ONTARIO COURT OF JUSTICE

DATE: 2021 06 10 COURT FILE No.: 20-38101490

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

EMMANUEL FARIA

Before Justice Angela L. McLeod

Heard on JPT September 16, 2020; Plea November 12, 2020; Sentencing Submissions April 20, 2021 Reasons for Judgment released on June 10, 2021

A s.486.4(2.1) order was made November 12, 2020

Counsel: Mary Anne Alexander........................................................................ counsel for the Crown Joseph Neuberger.......................................... counsel for the accused Emmanuel Faria

McLeod J.:

Overview

[1] Mr. Faria was charged with a number of offences arising from interaction with the victim on July 25, 2019.

[2] Ultimately, the Crown agreed to a guilty plea to the lesser and included offence of assault simpliciter.

[3] SB (the victim), who was under the under of 16 years at the time of the events, attended a party. Mr. Faria had just turned 18 years of age the month prior.

[4] The parties were unknown to one another prior to the night in question.

[5] There was non-consensual, physical contact; Mr. Faria was the initiator.

[6] Mr. Faria entered his plea and then adjourned the sentencing in order to participate in some counselling.

Victim Input

[7] SB read her statement during the sentencing hearing.

[8] Almost 2 years have passed since the offence date. The impact upon SB has been extensive and traumatic. In part, she wrote, “My head is a horrifying place for me to be in. I am just a kid. I am literally a child, and the past years of my childhood have been spend convincing myself that I am not a cowardly, disgusting and useless person who is only worth their body and the ability to have sex”. Also, “This event haunts me, it has broken me, it has ruined me altogether”.

[9] SB has been hospitalized for mental health concerns, and developed anorexia and bulimia.

Mr. Faria’s Circumstances

A. Criminal record

[10] He has no antecedents or criminal convictions.

B. Counselling

[11] He undertook a lengthy course of counselling with a registered clinical and forensic psychologist, Dr. Kalia. The therapist penned a letter in which she wrote, “He showed good grasp of concepts discussed in the sessions. He related the topics covered during the sessions to his own situation. He showed good insight into the dynamics of his behaviour that led to the criminal charges. He provided rich feedback especially on issues related to consent and boundary violations. He regrets his behaviour and appreciates the impact on the complainant”.

[12] The therapist opined that further counselling was not necessary.

[13] Mr. Faria undertook a psychiatric assessment conducted by Dr. Julian Gojer of the Manasa Clinic.

[14] In his report, under the title “Diagnosis”, Dr. Gojer wrote, “Mr. Faria does not suffer from any mental illness. He has no problems with drug or alcohol use. His history is not indicative of any personality disorder. He has been prosocial young man all his life. He does not have any sexual deviation and from a sexuality point of view, he was naive and inexperienced”.

[15] In his report, under the title “Risk and Prognosis”, Dr. Gojer wrote, in part, “Mr. Faria is a prosocial young man who was somewhat naïve about age of consent, consent in general and the need to inquire about he age of a person when engaging in any sexual contact. He has addressed all these issues in counselling with Dr. Kalia … He is a young man who is sexually inexperienced and used inappropriate sexual contact when attempting to express his needs. His offending can be considered to have a component of a boundary violation which he has addressed in counselling. Mr. Faria has been highly sensitized to the nuances of consent and given his highly prosocial nature, I do not see him as reoffending again”.

[16] Lastly, Dr. Gojer concurred with Dr. Kalia that further counselling was unnecessary.

C. Education

[17] Mr. Faria is currently a studying Business Administration at college. He is achieving strong grades and is on course to graduating. He has a bright and productive future ahead.

D. Employment

[18] In addition to his studies, Mr. Faria has been working consistently since he was 14 years of age. He has been employed at the same local restaurant since November 2019.

Position of the Parties

A. Crown

[19] The Crown acknowledges that Mr. Faria is a first-time offender, a young man, is without a criminal record, plead guilty and has taken a course of counselling.

[20] The Crown emphases the profound impact on SB.

[21] The Crown seeks a suspended sentence to be followed by 24 months probation. Should this court accept the defence position, then the Crown suggests a longer term of probation of 36 months. In addition, a DNA order is sought.

B. Defence

[22] The defence seeks a conditional discharge.

[23] Mr. Neuberger underscores the fact that Mr. Faria is youthful, first time offender, who undertook a significant course of counselling and assessment. He submits that given the current education and future goals of Mr. Faria, a conviction would adversely impact his ability to garner employment and would in the end subvert the community’s interests.

Analysis

[24] The mitigating factors are referred to above, and summarized hereafter:

(1) The plea of guilt; (a) Resulting in the victim not having to participate in a trial. (b) The saving of judicial resources during the current global pandemic. (2) Youthful, first time offender; (3) Lack of antecedents; (4) Positive, prosocial life; (5) Engaged in post secondary education; (6) Extensive counselling and psychiatric assessment;

[25] The impact on SB is profound, however, “although the impact of the offence on the victim forms an important part of the proportionality analysis, it is not a determinative factor”. (R. v. O. (C.G.), 2012 BCCA 129).

[26] While this court hopes that the imposition of sentence, as a conclusion to the matter, will bring some comfort to the SB, it is unlikely that any sentence would bring immediate healing. Time, counselling, support are all required.

Conclusion

[27] SECTION 730(1) of the Criminal Code provides that:

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 14 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).

[28] Mr. Justice David Stone, of this court, in R. v. Carroll, 2019 ONCJ 133, at para. 14, referred to the British Columbia Court of Appeal decision of R. v. Fallofield, [1973] B.C.J. No. 55 (B.C.C.A.) at para. 21:

(1) Discharges are not limited to technical or trivial violations; (2) Generally, the requirements that a discharge would be in the best interest of the accused would presuppose that the accused is a person of good character, without previous conviction, that it is not necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him, and that the entry of a conviction against him may have significant adverse repercussions; and, (3) While the public interest in deterrence of others must be given due weight, it does not preclude the judicious use of the discharge provisions.

[29] It is in the public interest that Mr. Faria be given every opportunity to become a useful person in the community and to earn a livelihood.

[30] Furthermore, and returning to the Carroll, supra, decision, Justice Stone makes reference at para. 22 to the decision of Justice Hill in R. v. Hayes, [1999] O.J. No. 938 and R. v. Barilko, [2014] O.J. No. 792:

(1) Discharges are not restricted to trivial matters; (2) Where an offender has acted entirely out of character, perhaps in the context of unusual pressure or stress, a discharge may be a fit sanction; (3) Where a criminal record will have a tendency to interfere with employment, a discharge should be given serious consideration; (4) A suspended sentence is not necessarily a greater deterrent to other than a conditional discharge.

[31] As per the reports of Dr. Kalia and Dr. Gojer, as well as the letter from Mr. Faria’s parents, this event was out of character.

[32] Given the Crown position of a suspended sentence, I am not convinced that a conditional discharge would result in any less deterrent to the public. No submissions were made in this respect on behalf of the Crown.

[33] Both Dr. Kalia and Dr. Gojer opined that further counselling was not necessary. I accept those opinions without question.

[34] The sentence will be a conditional discharge, with probation to follow for 24 months, with the terms that he does not have any contact with the victim. It will be a non-reporting probation. There will be no counselling term.

[35] I decline to make the order for DNA.

Released: June 10, 2021 Signed: Justice Angela L. McLeod