WARNING

An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4 (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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of: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).

486.4 (2) 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.

486.4 (3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

486.4 (4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

486.6 (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.

486.6 (2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court Information

Court File No.: 13-000832

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

D.W.

Before: Justice Robert S. Gee

Trial heard: September 15, 2014

Reasons for Sentence released: February 26, 2015

Counsel:

• C. Good for the Crown
• D. Henderson for the Accused

Introduction

[1] On September 25, 2014 D.W. was convicted of sexual assault, forcible confinement and choking. He pled not guilty to these charges and his trial was heard on September 15, 2014. The victim in relation to these offences was his then 16 year old cousin, A.W. D.W. is here today for sentencing.

[2] The facts as found at trial can be briefly stated as follows. On April 21, 2013 D.W. began drinking at the home he shared with his common-law spouse, C.D. At some point in the evening he went to the home A.W. shared with her step-father and her mother. D.W. continued drinking there with A.W.'s step-father and two others, S.B. and B.H. A.W.'s mother was not there as she was hospitalized at the time.

[3] The men continued drinking until they decided to go to a local bar. A.W., who had not been drinking, stayed home. Sometime later, D.W. returned to A.W.'s home by himself, highly intoxicated.

[4] While alone with A.W., he attacked her. The attack began in the kitchen. At some point he picked her up and put her over his shoulder and tried carrying her upstairs. A.W., to her credit, fought back. While being carried she grabbed onto a door frame and a piece of heavy furniture to try to stop him. While on the stairs, they fell. At this point the struggle continued and D.W. put his hands around A.W.'s throat. She was able to get away and ran down the stairs. D.W. chased and caught her and they ended up on a couch in the hallway. At this point D.W. wrapped an arm around A.W.'s throat causing her difficulties breathing, and while doing so he rubbed her vagina, over her clothing for a few seconds.

[5] Eventually A.W. was able to get free. When she did, she grabbed a beer bottle and threatened to use it on D.W. The attack ended at about the same time S.B. returned to the residence. D.W. fled but was apprehended shortly thereafter.

[6] As a result of the attack, A.W. suffered redness to her neck, a small abrasion on her lip and bruising to both arms, both legs and a large bruise on her right side, just above her waist.

Current Circumstances of D.W.

[7] D.W. is 29 years old and is in a long-term relationship with C.D. Together they have a four-year-old son and a second child, born very recently. They are also raising C.D.'s seven-year-old daughter from a previous relationship. Both D.W. and C.D. describe each other in positive terms and both characterize their relationship as strong and positive.

[8] Notwithstanding his formal education ended with grade nine, D.W. appears to have been able to maintain steady employment. He has at times been employed as a labourer in factories, a tow motor operator, a renovator and floor installer, and is currently employed as a fork lift driver. He is described by his father as an intelligent, hardworking family man.

[9] However, that is not to say his employment history and personal relationships have not been affected by what appears to be the most significant negative issue in his life, that being a longstanding history of alcohol and drug abuse.

[10] He first experimented with alcohol at 12 and by 16 was drinking on a regular basis. Up until his arrest on these charges, he reported drinking six to eight 18-ounce cans of beer every day and more on weekends.

[11] He, as well, first started smoking marijuana at age 12 and by 14 had moved on to harder substances. Again, by the time he was charged with these offence he reported smoking marijuana daily and consuming cocaine approximately twice per week.

[12] As noted, these substance abuse issues have not been without consequence. D.W. has been fired from jobs in the past as a result of these issues, and his substance abuse issues apparently figured prominently in his only other foray into the criminal justice system as an adult. On May 9, 2008 he was convicted of assault cause bodily harm. This conviction was on a former domestic partner, and D.W. was sentenced to 45 days jail on top of 43 days of pre-sentence custody at a time when pre-sentence custody was routinely granted on a two-day-for-one basis. The custodial portion of this sentence was followed by a probation term of two years.

[13] Notwithstanding this prior conviction, the sentence that flowed therefrom and the recognition at the time by D.W. that his substance abuse was a significant factor that led him to that point, it did not result in him addressing his addictions. However, to his credit he reports that since being charged with the current offences he has abstained from the consumption of drugs and alcohol, and has been seeing a counsellor since August 2014.

Impact of Offences on A.W.

[14] These current offences have also had a significant and ongoing impact on the victim, A.W. She states she thinks about the offences nearly daily and suffers recurring flashbacks. She expected D.W. to be a role model for her but she now has a changed outlook on life. She feels no one is as they appear and she no longer trusts people. She now has to keep people at a distance from her physically, and she feels anxious and claustrophobic when they invade her personal space. As noted, she suffered multiple bruises and abrasions from the attack.

Position of the Parties

[15] The position of the Crown is that the appropriate sentence is custody in the range of two years less a day, to three years. Ancillary orders sought by the Crown are a DNA order, sex offender registry order for 20 years, a s.109 order, and a two-year term of probation if not precluded by the length of the custodial portion of the sentence. The Crown submitted two cases to me to support its position; R. v. Oshodin [2010] O.J. No. 5888, and R. v. McDonnell, [1997] 1 S.C.R. 948.

[16] The Crown submits a sentence in this range is appropriate as the result of a variety of factors.

[17] First, the offences were particularly violent. Even though the sexual assault aspect of the offences might, in isolation, be described as being on the lower end of the spectrum for this type of offence, this was not the result of any particular design on the part of D.W., but only because A.W. resisted so fiercely.

[18] Second, the Crown argues the offences were a breach of trust. D.W. and A.W. are family; she is his cousin and she was only 16 at the time. As well, they shared a close relationship prior to this. A.W. babysat D.W.'s and C.D.'s children and they had discussed having her move in with them.

[19] The Crown also points out that D.W. has a prior conviction for a violent offence in which alcohol played a factor and for which he received a significant jail sentence. As well, D.W., as is his right, had a trial which necessitated A.W. testifying. Although not an aggravating factor, it does disentitle him to any mitigation of his sentence that would have flowed from a guilty plea.

[20] However the Crown does recognize favourable aspects to D.W. and his circumstances. He has taken positive steps to address his substance abuse issues; he has a consistent employment history, is in a stable, long term supportive relationship with C.D. and continues to have the support of his parents.

[21] D.W. submits that a sentence of a significantly shorter duration is appropriate in the circumstances for several reasons.

[22] In response to the Crown submission that the sexual assault aspect would have been much more serious but for A.W.'s level of resistance, the defence emphasizes I must sentence D.W. for what he did, not what he might have done if circumstances were different.

[23] As well, the defence contends that the role alcohol played in the commission of the offences cannot be underestimated and D.W. has taken significant steps to address this issue. Additionally, he continues to benefit from the support of his family, has maintained his employment and supports his family while C.D. is on maternity leave. Furthermore he does not have a lengthy criminal record with just the one prior adult conviction which came approximately five years before this offence.

[24] The defence has also suggested D.W. be given significant credit towards his sentence to reflect strict bail conditions he has been subject to for the past 22 months. The defence points out that while on bail, D.W. was required to live with his step-father who was his surety, and was subject to house arrest for the duration of the bail term. The defence has suggested that I ought to consider this 22 months of restrictive bail as the equivalent to 6 months jail.

[25] With these factors in mind, the defence contended I ought to take a "creative" approach to D.W.'s sentence.

[26] It was initially suggested I sentence D.W. to a conditional sentence for the forcible confinement charge and adjourn sentencing on the remaining charges. Once the conditional sentence ended, I would then sentence him on the two remaining charges to concurrent sentences of 90 days to be served intermittently.

[27] When it was pointed out that s. 742.1(c) and (f) specifically precludes the imposition of a conditional sentence for any of the offences D.W. was convicted of, it was suggested instead of a conditional sentence on the forcible confinement I sentence him to a 90 day intermittent sentence and again adjourn sentencing on the other offences and deal with them later in the same manner as suggested earlier.

[28] Lastly, it was suggested if I did not think two sentences of 90 days intermittent were sufficient then I should sentence him to three separate 90 day intermittent sentences and achieve this by adjourning sentencing on whatever charge or charges remained until the previous 90 day intermittent sentence had expired, thereby achieving a sentence totalling 9 months but effectively served in its entirety on an intermittent basis.

Applicable Sentencing Principles

[29] The fundamental purpose of sentencing, as set out in s. 718 of the Criminal Code, is to contribute to respect for law and the maintenance of a just, peaceful and safe society. This is achieved by the imposition of just sanctions that reflect one or more of the traditional sentencing objectives such as; denunciation, specific and general deterrence, separating offenders from society where necessary, rehabilitation of offenders, reparation to victims and to the promotion of a sense of responsibility in offenders, and acknowledgment of harm done to victims and to the community.

[30] In balancing these objectives the fundamental principle of sentencing is that the sentence must be proportionate to both the gravity of the offence and the degree of responsibility of the offender.

[31] A proportionate sentence is one which will best achieve the fundamental purpose of sentencing. It does this in two ways. First, a proportionate sentence is one that will reflect the gravity of the offence which is closely tied to the objective of denunciation. As well, it promotes justice for victims and ensures public confidence in the justice system. Second, proportionality balances this by ensuring that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. See: R. v. Ipeelee 2012 SCC 13, [2012] 1 S.C.R 433, paragraphs 34 to 39.

[32] In addition to these general principles applicable to all sentences there are other sentencing factors that must be adhered to by the nature of this case. First s. 718.01 of the Code specifically requires me to give primary consideration to the objectives of denunciation and deterrence in cases, such as this, where the offence involved the abuse of a person under the age of 18 years.

[33] Second, in addition to the other principles enumerated, s. 718.2(a)(ii.1) and (iii) of the Code requires me to treat as aggravating factors that the victim here was under 18 and that D.W. abused a position of trust in the commission of the offences.

[34] One further provision that requires mentioning is s. 720(1) of the Code which directs me to conduct sentencing proceedings as soon as practicable after an offender has been found guilty.

Analysis

[35] In applying these principles to the case at hand, I find it would not be appropriate for me to approach D.W.'s sentencing in the "creative" manner suggested on his behalf as it would violate a number of the earlier mentioned sentencing principles and sections of the Criminal Code.

[36] To accede to the defence request and delay sentencing on remaining charges while D.W. completes intermittent sentences on others, would violate the provision in s. 720(1) that requires sentences to be imposed as soon as practicable after the finding of guilt.

[37] In terms of the offences themselves, the defence is correct that I must sentence D.W. for what he was actually found guilty and not what he may have done if circumstances were different. In isolation, the sexual assault aspect of the encounter was a brief rubbing of A.W.'s vagina over her clothing. However this aspect of the incident cannot be viewed distinct from the context in which it occurred.

[38] This was a particularly violent attack that had sexual overtones to it beyond the brief rubbing of A.W.'s vagina. D.W. tried to carry her upstairs where he knew the bedrooms were located. When he was unable to because of her resistance he pinned her on a couch, choked her and while doing so took that opportunity to rub her vagina. It would be an error for me to treat this as a simple two second rubbing over clothing.

[39] Furthermore, the three offences for which he has been found guilty all occurred during the same incident. Generally speaking, although he would receive separate sentences for each offence, those sentences in these circumstances should run concurrently.

[40] To give him separate sentences to be served at separate times would violate this principle.

[41] As well, as noted earlier, any sentence I impose ought to promote public confidence in the justice system. To approach the sentencing as suggested by the defence would violate this principle.

[42] Intermittent sentences, are precluded for any sentence in excess of 90 days. The offences for which D.W. was convicted and the circumstances under which they were committed cry out for a sentence significantly in excess of 90 days. To twist sentencing principles and the sentencing provisions of the Code in order to give D.W. what would in reality be a six or nine month intermittent sentence when I am precluded from doing so directly, would not promote public confidence in the justice system.

[43] Turning to the defence request for six months' credit for D.W.'s strict bail conditions, I would note the defence is correct in that restrictive bail conditions are a factor that I must take into account in arriving at an appropriate sentence. In regard to how I ought to factor this into the equation, I am mindful of the guidance provided by the Court of Appeal in R. v. Downes, [2006] O.J. No. 555 and specifically paragraph 37 therein.

[44] In keeping those factors mentioned in Downes (supra) in mind, I decline to credit D.W. six months off his sentence as a result of his bail conditions. I have however kept this factor in mind when I balanced all of the competing factors in this case to arrive at what I found to be the appropriate sentence.

[45] There are a variety of reasons why I decline to credit D.W. the six months' credit he seeks. As was stated in Downes, there is no precise formula required to be applied in taking bail conditions into account and even if there were, in the circumstances of this case, six months would be too much.

[46] In terms of the length of time D.W. has been on bail, he was arrested on April 21, 2013 and released on April 26, 2013. In addition to standard terms prohibiting contact with A.W., limiting access to persons under 18 and prohibiting him from having weapons or alcohol, the bail conditions said to be particularly restrictive were the ones that required him to live with his surety and be subject to house arrest. Exceptions to the house arrest term allowed him to be out of his residence for employment and court purposes, meetings with counsel, medical emergencies and any other time while accompanied by his surety.

[47] D.W.'s bail was varied on consent on July 17, 2013. This variation relaxed, somewhat, the conditions that limited his ability to have access to his own children, and as well provided a further exception to the house arrest term, permitting him to be out of the house to receive counselling.

[48] The trial of this matter took place September 15, 2014 and judgment was given on September 25, 2014. After findings of guilt were made sentencing was adjourned for the preparation of a pre-sentence report to December 11, 2014. At that time the defence requested a further adjournment to January 27, 2015. Sentencing submissions were made that day and the matter was adjourned to today's date for sentence.

[49] The evidence in this matter took about a half day to hear, and with submissions the trial in its entirety, took approximately three-quarters of a day. Why it took a matter that was relatively straightforward and required less than a day of court time, approximately 17 months to get to trial was never explained. Since the findings of guilt were made the matter has proceeded rather expeditiously with the only significant period of delay coming at the request of the defence.

[50] From start to finish this matter will have taken approximately 22 months. Why it took that long for such a straightforward case as stated earlier was never explained. I would note as well that there was no application pursuant to s. 11(b) of the Charter brought by the defence. With that in mind and without any other explanations, I can only presume that the parties were content with the pace at which this matter proceeded.

[51] Notwithstanding the house arrest term as is often said, bail is not jail. Even with house arrest as it was in this case D.W. was in the community, able to access and interact with his family, was out of custody for the birth of his most recent child and he was able to maintain his employment. In addition, he was able to seek out and attend counselling, which likely would not have been available to him if in custody, and which I would note he is now, rightfully so, claiming as a mitigating factor on his sentence.

[52] I would further note there was no evidence that at any other time D.W. sought any further variations to his bail to which the Crown would not consent, or that he ever brought an application for bail review if the terms of his release were causing him excessive prejudice as a result of the length of time the matter was taking.

[53] It is for these reasons that giving D.W. credit of six months towards his sentence for his bail conditions is not justified. However, like I stated earlier, I recognize he was subject to these terms and I can presume he suffered some level of prejudice from them, and I have kept that factor in mind in determining what I find to be the appropriate sentence.

[54] Turning to the sentence suggested by the Crown, I find that it too is not appropriate in the circumstances. The Crown sought a jail sentence of two years less a day to three years in the penitentiary.

[55] A sentence such as that I find would place too much emphasis on the seriousness of the offences, the principle of denunciation and the breach of trust involved. Although these principles are very important and play a prominent if not primary role in the sentencing matrix, I find the suggested sentence would not give enough credit to the mitigating aspects present, such as D.W.'s continued support of his spouse and family, his employment history, the fact he has only one prior entry on his adult record, and the rehabilitative steps he has taken since the offence to curb his substance abuse issues.

Conclusion

[56] In balancing all the factors, what I find to be a proper sentence in this matter that will reflect all the foregoing principles is one of 12 months custody. A sentence of this length will place the offences in their proper context, provide the requisite level of denunciation and reflect a consideration for the age of A.W. and the breach of trust that took place. However it also accounts for the positive aspects to D.W., that being his supportive spouse and family, his hardworking nature, the bail conditions he has been subject to, and his insight into what brought him to where he is today and the steps he has taken to address those issues.

[57] The 12 months custody will be on each charge to be served concurrently. D.W. spent six days in custody prior to his release on bail and is entitled to credit for this time at the rate of 1.5 days to one for a credit of nine days. This leaves him a further 11 months 21 days of custody to serve. This will be followed by a period of probation for two years. The terms of probation are that he is to report within two working days of his release from custody and thereafter as required. He will have no contact in any manner with A.W., and will not attend within 100 metres of any place known to him to be her residence, employment, business, schooling, education, and training or anyplace he knows her to be, except in both cases with her written revocable consent filed in advance with his assigned probation officer.

[58] He shall not possess any item that can be defined as a weapon pursuant to the Criminal Code. He shall attend and actively participate in any counselling or rehabilitative programs as required of him by the probation officer including counselling for substance abuse, alcohol abuse and sexually offending behaviour. As well, he shall sign any release of information forms to enable his probation officer to monitor his attendance and completion of those programs.

[59] D.W. will also be required to provide a sample of his DNA for inclusion in the DNA databank. There will be a s. 109 order for life and on the sexual assault conviction, an order requiring him to comply with the provisions of the Sex Offender Registry for 20 years.

[60] Lastly, since the offences herein pre-date the changes to the Criminal Code that limited my discretion in this regard, I will waive all surcharges otherwise payable as I find given the period of custody it would cause an undue hardship to D.W. and his dependants if he were ordered to pay them.

Dated at Brantford, Ontario

This 26th day of February, 2015

The Honourable Mr. Justice R.S. Gee