SUPERIOR COURT OF JUSTICE

Court File No.: CR-11-00169-00

B E T W E E N:

HER MAJESTY THE QUEEN

• and –

GILLES OUELLET

INFORMATION CONTAINED HEREIN IS PROHIBITED

FROM PUBLICATION PURSUANT TO SECTION 486.4 OF

THE CRIMINAL CODE OF CANADA

REASONS FOR SENTENCE

BEFORE THE HONOURABLE JUSTICE M. MCKELVEY

On September 10, 2014 at NEWMARKET, Ontario

APPEARANCES:

F. Temple Counsel for the Crown

B. Lawson Counsel for Gilles Ouellet

WEDNESDAY, SEPTEMBER 10, 2014

REASONS FOR SENTENCE

McKelvey J. (Orally)

Overview

[1] The defendant, Gilles Ouellet, was convicted by a jury on one count of sexual assault arising out of an incident which occurred in the early morning hours on March 18, 2010, at the Town of Collingwood. He comes before the court today for sentencing.

Circumstances of the Offender

[2] In the pre-sentence report it is noted that Mr. Ouellet is a 53 year old repeat offender. He has been convicted of six offences between 1989 to 2005. The offences range from possession of a narcotic to break and enter, and driving while impaired. There have been no convictions since 2005. The longest period of incarceration appears to be for a conviction in 1998, where he was sentenced to 30 days.

[3] Mr. Ouellet grew up in Hearst, Ontario. As a youth he was very active in athletics and left home at age 19 to play Junior A hockey. He has a grade 12 education. He married in 1990 and this relationship lasted for six to eight years. He has one daughter, who is currently aged 22.

[4] In 1986 Mr. Ouellet settled in Collingwood, initially to play hockey. He has been employed with the Town of Collingwood since 2004. His duties include general maintenance, and during the winter he is a sidewalk machine operator who is responsible for clearing snow on the city's sidewalks.

[5] There is some evidence that Mr. Ouellet may have a problem with alcohol. In the pre-sentence report it is indicated that he first started drinking at age 17, and that he drinks six to eight beer during the week, after work. According to the pre-sentence report, there is a report that Mr. Ouellet has been attending Alcoholics' Anonymous meetings. His attendance at AA meetings was also referred to in a report filed by the defence from a social worker, Alex Isbister, dated April 10, 2014.

[6] A series of letters were filed by the defence which focus on Mr. Ouellet's character and his contribution to the Collingwood community. Many of these letters comment on Mr. Ouellet's willingness to go out of his way to help others. For example, Mr. Ronald Emo, a former mayor of Collingwood, commented that when his late wife was dying of cancer three years ago, Mr. Ouellet was very supportive and helpful to the family. The character references for Mr. Ouellet come from both men and woman in the community. Cheryl Wilson comments in her letter to the court that, where a mutual friend had basement flooding, Mr. Ouellet spent a number of hours on a volunteer basis helping her dig up the pipes so that they could be repaired.

[7] Rachelle Gauvreau, in a letter to the court, indicates that she was in a bad snowmobile accident four years ago. Mr. Ouellet would come to check on her every day, bring her homemade meals and run errands for her, or just visit.

[8] A number of Mr. Ouellet's character references express surprise about the allegation of sexual assault. For example, Tim Dickey, stated, "As I have not talked to anyone about what has happened I would say that his situation does not seem to be the Gilles that I know."

[9] Overall I am left with the clear impression that since moving to Collingwood Mr. Ouellet has made a positive contribution to the community. His problems with the law prior to the current incident appear to predate his move to Collingwood. Nevertheless, Mr. Ouellet does not come before the court as a first time offender.

[10] There is a report that Mr. Ouellet's mother is gravely ill in Hearst, Ontario. Mr. Ouellet has also had serious health issues. He suffered a heart attack recently and is currently under the medical supervision of the staff at Southlake Hospital.

Impact on the Victim and the Community

[11] An impact statement was filed by Ms. J.V.. She has described the impact of the sexual assault on her. This has led to the breakdown of the relationship with her common-law spouse. She also relocated her family from Collingwood because she did not feel safe there. She has described the follow-up medical tests and treatment that she has been required to take as a result of the assault. She describes being overcome with bouts of depression, which has prevented her from working and which has affected her home life. She has also been to therapy and suffers from nightmares. Clearly, the impact of this assault on Ms. J.V. has been serious and likely will persist in the future.

Circumstances of the Offence

[12] Although there was a conviction on the charge of sexual assault, there is no agreement by the parties on the relevant facts for purposes of sentencing. At trial the complainant testified that she went to a local bar, Molly Blooms, on the evening of March 17, 2010, to celebrate Saint Patrick's Day. She arrived at the pub with a friend around 9:00 p.m. At around 11:30 p.m. her friend left and Ms. J.V. remained at the bar. In her evidence in-chief she testified that Mr. Ouellet followed her around the bar, which made her feel a little uncomfortable. She consumed three Strongbow ciders while she was at the bar.

[13] Later in the evening, Mr. Ouellet asked to buy Ms. J.V. a drink. Ms. J.V. testified that she agreed, stating that she was trying to be polite as this seemed easier than refusing. Mr. Ouellet then went to the bar, purchased two beers and brought one of them over to her. Ms. J.V. testified that she does not recall anything further from her attendance at the bar after consuming the beer. While she acknowledged that she would be somewhat impaired and would not want to drive after consuming that amount of alcohol, she stated that she would not have been incapacitated.

[14] Having consumed the beer, however, Ms. J.V.'s next recollection is being at Mr. Ouellet's home. She felt light-headed and very "detached", as if she was under the influence of something other than alcohol. She did not know why she was in Mr. Ouellet's home with him and felt disoriented. Her movements felt heavy, as if they were not under her power and control.

[15] Ms. J.V. went out onto the balcony of Mr. Ouellet's home. He brought her a glass of wine. She took some sips of the wine, but it tasted "off" and she poured the wine over the railing. She then came back into the interior of his home. Mr. Ouellet then guided her towards the bedroom. By this time she was feeling faint and dizzy and Mr. Ouellet was supporting her under her arms.

[16] Ms. J.V. recalled sitting on the bed, and her next recollection is being covered with vomit on her body. Her t-shirt was totally soaked. She did not know how much time had passed and felt she had some blackout moments. Mr. Ouellet came into the bedroom as she was vomiting and she asked him to leave her alone. She recalled Mr. Ouellet trying to move her from the bed and directing her to the shower. She was standing in the shower when Mr. Ouellet removed her t-shirt.

[17] Her next recollection was being back in Mr. Ouellet's bedroom, where she noted that there was fresh linen on the bed. Ms. J.V. testified that Mr. Ouellet laid her down on the short end of the bed. Her next recollection is Mr. Ouellet being on top of her and having sexual intercourse. She told him no and to stop, and stated that she tried to scratch and bite him, but was not sure that she had the strength to do this.

[18] After the sexual activity was over, Ms. J.V. recalled that Mr. Ouellet was beside her in the bed. In the morning she recalled getting out of bed. She was fearful of waking Mr. Ouellet up. Her next recollection is trying to find her clothing. She dressed herself and walked home.

Position of the Crown and the Defence

[19] The defence maintains that under the Criminal Code a sexual assault occurs when there is any sexual touching without the complainant's consent. The defence maintains that the defendant should be sentenced on the basis that the sexual assault, in this case, consisted of a sexual touching, as it is not clear from the verdict that the jury accepted that a more serious sexual assault, involving sexual intercourse, occurred. Further, the defence maintains that it is not clear from the jury's verdict that a drug was administered by the defendant to facilitate the sexual assault, and that this fact should not be relied upon for purposes of sentencing. If the lower level of sexual touching is assumed for purposes of sentencing, the defendant suggests that an intermittent sentence of 90 days would be appropriate. If sexual intercourse is assumed the defence maintains that the sentence would be in the range of 12 to 18 months. If one assumes that a drug was used to facilitate the sexual assault, the defence suggests that a sentence of two to three years would be appropriate.

[20] The Crown maintains that a sentence of four to five years is appropriate if one assumes that no drug was used to facilitate the assault. It argues that a sexual assault involving intercourse was the basis for the jury's verdict. The Crown further submits that the sentence in this case should be based on the assumption that a drug was used to facilitate the sexual assault, and that a sentence of five to six years is the appropriate range for a sentence in this case.

Relevant Provisions of the Criminal Code with Respect to the Factual Assumptions for Sentencing

[21] In considering the facts to be relied upon for the purposes of sentencing I have taken into account the following principles:

1. The sentencing judge is required to accept

as proven all facts, express or implied,

that are essential to the jury's verdict of

guilty.

2. When the factual implications of the jury's

verdict are ambiguous, the sentencing judge

should not attempt to follow the logical

process of the jury, but should come to his

or her own independent determination of the

relevant facts. The onus is on the Crown to

prove beyond a reasonable doubt the

existence of any aggravating fact, and in so

doing may rely on the evidence adduced at

trial. (See Section 724(2)(b) and 724(3)(e)

of the Criminal Code and R. v. Ferguson,

2008 SCC 6, [2008] S.C.J. No.6).

[22] In the Ferguson decision, the Supreme Court emphasized that the sentencing judge is bound by the express and implied factual implications of the jury's verdict, and must not accept as a fact any evidence consistent only with a verdict rejected by the jury. Second, when the factual implications of the jury's verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury, but should come to his own independent determination of the relevant facts. To rely upon an aggravating fact or a previous conviction, the sentencing judge must be convinced of the existence of that fact beyond a reasonable doubt.

[23] In the decision of the Ontario Court of Appeal in R. v. Roncaioli, 2011 ONCA 378, the court reiterated the above noted principles, and stated that "[w]here the basis of the jury's verdict is unclear, the correct principle is that the sentencing judge should make his or her own independent determination of the facts, consistent with the jury's verdict.

[24] It is clear that both the assumption of sexual intercourse having occurred and the use of a drug to facilitate the sexual assault would properly be considered aggravating factors. Thus, prior to determining a sentence I must satisfy myself whether it is appropriate to make these assumptions.

Is it Appropriate to Assume that Sexual Intercourse Occurred

[25] I have concluded that, for purposes of considering the appropriate sentence, I should take into account that sexual intercourse occurred as part of the sexual assault. The position of the defence at trial was that Mr. Ouellet did not have sex with Ms. J.V. on the night in question. In the alternative, they maintained that if Mr. Ouellet had sex with Ms. J.V. on the night in question it was consensual. There was no evidence before the court during the trial of any sexual activity other than as described by the complainant, who testified that sexual intercourse occurred. Thus, there was no evidence of any lesser form of sexual touching. In these circumstances I conclude that the acts, as described by the complainant, relating to the nature of the sexual activity are all facts, either express or implied, that were essential to the jury's verdict of guilty and are therefore binding on me for the purpose of sentencing.

Should the Allegation that a Drug was Used to Facilitate the Sexual Assault Be Considered as an Aggravating Factor for the Purpose of Sentence

[26] The Crown's position is that the jury's verdict reflects an acceptance by the jury of the complainant's evidence as to how the sexual assault took place. The Crown submits that as the means by which the assault took place and the assault itself are so closely intertwined, the court is required to accept that the use of a drug to facilitate the assault was an express or implied fact that was essential to the jury's verdict of guilty.

[27] I do not accept, however, that the use of a drug to facilitate the sexual assault can properly be implied as an essential part of the jury's verdict of guilty. There was, during the trial, a live issue about whether any drug was administered by the defendant. The Crown's position clearly was that the administration of a drug in the beer consumed by Ms. J.V. at Molly Blooms constituted the means by which Mr. Ouellet was able to escort Ms. J.V. back to his home, and to facilitate the sexual assault which occurred. The defence position, however, was that Ms. J.V.'s condition was due to her consumption of alcohol that evening. The administration of a drug to facilitate the sexual assault was not an essential element of the offence, and given that there was evidence adduced at trial which, to some extent, supported both the Crown and defence positions (as described below) I am not able to conclude that the jury's verdict included an express or implied conclusion that a drug was used to facilitate the sexual assault. In light of my conclusion that a drug to facilitate the sexual assault cannot be implied from the jury's verdict itself, I must then make my own independent determination of the facts. Clearly, a finding that a drug was used to facilitate the sexual assault would be consistent with the jury's verdict. I must turn my mind, however, as to whether I am satisfied that this fact has been proved beyond a reasonable doubt based on the evidence at trial.

[28] While it may well be that a drug was used to facilitate the sexual assault, I am not satisfied of this conclusion beyond a reasonable doubt for the following reasons:

• Ms. Rachelle Wallage is a forensic toxicologist with the Centre of Forensic Science who gave evidence at trial about drugs which are used to facilitate a sexual assault. Drugs which are used to facilitate sexual assault usually contain central nervous system depressants, which slow down mental and motor functions. They also cause sedation, impaired consciousness and amnesia, and are associated with "grey outs" or "blackouts". The half-life for some of these drugs can be as short as 30 minutes, which means they are undetectable after about two and a half hours. In the present case the Centre of Forensic Science tested for drugs which might have been used to assist a sexual assault. No drugs were identified as being present at the time of testing. This does not rule out that a drug was administered in the beer given to Ms. J.V. because of the delay in testing. In addition, it is possible that there could have been a drug which was not tested for, and there are some known drugs which do not have any method of detection. However, while not determinative of the issue, it is significant, in my view, that there was no evidence of such a drug found on testing.

• Ms. Wallage also confirmed that alcohol on its own can cause many of the symptoms which would be associated with a drug used to assist in a sexual assault. Known symptoms from the excessive consumption of alcohol include weakness, lack of coordination, vomiting, sedation and amnesia.

• There were some inconsistencies in Ms. J.V.'s evidence about the amount of alcohol she consumed on the night in question. In cross-examination, Ms. J.V. denied having any green shooters at the pub. She stated that the bartender had given her some green shooters but she had put them back on the tray later. Ms. J.V. acknowledged on cross-examination that she does not recall drinking the shooters, but because she does not have any recollection after the consumption of the beer it is possible that she did. The bartender, Angus McAlpine testified in cross-examination that the shooters came out at about midnight and that Ms. J.V. took two. He did not, however, see her drink the shooters. The exact amount of alcohol consumed by Ms. J.V. on the evening in question is, therefore, uncertain, but it seems likely she consumed more than she described in her evidence.

• Ms. Wallage, in her evidence, confirmed that a derivative of marijuana was detected in the urine sample taken from Ms. J.V.. In her evidence Ms. J.V. denied having consumed marijuana for several years prior to the alleged assault. She stated, however, that while she was at the bar she was on a patio for some period of time where marijuana was being smoked. She suggested, therefore, that the detection of marijuana in her urine may have been caused by second hand smoke. Ms. Wallage testified, however, that while it is possible to have a finding of a marijuana derivative in testing from passive inhalation of marijuana, the studies which have been conducted usually involve extreme conditions where people are placed in a closed environment. This evidence casts significant doubt on the explanation given by Ms. J.V. at trial for the presence of marijuana in her urine, and further, raises the prospect that any impairment she suffered was contributed to not only by the consumption of alcohol, but also by smoking marijuana on the evening in question.

[29] While I am not satisfied beyond a reasonable doubt that the defendant administered a drug to facilitate the sexual assault, I am satisfied beyond a reasonable doubt that the defendant took advantage of a vulnerable person who, at the time of the assault, was significantly incapacitated by the consumption of drugs and/or alcohol. There is simply no other credible explanation as to why the complainant would have accompanied the defendant back to his home from the bar.

Relevant Provisions of the Criminal Code Regarding Sentence

[29] Section 271 of the Criminal Code provides that a person who commits a sexual assault is guilty of an indictable offence and is liable to imprisonment for a term not exceeding 10 years.

[30] The principles of sentencing are set out in Section 718 of the Criminal Code, which provides as follows:

The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating

offenders;

(e) to provide reparations for harm done to victims or to be the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community.

[32] Section 718.1 provides that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 sets out other sentencing principles that a court is required to consider. Under this section a court needs to consider any aggravating or mitigating circumstances relating to the offence or the offender. In addition, a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

Case Law

[33] The defence has pointed to some case law suggesting that the normal range for sentence in a case like this would be in the range of 18 months to 2 years less a day. They refer, for example, to the decision in R. v. Sampson where Newbould J. dealt with an accused who sexually assaulted an 18 year old complainant by having sexual intercourse with her against her will. In the decision Newbould J. comments that an appropriate sentence in a case like this would be in the range of 18 months to 2 years less a day. He was persuaded, however, that in the circumstances of that case that a conditional sentence was appropriate, and sentenced the defendant in that case to a period of incarceration of two years less a day to be served in the community. It is acknowledged, however, that a conditional sentence is no longer available to the accused in this case.

[34] The defence who also refers to the 1999 Court of Appeal decision in R. v. Nikkanen (1999), 124 O.A.C. 353. In that case the trial judge imposed a sentence of 18 months and rejected a conditional sentence. The Court of Appeal was not persuaded that the length of the sentence was outside the usual range of sentence for this type of offence, but varied the sentence to a conditional sentence. It is significant to note in that decision that the complainant and the defendant had known each other for some period of time and had been intimate. There was no dispute that the parties had sexual intercourse, but the issue was consent. The trial judge found that at the relevant time the complainant had been asleep and could not have consented to sexual intercourse. The facts in that case are, therefore, quite different than the circumstances before me.

[35] The Crown refers to the decision of the Ontario Court of Appeal in R. v. Haider (1999), 1999 1220 (ON CA), 125 O.A.C. 70. In that case the defendant was convicted for a sexual assault and given a conditional sentence of 21 months. The assault involved a full act of forced sexual intercourse. The Court of Appeal noted:

"We are all of the opinion that both the term of the sentence and the fact of its being served conditionally are totally out of proportion to the seriousness of the offence committed, this should have been a custodial sentence and should have been for a penitentiary term."

In this decision the court varied the sentence to 18 months, in addition to that portion of the conditional sentence which had previously been served.

[36] In R. v. L.G., 2007 ONCA 654, the Ontario Court of Appeal dismissed an appeal with respect to sentence for sexual assault and administering a stupefying substance for the purpose of committing an indictable offence. The trial judge gave credit for 56 months pre-sentence custody plus an additional 22 months, for a total sentence of approximately six and a half years. The Court of Appeal viewed the sentence imposed as stiff, but was not persuaded that it was outside the range given that the defendant had a prior record for sexual assault, and there were a number of aggravating factors, not the least of which was that this was a planned crime involving the administration of a dangerous drug.

[37] In R. v. S.A., 2014 ONCA 266, the Ontario Court of Appeal dealt with a situation where the defendant took two acquaintances on successive dates to secluded places and sexually assaulted them. There was evidence of planning and the appellant took the victims to places which he had obviously previously selected. The offences involved the use of violence and threats, and attempted rape in one case. The court found that the sentence of five years imprisonment was appropriate. The court went on to state:

"The only error by the trial judge was to suggest was that the range for these types of offences could be as low as reformatory. The offences involved in this case required a penitentiary sentence of some length."

[38] I have also considered the Ontario Court of Appeal decision in R. v. Rand, 2012 ONCA 731, [2012] O.J. No. 5061. This case involved a sexual assault of unprotected anal and vaginal sex. In upholding a sentence of four years imprisonment, the court stated:

"I would not interfere with the sentence. The appellant took advantage of a vulnerable intoxicated young woman. He committed acts of unprotected anal and vaginal sex. He has a prior criminal record dating back to 2004 that includes offences of dishonesty and also convictions for crimes of violence, including assault, assault with a weapon, and assault with intent to resist arrest. Two of the assault convictions, in 2004 and 2007, involved incidents of domestic violence. The sentence imposed by the trial judge in this case was well within the appropriate range. The trial judge's reasons disclose no errors in principle."

[39] In R. v. J.R., 2008 ONCA 200, the Ontario Court of Appeal dealt with an appeal which included an appeal of sentences given to two defendants on a sexual assault. Each of the defendants had received a sentence of two years. The sexual assaults involved engaging in sexual intercourse with the female complainant who was incapacitated by alcohol and drugs. In upholding the sentences, the Court of Appeal stated:

"In my view, in the circumstances of this case, where each man took advantage of the complainant when she was incapacitated, leaving her in a state where she woke up naked, helpless, and alone on the bathroom floor of the hotel room, the two year sentence is at the low end of the appropriate range of sentence."

[40] It would appear, based on the authorities reviewed, that most of the convictions for a sexual assault involving forced sexual intercourse, where the victim is an adult and which I would consider to be similar, result in a penitentiary term ranging in length from about two to four years.

Mitigating and Aggravating Factors

[41] In considering an appropriate sentence I have considered the following mitigating factors:

1. No weapon or threats of violence were used

by the defendant in the commission of the

offence.

2. The defendant has made a positive

contribution to the community. He has a

steady work history for the past 10 years

and there is evidence that he has generally

been of good character since his move to

Collingwood.

3. While Mr. Ouellet appears to have some major

personal issues in his life, including

alcohol abuse, he has taken steps to address

these issues over the years as reflected by

the report of his social worker, Alex

Isbister.

4. Mr. Ouellet has a medical condition, and the

report from Doctor Langford, dated June 26,

2014, indicates that jail time may be

harmful to Mr. Ouellet's health.

[42] Some of the aggravating factors in this case are as follows:

1. This was a serious sexual assault, which

has resulted in serious and likely permanent

emotional harm to the victim.

2. Mr. Ouellet took advantage of a vulnerable

person who was significantly incapacitated,

and at a time when her ability to resist was

impaired.

3. The offence involved some planning by Mr.

Ouellet. He accompanied Ms. J.V. from

the bar to his home where the offence took

place.

Analysis and Decision

[43] The sexual assault in this case was a serious one and the circumstances involved some degree of planning by the defendant. Mr. Ouellet is solely responsible. I am satisfied that the gravity of the offence and the degree of responsibility of Mr. Ouellet requires a penitentiary sentence.

[44] In the present case, the defendant does not have the benefit of being a youthful first offender. Further, in my view, denunciation and general deterrence are important factors to take into account for purposes of sentence. I do recognize, however, that Mr. Ouellet has made a positive contribution to the community, and that there is strong evidence he has generally been of good character since his move to Collingwood. These are significant mitigating factors.

[45] I have concluded that, in the circumstances of this case, the appropriate sentence is incarceration for a period of 30 months.

[46] As sexual assault, contrary to Section 271 of the Criminal Code, is a primary designated offence, a DNA order under Section 487.051 is mandatory. In addition, a 10 year weapons ban under section 109 of the Criminal Code is also mandatory. Finally, an order under Section 490.011(a)(16) is mandatory for a 20 year period.

FORM 2

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))

Evidence Act

I, Renee Kaplan, C.C.R., certify that this document is a true and accurate transcript of the recording of R. v. Gilles Ouellet, in the Superior Court of Justice, held at Newmarket, Ontario, on September 10, 2014 taken from Recording No. 4911_403_20140916_085105__MCKELVM.dcr, which has been certified in Form 1 by Renee Kaplan

September 18, 2013

Renee Kaplan, C.C.R.

TRANSCRIPT ORDERED: September 10, 2014

TRANSCRIPT COMPLETED: September 18, 2014

ORDERING PARTY NOTIFIED: September 18, 2014