Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

John Austin McCart

Before: Justice S. R. Shamai

Heard on: June 10, 15, August 31, September 1, December 7, 8, 2015; February 22, 25, May 31, July 21, 2016

Reasons for Sentence released on: August 23, 2016

Counsel:

• Ms. O. Delgado for the Crown
• Mr. S. Feldman for the accused, John Austin McCart

SHAMAI J.:

Background and Trial Findings

[1] On December 8, 2015, I delivered reasons for judgment on a trial which commenced before me on June 10, 2015. The Crown proceeded summarily on three counts of sexual assault, two counts of assault simpliciter, and one count of intimidation. I will not reproduce my entire reasoning in coming to those conclusions that Mr. McCart was guilty on all counts save one count of sexual assault. I will give a summary of the facts underlying my conclusions, in order to give context to the sentencing decision.

[2] Mr. McCart and Ms. A.B. were students at Durham College in the fall of 2013. They met at a social event, and through further exchanges, Ms. A.B. told McCart that she could help him obtain Fentanyl patches. The drug deal went sour, and Mr. McCart lost all but $200 of the $1800 he had given A.B. for that purpose. When she returned to his car to tell him this, he assaulted her, slamming her head against the car window and raising a "goose egg" on her head. He told her that she owed him the money. In the result she agreed, some weeks later, to a scheme whereby she would advertise herself for sexual services in online ads, posing for photo's in lingerie he helped her purchase. He would take a supervisory role. While she was reluctant at first, he showed his anger with her and told her that she had to do this as she owed him. She counted the money she was paid each time from this work, on several weekends from late November onward.

[3] One night he agreed that she would go to her girlfriend's for a birthday party, and said he would pick her up later. He messaged her when she delayed returning, when he came for her. He told her he would expose the prostitution activities, along with the pictures of her, to her brother and her boyfriend. She stayed the night at her friend's, instead. He was angry with her when she came to his car in the morning. He told her to get in the backseat of his car, where he punched her with a fist to the left side of her head, grabbed her hair, pulled her in close, and told her, that when he tells her to be somewhere, "she'd better be there, he's not fucking around." The physical result of this assault was a mark to her head, and hair loss, where he ripped her hair. Psychologically, the assault reinforced the message he impressed on her at the time of the first assault, that she should do what he told her, or suffer consequences.

[4] These incidents constitute the two assaults, and the intimidation counts.

[5] The sexual assaults occurred in the course of their intimate relationship. I understand that while A.B. was engaged in prostitution to pay off the perceived "debt", she was involved in an intimate personal relationship with McCart. On one occasion, after she had had sex for money with strangers, he asked her to have sex with him, which she agreed to, reluctantly. She made it plain to him, once they were engaged in it, that it was causing her pain. She expressed "ow" and tried to push him off. He withdrew, then started again. This time he was unresponsive to her complaint, and though she "backed up out of it", withdrawing to the headboard of the bed, she could not get away, and he continued until he was satisfied. That is one of the sexual assaults I found. The other was when they engaged in oral sex as they drove on the highway. Ms. A.B. testified that although she engaged willingly at first, she found it uncomfortable, and tried to withdraw her head, but he forcibly kept her head down on his penis until he was finished.

Evidentiary Issues and Pre-Sentence Report

[6] I point out that the entirety of evidence with regard to the narrative came from Ms. A.B.'s testimony. McCart did not testify at trial. Two witnesses were called by the defence, whose evidence was intended to undermine Ms. A.B.'s credibility. While the pre-sentence report is rife with Mr. McCart's exculpatory and victim-blaming "version" of events and opinions about the complainant, that account was never the subject of viva voce evidence before me. The pre-sentence report is a most inappropriate vehicle for the presentation of such an account, although it is not Mr. McCart's doing, that the pre-sentence report writer included such material. It does have a limited function however, in my consideration of sentencing. I indicated to counsel on February 23, when the report was first presented to the Court, that I would adopt the course they recommended, that I excise from my mind these statements, except to the extent that these statements indicate no remorse or insight into the impugned conduct, on Mr. McCart's part.

[7] The pre-sentence report does provide significant information about Mr. McCart's childhood and adolescence, and I will refer to it in due course.

[8] Other material on sentencing is a criminal record, again of limited assistance as it reflects convictions for misconduct which occurred after the incidents subject of this prosecution. This means that Mr. McCart is a first offender on this hearing, from a legal perspective. The subsequent conviction does speak to character, according to law.

[9] He is also a youthful offender. Mr. McCart is now 23 years of age, and was 20 at the time of the offences. The complainant was 18 at the time she was victimized by McCart.

Sentencing Positions

[10] Crown counsel seeks a sentence of four years in total. On behalf of Mr. McCart, the defence proposes a sentence totaling 150 days less time served - 90 days on the intimidation and 60 days on the sex assault involving intercourse is submitted as the correct sentence. A conditional discharge with 12 months probation is urged as being fit on the sex assault involving oral sex. Each of the common assaults is characterized as attracting suspended sentence and probation.

Applicable Sentencing Legislation

[11] I have been referred to voluminous caselaw on sentence. I will refer to several of the decisions, but note at the outset, that as Crown has proceeded by summary conviction on all these charges, the range of sentence is circumscribed, and clearly distinguishable from some of the precedents where Crown proceeded by indictment. Statements of applicable principle may be taken from those decision however.

[12] To be clear, the following sentencing enactments apply:

Assault: Section 266 (b) refers to section 787 (1): "Unless otherwise provided by law, everyone who is convicted of an offence punishable on summary conviction is liable to a fine of not more than five thousand dollars or to a term of imprisonment not exceeding six months or to both".

Intimidation: Section 423(1)(a) sets a maximum penalty of five years imprisonment.

Sexual assault: Section 271 provides a maximum sentence of eighteen months imprisonment. I note that there is a minimum penalty of 90 days' imprisonment where the complainant is under 16 years of age. Here, the complainant was slightly older: she was 18 at the time.

[13] Again, for the sake of perspective on the cases referred to, where Crown proceeded by indictment, assault attracts a maximum five years imprisonment, if by indictment; sexual assault incurs liability for ten years at maximum, if by indictment. The intimidation offence under Section 423 may be punished by five years in prison if prosecuted by indictment.

[14] Thus, to assess the maximum possible sentences of imprisonment, nine years is theoretically possible, if those maximum periods of incarceration were imposed, consecutively, on a summary conviction prosecution. This calculation sets the Crown and defence positions into the framework of maximum penalties.

[15] Having regard to the judicial precedents where Crown proceeded by indictment, the numbers do not always represent the value of those decisions; more significantly, they provide guidance in terms of the seriousness with which reviewing courts consider aspects of crimes similar to the ones before me.

Relevant Case Law

[16] The case of R. v. C.R. (2010 ONCA 176) arises from a fact situation involving a 16 or 17 year old high school student, and a 37 year old man. They had common interests, cycling and photography, and developed a relationship on that basis. Two sexual assault convictions were registered after trial: one where consent was withdrawn partway through a consensual episode of sex, and the nature of the intercourse changed from vaginal to anal sex. The offender stopped after a few seconds, on the complainant's protest, with the result that the unlawful act was of only seconds' duration. The second incident was entirely denied by the defendant, who testified at trial. On appeal, the trial judge's findings of credibility were upheld. In considering the sentence appeal, Justice Cronk commented, that while the appellant did not occupy a traditional position of trust in relation to the complainant, she would apply the principle held in R. v. McGregor (2008 ONCA 831), that "any sexually intimate relationship between adults…. is founded on a certain amount of trust and confidence, at least to the extent that each participant may reasonably expect that he or she will not knowingly be exposed by the other to serious and obvious perils" (CR, para 85). The Court also rejected the proposition that the brevity of wrongdoing should mitigate sentence. Justice Cronk refers to Section 4(5) of the Criminal Code to support that proposition. She agreed with the comments of the trial judge, that "although neither assault involved gratuitous violence, both were inherently violent." (para 92). In that case, two and a half year sentences, concurrent on the two charges, were upheld.

[17] In the case of R. v. Stankovic, [2015] O.J. No. 5679 (ONSC), the accused was found guilty by a jury of one count of sexual assault. Although the incident was characterized as having no violence or resulting physical injury, a sentence of three years imprisonment was imposed. In determining the fit sentence, Justice Spies reviewed the recent relevant cases in Ontario. Of significance in this instance are the decisions of our Court of Appeal in R. v. Garrett, 2014 ONCA 734 and R. v. Thurairajah, 2008 ONCA 91.

[18] To recite Justice Spies' summary of the Stankovic facts: "the accused and complainant had known each other for years, and after drinks and dinner were kissing on the couch. This was consensual. The offender then became aggressive, and would not stop when the complainant told him to, subsequently pulling up her top and bra, removing her leggings and having unprotected vaginal intercourse with her" (Stankovic para 23). Justice Spies cites a helpful passage from the Court of Appeal decision, which is helpful in this case (from para 19, Garrett):

"…the facts were neither exceptional nor unique, The complainant repeatedly told Mr. Garrett to stop. He did not. This, in itself, constitutes demeaning behavior and contemptuous disregard for the personal integrity of the complainant and engages the predominant sentencing principles of denunciation and deterrence"

[19] The Court comments as well that "the complainant's initial consent to kissing does not render less serious the subsequent non-consensual intercourse" (para 20). In the result, a term of imprisonment of 18 months was substituted by the appeal court for the intermittent sentence imposed at trial. The Court of Appeal notes that it was constrained in imposing sentence by the Crown's position at trial, and "the sentence imposed by this court should not be taken as a sentence within the appropriate or usual range". This is clearly a signal that a harsher penalty would have been deemed fit by the Court.

[20] The case of Thurairajah in the Court of Appeal discloses facts which clearly involved more serious criminality than the case before me. A 14 year old was raped by a 19 year old, when the complainant, who had been drinking heavily, was passed out in the back of a vehicle. The offender did not use a condom, and dumped the complainant into a snowbank after. He later reported to the brother of the complainant that he had found her passed out in the snowbank. The Court of Appeal's opinion was expressed by Doherty J.A., on the appeal from the maximum conditional sentence imposed at trial. Although initially of the view that a penitentiary sentence was required, the Court accepted the term of two years less a day, but not by way of conditional sentence. Of note in the case before me is the Court's comment with regard to sentencing young first offenders:

"Serious crimes of violence, particularly sexual assaults, do provide an exception to the general rule described above [concerning youthful offender]. While all of the principles of sentences remain important, including rehabilitation, for serious crimes involving significant personal violence, the objectives of denunciation and general deterrence gain prominence (para 41)"

[21] A number of cases were offered by the defendant in support of his position. They all deal with cases where the Crown proceeded on sexual assault offences by way of summary conviction. Thus the range of sentence is comparable to the range available on each count, to this court. The case of R. v. A.R. (2015 ONSC 5055), involves significantly different facts than the case before me: it involves a man and his 12 year old step-daughter, and a sex act which involved his touching her vagina, with serious threats to follow. In the end, convictions were registered on counts of uttering threats and sexual interference, a stay having been entered on the finding of guilt for sexual assault. The sentence of five months, followed by two years' probation, was upheld by the appeal court. I infer that it was a matter where Crown proceeded by summary conviction, as the appeal was heard by the Superior Court. The case of R. v. Changoo (2009), ONCJ 220 involved consensual sexual activity, which changed in character to non-consensual sex when the defendant insisted on removing his condom, despite the express "instructions" earlier, that the complainant would not have sex without the condom. The findings involved an "abusive and threatening barrage" by the accused, to the complainant in the course of the event. Despite many letters of support on sentencing showing the defendant to be a man of good character, high standards and significant accomplishment, he accepted no responsibility for his actions, and expressed no remorse, saying demeaning things about the complainant throughout the sentencing hearing. Justice Lane took the view that the ends of sentencing could be accomplished with a sentence shorter, than Crown position of 12-15 months. She expressed the view that "Mr. Changoo deserves some credit for the mitigating factors in this case, including the fact that, although he did not plead guilty he did essentially admit the offence in his testimony." A period of five months incarceration, to be followed by two years' probation, was imposed.

[22] The other cases referred to by defence, while interesting, do not in my view, provide any particular guidance, either in terms of the fact patterns considered by the courts, nor the principles enunciated. I note that none provides the opinion of the Court of Appeal on these matters. While the prosecution here was by way of summary conviction, many of the guiding principles expressed in the decisions of the Court of Appeal have no less effect in these cases than they do in matters prosecuted by indictment.

Assessment of the Offender

[23] To understand the offender, I have essentially three sources of information: I have the pre-sentence report, I have Mr. McCart's brief statement to the Court, as statutorily permitted prior to sentence, and I have the evidence about him from the trial. At trial, the testimony of Ms. A.B, the evidence of his then-current girlfriend, and his father provided differing views about who the young man is. Permitted to address the Court on sentence, he smiled a charming smile, and told me that really, he's not a bad guy. The pre-sentence report provides me with helpful information about Mr. McCart's formative years, and then detours into territory where a pre-sentence report ought not go: relating Mr. McCart's denials of responsibility for the acts he had been found guilty of, and giving his opinions of the complainant.

[24] I indicated earlier that upon receipt of the pre-sentence report I raised my concerns with counsel about the apparent denials in the report. Clearly, had those statements been part of the testimony of the accused, they would have warranted different treatment. As related by a probation officer writing a pre-sentence report, they amounted to a source of concern in terms of the trial process, but of very limited utility in the proceeding. Counsel chose to continue with sentencing and agreed that I excise them from consideration except to the extent that they reflected on remorse and contrition.

[25] To review, then, what I know about the offender: his parents divorced when he was seven years of age. Thereafter, his mother's role was limited and apparently almost negligent, providing insufficient parental care when he and his brother were in her care. He related to the pre-sentence report writer that his mother is "part Aboriginal"; however he does not identify as Aboriginal and has no involvement in any Aboriginal activities. He described his mother as an alcoholic. To the extent that inability to parent and deteriorated family structures and loss of cultural pride may be consistent with the unfortunate legacy of earlier colonial and Canadian government policies, Mr. McCart's experience is not unusual. However, as he claims no attachment to the community and does not ask the Court to consider this issue further, I leave my consideration of it with these remarks.

[26] Mr. McCart "acted out for attention" from about ten years of age, escalating to setting fires, "as he felt it was therapeutic to watch the fire start and expand", to the point that he caused property damage. His father arranged for medical and mental health assessment. As a result; he was diagnosed with ADHD and prescribed medication. He continued to live with his mother however, whose own problems apparently frequently resulted in her ignoring her son and drinking to the point of passing out on a regular basis.

[27] The offender was expelled from school in eighth grade. His father obtained custody of him, and placed him in a group home to address his behavioural problems. According to Mr. McCart, this proved to be beneficial in terms of anger and emotional issues. Thereafter he continued to reside with his father and stepmother until he moved into residence for college. It was at that point that the incidents giving rise to this sentencing occurred.

[28] In the pre-sentence report, I learned that Mr. McCart has engaged in drug dealing and prostitution, through high school and college. Although he was involved in a relationship with a young woman who testified on the trial, to issues somewhat collateral to the facts at issue before me, he was no longer dating her although they remained friends. He expressed absolutely no empathy for the complainant of these charges and showed no insight into the behavior that led to his convictions.

Analysis and Sentencing Principles

[29] In the result, I have a first offender before me for sentencing, who at age 20 engaged in acts of violence with a young woman he knew first as a business associate in a drug dealing enterprise, and then as a person whom he involved in prostitution, in order to repay a so-called debt, and then as a partner in an intimate relationship. The two continued the intimate relationship while the prostitution business was ongoing, and while each professed to have primary relationships with others. The prostitution business, I found on the facts before me, was one which Mr. McCart proposed as a way for Ms. A.B. to repay the money of which she was robbed, when she attempted to transact a drug deal at Mr. McCart's behest. The first assault was part of a course of intimidation by which he ensured that she would engage in the prostitution and remain compliant with his directions. Similarly, the second assault was a "reminder" to her that she was to follow his directions concerning her whereabouts and her associations. The sexual assaults came in the course of their intimate relationship. The second sex assault conviction relates to an act of intercourse, which occurred after Ms. A.B. had been involved in sex work earlier that night. Mr. McCart persisted in an act which began on consent, but continued as he ignored her plain verbal and physical cues to stop using her body for his sexual purposes while it was causing her pain.

[30] Mr. McCart's conduct amounts to thuggery, plain and simple. He engaged in a course of conduct which over months demonstrated his willingness to use violence, and to enforce his wishes by use of force. He has a history of anti-social activity, from the fire-setting of his late childhood through the emotional and anger management issues which resulted in his father placing him in a group home, and then his admitted participation in illegal activities through his teen years. Mr. McCart did not testify on his trial. From the pre-sentence report, I gather that his description of events to the pre-sentence report writer shows no insight whatsoever into the impact of his actions, and a willingness to blame Ms. A.B. for all the criminal conduct for which I find him plainly responsible.

[31] The story of the few months involvement between these two young people shows the sometimes toxic relationship of sex and power: Mr. McCart used his physical force and his carelessness as to the consequences of it in every aspect of his involvement with Ms. A.B.: from the coercion at the start, that she would engage in prostitution to repay a perceived debt; to her continuing to comply with his direction, in the face of his deliberate and casual use of force against her, as when she came to his car from her girlfriend's birthday party, at a time other than when he directed her; to the violence characterizing the two sexual assaults. These latter were not violent acts which left broken bones or skin laceration: they are violent in the sense that Court of Appeal describes it in the Garrett case (supra), as it involves demeaning behavior and contemptuous disregard for the personal integrity of the complainant. As directed by the Court, the predominant sentencing principles in a case of this nature are those of denunciation and deterrence. (para. 19)

[32] I recognize that rehabilitation is a primary sentencing consideration where, as here, the man before me is a young first offender. I do not ignore that concern of sentencing, or his unfortunate childhood. Nor do I ignore the possibility that Mr. McCart's Aboriginal heritage may play some role. However, his inability to ground this claim in anything but speculation and in any event, his own distancing from that background leaves me unable to determine the extent to which his mother's antecedents might or might not have contributed to his circumstances. In the end, his protracted pattern of callous self-absorption and his ready resort to violence gives prominence to the punitive facets of sentencing.

Sentencing Decision

[33] Mindful of the governing principles, and the limits set by the Crown having proceeded by summary conviction, I impose a disposition that escalates from a fine in the first instance, and which, as the unmitigated unmistakable pattern of conduct emerges, results in a global sentence of fifteen months incarceration. The sentences will be imposed as follows:

• First assault: $2,000 fine
• Intimidation – the offender's defining modus operandi – 6 months
• Second assault – 60 days
• First sexual assault – 90 days
• Second sexual assault – 120 days

All jail terms will be served consecutively, bearing in mind both the principles of totality and the principle of restraint. This yields a sum total sentence of a $2,000 fine and 15 months jail sentence.

Rehabilitation and Probation

[34] The possibility of rehabilitation forms an essential part of the sentencing mix. The jail sentences will be followed by a period of probation of eighteen months. Mr. McCart is still very young. He has appears to be capable of showing a winning personality, and to be capable of accomplishment both as a swimmer, and as an employee in his father's business. He has acknowledged the benefit he reaped as a younger teen, when placed in a group home. What appears to be missing is a moral compass and some emotional intelligence. These are not minor deficits. They make the difference between an emotionally mature man, and one who uses his strength and wiles to take advantage of others. It is the difference between an adult capable of conducting himself in a civil, productive manner, and one who exploits vulnerable or weaker persons for his own selfish purposes. My wish is that Mr. McCart gain some insight into his own conduct, and set aside those anti-social tendencies. I believe Mr. McCart can prove to be a responsible and contributing member of the community. I am obliged to impose a harsh denunciatory sentence, given the pattern of criminal conduct before me, but moderate the periods of incarceration from the sentence sought by Crown with a view to Mr. McCart's re-entry to society as a much better person.

[35] I ask counsel for your assistance in framing terms of probation, and also concerning time to pay the fine, and any other ancillary orders.

Released: August 23, 2016

Signed: Justice S.R. Shamai