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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 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: 2020-06-04

Court File No.: Niagara Region 998 19 S2390

Between:

Her Majesty the Queen

— and —

Dalien Ilunga

Before: Justice J. De Filippis

Reasons for Sentence released on June 4, 2020

Counsel:

• Mr. S. Doherty — counsel for the Crown
• Ms. M. Salih — counsel for the Defendant

INTRODUCTION

[1] The defendant was charged with sexual assault and failure to comply with probation (by not keeping the peace and being of good behaviour). The Crown claimed the defendant had digitally penetrated the victim in the hallway of his apartment before taking her into his bedroom and forcing sexual intercourse. The Defence did not challenge the assertion that intercourse occurred; rather, it was argued that the Crown had failed to prove beyond a reasonable doubt that the victim did not consent. Specifically, it was suggested that the sexual activity was consensual and that the victim said nothing at the time for fear of angering her friend, who she knew to be interested in the defendant. I found that the Crown had met its burden of proof. I concluded that the prosecution evidence, including that of the victim, was credible and reliable and had not been undermined in cross-examination. I also found that no doubt about my conclusion was raised by the one Defence witness, a tenant in another apartment, who had not been present for the events in question.

[2] The Crown submits that the appropriate sentence is five years' imprisonment. The Defence position is that the proper sentence is 18 months' incarceration, followed by two years of probation. In advancing this position, the Defence relies, in part, on judicial and medical statements about COVID-19. The parties agree that presentence custody is to be deducted from the sentence I impose.

[3] I conclude that four years is a fit sentence for the sexual assault and four months, to be served concurrently, for the breach of probation. As I will explain, this means two years, four months, and 27 days in addition to the presentence custody. I also impose ancillary orders as set out below.

THE RELEVANT FACTS

[4] The victim attended the defendant's apartment with a friend. The victim had never met him before. The defendant and others were there and, except for the victim, all consumed marijuana and alcohol. While the victim was in the hallway speaking to her boyfriend on her cell phone, the defendant asked for her telephone number. She gave it to him. Soon after, while the parties were seated in the living room, the defendant looked at her and repeatedly "mouthed the words 'I like you'".

[5] The victim left the living room and went to the hallway to answer a phone call from her boyfriend. The defendant followed and put his fingers down her pants into the vaginal area. She pulled away and continued speaking to her boyfriend. She told him there was "nonsense going on" and that she felt "uncomfortable" in the apartment, but did not elaborate, fearing her boyfriend would be angry. The defendant then came behind her, placed one hand over her mouth, the other around her waist, and dragged her into his bedroom. Once inside, the defendant used one foot to close the door, then "spun around", threw her on the bed, and climbed on top. The defendant removed one of the victim's pant legs. She tried, without success, to resist this. The defendant inserted his penis into her vagina and "tried to kiss" her. The defendant did not wear a condom and did not ejaculate. As these events quickly unfolded, the victim could hear her friend calling for her from elsewhere in the apartment. Each time the friend called her name the defendant put his hand on the victim's mouth. The victim was frightened and said nothing. These events lasted less than five minutes.

[6] The victim's friend came to the bedroom door and asked if she was there. The defendant said she was not. The friend opened the door and saw the parties on the bed. She noted that the victim's "eyes were scared". The defendant "jumped off the bed and shut the door on [her] face". The defendant did not return to the bed. The victim got dressed and both left the bedroom.

[7] The victim and her friend departed soon after. While her friend drove the car, the victim tearfully said she had been "raped". The police were called and she was taken to a hospital to be examined by a nurse. Her vagina was red and sore.

[8] Nine days later, Sgt. Osti was dispatched to arrest the defendant for sexual assault. The officer stopped a car in which the defendant was a passenger and told him to step outside. The defendant did so and bolted. He was apprehended by another officer after a foot pursuit.

VICTIM IMPACT STATEMENT

[9] The victim reports that she has experienced mental anguish since the offence, including depression, paranoia, and nightmares. She feels "dead inside", has attempted suicide, and has "ongoing suicidal thoughts". The victim reports that she has a "low sex drive" and that her ability to have an intimate relationship is adversely affected. The Defence urges me to be cautious "about the weight to be assigned to such untested assertions, particularly in the absence of any supporting documentation". I appreciate the difficulties inherent in cross-examining a victim on her impact statement, but the fact remains that the victim was not challenged. However, I agree with the Defence that there is nothing to support the victim's fear that the defendant may find her and harm her, or even kill her.

THE DEFENDANT

[10] The defendant is 37 years old. He spent his first eight years in the Congo, a place described by Defence counsel as "one of the most war torn and impoverished countries in the world". He was taken to Zambia at the age of eight and subsequently immigrated to Canada in 2001. He currently holds convention refugee status in this country.

[11] The defendant has children with three women in Canada, including a young son with his present partner, Hazel Gondo. He is said to have a good relationship with his three children. However, according to the author of the presentence report, Ms. Gondo was only aware that the defendant had one other child, from one other prior domestic partner.

[12] The defendant completed high school and has an extensive, albeit sporadic, employment history. Three years ago, he obtained his forklift license and has also worked as a truck driver for a nursery. Prior to this incarceration, he was self-employed, fixing up old cars and selling them for a profit.

[13] The defendant reports that he has no alcohol or drug abuse problems. He added, however, that he suffers from anxiety, depression, and insomnia. He says he also suffers from a variety of medical conditions, including hypertension, coronary artery disease, high blood pressure and is "pre-diabetic".

[14] The defendant maintains his innocence. He told the author of the presentence report that he was not given a fair trial and believes he is "being put away because of his colour". Ms. Gondo added that the defendant would never commit such a crime. I agree with the Defence that these statements are not to be taken as aggravating factors, but are more properly seen "as an absence of a mitigating factor".

[15] The offender has a criminal record. In 2004 he was convicted of sexual assault, assault, and failure to comply with an undertaking. He received 12 months' jail, 18 months' probation, a s. 109 prohibition order and was placed on the sexual offender registry. He was removed from the registry in 2015. After a gap of nine years, he was convicted of being unlawfully in a dwelling house and sentenced to a period of probation. The author of the presentence report notes that the victim of this offence was a former domestic partner. One year later, in 2014, the defendant was convicted of assault and failure to comply with a probation order. He was given a short jail term and another period of probation. After a gap of four years, he was convicted of another assault and placed on probation. He was bound by this probation order at the time of the present offence.

[16] I am advised that, while incarcerated, the defendant undertook a bible study correspondence course, and a self-directed anger awareness workbook. He was assaulted by three other inmates because of a rumour that this sexual assault involved a child. The timely intervention of correctional staff saved the defendant from serious injury. However, he was placed in a specialized care unit for 30 days, and during this time, the defendant was almost continuously confined to his cell.

APPLICABLE LEGAL PRINCIPLES

[17] The applicable sentencing principles are set out in ss. 718, 718.1 and 718.2 of the Criminal Code. The parties provided me with helpful case law. I have reviewed these decisions but need not repeat the analysis in detail. It will suffice to summarize three cases I find most pertinent.

[18] In R v Bradley, 2008 ONCA 179, the offender was convicted of sexual assault and sentenced to four years' imprisonment. On appeal, this was varied to three years' imprisonment. In that case, the offender was a police officer and the complainant was young and hopeful of becoming a police officer. The offender became her mentor. One day, the victim invited the offender to her house and he had forced vaginal and anal intercourse with her. In allowing the sentence appeal, the Court of Appeal found the sentencing judge erred in treating the offender's "fabricated" evidence as aggravating and stated as follows:

We accept the Crown's submission that, in the circumstances, the appropriate range of sentence was three to five years. Without in anyway diminishing the devastating impact the assault had on the complainant, we find that, in the circumstances, a sentence at the low end of the range is fit. The conviction was for a single count of sexual assault. There was no violence apart from that which was inherent in such an offence. The offence had occurred many years prior to trial and the appellant, a man in his early fifties, had no prior criminal record. In addition, there was much evidence on his otherwise unblemished character and positive role as a father, especially to his two youngest children.

[19] In R v Garrett, 2014 ONCA 734, the offender was convicted of sexual assault and sentenced to 90 days' imprisonment. The Crown appealed from sentence and it was varied to 18 months' imprisonment. The offender and victim, who had known each other for years, went to the latter's apartment after a date. They kissed on the couch. The offender became aggressive with his kissing and would not stop when told to. He had forced vaginal intercourse with the victim. In allowing the appeal, the Court of Appeal found the judge erred in holding that this was an exceptional case warranting a sentence outside the normal range of 18 months to three years' imprisonment. Further, the Court of Appeal held, "The sentence imposed by this court should not be taken as a sentence within the appropriate or usual range. We are constrained in this regard by the Crown's position at trial".

[20] In R v Mugabo, 2019 ONSC 6526, the offender was found guilty of sexual assault and theft under $5000. He also pleaded guilty to fail to comply with a SOIRA order. The offender had forced vaginal intercourse with the victim. He did not wear a condom. He did not ejaculate. He also took her bank cards. The offender was 22 years old at the time of the offence. He was born in Rwanda and his father was a victim of the genocide. He made his way to Canada, via Europe, and at 12 years old, became a Crown Ward. Despite this difficult past, he finished high school and was studying in university and working part-time at the time of the offences. He was on probation for a 2015 sexual assault when he sexually assaulted the victim. The Court found the "range of sentence for the sexual assault in this case is between two years less a day to five years" and imposed a sentence of four years and two months (less time already served) plus three years' probation.

THE PANDEMIC

[21] Defence counsel relies on the Affidavit of Dr. Aaron Orkin, a physical epidemiologist, and assistant Professor in the Department of Family and Community Medicine at the University of Toronto. Like many of my colleagues, I have seen this document before. Dr. Orkin states that:

• There is a greater risk of contracting COVID-19 in correctional facilities

• The strategy of social distancing has not been studied for prolonged exposure to individuals in congregate living facilities, who are within a short distance of each other for hours at a time

• Due to various unmodifiable or partially modifiable variables, outbreaks are expected to occur despite controls and mitigation strategies put in place in correctional facilities. This is evidenced by the fact that other congregate setting facilities, such as schools, summer camps, holiday resorts, cruises etc. have been completely suspended. It is also evidenced by the continued spread of COVID-19 cases in hospitals and long-term care homes, despite robust mitigation strategies.

• The number and density of people congregated is a critical variable in determining the potential size and extent of the outbreaks

• People with medical comorbidities are more likely to require ICU admission or to die from COVID-19

• The health status of people in correctional settings is worse than the rest of the population, including medical comorbidities. As a result, this population is at a greater risk of intensive-care admission or death if they contract COVID-19

• The best mechanism to address the COVID-19 risks in correctional settings is through reducing the population density

• Once an outbreak does occur in a congregate living facility, such as a correctional centre, it can spread quickly, overwhelming health care systems, resulting in a diversion of scarce health resources. Accordingly, protecting congregate living settings and preventing outbreaks serves not only to protect the health of those housed or working in such facilities, but also the health of the entire population

• It is unknown if correctional facilities are capable of implementing the type of thorough and relentless cleaning of surfaces necessary to prevent the spread of COVID-19

• Sufficient infectious disease isolation of infected individuals is difficult to achieve in a congregate setting

• Given the soon anticipated relaxation of mitigation methods, both in correctional settings and on the outside, a second wave of infections is expected in correctional facilities. This second wave is expected to be larger than previous outbreaks. Smaller populations and lower population density will be critical in mitigating the outbreak during a second wave.

• As of May 11, 2020, the prevalence of confirmed active COVID-19 cases in correctional facilities was 74.5 times higher than in the rest of the Ontario population. Excluding the Ontario Correctional Institute, the prevalence of active cases in correctional facilities was 7.2 times higher.

• The high positivity rate within the correctional facilities suggests that either large outbreaks are underway, or the correctional population is being undertested

[22] Dr. Orkin concludes that:

• Absent evidence that a congregate living facility has achieved optimal physical distancing ... in the context of a COVID-19 pandemic, every decision to put or keep an individual in a congregate living facility, [may impact] the health of both the individual and the community of those who must remain at the facility....

• [E]very admission prevented, and every resident discharged or released, is an opportunity to flatten the curve and improve health for the individual involved, other inmates in the facility in question, staff at the facility in question, and the public. Stated otherwise, unnecessary admissions to and continued residence at [such facilities] are a health hazard for all in the context of the COVID-19 pandemic.

[23] These sentiments are echoed by medical professionals across Ontario, many of whom have signed an open letter, expressing deep concern about the impact of the COVID-19 pandemic on incarcerated persons, and urging the government to act swiftly to "release as many people as possible" to mitigate the effects of an outbreak.

[24] As I have noted, the defendant reports that he suffers from specified health issues. Defence counsel referred to these statements by the Canadian Heart and Stroke Foundation: "People with pre-existing heart conditions are particularly vulnerable and face a higher risk of dying from COVID-19"; "Emerging data shows that people with heart conditions are four times more likely to die from the virus than patients with no underlying conditions."; "The mortality rate among patients who suffer a cardiac injury while in hospital for COVID-19 is 51% (1 in 2 people)".

[25] The Ontario Court of Appeal has ruled that the impact of the COVID-19 pandemic represents a collateral consequence which may be considered at sentencing, although not to the point of reducing a sentence beyond what would otherwise be fit in the circumstances. R v Morgan, 2020 ONCA 279. Like many of my colleagues, I have taken the pandemic into account in sentencing. For example, in R v Yzerman, 2020 ONCJ 224, the sentence imposed reflected not only the offender's increased risk in jail (due to being HIV) but the fact that the worry inherent in this risk means his sentence would be harder to endure.

[26] I accept that the defendant is at a higher risk because of the medical issues he reports. I do not know the nature of that risk because there is no evidence before me about the extent of his medical ailments. In any event, like the case of Yzerman, I consider in this sentence that the defendant's attendant worries mean jail is harder for him.

[27] The above noted statements by medical professionals are important and relevant. But there are other factors at play. The Court's primary duty in sentencing is protection of the public. This duty is fulfilled by a consideration of statutory and common law principles. If jail can be avoided or minimized, it should be, because of what the medical experts have told us about the pandemic. However, at the end of the day, public safety cannot be sacrificed on the altar of COVID-19.

CONCLUSION

[28] The defendant and victim had never met before this crime was committed. It may be, as Defence counsel points out, that alcohol was a factor. Perhaps, the defendant also felt emboldened by the fact that the victim provided him with her telephone number and did not immediately leave when he mouthed the words "I like you". What is clear is that he had no qualm about forcing a stranger into his bedroom to have unprotected sexual intercourse, without her consent.

[29] The primary sentencing objectives in this case are denunciation and deterrence. Specific deterrence is particularly important because of the prior conviction for sexual assault, in addition to other crimes of violence and being unlawfully in the home of a previous domestic partner. This history is aggravated by his failure to comply with court orders. I also consider the impact of the offence on the victim. Having regard to this offence and offender, I am of the view that the appropriate range for the sexual assault is four to five years in custody – and, in other circumstances, I would have accepted the Crown position of five years. However, given what I have said about the pandemic and its impact on the defendant, I impose a sentence of four years. In my opinion, this is a fair balance between the competing interests.

[30] Four years amounts to 1461 days. The defendant was arrested on May 14, 2019 and has been in custody since that time. At the date of this sentence he will have been incarcerated for 388 days, for an effective presentence custody, at 1.5 to 1, in the amount of 582 days. Accordingly, the defendant will be sentenced to an additional 879 days (that is, two years, four months, and 27 days). He is sentenced to 120 days (four months) for the breach of probation. This will be served concurrently.

[31] The defendant will also be subject to the following ancillary orders: 109 prohibition order for life (s. 109(3)), DNA primary (s. 487.04(a)) and a SOIRA order for life (s. 490.022(3)(d)).

Released: June 4, 2020

Signed: Justice J. De Filippis

Footnotes

[1] This trial was heard on December 19 & 20, 2019. After the verdict, a presentence report was ordered and sentence adjourned to February 26, 2020. Sentence was adjourned at the request of trial counsel and further adjourned because of COVID. Submissions with respect to sentence were received in writing.

[2] The defendant was represented by a different lawyer at trial. He was replaced by present counsel after February 26, 2020.