ONTARIO COURT OF JUSTICE
CITATION: R. v. R.B., 2021 ONCJ 635
DATE: November 30, 2021
COURT FILE No. 2811-998-34045-00
B E T W E E N:
HER MAJESTY THE QUEEN
— AND —
R.B.
Before Justice F. Javed
Sentencing submissions: October 5, 2021
Reasons for Sentence rendered: November 30, 2021
S. Thompson ............................................................................counsel for the Crown K. Manitius ..........................................................................................counsel for R.B.
F. Javed J.: -
PUBLICATION RESTRICTION NOTICE
A non-publication in this proceeding has been issued pursuant to s.486.4(1) of the Criminal Code. By order of this court, any information that could identify the parties shall not be published in any document, broadcast or transmitted.
A. Overview
[1] R.B. and the victim M.H., attended a Christmas party hosted by their former employer at the Hilton Garden Inn. The event was held in the ballroom with dinner and dancing. Both parties consumed alcohol and became intoxicated. M.H. was too drunk to go home so a plan was hastily devised to have her stay overnight at the hotel in a room on the first floor previously assigned to R.B. who agreed to switch rooms. In the early hours, a night manager of the hotel entered M.H.’s room to check on her and discovered R.B. in the room who had gained entry with a master key. R.B. was naked from the waist down and on top of M.H. who was on the bed and asleep. When M.H. woke up in the morning, she had no memory of the events and later claimed R.B. sexually assaulted her. M.H.’s underwear had been removed and she had urinated on herself. After a trial, the court found R.B. guilty of the offences of break and enter and commit the indictable offence of sexual assault contrary to s.348(1)(b) of the Criminal Code and sexual assault, contrary to s.271 of the Criminal Code.
[2] R.B.’s guilt was established largely from the account of C.B, the night manager on duty. He entered the room and believed he saw the parties having sexual intercourse and related this information to M.H. the following day. R.B. testified and admitted being in M.H.’s room without her permission but said he was not naked and did not have sexual intercourse with her. His position was he applied force to her body with his hands to “help her” by cleaning her legs and vaginal area with toilet paper because she urinated while he was in the room retrieving his personal effects. While this alone may have been enough to prove a sexual assault because M.H. could not have communicated her consent to being touched in circumstances that were objectively sexual, the Crown’s theory of liability was premised on more invasive conduct, namely, he had sexual intercourse with her. This theory was not proven beyond a reasonable doubt and instead the court found R.B. guilty of a sexual assault by concluding he broke into her room using a master key without her permission and was straddling her while naked from the waist down, before he was intercepted by C.B. entering the room. It falls on the court to sentence R.B. for this criminal conduct.
[3] The sentencing hearing was adjourned for preparation of a Pre-sentence Report (“PSR”) and victim input. The hearing was adjourned again at the request of the defence for a variety of reasons.[^1] On October 4, 2021, sentencing submissions were completed with all parties participating by videoconference. The parties filed material including cases in support of their positions.
[4] The Crown proceeded by indictment and seeks an upper reformatory sentence of 2-years less one day followed by a 3-year probation order with terms and various ancillary orders. The Crown says R.B.’s conduct was a gross violation M.H.’s sexual autonomy as he preyed on a vulnerable victim who was intoxicated and asleep. The defence joins the Crown on the length of the probation order as well as the ancillary orders but submits the court should impose a custodial sentence in the range of 9-12 months. The defence position for a lower jail sentence is premised on three submissions: (i) the nature of the sexual assault which did not involve proof of penile penetration, (ii) R.B.’s extremely positive and pro-social background and (iii) the circumstances of sentencing R.B., who has heart problems, during a public health crisis.
[5] The issue to be explored in these reasons is: what is an appropriate length of a jail sentence in the circumstances of this case?
B. Circumstances of the Offences
[6] The factual circumstances that gave rise to the two findings of guilt were summarized in detail in the courts’ trial reasons which were reduced to writing. I will provide a summary of my findings important to the sentencing analysis.
[7] At the time of the offences, the parties were known to each other as co-workers. R.B. was employed as a maintenance manager while M.H. was employed as a server/bartender at the Hilton Garden Inn (“the hotel”). The parties were not romantically involved nor expressed any interest in each other beyond friendship due to their shared employment. There is a significant gap in age as R.B. is 55 years old while M.H. is much younger. The parties agree that R.B. was in a position of trust vis a vis M.H. as co-workers and towards his employer because he was entrusted with master keys to the hotel which he was only permitted to use during his employment. As the facts established, R.B. was not working and entered M.H.’s room on three occasions – once while using the room key previously assigned to him but on two other occasions using a master key after his room key had been relinquished. I agree with the parties R.B. abused a position of trust in relation to M.H. That said, I also agree there is no evidence that R.B. abused a position of authority as M.H. was a co-worker, not an employee of R.B.
[8] Both parties consumed a lot of alcohol, but not together. M.H. testified she was “shit-faced” which is a colloquial term to mean she was heavily intoxicated. The court found R.B. would have known M.H. to be intoxicated because towards the end of the night, she fell in the ballroom and was escorted to a hotel room by R.B. and another employee. R.B. also consumed alcohol but he was not as intoxicated as M.H. The hotel security cameras captured the parties during the event, including showing M.H. dressed in a red outfit and clearly intoxicated. R.B. seemed more lucid and functional but admitted at trial he drank a lot of alcohol, both in his hotel room and in the ballroom. The intoxication factor speaks to M.H.’s vulnerability. It also speaks to R.B.’s blameworthiness because he made a conscious choice on three occasions (not just once) to enter her room without her permission and sexually assault her on one occasion, knowing she was in an intoxicated and vulnerable state.
[9] Given M.H.’s intoxicated state, a plan was hastily devised by management that she should “sleep it off” at the hotel and go home in the morning when she was sober. The hotel employees decided not to assign M.H. her own hotel room and instead insisted R.B. - who had been assigned a room on the first floor - surrender his room to M.H., and he would take a new room on an upper floor as he was more lucid. The reasoning was it would be easier for the night manager to intermittently check-up on M.H. if she was on the first floor as opposed to an upper floor. As a result, R.B. voluntarily surrendered his room key and was escorted into a different room on an upper floor. However, as the night wore on, surveillance cameras captured R.B. entering M.H.’s room (his previous room) on three occasions, without her permission. There was no evidence that M.H.’s intoxicated position improved and it appeared she never awoke from her sleep until she was discovered by hotel patrons in a dazed and confused state leaning against the wall of a the hotel hallway, without her underwear.
[10] The Crown’s theory of criminal liability was premised on two factual narratives. The first and dominant theory was R.B. broke into M.H.’s room with his master key which was provided to him by the hotel as part of his employment and he had sexual intercourse with M.H. while she was asleep, where she was unable to communicate consent. There was no direct evidence from M.H. that R.B. forced sexual intercourse but instead the Crown relied on a body of circumstantial evidence and the direct evidence of C.B. who testified he walked in and saw the buttocks of R.B. who was on top of M.H. and moving his body “up and down”. There was evidence that M.H. was later found in the hotel with her underwear removed although there was no evidence about the circumstances of its removal. The court was satisfied R.B. removed his underwear as men’s boxers were later found in the room but the inference that R.B. also removed M.H.’s underwear was speculative. Further, there was no forensic evidence supporting sexual intercourse. The second theory of liability involved R.B. breaking into M.H.’s hotel room with his master key without her permission whereupon he straddled her while naked from the waist down as he was preparing to commit a more invasive sexual act.
[11] The Crown’s case, on either iteration of the facts, turned on the credibility and reliability of the evidence of the night manager, C.B. who was tasked by hotel management to intermittently check-up on M.H. by entering her room with another set of master keys to make sure she did not get sick or worse, choke on her vomit while she slept. The hotel video surveillance clearly showed R.B. entering M.H.’s room on three occasions after he had relinquished his room key. On two occasions he gained entry using the master key which was reserved for use during his employment. He clearly was not working at the time and did not have M.H.’s permission to enter the room either directly or indirectly from the hotel. Accordingly, the break and enter offence was easily proven beyond a reasonable doubt.
[12] The sexual assault allegation was more challenging. The court found C.B. to be an honest witness in so far as his evidence that he observed R.B. in M.H.’s room while he was naked from the waist down and on top of M.H. who was on the bed. However, considering the totality of the evidence, including C.B.’s quick observation before he retreated and gaps in the circumstantial evidence, the court was not satisfied that the Crown had proven R.B. was having sexual intercourse with M.H.
[13] As noted, R.B. denied committing a sexual assault and took the position he entered M.H.’s hotel room on three occasions for the sole purpose of returning her cellphone and retrieving his personal effects that he left behind after he was told to switch rooms. He denied removing his clothing and denied having or attempting to have sexual intercourse with her. He also testified that while in the room, he heard M.H. urinate so he tried to help her by cleaning her urine with toilet paper, which involved wiping her legs and vaginal area. He did not remove her underwear.
[14] The court rejected R.B.’s evidence about what he was doing in M.H.’s room. Nor did it leave the court with a reasonable doubt about his guilt. R.B. was not a credible or reliable witness. He consumed 8-9 alcoholic drinks and acknowledged he was “quite intoxicated”. The court was satisfied he entered M.H.’s room on three occasions without her permission. The first entry was not proven to be a criminal act because the hotel room was technically still under his control as he had not relinquished the key, but this changed when he did relinquish it and entered on the second and third occasions with a master key which he was only permitted to use while on duty. It is the second entry into the room which resulted in the proven sexual conduct. The third entry is bizarre, because it was after he had been confronted by the hotel employees after they found him hiding in the closet, generating a further explanation about his conduct. He was ordered to leave the room, but he re-entered momentarily for an unknown purpose but quickly retreated.
[15] In summary, the court must sentence R.B. for (i) breaking into a co-worker’s hotel room using a master key entrusted to him by his employer without her permission on two occasions and (ii) committing a sexual assault during one of the entries by straddling her while his penis was exposed and while she was asleep. All of this was within the context of R.B. helping M.H. into a hotel room knowing she was intoxicated and in a vulnerable state.
C. Circumstances of the Victim
[16] Section 722 of the Criminal Code provides means for victims of crimes to participate in criminal proceedings. Providing victims with a voice in the proceedings is one means to make reparations and is especially important in cases involving sexual assaults. M.H. was offered the opportunity to provide victim input but declined. The absence of a formal victim impact statement does not permit a court to infer that M.H. did not suffer any harm: R. v. May.[^2] Instead, the court is permitted to rely on any “evidence concerning the victim” which includes the courts’ findings from the circumstances of the offence.
[17] I find that the circumstances of the offences had a clear psychological and traumatic impact on M.H. She was sexually assaulted in a workplace by a co-worker. She was told about the sexual assault through a phone call from another co-worker and had to suffer the embarrassment of trying to piece together the evening from her distorted memories caused by her intoxication. While R.B. cannot be penalized for exercising his constitutional right to a trial, M.H. had to relive the traumatic and embarrassing experience through a trial where videos captured her vulnerable state. The video footage showed her being escorted to a hotel room by R.B. who later abused this friendly gesture by sexually assaulting her. I have no hesitation in finding that the entire experience was traumatic and embarrassing and had a significant impact on her. M.H. was defenceless and her privacy and autonomy was grossly violated.
D. Circumstances of the Offender
[18] R.B.’s personal circumstances were detailed in a PSR filed as Exhibit 1 and supplemented with the submissions of counsel. I agree with Ms. Manitius that the PSR is largely positive.
[19] R.B. is 55 years old. He was born in Karachi, Pakistan and moved to Canada in 1998. His parents and most of his siblings reside in the United States. Both of his parents died from heart problems. He remains close to his siblings.
[20] In 2001, R.B. got married but divorced in 2009. The union produced two children with whom he has joint custody. He provides them with financial assistance. The author noted R.B. is involved in a healthy common law relationship for approximately 5 years. His partner knows about his legal predicament and said the relationship was “good”.
[21] R.B. graduated from a university program in Pakistan. While in school, he was a student athlete and even competed for Pakistan in track and field national events. After leaving competitive athletics, he turned to coaching until he injured his hamstring in 1988. In 1992 he moved to Dubai to work in the sales industry and finally settled in Canada in 1998 where he was gainfully employed.
[22] R.B. is currently employed as a head chef at a restaurant in Cobourg, Ontario. The PSR author spoke to the restaurant owner and manager who spoke very highly of R.B. and said he is a “good and hard worker”. R.B. expressed an interest in owning and operating his own restaurant one day. R.B. was employed by the Hilton Garden Inn for 5 years as a maintenance manager. From all accounts, his former co-workers thought he was a hard-working employee. He was quiet, jovial and dependable. It is no surprise that he was fired from his employment as a result of this case.
[23] The defence filed twelve (12) character references on R.B.’s behalf which were collectively filed as Exhibit 2. I have reviewed them carefully. The defence argues they speak to specific deterrence in that, the offence will not be repeated while the Crown urges the court to place little weight on them because they are not impartial. I share some concerns with the Crown because it’s unclear if the referees were made aware of the court’s findings including the troubling circumstances of the sexual assault. This issue goes to the weight of the evidence but otherwise, the letters share a common theme: R.B.’s good character. As examples, S.R. said she has known R.B. for 16 years and he is caring and compassionate and always looking to help others. She was shocked by the charges. D.S. considers R.B. to be an uncle. He spoke of a specific incident where somebody suffered a seizure at a family party and R.B. intervened to help. L.B. is R.B.’s sister-in-law and said R.B. would never intentionally disrespect a woman and is generous with his family and community. Having read all the letters, there is no doubt R.B. has lots of friends and family who love and support him. It’s unclear if they know the full details of the courts’ findings about the sexual assault but I’m prepared to accept the submission that the offence was out of character. I also agree with the defence submission that any jail sentence will have an impact on his two children, K. and K. who depend on him emotionally and financially. While previous good character cannot be ignored by a sentencing court, many offenders come before the court with good character, especially in cases involving sexual violence where the crimes are committed in private and out of view from the community.
[24] R.B. chose to consume alcohol, both in his hotel room at during the party. He denied being intoxicated but did acknowledge: “I drank too much that night”. It is well known that alcohol impairs judgment. Ms. Manitius, fairly, did not point to alcohol as an explanation for R.B.’s conduct. It is not a mitigating factor on sentence because R.B. made a choice to drink alcohol. His self-induced intoxication was not to the point where he lost the ability to make voluntary decisions. In fact, he entered the room on more than one occasion knowing each time that M.H. was in the room drunk and asleep. This decision was made despite knowing he consumed a lot of alcohol.
[25] In the PSR, R.B. maintained he did not commit a sexual act. Rather, he said he was trying to be a “helpful guy” which I take to mean was his act of offering to exchange rooms with M.H. I agree this was helpful to both M.H. and their mutual employer who was concerned for her wellbeing. R.B. could have easily refused to switch rooms and didn’t. However, his position of being helpful was also rooted in his evidence that he was trying to help M.H. by cleaning her urine by wiping her body with toilet paper, which the court did not accept as true. R.B. told the PSR author: “I went to help someone, and I got charged”. He acknowledged he could have prevented “this” problem if he did not try to “help the victim” (my emphasis in quotes).
[26] The defence did not seek to qualify or elaborate on the above comments. They are problematic, but to be fair, I have taken them with a grain of salt. R.B. had the right to insist on his innocence and have the Crown prove his guilt beyond a reasonable doubt. The court can appreciate that he may not agree with the courts’ findings and verdict, which cannot be used to aggravate the sentence.[^3] However, these comments also speak to a lack of insight and a failure to accept responsibility for his actions which may be relevant to rehabilitation and the likelihood of reoffending and future dangerousness.[^4] R.B. has no insight about his conduct vis a vis M.H. In particular, his comments reflect he has no appreciation of the boundaries of personal autonomy and sexual integrity. Context is important. C.B. had implicit permission to enter M.H.’s room to check on her wellbeing but he did not touch her because he knew that was off-side. R.B. crossed a clear line between acceptable and unacceptable social conduct and on any version of the facts, doesn’t seem to understand what he did was both morally and legally wrong. While switching rooms was being helpful, entering her locked room and applying force in sexual circumstances without her permission was not helpful in any way shape or form. It was clearly off-side. A man with his education and life experience ought to have known he crossed these boundaries. I am not permitted to use disbelieved evidence to aggravate the sentence but his comments to the PSR are troubling because they show a failure to accept responsibility and a failure to appreciate the seriousness of the offence. See for example, R. v. Smith, infra, at para. 30. It is my view R.B. would strongly benefit from counselling about sexual boundaries so this conduct is not repeated in the future. It is noteworthy that R.B. is prepared to join the Crown on a maximum probation order of 3 years for this purpose. Considering his comments in context, there’s no evidence that he presents a risk to other partners or is more likely to reoffend on this basis.
[27] The PSR author concluded that R.B. would be a suitable candidate for community supervision because he was willing to comply with any condition the court may deem appropriate. R.B. apologized to the court and remarked that a custodial sentence would gravely impact his children as he’s the sole breadwinner. I will consider this comment when considering the collateral consequences of sentence.
[28] Finally, R.B. has a criminal record which contains a conviction in 2012 for a drinking and driving offence and a finding of guilt in 2009 for an assault for which he received a conditional discharge and a period of probation. Overall, the criminal record is dated and does not play a significant role in the sentence.
E. Discussion
[29] I will begin my discussion by first reviewing some legal principles that must guide the court’s analysis of a fit and proportional sentence in this case.
(i) General Principles
[30] Sections 718, 718.1 and 718.2 of the Criminal Code set out the purpose and principles of sentencing. Section 718.1 of the Criminal Code provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.[^5] In assessing the gravity of the offences, I must take into account the penalties prescribed by the Criminal Code and the circumstances relating to R.B.’s commission of the offences, with a focus on any features that either increase or decrease the harm, or the risk of harm, to the victim or to the community.
[31] The assessment of an offender's degree of responsibility refers to the extent of R.B.’s culpability. I must consider his actions, mindset and motivation in committing the offences. This is informed by taking into account his background and other circumstances surrounding the offences. In R. v. Ipeelee[^6], Justice Lebel writing in the Supreme Court observed that the fundamental duty of a sentencing judge is to engage in an individualized assessment of all of the relevant factors and circumstances, including the status and life experiences of the person standing before them.
[32] Section 718.2 of the Criminal Code provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances, the combined duration of consecutive sentences not be unduly long, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered. In R. v. Nasogaluak[^7], the Supreme Court said: “[The] relative importance of any mitigating or aggravating factors will then push the sentence up or down the scale of appropriate sentences for similar offences.” It is by giving due regard to these factors that I can ensure the sentence imposed is proportionate.
(ii) Totality
[33] R.B. must be sentenced for two separate offences which engages the principle of totality. Section 718.2(c) provides that if consecutive sentences are imposed, the combined sentence should not be unduly long or harsh: R. v. Ahmed.[^8] As appellate courts have held, where an accused is ordered to serve consecutive sentences for multiple offences, the offences are not looked at in isolation. The cumulative sentence must not exceed the overall culpability of the offender. In R. v. R.B.,[^9] the Court of Appeal referred to the proper approach and held a court should first determine a global sentence and then assign sentences for each offence for each offence and designate each as concurrent or consecutive to fit within the global sentence.
[34] Here, the parties focused their submissions on an appropriate jail sentence for the sexual assault offence without addressing the issue of whether the break and enter offence should attract a consecutive or concurrent sentence. In R. v. Friesen,[^10] the Supreme Court held “offences that are so closely linked to each other as to constitute a single criminal adventure may, but are not required to receive concurrent sentences, while all other offences are to receive consecutive sentences”: at para. 155. It is my view the two offences don’t share a strong factual and legal nexus which means the offences ought to be treated separately, while still sharing the umbrella of totality. R.B. was not charged with break and enter with intent to commit a sexual assault under s.348(1)(a) but rather was charged with break and enter and commit an indictable offence (sexual assault) under s.348(1)(b). In the former category, there is arguably a stronger factual and legal nexus between the two offences because of the mens rea component, but that was not the case here. R.B. broke into a hotel room and then decided to commit a sexual assault on M.H. Despite my reservations on this point, the parties did not address it and to avoid unfairness, I will simply assume the parties relied on the principle in Friesen that the two offences were part of the same criminal adventure and should attract concurrent sentences. Therefore, I will not impose consecutive sentences but R.B.’s sentence must still focus on his overall culpability for the two offences.
(iii) Parity and Gravity of the Offence
[35] Section 718.2(b) of the Criminal Code provides that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. One way to achieve sentencing parity is by examining similar cases decided by other courts to help courts situate the R.B.’s conduct. Sentences decided by other courts are intended to provide guidance as opposed to dominating the sentencing process.[^11] Both parties relied on cases in support of their positions on the length of an appropriate custodial sentence. I have reviewed them carefully and will discuss them below.
[36] The parties are divided about the appropriate range of sentence for the sexual assault offence, which in turn, led the parties to rely on different cases in support of their positions. This division is informed, in part, based on differences in the perceived gravity of the offence and extent of R.B.’s moral blameworthiness. The Crown submits R.B.’s actions represented a profound violation of M.H.’s bodily integrity and amounted to a significant breach of trust because of her vulnerable state. As a result, the court should be guided by the range of sentence endorsed by the summary conviction appeal court in R. v. Smith[^12] where Justice Campbell held in cases in which the Crown proceeds by indictment, the usual range of sentence for an invasive sexual assault on a sleeping or unconscious victim is “somewhere between an upper reformatory term of imprisonment and a lower penitentiary term of imprisonment (i.e. between 18 months and three years). The Crown proceeded by indictment in this case and Ms. Thompson submits the conduct was sufficiently invasive and a sentence near the middle of this range at 2-years less a day is appropriate.
[37] Ms. Manitius argues the range in Smith does not apply to the circumstances of this case because the court did not find R.B. sexually penetrated M.H. while she was asleep. As a result, she distinguished the Crown’s cases and relied on others with less invasive conduct resulting in lower jail sentences. In essence, the defence submits the nature of R.B.’s sexual act and the degree of physical interference should form part of the parity and proportionality analysis because the court did not find R.B. had sexual intercourse with M.H. Instead, the defence argues the courts’ sentence should focus on the proven act of straddling M.H. while she was asleep which therefore means the jail sentence should be adjusted downwards from the appropriate range of sentence.
[38] While I agree with the defence about the general proposition that the nature of the sexual act should inform a proportionate sentence, respectfully, I disagree that the degree of physical interference ought to occupy a decisive factor in the analysis. This issue was addressed by the Supreme Court in Friesen, a case involving sexual offences against children. In my view, the Supreme Court’s discussion of sentencing principles in sexual offence cases has broader application. In general, the court held that the degree of physical interference is a recognized aggravating factor because it reflects the degree of violation of the victim’s bodily integrity, but C.J.C. Wagner cautioned sentencing courts on the following:
(1) Courts should caution against attributing intrinsic significance to the occurrence or non-occurrence of penetrative or other sexual acts: at para. 141.
(2) Courts should not assume there is any clear correlation between the type of physical act and the harm to the victim: at para. 142.
(3) Courts must recognize the wrongfulness of sexual violence even in cases where the degree of physical interference is less pronounced: at para. 145; and
(4) It is an error to understand the degree of physical interference factor in terms of a type of hierarchy of physical acts: at para. 146.
[39] The objective gravity of the offence is informed, in part, by the presence of aggravating features in the circumstances surrounding its commission. As other cases have held, courts should account for the harm or likely harm to the victim and to society and its values: R. v. Arcand.[^13] It is my view the nature of the sexual act, namely straddling M.H. while R.B. was naked from the waist down was a serious sexual act because it violated the sexual autonomy and dignity of a vulnerable victim. The moral gravity of this offence is akin to the cases of a sleeping or unconscious victim because it deprives the person from communicating consent to a very intimate act. R.B.’s moral blameworthiness is high because he entered a locked hotel room knowing M.H. was vulnerable where she could not communicate her consent to keep him out and avoid being sexually assaulted. A court’s sentence must speak to the actual and likely harm of this act which attracts denunciation. Proportionality is tied to R.B.’s personal responsibility because he knew of her vulnerable state and made a choice to both enter her locked room and commit a sexual act despite knowing she was drunk and vulnerable: Arcand, supra. I do not find the defence cases, some of which did not involve sexual penetration, to be more persuasive on this point.
(iv) Aggravating and Mitigating Factors
[40] Turning next to the aggravating and mitigating factors. The aggravating factors in this case are:
(i) While the Criminal Code does not define “position of trust or authority”, the parties agree there was a violation of M.H.’s trust by R.B. which is an aggravating factor. I am satisfied that R.B. abused M.H.’s trust because she was a co-worker who he knew was in a vulnerable state and especially because he helped escort her into his room knowing she was intoxicated. R.B. also took advantage of a vulnerable co-worker who was much younger than him.
(ii) R.B. also abused his trust vested in him by his employer by using his master key in circumstances when he knew he wasn’t allowed to do so to gain entry in a room that no longer belonged to him.
(iii) R.B. made a choice to enter a locked hotel room knowing it had a vulnerable person which impacts the gravity of the offence because it showed a willingness to exploit a vulnerable person. Indeed, this was done on three separate occasions, two of which are aggravating. R.B. would have known from his first entry that M.H. was intoxicated and in a vulnerable state. I agree with the Crown that this shows a pattern of conduct which was calculated to gain access to a vulnerable victim. This impacts not only the gravity of the offence but also the moral culpability of R.B. and is an important aggravating factor: see Parranto, supra at para. 70.
(iv) As stated earlier, I’m satisfied the offence had a significant psychological toll on M.H. who was clearly emotionally traumatized by the ordeal including reliving the trauma through embarrassing evidence showing her intoxicated state. R.B.’s actions were not only intrusive but disregarded her bodily integrity and sexual autonomy. While the full extent of the impact on her is unknown, I arrive at this obvious finding from the trial proceedings.
[41] The mitigating factors in this case are:
(i) R.B. has strong pro-social supports in the community as evidenced by the comments of the PSR author and his many character references. This factor speaks to the prospects of rehabilitation.
(ii) R.B. has a stable employment history and remains gainfully employed despite his criminal charges, and
(iii) R.B. has been on a release order since the date of his arrest and has not reoffended or found himself in trouble with the law. While the defence did not seek credit for restrictive bail conditions, courts have recognized that notable passages of time since the date of the offence together with post-sentence law abiding behavior of the offender may operate as a mitigating factor. I will be sentencing R.B. almost 3 years after the offence was committed and almost 9 months after the courts’ verdict, which is a substantial amount of time.[^14]
[42] There are some neutral factors in this case which in my view are neither aggravating nor mitigating but exist because they are unique to this case. First, the Crown submits R.B.’s criminal record is aggravating because it involves both alcohol (in 2012) and violence (in 2009). In my view, both dispositions are dated and do not materially speak to R.B.’s low prospects of rehabilitation. I disagree this is aggravating in this case. Second, the Crown submits R.B.’s intoxication also aggravates the sentence or at the very least speaks to his lack of self-awareness of his alcohol problem. The court did not find R.B. to have a problem with substance abuse and indeed, while he drank alcohol, he was not intoxicated to the point of losing control of his senses at the time he committed the sexual act. I don’t view this as an aggravating factor. In any event, Ms. Manitius submits R.B. is prepared if ordered, to explore any alcohol related issues with probation. The final neutral factor is R.B.’s insight into his conduct. As noted, this issue speaks to both moral responsibility and prospects of rehabilitation and assessing future risk. While the court found his comments to the PSR author concerning, I do not have sufficient evidence before me to treat R.B.’s disposition and attitude towards the offence as aggravating. There is no evidence to suggest he presents a risk to reoffend or is a danger to others. I am sensitive to the context of the comments which were made because R.B. disagrees with the courts findings which is his prerogative. I will not increase the sentence on this basis. As stated earlier, R.B. is prepared to commit to a 3-year probation order where counselling for sexual boundaries can address this aspect as part of his rehabilitation.
(v) Collateral Consequences and COVID-19
[43] A proportionate sentence may require an examination of the collateral consequences that may arise from the commission of the offence, the conviction for the offence, or the sentence imposed.[^15] A collateral consequence is not necessarily aggravating or mitigating within the meaning of s.718.2(a) of the Criminal Code as these consequences are not related to the gravity of the offence or the level of responsibility of the offender. Collateral consequences are integrally connected to the goal of an individualized and proportionate sentence because the focus shifts to concerns about whether the impact of the sentence would have a more significant impact on the offender because of the offender’s circumstances.[^16] These consequences “cannot be used to reduce a sentence to a point where the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender”.[^17]
[44] It is not lost on the court that R.B. must be sentenced during a public health crisis. In R. v. Morgan[^18], the Court of Appeal held that a sentencing court can take judicial notice of the fact of the COVID-19 pandemic, its impact on Canadians generally, and the current state of medical knowledge of the virus, including its mode of transmission and recommended methods to avoid its transmission. The COVID-19 factor is properly considered a collateral consequence of sentence. In R. v. Lariviere[^19], the Court of Appeal instructed courts to consider evidence of any particular vulnerabilities of the offender or particular circumstances of the incarceration that might justify shortening a fit sentence because of this factor.
[45] Ms. Manitius submitted the court should consider tempering the length of the jail sentence based on the collateral consequence of the COVID-19 pandemic in two ways. First, it was submitted R.B. suffers from heart problems which may not be accommodated in a jail setting which will make his incarceration extra harsh. Respectfully, I cannot assign much weight to this submission because even though R.B. may suffer from heart problems, no evidence was called on this issue which might make R.B. disproportionately at risk of being impacted by the virus because of his personal circumstances.
[46] Second, it was submitted the court should reduce a jail sentence on a prospective basis because of the harsh realities of serving a sentence in a congregate setting like a jail where a virus cannot be managed in the same way it could in the community. Ms. Manitius pointed to the decision in R. v. Studd[^20] where Justice Davies held that the risks posed by the COVID-19 pandemic to those who are incarcerated is one of the circumstances that can be taken into account when deciding whether a sentence below what would otherwise be imposed is nonetheless just and appropriate: at para. 43. I do not disagree with the wisdom of the court in Studd, but there the court heard evidence that the offender had a compromised immune system because of medication which placed him at a heightened risk of transmission of the virus: at para. 41. The same evidence was not presented here. I also note that Studd was decided in April 2020 when the community was in the throes of the pandemic. I am sentencing R.B. in November 2021 where the risk of transmission has been abated by the availability of two doses of the COVID-19 vaccine to eligible adults. I did not hear evidence about R.B.’s vaccination status but I would imagine he is eligible to be double vaccinated if he isn’t already. In any event, I am confident institutions are well positioned to address any vulnerabilities of R.B.
[47] While I cannot ignore this factor all together, I have considered the comments of Justice Pomerance in R. v. Hearns,[^21] who considered this issue when discussing the general fitness of a sentence and held that the “consequences of a penalty – be they direct or collateral – cannot justify a sentence that is disproportionately lenient, or drastically outside of the sentencing range. It cannot turn an inappropriate sentence into an appropriate one or justify dispositions that would place the public at risk”.[^22] I will keep these comments in mind in fashioning a proportionate sentence in this case.
(vi) Case Precedents
[48] Ms. Manitius relied on the following cases in support of her position:
• In R. v. T.N.,[^23] the court sentenced a 26-year-old first offender after trial to 15-months imprisonment. The offender had vaginal intercourse with the victim who was unconscious during a camping trip. The court held that the offender’s offence was similar in many respects to sexual assaults committed upon sleeping victims and “there is no recognized range for this category of sexual assault. R.B. is not a youthful first offender which would attract the principle of restraint.
• In R. v. S.M.C.,[^24] the Court of Appeal in an oral decision held that the range of 21 months to 4 years imprisonment was appropriate in cases involving sexual intercourse with a spouse or former spouse. Ms. Manitius argues by analogy this range is similar to the one espoused by the Crown in Smith and should not apply to this case because there was no intercourse. The legal analysis is not similar to this case because there are different considerations in crimes of intimate partners which the parties in this case were not.
• In R. v. R.[^25] the Court of Appeal upheld a 14-month custodial sentence imposed on an offender who sexually assaulted two children by digitally penetrating their vaginas. He was in a position of authority and was in a relationship with the mother of the two victims. This decision is not factually similar to the case before me as R.B. was not in a position of authority and did not sexually assault children which is now governed by the sentencing analysis in Friesen.
• In R. v. Micula,[^26] the court sentenced an offender to 12 months imprisonment for performing oral sex on a victim who was on a high from drug consumption. The offender was 48 years old and the offence had a traumatic impact on the victim. The court emphasized denunciation and deterrence because the offender took advantage of a victim who was completely defenseless because of her drug consumption which was known to the offender. The court held the absence of vaginal penetration “does not make the accused’s act less intrusive to a great degree given that he made oral contact with the most private part of her body”: at para. 28. Again, there are more aggravating factors in this case including the act of entering a locked room where it was expected M.H. would be safe.
• In R. v. McKenzie,[^27] the Court of Appeal considered a sentence appeal of an offender who sexually assaulted a co-worker at a Christmas party after the two had consumed alcohol and engaged in some consensual acts followed by a non-consensual act. The sentencing court imposed a 9-month jail sentence. The offender’s conduct involved partial penetration of his penis into the victim’s anus, which was preceded with consensual kissing. The offender testified the conduct was consensual. He was 35 years old and a permanent resident from Jamaica which engaged collateral immigration consequences. Trotter J.A. reviewed a similar submission advanced by the defence in this case as it relates to partial penetration being “less serious” and held ... “[The] mitigating value attributed to these features (i.e. partial penetration and prior ‘consensual’ behaviour’) is doubtful especially when the assault only came to an end when someone knocked on the door.” The sentencing court had concluded “I am not certain the encounter would have continued if that knocking had not occurred” which Trotter J.A. held was a mitigating feature of the offence which inured to the offender’s benefit. In the end, the Court of Appeal agreed the offence was a “significant” sexual assault but held the sentencing court did not err in imposing a 9-month sentence. In my view, McKenzie can be readily distinguished because it was primarily a sentence appeal which attracts deference. It is also dissimilar to the facts of this case because here there was no consensual activity that preceded R.B.’s sexual act on M.H. Further, M.H. stood in a different position because she was very vulnerable given her intoxicated state. R.B.’s moral culpability in entering a locked hotel room and committing a sexual assault on a drunk co-worker is much higher than the offender in McKenzie.
• In R. v. Harman,[^28] the 32-year-old first offender was sentenced to a 13-month jail sentence. The offender was a landlord who broke into a basement apartment occupied by his tenant and committed a sexual assault by touching her body and masturbating. The victim had previously rejected his sexual advances and reported the matter to the police when the offender sent her a text message asking if he could watch her have sex with her boyfriend. Justice Schwarzl remarked the offender was in need of counselling, but deterrence and denunciation must be emphasized in sex crimes involving vulnerable victims.
[49] In addition to R. v. Smith (discussed above), the Crown relied on the following cases:
• In R. v. F. (J.),[^29] the court sentenced an offender to 18-months imprisonment. The 25-year-old first offender had sexual intercourse with a co-worker at an office party after the two consumed alcohol. The pair shared a hotel room together and the offender sexually assaulted her while she slept. The court adopted the range endorsed by Campbell J. in Smith and held the breach of trust demanded a sentence in excess of 14 months custody: at para. 39.
• In R. v. M.(R).,[^30] the court sentenced a 64-year-old first offender who sexually assaulted a 22-year-old employee whom he had invited to his house for work purposes. The parties drank alcohol and the victim passed out only to be awoken by the offender fondling his genitals and squeezing his buttocks. The offender abused a position of trust but also a position of authority which is not the case here. The court held the range of sentence for an offence in these circumstances varies and could be as low as 9-months to 3-years imprisonment depending on the facts, but also that the range in Smith of 18-months to 3-years involving an “invasive sexual assault” was appropriate: at para. 32. The court held the offence fell below the range for invasive sexual assaults as it involved “minimally invasive” penetration and was “intrusive fondling”. In my view, these comments must be re-assessed in light of the Supreme Court’s direction in Friesen (discussed at para. 38 of these reasons) about a courts’ assessment of the degree of physical force and the role it ought to play in weighing the gravity of an offence. The court in M.(R.) did not have the benefit of Friesen but otherwise I agree with the court’s observation that the range in Smith is more appropriate because all sexual assaults are invasive and especially so in cases where the victim is in a vulnerable and defenceless position.
• In R. v. Merritt,[^31] the court sentenced a 31-year-old offender to 18-months imprisonment. The offender sexually assaulted his 20-year-old co-worker by having sexual intercourse with her on two occasions after the two consumed alcohol. The offender had an unrelated drug record and the Crown proceeded summarily which is not the case here. The court rejected the offender’s evidence that the sexual activity was consensual and found him to have a “cavalier” and “dismissive” attitude towards the complainant.
(vii) What is a fit and proportional sentence in this case?
[50] Sentencing an offender for a sexual offence is a challenging exercise because no two cases will be the same. It is inherently an individualized exercise. This case is no different and presents with some unique challenges due to R.B.’s proven conduct and his family and community support. I have carefully reviewed all the cases and others on my own, mindful of the Supreme Court’s direction that sentencing ranges generally represent a summary of the case law that reflects the minimum and maximum sentences imposed by trial judges in the past. As the Court held: [T]hey provide structure and guidance and can prevent disparity’ while leaving judges space to ‘weigh mitigating and aggravating factors and arrive at proportionate sentences.’[^32] I am satisfied the Crown’s submission of the range in Smith offers good guidance to the circumstances of this case.
[51] I have considered the defence submission for a 9 to 12-month term of imprisonment but respectfully, this does not account for the many aggravating features of this case, some of which were not present in other cases, including the fact that R.B. knew M.H. was too drunk to consent or even participate in sexual activity. He violated her trust and that of his employer and entered a locked room where M.H. was expected to be safe. M.H. was completely defenceless and utterly vulnerable. In my view, and for reasons already expressed, the moral gravity of R.B.’s crime of straddling an intoxicated M.H. with his penis exposed was a gross violation of her sexual integrity and autonomy. A court’s sentence must denounce and deter this conduct and send a clear message to others that taking advantage of vulnerable victims will have significant consequences.
[52] R.B. entered a hotel room knowing he wasn’t allowed to be in the room and committed an invasive sexual assault which quite possibly could have been more invasive but for the timely entry of C.B. The invasion of M.H.’s privacy and autonomy included multiple entries into a locked room in circumstances where she could not communicate consent or even take steps to keep him out. I cannot sentence R.B. for what could have happened if C.B. had not entered the room, but I must sentence him for what did happen – which was an objectively serious sexual act on a completely vulnerable co-worker. This conduct offends not only the dignity of a vulnerable victim but also society’s values.
[53] Balancing all the relevant sentencing considerations including the circumstances of the offences and R.B., I have determined a fit and proportional sentence in this case which reflects R.B.’s overall culpability for two discrete acts is 20-months imprisonment. This sentence reflects not only an invasive sexual act but also the circumstances of entering a locked room knowing there was a vulnerable victim in the room– a feature which aggravates the sentence for the sexual assault. In my view, this sentence could have easily been higher, but I have taken into account the strong family support, the fact that R.B. agreed to be bound by a 3-year probation order and the circumstances of the pandemic.
[54] The information will be endorsed as follows:
Count 2: Sexual assault: 20 months imprisonment
Count 1: Break and enter and commit an Indictable Offence: 4 months imprisonment to be served on a concurrent basis.
[55] On consent of the parties, there will be a maximum 3-year probation order which will target counselling for sexual boundaries and a no contact and stay away term from M.H. and members of her immediate family.
[56] Also on consent of the parties, there will be the following ancillary orders:
(i) a s.109 order for 10 years,
(ii) a DNA order in respect of both offences,
(iii) a SOIRA order for 20 years given the Crown’s indictable election; and
(iv) an order under s.743.21 prohibiting R.B. from communicating with M.H. during the term of his imprisonment
[57] I will waive the two victim fine surcharges as R.B. is no longer employed which is evidence of undue hardship.
[58] A copy of these reasons should be sent to the institution to assist with classification. The institution should be aware that R.B. suffers from health problems, the details of which are unknown to the court. It will be up to R.B. to share his medical history and vaccination status with the institution so they can take the appropriate steps to ensure his and the health and safety of others.
[59] The court would like to thank counsel for their helpful material and submissions.
Released: November 30, 2021
Signed Mr. Justice F. Javed
[^1]: The sentencing hearing was delayed due to the unavailability of Ms. Manitius who was involved in a lengthy homicide trial. It became further delayed after the Crown gave notice of its intention to seek a custodial sentence which resulted in Ms. Manitius securing an adjournment to finalize her instructions as to whether R.B. would launch a constitutional challenge to s.742.1(f)(iii) of the Criminal Code which limits the availability of a conditional sentence order for a sexual assault offence where the Crown proceeds by indictment. Ultimately, Ms. Manitius advised she received instructions from R.B. not to pursue the challenge and did not argue that the court should consider a conditional sentence order.
[^2]: 2011 ONCA 74 at para. 9
[^3]: See R. v. C.B. 2008 ONCA 486; R. v. A. (K.), [1999] O.J. No. 2640 (C.A.)
[^4]: R. v. Shaw, 2017 ONCA 872, [2017] O.J. No. 6141 (C.A.) at para. 8, 9. Also see R. v. J.S. 2018 ONCA 675 at paras. 74-83
[^5]: R. v. Parranto, 2021 SCC 46; R. v. Priest, 1996 CanLII 1381 (ON CA), [1996] O.J. No. 3369 (C.A.), at para. 26.
[^6]: 2012 SCC 13
[^7]: 2010 SCC 6, 2010 1 S.C.R. 206 at para. 43
[^8]: 2017 ONCA 76, 346 C.C.C. (3d) 504 (C.A.)
[^9]: 2014 ONCA 840, 327 O.A.C. 20
[^10]: 2020 SCC 9, [2019] S.C.J. No. 100
[^11]: R. v. Rawn, 2012 ONCA 487, [2012] O.J. No. 3096 at paras. 29 and 30.
[^12]: 2015 ONSC 4304
[^13]: 2010 ABCA 363 at para. 48
[^14]: R. v. MacDonald, 2013 ONCA 295, at paras. 4-5
[^15]: R. v. Suter 2018 SCC 34, at para. 47
[^16]: Suter, supra at para. 48.
[^17]: Suter, supra at para. 56.
[^18]: [2020] ONCA 279
[^19]: [2020] ONCA 324 at para. 16-17; R. v. Yusuf and Ahmed, 2020 ONSC 5524 (Ont. Sup. Ct.) at para. 92.
[^20]: 2020 ONSC 2810
[^21]: 2020 ONSC 2365
[^22]: Hearns, supra at paras. 22-23
[^23]: [2021] O.J. No. 1373, 2021 ONCJ 154
[^24]: [2017] O.J. No. 590; 2017 ONCA 107
[^25]: [2020] OJ No. 2283; 2020 ONCA 327
[^26]: [2016] OJ No. 4108; 2016 ONCJ 467
[^27]: [2017] OJ No. 751; 2017 ONCA 128; 136 W.C.B. (2d) 719; 35 C.R. (7th) 216; 136 O.R. (3d) 614; 2017 CarswellOnt 1732; 346 C.C.C. 93d) 477
[^28]: [2021] O.J. No. 1717; 2021 ONCJ 194
[^29]: 2015 ONSC 5763
[^30]: 2018 ONSC 583
[^31]: [2003] OJ No. 3494
[^32]: Parranto, supra at para. 17