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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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 any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
DATE: 2024 06 06 COURT FILE No.: 23-48119176 Toronto Region
BETWEEN:
HIS MAJESTY THE KING
— AND —
Lonelle Timothy PRICE
Before: Justice C. Faria
Heard on: June 5 and 6, 2024 Reasons for Judgment released on: June 6, 2024
Counsel: Nathaniel Smith, for the Crown Sabrina Feldman, counsel for the defendant Lonelle Timothy PRICE
Faria J.:
I. Introduction
[1] Mr. Price pled guilty before me yesterday to 3 counts of assault on the first day of a 3-day trial. The matter was adjourned to today to file materials and make submissions.
[2] I reserved my decision to this afternoon These are my reasons for sentence.
II. Facts.
[3] Pursuant to the Agreed Statement of Facts, Exhibit 1, on October 2, 2023, at 11:55 a.m. K.D. was walking on King Street in Toronto when she stopped for a red light. Mr. Price ran up to her and smacked on the right side of her buttocks. He stopped and stared at her. She told him there was an officer just down the street. He fled. She approached the officer and told him what happened.
[4] That same day at 7:45 p.m., E.T. was walking at Sussex Ave. and Major St. when she saw Mr. Price on the opposite corner. He crossed the street, grabbed her on the right side and put his hand down the right side of her shorts. He squeezed her buttocks and vaginal area. She pushed him away and he walked off. She went home, then to Women’s College Hospital.
[5] The next day at 9:57 p.m. F.E. was walking on Brunswick Ave. and Sussex Ave. on her way to the laundromat when Mr. Price suddenly came at her from behind, slapped her buttocks and attempted to grope her vaginal area. He said, “I’m a billionaire, I can do anything I want”. He then fled. She tried to follow him but lost him.
[6] On October 5, Mr. Price was arrested near the Good Shepperd.
III. The Offender
[7] Mr. Price is a 37-year-old single American man with no dependents. He is one of 7 siblings, who grew up in Chicago and whose large and extended family is in the United States. His parents have been married over 30 years, his mother has good job, and his extensive family is supportive.
[8] Mr. Price has no criminal record.
[9] His mother provided a letter to the court, Exhibit 5, describing him as a kindhearted person who worked as a truck driver and a part-time comedian for many years until he became ill. He was prescribed medication but it either did not work, or he was non-compliant. He then fled to Canada believing he could get away from his problems.
[10] When in Toronto, he has no housing, no job, no family, no supports, no doctors, and he was living in his car.
[11] Mr. Price was ill when he was arrested on October 5, 2023, and was found unfit shortly thereafter.
[12] Pursuant to a Centre for Addictions and Mental Health (CAMH) report – Exhibit 4, written by Dr. Maryana Kravtsenyk on May 6, 2024, Mr. Price is diagnosed with Schizophrenia and Cannabis Use Disorder.
[13] Mr. Price was subject to a treatment order that led to his being prescribed 30 mg of Olanzapine to be taken orally daily. This was insufficient to address his condition, so 150 mg of paliperidone as an intramuscular injection was added every 4 weeks to his treatment. He is currently stable while in custody, and compliant with his medication.
[14] Mr. Price anticipates returning to the U.S. and to his family to deal with his mental illness.
IV. Effects on the Victims
[15] F.E. stated she is in Canada to feel safe and felt that way until this happened. She does not feel the same now. In her Victim Impact Statement (VIS), Exhibit 2, she describes her shock as this assault happened in a family-oriented, normally safe, street in her neighbourhood. The result is that she is now looking over her shoulder as she goes to and from her university campus and has trouble just going for a walk.
[16] In her VIS, Exhibit 3, E.T. comprehensively expressed the complexity and breath of impact of having been unexpectedly physically violated while walking home one day. She articulated the urge to minimize what happened to her as not a big deal, having to decide if it was worthy of reporting, and her confusing inability to answer police questions. She had to participate in a police investigation and an invasive medical process at Women’s College Hospital. She described the exacerbating effect on her already present mental health condition, her friends’ extreme responses of fear, her need to change her schedule and routine, and her unexpected nightmares and flashbacks of what was done to her. The image of Mr. Price’s “smirk” as he fled was particularly potent.
[17] This offence had an impact on her freedom as she is now hyper-vigilant when walking on the street which is exhausting, it has affected her mental health, and it disrupted her ability to participate in her academic life.
[18] E.T. described knowing objectively it “could have been worse” but intelligently articulated how severe an actual impact this offence had on her psychologically. On that note, she wrote:
“How did a 10 second interaction turn into all this? Is there something wrong with me?
I don’t think so.
Even though it wasn’t anything huge or crazy, it still crossed a line. Normally strangers don’t go out of their way to touch you unwantedly. Once that line has been crossed, you lose trust in that line, that boundary. Yes, it could have been worse. But it can always “be worse”. “It could have been worse” doesn’t mean that it doesn’t matter or that it’s okay. It could have been much better; it could have not happened at all. I could have walked home with my groceries, made dinner like I planned, gone to bed, and lived my life normally.”
“…It’s important to care about the “small” things so that we can prevent the bigger things from happening. If we choose not to care about something like this, then where do we draw the line between “doesn’t matter” and “matters”? If society says this is okay, then it makes it easier for worse things to happen.”
[19] It may be tempting to minimize the impact this offence had on this victim, as it was quite severe, as applicable to this victim only.
[20] However, I take note that when an assault such as this occurs in public, so brazenly, targeting women, its impact is not only on that woman, but on her friends, her family, and her acquaintances when she shares what happened to her. If the police publicize their investigation in pursuit of the identification of the suspect, the impact is further extended throughout the community.
[21] There is an impact on women in this city, who, as is well-known, are already concerned about walking alone, or in the dark, on public transit, whether in familiar places or not. Violence against women, which these 3 assaults were, is the context within which many women live their lives. They feel that anywhere, anytime, someone can physically violate their bodily integrity. When the violation is sexualized, the personal violation reverberates throughout the community on women, and all those who care about women’s safety.
[22] Therefore, a more careful review of E.T.’s VIS reveals a thoughtful and insightful articulation of what it is that actually happened to her, and is well-documented, to happen to those in our community who are traumatized by violence, particularly sexualized violence.
V. Position of the Parties
[23] Mr. Price has been in custody since his arrest on these matters and has outstanding matters.
[24] The Crown submits the appropriate sentence is 6 months jail pre-sentence custody, apportioned as 3 months on Count 2, and 1.5 months on each of the other two Counts, a 12-month probation order with terms and a DNA Order. Mr. Smith submits that though rehabilitation is relevant, and mental illness diminishes moral culpability, given the nature and context of the assaults, deterrence and denunciation are the guiding principles. The collateral consequences for Mr. Price as a non-resident will be the same regardless of the sentence.
[25] The Defence submits the sentence should be one of 90 days pre-sentence custody, takes no issue with the probation order and its terms but argues the DNA Order is unnecessary. Ms. Feldman emphasizes the consideration of Mr. Price’s mental illness, his diminished moral culpability, and his efforts to treat his illness to submit that rehabilitation is the primary applicable principle. She also relies on the collateral consequences Mr. Price will face as a non-resident.
VI. Sentencing Objectives
[26] The criminal law is a system of values. In criminal proceedings, sentencing is meant to reflect and reinforce the basic values of our society. Accordingly, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful, and safe society by imposing just sanctions.
[27] Every sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[28] The sanction the court imposes should have one or more of the following objectives:
- to denounce unlawful conduct
- to deter the offender and other persons from committing offences
- to separate offenders from society, where necessary
- to assist in rehabilitating offenders
- to provide reparations for harm done to victims or to the community
- to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community.
[29] How much emphasis a court places on each of these objectives will vary according to the nature of the crime and the circumstances of the accused. I must consider aggravating and mitigating factors.
Aggravating Factors
[30] There are a number of aggravating factors to consider.
i. The sexualized nature of the assaults is clear. Two offences were the slapping of a young woman’s buttocks, and the third was much more invasive, as Mr. Price put his hand into E.T.’s shorts and squeezed her buttocks and vaginal area. ii. Mr. Price was persistent, he did it 3 times to 3 different victims during the period of 2 days. iii. Mr. Price targeted young women walking alone. iv. The offences were deliberately conducted for gratification and he fled to ensure his escape from both the victim who told him an officer was close by and the one who tried to follow him. v. The offences had a significant negative impact on the victims. One victim, is still suffering ongoing psychological harm. vi. The offences were brazen and conducted in public. vii. Mr. Price was not supposed to be in Canada in the first place as he had been previously removed.
Mitigating Factors
[31] There are also mitigating factors to consider.
i. Mr. Price has pled guilty. This is a sign of accountability. His guilty plea is an acknowledgment of wrong-doing, and it has saved the victims from having to testify and be cross-examined on what happened to them. ii. The plea was on the first day of trial, and so it saved some resources, but certainly the timing attenuates the value of the plea to the criminal justice system. iii. I accept there were triable issues that Mr. Price has given up with his plea. iv. He also has no criminal record and has been pro-social all his life. v. He has family support, both in the past, currently and in the future as his mother is committed to finding him a psychiatrist, housing, and social security to assist him with his mental illness and stabilize him close to his family. vi. Mr. Price has been diagnosed with Schizophrenia and Cannabis Use Disorder and was experiencing symptoms at the time he committed the offences, which diminishes him blameworthiness. vii. He is now voluntarily on medication while in custody and compliant. viii. He is also voluntarily participating in mental health programing and seeing a social worker.
[32] A factor that was not mentioned, but in my view is relevant, is that Mr. Price is a Black man. Racism, as it has been recognized in Canada [1], does not stop at the border. In fact, the history of racism in the United States is well documented, as is one of its current manifestations, the over-incarceration of Black people, a challenge Canada is familiar with. As a result, I consider that Mr. Price as a Black man likely faces discrimination and, as a mentally ill person, perhaps even more so.
VII. Analysis
[33] I must balance the applicable principles.
[34] Proportionality requires I weigh the gravity of these offences with the moral blameworthiness of the offender. These are very serious offences. Violence against women is a persistent, pervasive, and ongoing problem that continues to defy multi-pronged strategies to eradicate it. On the other hand, Mr. Price was experiencing the effects of his mental illness at the time of the offences and his moral culpability is attenuated. When I consider his moral culpability however, I must consider that his offences were repetitive, targeted at a specific community – young women walking alone. The type of assault was sexualized all three times. Providing some insight into his mindset at the time was that when confronted by one victim, he stated “I’m a billionaire, I can do anything I want.” This reflected he appreciated the resistance from the woman he was victimizing, while asserting his entitlement. His fleeing is another indicator of he appreciated the wrongfulness of his actions.
[35] Regarding his mental illness, it is a positive sign Mr. Price is now voluntarily on medication and understands him mental illness played a role in his offending and his current incarceration. This demonstrates Mr. Price can acknowledge his illness and treat it.
[36] The role of rehabilitation is limited however, given the constraints of incarceration, these positive efforts are fragile. These is little evidence to indicate Mr. Price will continue to treat his illness. When in Chicago, he was aware of his illness, he was prescribed medication, and he did not take it, or his family’s advice. I accept counsel’s submission that Mr. Price’s diagnosis may itself limit his ability to appreciate his actions and their consequences. While not aggravating as a result, this lack of insight into his offences and their impact, plays a role in ascertaining the value of his current rehabilitation efforts.
[37] I must also consider restraint. Mr. Price is a first-time offender, and he has now experienced the harshness that is incarceration at the Toronto South Detention Center. I am mindful that the curtailment of liberty is one of our society’s most severe sanctions.
[38] I also consider the role of parity. Similar offences committed by similar offenders in similar circumstances attract similar sentences. The Supreme Court of Canada has been clear though, that sentencing is an individualized task, and tariffs are guidelines [2]. Each person is to be sentenced according to who they are, what they have done and the circumstances contextualizing the offences.
[39] As Mr. Price committed 3 separate offences, when I sentence him, I must consider the principle of totality on the global sentence.
[40] In addition, I must consider the collateral consequences of a sentence on Mr. Price. He is non-citizen who was not entitled to be in Canada at the time of the offences. He will be deported. Collateral consequences do not drive a sentence, nor should they distort a sentence to accommodate an immigration consequence, but they are a relevant factor in the creation of a fit sentence. [3]
[41] In this case, the Crown submits Mr. Price is not entitled to stay in Canada regardless of the sentence. He is not a person who has made his life here, wishes to stay here, apply for citizenship here, or appeal a decision of the Immigration authorities. I am informed by Defence that there may be collateral consequences in the United States of a criminal record from Canada. Counsel was candid that she is not submitting the applicability of a particular consequence to Mr. Price in his home state of Illinois, but rather, that I should be aware there will be collateral consequences for Mr. Price after he is removed from Canada.
[42] In this case, the weight of immigration collateral consequences is minimal. Mr. Price was not permitted to be in Canada. After this sentence, he will continue not to be permitted in Canada. He will be deported after the completion of all his matters. He will be returning to a supportive family in his home country.
[43] I now turn to what I consider to be the primary principles in this case, denunciation and deterrence.
[44] Assault is against society’s basic values. Assaulting women is not tolerated. Assaulting young women in public as they go about their lives is to be denounced, and the sanction for this type of assault must be significant to reflect society’s position. Granted because Mr. Price will be deported, he will not be in our community, and he was affected by mental illness at the time, but nonetheless, there is a role for the sanction to communicate to Mr. Price, specifically, that what he did, must not be done again. The well-being of young women living their lives walking the streets of Chicago are also entitled to freedom from Mr. Price’s gratuitous sexualized violence. Specific deterrence is applicable. General deterrence is also applicable. The sanction must meaningfully communicate to residents of this city, that randomly assaulting people, particularly young women walking in public, that they will be dealt with seriously by the courts.
[45] The parties also differ on the issue of whether a DNA is appropriate in the circumstances. Assault is a secondary designated offence.
[46] Upon the application of the Crown, the court is to determine whether it is in the best interests of the administration of justice to issue the order. I must consider a criminal record if any, including previous not criminally responsible findings, the nature of the offence, the circumstances surrounding the commission of the offense, and the impact of the order on the privacy and security of the person. [4]
[47] Mr. Price has no criminal record or findings of not criminally responsible. The nature of the offence is one of physical violence that involved contact of sexualized body parts, particularly on count 2 where Mr. Price inserted his hand into E.T.’s shorts. These circumstances are invasive. As an offender, Mr. Price’s privacy interests are lessened. His security of person is minimally interfered with as the DNA sample is taken in this building, in hygienic circumstances, by a trained professional, consisting of a pin prick to the thumb that takes only seconds.
[48] The Ontario Court of Appeal stated in Hendry that it will be in the best interest of the administration of justice for the order to be made in the vast majority of cases. [5] An exception may be where the offence is trivial or there is no prior record. Although Mr. Price has no prior record, these offences are not trivial.
[49] The value of DNA in the databank is significant. It deters potential repeat offenders, promotes the safety of the community, detects when a serial offender is at work, assists in solving cold crimes, streamlines investigations and most importantly assists the innocent in early exclusion from investigative suspicion, as well as exonerating those who are wrongly convicted.
[50] On the totality of the circumstances, a DNA Order is warranted
VIII. Sentence
[51] After considering the applicable principles and the circumstances of Mr. Price, I conclude that a global sentence of 6 months jail plus 1 day is the fit sentence. It will be apportioned to reflect the value of 4.5 months on Count 2, and 1.5 months on Counts 1 and 3 concurrent to each other but consecutive to Count 2. The pre-sentence custody will be enhanced by 1.5, and this sentence will thus use 4 months of his current pre-sentence custody.
[52] There will be a 12-month probation order with statutory terms, and the terms that Mr. Price not contact the three complainants and not be within 100 metres of each of them live, work, go to school are known by him to be. He will provide a sample of his DNA. I will waive the Victim Fine Surcharge as he has been in custody and is unable to pay.
Released: June 6, 2024 Signed: Justice Cidalia C.G. Faria
[1] R v. Morris, 2021 ONCA 680 [2] R. v. Lacasse, 2015 SCC 64 [3] R. v. Pham, 2013 SCC 15 [4] R. v. Hendry, [2001] O.J. No. 5084 [5] Hendry, supra. at para. 25.