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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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: February 26, 2020

Court File No.: Brampton 18-11911

Between:

Her Majesty the Queen

— and —

Andrew Szymanski

Before: Justice A.R. Mackay

Heard on: January 29, 2020

Reasons for Sentence released on: February 26, 2020

Counsel:

• D. Ida, counsel for the Crown
• M. Tufman, counsel for the accused Andrew Szymanski

Decision

MACKAY J.:

Facts of the Conviction

[1] I convicted the accused of sexual assault on December 31, 2019. Briefly the facts were as follows. On the day in question the accused attended his bank and met with the complainant, A.R., a senior Financial Advisor. He had known the complainant for several years as a result of attending at the bank. The meeting was pre-booked to discuss transferring some of the defendant's investments from another institution. During the meeting the defendant used very graphic language and expressed his desire to have intercourse with her. At one point he used his hand to brush across her breast over her clothing. A.R. immediately told him no. Within five minutes of this assault he grabbed her shirt at her cleavage and pulled her towards himself.

Position of the Parties

[2] The Crown is seeking a 90-day jail sentence with a period of probation for 18 months. In addition Ms. Ida asked for a SOIRA order, a DNA order and a section 110 weapons prohibition order.

[3] The defence has requested a conditional discharge with a period of probation.

Victim Impact Statement

[4] The sexual assault has negatively impacted A.R. in many ways. She is no longer outgoing or comfortable while working at the bank. Prior to being assaulted she had worked at the bank for 31 years. Her relationship with her husband has suffered as well. She often has migraines as a result of the stress and broken sleep.

Circumstances of the Accused

[5] The accused has worked as a bus driver for the past 40 years. He will be turning 59 this year. He is planning to retire in two years and move to the States. However, when speaking about his concern that he would lose his firearm licence if convicted he also said that he wanted to move up north. Although the accused had a trial in this matter and testified to the fact that he did not intentionally touch the complainant for a sexual purpose, he spoke to the court at his sentencing and advised that he was ashamed and embarrassed by his behaviour. He apologized to A.R. in open court. The accused stated that "he has learned his lesson".

[6] He was separated from his wife prior to his trial but they have reconciled. They have three grown sons and one granddaughter. The defendant suffers from diabetes and high blood pressure.

[7] I have received a letter from the accused's employer confirming his full-time employment. In addition, a letter from his supervisor enclosed a comment from a passenger advising that the defendant was particularly friendly and polite when she rode his bus. The passenger sent this note in after the offence before the court.

[8] The accused asked that the court not impose a conviction as he would lose his job, both as a bus driver and as a driving instructor.

The Law

[9] Sentencing is an inherently individualized process. The applicable principles and objectives of sentencing are set out in sections 718, 718.1 and 718.2 of the Criminal Code. The objectives of sentencing include denunciation of an unlawful act, specific and general deterrence, and rehabilitation of offenders. I must increase, or reduce, the sentence, or take into account aggravating and mitigating circumstances relating to the offender or the offence. I must consider the impact the offence has had on the complainant and the community. A sentence should be similar to a sentence imposed on similar offenders, for similar offences in similar circumstances.

[10] It is clear from the Criminal Code and the caselaw that the principle of proportionality is central to the sentencing process. In essence an offender's sentence must be equivalent to his or her moral culpability, and not greater than it; at the same time the sentence must appropriately speak out against the offence. It must "ensure that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused." In R. v. Nasogaluak, Justice LeBel offered the following direction for sentencing judges on the application of this principle:

For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. In this sense, the principle serves a limiting or restraining function. However, the rights-based, protective angle of proportionality is counter-balanced by its alignment with the "just deserts" philosophy of sentencing, which seeks to ensure that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused [citations omitted]. ... The two perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary.

[11] It is clear in the case of a sexual assault that general deterrence and denunciation are the most important factors to consider.

[12] I am also required to take into consideration the relevant aggravating and / or mitigating circumstances relating to the offence or the offender.

The Mitigating Factors

[13] The accused does not have a criminal record. The defendant appears, for the most part, to have led a pro-social life. He has worked as a bus driver for most of his adult years, he has raised three children, all I am advised are productive members of our society. The accused has shown remorse albeit very late in the proceedings. He is not entitled to the same degree of mitigation for a guilty plea and early remorse, but I do appreciate and consider his remorse.

The Aggravating Factors

[14] The defendant chose to sexually assault the complainant at her workplace in her office. The offence came close to a breach of trust situation. A.R. had known the accused for several years as a customer of the bank at which she is employed. She is entitled to feel safe with clients at her place of work. The offence has had a negative impact on her mental health and relationships at work and with her husband.

Caselaw

[15] R. v. Berseth was a sexual assault case in which I granted a conditional discharge. That case is distinguishable from the case before me in that the defendant pled guilty, spared the victim from testifying and showed early remorse. Further Mr. Berseth was, at the time of the offence, extremely intoxicated. The nature of the touching in Berseth was more serious in some respects. However, the sexual assault was momentary whereas the accused's offensive interaction took place over several minutes. In addition, there were two distinct periods in which he touched A.R. for a sexual purpose.

[16] In the case before me, the defendant was sober. The sexual assault occurred while the accused blatantly and graphically told A.R. that he wanted to have intercourse with her.

[17] I have reviewed the cases submitted by the defence. None were submitted on behalf of the Crown.

[18] In R v. Tillman the defendant grabbed his babysitter from behind while she was feeding one of his children. He put his hands on her hips and his fingers through the belt loops on her pants and pulled her buttocks towards himself. There was contact of a sexual nature. When the complainant told the defendant "no", the contact ended. The sentencing judge was of the view that the sexual act was an "aberration fueled by his consumption of non-prescribed pills for his back pain." He pled guilty and was genuinely remorseful. He was seen shortly before the offence and described as being "definitely not with it" by employees who knew him.

[19] R. v. H.(J.) was a case where the offender had sexual intercourse with the complainant without telling her that he was likely infected with the genital herpes virus. He pled to sexual assault simpliciter and not to sexual assault causing bodily harm. The complainant contracted the virus and subsequently had to deal with both the physical and emotional consequences. The sentencing judge and the appellate court were of the view that the case represented a "test case", a situation where the defendant would not have known about the penal consequences of proceeding to have sex with an individual in these circumstances. J.H. was a first time offender who pled guilty and was remorseful. There was a serious risk that the defendant would be deported.

[20] R. v. Burton was a sentence appeal where a conditional discharge was imposed for a sexual assault after a guilty plea. A psychiatric report was filed which stated that the respondent was a low-moderate risk of reoffending. Mr. Burton touched a girl on her leg until it traveled up her skirt. She screamed and ran to the front of the bus. Police were called and he was arrested on the bus. Justice Maranger was of the view that while he would not have granted an absolute discharge, he could not say that the sentence was manifestly unfit or clearly unreasonable.

[21] In R. v. Henry the court upheld an absolute discharge imposed for a sexual assault after a trial. The respondent and the complainant had gone on a date where they engaged in consensual foreplay. The complainant withdrew her consent when she learned that the respondent did not have a condom. When the two walked to purchase condoms, the respondent embraced her while holding her throat with some force and touched her genitals over her clothing until the complainant said "stop". The respondent was 23 years old at the time with no prior criminal record.

Analysis

[22] A fit sentence calls for a delicate balancing of the various sentencing principles and objectives, in line with the overriding principle that a "sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender".

[23] After considering all of the sentencing principles and objectives that I must apply I have determined that a jail sentence is not warranted. The Criminal Code and caselaw instructs judges that an offender should not be deprived of liberty if less restrictive sanctions may achieve the required sentencing objectives.

[24] The accused has had to deal with being charged, arrested and the stigma of being compelled to appear in court. His wife is aware of what he has done. She was present at his sentencing hearing. I am satisfied that the accused, as he stated, has learned his lesson. It is also possible that he will lose his job as a result of this offence.

[25] The defence has asked me to impose a conditional discharge.

[26] The availability of a discharge is provided for in s. 730 in the Criminal Code:

730. (1) Conditional and absolute discharge — Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).

[27] Conditional discharges are not commonly imposed for sexual assault cases. In some circumstances a discharge is a fit sentence. In R. v. Berseth, Justice Durno upheld the imposition of a conditional discharge by this court. As was stated in R. v. Burton, if parliament saw fit to disallow the discharge provisions from applying to sexual assaults the Criminal Code would specifically stipulate that they would not be available.

[28] While a conditional discharge is certainly in the defendant's best interest, I am of the view in the circumstances of this case that it would be contrary to the public interest to grant him a discharge.

[29] I have considered the seminal cases with respect to conditional discharges. As regards to the public interest prong, I am mindful that the concern for general deterrence, while it must be given due consideration, does not preclude the judicious use of the provision. However, if there is a necessity for a sentence that will deter others, it is a factor telling against a discharge.

[30] In this case there is a need to deter others who may think that little is at stake for sexually accosting a person at their workplace. I am of the view that a discharge would not be a deterrent to others who might be like-minded to commit a similar offence.

[31] While a discharge can meet all the sentencing principles in some cases, granting a discharge in this particular case, would be contrary to the public interest. This is not a situation where the accused has already availed himself of counselling and showed remorse at an early stage. I am of the view that he could benefit from counselling given the facts of this case. In Berseth the defendant stopped drinking and underwent counselling after the offence. There were several individuals who confirmed that Mr. Berseth was a young man of good character who was genuinely remorseful.

[32] Sexual assaults are serious offences; these offences often cause victims to lose their sense of security, rob them of their personal dignity and can result in a deterioration of their mental health.

[33] Some sexual assaults fall at the much more serious end of the spectrum and this would include forced intercourse with gratuitous violence. The offence before me involved a touching of the complainant's breast over her clothing and a grab at the complainant's shirt in the area of her cleavage while the defendant told her he wanted to have intercourse with her. Objectively this offence falls towards the lower end of the range of sexual assaults. However, it has had a significant negative impact on the complainant's life.

Sentence

[34] Having regard to all of the purposes and principles of sentencing contained in the Criminal Code and the caselaw, as well as the aggravating and mitigating factors, I conclude that a fit sentence in these circumstances is a suspended sentence with a period of probation for 12 months with the following terms and conditions:

1. Keep the peace and be of good behaviour;

2. Appear before the court as and when required to do so by the court;

3. Notify the court or probation officer, in advance, of any change of name, address, employment or occupation;

4. Report to a probation officer today and thereafter as directed;

5. Stay away from the person, premises and place of employment of A.R. and have no communication or contact with her, directly or indirectly;

6. Attend for assessment, counselling or program directed by your probation officer;

7. Participate in, and cooperate with any assessment, counselling or program as directed by your probation officer; and

8. Sign any releases that enable your probation officer to monitor your attendance in any program that he or she deems appropriate.

[35] Sexual assault is a primary designated offence and pursuant to s. 487.051 I will make the order that the accused provide a sample of his DNA.

[36] As required by s. 490.012 of the Code, I order the defendant to comply with the Sex Offender Information Registration Act (SOIRA) for a period of ten years.

[37] I decline to make a firearms prohibition order pursuant to s. 110. No weapon was involved in the commission of the offence. There is no history of any violent behaviour by the accused.

Released: February 26, 2020

Signed: Justice A.R. Mackay