COURT FILE NO.: CR 20-10000157 CR-20-10000158 CR 23-10000372 DATE: 20231110

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – SHANE CODRINGTON

Counsel: R. Verboom, for the Crown P. Brown, for Mr. Codrington

Heard: 28 September 2023

Before: S.A.Q. AKHTAR J.

Introduction

[1] Following a judge alone trial, Mr. Codrington was found guilty of the following offences:

• Use of an imitation firearm while committing an indictable offence (robbery) contrary to s. 85(2)(a) of the Criminal Code;
• Use of an imitation firearm while committing an indictable offence (sexual assault) contrary to s. 85(2)(a) of the Criminal Code;
• Robbery contrary to s. 343 of the Criminal Code;
• Forcible confinement contrary to s. 279(2) of the Criminal Code;
• Sexual assault with a weapon contrary to s. 272(1)(a) of the Criminal Code;
• Sexual assault with a weapon contrary to s. 272(1)(a) of the Criminal Code; and
• Sexual assault with Jevor Brown contrary to s. 272(1)(d) of the Criminal Code.

[2] He now stands to be sentenced.

Background Facts

[3] The complainant, C, was 23 years old at the time of the offence. She was resident in Montréal. On 10 July 2019, she came to Toronto with two male friends, hereinafter referred to as D and G, along with D’s girlfriend, hereinafter referred to as A.

[4] They rented an Airbnb paid for by G. The Airbnb was located on the 14th floor of 111 Bathurst Street in Toronto.

[5] At some point during their first night in the city, D and G went outside the building to smoke a cigarette. C had fallen asleep but was woken by A who asked her to go downstairs to let G and D back into the building. The only key to the apartment was an electronic fob which was needed to access their floor when using the elevator. G and D had left the key with the two women.

[6] C agreed to go down to the building’s lobby to let her friends in. When she approached the 14th floor elevators, she noticed two men waiting nearby. C became uneasy because the two men did not look like residents of the building. When the elevator arrived, she got in. The two men followed.

[7] A security camera from inside the elevator captured the events that followed.

[8] C began to look at her mobile phone. She was approached by one of the men who was wearing sunglasses and a Toronto FC baseball cap. This was Mr. Codrington. The second man, Jevor Brown, stood in the corner watching.

[9] Mr. Codrington asked C, “do you want to have fun”. When she said “no”, she was told to “shut the fuck up”. Mr. Codrington took her phone and began to pull down the straps of her dress. She was afraid and tried to resist. Mr. Codrington pointed a gun at her and yelled, “shut up”.

[10] The elevator stopped at the ground floor, but Mr. Codrington stood directly in front of C preventing her from leaving. He pressed the eighth-floor button. When the elevator doors opened, Mr. Codrington grabbed C’s hair and forcibly dragged her from the elevator. Mr. Brown exited with them.

[11] C testified she was taken to a nearby stairwell and forced down a flight of stairs. Mr. Codrington began to choke her before demanding she perform fellatio on him. When doing so, he pointed a gun at her head. He also wanted the password to her phone. Mr. Codrington told C to “suck it” whilst he held her head in place. Scared for her safety, C did as she was told. Mr. Brown moved behind her and had vaginal and anal sex with her without her consent whilst she continued to perform oral sex on Mr. Codrington. Throughout, Mr. Codrington continued to hold a gun to C’s head and told her to “shut the fuck up”.

[12] The two men swapped positions and Mr. Codrington anally and vaginally raped C from behind whilst Mr. Brown inserted his penis into her mouth. Mr. Codrington made demands as he kept the gun pointed at her head. Mr. Brown remained silent. C could not tell how long the event lasted but remembered that it ended just after she heard a noise from outside the stairwell.

[13] Just before the two men left the scene, Mr. Codrington turned to C and told her “we are going to be looking for you”.

[14] C ran up the stairs to the 14th floor where she found her friends. She saw G standing next to the lift. She was crying. G asked her what had happened, and C told him.

[15] The police were called the next day. She was also seen by a doctor who prescribed medication. The sexual assault nurse who examined C said that she saw swelling and redness on C’s labia and anus. She was unable to examine C’s vaginal area using a speculum because C told her that she would be unable to bear the pain that would result. Even a routine medical swabbing proved to be impossible because of C’s extreme discomfort. Ultimately, it was left to C to take her own swab sample, which the nurse testified to as being very rare.

[16] The nurse also said C’s neck was tender to the touch and there was redness. She also observed a bruise on the right side of her leg. This injury was captured by a photograph taken by police.

Position of the Parties

[17] Ms. Verboom, on behalf of the Crown, submits this offence is of such a serious nature that a sentence of 12 years is appropriate as a global sentence. She also asks for the following ancillary orders:

• a DNA order;
• an order pursuant to the Sexual Offender Information Registration Act for a period of 20 years; and
• an order under s. 109 of the Criminal Code prohibiting Mr. Codrington from possessing any weapons for life.

[18] Ms. Brown, on the other hand, submits that Mr. Codrington has served the equivalent of five- and one-half years and asks for a sentence of time served. She argues that this is sufficient when considering Mr. Codrington’s personal circumstances.

Personal Circumstances

[19] Mr. Codrington is now 28 years old. He was born in Toronto to an American mother, Mary Codrington. He also has a sister. He informed the author of his pre-sentence report that he was unsure where his biological father was born and has limited contact with him.

[20] Mr. Codrington indicated that his mother and grandmother have an history of Indigenous descent. This was confirmed by his mother. He described his relationship with his mother as being "fair". However, it appears that their relationship is volatile and that they have "fallouts".

[21] Apparently, Mary Codrington has health issues and indicates that Mr. Codrington would be required to care for her youngest son, if anything would happen to her.

[22] Mr. Codrington grew up in Toronto with his maternal grandparents, his aunt, and his sister. His grandfather was a role model for him and taught him how to respect people. Mr. Codrington indicated that in his past, there was some Children Aid Society (CAS) involvement but was unable to recall the details. At age 15, the CAS removed Mr. Codrington and his sister from the family home and placed them into the care of his grandparents.

[23] Mr. Codrington indicated that he had a "bad upbringing" and missed out on his childhood. He never went on a trip or played any sport. He said that he suffered physical, spiritual, and mental abuse from his grandmother. Mr. Codrington also said he was subjected to corporal punishment. He indicated that he would have preferred to have lived with his mother.

[24] Mr. Codrington also spoke of his feelings towards his grandmother who identified him to the police after the offences. He indicated that he feels "betrayed" and cannot understand why she did so. His grandmother told the author of the pre-sentence report that she wanted "what is best for him”.

[25] It would appear that Mr. Codrington had a learning disability and needed support throughout high school.

[26] Mr. Codrington is currently single with no children, although he had been in a relationship with a woman for 10 years residing together for a year and a half. He indicated there was domestic violence in the relationship but denied being the perpetrator. He could not explain as to why the relationship ended.

[27] Mr. Codrington recalled attending two elementary schools and multiple high schools. He did not complete his high school education and left school at the age of 17. He told the author of the pre-sentence report that he had anger issues in elementary school and got into fights with other students. In elementary school, he was diagnosed with intellectual delay. Thereafter, he was given an individual education plan which placed him in a special-needs classroom accompanied by an educational assistant. He said that his behaviour changed for the better after this development. His mother has also confirmed that Mr. Codrington has been diagnosed with an intellectual impairment which caused problems for him at school and in everyday life. His mother added that Mr. Codrington has a hearing impairment and lower than average memorisation skills relative to others his age.

[28] Mr. Codrington told the author of the pre-sentence report that he had been diagnosed with schizophrenia as a child but could not provide any details. Mary Codrington confirmed the existence of mental health issues when Mr. Codrington was a small child, but also failed to provide any dates or details. He told the author of the pre-sentence report that he had never seen a psychiatrist, but later changed that claim saying that he did. He was on medication for four years but would stop taking it. Much of Mr. Codrington's claims about his mental health could not be supported with details or specifics. It does appear, however, that whilst in detention, Mr. Codrington has been seeing a psychiatrist at the Toronto South Detention Centre and taking medication. He has been diagnosed as having schizophrenia and is taking psychotropic medication as prescribed.

[29] Mr. Codrington has been steadily employed throughout his life. Prior to his current incarceration, he was employed at a call centre for two months and previous to that as a security guard. He said that he was fired from his security guard position because he was unable to renew his licence due to the criminal charges. In his pre-sentence report, Mr. Codrington said that he had worked in numerous positions in factories, call centres, and retail stores. More recently, he was financially supported through the Ontario Works program because he was unable to find employment due to court-imposed restrictions.

[30] Mr. Codrington has no drug or alcohol related issues.

Aggravating and Mitigating Features

[31] There is no doubt that this was an opportunistic assault on an unsuspecting and vulnerable victim visiting Toronto.

[32] Ms. Verboom suggests that there was evidence of a planned assault in this case. After taking C’s phone, Mr. Codrington immediately pressed the eighth floor of the elevator as if both parties had previously decided that they would be going to that floor. Upon reviewing the video evidence, I found beyond a reasonable doubt that when they followed C into the elevator, they had already formed their plan to sexually assault her and had chosen the floor where they would commit their attack.

[33] There is no doubt that this was a very serious, violent offence. However, much of the seriousness is reflected in the nature of the charges and cannot be considered as aggravating features.

[34] Mr. Codrington continues to maintain his innocence and protests his "wrongful conviction". This is not an aggravating feature as this is his right. However, an offender who continues to proclaim that he is not guilty is not entitled to the significant discount in sentencing they would otherwise receive. Mr. Codrington’s repeated assertions that he is not responsible for the offences also speaks to his poor prospects for rehabilitation.

[35] In mitigation, it is clear that Mr. Codrington does have mental health challenges with his mental health and learning difficulties. He has provided letters of support from his family including his mother who is suffering from terminal cancer, his grandfather, his aunt, and his older brother who has spoken with Mr. Codrington in pursuing a career in trades.

[36] Mr. Codrington does not have a criminal record. Ms. Brown filed records from the Toronto South Detention Centre and the Toronto East Detention Centre which appear to indicate that Mr. Codrington was subject to lockdown conditions which were exacerbated during the pandemic. Mr. Codrington was also on very restrictive house arrest conditions when released from 22 November 2022 to 15 June 2023. Accordingly, he is entitled to credit under the principles set out in R. v. Downes (2006), 79 O.R. (3d) 321.

[37] On the other hand, the records also show that Mr. Codrington was guilty of three acts of misconduct in May, June, and July 2023. One of these acts involved Mr. Codrington being violent towards a cell mate and grappling with institutional officers as they attempted to restrain him.

The Sentencing Precedents

[38] In seeking a sentence of 12 years imprisonment, the Crown relies upon several cases.

[39] In R. v. Myers, [2000] O.J. No. 1787, aff’d [2002] O.J. No. 965 (C.A.), the offender pleaded guilty to sexual assault on a woman that he dragged off the street as she was walking home. He attempted to rape her, removing her clothes and pushing her onto the ground, which was covered with ice. It was not clear whether there was penetration, but the victim suffered several injuries including bruises and hypothermia from the attack. The offender was a 26-year-old alcoholic with limited education. He also had a criminal record that included convictions for assault upon previous girlfriends. He expressed remorse and apologised to the victim. He was sentenced to the maximum sentence of nine years imprisonment. This sentence was upheld by the Court of Appeal who commented that whilst the sentence was a "substantial one”, the brutality of the attack and the duration of the assault made it fit: at para. 1.

[40] In R. v. Sousa, 2023 ONCA 100, 165 O.R. (3d) 641, the offender was convicted of sexual assault on a victim who had passed out at a house party. The offender took her to an isolated area and forced her to perform oral sex before penetrating her twice vaginally and once anally. After he had finished, he drove the victim back into town and left her on an unfamiliar street, where she found assistance and the police were called. He was given a ten-year jail sentence. The Court of Appeal found the sentence to be excessive and reduced it to eight years. The Court found that the assault took place on a vulnerable victim and could be characterised as opportunistic. However, the offender had no criminal record.

[41] In R. v. Kavanagh, 2009 ONCA 759, 255 O.A.C. 285, the offender was convicted of sexual assault with a weapon, unlawful confinement, and robbery. The Court of Appeal described this as a "brutal, sexual assault on a vulnerable woman working at night in a convenience store": at para. 7. The offender, who was unknown to the victim, entered the store, locked the door, and threatened the complainant with a knife that he claimed to have in his back pocket. He took her into a back room of the store and made her perform oral sex on him before raping her. The offence was found to be a premeditated one on a vulnerable victim who suffered long-term consequences in her personal life. The offender had a criminal record that included domestic assault. The Court of Appeal held that a ten-year sentence was appropriate.

[42] In R. v. R.M., 2020 ONCA 231, 150 O.R. (3d) 369, the offender was convicted of a sexual assault on a sex trade worker who was violently and repeatedly raped at knife point by the offender and another male in 1990. In 2016, a DNA profile identified the offender as the perpetrator. The Court of Appeal upheld a global sentence of eight years for the youthful first-time offender.

[43] In R. v. Assing, [2008] O.J. No. 4527 (Ont. S.C.), the first-time offender was convicted of sexual assault whilst using a knife, robbery, and unlawful confinement. The victim was walking home from a shopping excursion. She was grabbed by the offender, a stranger, who wielded a knife with a blade of approximately one foot in length. After taking her money and personal objects, the offender dragged the woman into a nearby park and into a townhouse in a residential development. She was forced into the basement, tied up, and raped repeatedly. She was punched about the head and body when she tried to resist. The judge took the view that the offender was a "predator". The attack was pre-planned on a vulnerable victim and a weapon was used. The judge held that public safety, denunciation, and deterrence were paramount and imposed a sentence of nine years.

[44] In R. v. Broekaert, 2003 MBCA 10, 170 Man. R. (2d) 229, the offender was convicted of aggravated sexual assault and sentenced to 11 1/2 years imprisonment. He had been drinking at a bar. He followed the victim, dragging her into a construction site before removing her clothing. He then inserted an object into her vagina and anus. After he struck her in the face, he dragged her to a second location, where he continued a similar attack. The victim suffered serious injuries, including lacerations to her vagina and anus. She was required to undergo emergency surgery to close the wounds. As a result of her injuries, she required long-term attention and additional surgeries to recover. She required the continuing attention of a home care nurse and undertook a continuous course of medication to cope with the emotional and physical scarring of the attack. The offender had a minor, dated, and unrelated criminal record.

[45] In support of its position of time served, the defence relies on several cases.

[46] In R. v. Alexander, 2013 ABCA 231, [2013] A.J. No. 655, the offender pleaded guilty to sexual assault. He contacted a sex trade worker and enticed her to the parking garage of an apartment building. When she arrived, the offender attacked her, holding a knife to her throat. He then stole money from her and took her mobile phone. The offender received a six-year sentence which was reduced to five years on appeal.

[47] In R. v. Sutherland, 2016 ONCA 674, 342 C.C.C. (3d) 309, the offender was convicted of sexual assault of a woman whom he had met whilst trafficking crack cocaine. Both the offender and the victim were drug addicts. On the day in question, the victim went to the offender’s house to smoke cigarettes and purchase some crack cocaine. The offender attacked the victim. He threw her to the ground and raped her with a knife pointed at her throat. After she fled, the offender chased her with a broken beer bottle. The offender received a sentence of six years.

[48] In R. v. Richards, 2016 ONSC 2940, the offender was convicted of a sexual assault on a sex trade worker whom he approached as he was driving his vehicle. He drove the victim to a cemetery, punched her in the face and the head, and then produced a knife, threatening her with it. With the knife held at her neck, the offender sexually assaulted her by digitally penetrating her vaginal and anal areas. He then forced her to perform oral sex on him whilst continuing to hold the knife over her head. Afterwards, he raped her vaginally and anally. He received a global sentence of seven years.

The Appropriate Sentence

[49] Section 718 of the Criminal Code sets out the factors that a judge must consider when imposing a sentence. These principles emphasise balancing denunciation and deterrence with rehabilitation and promoting a sense of responsibility.

[50] The fundamental principle of sentencing is contained in s. 718.1 of the Criminal Code. This principle mandates that any sentence must be proportionate to the gravity of the offence and degree of the responsibility of the offender.

[51] I find the cases advanced by the defence to be of limited assistance. For example, in Alexander – the low point in these sentencing cases – the offender pleaded guilty and received the benefit of a significant discount. Moreover, none of the cases involve a gang sexual assault, a significant feature of seriousness in this case.

[52] There is no doubt that this was an horrific assault on a vulnerable complainant who was a stranger to the city of Toronto. I have already found beyond a reasonable doubt that there was planning involved before Mr. Codrington and Mr. Brown entered the elevator. In their choice of the eighth floor, the offenders clearly knew of the stairwell – which might provide some seclusion – as they took C there directly and forced her down a flight of stairs. The use of the gun, both in the elevator and the stairwell, when Mr. Codrington and Mr. Brown carried out their attack on C would have been terrifying in its impact. It is telling that C could not bring herself to write a Victim Impact Statement for the sentencing hearing because she was too emotionally scarred.

[53] Accordingly, denunciation and deterrence must take precedence in a case with facts such as these.

[54] In light of these factors, the Crown’s position of 12 years is not unreasonable. However, I must also take into account the mitigation that I have described. This includes Mr. Codrington’s incarceration during the COVID-19 pandemic as well as the lockdowns at the institution during the pandemic. I also take into account his house arrest conditions which would entitle him to a credit pursuant to Downes.

[55] I conclude that a global sentence of ten years is appropriate in this case. That shall be marked on the indictment. From that, I deduct 5 years and 5 months pursuant to the credit Mr. Codrington is entitled to under R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575. The sentence left to be served is 4 years and 7 months.

[56] I also make the following ancillary orders:

• An order that he provide a DNA sample pursuant to s. 487.051(1) of the Criminal Code. With the exception of the offences pursuant to s. 85, the offences are all primary designated offences;
• a section 109 order prohibiting Mr. Codrington from possessing weapons for life. This order is mandatory for all of the offences;
• a registration on the Sexual Offender Information Registration Act for a period of 20 years; and
• a non-communication order with C and her family pursuant to s. 743.21 of the Criminal Code.

The Kienapple Principle

[57] Although Mr. Codrington originally faced eight counts on the indictment, one count (Count 7) was not proceeded with by the Crown. Ms. Verboom also concedes that Count 1 on the indictment should be stayed pursuant to the principle in R. v. Kienapple, [1975] 1 S.C.R. 729, as it duplicates Count 3 on the indictment (Robbery). I would also find that Count 2 on the indictment is also captured by Kienapple as the essential elements of s. 85 contains the same legal elements as Counts 5 and 6 (Committing a Sexual Assault Using a Weapon). For these reasons, Counts 1 and 2 are stayed in accordance with the Kienapple principle.

Allocation of the Sentence

[58] The global sentence of 10 years shall be allocated across the counts as follows:

• Count 6 – Sexual assault with a weapon in the stairwell of 111 Bathurst Street – 10 years imprisonment;
• Count 8 – Sexual assault committed with Jevor Brown – 10 years concurrent to Count 6;
• Count 3 – Robbery – 3 years concurrent to Count 6;
• Count 4 – Forcible confinement – 3 years concurrent to Count 6; and
• Count 5 – Sexual assault with a weapon in the elevator – 5 years concurrent to Count 6.

S.A.Q. Akhtar J. Released: 10 November 2023

COURT FILE NO.: CR 20-10000157 CR-20-10000158 CR 23-10000372 DATE: 20231110

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – SHANE CODRINGTON

REASONS FOR SENTENCE S.A.Q. Akhtar J.