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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(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.: Kenora 143300
Date: 2017-04-07
Ontario Court of Justice
Between:
Her Majesty the Queen
- and –
R.D.
Before: Justice Sarah Cleghorn
Heard on: February 23, 2017
Reasons for Sentence Released on: April 7, 2017
Counsel:
Mr. Josh McKay ……………………………………………………… for the Crown
Mr. Aaron Seib ……………………………………………………… for the Accused
CLEGHORN J.:
Introduction
[1] After a two-day trial, I found the defendant, R.D., guilty of sexually assaulting A.P., who was 17 years of age at the time of the assault. These are my reasons for sentence.
Circumstance of the Offence
[2] The circumstances surrounding the commission of the offence are set out in my reasons for judgement, released November 3, 2016. As a result, I will only provide a very brief overview of the events that transpired in the early morning hours on December 17, 2014.
[3] There are three homes located on a family property that are within very close proximity to one another and consist of the defendant's home, his parent's home and his sister's home. At the time of the offence, the defendant's sister was in a common-law relationship with the father of the complainant, A.P. On the morning in question, the complainant was home alone. Her father and the defendant's sister were away on a holiday.
[4] That night the defendant was socializing and drinking at his home with his wife and another couple. After all of the adults had retired for the evening, the defendant wandered over to his sister's home, where he knew the complainant was home alone. The defendant's stated motivation for visiting the complainant was to "bum" a cigarette. After sharing a cigarette, the defendant retrieved some marihuana from his residence before returning to the victim's home, where the two proceeded to smoke some marihuana together. After the defendant left, A.P. went to sleep.
[5] Some time later A.P. woke when she felt a hand on her naked breast and vagina. It was the defendant who she discovered touching her naked body. Alarmed, A.P.'s first response was to ask the defendant what he was doing. The defendant did not immediately stop. Instead, he responded by telling A.P. that "it was okay" and asking her to give him "just five minutes" and to "just let him do it". She told him to leave and pushed him away.
[6] The assault ended when A.P. forcefully pushed the defendant (for a second time) against the wall and again told him he had to leave.
[7] At the time of the sexual assault the victim was in an extremely vulnerable position. A minor, home alone on an isolated rural property, in the early morning hours of a winter night, and likely in a state of impairment from the marihuana she had consumed earlier with the defendant.
Circumstances of the Offender
[8] R.D. is 40 years old and a life long resident of the City of Kenora. He has one older sister. His entire childhood was turbulent as he was exposed to the impact of his father's excessive alcohol use, witnessing domestic violence and being raised in fear of his father. Although I do not find it necessary to outline all the traumas inflicted upon R.D. during his childhood, his upbringing can be summarized as dysfunctional and lacking the security and structure that all children require. Not surprisingly R.D. was negatively impacted by his upbringing.
[9] R.D.'s education was adversely affected by the instability of his home life. He chose to leave school in grade 9 and enter the workforce as a labourer in the construction field. His employment is seasonal and R.D. tends to work with different employers for limited periods of time. R.D. is currently unemployed.
[10] R.D.'s first serious relationship occurred at the age of 17 and produced two children. This relationship ended after 7 years, largely as a result of R.D.'s decisions to "party" excessively, with his home life being of secondary priority. He has a conviction for assaulting his partner during this timeframe. Upon separation the children remained primarily in the care of their mother.
[11] At the time of the offence date, R.D. was married. His wife brought to their union a 10-year old daughter from a prior relationship. Keeping in mind privacy issues, this marriage can only be described as non-traditional, dysfunctional and toxic. There were significant issues with alcohol and drugs that spanned the entire marriage.
[12] The parties decided to separate on a permanent basis in July of 2016. The impact of the outstanding trial, alcohol and drug use, along with the crumbling of his marriage, has left R.D. in a fragile mental state where he has experienced significant mental health issues on more than one occasion.
[13] R.D. has a long-history of alcohol and drug use going back to his teenage years. Those issues have negatively impacted all of his interpersonal relationships, his employment and, most concerning, his physical and mental wellbeing.
[14] In December of last year, R.D. made the pro-active decision to enter into a residential treatment program. He has successfully completed the program and is engaged in after treatment counselling. R.D. has recently established a goal of achieving his sobriety and he appears to have taken meaningful steps towards achieving that goal.
[15] R.D. is not a first offender. That said, his criminal record is very dated. On June 9, 1997, he has the following entries:
- Possession of stolen property - 6 month conditional sentence;
- Fail to appear – 2 month conditional sentence, consecutive;
- Assault (domestic violence); suspended sentence, 12 months of probation
- Impaired driving; $750.00 fine.
[16] In addition to the adult convictions, he has a number of youth convictions from 1992 and 1993.
[17] R.D. continues to maintain his innocence.
Positions of the Parties
[18] On behalf of the Crown, Mr. McKay submits that the appropriate range for this offence in these circumstances is 6 to 9 months imprisonment, followed by 2 years of probation. In dealing with the ancillary orders, the Crown seeks an order for a sample of D.N.A. and a 10-year SOIRA designation.
[19] In addition to the principles and objectives of sentencing, the Crown argues that the victim's age and the defendant's position of trust in relation to her are aggravating factors that require a custodial sentence of between 6 and 9 months. As already noted, the victim was only 17 years of age at the time of the offence. In terms of the breach of trust, the Crown argues that for all intents and purposes, the defendant was the victim's "step-uncle" when he committed this assault. Lastly, the Crown argues that there are no exceptional or mitigating circumstances that warrant a non-custodial sentence or conditional sentence order.
[20] On behalf of the defendant Mr. Seib submits that the principles and objectives of sentencing are best achieved by imposing a conditional sentence. In the alternative, Mr. Seib argues that a sentence in the range of 60 to 90 days (to be served intermittently) is the appropriate sentence should the court be of the view that a custodial sentence is warranted.
[21] The Crown put forward a number of cases for the Court's consideration. Mr. Seib argues that the ranges as set out in the case law relied upon by the Crown are quite easily distinguished from the circumstances of this case. The cases deal with children under the age of 16, a different offence for which a mandatory sentence is specified. Further, Mr. Seib disputes that the relationship as between the victim and the defendant is one that would create a "breach of trust".
[22] Further, the defendant has now achieved and maintained his sobriety for a number of months. He has taken positive steps in his life, including making the difficult decision to separate from his spouse, distance himself from all prior negative peer influences, and develop a plan to relocate out of the community on a permanent basis to start a fresh chapter in his life. In short, the process of rehabilitation is well under way for R.D.
Law and Analysis
[23] The principles and objectives of sentencing are well established and set out in section 718 of the Criminal Code. Denunciation, general and specific deterrence, separation of offenders from society, rehabilitation, reparation to victims, and promoting a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community are the objectives to be met in imposing the appropriate sentence. This is always an individualized process that takes into account both mitigating and aggravating factors.
[24] By achieving the appropriate sentence "respect for the law and the maintenance of a just, peaceful and safe society" the fundamental purpose of sentencing is hopefully achieved. (See section 718 of the Criminal Code).
[25] In addressing the fundamental principles of sentencing, the court must turn it's mind to the gravity of the offence and the degree of responsibility of the offender. In doing so, this shall ensure that the sentence imposed squarely addresses the seriousness of the crime and the offender's level of moral blameworthiness in its commission.[1]
[26] I will begin the analysis by addressing the gravity of the offence.
[27] Mr. Seib's submits that the sexual assault should be viewed as one that falls at the lower end of the spectrum. Mr. Seib notes this is not a case involving repeated acts, this was an event of relatively short duration involving inappropriate touching.
[28] Despite Mr. Seib's able submissions, I do not accept that the assault in this case is at the low end of the spectrum of sexual assaults. In my view, this was not an assault involving a fleeting touch over clothing or an unwanted kiss. That said, nor do I think this offence is at the upper end of the spectrum. Thankfully, the events were of brief duration and there was no penetration. The assault perpetrated here is more aptly described as falling within the mid-range. R.D. preyed upon a young adolescent who he knew to have impaired judgment. He perpetrated his assault upon the victim when she was asleep and naked. He did not stop immediately when the victim asked him to do so. He touched both the victim's breast and her vagina. This was a serious sexual assault.
[29] Turning to the mitigating and aggravating factors, there are simply no mitigating factors to note.
[30] There are, however, a number of aggravating factors. This sexual assault did involve a breach of trust. R.D. was, at the time of the assault, part of A.P.'s extended family. The sole reason R.D. knew the victim was home alone was because her father was in a serious common law relationship with R.D.'s sister. As a result, it was not surprising that the victim testified she was not afraid when she initially woke up and saw R.D. in her home. He was family, after all. He lived only a stone's throw from her house on a shared family property. She had an understandable sense of security in this shared living arrangement, and she was therefore not alarmed by R.D.'s presence in the middle of the night. Relationships of this nature are common amongst stepfamilies in this day in age. In short, R.D. took advantage of his position as A.P's step-uncle in committing this offence. This crime therefore involved a significant breach of trust.
[31] Section 718.01 directs that when sentencing an offender for an offence against a child under the age of 18, the court "shall give primary consideration to the objectives of denunciation and deterrence of such conduct."
[32] Under section 718.2(ii.1) and (iii) of the Code, Parliament has directed that the victimization of a person under the age of 18, as well as a breach of trust, are both aggravating factors that should be reflected in the sentence imposed.
[33] A.P. completed a victim impact statement that became an exhibit on sentencing. It provides much insight into how this crime has impacted her. Section 718.2(iii.1) further directs that if "the offence has a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation" this shall be treated as an aggravating factor.
[34] For A.P. this crime has caused her to become distrustful of other people. It has had a profound and negative impact on her emotional and psychological wellbeing. She has isolated herself, lost friendships and transformed from a person who was optimistic about the world and other people to someone who now perceives everything through a negative lens.
[35] In applying the objectives and principles of sentencing, taking into account the significant aggravating factors noted above, I believe that a conditional sentence would be inappropriate in all of the circumstances of this case. For a crime of this nature committed in these circumstances, the law demands a sentence that serves the objectives of deterrence and denunciation. In my view, nothing short of a custodial sentence to be served in a correctional facility would adequately address these objectives.
[36] Further I am not satisfied that a 90 day intermittent sentence would be adequate in terms of addressing the principles and objectives of sentencing in this case. The defendant committed a serious sexual assault involving a child in circumstances involving a breach of trust. Given this, I have concluded that a sentence of 9 months imprisonment is necessary to properly address the objectives of sentencing in this case.
Sentence and Conditions
[37] The 9-month custodial sentence is to be followed by 24 months of probation. While on probation, R.D. will be subject to the following conditions:
- That you keep the peace and be of good behavior;
- That you attend court, if and when directed to do so;
- That you advise the court or your probation officer, in advance, of any change of name, address or occupation;
- That you report to probation services within 2 working days of your release from custody, and thereafter if and when directed to do so by your probation officer;
- That you reside where approved of by your probation officer and not change that residence without the prior approval from either your probation officer or the court;
- That you are not to have any contact, directly or indirectly with A.P and C.P. nor are you to be within 50 meters of any place you know them to live, work, go to school, or frequent;
- That you take any counseling as recommended by your probation officer;
- That you sign any necessary releases to allow your probation officer to monitor your attendance for any counseling that is recommended and your completion of same.
[38] This is a primary designated offence. Therefore, pursuant to s 487.051 of the Criminal Code, I am required to order that a sample of your blood be taken for the purposes of including your DNA profile in the National DNA Databank.
[39] Finally, R.D. is to be designated as a person convicted of a designated offence pursuant to s.490.011(1)(a) of the Criminal Code for a period of 10 years, and will therefore be required to comply with the terms of the Sex Offender Information Registration Act for that period.
Released: April 7, 2017
Signed: "Justice Sarah Cleghorn"