Court of Appeal for Ontario

Date: 2025-04-17
Docket: COA-24-CR-0659
Coram: David M. Paciocco, B. Zarnett, J. Dawe JJ.A.

Between:
His Majesty the King (Respondent)
and
Dwayne Thomas (Appellant)

Counsel:
Dan Stein, for the appellant
Adrianna Mills, for the respondent

Heard: 2025-04-02

On appeal from the sentence imposed on October 4, 2023 by Justice Jennifer M. Campitelli of the Ontario Court of Justice.

Reasons for Decision

Background

[1] Dwayne Thomas, a 42-year-old correctional officer of prior good character, was convicted after a provincial court trial of sexual assault and breach of trust. He was found to have directed a female inmate under his control into a shower room sheltered from security cameras, before demanding oral sex and then forcibly penetrating her with his penis when she refused. The victim experienced significant long-term trauma as well as adverse treatment while incarcerated after reporting the assault. The trial judge imposed an exemplary global sentence of six-and-a-half years, mindful that this sentence exceeded the usual range for penetrative sexual assaults.

[2] Mr. Thomas appealed his sentence. After oral argument, we dismissed his appeal with reasons to follow. These are our reasons.

Grounds of Appeal

[3] Mr. Thomas argued in his appeal factum that the trial judge erred in characterizing the breach of trust that occurred in this case as more serious than the breaches of trust in other cases involving law enforcement officers who have sexually assaulted vulnerable members of the public, and that she therefore erred in exceeding the usual sentencing range. He also argued that the trial judge failed to apply the principle of restraint and gave inadequate weight to rehabilitation, given that he was a first offender who was shown to be a good candidate for rehabilitation. He submits that the trial judge should have addressed how his contributions as a public correctional officer and his prosocial history contributed to his rehabilitative potential. He presented us with fresh evidence of the significant racial bias he has experienced, and suggested that the manner in which he has lived his life despite these experiences confirms his rehabilitative potential. He also argues that the trial judge erred by failing to consider the harsh conditions of incarceration, given the risks he faces in custody as a former correctional officer. Finally, Mr. Thomas offered fresh evidence of the rehabilitative steps he has taken in custody and asks us to consider them in resentencing him if we find a reversible error. As indicated, we did not accept any of these submissions.

Sentencing Range and Fit

[4] First, so long as the sentence imposed is fit, a judge does not err by exceeding an established sentencing range, since “sentencing ranges are primarily guidelines, and not hard and fast rules”: R. v. Lacasse, 2015 SCC 64, at para. 60. The sentence the trial judge imposed is no doubt harsh, but it is not unfit. The trial judge’s decision to impose this sentence reflects the priority that the law requires judges to give to deterrence and denunciation for sexual assault offences. It also heeds the call made by Fairburn A.C.J.O. to judges in R. v. A.J.K., 2022 ONCA 487, at para. 72, quoting R. v. Friesen, 2020 SCC 9, at para. 35, to “chart a new course and bring sentencing ranges into ‘harmony with a new societal understanding of the gravity of certain offences or the degree of responsibility of certain offenders’”.

Aggravating and Mitigating Factors

[5] The trial judge paid close attention to both the offence and the offender in imposing this sentence. In terms of the offence, in the trial judge’s view the breach of trust committed in this case was more aggravating than precedent cases put before her involving peace officers who had sexually exploited members of the public. She noted that the vulnerability of the victim, given her incarceration at the time she was violated, is difficult to overstate. The victim was struggling with drug addiction. Earlier that day, Mr. Thomas had delivered methadone to her while she was locked up and therefore incapable of medicating herself. The crime occurred while the victim was, by virtue of her incarceration, entirely subject to Mr. Thomas’s control and direction. The trial judge concluded that Mr. Thomas’s position enabled him to commit this premediated crime by giving him “unique insight into her individual vulnerabilities” and the means to exploit those vulnerabilities to isolate and abuse her sexually. The offence was planned, invasive and degrading. The victim impact statement also showed that the victim experienced serious long-term psychological harm from the offence, as well as difficulties while incarcerated after reporting the crime. In these circumstances, the trial judge was entitled to conclude that this case called for a more significant sentence than those reflected in the precedents put before her.

[6] The trial judge was entitled to put a lesser premium on rehabilitation by imposing an exemplary sentence that favoured deterrence and denunciation, notwithstanding that Mr. Thomas was a first-time offender, who had previously lived a pro-social life. These considerations take on less priority when, as here, the previous good character of the offender put them into the position of trust that facilitated the offence for which they are being sentenced. Moreover, the severe nature of the offence, coupled with Mr. Thomas’s maturity and his full realization of the vulnerability he was exploiting and of the harm he would cause, reduced the pull of rehabilitation as a sentencing priority. We therefore found no error in the fact that the trial judge focused on deterrence and denunciation and did not feature rehabilitation in crafting or explaining the sentence imposed.

Harshness of Incarceration

[7] We take no issue with Mr. Thomas’s submission that a sentencing judge should consider the uniquely harsh conditions of incarceration an offender will experience when calibrating a fit sentence: R. v. Quinn, 2024 ONSC 1073, at para. 49; R. v. Cook, 2010 ONSC 5016, at para. 43, appeal dismissed as abandoned, 2014 ONCA 764. However, we are not satisfied that the trial judge failed to take this into account. She was fully cognizant of Mr. Thomas’s former role as a correctional officer, and no doubt of the reality that given that role, a custodial sentence would pose risks for him if incarcerated. However, the mitigating effect of the hardship of the conditions in which the sentence will be served is itself diminished in this case by the fact that Mr. Thomas would have fully understood the risk he was assuming when he acted but was no doubt confident that his very role would protect him. The impact of the fresh evidence of risk to Mr. Thomas is also tempered by (i) the fact that it confirms that his former role as a correctional officer has remained unknown in the prison setting, and (ii) by his current minimum-security classification and placement.

Systemic Racism and Rehabilitation

[8] We would reiterate that Mr. Thomas did not present fresh evidence about his horrendous experiences as a Black man with systemic racism and differential treatment so that he could argue that these experiences reduced his moral fault. He relied on that evidence solely to demonstrate his rehabilitative potential. We therefore see no need to address the Morris factors in this decision.

Post-Sentencing Rehabilitation

[9] As for the evidence of rehabilitative efforts taken by Mr. Thomas in custody, they do not represent a material change in circumstances that warrants appellate reconsideration of the sentence imposed. Highly exceptional circumstances are required before we would vary a sentence because of post-sentencing rehabilitative efforts. The commendable work that Mr. Thomas has undertaken does not rise to that level.

Disposition

[10] We therefore found no basis for interfering with Mr. Thomas’s sentence and dismissed the appeal.

“David M. Paciocco J.A.”
“B. Zarnett J.A.”
“J. Dawe J.A.”

Publication Ban

This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.