Court File and Parties

Court File No.: 11-10507 Central East Region-Newmarket Date: 2014-01-08 Ontario Court of Justice

Between: Her Majesty the Queen — and — W.B.

Before: Justice Peter C. West

Oral Submissions heard: November 22, 2013 Reasons for Sentence: January 8, 2014

Counsel:

• Ms. A. Barkin for the Crown
• Ms. E. Shaw for the accused

WEST J.:

Introduction

[1] On September 20, 2013, I found Mr. W.B. guilty of committing the offence of sexual assault in relation to Ms. J.W., contrary to s. 271 of the Criminal Code of Canada. The facts are fully set out in my reasons for judgment and I will only briefly set out those facts that I believe are important in determining an appropriate sentence.

[2] On October 14, 2010, Ms. J.W. had been renting a room from her boyfriend's best friend, W.B., for about two weeks. After an evening of consuming alcohol and, on Mr. W.B.'s evidence, also sharing an 8-ball of cocaine, Mr. W.B. and Ms. J.W. went to their separate rooms to sleep. It was Mr. W.B.'s evidence that he did not go to bed until 5 a.m. and slept until 6:30 a.m. when he got up to have a shower and get ready for work. For the purposes of sentencing I accept Mr. W.B.'s evidence respecting the events of the previous evening and the consumption of alcohol and cocaine.

[3] In my reasons convicting Mr. W.B., I found that he entered Ms. J.W.'s bedroom, got into her bed and put his hands on Ms. J.W.'s private area, her vagina. It was Ms. J.W.'s evidence that Mr. W.B. did not digitally penetrate her vagina. Ms. J.W. awoke, became upset and told Mr. W.B. to leave her bedroom, which he did. Later that same day Ms. J.W. sent Mr. W.B. an email asking him why he got into her bed naked and had his hands on her privates. Mr. W.B. sent her an email apologizing for his behaviour, indicating he had been under a great deal of stress and was lonely and hoped that someday she could forgive him.

[4] Ms. J.W. did not complain to the police concerning Mr. W.B.'s behaviour for approximately ten or eleven months after the incident when she came into contact with Mr. W.B. at a mutual friend's home. As a result, the Crown proceeded by indictment. Mr. W.B. was unrepresented when the initial trial date was set. Subsequently, Ms. Shaw was appointed under s. 486.3 of the Criminal Code as counsel to conduct the cross-examination of Ms. J.W.. After the first day of trial, the Crown indicated she intended to introduce a statement made by Mr. W.B. to the police for the purpose of cross-examining him if he testified. Ultimately, it was agreed by Mr. W.B. and the Crown that amicus should be appointed to assist the Court and Mr. W.B., given the legal issues that had arisen. Ms. Shaw was appointed to assist Mr. W.B. for the remainder of the trial and, as part of her appointment as amicus, she has assisted him on this sentencing hearing.

[5] The positions of counsel on sentence are very different. Ms. Barkin, for the Crown, is seeking a custodial sentence of 12-14 months and Ms. Shaw, on behalf of Mr. W.B., is submitting the appropriate sentence is a suspended sentence and probation.

[6] I was provided a Victim Impact Statement from Ms. J.W., which was filed as an exhibit on sentence. Ms. J.W. describes not feeling safe with other people and not being able to trust people as a result of Mr. W.B.'s conduct. She is seeing a counsellor to assist her in overcoming those feelings. She advises that she is unable to work as she is not able to focus properly. She also describes how she is still afraid of Mr. W.B.. Any sentence imposed by the Court will not change what Mr. W.B. did to Ms. J.W.. His conduct clearly invaded her sexual integrity and her feelings are understandable. It is my hope that, with the passage of time and the assistance of her counsellor, Ms. J.W. will regain her ability to trust and feel safe with others.

[7] A pre-sentence report was ordered and it was prepared by Jessica Thiesson, Probation and Parole Officer, dated November 20, 2013. The report was filed as an exhibit on sentence. The report is quite positive. Mr. W.B. has a close-knit supportive family. Both of Mr. W.B.'s parents, now deceased, were alcoholics. Mr. W.B. admitted during his evidence and to the probation officer that he was under the influence of both drugs and alcohol during the commission of the offence. He advised that he has abused alcohol and drugs (marijuana and cocaine) since he was a teenager. As a result of a referral by the probation officer, Mr. W.B. has completed the initial intake and assessment at Addictions Services of York Region and has commenced group counselling for substance abuse, both alcohol and drugs.

[8] In addition, Ms. Shaw provided nine letters of good character reference from family members, close friends and both current and past employers. All are extremely positive and reflect the shock of the authors when they discovered the conduct engaged in by Mr. W.B., as it is completely out of character. He is described as a kind, considerate, caring individual who enjoys a good relationship with his family members and friends. Mr. W.B. has considerable support in the community, as is evidenced from the letters provided. He is also described as a loving father to his three sons, who he raised on his own after he and his wife separated.

[9] Mr. W.B. had no criminal record at the time of the commission of this offence and is therefore a first time offender. Since being charged with sexual assault, Mr. W.B. was charged and pled guilty to a charge of Over 80 and received a fine of $1150.00. In my view, this is a further indication of Mr. W.B. having a drinking problem. A number of the letters from members of his family have expressed that a positive result of this incident for Mr. W.B. is that he has sought assistance for his substance abuse.

[10] Mr. W.B. recently lost his job with L[…] in March 2012 due to the downturn in the economy. This was a job he held for just over 20 years. Even though he was no longer employed with the company, the owner, Mr. A.A., advised that Mr. W.B. continues to be available to provide assistance when called upon. The sentencing materials provided indicate he currently works at two jobs. Since November 2012, he has held a full-time job with C[…] in Toronto as a machine operator and has recently been promoted to supervisor with this company. As this job is permanent night-shift, it enables him to work part-time during the day doing contracting and renovation work.

[11] Mr. W.B. surrendered himself to police when he was requested to come into the police station. This was over 10 months after the conduct arose. He was described by the arresting officer to the probation officer as being co-operative throughout the police investigation.

Sentencing Principles

[12] The purpose and principles of sentencing are set out in Section 718 of the Criminal Code. That section reads as follows:

The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[13] Section 718.1 of the Code requires that the sentence imposed be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 of the Code requires the court to consider the following:

1. any aggravating and mitigating circumstances relating to the offence and the offender;

2. sentences should be similar to those imposed in similar circumstances;

3. where consecutive sentences are imposed the total should not be unduly long or harsh; and

4. offenders should not be deprived of their liberty if less restrictive sanctions may be appropriate in the circumstances.

Analysis of Aggravating and Mitigating Factors

[14] An aggravating fact in this case is that Ms. J.W. was renting a room from Mr. W.B., which in my view created a position of trust, namely, that of a landlord and tenant. Mr. W.B. abused that position of trust and, pursuant to s. 718.2(a)(iii), this is an aggravating circumstance to be considered in imposing an appropriate sentence.

[15] It is important to consider the nature of the sexual assault when determining an appropriate sentence. Not to diminish the seriousness of the conduct in this case, but there is a distinction between a touching over clothing or under clothing with skin to skin contact. Further, there is a distinction between a touching of the vaginal area that involves digital penetration and one that does not. These are relevant considerations when assessing the seriousness of the sexual assault in imposing sentence.

[16] Many of the cases provided by Ms. Shaw provide support for a conditional sentence in similar circumstances to the case at bar. I have also done my own research and discovered a number of sentencing decisions, involving similar and more serious facts, which have resulted in conditional sentences for a first offender. However, given the Crown's election by indictment, a conditional sentence under s. 742.1 of the Criminal Code is unavailable.

[17] It is my view that an appropriate sentence for the conduct engaged in by Mr. W.B. would have been a conditional sentence of six months (See R. v. P.R., [2013] O.J. No. 1330 (Ont. Sup. Ct., Durno J.)) had the Crown proceeded by summary conviction; however, as I have discussed above, Ms. J.W. did not complain to the police about Mr. W.B.'s conduct for approximately 10 months. The Crown was required to proceed by indictment unless counsel waived the statutory limitation period and consented to the Crown proceeding summarily. Unfortunately, Mr. W.B. was not represented by counsel and this issue was never addressed.

[18] The primary sentencing principles to be addressed in a case of sexual assault are deterrence and denunciation. As well, I am aware that because Mr. W.B. has no prior criminal record I should be guided by the Ontario Court of Appeal decisions in R. v. Stein, 15 C.C.C. (2d) 376, where at p. 377, Martin J.A. made it clear that, in the case of a first offender, a court should consider all other dispositions before imposing a custodial sentence and in R. v. Bates, 32 C.C.C. (2d) 493 the court stressed that, before imposing a sentence of imprisonment upon a first offender, the trial judge should have either a pre-sentence report or some very clear statement with respect to the accused's background and circumstances (See p. 494). I have received a pre-sentence report as well as numerous character letters obtained and filed by Ms. Shaw.

[19] It was Ms. Shaw's position that Mr. W.B. should receive a non-custodial sentence of probation, with conditions to continue substance abuse counselling. I am not persuaded, however, that a suspended sentence would be consistent with the purposes and principles of sentencing, set out above, having regard to the aggravating facts in this case. I am of the view that a sentence of incarceration is necessary having regard to the circumstances surrounding the sexual assault behaviour. None of the cases provided by the Crown provide support for a sentence of 12 to 14 months in jail in the circumstances of this case. There was no digital penetration alleged by Ms. J.W.. When she told Mr. W.B. to stop and get out of her bed he did so immediately. The conduct alleged was of a short duration and occurred on only one occasion. I found that Mr. W.B. was under the influence of alcohol and drugs at the time of the commission of the offence and I further find that he acted on impulse. I am mindful of the Ontario Court of Appeal's comments concerning the determination of an appropriate sentence in R. v. Willaert, 105 C.C.C. 172, where the Court reduced a jail sentence of life imprisonment to five years in respect of a first offender, convicted after trial, of the rape of an eight year old girl. In that case, the Court held:

…in measuring sentence, every circumstance should be taken into consideration, and in the exercise of judicial discretion regard should be had to: the age of the prisoner; his past and present condition of life; the nature of the crime; whether the prisoner previously had a good character; whether it is a first offence; whether he has a family dependent upon him; the temptation; whether the crime was deliberate or committed on momentary impulse; the penalty provided by the Code or statute… (para. 9)

[20] The case of R. v. P.R., supra, is very similar on its facts to the case at bar. The facts briefly were that the appellant was a real estate agent and the complainant was his office manager. They met at a Starbuck's to discuss a rental of a condo and then went to look at the condo where the appellant grabbed the complainant, kissed her on the mouth, forcing his tongue down her throat and at the same time putting his hand in the complainant's vaginal area on top of her clothes. The next day there was an exchange of texts and phone calls between the appellant and complainant, who had advised she was quitting her job. One of the appellant's texts said, "OK - I am truly sorry for what I said and did - promise won't ever happen again!! Plse come back to work - we have so much to do & help each other." The trial judge imposed a 60 day intermittent sentence and probation. On appeal this was varied to a six month conditional sentence by Durno J.

[21] There was reference in the pre-sentence report that Mr. W.B. did not express any remorse for his conduct as he continued to deny any wrong doing on his part. As I indicated during submissions, it is my opinion that these comments by the probation officer are unfortunate and mistaken given that Mr. W.B. is entitled to maintain this position. The fact that he has not expressed any remorse is not an aggravating circumstance; rather, it reflects the absence of a mitigating factor. The same applies to the fact that Mr. W.B. did not plead guilty to the offence; again this only reflects the absence of a potentially mitigating factor. Finally, it is not an aggravating factor that I did not accept Mr. W.B.'s explanation for how he came to be in Ms. J.W.'s bedroom and what he testified happened. (See R. v. Kozy, 74 O.R. (2d) 545).

[22] Mr. W.B. apologized for his conduct on the same day it occurred and the following day when he agreed to care for Ms. J.W.'s cats. As a result of my finding of guilt, Mr. W.B. has commenced assessment and counselling for his substance abuse issues. The pre-sentence report is quite positive and it is clear that Mr. W.B. will be amenable to cooperating with any probationary conditions imposed.

[23] In my view, having regard to the mitigating and aggravating circumstances I have referred to, a 60 day intermittent jail sentence is the appropriate sentence. Mr. W.B. is a first offender who is gainfully employed and providing support for his children. There will also be a period of probation for 18 months.

Sentence

[24] Mr. W.B. you will therefore be imprisoned for a term of 60 days intermittent. You will be taken to the jail today and be released after processing, and you are to return on January 10, 2014 and each consecutive Friday thereafter, on or before 8 p.m. and be released on or about 5 a.m. the following Monday thereafter, until the sentence is fully served according to law.

[25] The period of probation commences today and you will abide by the statutory terms set out in s. 732.1(2) of the Criminal Code, namely:

(i) Keep the peace and be of good behaviour

(ii) Appear before the court when required to do so by the court;

(iii) Notify the court or the probation officer in advance of any change of name or address; and

(iv) Promptly notify the court or probation officer of any change of employment or occupation.

[26] You will also abide by the following additional conditions:

(a) Upon your release from custody, you will report to probation and thereafter as required;

(b) Appear at the jail on time and in a sober condition without having any alcohol or non-prescription drugs on your person or in your system;

(c) Attend for such assessment and counselling for substance abuse as the probation officer may direct and not stop such counselling without the permission of your probation officer;

(d) Execute a release of medical, psychiatric or other confidential information to your doctor/counsellor in favour of your probation officer so that they can discuss your progress;

(e) Not to associate or communicate with J.W., directly or indirectly;

(f) Not to attend within 100 metres of the place of residence, employment or education of J.W.;

(g) Not to possess any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, according to law; and

(h) Not to possess any weapons as defined by the Criminal Code.

[27] In addition, there will be a mandatory weapons prohibition order, pursuant to s. 109(1)(a) of the Criminal Code, prohibiting you from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for life.

[28] Further, I am ordering the taking of samples of bodily substances from you that are reasonably required for the purpose of forensic DNA analysis, pursuant to s. 487.051(3).

[29] Further, you will register pursuant to s. 490.012(1) of the Criminal Code under the Sex Offender Information Registration Act. This registration will be for a period of 20 years as a result of the Crown proceeding by indictment.

Released: January 8, 2014

Signed: Justice Peter C. West