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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: October 26, 2015

Court File No.: Halton 14-1939

Between:

Her Majesty the Queen

— AND —

S.H.

Before: Justice Lesley M. Baldwin

Heard on: June 10, 2015 and October 8, 2015

Reasons for Sentence released on: October 26, 2015

Counsel:

Lorna Muller and Arish Khoorshed — counsel for the Crown

David Hayward — counsel for the defendant S.H.

BALDWIN J.:

[1] Guilty Plea

[1] On June 10, 2015, the offender pled guilty to sexually assaulting J.B. on July 3, 2014, in Burlington.

[2] Sentencing submissions were completed on October 8, 2015, and reserved for release today.

Background

[3] The complainant was 21 years of age at the time of the offence. The offender was 22.

[4] They met each other when they were students at R.B. High School in Burlington. They were both attending a program for developmentally delayed students.

[5] The complainant suffers from depression and anxiety issues. She has been diagnosed with ADHD and possible Fetal Alcohol Spectrum Disorder.

[6] The offender was born prematurely and has Cerebral Palsy. During his formative years he endured a number of surgeries and was required to wear braces. He currently wears a brace on his left leg. He also suffers from nerve damage and scoliosis.

[7] Since childhood, the offender has been diagnosed with Attention Deficit Disorder as well as an auditory processing disorder that inhibits his understanding and memory retention.

[8] Prior to the offence, the complainant and the offender had been in an intimate relationship for 3 years. They lived together at the offender's parents' home for one year. At some point recent in time to the offence, the relationship ended and the complainant moved back in with her mother.

[9] The complainant and the offender had been talking about getting back together when the offence occurred.

[10] Filed as Exhibit #1 on the guilty plea, is texting between them immediately prior to this offence, which includes explicit sexting.

Facts Acknowledged on the Guilty Plea

[11] The offender attended the complainant's home by prior arrangement to give her money toward her cell phone bill.

[12] The complainant's mother was home at the time. The 3 of them visited for approximately 1 hour. At 8:45 p.m., the mother went upstairs to her bedroom.

[13] The offender and complainant stayed in the living room. They were cuddling on the couch. He gave her a 'hickey' and she told him to stop. He continued to suck and fondled her breasts which left a mark on her breast.

[14] He fondled her crotch area and kissed her with force. She pushed him away.

[15] He took off his pants and she said 'no, the relationship is over'.

[16] He grabbed her hair and pushed her down on the couch. He thrust his penis in her mouth and ejaculated in her mouth.

[17] The complainant said she choked, could not breathe and swallowed the ejaculate.

[18] After the incident they were kissing and cuddling on the couch.

[19] The offender asked her if he had forced her to do anything and asked her if everything had been with her consent.

[20] She said 'yes' because she wanted him to leave and because she was scared.

[21] After the offender left the house, the complainant told her mother and the mother called 911. Thereafter the mother has not cooperated with police in the matter and the relationship between the mother and the complainant is strained.

[22] In his interview to police, the offender stated that he did not take enough care. He said he should have taken no for an answer.

Background of the Offender

[23] He is now 23 years of age and has no criminal record.

[24] He is the eldest of two sons born to parents who have been married for twenty-four years and are employed full time. Until recently the offender lived with his parents and they remain tremendously supportive of him.

[25] Despite his physical and cognitive disabilities, the offender earned his Ontario Secondary School Diploma in 2010. After graduating, he returned to his school where he has provided over 800 hours of volunteer services.

[26] The offender is supported by the Ontario Disability Support Program ($1168.00 a month) and works part time and seasonally as a score keeper with local professional sports teams. He wishes to work with sports teams on a full-time basis.

[27] Seven character reference letters were filed at sentencing.

[28] One is from a neighbour and friend of the offender for the past 12 years. Ms. L.B., who has a Master's Degree in Social Work, writes that the offender has always been a very kind, considerate and respectful individual who is willing to help those in need. She admires his strength and determination, as well as his parent's unwavering support for their son.

[29] She writes of his intense love of sports and how he has volunteered his time to ensure that extra-curricular sports programs at R.B. High School ran smoothly earning him the utmost respect from teachers, coaches and fellow students.

[30] Ms. B. writes that the offence is completely out of character to the young man she knows well. She writes that the offender and his family have been devastated as a result of the criminal charge in this matter.

[31] The offender's mother has written in support of her son. She as well describes him as a very kind soul who is loved and respected in the family and the community. She writes that he has worked very hard all his life to succeed despite his disabilities.

[32] He achieved the 'R.B. Wild Jeff Carey Award' for student leadership 2 years in a row and was awarded the 'Burlington Rotary Club Medal' for demonstrating high moral character, participating in school activities and school life, showing self-respect and respect for others, and demonstrating independence.

[33] The offender's mother writes that her son is not a threat to anyone and she is very worried about the effect of house arrest on his mental and physical health.

[34] The offender's father has also written a tremendous letter of support.

[35] He describes his son as the most honest, caring and gentle person.

[36] His father writes that despite his son's disabilities, he has worked for the Ti-Cats, the Argos, the Hamilton Bulldogs, the R.B. Sports teams and as a score keeper at the Wave Ice arena when needed.

All that S.H. has worked for over the last many years will now be taken away from him. I am now worried about his health and well-being if he is to be locked up under house arrest. It is going to kill him and I am not saying that lightly. His health has always been an issue because of his Cerebral Palsy. Now it might become a matter of life and death.

[37] Similar outstanding character reference letters were authored by the offender's grandparents, cousin and an Educational Assistant from R.B. High School. This Assistant is the offender's current roommate and is teaching him independent living skills.

Victim Impact Statement

[38] The complainant writes that she has been devastated by the offence. She is confused about who she is and what she is feeling. She no longer lives with her mother and continues to suffer from anxiety; she is scared and feels shattered. She can't sleep and wakes up screaming. She feels dirty and depressed and has problems eating. She wants nothing to do with the offender or his family.

Summary of Sexting Between the Complainant and the Offender from July 1st, 2014 through to July 3, 2014 (immediately before the offence)

[39] In these messages the complainant texts that she wants the offender to "tear my clothes of my body" ... "suck on my breasts while [touching] my [vagina]" ... "[give him oral sex until he ejaculates]".[1]

[40] There are chit/chat texts after that, including the plans for him to come over to her house and give her money to help her pay her cell phone bill on the date of the offence.

Position of the Parties

Crown

[41] The Crown's position at the time of the guilty plea and at the sentencing hearing when the Court had the benefit of the Pre-Sentence Report and the character reference letters remained the same.

[42] The Crown submits that in order to address s. 718 sentencing factors set out in the Criminal Code, real jail in the range of 9 to 12 months is the proper sentence. The Crown is opposed to a Conditional Sentence served in the community and requests a 2-year Probation Order, a DNA Order, a 5 year s.110 Weapons Prohibition Order and a 10-year SOIRA Order.

[43] The Crown submits that the offender's medical condition is not a factor to be considered in sentencing him to a term of real jail and relies upon the cases of R. v. Aquino, [2002] O.J. No. 3631 (Ont. C.A.) and R. v. Weig, [2009] O.J. No. 5237 in support of this position.

[44] I note that both of those cases dealt with sentencing appeals where offenders had been sentenced to the penitentiary for extremely serious offences and were asking for sentence reductions for reasons of medical hardship. The Ontario Court of Appeal did not reduce the sentences, emphasizing the seriousness of the offences. The offences under consideration in those appeals do not resemble the offence before this Court.

[45] The Crown submits that the prior sexting and consent sexual touching before this offence is not relevant on sentencing and relies on R. v. McKenzie, 2015 ONSC 5671, [2015] O.J. No. 4917 (Ont. SCJ) in support of this submission.

[46] In that case a 9 month jail term was imposed following a conviction after trial.

[47] The offender and complainant in that case were only casually acquainted with each other. He was 33 and she was 19 years old.

[48] The sexual assault occurred at a restaurant work party where they both were employed. They had not spent time together at the party.

[49] Just before the assault, the complainant and the accused had been dancing and there was some "winding and grinding" and kissing.

[50] The accused and the complainant moved into a bathroom and the door was locked. In the washroom he spun her around, lowered both of their pants and penetrated her anus with the tip of his penis for 20 to 30 seconds. As she said no, there was a knock on the bathroom door which made the accused stop.

[51] I note that in that case, the judge stated at paragraph 15 that "the circumstances leading up to the offence, which included the complainant voluntarily winding and grinding on the accused, together with the kissing and touching that occurred without the accused being aware of any objection, impact my assessment of the seriousness of the offence". I do not agree with the Crown that this case supports their position.

[52] The Crown relies upon the following cases in support of their 'real jail' position: R. v. M.W., [2008] O.J. No. 4320 (Ont. SCJ); R. v. Tuffs, [2012] S.J. No. 30 (Sask. C.A.); R. v. C.R., 2010 ONCA 176, [2010] O. J. No. 911.

[53] All of these cases involved convictions registered after a trial. None of them dealt with cognitively impaired accused persons or complainants. Only R. v. C.R., supra, dealt with people who had been in a prior intimate relationship. The accused in that case was a 37-year-old man and the complainant was a 16-year-old High School student. The facts are not similar to the case before this Court.

[54] I agree that the violation of the element of trust grounding the parties' friendship is a proper consideration on sentencing.

Defence Position

[55] The Defence submits that the appropriate sentence in this case is a 6 month conditional sentence followed by 2 years of probation.

[56] The defence takes no issue with the ancillary orders requested by the Crown. (Note: the 10 year SOIRA Order is a mandatory order pursuant to s. 490.011 (1) (a) (xvi) of the Criminal Code; the DNA order is a mandatory order pursuant to s. 487.04 (a.1) of the Criminal Code).

[57] The defence relies upon the case of R. v. A.C., 2011 ONSC 4389 (upheld by the OCA, R. v. A.C., 2012 ONCA 608, [2012] O.J. No. 4293) in support of a conditional sentence.

[58] That historical sexual assault case also involved a finding of guilt after a trial.

[59] That case involved an accused, who was married to the complainant's sister, guilty of a number of sexual assaults over several months on the 13- or 14-year-old complainant.

[60] In the far more serious assaults set out in that case, the Court imposed a conditional sentence of 2 years less a day plus 3 years of probation.

[61] The defence further submits that this offender has been on bail for 15 months without incident, which is another positive sentencing factor.

Reasons for Sentence

[62] Unfortunately, neither Crown counsel nor Defence counsel provided a sentencing case that dealt with the special factors that are present here.

[63] No case dealt with a cognitively impaired accused and victim who had a prior long-term intimate relationship.

[64] No case dealt with a prior long-term intimate relationship where the parties were actively discussing getting back together, and where, within 48 hours prior to the sexual assault, the complainant was sexting the accused and saying what she wanted him to do, which was similar to what he did do, absent pushing her down on the couch, pulling her hair, and her saying 'no'.

[65] I also note that this incident occurred when they were together by consent arrangement, in her mother's home, with her mother present upstairs. It is reasonable to infer from this that the complainant's mother was available to intervene and help if need be.

[66] It is significant that the offender entered a guilty plea in a case where the defence of 'honest but mistaken belief in consent' could have been a viable defence had the matter gone to trial.

[67] His guilt was maintained at the sentencing hearing despite his statement to the author of the Pre-Sentence Report that in the moment he thought the complainant was "teasing" him as they had played a similar "game" in the past.

[68] These are all significant unique factors that were not properly addressed by counsel in the sentencing submissions made in this case. I repeat that the Crown's position on sentence did not vary despite all the information contained in the Pre-Sentence Report and the letters of good character.

[69] It is important to note as well, that there is a complete denial by the offender of any prior abuse in the relationship as alleged by the complainant. The Crown is not alleging any prior incidents for the Court to consider.

[70] This is an isolated, totally out of character offence.

[71] I have some concerns with respect to the contents of the Victim Impact Statement. Given the complainant's pre-existing disabilities, it is fair to conclude that many of her current difficulties are due to other factors and not this offence. She could have been cross-examined about this, however, the defence took great care not to have her be part of the in-court proceedings, which is another credit I see by way of mitigation. I do hope that the complainant is able to access the help she needs to move forward.

[72] Section s. 718 of the Criminal Code of Canada states 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.

[73] In all the unique circumstances of this case, I have determined that it is not necessary to separate this offender from society to address proper sentencing objectives.

[74] The Crown's position that a custodial sentence between 9 and 12 months is unreasonably harsh and does not reflect any of the unique aspects of this offence and this particular offender.

[75] The mandatory 10 year SOIRA order I must impose by law, will have an enormous effect on this young man's life. Given that most of his life is devoted to charitable work in the community and to coaching activity, this order alone may prevent him for contributing to society in the work he can do best given his disabilities.

[76] Accordingly, I have determined that the most appropriate sentence in this case is one of a suspended sentence.

[77] The offender will be subject to a 2 year Probation Order with the following terms:

• report to a probation officer as directed;
• not to associate directly or indirectly with J.B. or any member of her immediate family;
• not to be within 100 metres of any known place of residence, education, employment, recreation or worship of J.B.;
• attend for any assessment, counselling or treatment as directed by your Probation Officer and sign consents so if directed, it can be monitored;
• keep the peace and be of good behaviour.

[78] The mandatory DNA sample is ordered with an out of custody appointment to be provided.

[79] The mandatory SOIRA Order is for 10 years.

[80] The mandatory victim fine surcharge is $100.00 and I will grant time for payment as required.

[81] The s. 110 Weapons Prohibition Order is discretionary as the Crown proceeded summarily. There is no need to impose such an order in the circumstances presented here.

Released: October 26, 2015

Signed: "Justice Lesley M. Baldwin"

[1] The words in square brackets have been changed to protect the dignity of the complainant.