Court File and Parties

Court File No. CR-14-247

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

NATHANIEL TULLOCH

R E A S O N S F O R S E N T E N C E

BEFORE THE HONOURABLE MR. JUSTICE HILL

on September 18, 2014, at BRAMPTON, Ontario.

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTIONS 539 AND 486(4) OF THE CRIMINAL CODE OF CANADA

APPEARANCES:

A. Falls Counsel for the Crown

A. Barnes Counsel for Nathaniel Tulloch

MONDAY, SEPTEMBER 8, 2014

R E A S O N S F O R S E N T E N C E

HILL, J. (Orally):

Introduction

On May 23rd, 2014, Nathaniel Tulloch pled guilty to seven counts in indictment number 247-2014. Four counts relate to an incident in late August or September, 2013 involving the complainant, O.S. - threaten death, sexual assault, use of an imitation firearm to commit sexual assault and breach of recognizance. The remaining three counts relate to the complainant, R.Y. - unlawful confinement, indecent exposure and breach of recognizance. It now falls to be determined what a fit and just sentence is for these crimes.

Background of the Offences

Turning to an overview of the offences themselves, when O.S. was attacked she was walking on Havenwood Drive in Mississauga. The offender stopped her and requested a cigarette. After asking the 18-year-old complainant some questions, he grabbed her arm and directed her to come with him to a nearby park. Mr. Tulloch informed O.S. that he had just been released from jail “and wanted her to give him a good time.” The offender led O.S. to a footpath leading to a wooded area. At some point, he

displayed the handle of a gun in his front pocket, threatening to shoot her and not release her if she did not give him a good time. The offender appeared to be masturbating as he ordered the complainant to get on her knees to give him oral sex. O.S. refused. Shortly after, as R.Y. arrived to meet her friend, the offender fled the area. At the time of these offences, Mr. Tulloch was in violation of a condition of a recognizance by which he was bound, limiting the time and location of his absence from his residence.

On or about October 3rd, 2013, as 14-year-old R.Y. was walking on Fieldgate Drive in Mississauga, the offender stopped her and offered her a cigarette and then some marijuana. He then asked the complainant if she recognized him while making some reference to O.S. The offender then grabbed R.Y.’s hand and despite her protests led her down a foot path leading to a large wooded area. After the offender had R.Y. sit on a log, he turned away from her, saying that he was rolling a marijuana joint. The complainant observed that the offender had his hand in his pants and appeared to be masturbating. Despite being told to close her eyes, R.Y. declined to do so. Leaving her bag behind, she made a run for it, screaming as she went, pursued by the offender. Mr. Tulloch caught her, told her not to scream, picked her up and returned into the woods. Then, while yelling at R.Y. after ordering her to her knees, the offender removed his erect penis from his pants and masturbated in front of her. The complainant refused to put the offender’s penis in her mouth and suck it when told to do so. The offender again yelled at her for trying to escape. Then, after telling her she was a good girl, he ejaculated on the pathway in front of R.Y. She was then told that she could leave. R.Y. ran off. Again, at the time of these offences, the offender was in breach of the condition of his recognizance restricting his movements.

Victim Impact Evidence

In her victim impact statement, Y.R. recounts that as a result of being attacked she fears being outside on her own. When she sees any dark-skinned male she fears being attacked by the offender or another male. The complainant has experienced difficulty putting the incident out of her mind.

While O.S. did not file a formal victim impact statement, the pre-sentence report records that she too has been adversely psychologically impacted by her victimization.

The offender’s background

With the offender’s date of birth of May 11th, 1991, he is currently 23 years of age. At the time of the offences, he was aged 21 and living at home with his parents and siblings. Mr. Tulloch reported to the pre-sentence report author having a good childhood. He has three siblings including a younger sister with Down Syndrome who he helped care for. Both parents are employed. There have been no drug or alcohol issues for the offender although he is an occasional marijuana user.

After graduating from high school where he was an accomplished basketball player, the offender attended community college in a two-year digital and visual arts program. Feeling that the studies were too much work, Mr. Tulloch dropped out of the second year of the program. He has a student loan debt. He then worked part-time for six months at a grocery store and then for two years for a lawn care service which was seasonal employment from February to October.

For the past three years, the offender has had a relationship with a woman, H.E., he met while attending high school. While H.E. remains supportive, she considers that their boyfriend/girlfriend relationship ended in the fall of 2013. She reports that the offender was never physically aggressive with her. Mr. Tulloch has no prior criminal record.

The pre-sentence report author recorded the following:

1. The offender maintained “he never had any ill intentions towards the victims.”

2. On the issue of future counselling, Mr Tulloch stated that he would participate “if I have to but I’m not crazy or psycho.”

In this sentencing hearing, Mr. Tulloch expressed remorse as well as apology to the victims for his criminal misbehaviour. Exhibit numbers six and seven are letters addressing the offender’s otherwise good character.

The August 13, 2014 report from the Break-Free Family Centre discloses that Mr. Tulloch requested and received telephone counselling therapy consultation since January 2014. Some progress has been made during the counselling and Dr. Keith further indicates, as did Ms Barnes on the offender’s behalf, that he understands that he requires ongoing counselling therapy sessions both in and out of custody.

Pre-sentence custody

As of today’s date, the offender has been in pre-sentence custody for 348 days. The parties agree, applying the principles espoused in R. v. Summers, 2014 SCC 26, that a 1.5 to 1 adjustment is fair in the circumstances, amounting to 522 days or roughly 17 and a half months of pre-sentence custody.

Indeed, in a case such as the present where the offender is youthful and without a prior criminal record, the enhanced credit allowable by s. 719(3.1) of the Code is alone fully justified on the quantitative rationale of ineligibility for early release or parole.

At paragraph 71 of the Summers decision the court observed that, “The loss of early release, taken alone, will generally be a sufficient basis to award credit at the rate of 1.5 to 1, even if the conditions of detention are not particularly harsh...”

Produced as exhibit three on sentencing is a Maplehurst Correctional Complex lockdown summary relating to “Enhanced Sentencing Pre-trial Custody”. The document, helpful to everyone in this sentencing hearing, was researched by the Security Manager/Investigations records and indicates that:

1. Pre-trial incarceration at the Maplehurst facility is presumptively in a cell designed for two inmates, unless there is segregation circumstances or triple bunking.

2. Normal daily confinement to a jail cell is 16 hours in a cell measuring approximately fifteen feet by seven and a half feet, including a toilet.

3. On 59 days, or 22.6 percent, of the offender’s stay to June 23rd, 2014, because of institutional overcrowding, he was confined in a cell with two other inmates. This means that two inmates have a bunk while the third has a mattress on the floor.

4. In the offender’s case, on 53 days of the first 261 days of custody, up to June 23rd 2014, he was subject to a full lockdown, meaning that for those days he was confined to his cell for the entire 24-hour day with no shower, phone access, et cetera. This amounted to 20.3 per cent of the offender’s pre-sentence custody.

On a further 19 days, he was subject to a partial lockdown, losing some of the eight hours per day he would normally be permitted out of his cell.

5. There was limited program availability for remand inmates at Maplehurst and no government- offered sex offender counselling or treatment.

Submissions of the parties

On behalf of the offender, Ms Barnes submitted that a reformatory sentence is appropriate. With consideration of pre-sentence custody and particularly the mitigating factors of Mr. Tulloch’s youth, lack of a prior record, guilty pleas and prospects for rehabilitation, a sentence approximating time served would not be inappropriate.

On behalf of the Crown, Mr. Falls submitted that the balance of aggravating and mitigating factors supports a sentence of two years less one day of incarceration. Counsel emphasize the youth of the two stranger complainants, the violence, use of an imitation firearm and the lack of a causative explanation for Mr. Tulloch’s criminal behaviour.

What is the fit sentence?

The aggravating features of the crimes are manifestly apparent including:

1. Two young women were victimized, (s.718.2(a)(ii.1)).

2. The victims were forcibly taken from a visible public street to a more secluded wooded location.

3. The respective offences occasioned psychological damage to the complainants (s. 718.2(a)(iii.1)).

4. There were sexual features to the terrorizing attacks upon the two vulnerable strangers.

5. In the case of O.S., the offender threatened the victim including with death while armed with a firearm, which has been described as an imitation firearm.

In the balance, in mitigation, these factors deserve consideration:

1. The offender’s pleas of guilt spare the complainants having to testify at trial, demonstrate a public acceptance of responsibility and the saving of court time and resources in a jurisdiction currently in desperate circumstances.

2. The offender appears to have otherwise expressed genuine remorse and is amenable to treatment.

3. The offender is a young man and was only 21 at the time of the commission of the offences.

4. Mr. Tulloch has no prior criminal record and appears before the court as a first offender.

5. The pre-sentence report is positive.

6. The offender has a stable support network and is clearly employable.

Staying with the theme of mitigation, and returning to the established facts relating to Mr. Tulloch’s pre-sentence incarceration at the remand facility where he was presumptively innocent of the 13 counts in the indictment, 7 of which he has pled guilty to, it is agreed that the offender had no opportunity for training or for State-sponsored programs or therapy relevant to the charged crimes.

Extrapolating forward to today from the June date of the report from Maplehurst with its available statistical information, it appears that for more than 20 percent of the period of the pre-sentence detention Mr. Tulloch was subject to all-day lockdown in his cell and for over 20 per cent of the time he was incarcerated at least 16 hours a day in a small cell with two other inmates.

As an aside, while exhibit number three was admitted to assist the court respecting the conditions of Mr. Tulloch’s incarceration, I do not consider the following narrative from page two of the report dealing with double bunking to be admissible: “This standard is consistent throughout North America and Commonwealth countries.” Not only is there no stated foundation for this pleaded justification for departing from single-cell accommodation for presumptively innocent remand prisoners, but the standard is apparently at odd with Canada’s obligations respecting charged but untried persons.

As I noted in R. v. Jones, [2006] O.J. No. 3869 (S.C.J.), at paragraph 15:

At the Fifth UN Congress in 1975, Canada’s delegation officially endorsed the United Nations Standard Minimum Rules For the Treatment of Prisoners 1975 which include the following provisions in Part I – Rules of General Application:

Separation of categories

8. The different categories of prisoners shall be kept in separate institutions or parts of institutions taking account of their sex, age, criminal record, the legal reason for their detention and the necessities of their treatment. Thus,

(b) Untried prisoners shall be kept separate from convicted prisoners;

Accommodation

9. (1) Where sleeping accommodation is in individual cells or rooms, each prisoner shall occupy by night a cell or room by himself. If for special reasons, such as temporary overcrowding, it becomes necessary for the central prison administration to make an exception to this rule, it is not desirable to have two prisoners in a cell or room.

Paragraph 16 of the Jones judgment reads:

These Standard Minimum Rules (SMRs) distinguish in Part II – Rules Applicable to Special Categories A. “Prisoners under sentence” from C. “Prisoners under arrest or awaiting trial”. With respect to the latter category, the SMRs state:

84. (1) Persons arrested or imprisoned by reason of a criminal charge against them, who are detained either in police custody or in prison custody (jail) but have not yet been tried and sentenced, will be referred to as “untried prisoners” hereinafter in these rules.

(2) Unconvicted prisoners are presumed to be innocent and shall be treated as such.

(3) Without prejudice to legal rules for the protection of individual liberty or prescribing the procedure to be observed in respect of untried prisoners, these prisoners shall benefit by a special regime which is described in the following rules in its essential requirements only.

85. (1) Untried prisoners shall be kept separate from convicted prisoners.

86. Untried prisoners shall sleep singly in separate rooms, with the reservation of different local custom in respect of the climate.

Ontario has experienced a ballooning remand population in the past three decades. The causes are multiple, including special police enforcement initiatives, the addition of the tertiary ground in the bail test

(s. 515(10)(c)), expansion of the “reverse onus” categories respecting judicial interim release (s. 515(6)), the deterrent to seeking bail because of its impact upon pre-sentence custody credit where the arrestee has a prior criminal record (ss. 515(9.1) and 719(3.1)), the statutory increase in defined offences, et cetera.

It was observed in R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455, at paragraph 41 that: “...while pretrial detention is not intended as punishment when it is imposed it is in effect deemed part of the punishment following the offender’s conviction” by s. 719 of the Criminal Code. It has generally been accepted that conditions in the local remand facility, as opposed to a correctional institute for sentenced offenders, has harsher conditions of incarceration for those not released on bail. These conditions include a general absence of government-sponsored rehabilitative programs as well as overcrowding: see Summers, at para. 2. Indeed, these qualitative features of pre-sentence detention have long supported enhancement of pre-sentence custody beyond the 1 to 1 standard. An offender in Mr. Tulloch’s position, where the s. 719(3.1) 1.5 to 1 cap is entirely justifiable on the quantitative consideration of an absence of eligibility for early release or parole, will not generally be compensated for the pre-trial punishment-like conditions at a remand facility. The court in Summers, at para. 72, recognized this reality:

This means that two offenders, one of whom lost the opportunity for early release and parole, and a second who, in addition to losing those opportunities, was also subject to extremely harsh conditions, will likely both have credit assigned at a rate of 1.5 to 1. The unavoidable consequence of capping pre-sentence credit at this rate is that it is insufficient to compensate for the harshness of pre-sentence detention in all cases. However, this does not mean that credit should be scaled back in order to “leave room at the top” of the scale for the most egregious cases. A cap is a cut-off and means simply that the upper limit will be reached in more cases. It should not lead judges to deny or restrict credit when it is warranted.

Accordingly, sentencing courts may not, absent exceptional circumstances, exceed the 1.5 to 1 credit for pre-sentence custody to compensate for the harsh carceral conditions of a local remand facility. To do so would undermine the presumptively constitutional statutory scheme and by judicial stealth resurrect the predecessor 2 to 1 guidelines preceding the Truth in Sentencing Act reform. Put differently, we recognize, if not accept, the reality that absence of programs, counselling and therapy and a degree of overcrowding will inevitably occur and be effectively non-compensable for certain remand prisoners, circumstances not suffered by persons, sometimes co-accused, who receive judicial interim release.

Temporary overcrowding and sporadic lockdowns are simply a reality of remand facilities. Again, the causes for both are many and can be quite legitimate. A lockdown may result from a lawful labour disruption, a security threat within an institution, a medical quarantine, et cetera. Temporary overcrowding may also result from a particular police enforcement initiative, i.e. a G-20 Summit event, or a series of gang-related raids or indeed in the immediate aftermath of a relevant statutory amendment.

What does become a concern is systemic causation and acceptance of such phenomenon. At a point, routinely subjecting the presumptively innocent to such conditions, particularly triple bunking in tiny cells, becomes unnecessarily oppressive and challenges adherence to humane and civilized treatment of the presumptively innocent.

At paragraph 73 of the Summers decision, the Court observed: “Indeed, individuals who have suffered particularly harsh treatment, such as assaults in detention, can often look to other remedies, including under s. 24(1) of the Charter.” I note that in using the word “including” that the Court envisioned that other remedial avenues may exist to recognize the mitigatory impact of particularly harsh conditions in a detention facility. This is entirely consistent with the approach in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 SCR 206, at paras. 2 to 5 and 53 to 55, accepting that, with or without resort to s. 24(1) of the Charter, sentencing courts may mitigate sentence in instances of State misconduct, including abusively oppressive treatment. Certainly, systemic departure from the international convention as apparently exists here, respecting the triple- bunking detention, is deserving of recognition as having special mitigatory effect. Mr. Falls quite fairly agreed with this and such recognition will be assessed.

In the circumstances presented here, the dominating sentencing principles are protection of the public, general deterrence and denunciation. The Courts are duty bound to protect our communities against sexual predators bent on victimizing young women for their own selfish satisfaction. Considering the mitigatory factors already reviewed, a sentence of approximately two years’ duration is proportionate to the gravity of the offences. But for the mitigating factors here, a long penitentiary sentence would not be unwarranted.

In the case of sentencing an offender for multiple offences, the court is necessarily concerned with not only honouring consecutive sentence principles but also giving effect to the totality principle so that the global sentence itself is fit and proportionate and not likely to crush rehabilitation prospects. Accordingly, some compression of individual-count sentences and abandonment of consecutive sentencing principles may become necessary.

In the present case, two of the counts to which Mr. Tulloch pleaded guilty attract statutory minimum sentences. Count number 11, indecent exposure, when proceeded with by indictment, has a 90-day minimum. Count number 6, use of firearm or imitation firearm in the commission of a sexual assault, has a one-year minimum sentence which, by virtue of s. 85(4) of the Code, must run consecutively to any other sentence imposed by the court.

The following sentences are imposed:

Starting with count number 11, indecent exposure, one day imprisonment with credit for seven months of pre-sentence custody.

Count number 8, forcible confinement, one day concurrent.

Count number 13, one day concurrent.

In summary, for these crimes involving R.Y., a further one day in custody is to be served with credit for seven months of pre-sentence custody.

The following sentences are imposed with respect to the cluster of four offences involving the second complainant:

Count number 2, one day consecutive to counts numbers 8, 11 and 13.

Count number 4, one day concurrent to count number 2.

Count number 5, one day concurrent to count number 2.

Count number 6, two months consecutive to all other counts, with credit for ten and a half months of pre-sentence custody. Accordingly, for this latter group of four counts, the offender must serve an additional two months plus one day after ten and a half months further credit for pre-sentence custody.

Accordingly, with pre-sentence custody of seventeen and a half months a further two months plus two days stands to be served.

There will be a three-year probation order on the mandatory statutory terms under s. 732.1(2) of the Code and the following optional conditions:

1. Report to probation services as they require.

2. Have no communication or contact directly or indirectly with R.Y. and O.S.

3. Remain within the jurisdiction of the court unless written permission to the contrary is given by the court or your probation officer.

4. Attend and actively participate in any recommended counselling or rehabilitative programs, including the Ministry of Community Safety and Correctional Services Sex Offender Relapse Prevention (SORP) program and/or other sexual offending programs as directed by the probation and parole officer and provide proof of counselling completion.

By way of corollary orders the following orders are issued:

1. A weapons prohibition order pursuant to

s. 109(2)(a) for ten years and pursuant to

s. 109(2)(b) for life.

2. A DNA sample authorization pursuant to

s. 487.051(3).

3. An order pursuant to sections 490.012 and 490.013 requiring compliance with the Sex Offender Information Registration Act for life.

4. Pursuant to s. 743.21, a non-communication order prohibiting the offender from communicating directly or indirectly with the complainants during the custodial period of the sentence.

Lastly, the reasons for sentence of the court and copies of the exhibits on sentencing shall be forwarded forthwith to the provincial correctional authorities.

FORM 2

Certificate of Transcript

Evidence Act, Subsection 5(2)

I, Patti Keran, certify that this document is a true and accurate transcription of the recording of R. v. Nathaniel Tulloch, in the Superior Court of Justice held at 7755 Hurontario Street, Brampton, Ontario, taken from Recording No. 199_406_20140918_094101__30_HILLCAS.dcr, which has been certified in Form 1.

October 24, 2014 Original signed by Patti Keran,

Court Transcriptionist

(Date) (Signature of authorized person)

SUPERIOR COURT OF JUSTICE

T A B L E O F C O N T E N T S

WITNESS

Exam.

In-Ch.

Cr-

Exam.

Re-

Exam.

E X H I B I T S

EXHIBIT NO.

PAGE NO.

Reasons for Sentence 1

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTIONS 539 AND 486(4) OF THE CRIMINAL CODE OF CANADA

Transcript Ordered:................... September 25, 2014

Transcript Completed:................. October 13, 2014

Ordering Party Notified:............... October 14, 2014