WARNING

The court hearing this matter directs that the following notice be attached to the file:

Non-publication and non-broadcast orders in this proceeding have been issued under s.486.4(1) (Sexual Offences) of the Criminal Code.

Court Information

Ontario Court of Justice

Date: April 12, 2016

Court File No.: Newmarket 12-08601

Between:

Her Majesty the Queen

— AND —

F.B.P.

Sentencing

Counsel:

• Ms. Shambavi Kumaresan, counsel for the Crown
• Mr. Aaron Harnett, counsel for the accused

Judge: Kenkel J.

Introduction

[1] The complainant was on a trip to Toronto with a group of friends. One evening she became so intoxicated a witness said she "wasn't able to function any more" she was "unable to hold up her body". The accused helped her back to her bed. Later that evening he had sexual intercourse with her. He failed to take any steps to ascertain consent despite the complainant's extreme intoxication. She was unaware they'd had sex until he told her two days later. The accused was convicted of sexual assault at trial.

Position of Counsel

[2] The Crown proceeded by Indictment. The Crown submits that a sentence of 2 years less 1 day is appropriate taking into account the circumstances of the offence and the personal circumstances of the accused as a first offender.

[3] The defence requests a sentence of 6 months less 1 day. Cases submitted by the defence show sentences in similar circumstances ranging from 90 days to 2 years less 1 day. The accused is a permanent resident and may suffer immigration consequences if a sentence greater than 6 months is imposed.

[4] The defence submits that in cases where the complainant is incapable of consent, sentences range from 90 days, R. v. San Salvador, 2007 ONCJ 390, to 2 years less 1 day R. v. Cubillan, 2015 ONSC 2487. Cubillan cites R. v. Bartlett, [1997] OJ No 2333 (CA), where a 2 year less 1 day sentence was imposed for non-consensual intercourse due to intoxication. In Bartlett the accused had a criminal record not specified in the decision. A sentence of 14 months was found to be at the low end of the range in another case where the accused had intercourse with a woman who could not consent due to intoxication. R. v. Colbourne, 2013 ONCA 308. In that case the appellant's health and personal circumstances supported a sentence at the low end of the range.

Aggravating Factors

[5] The factors that aggravate sentence for this sexual assault:

• The accused took advantage of a vulnerable victim
• The accused chose not to use birth control which exposes the complainant to risk of possible harm and pregnancy R. v. Cubillan, 2015 ONSC 2747, at para. 32

[6] I disagree with the Crown that the act was planned even in the limited sense she submitted. I find it was an opportunistic act. The accused showed terrible judgement due in part to alcohol consumption.

Mitigating Factors

[7] The following factors mitigate sentence:

• The accused is a youthful offender
• He has no criminal record
• He has family support
• He has a good record of employment

[8] I agree with the defence that the evidence at trial showed that the accused is otherwise a person of good character.

Analysis

[9] Where a person takes sexual advantage of a vulnerable victim, specific and general deterrence are the central factors on sentence. This sentence must also denounce the conduct, ensure that society is protected and provide for the accused's rehabilitation.

[10] The complainant declined to provide a Victim Impact Statement, but at trial she described her shock upon learning that the accused took advantage of her and the steps she had to take afterwards including taking "morning after" medication to avoid pregnancy.

[11] The sentence for an offender who has sexual intercourse with a sleeping or unconscious victim ranges between an upper reformatory term of imprisonment and a lower penitentiary sentence. R. v. J.F., 2015 ONSC 5763, at para. 35, (18 months – 3 years R. v. Smith, 2015 ONSC 3513, at para. 32). Where the Crown proceeds by Indictment a conditional sentence is not available.

[12] An 18 month sentence was imposed for a youthful first offender in similar circumstances in R. v. J.F., 2015 ONSC 5763. In R. v. H.H., [2002] OJ No 1509 (CA), an 18 month sentence was imposed with the added circumstances that the accused was in a position of authority and that the victim woke up and protested. A 15 month term was imposed for a 29 year old offender with no record and good employment history in a case where a conditional sentence had been requested as then available, R. v. JS 2011 ONSC 1743. Two years was identified as being at the low end of the range where two persons took advantage of a woman who was unable to consent and both chose not to use protection. R. v. J.R., 2008 ONCA 200. Leave refused [2008] SCCA No. 189.

[13] I accept that the accused's actions were not planned. The offence was opportunistic involving very poor judgment on a night when the accused himself had also been drinking.

[14] The gravity of the offence typically requires a custodial sentence in the upper reformatory range even for a youthful first offender. I've considered the defence request for consideration of a sentence of 6 months less 1 day, and I agree with the defence that immigration consequences may properly be considered in many cases in determining a fit sentence. See: R. v. Pham, 2013 SCC 15. In this case however, the sentence proposed by the defence is too far outside the appropriate range and would result in a sentence that is unfit.

[15] Considering the circumstances of this offence, the impact on the complainant and FBP's personal circumstances I find that a sentence in the lower end of the range would meet the purpose and principles of sentence in this case.

Sentence

[16] FBP is sentenced to 18 months in jail to be followed by probation for 2 years on the following conditions:

• Keep the peace and be of good behaviour
• Report to probation as required
• Participate in any counselling programs directed by the probation officer for sexual offences
• Sign any releases required to permit the probation officer to monitor counselling or compliance with this order
• Not have any contact directly or indirectly with the victim or any member of her immediate family
• Not be within 100 metres of the victim's residence, school or place of employment

[17] I recommend that probation supervision be transferred to Winnipeg, Manitoba where the accused resides.

[18] This is a primary designated offence. Accordingly, I will order that the accused provide a sample of his DNA for registration on the national databank.

[19] I will also make a SOIRA sex offender registry order for a period of 5 years.

[20] There is a mandatory s.109 order for 10 years prohibiting the accused from possessing any firearms or related items set out in that section for a period of 10 years.

[21] There will be a victim fine surcharge as provided by statute.

Released: April 12, 2016

Justice Joseph F. Kenkel