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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Ontario Court of Justice

Date: August 27, 2018

Between:

Her Majesty the Queen

— and —

Wyatt Kennedy

Before: Justice Andre L. Guay

Heard on: August 27, 2018

Decision on Sentencing released on: August 27, 2018

Counsel:

• David Beaton, counsel for the Crown
• Brad Alliston, for the defendant Wyatt Kennedy

Decision

Guay J.:

[1] The accused, Wyatt Kennedy was charged with sexually assaulting MW on April 3, 2015 contrary to section 271 of the Criminal Code of Canada. On November 27, 2017 I found the accused guilty as charged and remanded the matter over for sentencing. The sentencing hearing commenced on July 19, 2018 and was adjourned for a decision today.

The Sexual Assault

[2] At the time of the offence, the accused was 19 years of age while the complainant was 16 years of age. The offence occurred at the home of the complainant's friend while the complainant was asleep in a bed located in her friend's brother's room. There was nothing unusual about the complainant sleeping in one of the two beds in the brother's room as this had occurred before. The friend's brother had always been respectful of the complainant and it was accepted that she could use that bed when staying overnight at her friend's home if there was no other bed available for her to sleep in.

[3] After a night of socializing, with some alcohol involved, the complainant retired at about 3:00 a.m. to sleep in one of the two beds in the brother's room. At about 3:30 a.m., the brother and one of his friends retired for the night to sleep in the other bed in the brother's room. Shortly after, the accused followed them to the brother's room and, despite finding the only available bed in which to sleep was partly occupied by the complainant, he undressed and went to sleep in that bed. By this time, the complainant was sound asleep; the brother and his friend seemed to have fallen asleep quite quickly.

[4] At some time around 4:00 a.m., the complainant awoke in pain to find the accused on top of her with his penis in her. She panicked and was frozen with fear not knowing what to do, being afraid to do very much except pretend that she was asleep. At one point, the accused left the room and went to the nearby washroom. He soon returned to the bedroom and, after trying to resume his assault on the complainant, appeared to fall briefly asleep. It was at this point that the complainant was able to escape to her friend's room in which the two beds there were occupied by her friend and the other girls. The complainant hid behind the door of that bedroom when the accused came looking for her. Once the accused had given up looking for her and returned to the bed they had been sleeping in, the complainant managed to squeeze into one of the beds in her friend's room where two of the other girls were sleeping; here she fell asleep until the morning. At around 7:00 a.m., the complainant awoke and called her mother to come and get her, telling her what had happened during the night.

Sequel

[5] After first attending at a local hospital, the complainant and her mother were directed to attend at Health Sciences North Hospital in Sudbury for the purpose of completing a rape kit. This was done and, in the end, the accused was, through detection of his saliva on the complainant's breast, identified as the person who had sexually assaulted the complainant. Of note, no semen was identified in the sexual assault testing performed on the complainant.

[6] In the morning, the accused was found sleeping in the bed occupied by him and the complainant the previous night. The accused maintained that he had no memory of the events which took place. In reviewing the evidence at trial, I found the behaviour of the accused following his sexual assault of the complainant odd. The sexual assault had obviously not been planned and the accused did not appear to be aware of where he was or what he was doing during the night of April 3-4, even though he had wanted to continue his sexual assault of the complainant to a conclusion once it had begun. Given my finding that he had had non-consensual, sexual intercourse with the complainant, it was surprising that in the morning, the accused was found sleeping in the same bed he had shared with the complainant during the night. This struck me as unusual in that, under the circumstances, one would have expected him to have placed as much distance as he could between himself and the scene of his assault. What was also unusual or at least unexpected, was that the accused, who did not have a drinking problem, had consumed enough alcohol the evening leading up to the assault to impair his decision-making and, apparently, his sexual activity. This said, the accused chose to drink and was therefore legally responsible for what he did under those circumstances.

[7] While some community members and, in particular, fellow high school students chose to blame the complainant for what happened to her, I find clearly that she did absolutely nothing to encourage the accused or set the stage for what happened to her during the early morning hours of April 4, 2015. She relied on past practice to seek out the only bed available to her at her friend's home and could never have anticipated that the arrival of the accused at her friend's party would result in him choosing to get into the bed where she was soundly sleeping during the middle of the night.

Case Law

[8] The case law in matters where a male accused has sexually forced himself on a sleeping or unconscious woman and the matter proceeds by indictment strongly favours the imposition of a jail term together with a lengthy probation order on the accused. In such circumstances, the period of incarceration ranges from 18 to 36 months, depending on the circumstances. (see R. v Smith, 2015 ONSC 4304). The maximum penalty which could be imposed on the accused in the present case, however, is 18 months since the case proceeded by way of summary conviction. Whether proceeded with summarily or by indictment, the principle still holds that the more outrageous the circumstances of the sexual assault, the greater the penalty. This reflects the principle of proportionality set out in section 718.1 of the Criminal Code. It states:

[9] "A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender".

[10] In R. v M.R., 2018 ONSC 583, a case which proceeded by way of summary conviction, the court referred to section 718.1 of the Code as encompassing the "fundamental principle of sentencing", drawing attention to the factors in section 718.2(a) of the Code which the court stated were to be considered in "crafting a sentence in harmony with the fundamental principal [of sentencing]" (paras. 15 and 16). Citing the factor of the need to balance the aggravating and mitigating factors in the case before it, in M.R. the court went on to sentence the 64 year old accused to a custodial term of 14 months, concerned as it was with the apparent planning of the offence by the accused as well as his position of authority over the 22 year old male complainant.

[11] In the present case, there were not many aggravating or mitigating circumstances. The main aggravating factors were that the accused chose to force himself on the complainant without her consent while she was asleep and defenceless. The principal mitigating factors were that the accused has made use of the period since his sexual assault of the complainant to better himself educationally and to secure employment, all the while respecting the interim release conditions imposed on him by the court. He has not re-offended in any manner and has not bothered or harassed the complainant.

[12] It is clear that the offence committed by the accused is a grave one. The complainant as well as her mother and her closest friend were traumatized by what happened and its collateral consequences. The greater sentencing difficulty in the present case, I find, is more that of the degree of responsibility of the offender. This offence occurred not because the accused planned to commit it or was in a position of trust or superiority vis-à-vis the complainant but because he made at least two very bad choices which led to the commission of the offence committed by him: he drank too much during the evening preceding the assault and he got into the bed in which the complainant was sleeping.

[13] The Crown has asked for a jail term in this case, whereas the defence is requesting the imposition of a conditional sentence, together with a lengthy term of probation. Since the time of accused's sexual assault of the complainant, he has completed high school as well as a technical college program. He has secured a job with a Manitoulin Island company. The accused has been under some form of undertaking or recognizance since he was charged with the offence of sexual assault in late December 2015. While the restrictions on his freedom were not onerous, he has complied with court ordered conditions governing his release, these conditions having been greatly modified a year later in December 2016.

[14] Despite the fact that the accused availed himself of the right to a trial, I find that he initially acknowledged responsibility for his actions. His initial remorse and self-deprecation changed once he secured legal representation. While ordinarily an early guilty plea signals remorse, the serious penal consequences of a further show of remorse probably frightened him enough to lead him to put the Crown to the strict proof of his offence. For a young adult of previously good behaviour, the strong possibility of a significant period of incarceration following a conviction would certainly have frightened him. I have no doubt that this possibility has weighed significantly on him since the court found him guilty of sexually assaulting the complainant.

Analysis

[15] In R. v Thurairajah, 2008 ONCA 91, Doherty J.A. reviewed the approach a sentencing court should take in determining whether a section 742.1 conditional sentence should be considered as a sentencing option. The first consideration is, of course, whether such a sentence is available in light of what the court intends to do by way of sanctioning the offender. If the court decides that the appropriate custodial sentence, if there is to be one, is less than two years, then the door is open to consider the other criteria at play in such a situation. Having assessed the evidence in this matter, I am not of the view that this would be an appropriate case for a sentence of two years or more even if such a sentence were available. I note in any event that the Crown in this case elected to proceed by way of summary conviction, thereby limiting the range of sentencing available to this court.

[16] Other factors permitting a conditional sentence include a consideration of whether the offence is one for which the making a conditional sentence is precluded by law and whether it is one for which there is a minimum term of imprisonment. Of great concern is the requirement that the court must be "satisfied that the service of the sentence in the community would not endanger the safety of the community" and that such a sentence "… be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code."

[17] A conditional sentence must meet the objectives of sentencing set out in section 718 of the Code. These objectives include denunciation, specific and general deterrence as well as the goal of separating offenders from society where necessary, assisting in the rehabilitation of offenders, reparation for harm done to the victim(s), the promotion of a sense of responsibility of offenders and an acknowledgement of harm done to the victim(s) and to the community.

[18] In Thurairajah, (para. 41) Doherty J.A. points out that "sentences imposed on young first offenders will stress individual deterrence, where necessary, and rehabilitation. General deterrence, he notes, will play little, if any, role in fashioning the appropriate sentence in this category of offender in most cases". He goes on to note:

[19] "….Serious crimes of violence, particularly sexual assaults, do provide an exception to the general rule described above. 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."

[20] In Justice Doherty's view (para. 42), the emphasis in cases similar to the present one should "be on denunciation and to a lesser extent general deterrence, which grows with the seriousness of the particular circumstances surrounding the sexual assault for which an accused, even a young accused, is being sentenced".

[21] Justice Doherty (para. 43) concludes that in the case before him, where the treatment of the complainant was particularly demeaning (my emphasis), there was a need to place "a heavy emphasis on general deterrence and particularly denunciation". This said, he acknowledged "… that a conditional sentence can in some circumstances adequately address these objectives, particularly where the conditions imposed have a significant punitive element" but that "… there will be circumstances in which the demands of denunciation and/or general deterrence are so pressing that incarceration is the only suitable disposition".

[22] Earlier in R v Killam, Doherty J.A. speaking for the Court confirmed a conditional sentence on a 20-year-old man whom the sleeping complainant awoke to find having sexual intercourse with her. Under appeal was a decision in which the sentencing judge had granted a young first offender a lengthy conditional sentence of two years less a day, with significant restrictions on his liberty, including house arrest for six months. Having observed that in the case before the Court the principle of specific deterrence did not demand incarceration, Doherty J.A. noted his concern with respect for the principles of general deterrence and denunciation stating:

[23] "I am particularly concerned about denunciation … A conditional sentence, if properly understood, can adequately address the needs of denunciation and general deterrence even in cases where those principles are paramount. I think, however, it must be acknowledged that a conditional sentence, even one like this one which imposes some significant restrictions on the offender's liberty, does not, generally speaking, have the same denunciatory effect as a period of imprisonment. Incarceration remains the most formidable denunciatory weapon in the sentencing arsenal". (para. 13)

[24] Noting that at that moment the conditional sentence option was "a new option in sentencing" and that its purpose was "to reduce the number of persons who are incarcerated", (para. 7) Doherty J.A. acknowledged the wisdom of the Chief Justice of Canada, Lamer C.J.C. (as he then was), where the Chief Justice (see R. v. M. (C.A.)) spoke about the deference owing to the sentencing judge on account of his or her unique perspective in sentencing matters. Notwithstanding his personal belief that in the case before the Court denunciation required incarceration, Doherty J.A., speaking for the Court, rejected the Crown's appeal, subject to the need to add to the sentence a lifetime weapons prohibition pursuant to section 109(2)(b) of the Code.

[25] Interestingly, in R. v. Smith, (2015 ONSC 4304), a summary conviction appeal case, the court overturned a conditional sentence of 16 months handed down to a 25 year old young adult who had sexual intercourse with the complainant while she was asleep in his bed. In the court's view, the trial judge had erred "in failing to appropriately balance all of the relevant sentencing considerations" leading him to impose an unfit sentence. More particularly, the court noted, the trial judge had "failed to consider the importance of denunciation, and overemphasized the importance of rehabilitation" which led to the imposition of a sentence "that was not proportionate to the gravity of the offence and the degree of responsibility of the offender". (para. 37) By contrast, in the present case, the greater need is more for denunciation and general deterrence than for rehabilitation.

Assessment

[26] The case law supportive of the granting of a conditional sentence in matters such as the present one is not robust in its discussion of the principles underlying the granting of such a sentence. Ontario Court of Appeal cases such as Killam (above), Pecoskie, and Nikkanen, are based largely upon their particular facts. One might conclude that a major consideration in cases such as these is the time it has taken to try the case and proceed to sentencing, together with the rehabilitative progress of the accused during this period. One is left with the impression that while the principles of denunciation and deterrence are the cardinal principles customarily applied in such cases by different levels of court, there can be a departure from the norm depending on delays in trying the case, the rehabilitation of the offender, meaningful restrictions placed upon the liberty of the accused in the sentence imposed, the presence of mitigating factors and the absence of aggravating ones.

The Accused

[27] Aside from what has already been said about the character accused, I note that he obtained a favourable pre-sentence report. What emerges from this report and the other evidence in this matter is that the offence was very much out of character for him. The accused does not have a prior criminal record, even as a youth. He has been and continues to be respectful of parental authority. He does not have any noticeable or significant problems with either drugs or alcohol. He was, in fact, liked by his teachers as well as by his fellow students while attending high school. He was very involved in sports while attending high school. He is currently gainfully employed.

[28] The accused suffers from stage four T-Cell Lymphoma cancer, which is presently in remission. While no medical evidence was introduced on this point, I understand that his cancer might return if he is subjected to undue stress. There is a consensus that stress can make an individual more susceptible to cancer. I also understand that in sentencing an accused, I may take his or her medical condition into consideration as a collateral consequence. (see R. v Suter, 2018 SCC 34). There are a number of cases across Canada dealing with the impact of an accused's medical condition on the sentencing process. The courts have not always acceded to defence arguments that a "credit" ought to be given for an accused's pre-existing medical condition at the time of sentencing but sometimes they have. In one or more of the cases where this has been the case, caution has been had not to let this factor undermine respect for the key principles of denunciation and deterrence. (see for example R. v McCrystal, [1992] O.J. 385 (ONCA); R. v Mesgartha, 2014 ONCJ 238; and R. v Auckland, 2018, 146 W.C.B. (2d) 638 (B.C.C.A) for different approaches to this issue.)

[29] A conditional sentence may be seen by some as a slap on the wrist and not strongly deterrent when compared to a term of incarceration. In Smith (above) the court stated: "There is, however, no gainsaying the reality that conditional sentences, even those with significant restrictions on liberty and punitive terms, do not have the same denunciatory effect as a period of actual imprisonment". (para. 36) This said, I am nevertheless able to conclude that where conditional sentences have been imposed, they may be upheld providing significant restrictions have been placed on the accused's liberty and the conditional sentence amounts to more than a glorified probation order. In this respect, I am particularly aware of the need for the sentence imposed on an accused in circumstances like the present one to clearly reflect the principles of denunciation and general deterrence. A conditional sentence imposed on the accused must by its terms serve to denounce his criminal behaviour.

Sentence

Conditional Sentence

[30] For the reasons noted, I am going to impose a conditional sentence of 18 months on the accused. This sentence is to be served in the community. Pursuant to this sentence, the accused will initially be placed under strict house arrest for the first six months of the sentence with no exceptions for work. The sentence shall contain the usual exceptions to house arrest relating to accessing emergency health care, attending to his personal affairs on Saturday or Sunday each week for a four-hour period, attending church services, any counselling or therapy sessions or programs directed by his conditional sentence supervisor, required for the purpose of reporting to his conditional sentence supervisor and performing any obligations required of him under this conditional sentence.

[31] I realize that the term relating to house arrest will have an impact on the progress the accused has made since committing his sexual assault of the complainant, but I can see no option but to impose such a condition if I am to ensure that the conditional sentence is not simply a probation order which permits the accused to carry on his life as he normally would without a significant impact on his liberty. While served in the community, a conditional sentence is meant to be a custodial sentence.

[32] The conditional sentence shall include the compulsory conditions pursuant to section 742.3 of the Criminal Code, including, in particular, a condition not to associate or communicate with the complainant directly or indirectly. He shall not be or attend in the vicinity of her home, school or employment unless required for purposes of his employment. Further, should the accused attend at a place, gathering or social event where the complainant is present, he shall immediately leave that place and not encourage anyone in attendance there or in his company to disparage or bother her in any way.

[33] In the second six-month period of the conditional sentence, the accused will be subject to a curfew of 9:00 p.m. until 6:00 a.m. each week, except when required for work purposes and then on notice to his conditional sentence supervisor.

[34] In the last 6 months of the conditional sentence, the accused shall abide by a curfew from 12:00 a.m. to 6:00 a.m. except when required for work purposes and on notice to his conditional sentence supervisor or unless varied by his conditional sentence supervisor in writing for some other purpose.

Probation Order

[35] The conditional sentence will be followed by a probation order of 12 months and contain the following terms and conditions:

[36] (1) Keep the peace and be of good behaviour; (2) Report to the probation officer within 72 hours of the termination of his conditional sentence and then as directed; (3) Maintain a curfew from 12:00 a.m. until 6:00 a.m. for the first 6 months of his probation order; (4) Perform 100 hours of community service and (5) Remain away from the complainant, her home and place of work or school. In addition, (6) If at any time during his probationary period the accused should arrive at a social gathering where the complainant is in attendance, he shall immediately leave those premises without disparaging the complainant or encouraging others present or in his company to do so.

Ancillary Orders

[37] In addition to the conditional sentence and probation order, there will be a number of ancillary orders. These will include the following:

(1) A ten-year section 109 order under the Criminal Code prohibiting him from possessing or using firearms or weapons of any kind and ammunition;

(2) A DNA order under section 487.051 of the Criminal Code;

(3) A ten year order under the Sex Offender Information Registration Act and section 490.012(1) of the Criminal Code.

Dated and released at Gore Bay, Ontario, this 27th day of August 2018

Signed: Justice A. L. Guay, O.C.J.