of you, my mom and dad have doubted themselves as parents. You have no idea how much that killed me. You have no idea the immense guilt I felt for that. Why didn’t I just say something sooner? Why wasn’t I strong enough? Through hard work, I’ve been able to forgive the girl I once was. That part of me is dead and gone. What happened to me was not my fault. The only person responsible is you. You are the only one to blame.

[14] The consequences to the victim are a major factor on sentencing for sexual offences: Friesen, at para. 74; R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81 (Ont. C.A.) at para. 76. And see R. v. Stuckless, [1998] O.J. No. 3177 (Ont. C.A.) at para. 44 in which the devastating psychological impact of sexual assault offences is considered. The consequences to D.H. were very serious.

[15] D.H., with the staunch support of her sister and parents, showed resolve and strength throughout the process of complaint, giving evidence at the preliminary inquiry and then at this trial. D.H. and her family must be commended for their fortitude. The police, Crowns and judges in sexual assault cases are deeply committed to protecting and shielding complainants as best they can. There is a great deal we can do. But we know it is never easy to go all the way through the process as D.H. has done. A complainant and her account will invariably be challenged in open court. But every complainant like D.H. who does come forward and testifies demonstrates to others in similar circumstances that with courage and guts it can be done and that justice can be achieved.

[16] As I said in the reasons for judgment, D.H. was a good, composed witness, credible and reliable. Fortunately, her account was strongly supported by a body of confirmatory evidence. In her victim impact statement, D.H. expressed pride in bearing witness against A.G. She certainly earned that pride in how she conducted herself in the investigatory and prosecutorial phases of this case.

[17] In terms of aggravating factors aside from the fundamental invasion into D.H.’s physical and sexual integrity, there are several aspects that are salient. Intimate partner violence is an aggravating factor in the Criminal Code under section 718.2 (a)(ii). The offences also constituted a breach of trust within section 718.2 (a)(iii) on a number of different fronts. On the most basic level, sexual offences against an intimate partner always involve a breach of trust. Intimate partners ought to have care and affection for each other. Instead there is anger and violence and hatred. That makes the physical assault ever the more destructive and harmful.

[18] The fact the offences occurred in her home both rendered A.G.’s conduct more blameworthy and aggravated the consequences to D.H. and her family. Their home ought to have been D.H.’s most cherished and protected place of privacy and sanctuary. D.H. and her parents had opened their home to A.G. because he was having difficulty with his parents in his own home in Burlington. It was an act of kindness, repaid by terrible criminal acts against their daughter. The H.s trusted their home and their daughter to him; his was a fundamental betrayal of that trust.

[19] The offences took place after D.H. threatened to break up with him after arguments and assaults upon her. The offences on September 23-24, 2017 came at a point where both must have recognized the relationship could not continue and was at an end. In my view, the anger A.G. had for D.H. led him to punish her for the end of their relationship. He had criticized and been harsh with her throughout their relationship, consistently deprecating her. He had been anxious about her leaving him for a considerable time as shown by the biting incident a month earlier and in other incidents as well. Now that the relationship was definitely at an end, A.G. unleased his full anger and vindictiveness on D.H. The assaults and sexual assaults were a final, sadistic punishment.

THE OFFENDER

[20] A.G. is now 26 years old and was 20 at the time of the offences. He has no previous criminal record. His parents, sister and girlfriend are behind him. His girlfriend was often present in court during the trial.

[21] A “youthful, first offender” is due substantial mitigation: R. v. Priest (1996), 30 O.R. (3d) 538 (Ont. C.A.) at paras. 17, 21-22 and R. v. Borde (2003), 63 O.R. (3d) 417 (Ont. C.A.) at para. 36. The appropriate mitigation for a youth varies depending on the seriousness of the offence: R. v. Thurairajah, 2008 ONCA 91, [2008] O.J. No. 460 (Ont. C.A.). Justice Doherty wrote in that case:

41 Generally speaking, sentences imposed on young first offenders will stress individual deterrence, where necessary, and rehabilitation. General deterrence will play little, if any, role in fashioning the appropriate sentence in this category of offender in most cases: R. v. Ijam (2007), 2007 ONCA 597, 87 O.R. (3d) 81 (Ont. C.A.), at 93-94. Serious crimes of violence, particularly sexual assaults, do provide an exception to the general rule described above. While all of the principles of sentences remain important, including rehabilitation, for serious crimes involving significant personal violence, the objectives of denunciation and general deterrence gain prominence: R. v. Ijam, supra; R. v. Wells (2000), 2000 SCC 10, 141 C.C.C. (3d) 368 (S.C.C.) at para. 26.

42 The emphasis to be placed on denunciation and to a lesser extent general deterrence, grows with the seriousness of the particular circumstances surrounding the sexual assault for which an accused, even a young accused, is being sentenced.

[22] A.G. has a sad history. Two months after being charged with these offences, in the fall of 2017, he was admitted to a local hospital with distressing anxiety. A psychiatrist diagnosed him with cluster B personality disorder and adjustment reaction with depressed mood. A.G. presented with several chronic symptoms including “rejection sensitivity, manipulative and lying tendencies, impulsivity and chronic feelings of emptiness.” After being found guilty of the index offences in March of this year, A.G. had four sessions with a counsellor. She reported that he had experienced developmental trauma as a result of being left alone from the age of 7 while his parents were working outside the home. He developed an attachment disorder as a result. A.G.’s diagnosis helps to explain his anger when D.H. threatened to break off their relationship.

[23] A.G. expressed regrets about what he had done to D.H. and her family. He also expressed suicidal thoughts to the social worker/counsellor. Letters of support were filed from his parents and his girlfriend. A.G. wrote a letter as well. He has been working for his parents’ construction company. He apologized to the H.s and said that the therapy he has been receiving since the finding of guilt has led to a better understanding of his behaviour. He expressed an intention to carry on with therapy which is obviously a good idea.

[24] After a full trial in which A.G. testified and denied the allegations, I must say that I am somewhat skeptical of A.G.’s expressions of remorse. I do not dismiss the remorse outright but would not give it much weight. In his trial testimony, A.G. blamed D.H. for the incidents and said that he was acting chivalrously and altruistically to protect her from her own self-harming tendencies. She attacked him, not him her. That was outlandish and was proved false. None of this is aggravating but it does cast doubt on the sincerity of his expressions of remorse.

[25] A major source of mitigation is the five and a half years that have gone by since the time of the offence. Justice Benotto said in R. v. Hartling, 2020 ONCA 243 at paras. 115–122:

115 . . . delay in sentencing causes prejudice to the offender and to society. The offender is unable to begin rebuilding a life, rehabilitation is impacted, and the offender lives with the anxiety of an uncertain future: Rahey at pp. 605-606 S.C.R. Likewise, society "has a keen interest in ensuring that those guilty of committing crimes receive an appropriate sentence promptly": R. v. MacDougall, [1998] 3 S.C.R. 45, [1998] S.C.J. No. 74, at para. 36.

118 Delay in sentencing that does not rise to the level of a Charter breach has long been considered a factor in mitigation of sentence: R. v. Cooper (No.2), [1977] O.J. No. 721, 35 C.C.C. (2d) 35 (C.A.), R. v. Bosley, [1992] O.J. No. 2656, 59 O.A.C. 161 (C.A.).

[26] With reference to Downes credit for time on bail, A.G. was released October 30, 2017 on a house arrest bail. That was varied January 8, 2018 to delete the house arrest in favour of a curfew of 10 p.m. to 5 a.m. A.G. was charged with failing to comply with his curfew committed December 31, 2018. He was released on a house arrest bail on January 8, 2019. He spent seven days in custody, equivalent to 10 days including pre-trial credit. On April 25, 2019 he pled guilty to the charge and, taking into account pre-trial custody, received a conditional discharge.

[27] In total attributable to these offences, there were two months and one week on house arrest bail and then over five years on the curfew bail.

CONCLUSION

[28] Recently, Associate Chief Justice Fairburn in R. v. A.J.K., 2022 ONCA 487 at paragraphs 68-79, after summarizing the relevant jurisprudence, reiterated that the general range for intimate partner sexual assault involving penetration is three to five years. A range is not a straitjacket and can and should be departed from in appropriate circumstances. Upon this sentencing, the youth of A.G. at the time of his offences, his status as a first offender and the lengthy delay tend to push the sentence towards a shorter sentence. On the other hand, the seriousness of the offences suggests a longer sentence.

[29] Looking at his youth and the other mitigating factors, in the end it is my view that the seriousness of the offences must predominate. I am guided by Justice Doherty’s reflection in Thurairajah that for serious crimes of significant personal sexual violence, even with a young person, denunciation and general deterrence are paramount and rehabilitation must assume a secondary role.

[30] In this case, denunciation and the affirmation of society’s norms against the pernicious consequences of intimate partner sexual assault must be the focal point. General deterrence has a role to play but a diminished one given A.G.’s youth and the delay in the case. In terms of specific deterrence, there is reason for concern. There has been no repetition of A.G. crimes nor was there any precedent for them in his history. But the psychiatric diagnosis of border personality disorder and the developmental and attachment issues are disconcerting. These disorders seem to have a causal role in the offences for which A.G. has been found guilty.

[31] There was also some troublingly erratic behaviour which came out during the trial. D.H. testified that A.G., during the assaults in her home on September 24, 2017, assumed the role of a CSIS agent and appeared to be taking instructions from others. She also said that when he forcibly drove her towards Burlington, he said that he was going to show her video of him being abused as a child. There are other examples as well. In total, I have some disquiet on the issue of individual deterrence. I cannot say that it is of no weight. But to be clear, at the same time, there are good prospects for A.G.’s rehabilitation.

[32] The collective gravity of the offences, the duration of the domination of D.H. on September 23-24, the severity of the assaults on her, the invasiveness of the sexual crimes, the breach of trust including the offences taking place in Ms. H’s home, the aggravating feature of intimate partner violence recognized by Section 718.2(a)(ii) and the consequences of the offences upon D.H., together necessitate strong denunciation as a key component of the sentence to be imposed.

[33] A sentence of under two years to be served on house arrest as a conditional sentence as argued for by defence counsel is plainly insufficient to accomplish the denunciatory objective of sentencing and is disproportionate to the seriousness of the offences and A.G.’s moral culpability. On the other hand, the Crown position of 7 years fails to give sufficient weight to A.G.’s youth and the time that has passed since the offences.

[34] The appropriate sentence in my view for the offences committed September 23-24, 2017 is a global sentence of five years. The August, 2017 offence, taking into account totality as I have done across the board, should result in a sentence of four months consecutive. There will be a reduction of two months for Downes mitigation to that count, resulting in a two-month consecutive sentence. The total sentence then will be 62 months or five years, two months.

[35] The sentences will be broken down in the following way. For the sexual assault count, the sentence will be five years. For the assault with a weapon, six months concurrent. For the forcible confinement, 12 months concurrent. For the assault, 12 months concurrent. As I have said, the assault bodily harm based on the bite to the thigh, two months consecutive to each of the other offences.

[36] Sending a young adult with mental health issues and a suggestion of suicidal tendencies to the penitentiary is a last resort. As I have endeavored to explain, it is necessary in this case, however. Most offenders sent to the penitentiary, like A.G., will be released eventually. As has been recognized by the Supreme Court, with our current approach to incarceration, it is likely that an offender will come out no better and more likely worse than when he went in initially: R. v. Proulx, 2000 SCC 5 at paras. 16-17. That obviously is not a desirable or rational outcome for either the offender or for society.

[37] I would recommend in the strongest terms that A.G. be monitored closely in custody serving his sentence. He should also get immediate and thorough mental health assessment and treatment if needed.

[38] There will be the following ancillary orders: DNA databank order; SOIRA order for 20 years; order for non-communication with D.H., B.H., E.H. and S.H. during the custodial period under section 743.21(1); and a section 109(2)(a) order for 10 years and a section 109(2)(b) order for life.

[39] The indictment will be endorsed accordingly.

D.E HARRIS J. Released: May 19, 2023

Footnotes

[1] For a particularly incisive and poignant account illustrating the profoundly damaging effects of sexual assault on a victim's identity and sense of self-worth see "Know My Name: A Memoir" by Chanel Miller, Viking, 2019.