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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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
Date: November 30, 2018
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
N.A.
Before: Justice Susan M. Chapman
Reasons for Sentence released on: November 30, 2018
Counsel:
- B. Bovell, counsel for the Crown
- N.A., not represented or present
CHAPMAN, J.:
Overview
[1] For reasons released on August 24, 2018, I found N.A. guilty of the offences of assault, assault with a weapon, sexual assault with a weapon, uttering threats, choking, unlawful confinement, breach of recognizance and mischief, all in relation to events that took place between January of 2016 and May of 2017. All of the convictions stem from N.A.'s ongoing abuse of Ms. C. who is the mother of his child and his former domestic partner. Count 3 on the information will be stayed pursuant to Kienapple.
[2] Following his conviction, the Crown sought N.A.'s detention in custody pending sentencing. However, I extended his bail to the sentencing hearing scheduled for November 14, 2018. He was released on a surety bail with house arrest terms. I also ordered a pre-sentence report to be prepared. In early November, counsel and the court received a letter from the probation officer tasked with the preparation of the pre-sentence report. She informed us that N.A. did not attend for the preparation of the report and that, despite her repeated efforts to contact him, she was unable to do so.
[3] Then N.A. did not attend the sentencing hearing scheduled for November 14, 2018. A hearing was held pursuant to s. 475 of the Criminal Code. Based on the evidence called, I made a finding on that day that N.A. had absconded and that the sentencing hearing would proceed in his absence. His then counsel asked to be removed as counsel of record and I granted the application and the sentencing hearing proceeded. The Crown seeks 50 months custody along with certain ancillary orders. I reserved my decision on sentence to November 30, 2018.
[4] These are my Reasons for Sentence.
Background
[5] N.A. and the complainant met in high school and began living together in September of 2015. They were both 18 and 19 years old during the events that are the subject of the convictions. Shortly after they moved in together, N.A. started to become angry and abusive towards Ms. C. By way of background, with the consent of counsel, evidence was led that N.A. was often jealous and angry when he lived with Ms. C. in the Fall of 2015. He would grab her hand when she was talking to other people on the phone and yell and scream at her.
[6] Then matters escalated and in October of 2015 there was an incident during which N.A. would not let the complainant leave for work. He screamed at her, pushed her around and threatened to remove all of her makeup with a knife. This argument went on for some time. A person on the street tried to intervene but to no avail.
[7] There were similar incidents on other occasions between September and December of 2015. In fact it became a regular event that N.A. would use force to push Ms. C. to the ground and scream at her. She eventually decided to end the relationship in January of 2016. It was agreed that he would find a new place to live as the lease to their apartment was in her name. However, N.A. did not move out right away and that same month they found out that Ms. C. was pregnant with his child. Though at first N.A. appeared pleased with the news that changed over time.
Facts of the Offences
[8] What took place between January of 2016 and May of 2017 can be summarized as follows:
N.A. would regularly scream at Ms. C., hit her and push her around the apartment;
On January 27, 2016 N.A. showed up at the complainant's Rexdale home and told her that she could not be walking the streets with his child if they were not going to be together as a couple. He told her to get an abortion and she refused. He told her that if she did not get an abortion he would deal with this situation himself. He pushed her on the bed, stripped her shorts and underwear off, got a coat hanger, straightened it out and then pushed it towards her vagina. There was a lengthy struggle. At one point she got free. Then he pushed her down on the bed and bound her hands behind her back with a bathrobe tie. He again bent her over the bed and pushed the hanger towards her making contact with her inner thigh. He tried to insert the hanger into her vagina a few times during the struggle. Eventually he gave up and decided to drag her around the apartment by her hair, pulling out clumps of her hair, which he did for some time. These are the facts that form the basis of the conviction for sexual assault with a weapon;
On January 28, 2016 he returned to the Rexdale apartment and was still angry. On this occasion he put Ms. C. on the bed and choked her around the neck using both of his hands and considerable pressure. The choking started on the bed but they both ended up on the floor where it continued. Ms. C was rendered unconscious. When she woke up, N.A. was gone and she had visible injuries to her eyes.
Between February and September of 2016, there were repeated episodes of abuse during which N.A. would hit Ms. C. or punch her in the face or on other parts of her body and choke and kick her. She was of course pregnant at this time. She forced herself to keep showing up at work at McDonald's in the hopes of getting sufficient hours to qualify for a maternity leave. People at work asked her about her injuries on more than one occasion.
Between May and December of 2016 there were a number of incidents when N.A. got angry and choked and kicked Ms. C. Most of the time he would push her to the floor and kick her back or face and arms. On occasion he would use a closed fist to assault her. He would also drop things on her, such as a chair on one occasion and a television on another. This sort of abuse happened at least one time a week and usually more often than that. He used considerable force to hurt her. Approximately one time a week he would choke her around the neck, though she did not lose consciousness on these subsequent occasions. These episodes of abuse varied in duration but sometimes went on for hours at a time.
On several occasions he would take her wallet, cell phone and other belongings to prevent her from going to work. On a couple of occasions in June she would be throwing up during the attack, as she was pregnant. She suffered injuries, such as a bruised jaw, during these episodes.
In October of 2016 Ms. C. gave birth to their son Ca. Then between October 2016 and February of 2017 Ms. C. lived with family members in Alberta.
Upon her return to Ontario in February of 2017 the abuse continued. In April of 2017 Ms. C. and Ca were living at N.A.'s sister's home when N.A. showed up angry and broke the door down. Ms. C. was taking care of Ca and two other children (ages 5 and 7) at the time of this incident and they were no doubt somewhat privy to the events. At one point he got Ms. C. on the bed, got on top of her, and started choking her. During the struggle she banged her head on the foot board of the bed. She tried to pack her things but he kept returning to the room to empty her suitcase. He left the home for a while with their son Ca.
In May of 2017 Ms. C. and her baby were staying with her aunt. N.A. showed up and despite the presence of children and other adults in the apartment, he took her laptop from her, pushed her onto the couch and began choking and hitting her. He smashed her makeup on the balcony of the apartment and threw things around the apartment. Ms. C. was injured during the assault, including swelling to her neck. The police were called on this occasion and a warrant was issued for N.A.'s arrest.
Then two days later Ms. C. was with her son and her friend at the Finch subway station when N.A. accosted them and started yelling at them in public. He was threatening to hurt her again as he had two days before. He tried to take Ca away in his stroller but the brakes were on and impeded him. This episode went on for approximately 40 minutes. Ms. C.'s friend called 911 and pretended to be on the phone with her mother so as to not escalate the situation. Though he is aware of the warrant for his arrest, N.A. does not turn himself in for a further two days;
The conviction for a breach of recognizance relates to the fact that until May 10 of 2017 N.A. was bound by a court order one condition of which was that he have no contact with Ms. C.
[9] As can be seen from this summary of the events leading to the various convictions, N.A. engaged in a protracted campaign of domestic terror against Ms. C. He was repeatedly showing up for the purpose of starting a fight and physically, psychologically and emotionally abusing her.
Victim Impact
[10] I find Ms. C. to be a very vulnerable complainant. She is a young woman. Her mother died when she was very young and her father has played no real parenting role. She was raised in foster care. She did not have the financial or familial resources required to extricate herself from the abuse she was experiencing. She is strong and determined and eventually got free from the relationship largely all on her own. She was pregnant during much of the time of the abuse. In fact, she describes anxiously waiting for the child inside her to kick or move following an episode of violence perpetrated on her by N.A.
[11] She was just 18 years old when she moved in with N.A. and the abuse began. The fear and turmoil she experienced as a result of the assaults was very apparent during her testimony at trial. She had great difficulty speaking of the hanger incident described above. Understandably so.
[12] In her letter to the court, Ms. C. indicates that she has been taking therapy to help cope with the lingering pain of the abusive relationship but that sadly it has not helped her. She has a child together with N.A. She has been the sole provider for this child. She remains in constant fear of N.A. and his friends and family who have also harassed her on multiple occasions. Three years later she still experiences the "unspeakable horror" of what he did to her over the course of 16 months (minus of course the time she spent out west).
Circumstances of the Offender
[13] N.A. was not represented at sentencing but he did testify at trial and so I know something of his circumstances.
[14] N.A. was born on […], 1997 and is 21 years old. He has no criminal record. He was arrested on these offences on May 19 and released June 12, 2017 – having spent 25 days in pretrial custody. At a rate of 1 to 1.5 he gets credit for 38 days spent in pre-trial custody.
[15] N.A. was released on bail following conviction and pending sentencing. However, he decided not to attend the sentencing hearing. It may well be that he faces repercussions for his failure to attend court, as that is a separate offence, but that is for another day. I have not taken into account the fact that N.A. did not attend for sentencing as an aggravating factor on sentencing. It does negate certain mitigating factors such as remorse. It is clear that, by absconding immediately after the verdict, N.A. is not prepared to accept responsibility for his actions or acknowledge the harm done to the victim or to the community: R. v. Al-Hussaini (unreported, June 2, 2017, S.C.J.) at para. 14.
[16] To his credit, prior to his conviction, N.A. did take an anger management course through Caribbean African Canadian Social Services. That is a 10 week course of one-on-one counselling sessions which include psycho-educational information on anger, communication, dealing with stress and conflicts, power and control issues in relationship, etc. N.A. completed the course successfully and is described by the counsellor as cooperative and genuinely interested in the learning process.
Analysis
[17] This is a very difficult sentencing. On the one hand, N.A. is a young man and a first offender. He has taken some anger management courses on his own and has done some 38 days in pre-trial custody. On the other hand, his crimes are serious and have resulted in devastating victim impact. Clearly the most serious and traumatic incidents involved:
N.A.'s repeated efforts to insert a coat hanger in the complainant's vagina after stripping her clothes off and pushing her on the bed; and,
Choking her into unconsciousness and then simply leaving her on the floor while pregnant.
[18] As for the first of these, this was not an attempted sexual assault – it was an actual sexual assault. However, what was threatened during it was even worse – namely a rape with a wire coat hanger. As for the choking, N.A. left Ms. C. on the floor of the apartment after having rendered her unconscious. This is very dangerous and callous conduct. For reasons of general and specific deterrence, as well as denunciation, the Crown seeks a sentence of 4 years and 2 months.
[19] I consider the following factors in aggravation of sentence:
From the outset of the relationship N.A. demonstrated controlling and demeaning behavior towards Ms. C. His misconduct towards her escalated over time;
The victim is particularly vulnerable being a very young woman that was raised in foster care;
The physical, emotional and psychological abuse he perpetrated on Ms. C. took place over many months;
There were numerous acts of serious violence perpetrated on Ms. C. and they included N.A. repeatedly pulling out clumps of her hair and throwing heavy objects on her including a television;
Some of the episodes of violence lasted several hours;
Ms. C. was pregnant during much of the time of the abuse. She would panic during the abuse thinking that she might have lost her baby;
Children were at times present during the screaming and physical violence including N.A. own son;
Some of the abuse occurred in public and bystanders tried to intervene. However, N.A. was too out of control to be concerned or deterred;
N.A. was on a court order to stay away from Ms. C. for at least part of the timeframe. He breached that court order;
N.A. did the PARS program and received a peace bond in relation to an earlier incident involving Ms. C. but does not appear to have learned much from the program;
The abuse was against a domestic partner: see s. 718.2(a)(ii) of the Criminal Code and R. v. Inwood (1989), 48 C.C.C. (3d) 173 (OCA);
The abuse included a particularly terrifying episode of sexual assault involving N.A. efforts to insert a coat hanger in the complainant's vagina while threatening to perform an abortion;
The accused choked Ms. C on many occasions. One time he choked her into unconsciousness and just left her there. Again, she was pregnant at the time. This is extremely dangerous conduct.
Conclusion
[20] N.A. is 21 years old and has no criminal record. This is very significant. He is a young man and a first offender. However, given the nature and duration of his offences, and in all of the circumstances, I find that a lower end penitentiary sentence is the appropriate sentence in this case. That being said, N.A. has served 25 days of pre-trial custody. Credited on an enhanced basis this is an equivalent to 37 days custody. Accordingly, I will sentence him today to a global sentence of 2 years less 1 day and 3 years of probation, on the terms set out below, and in recognition of the totality principal. The sentence on each count will be as follows:
Count 1 – assault – 4 months custody concurrent
Counts 2 and 12 – sexual assault with a weapon and forcible confinement – 18 months custody (count 2) and 6 months less 1 day custody (count 12) to be served consecutively
Count 4 – choking – 12 months custody concurrent
Count 5 – assault – 4 months custody concurrent
Count 6 – mischief – 1 day custody concurrent
Count 7 – breach of recognizance – 2 months custody concurrent
Count 8 – assault – 4 months custody concurrent
Count 10 – utter threat – 2 months custody concurrent
[21] I also order that the pre-trial custody of 37 days be noted on the record.
[22] The three years of probation will be on the following additional terms:
No contact directly or indirectly with Ms. C.;
Not to be within 200 meters of anywhere Ms. C. lives, works, worships or can reasonably be expected to be;
Possess no weapons;
Notify the probation officer within 48 hours upon commencement of cohabitation with an intimate partner;
Take any counselling for partner abuse or anger management as directed by the probation officer;
Sign releases so that probation can monitor your compliance with any counselling ordered.
[23] I also make the following ancillary orders:
SOIRA order for 20 years pursuant to s. 490.013(2)(b)
Section 109 weapons prohibition for 20 years
DNA order.
DATED: November 30, 2018
Justice Susan Chapman