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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Ontario Court of Justice

Date: September 22, 2015

Court File No.: Cayuga 2011-156

Between:

Her Majesty the Queen

— and —

Mark Habinski

Before: Justice D.A. Harris

Heard on: March 22, 2013, February 26, 2014, March 24, 2014, August 27, 2014, September 24, 2014 and July 9, 2015

Reasons for Judgment released: September 22, 2015

Counsel:

• Greg Smith, David King, Chelsey Lapointe — counsel for the Crown
• Robert Yanch — counsel for the defendant Mark Habinski

HARRIS D.A. J.:

Introduction

[1] Following trial, I found Mark Habinski guilty of sexual assault and sexual interference with respect to KH. At the request of Crown counsel, I entered a conviction with respect to the sexual interference charge and entered a conditional stay with respect to the sexual assault.

[2] Crown counsel had elected to proceed by indictment.

[3] Mr. Habinski is before me today to be sentenced.

[4] Crown counsel suggested that I should sentence him to imprisonment for between four and six months.

[5] Counsel for Mr. Habinski suggested that I impose a sentence of imprisonment for 45 days.

[6] Both counsel agreed that I should also place him on probation and make the following ancillary orders:

1. a DNA order;
2. an order compelling Mr. Habinski to comply with the Sex Offender Information Registration Act for 20 years;
3. an order pursuant to s. 161 of the Criminal Code, limiting Mr. Habinski's access to children under the age of 16 years; and
4. a firearms prohibition order pursuant to s. 109 of the Criminal Code.

[7] I find that a sentence of imprisonment for 60 days followed by probation for three years is the appropriate sentence here.

[8] My reasons for this are as follows.

Fundamental Purpose and Principles of Sentencing

[9] The fundamental purpose of sentencing as expressed in section 718 is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation; deterring the offender and other persons from committing offences; separating offenders from society, where necessary; assisting in rehabilitating offenders; providing reparation for harm done to victims or to the community; and promoting a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[10] The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender.

[11] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence.

[12] Doherty J.A. of the Ontario Court of Appeal stated in R. v. Hamilton that:

The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence.

[13] He went on to state that:

The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime.

[14] He then quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v. Priest:

The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.

[15] On this point, Doherty J.A. concluded by stating that:

Fixing a sentence that is consistent with s. 718.1 is particularly difficult where the gravity of the offence points strongly in one sentencing direction and the culpability of the individual offender points strongly in a very different sentencing direction. The sentencing judge must fashion a disposition from among the limited options available which take both sides of the proportionality inquiry into account.

[16] Proportionality is the fundamental principle of sentencing, but it is not the only principle to be considered.

[17] I must specifically consider section 718.2(d) which provides that "an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances".

[18] I must also consider the impact of section 718.2(e) which provides that "... all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders."

[19] The Supreme Court of Canada discussed the application of this section in Gladue v. The Queen and said that section 718.2(e) applies to all offenders, and that imprisonment should be the penal sanction of last resort. Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offence and the offender.

[20] The Supreme Court also noted that section 718 now requires a sentencing judge to consider more than the long-standing principles of denunciation, deterrence and rehabilitation. Now a sentencing judge must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender. As a general matter restorative justice involves some form of restitution and reintegration into the community.

[21] Section 718.01 provides that in cases involving the abuse of a person under the age of 18 years, the primary considerations on sentencing are denunciation and deterrence.

[22] Section 718.2(a) provides further that the fact that an offender, in committing the offence, abused a person under the age of 18 years is an aggravating circumstance on sentencing and that a sentence should be increased to account for that.

[23] That section also provides that it is an aggravating feature if the offender, in committing the offence, abused a position of trust or authority towards a victim.

[24] In this case, there was a mandatory minimum sentence of imprisonment for 45 days for the offence committed by Mr. Habinski at the time that he committed that offence. The maximum sentence was imprisonment for 10 years.

[25] I must, however, also consider the fact that Parliament has since amended the Criminal Code such that the mandatory minimum sentence is now imprisonment for one year. I am satisfied that I should view this amendment as a reflection of Parliament's intention that such offences should be treated more seriously than they were before. The maximum sentence remains as it was.

[26] Andre J. certainly accepted that argument in R. v. Wasiluk, stating that:

In my view, a statutory increased penalty is a legislative signal that the sentencing paradigm has shifted towards a regime of tougher sentences than that which previously existed.

[27] Before I can apply the applicable principles of sentencing, however, I must look at the facts underlying the offence here, the impact that it had on its victim, and the background of Mr. Habinski.

The Offence

[28] Mr. Habinski employed KH, along with FT, to cut his lawn and clean his house. Both girls were 15 years old. KH had known Mr. Habinski for 2 years prior to this.

[29] The events leading up to the offence began with both girls going to Mr. Habinski's house for this purpose. Mr. Habinski returned home before they were finished. He brought them alcohol to drink. He had done this before.

[30] On this occasion both girls consumed alcohol to the point of intoxication. They began "making out" with each other on a couch in the living room. When they realized that Mr. Habinski was watching them, they moved to a bedroom, shut the door and resumed "making out".

[31] Mr. Habinski entered the room, and got next to KH. He touched her breasts, then placed his hands on her thighs, then pulled her sweat pants and panties down before touching the lips of her vagina.

[32] She told him not to do that, and pulled her pants up quickly. He apologized and left the room.

[33] FT suggested that Mr. Habinski had touched KH's vagina with his mouth. However, I was not satisfied that he had actually made contact with her orally. KH certainly did not suggest this.

Victim Impact

[34] In her evidence, KH made it clear that she had been emotionally traumatized by this offence. She had her emotional problems before then but the offence made things worse for her. She dropped out of high school due to her inability to concentrate and she has trust issues with men. In addition, these events led to a breakdown of the friendship with FT.

[35] She is not fearful of Mr. Habinski.

Background of Mr. Habinski

[36] I have had the benefit of a Pre-Sentence Report and other material provided on behalf of Mr. Habinski. Those sources have provided me with the following information.

[37] He is now 52 years old.

[38] He described his childhood as being uneventful, although he was an adopted child and never met his biological parents.

[39] He left home at the age of 17 to work and lived independently thereafter.

[40] He married and he and his wife had a son, now 26. They separated when the boy was 11 years old. Mr. Habinski continues to have a good relationship with both his son and his ex-wife.

[41] He entered another relationship that lasted 13 years.

[42] He was in another relationship for approximately five months at the time that he was arrested. This partner left him when she learned of the charges.

[43] He and his current partner have been together for approximately two years.

[44] He was employed as a truck driver from the age of 19. However in June 2014, he rolled a dump truck, sustaining injuries that have kept him from working since. He is currently pursuing a WSIB claim with respect to this.

[45] His injuries were complicated when he recently fell down stairs and injured some ribs.

[46] He currently takes pain killers and he walks with a cane.

[47] He has a criminal record dating from 1980 to 2008. This includes convictions for theft under $200, assault x 2, drive "over 80" x 2, fail to comply with recognizance and production of marihuana. He was never sent to jail for any of these offences.

Analysis

[48] Mr. Habinski committed a serious offence.

[49] KH was a teenager who was working for him. He should have been protecting her and not taking advantage of her.

[50] Instead he provided her with intoxicants that she would not have been able to obtain legally herself.

[51] I do not believe he did so with any intentions of taking advantage of her intoxication. However, when she did become intoxicated to the point where her inhibitions were sufficiently reduced so that she was "making out" with her female friend, Mr. Habinski chose to take advantage of this and join in.

[52] That was reprehensible of him.

[53] I do note that his actions continued only briefly. He stopped immediately when she told him to. He apologized and left the room.

[54] However, I surmise that had the alcohol influenced her to the point where she did not speak out, he would have continued despite the fact that she was doubly incapable of consenting to this as a result of both her age and her intoxication.

[55] Denunciation and deterrence, both general and specific, are the primary principles of sentence to be considered here.

[56] Mr. Habinski is not entitled to any mitigation flowing from any signs of remorse. There are none here.

[57] The facts of this offence do not suggest that he is a continuing risk to reoffend.

[58] I note that his reputation in his community has been destroyed.

[59] His partner at the time terminated their relationship when he was charged.

[60] The other members of his family continue to support him however.

[61] He used to coach high school football. He will not be allowed to do this again.

[62] He has sustained serious injuries which will make it more difficult for him to spend any period of time in jail.

[63] I note and agree with the comments of Wilkie J. in R. v. Stoutley, that:

Jail is always the last resort, and where it is imposed as here, principally, to satisfy the need for general deterrence and denunciation, its impact, in my view, comes in large measure from the fact of meaningful incarceration, rather than the precise length.

[64] I also note that this will be the first time that Mr. Habinski will be imprisoned.

Sentence

[65] For the above reasons, I sentence Mr. Habinski to imprisonment for 60 days.

[66] That will be followed by probation for three years.

[67] The terms of the probation will require that Mr. Habinski:

1. keep the peace and be of good behaviour;

2. appear before the court when required to do so by the court;

3. notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation;

4. report in person to a probation officer within two working days of his release and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in his supervision;

5. cooperate with his probation officer. He must sign any releases necessary to permit the probation officer to monitor his compliance and he must provide proof of compliance with any condition of this order to his probation officer on request;

6. not contact or communicate in any way, either directly or indirectly, by any physical, electronic, or other means, with K.H. or F.T.;

7. do not be within 20 metres of any place where he knows them to live, work, go to school, frequent, or any place he knows them to be;

8. attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer;

9. not seek, obtain or continue any employment, whether or not the employment is remunerated, or become or be a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years.

[68] I also make the following four ancillary orders.

[69] This is a primary designated offence and I make an order pursuant to s. 487.051 of the Criminal Code, authorizing the taking from Mr. Habinski of any number of samples of one or more bodily substances, including blood, that are reasonably required for the purpose of forensic DNA analysis.

[70] This is also a designated offence pursuant to section 490.011 of the Criminal Code. Accordingly, I make an order pursuant to s. 490.012 of the Criminal Code, that Mr. Habinski comply with the provisions of the Sex Offender Information Registration Act for a period of 20 years.

[71] I am not satisfied that the provisions of s. 161 of the Criminal Code are applicable here except as follows. I am making an order pursuant to that section prohibiting Mr. Habinski for the next 10 years from (b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years.

[72] Finally, pursuant to section 109 of the Criminal Code, for the next ten years Mr. Habinski is prohibited from owning, possessing, or carrying any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance.

[73] Mr. Habinski will have 90 days following his release to pay the victim fine surcharge, calculated at the old rate which was in effect at the time that he committed his offence.

Released: September 22, 2015

Signed: "Justice D.A. Harris"

Footnotes

[1] R. v. Hamilton; R. v. Lyons; R. v. Morrisey, 2000 SCC 39.

[2] Criminal Code, section 718.1.

[3] Gladue v. The Queen; see also R. v. Proulx.

[4] Gladue, supra; see also R. v. Proulx.

[5] Gladue, supra; R. v. Proulx.

[6] Then of the Ontario Court of Justice, now the Ontario Superior Court of Justice.

[7] R. v. Wasiluk, [2005] O.J. No. 4148 (Ont. C.J.) per Andre J. See also decisions in R. v. Oladapo [2013] O.J. No. 1403, R. v. Vandyk [2014] O.J. No. 1601, R. v. Mayers [2014] O.J. No. 1598, and R. v. Lwamba [2012] O.J. No. 1964 (Ont. C.J.).

[8] R. v. Stoutley, [2002] O.J. No. 5967 (Ont. C.J.) per Wilkie J.