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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged 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 victim of the right to make an application for the order; and

(b) on application made by the victim, 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: 2019-05-01

Court File No.: Halton 17-2473

Between:

Her Majesty the Queen

— AND —

E.D.

Before: Justice David A. Harris

Heard on: March 19, 2019

Reasons for Sentence released on: May 1, 2019

Counsel:

• David King, counsel for the Crown
• H. Kim Taylor, counsel for the accused E.D.

Reasons for Sentence

Introduction

[1] Following trial, I convicted E.D. for:

1. Assaulting J.P. in January 2015,
2. Committing mischief to property of J.P. in April 2015,
3. Sexually assaulting J.P. in October or November, 2015, and
4. Committing mischief to property of J.P. in January, 2017.

[2] Crown counsel had elected to proceed by indictment.

[3] E.D. is before me today to be sentenced.

[4] Crown counsel suggested that I should sentence him to imprisonment for two years less one day, followed by probation.

[5] Counsel for E.D. suggested that I impose a shorter sentence of imprisonment. He agreed that probation was appropriate.

[6] Both counsel agreed that I should make the following ancillary orders:

1. a DNA order;
2. an order compelling E.D. to comply with the Sex Offender Information Registration Act for 20 years;
3. a weapons prohibition pursuant to section 109 of the Criminal Code;
4. an order pursuant to section 743.21 of the Criminal Code, prohibiting communication with J.P. during the custodial portion of the sentence; and
5. a forfeiture order with respect to firearms that were seized by the police.

[7] I find that the appropriate sentence is imprisonment for 21 months.

[8] My reasons for this are set out under the following subject headings:

1. The fundamental purpose and principles of sentencing;
2. The offences;
3. The impact on the victim;
4. The background of E.D.; and
5. Analysis.

Fundamental Purpose and Principles of Sentencing

[9] The fundamental purpose of sentencing as expressed in section 718 of the Criminal Code is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation; deterring the offender and other persons from committing offences; separating offenders from society, where necessary; assisting in rehabilitating offenders; providing reparation for harm done to victims or to the community; and promoting a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[10] The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender.

[11] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence.

[12] Doherty J.A. of the Ontario Court of Appeal stated in R. v. Hamilton that:

The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence.

[13] He went on to state that:

The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime.

[14] He then quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v. Priest:

The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.

[15] Proportionality is the fundamental principle of sentencing, but it is not the only principle to be considered.

[16] Section 718.2(a)(ii) provides that evidence that an offender, in committing an offence, abused a spouse or common law partner, shall be deemed to be an aggravating circumstance and that the sentence should be increased to reflect that.

[17] Section 718.2(a)(iii) provides that evidence that an offender, in committing an offence, abused a position of trust or authority in relation to the victim, shall be deemed to be an aggravating circumstance and that the sentence should be increased to reflect that.

[18] Section 718.2(c) provides that where consecutive sentences are imposed the combined sentence should not be unduly long or harsh.

[19] The totality principle requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. I must review the aggregate sentence and consider whether the aggregate sentence is "just and appropriate". A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of a sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender "a crushing sentence" not in keeping with his record and prospects.

[20] In doing this, I should first fix appropriate individual sentences to arrive at a total sentence and then adjust the total sentence to ensure that it does not exceed what is just and appropriate.

[21] With respect to consecutive sentences, section 718.3(4)(b)(i) provides that "The court that sentences an accused shall consider directing … (b) that the terms of imprisonment that it imposes at the same time for more than one offence be served consecutively including when (i) the offences do not arise out of the same event or series of events".

[22] There is a broad discretion to impose consecutive sentences if separate legal interests are implicated in the various offences.

[23] I must specifically consider section 718.2(d) which provides that "an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances".

[24] I must also consider the impact of section 718.2(e) which provides that "... all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders."

[25] The Supreme Court of Canada discussed the application of this section in Gladue v. The Queen and said that section 718.2(e) applies to all offenders, and that imprisonment should be the penal sanction of last resort. Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offence and the offender.

[26] In R. v. Priest, supra the Ontario Court of Appeal made it clear that much of this is simply a codification of the existing law, especially with respect to youthful first offenders. That case made it clear however that this principle is of less importance in cases involving very serious offences and offences involving violence.

[27] The Supreme Court also noted in Gladue that section 718 requires a sentencing judge to consider more than the long-standing principles of denunciation, deterrence and rehabilitation. A sentencing judge must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender.

[28] The Ontario Court of Appeal has stated that "in cases of sexual assault involving forced intercourse with a spouse or former spouse, sentences generally range from 21 months to four years". The cases at the lower end of the range involve single events.

[29] I note that the Supreme Court of Canada recently cautioned that "sentencing ranges are primarily guidelines, and not hard and fast rules".

[30] I note further that, after referring to all of the above cases, the Ontario Court of Appeal recently upheld a sentence of imprisonment for 15 months plus probation for two years where the appellant pled guilty to sexual assault and acknowledged that he had engaged in an act of anal intercourse while the complainant, his estranged spouse, was asleep and highly intoxicated.

[31] The maximum sentence for sexual assault is imprisonment for 10 years when Crown counsel proceeds by indictment.

[32] The maximum sentence for assault is imprisonment for 5 years when Crown counsel proceeds by indictment.

[33] The maximum sentence for mischief is imprisonment for two years when Crown counsel proceeds by indictment.

[34] Before I can apply the above principles however I must examine the offences here, the impact that they had on the victims and the background of E.D.

The Offences

Assault – January 2015

[35] J.P. had been arguing with E.D. when he pushed her to the ground, put her on her stomach and held her there while telling her that this was what he could do to her.

Mischief to Property – April 2015

[36] J.P. slept over at a friend's house. When she came home E.D. thought that she was cheating on him. She tried to show him text messages and pictures on her phone that showed that she had been with her friends and that she was not cheating on him. He grabbed her phone and threw it across the room, breaking it.

Sexual Assault – October / November, 2015

[37] J.P. and E.D. were arguing when he grabbed her on or near her throat and as a result she somehow ended up on her stomach on the bed. She feigned unconsciousness. She did not want to have sex with E.D. He removed her pants and began to have vaginal intercourse with her. After a very short time he removed his penis from her vagina and attempted to insert it into her anus. She then "nudged" and he stopped what he was doing.

Mischief to Property – January, 2017

[38] E.D. became angry and punched a hole in her closet door.

The Impact on the Victim

[39] J.P. declined to participate in the pre-sentence report process and advised that she would be submitting a victim impact statement to the court.

[40] I was provided with the following handwritten letter from her:

I feel very bad about the charges laid against E.D., especially the sexual assault charge. I tried very hard to withdraw my statement and explain that this is a big misunderstanding and I don't believe things actually happened the way I described them in my first statement. I regret ever giving a statement to the police. I apologize for misguiding the police, this was never my intention. I have been extremely stressed out because E.D. does not deserve these charges. We had a very passionate relationship and he always had concent [sic] from me to have sex. This is all a big understanding and I really hope that there is something that can be done to remove this charge from E.D. I understand what sexual assault is. E.D. never sexually assaulted me! He always had concent [sic]. He is innocent of the charge.

[41] This is consistent with the position she took when testifying. I commented at length about this testimony, and her complete misunderstanding of the law regarding consent, in my Reasons for Judgment and I will not repeat those comments here.

[42] I simply note that there is no evidence before me to suggest that the offences have had any impact on J.P.

Background of E.D.

[43] I have been given a Pre-sentence Report which provided me with the following information.

[44] E.D. is now 36 years old.

[45] His parents separated when he was two years old when his father left the marriage for "another woman." His mother was his primary caregiver throughout his upbringing.

[46] His mother was "a difficult person." She was physically, mentally and emotionally abusive towards him and his older brother. Children's Aid Society became involved with his family after his brother "got beat up by our mom and went to school." Ultimately his mother lost custody of his older brother to their father but E.D. was left with his mother.

[47] Following family court matters his mother changed his legal name in efforts to hide him from his dad because "he wanted custody of me." This name change presented him with difficulties at an early age.

[48] His mother would allow a birthday or Christmas call with his father when she was feeling "nice."

[49] His mother remarried around 1994 and from this union E.D. has a half-sister, 12 years his junior. His mother's second marriage lasted approximately 14 years in length before it dissolved. E.D. and his step-father had a positive relationship but they did not remain in contact following the divorce. His mother has been involved in a common-law relationship for the last six to seven years.

[50] His father remarried when E.D. was four years old. From this union he has two half-brothers aged 24 and 26.

[51] E.D. left his mother's home when he was 16 years old to live with his father for approximately two years before his mother "begged" for his return and he gave in. This return to his mother's home was "short lived" since she began assaulting him.

[52] E.D. described his current relationship with his father quite positively, stating that they are "best friends" and have daily contact. He also voiced having a positive relationship with his step-mother.

[53] E.D. and his older brother currently have a "great" relationship. His brother resides in New Brunswick and they have contact every two to three weeks for approximately three to four hours at a time. He also has very positive relationships with his maternal half-sister and two paternal half-brothers.

[54] E.D. has never been married. He does not have any children.

[55] He has been in two serious relationships. His last relationship was five years in length with the victim of the current matter. They began dating when her son was turning three. E.D. assumed the role of step-dad and "loved" it.

[56] This relationship officially ended March of 2017.

[57] His first serious relationship was when he was 23 years old and also lasted five years. The relationship ended on positive terms after they acknowledged that they wanted different things.

[58] E.D. attended 11 different elementary schools as his "mom was on the move trying to keep me from my dad." He attended six different high schools. He was expelled on one occasion for pulling the fire alarm. He did not graduate from high school being has four credits short.

[59] After leaving school, he was employed at various factory jobs and volunteered with an emergency search and rescue service. He developed an interest in construction and opened his own construction company between 2006 and 2007 until he returned to school in 2011. He attended a local college where he studied police foundations and science for one year before graduating with honours.

[60] Following the completion of his post-secondary program, he returned to the construction field for financial reasons. He shared that he was employed with a countertop company and assisted with the design and set up of the company's showroom and factory. He opened his own kitchen installation company in 2013 and it remains "the most successful company" he has owned thus far. He is the sole owner of his company which employs between two to thirteen people.

[61] He intends to further his skills by taking a training program for cabinetry.

[62] E.D. describes himself as a social drinker who consumes between three to four alcoholic beverages during social outings. He has reduced his alcohol consumption due to stomach issues.

[63] He does not use illicit drugs. He started smoking marijuana during his early twenties. His doctor prescribed medical marijuana approximately six to seven years ago to aid his anxiety. He continues to smoke marijuana for this purpose.

[64] He has not experienced any suicidal attempts and/or thoughts. He has not had a psychological assessment. He has "heavy duty" anxiety and depression. He experienced his first "panic attack" when he was 17 years old for which he was hospitalized. He has been hospitalized twice for "extreme" anxiety.

[65] He works "a lot" and has "limited" down time. He shared that during his free time he reads and studies Spanish and historical culture. Wood working is one of many hobbies along with improving his design skills. He enjoys outdoor activities such as snowboarding, rollerblading, fishing, etc.

[66] He is actively involved in his community. His kitchen installation company sponsors youth athletics and donated to a children's hospital in Toronto. He is looking into volunteer opportunities for homelessness in Toronto.

[67] The current matter before the court has led to financial hardship. He lost all his life savings. He has "a lot" of monthly bills and should he be unable to maintain bill payments "it will be bad." He is fearful that he will lose everything that he has worked "so hard" for.

[68] He had no prior criminal record.

[69] All of the people interviewed for the pre-sentence report spoke highly of him.

Analysis

[70] Doherty J.A. aptly described my task here when he began the judgment in R. v. Hamilton, supra by stating:

The imposition of a fit sentence can be as difficult a task as any faced by a trial judge.

[71] Sentencing is not an exact science. The determination of the sentence that is just and appropriate in a given case is "a highly individualized exercise that goes beyond a purely mathematical calculation."

[72] General deterrence and denunciation are clearly the most important principles of sentence in this case, but I must not lose sight of the other principles.

[73] I must craft a sentence that is proportionate to the gravity of the offences committed and the degree of responsibility of E.D. and yet, at the same time, one that is responsive to his unique circumstances.

[74] I must consider both the aggravating factors and the mitigating factors when determining the appropriate sentence here.

[75] The aggravating factors can be found in the offences.

[76] There were a number of offences over a period of nearly two years. They all involved his domestic partner.

[77] The most serious offence was the sexual assault.

[78] While she appeared to be unconscious, he presumed that he was entitled to have sex with her whenever he chose to and then he proceeded to do so. He made no effort to determine if she was conscious at the time, let alone whether she wanted to have sex with him.

[79] To his credit, when she expressed displeasure with this, he immediately stopped.

[80] Even so, this offence calls for a significant period of imprisonment.

[81] The other offences are less serious. I would not have sent him to jail for any or all of them in the absence of the sexual assault. Taken together with that offence however they cause me concern. They comprise three separate offences spread out over two years that would otherwise warrant consecutive sentences. They all involved the same domestic partner. They reflect an ongoing attitude on his part with respect to his relationship with J.P.

[82] To E.D.'s credit, there are also a number of mitigating factors in this case.

[83] He is a relatively young man.

[84] He had no prior criminal record.

[85] He had otherwise led a very good and productive life and been of good character.

[86] He has been bound by bail conditions with varying degrees of strictness since his release and has not offended further.

[87] He has suffered collateral financial consequences already and these will be increased significantly by a period of imprisonment. He could possibly lose the business that he has worked so hard to build.

[88] He had a very difficult if not dysfunctional childhood.

[89] He has the support of friends and family which bodes well for his future rehabilitation.

[90] He has not expressed any remorse for his actions in any way. This is not an aggravating factor. It does however distinguish this case in a significant way from R. v. S.M.C., supra.

[91] He did make restitution for the property he damaged and he did so long before he was charged.

[92] After considering all of the above, I am satisfied that the appropriate period of imprisonment with respect to the sexual assault is 21 months.

[93] In light of the length of that sentence, the appropriate sentences for the remaining charges are imprisonment for one day, concurrent and concurrent.

Sentence

[94] For the above reasons, I sentence E.D. as follows.

[95] I sentence him to imprisonment for one day for assaulting J.P. in January 2015.

[96] I sentence him to imprisonment for one day concurrent for committing mischief to the property of J.P. in April 2015.

[97] I sentence him to imprisonment for 21 months, concurrent, followed by probation for three years for the sexual assault committed in November 2015.

[98] I sentence him to imprisonment for one day concurrent for committing mischief to the property of J.P. in January, 2017.

[99] The terms of the probation will require that E.D.:

1. keep the peace and be of good behaviour;

2. appear before the court when required to do so by the court;

3. notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation;

4. report in person to a probation officer within two working days of his release from custody and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in his supervision;

5. cooperate with his probation officer. He must sign any releases necessary to permit the probation officer to monitor his compliance and he must provide proof of compliance with any condition of this order to his probation officer on request;

6. not contact or communicate in any way, either directly or indirectly, by any physical, electronic, or other means, with J.P.;

7. not be within 20 metres of any place where he knows her to live, work, go to school, frequent, or any place he knows her to be;

8. attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer, including for domestic violence which may include the Partner Assault Response (PAR) program, and / or a sexual offender relapse prevention program and / or any other program recommended by his probation officer.

[100] I also make the following ancillary orders.

[101] Sexual assault is a primary designated offence and I make an order pursuant to section 487.051 of the Criminal Code, authorizing the taking from E.D. of any number of samples of one or more bodily substances, including blood, that are reasonably required for the purpose of forensic DNA analysis.

[102] It is also a designated offence pursuant to section 490.011 of the Criminal Code. Accordingly, I make an order pursuant to section 490.012 of the Criminal Code that E.D. comply with the provisions of the Sex Offender Information Registration Act for 20 years.

[103] Pursuant to section 109 of the Criminal Code, for the next ten years E.D. is prohibited from owning, possessing, or carrying any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance.

[104] With respect to the firearms seized from him by the police, E.D. has 30 days in which to transfer ownership of those firearms to L.D. If Mr. L.D. has the necessary permits and licences, the firearms will be released to him. Otherwise, they shall be forfeited to Her Majesty to be disposed of according to the law.

[105] Pursuant to section 743.21 of the Criminal Code I am prohibiting any contact or communication by him with J.P. during the custodial portion of his sentence.

Released: May 1, 2019

Signed: Justice D.A. Harris