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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 27 Court File No.: 21-15002651 Toronto Region
BETWEEN:
HIS MAJESTY THE KING
— AND —
TYVON WHYTE
Before: Justice H. Pringle Heard on: March 27 and May 10, 2024 Reasons for Judgment released on: June 27, 2024
Counsel: Anna Leggett, counsel for the Crown Samiyyah Ganga, counsel for the defendant
PRINGLE J.:
Overview of Case
[1] After a contested trial, Mr. Whyte was found guilty of one count of sexual assault. These reasons explain the sentence to be imposed upon him for this crime.
[2] In sum only, Mr. Whyte and the complainant met in an employment context. She was an aspiring model. He had a clothing brand and thousands of social media followers. They agreed that she would model his brand not for monetary payment, but for internet exposure.
[3] The complainant consumed alcohol during the photo shoot. She was not incapacitated, but was not of clear mind either. Mr. Whyte supplied the alcohol, and after some innocuous photos, began to suggest more sexual poses and clothing including a “bikini-style” shoot.
[4] She was clothed, albeit not much at times, during the entire shoot. He took and retained many photos of the complainant in this state. The complainant alleged Mr. Whyte watched her changing in the washroom. I was unsure whether or not this happened, and thus could not find this as fact.
[5] At the end of the shoot, with the complainant having consumed alcohol and cannabis supplied by the defendant, she lost her phone. She believed Mr. Whyte had hidden it. I could not be sure whether he hid it or not, and did not find it as a fact.
[6] However the phone came to be lost, the complainant began walking around Mr. Whyte’s condo looking for it. Mr. Whyte followed her into the bedroom. There, I found he put a hand on her neck, non-forcefully, and said “I know you are a freak”. He tried to move her towards the bed, directed her to sit down, and moved on top of her.
[7] I found he was not physically forceful, beyond the parameters of physically directing her to the bed, and that he did not straddle her. But she was intoxicated and not reacting in the moment. She wanted none of this, yet Mr. Whyte kept trying to make out with her. When the victim would move her face away, he would kiss her neck and lick her face.
[8] Mr. Whyte persisted despite her physical disengagement and even when she said:
I did not come here for this, I don’t want this.
[9] The complainant said this initial sexual assault went on for between five to ten minutes. It ended when she stood up and said, again:
Stop, I do not want to hook up with you, that was not why I came here.
[10] She went to the living room, with the defendant following her and complaining she was “killing the vibe”. She began packing up her clothes when, again, the DF made non-consensual physical advances. He pulled her on top of him, holding her lower back area and kissing her again for about two minutes.
[11] Again, the complainant had not consented to any of this sexual activity and had made this repeatedly clear.
[12] The complainant got up once more, saying she had to go. Mr. Whyte found her phone in the entrance area and gave it to her. But, she testified, Mr. Whyte would not let her leave until he saw and knew the address she was going to.
[13] I was unsure whether he did this for the purpose of controlling her movements. It was certainly possible. But it was also possible he needed the address for an Uber order, or was ensuring she was not walking out, intoxicated at night, with no specific destination.
Positions of the Parties
[14] The Crown sought 12 months jail less presentence custody, 2 years probation, a s. 110 weapons prohibition order for 10 years, a DNA order, a SOIRA order, and a s. 743.21 non-communication order.
[15] The defence sought a conditional sentence of between 4-6 months or, in the alternative, 60 days custody (not intermittent). The probation and ancillary orders went unopposed.
Statutory Sentencing Objectives
[16] The Criminal Code instructs sentencing judges to achieve, in every sentence imposed, a fundamental purpose. That purpose is to contribute to respect for the law and maintenance of a just, peaceful, safe society.
[17] This fundamental purpose will be achieved when sentences are fit, just, and properly reflect one or more of the following objectives:
- denunciation of unlawful conduct and the harm it does to victims / community;
- deterring the offender and others from committing offences, commonly referred to as general and specific deterrence;
- separation of offenders from society where necessary;
- rehabilitation of offenders;
- promotion of a sense of responsibility in the offender and acknowledgment of harm to victims / community, and;
- reparation where appropriate to victims / community.
[18] In order to be fair and just, a sentence does not have to achieve all these objectives. The paramount objective a sentence must strive toward depends on the circumstances of that case. In this case, the paramount objectives that must be achieved in Mr. Whyte’s sentence are denunciation and deterrence.
[19] The sentence imposed upon Mr. Whyte should be similar to sentences given to other similarly-situated offenders who have committed a similar offence. His sentence must be proportionate to the gravity of his offence and his degree of responsibility in committing it.
[20] Mr. Whyte’s sentence must reflect the harm he caused, to the complainant and to society, by committing sexual assault.
Paramount Sentencing Objectives
[21] Unquestionably, the paramount sentencing objectives to be achieved in Mr. Whyte’s case must be denunciation and deterrence. Rehabilitation and restraint must receive less emphasis, even though Mr. Whyte is a first offender. As the Court of Appeal said in R. v. T.(K.) (2008), 2008 ONCA 91, 89 O.R. (3d) 99 at paras. 41-42:
Generally speaking, sentences imposed on young first offenders will stress individual deterrence, where necessary, and rehabilitation. General deterrence will play little, if any, role in fashioning the appropriate sentence in this category of offender in most cases: R. v. Ijam (2007), 2007 ONCA 597, 87 O.R. (3d) 81, [2007] O.J. No. 3395 (C.A.), at pp. 93-94 O.R. Serious crimes of violence, particularly sexual assaults, do provide an exception to the general rule described above. While all of the principles of sentences remain important, including rehabilitation, for serious crimes involving significant personal violence, the objectives of denunciation and general deterrence gain prominence: R. v. Ijam, supra; R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, [2000] S.C.J. No. 11, 141 C.C.C. (3d) 368, at para. 26.
The emphasis to be placed on denunciation and to a lesser extent general deterrence, grows with the seriousness of the particular circumstances surrounding the sexual assault for which an accused, even a young accused, is being sentenced.
[22] Mr. Whyte persisted in sexually assaulting the complainant, despite her clearly articulated lack of consent. This, too, increases the need to ensure his sentence achieves deterrence and denunciation. As per the Court of Appeal in R. v. Garrett, 2014 ONCA 734 at para. 19:
The complainant repeatedly told Mr. Garrett to stop. He did not. This, in itself, constitutes demeaning behaviour and contemptuous disregard for the personal integrity of the complainant and engages the predominant sentencing principles of denunciation and deterrence.
[23] Specific deterrence, as well as general deterrence, is important to achieve in Mr. Whyte’s case. It is important in every sexual assault sentencing, given the long-lasting harm this type of offence causes victims. But it gained added import in this case, because Mr. Whyte was on bail for a separate sexual assault when he committed this sexual assault.
[24] Mr. Whyte is entitled to the presumption of innocence on that unrelated sexual assault. I have, as explained subsequently, disabused myself of the facts alleged in that synopsis. But the mere fact that he committed a sexual assault while on bail for sexual assault is worrisome. It underscored the need to ensure Mr. Whyte’s sentence stops him from sexually offending again.
Range of Sentence
[25] I have found the following cases helpful, in assessing range of sentence in Mr. Whyte’s case:
- R. v. Baran, [2019] O.J. No. 5470, CSO rejected and 90 days jail imposed on a first offender after a contested trial in the OCJ. Facts somewhat unclear, but were “bizarre” and involved a forced kiss on an injured, immobile hospital patient receiving treatment.
- R. v. Einollahi, 2021 ONSC 6048, summary conviction appeal decision, 60 day CSO overturned, range was 6 to 9 months jail (para. 75) but 2 months jail imposed in light of time served on the CSO. First offender, Uber driver who took advantage of an intoxicated passenger, found guilty after contested trial, forcible kissing and sexual touching.
- R. v. Arman, unreported decision of Green, J., June 27, 2022, after contested trial, first offender found guilty of sexually assaulting a vulnerable, intoxicated, teenaged victim during a purported job interview. The offender had supplied the alcohol, and committed a more physically invasive sexual assault than in the case at bar. CSO was rejected as being inconsistent with the objectives of sentencing. Range of 8 months to 1 year, with 8 months imposed.
- R. v. Ukumu, 2020 ONSC 3645 (upheld 2021 ONCA 91), after trial, 12 months imposed. Offender purported to be an Uber driver (but was not); pushed victim into backseat of car and sexually assaulted her, including undoing his pants while on top of her. First offender whose victim was intoxicated and who suffered physical as well as emotional injury.
- R. v. Racco, 2013 ONSC 1517, summary conviction appeal decision from Durno, J. where 2 months custody overturned and 6 month CSO imposed; at para. 115 identifies range as CSOs to short reformatory, although I see that range as trending upwards in current jurisprudence;
- R. v. Mustafa, 2021 ONSC 3088 summary conviction appeal decision from Davies, J., where appellant sexually victimized his nurse including forcing kissing and touching of her body, suspended sentence and probation upheld on appeal as not being demonstrably unfit.
[26] Some of these cases were helpful because of similarities between their facts and Mr. Whyte’s case. Others were helpful to understand factual distinctions that served to distinguish, or for their discussion on range in both similar and dissimilar circumstances.
[27] As stated above, denunciation and deterrence must be the paramount sentencing objectives in this case. Keeping those objectives at the forefront of my analysis, and recent appellate direction on sentencing sexual offenders, I found the applicable range of sentence to be between 3 and 12 months jail.
Aggravating and Mitigating Factors
[28] Aggravating and mitigating factors assist in assessing where, on that range, Mr. Whyte’s sentence will fall.
[29] The following are aggravating factors in this case:
The significant harm done to the victim, both in the moment and the ongoing negative effects she continues to experience. While the degree of physical interference was less than some other cases, the emotional harm occasioned her was palpable. She felt violated and powerless at the time, and ashamed, traumatized, and isolated since that day. She has doubted and blamed herself. In her own words:
Now, being almost 3 years later, it has been a long battle with myself. I blamed myself a lot for that day. I began growing more and more insecure, I lost interest in many of my passions, I distanced myself from brand deals and networking, I felt like a liability and scared to meet new people. I lost trust in myself and the vision I foresaw for my future. The impact on my mental health was substantial, I did not choose to model anymore, or carry my studies after finishing my schooling. I was 22, I used to see the good in everyone, and I miss the innocence and optimistic way of living.
The vulnerable state of the victim. She was intoxicated from alcohol and cannabis supplied by Mr. Whyte. She was in his home and effectively under his control when he initiated the offence;
The breach of trust element to this offence. Mr. Whyte was not, strictly speaking, an employer. The two had a mutually beneficial arrangement. Her modeling would help sell his brand, while she would get modeling experience and exposure. But the absence of a paycheque was irrelevant: in this arrangement, Mr. Whyte held the power. He manipulated that power and her trust to sexually assault her;
Mr. Whyte coerced the victim into taking sexually suggestive photographs, after supplying her with alcohol. I accepted that while she complied with these directions, the victim was uncomfortable with the “bikini-style” shoot in particular. Those photographs were still saved in his phone when he was arrested. The victim must live with the knowledge that those photographs exist, are in his possession, and could be in the possession of others, and;
Mr. Whyte was on an undertaking at the time he committed this offence.
[30] The following are mitigating factors in this case:
- The lack of any prior criminal history. While a 2018 absolute discharge for common assault was brought to my attention, it should have been expunged by the time he committed this offence in 2021: Criminal Records Act, s. 6.1(a). Accordingly, I gave that 2018 entry no weight, and effectively approached Mr. Whyte as a first offender.
- Mr. Whyte was relatively youthful, being 25 years old at the time he committed this offence;
- The community support he is lucky to enjoy, including his mother, his sister, and his girlfriend. They are all aware he has been found guilty of sexual assault, and assert their continued support of him in compelling letters. Mr. Whyte assists his retired mother financially, and helps and supports his sister with care of her children as well. His girlfriend is also his surety, and attested to his prosocial behaviour;
- His work history since high school, including self-starting a professional music business and an online shoe store;
- The two days of presentence custody, which I have utilized as mitigating instead of reducing sentence quantum;
- The time Mr. Whyte spent on release without incident. He has been on a residential surety bail, with his girlfriend as surety, since May 12, 2021. There have been, I was told, no allegations of failing to comply with this bail. Mr. Whyte, while awaiting trial, has been prosocial and stable in the community.
[31] The following factors were neutral or were unproven as aggravating beyond reasonable doubt:
- Mr. Whyte exercised his constitutional right to have a trial. A guilty plea can be mitigating, but electing to have a trial can never be employed as aggravating. The absence of a guilty plea is the absence of an aggravating factor only;
- Pre-planning the offence. I was unsure whether Mr. Whyte planned this offence, or opportunistically decided during the shoot to take advantage of the victim’s vulnerability and naivete. I tend towards the former conclusion, but could not be satisfied of that beyond reasonable doubt;
- The details of the allegations Mr. Whyte was facing, relating to the undertaking he was on, at the time he committed this sexual assault [1]. I was provided a synopsis of this other allegation, and invited to use its details in assessing character and background: see R. v. Edwards, (2001), 54 O.R. (3d) 737.
- However, I agree with the defence that I cannot use this information in that manner: see R. v. Angelillo, 2006 SCC 55 at para. 32; R. v. Larche, 2006 SCC 56. The defence does not consent to these facts being adduced, the allegations remain unproven beyond reasonable doubt, and Mr. Whyte is presumed innocent.
- Mr. Whyte’s testimony that the complainant fabricated the allegations out of revenge. The Crown submitted this testimony evoked an aggravating factor in the form of a rape myth, relying on the reasons of Marchand J.A. in R. v. Smith, 2022 BCCA 405. However, Hunter and Stromberg-Stein J.J.A., while concurring in the overall result, found it was an error in law to consider the defendant’s “revenge theory” style testimony as an aggravating factor on sentence. I agree with their analysis at paras. 83-84.
Sentence to be Imposed
[32] Keeping in mind that Mr. Whyte’s sentence must firmly and clearly achieve denunciation and deterrence, and upon weighing the aggravating and mitigating factors in this case, I concluded that the appropriate sentence for Mr. Whyte’s offence would be six months jail.
[33] This does not end the analysis. I must still assess whether the s. 742.1 statutory test for a conditional sentence has been met. The prerequisites are:
- the sentence is under two years and not punishable by a minimum term of imprisonment;
- the court must be satisfied that service of the sentence in the community would not endanger the safety of the community;
- the court must be satisfied a conditional sentence would be consistent with the fundamental purpose and principles and objectives of sentencing.
[34] The Crown proceeded summarily, meaning a conditional sentence was statutorily available. I was satisfied that permitting Mr. Whyte to serve a sentence in the community would not endanger community safety.
[35] I did give anxious consideration to Mr. Whyte’s decision to commit this sexual assault while on an undertaking for a sexual assault charge. However, weighing that concern along with his lack of prior criminal convictions, stability in the community for a prolonged period of time, deterrent effect of negative publicity, and prosocial behaviour while on the residential surety bail, I was satisfied this aspect of the test was met.
[36] The more difficult question was whether a conditional sentence would be, in this case, consistent with the fundamental purpose of sentencing and specifically with the paramount objectives of denunciation and deterrence.
[37] Conditional sentences can serve denunciation and deterrence, as per R. v. Proulx, 2000 SCC 5 at paras. 102 and 107. But that does not mean they always will. At para. 43 of R. v. T.K., supra, the Court of Appeal for Ontario cautioned, in the context of sentencing sexual offenders:
The aggravating circumstances surrounding this offence were such that the fundamental purpose of sentencing could only be properly served by a disposition that placed a heavy emphasis on general deterrence and particularly denunciation. I recognize that a conditional sentence can in some circumstances adequately address these objectives, particularly where the conditions imposed have a significant punitive element: Proulx, supra, at para. 41; R. v. Ijam, supra, at p. 94 O.R. However, there will be circumstances in which the demands of denunciation and/or general deterrence are so pressing that incarceration is the only suitable disposition: Proulx, supra, at para. 106; Wells, supra, at para. 34.; R. v. Killam, [1999] O.J. No. 4289, 29 C.R. (5th) 147 (C.A.) at p. 151 C.R.
[38] This is an extraordinarily close call. There are factors that operate meaningfully to Mr. Whyte’s benefit, but there are also serious, significant aggravating factors. The breach of trust aspect, in particular, is not easily reconcilable with the second aspect of the statutory test.
[39] However, after much consideration, I concluded that a conditional sentence could be crafted that achieves, properly, denunciation and deterrence. To sufficiently meet those objectives, the conditions of Mr. Whyte’s CSO have been designed to punish, as opposed to rehabilitate.
[40] Punitive aspects will include doubling the sentence from six months jail to one year served in the community, imposing conditions that severely restrict Mr. Whyte’s liberty interests, and mandating community service.
[41] Mr. Whyte must understand that any breach of this order, no matter how minor, can result in having to serve the rest of this sentence in jail. Following completion of his community sentence order, Mr. Whyte must serve two years of probation. He must comply with SOIRA for a period of 10 years. He must provide a sample of his DNA, and be prohibited from possessing weapons, pursuant to s. 110, for 10 years.
[42] The conditions of the conditional sentence order are:
- Keep the peace and be of good behaviour;
- appear before the court when required to do so by the court;
- report to a supervisor
- within two working days after the making of the conditional sentence order, and
- thereafter, when required by the supervisor and in the manner directed by the supervisor;
- remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the supervisor; and
- notify the court or the supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation;
- not to have contact whatsoever, directly or indirectly, with [ vetted ];
- not to be within 100 metres of anywhere [ vetted ] lives, works, goes to school, worships, or is known to you to be;
- take counseling as directed by your CSO supervisor for sexual offending and sexual boundaries;
- sign releases as directed by your CSO supervisor, to permit them to monitor attendance and progress in counseling;
- do not post any information, recordings, or photos of or about [ vetted ] on the internet, including but not confined to social media apps and websites;
- do not advertise for or employ female/female identifying persons for purpose of your business;
- do not possess any weapons as defined by the Criminal Code;
- For the first six months of this order, you are to remain within your residence at all times, except:
- Medical emergencies for yourself or a direct family member;
- Pre-scheduled medical, dental, counseling, legal appointments and attendances at court;
- Pre-scheduled meetings with your CSO supervisor;
- While attending directly to and from employment, and upon providing a copy of your schedule in advance to your CSO supervisor.
- If working in a self-employed context that requires your attendance outside your residence, your conditional sentence supervisor must approve each occasion in advance, you must keep a copy of their signed permission on your person at all times, and surrender that signed permission to a peace officer upon request;
- With the advance written permission of your CSO supervisor for any other purpose they deem appropriate. You must keep a copy of their signed permission on your person at all times, and surrender that signed permission to a peace officer upon request;
- On Saturdays between 12 pm and 4 pm, for the purpose of obtaining the necessaries of life for yourself and your family;
- On Sundays, while attending church, with the location to be provided in writing to your conditional sentence supervisor, and while traveling directly to and from that church.
- For the next six months of this order, you are to obey a curfew of 9:00 pm to 6:00 am, except for:
- Medical emergencies for yourself or your direct family members;
- While attending directly to and from employment and while at employment, and upon providing a copy of your schedule in advance to your CSO supervisor;
- If working in a self-employed context that requires your attendance outside your residence, your conditional sentence supervisor must approve each occasion in advance, you must keep a copy of their signed permission on your person at all times, and surrender that signed permission to a peace officer upon request;
- With the advance written permission of your CSO supervisor for any other purpose they deem appropriate. You must keep a copy of their signed permission on your person at all times, and surrender that signed permission to a peace officer upon request;
- Finally, you are to complete 50 hours of community service at a rate and schedule approved of by your supervisor. Your community service must be completed no later than 11 months from today.
[43] I am not crafting an exception for community service during the house arrest period. I expect that the community service hours will be completed in the second half of this order.
[44] Upon completing the conditional sentence, Mr. Whyte must obey a probation order for two years. The conditions of that order are intended to protect the victim against contact and to rehabilitate Mr. Whyte.
Released: June 27, 2024 Signed: Justice H. Pringle
Footnotes:
[1] To be clear, I have used the fact that he was on an undertaking as an aggravating factor. I have used the fact that he committed sexual assault while on an undertaking for sexual assault in assessing the operative objectives of sentencing. But I have not used the unproven details of that other allegation in any way.