WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 Offence

(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Court File No.: Toronto Region Ontario Court of Justice

Between:

Her Majesty the Queen

D. Steinberg, for the Crown

— and —

A.V.

P. Connolly, for the accused

Heard: April 11, 22, 2014

Decision

Feldman J.:

Conviction and Facts

[1] Following trial, I found A.V. guilty of a sexual assault committed on a distant relative, A.N., with whom he had a close relationship. At the time, the victim was 21 years old. The defendant was then age 27, married and had an infant child.

[2] The families of the two parties were also close, lived nearby and were together regularly. On the weekend the assault occurred, A.N. was home alone. Ironically, her father had asked the accused to look in on her. He did so.

[3] I found that the defendant overpowered A.N. in asserting his will against her resistance to satisfy his urges before leaving for work. I consider it probable he was fuelled by alcohol. I found the testimony of the complainant credible and supported by other material evidence.

[4] I rejected the accused's evidence that his victim consented to vaginal intercourse or in the alternative that he was honestly mistaken about it. In weighing his evidence, I took into account the implausibility of his version of events, his criminal record for dishonest offences and his attempt to have A.N. drop the charges.

Impact on Victim and Families

[5] While the complainant described her friendship with the defendant as "tight", I accept she had no romantic designs on him. By contrast, A.V. succumbed to his impulses and gratified himself by force in a manner that breached his trust to his victim and her family. The impact of his actions on the two families is tragic and on A.N. profound. While she has suffered emotional pain, it appears she has the resolve to move on, as indicated in her victim impact statement. She is now married and has a child.

[6] When leaving his victim following the assault, the accused asked A.N. to tell no one as it could ruin his child's life. How prescient. He later told the complainant's brother that, "I feel so ashamed. I feel like a dog". A.V. has diminished the lives of many, including his own. He is fortunate that his wife has chosen to stand by him.

Sentencing Framework

[7] The Crown in its discretion elected to proceed by summary conviction. The maximum sentence allowable for this summary offence is 18 months, which represents the prosecution's position at this sentencing hearing. Counsel for the accused submits that principles of proportionality and restraint should be applied within the available sentencing context. I agree with that submission.

[8] In addition, the Crown asks that I require the accused to serve consecutively 4 ½ months remaining on a conditional sentence for the charge of fraudulent and unauthorized use of a computer that was suspended upon his being charged with this offence and is now considered a breach in light of the conviction.

[9] The authorities are clear that for these offences of sexual violence that are so devastating in effect, principles of deterrence and denunciation are paramount and in relation to matters proceeded with by indictment, a penitentiary term may be warranted: R. v. H.H., [2002] O.J. No. 1509 (Ont. C.A.); R. v. Bradley, 2008 ONCA 179, [2008] O.J. No. 955 (Ont. C.A.).

Victim's Recovery

[10] A.N. has suffered depression, loss of sleep and for a time isolated herself, which led to her failing some of her university courses. Her family has provided much needed support. She is involved with her own immediate family, is employed and plans to start school again soon. She has shown strength of character and believes she will be "restored to [her] original self".

Offender's Circumstances

[11] A.V. is now 32 years old. He is steadily employed, often at two jobs and is the sole support of his family. In letters to the court, his friends emphasize his responsible and hard working nature, good values and devotion to family. His wife remains devoted to him and determined to work through the devastation he has wrought. In this, he is fortunate.

[12] I accept, as indicated in the presentence report, that the defendant feels shame and humiliation and that he had suicidal ideation as a result, diminished, it is to be hoped, by his commitment to his son. He must deal with the strain on his marriage and loss of his father's support.

[13] It appears from the letters and the defendant's otherwise responsible behaviour and commitment to family that he is capable of reforming and becoming once again a productive member of the community. But he must first be held accountable for the egregious violation of his victim and the harm he has caused.

Sentencing Decision

[14] I cannot speculate as to the reasons behind the Crown's election. It would, however, in my view be arbitrary were I to accede to the suggestion that I impose the maximum sentence in order to more closely align with dispositions for similar offences imposed in indictable cases.

[15] It is apparent that there was no planning here and that the sexual gratification taken by force in an otherwise close relationship was out of character. Although not a paramount consideration, the defendant is a good candidate for rehabilitation. To impose the maximum sentence in these circumstances would not reflect a principled approach.

[16] Taking into account the appropriate sentencing principles, with an emphasis on deterrence and denunciation, I would sentence A.V. to 11 months in custody. As well, taking account of totality principles and the fact that the accused has served the bulk of his previous conditional sentence order, I would, pursuant to Code s. 742.6(9)(c)(i) and (ii), suspend that order and direct that the defendant consecutively serve one month of the remnant. The conditional sentence is to resume on the offender's release from custody.

Probation and Conditions

[17] A.V. will also be placed on probation for 18 months on the following terms: keep the peace and be of good behaviour; report immediately and thereafter as required, take any counselling as may be recommended by probation services; possess no weapons as defined by the Criminal Code; have no contact directly or indirectly with A.N.; participate as directed in the Ministry of Community Safety and Correctional Services Sexual Offender Relapse Prevention Program; sign any releases that permits monitoring of the defendant's compliance with the terms of this order.

Ancillary Orders

[18] Finally, the following ancillary orders will be imposed: A sample of the defendant's DNA will be taken pursuant to Code s. 487.051(1); a weapons prohibition order pursuant to s. 110(1)(a) shall be imposed for 10 years; the defendant shall, pursuant to s. 490.012, be subject to an order under the Sex Offender Information Registration Act for 10 years.

Released: April 22, 2014

Signed: "Justice L. Feldman"