WARNING

The court hearing this matter directs that the following notice should 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.: Not provided

Date: January 8, 2016

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Himraj Mangal

Before: Justice Sandra Bacchus

Reasons for Sentence

Counsel:

L. Weisz for the Crown

Self-represented for the accused

Kenneth Jim as amicus curae

Decision

Bacchus, J.:

The Offense and Conviction

[1] On August 21, 2015, the defendant was convicted of one count of sexual assault. During his evidence the defendant admitted that on April 13, 2014, he digitally penetrated P.K., placing his finger underneath her diaper and into her vagina for approximately half a minute, as Ms. P.K. lay in her bed at the long term care facility where she resides. Further, the defendant admitted that on two prior occasions he touched Ms. P.K. once by rubbing her on her stomach and once on her breast. The defendant testified that on each occasion Ms. P.K. told him to stop.

The Victim

[2] Ms. P.K. is 62 years old. She has cerebral palsy, is wheelchair bound and bed ridden for a large part of the day. Phyllis Blackman, a nurse who worked at the home where Ms. P.K. resides testified that although Ms. P.K. can feed herself she cannot shower, dress or otherwise care for herself without help.

[3] At trial, Ms. P.K. testified with the use of a wheel chair that supported her head and neck; she experienced difficulty with her breathing during her testimony and had difficulty projecting her voice to any degree. Ms. P.K. has no use of her legs and one arm, and has some limited use of the other arm. She has been a resident in a long-term care facility for many years.

[4] Ms. P.K. also experiences issues with her memory and some confusion, issues which were apparent during her testimony. However, Ms. P.K. consistently testified that she told the defendant to stop and that, in reference to the defendant digitally penetrating her, she told the defendant she did not like what he was doing when he asked her if she liked it.

The Defendant's Background and Relationship with the Victim

[5] The defendant testified that he had been visiting a female patient named Paget McLeod for many years beginning when Paget was a patient at CAMH. The defendant testified that he started going to CAMH because he saw they had table tennis. The defendant testified that he continued to visit Paget when she was transferred to the C[…] long term care facility where he met and began to visit Ms. P.K. in her room. The defendant testified that he was attracted to Ms. P.K.'s books which he saw laid out on her table. He also testified that he had been visiting a woman named Lois who previously shared the room with Ms. P.K. until Lois was moved.

[6] The defendant testified that over the years he has created a role for himself by showing up routinely at the facility and CAMH in the past, befriending residents, running errands for the staff and residents and bringing food and gifts for the people he visits. His presence at these facilities was seemingly altruistic; at least from the defendant's perspective. He described himself in his testimony as the "Sunday Santa", in essence providing comfort and intellectual stimulation to the residents he visited. The defendant testified that his attraction to Ms. P.K. was that he could have intellectual conversations with her about books and movies as his friend Paget and another resident named Lois, had declined and were no longer able to engage with him in the same manner.

[7] The sexual assault on Ms. P.K. occurred during one of the defendant's seemingly benevolent visits. I qualify my description of the nature of these visits because the defendant was not a resident or relative of the female residents he visited. Ms. P.K. testified that the defendant would go from room to room checking in on people and that she would see him in her room. Ms. P.K. described the defendant as "just a visitor who came in and he liked talking". The defendant described Ms. P.K.'s room door as "always wide open". Although Ms. P.K. did acquiesce to these visits from the defendant it is unclear the extent to which his presence at the residence was welcomed.

[8] The defendant himself referred in his evidence to animosity from a male staff member who was trying to stop him from coming into the residence.

[9] In addition, the defendant's own testimony that he viewed Ms. P.K.'s complaint of sexual assault as someone "biting the hand" that feeds her suggests that his visits were not entirely altruistic.

[10] The defendant benefitted from his attendances at the residence, gaining access to the amenities. He testified that he fell in love with the place and that it had lots of good views, comfortable chairs and a little library. There is a sense that the defendant felt entitled to the surroundings because of what he perceived he brought to the residents. There is a compelling inference that the defendant's sense of entitlement provided him with justification for his violation of Ms. P.K.

Personal Circumstances of the Defendant

[11] The defendant is 65 years old. The defendant has no criminal record.

[12] The defendant has actively been involved both as a client and a contributor with a number of social agencies and church groups. He testified that at the time of the offense he was a regular volunteer as a cook on Sundays with the Bloor Trinity church. In addition, the defendant routinely participates in poetry, reading sessions and discussion groups with churches and other social agencies.

[13] There were a number of character witnesses who provided background information about the defendant for the pre-sentence report. Joanna Manning an associate Reverend with All Saints Church, Sherman Hesslegrave an Incumbent at the Church of Holy Trinity and Lorenzo Artuso a social worker with Good Shepherd Ministries, have known the defendant for many years. John Deacon, who testified as a character witness for the defendant at this trial has provided the defendant with constant support during these proceedings and considers the defendant a friend.

[14] The consistent perspective of these witnesses is that the defendant is a well-regarded member of the community and that others look to him for his input and his insight in group discussions. The defendant is described as polite, respectful, even tempered and well-mannered.

[15] The defendant has lived in the shelter system for many years although according to Lorenzo Artuso the defendant is not impecunious and can afford housing. The defendant's evidence is that he has chosen this lifestyle. There is no evidence before me of any substance abuse or mental health issues.

[16] However, the defendant's background is a mystery. The defendant has not been forthcoming with the author of the pre-sentence report about his family or how and why he himself became a resident in the Toronto men's shelter system. Further the defendant refused to provide any familial contacts to verify the account he provided to the report writer. Nor has the defendant provided any personal background information to the court.

Victim Impact Evidence

[17] Ms. P.K. did not provide a formal victim impact statement. However she testified at trial that the offense made her feel "creepy", "icky" and "grisly" and that she called the police because she felt violated. In addition, Ms. P.K. described to the presentence report author that the defendant's actions have "made my life less safe" and that she was trying to move beyond it.

Position of the Parties

[18] The Crown submits that a sentence of 12 months incarceration followed by three years of probation, a section 110 Criminal Code order for 10 years, a SOIRA order for 10 years, as well as a DNA order (mandatory order for this primary designated offense) is the appropriate sentence in this case. The crown points to the vulnerable nature of the victim as a most aggravating factor of this offense as well as the defendant's lack of insight into his own criminality.

[19] Mr. Jim submits that the sentencing range for a case of this nature stems from non-custodial to custodial. Mr Jim submits that a conditional sentence would adequately address the fundament principles of sentence relevant to this case. In support of this submission Mr. Jim points to the defendant's lack of criminal record and the fact that the defendant has been on an undertaking for a lengthy period of time without a breach demonstrating that he can be trusted to be supervised in the community.

[20] The defendant emphasized his longstanding community contribution as a poet and that he has been acknowledged by a church for his poetry. The defendant also emphasized his long term affiliation with C[…]/ visiting Paget and others with no past problems. The defendant submits that he was essentially providing a service to the residents and "building relationships". The defendant reminds the court that he was cooperative with the investigation and could have made it difficult as the police did not know who he was or where he lived, only that his name was "Lloyd".

Analysis

[21] In R. v. R.R., [2001] O.J. No. 4254, the complainant was the 21 year old neighbour of the defendant. The complainant was developmentally challenged and had the cognitive ability of an 8 or 10 year old. Her cognitive challenges were known to the defendant. The defendant, who had no criminal record, was a 57 year old married Presbyterian minister. The defendant was convicted of fondling the complainant, digitally penetrating and kissing her vagina and allowing the complainant manual and oral contact with the defendant's penis. These offenses occurred on one occasion.

[22] The Court of Appeal in R.R. supra, found that the offense was a serious one involving the sexual exploitation of a young woman the defendant knew had significant mental limitation. The Court, in upholding the sentence, held that the eight month period of incarceration imposed in those circumstances: "represents a generous acknowledgment of the appellant's personal circumstances and background". R.R., supra (para 63).

[23] In R. v. T. (D.) 2011 ONCJ 545, the complainant age 33 had cerebral palsy and was confined to a wheelchair. In addition, the complainant suffered from vision and speech impairment and had much difficulty communicating. The defendant, age 51, was her uncle who did not reside with her but would visit her home where she lived with her mother. The sexual offense in this case occurred in the complainant's home and involved the defendant touching the complaint's breast and vagina while she was in the living room and then digitally penetrating the complainant's vagina with his fingers while she was in the bathroom using the facilities.

[24] The defendant had no criminal record was married and had been consistently gainfully employed. Although the defendant did express remorse for the strain his conduct had placed on his family and his marriage, the court found that he lacked insight in to the seriousness of the offense.

[25] In finding that the defendant was in a position of the trust and that the offense involved the sexual exploitation of a person the offender knew to have a profound mental and physical limitation, the court imposed a custodial sentence of 18 months. R. v. T. (D.), supra 18.

[26] There are distinguishing features in respect of both of these decisions from the case before me; the defendant was not in a position of trust vis a vis Ms. P.K. and the offense did not involve the sexual exploitation of an individual with the mental capacity of a child. However, these decisions signal that in the circumstance of sexual assaults on vulnerable victims a strong denunciatory sentence is necessary to both denounce and deter the conduct.

[27] Ms. P.K.'s physical limitations were well known and readily apparent to the defendant. In committing this sexual assault Mr. Mangal exploited the physical incapacity of a vulnerable victim.

[28] The defendant's violation of Ms. P.K.'s sexual integrity is significant and has affected her sense of personal security leaving her feeling even more vulnerable and unsafe in a place that is her home. The offense is serious.

[29] Although stating that his conduct was inappropriate, the defendant has displayed little to no insight into the wrongfulness of his conduct. On the contrary; the defendant has made concerning comments reflecting his profound lack of insight referring to Ms. P.K.'s complaint to the police against him as "biting the hand that feeds her".

[30] In addition, the defendant has an entrenched belief that Ms. P.K. is not vulnerable and that she in fact was not opposed to his physical contact with her because her blankets were arranged to show him her thighs on more than one occasion. According to the defendant, this was not a coincidence.

[31] The defendant maintains his position that Ms. P.K. wanted the sexual contact despite his own evidence that she told him to stop after each incident of touching. I find that the defendant's perceptions of Ms. P.K. do not accord with reality or common sense and demonstrate a callous disregard for Ms. P.K.

[32] The fundamental principles of sentence engaged in the circumstance are specific and general deterrence and denunciation. The absence of personal background information about the defendant and the defendant's lack of forthrightness in this regard only amplify concerns regarding risk and issues of specific deterrence. In addition, there is a need to impose a sentence which denounces and will generally deter the commission of sexual assaults against vulnerable victims.

[33] In my view a conditional sentence does not adequately address the gravity of this offense and the fundamental principles of sentencing engaged in these circumstances.

[34] I find that the appropriate sentence in this case is a custodial sentence of 12 months.

[35] As there was no pre-sentence custody and the defendant has been subject to a promise to appear and an undertaking while awaiting disposition of this matter there is no basis to further discount this sentence. R. v. Downes (2006), 79 O.R. (3d) 321; R v. Ijam 2007 ONCA 597.

Conclusion

[36] The sentence of the court is 12 months incarceration to be followed by two years of probation with the following terms in addition to the statutory terms:

• Report within 72 hours of your release;

• Reside at an address approved of by probation services;

• No contact/communication/association with P.K.;

• Not be within 200m of any place P.K. lives or happens to be as known to you;

• Not to be at C[…] street C[…]

• Not to be found at any long term care facility where you are not a resident or without the express prior approval of said facility's administrator;

• Attend assessment and counselling for sex offending and your emotional health; Sign releases so that probation service may monitor your attendance and participation;

• Not to volunteer or be employed in a capacity in which you would be in the unsupervised care or control of any person with a disability;

[37] I have considered the submission that I impose a 'no weapons' term and do not find that to be a necessary term given the nature of the facts I have found in this case.

[38] In addition, the following ancillary sentencing orders are appropriate:

[39] Pursuant to s. 487.051(1) an order in Form 5.03 requiring that samples of bodily substances be taken for the purpose of forensic DNA analysis, the offense of sexual assault being a primary designated offence for such purposes;

[40] An order in Form 52 requiring the accused to comply with the Sex Offender Information Registration Act for a period of 10 years pursuant to section 490.012(1); the defendant is directed to report within 7 business day of his release;

[41] I have considered the submission that I impose a prohibition pursuant to section 110 of the Criminal Code, however, I do not find that to be a necessary order given the nature of the facts I have found in this case.

[42] The defendant is to pay the victim fine surcharge in the amount of $100.

Date: January 8, 2016

Signed: Justice Sandra Bacchus