CITATION: R. v. D.E. 2014, ONSC 7573

FILE NO. 0411-998-11-G5025

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

D.E.

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

BEFORE THE HONOURABLE JUSTICE G. TOSCANO ROCCAMO

on July 2, 2014, at BARRIE, Ontario

INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED,
BROADCAST OR TRANSMITTED PURSUANT TO AN
ORDER UNDER S. 486.4, CRIMINAL CODE

APPEARANCES

J. Cavanagh

Counsel for the Crown

B. Engel

Counsel for D.E.

ONTARIO COURT OF JUSTICE

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

W I T N E S S E S

WITNESSES

Examination
in-Chief

Cross-
Examination

Re-
Examination

E X H I B I T S

EXHIBIT NUMBER

ENTERED ON PAGE

INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED,
BROADCAST OR TRANSMITTED PURSUANT TO AN
ORDER UNDER S. 486.4, CRIMINAL CODE

GLOSSARY OF TERMS

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Transcript Ordered:

13 April 2017

Transcript Completed:

11 May 2017

Ordering Party Notified:

11 May 2017

WEDNESDAY, JULY 2. 2014

CITATION: R. v. D.E. 2014, ONSC 7573

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

TOSCANO ROCCAMO J., S.C.J. (Orally)

D.E., you are charged with one count of sexual assault on M-J.C. in relation to events which took place on April 25th, 2009, at the townhouse you shared with your friends A.C. and S.S-C.

After 18 days of evidence and an arduous process for all concerned, including testimony from Ms. M-J.C. and yourself, between September 2012 and August 2013, I found you guilty, as charged, on November 12th, 2013.

The background facts are very simple. You all intended a very pleasant evening among friends to celebrate the end of a school year for M-J.C. and S.S-C. It did not go as planned. M-J.C. was a friend of yours for over a year and someone you had hoped to be involved with romantically, although she and your friends denied any sign of this. She drank to excess over a short timeframe and became violently ill. You are aware she suffered from Crohn's, and at trial, surmised this may well have exacerbated matters. You, and A.C., and S.S-C., nevertheless, carried on with your plans to party at a local bar after M-J.C. was cleaned up and left passed out on the couch. At the bar you had a number of alcoholic beverages, but no more than your friends considered usual, and did not cause you to stumble over yourself or behave in an uncontrolled manner.

When you returned five hours later, M-J.C. was still passed out and ill. She needed to be roused to stumble to the shower, where she vomited again. She has only islands of memory relating to events after she came out of the shower. She found herself in your bed. You had unprotected intercourse with her against her will. She offered little, but some resistance, sick as she was, but she told you to stop. You did not. She suffered injuries to her genitalia in the process, although these do not appear to be lasting. On the other hand, the emotional scars persist to this day.

In a victim impact statement she offered to this court on February 28th, she described how this whole situation has taken an immense toll on her. In addition to the violation of her physical integrity, she told us how her psychological integrity has been compromised, to the point it aggravated her Crohn's and led to depression with at least two burnouts, when she tried to use work as a distraction. However, as a clinical psychologist, she was unable to distance herself emotionally to support those she was engaged to treat. She suffered through a long, legal process, which left her feeling further victimized and, as a result of all of this, suffered a loss of income. M-J.C. has a lasting mistrust of men to this day.

Your own circumstances are only partially known to me. In a letter dated June 20th, 2014, and addressed to me, I learned that you continue to refuse to be interviewed by probation services for purposes of a Pre-Sentence Report I initially ordered on November 14, 2013, for the first sentencing hearing scheduled in your case.

In February, I was informed that you were suffering significant psychological distress, with suicidal ideation and, at the suggestion of Mr. Engel, I ordered a 60-day assessment at the Royal Ottawa Hospital, to satisfy myself of your fitness to engage in the legal process and to instruct counsel.

The report dated March 21st, 2014, of psychiatrist Dr. Mathieu Dufour, a forensic psychiatrist at the Royal Ottawa Hospital, has been marked and tendered in evidence. His report offers up details that would have emerged from a Pre-Sentence Report, and information from the interview of your mother and sister, and a social worker, Lyndsay McLean, taken while you were admitted to the Royal Ottawa Hospital between March 5th and 14th.

You are presently 28 years old. You were only 23 when these events took place. You come from a good family. You have no criminal record. You have no prior history requiring involvement with mental health professionals, although there is a relevant family history for suicidal ideation.

You do not have a substance addiction, so far as I can tell. At the time of these events, you were a binge drinker, but Dr. Dufour writes that you report consuming no alcohol since 2010. You have informed me today that he is in error. It is also unclear to me if Dr. Dufour had any question of ongoing alcohol abuse, but given your psychological distress, then and now, I am not blind to the potential this may require further investigation. Your family reported your plan to harm yourself in court last February, with a view to ending your life. The stress of this situation is no doubt part of the explanation.

Your family reported that although you had a normal childhood and only mild behavioural issues related to a learning disability, you had no issues in high school. You testified you moved to Ottawa to attend Carleton University, but withdrew after facing significant trouble with the essay writing component of your studies. You, nevertheless, were gainfully employed in retail management for five years until conviction, and, at the time, you were enrolled at Seneca College, working towards a Certificate in Human Resources Management.

Since your conviction, you have not worked. Your family describes your psychological decline since then. You have displayed anger management issues, not with family, but with others. You have become socially isolated. Your sleep has been disrupted and your weight has fluctuated dramatically. It was the opinion of a doctor in the Emergency at the Royal Victoria Hospital in Barrie, who saw you February 7th, 2014, that you suffered situational anxiety and a personality disorder.

Dr. Dufour has diagnosed a major depression, with passive, suicidal ideation associated with legal stressors. He says you need to be monitored. Nonetheless, he was satisfied as to your fitness and ability to instruct counsel.

Unlike probation services that predicted you would be difficult to follow in community supervision because of your unwillingness to cooperate, Dr. Dufour offered a different opinion. He says you would be a good candidate for the St. Lawrence Valley Correctional Treatment Centre in Brockville, if a provisional sentence is imposed. One such sentence served in the community is off the table, given the mandatory requirements of the Criminal Code for a conviction under s. 271.

The Crown seeks a prison term of between two and a half and three and a half years, emphasizing the need to express society's requirement for denunciation and deterrence for similar crimes against vulnerable individuals like M-J.C. who find themselves ill and unconscious in the company of others who seek to take advantage and shatter their physical and emotional integrity.

The Crown also invites me to consider the relationship of friendship between you and M-J.C. as an aggravating factor, being the relationship of friendship between you and M-J.C., as one where, as friends, you were to take care of one another, not abuse the trust. I am going to specifically address this submission later in these reasons.

The Crown also seeks a DNA order under s. 487.051; a firearms prohibition order under s. 109(1) for 15 to 20 years; and a sexual offender registration, under s. 490.012 and 490.013, for 20 years.

Finally, the Crown also seeks a maximum term of three years' probation if the sentence is handed down in the reformatory range.

The defence invites me to consider a custodial sentence of between 15 and 18 months, and characterizes the assault, while serious, as one not on the most egregious end of the spectrum of cases both Crown and defence have offered for my consideration. The defence also points to at least two cases on very similar facts where 15 month prison terms were ordered. I am invited to consider your personal circumstances and need for treatment, which could be arranged at the St. Lawrence Valley Treatment Centre. A lengthy period of probation of up to three years was not in contest.

Mr. D.E., sentencing is not a one size fits all. It is an individualized process in which I have considerable discretion. The rationale behind this stems from the fundamental principle of sentencing, which provides that a sentence must be proportional to the gravity of the offence and the degree of responsibility of the offender. It requires me to apply the legal principles and parameters for sentencing set out in the Criminal Code, while having regard to your circumstances and the circumstances of the offence so that the punishment fits the crime. As a result, there is inevitable variation in sentences.

In addition to the principle of proportionality, I must have regard to s. 718 of the Criminal Code, which spells out the fundamental purpose of sentencing, which, among others, includes the objectives of crime prevention and generating respect for the law, and requires me to impose a sanction which achieves other listed objectives. The objectives in a case of sexual assault clearly emphasize denouncing this conduct and deterring you and others from committing such offences; assisting in your rehabilitation; and promoting in you a sense of responsibility, while repairing the harm done to victims and the community.

Section 718.2 also directs a sentencing justice to consider any relevant, aggravating and mitigating circumstances, while ensuring the sentence is similar to those imposed on similar offenders, among other things.

The Crown offered no case law on point or statutory imperatives which would characterize this case as one involving a breach of trust. I distinguished the circumstances before me from those involving persons in authority such as co-workers or persons in a caregiving role, where there is an elevated responsibility assumed vis-à-vis the complainant. To that end, I distinguished the reasoning of Justice McKinnon in R. v. Foubert, [2009] O.J. No. 5024, as I did in R. v. Bergeron, [2013] ONSC 311, paras. 31 and 32. In any event, should I be found in error, the necessary imperatives are already captured in s. 718.2(a), where the court's jurisdiction to consider aggravating or mitigating factors is not fettered or limited by the specific evidentiary circumstances listed.

I have also considered the sentencing charts and case briefs of Crown and defence, which were of great help to me. I agree with the defence that the circumstances here do not fetter my discretion by requiring a minimum or starting point term of three years or more of the kind imposed in R. v. Lau, [2007] ABCA 203, based on the rationale in R. v. Arcand, [2010] ABCA 363. Your counsel correctly pointed out the Alberta Court of Appeal in R. v. Lee, [2012] ABCA 17, determined the thinking in R. v. Arcand was not sound, based on the Supreme Court's decision in R. v. McDonnell, 1997 389 (SCC), [1997] 1 S.C.R. 948, where the Supreme Court said, "Starting point sentences are merely guides and do not displace the need for an individualized process."

The circumstances of the offence and offender before me are very different from those in R. v. Thurairajah, 2008 ONCA 91, where a 33-month sentence was handed down in circumstances involving a very young victim, one callously left unconscious and nearly dead in a snowbank and whose ethnic community, known to the offender, would ostracize the victim.

Similarly, the circumstances are very different from those in R. v. Rand, where the victim was sexually assaulted, while intoxicated and passed out outdoors, by an accused who had a criminal record for violent offences in the face of active resistance.

While I do recognize that the Alberta Court of Appeal in R. v. Lee pronounced that the judgment delivered in R. v. Arcand was not good law for failing to adhere to binding present and legislative imperatives in sentencing, I still echo the sentiments expressed in Arcand at paras. 269 to 272, that I would be in error to suggest that a non-consensual sexual assault is only a real or major assault if perpetrated by a stranger or a masked intruder, with more extreme acts of violence. In many ways, a sexual assault with some aggression and personal injury perpetrated by a friend, as in the case before me, constitutes an invasion so profoundly disturbing, one can well understand how an educated woman, schooled in psychological therapy is wracked by complex feelings of violation, indignity on the one hand, and self-blame, confusion and deep distrust of men on the other.

In my opinion, the appropriate range of sentence is one in keeping with the circumstances where courts have recognized the offender's degree of responsibility, which is elevated where he assaults an unconscious victim. On the low end of the range, I note the 15-month custodial sentences handed down in R. v. J.S. [2011] ONSC, 1743, where the offender lied to police about assaulting an intoxicated and semi-conscious female who was staying overnight at his parents. As in this case, he was youthful, had a good work record, no criminal record, and followed conditions of release, although he did not accept responsibility.

In R. v. Casilimas, 2013 ONCJ 2011, a 15-month jail term was imposed on an offender with a record for assault bodily harm, who had intercourse without using a condom with an intoxicated female in a public place. Despite a trial, he did express remorse and was described as a hardworking individual, responsible for the support of a 12-year-old son.

In the mid-range of the cases shared with me, I note the 18-month custodial sentence handed down in R. v. J.W.M., [2004] O.J. No. 1295, and the 18-month custodial sentence in R. v. Yamelst, [2013] B.C.S.C., although I note the offender had drug and alcohol dependency, and there were very significant Gladue factors at play, notwithstanding the effect on the victim.

On the other end of the spectrum, I note the case of Laz-Martinez, 2011 ONCJ 115, where the accused was rebuffed by the victim only weeks prior to the offence, and then went on to assault her while she was intoxicated and in an unconscious state. When asked to stop by a male friend of the complainant, he did not until after he climaxed and after he encouraged the other male to have sex with her, too, all very aggravating circumstances. On the other hand, he entered a guilty plea, addressed his alcohol consumption and changed his social circle. He was given a jail term of two years less a day.

In R. v. J.R., 2000 ONCA 28, and in Arcand, jail terms of two years, less a day, were handed down in circumstances where the accused, J.R. had a criminal record and sexually assaulted an intoxicated and unconscious individual.

The aggravating circumstances before me are not terribly in dispute. This was a serious sexual violation involving aggression and callous disregard for M-J.C.’s lack of consent and expressed refusal to have sex with you. M-J.C. was a vulnerable victim, ill and intoxicated, who cycled in and out of consciousness, and who was assaulted by a man she considered to be a good friend. You did not stop when she offered resistance, and she suffered some genital injury in the process. You also lied to police and admitted obstructing the investigation of this crime by lying. You admitted lying to this court, as well. Although I cannot consider your failure to plead guilty as an aggravating circumstance, you have taken no responsibility and have expressed no remorse to this point and you continue to blame others for your circumstances, notably, police.

Dr. Dufour says you have minimally engaged in assessment and treatment at the ROH, although the opportunities presented. However, I accept that you were only there briefly at the ROH for the assessment of your fitness.

The mitigating circumstances, as I see them, are as follows:

• you are very youthful;

• you have no criminal record;

• you have a supportive and good family;

• you have an excellent work history, despite a learning disability;

• you have suffered from a compromised mental state, requiring treatment and possibly further assessment for alcohol-related sexual disinhibition while binge drinking;

• you have strictly abided by the terms of your bail condition, which offers hope that you may, given the appropriate treatment, be able to cooperate with probation services in the future, notwithstanding your intransigence to this point.

Mr. D.E., would you please, stand, sir. Before I pass sentence, would you like to make a statement to me or to the court in general?

D.E.: No, thank you.

THE COURT: In my opinion, a just and fit sentence, having regard to the principles of sentencing that I have referred to and the particular circumstances, including aggravating and mitigating factors, justifies a prison term of two years, less a day.

In handing down a sentence in the mid to upper reformatory range, I would strongly recommend that the term of imprisonment be served in an institution like the St. Lawrence Valley Treatment Centre, where the necessary assessment and treatment can be undertaken. A copy of my reasons should be transcribed and offered to the appropriate authorities to facilitate this.

There should also be credit at the rate of 1.5:1 for the time spent in custody awaiting sentencing. I arrive at this credit by reason of the fact that for about three of four plus months since February 28th, there has not been access to services, including assessment and treatment, which I find is required in this case. That leaves a net time in custody to be served of 18 months, less a day.

I also impose a three year term of probation with conditions as follows:

• you are to report within two business days of release to your probation officer;

• you are to abstain from the consumption of alcohol and other intoxicating substances;

• you are to attend for assessment and treatment and addictions counselling, as directed by your probation officer;

• you are to attend for psychological assessment, treatment and counselling, including any needed sexual behaviours assessment, as may be directed, by those involved in your care while in custody and/or your probation officer;

• you are to sign any release forms to allow your probation officer to monitor your compliance with this order;

• you are not to associate or have any communication with M-J.C. without her written and revocable consent; and

• you are to reside at an address approved of by your probation officer.

Should you breach any of these conditions, Mr. D.E., you may find yourself again before the courts, facing other consequences, which I expect Mr. Engel will explain to you.

Finally, in addition to the jail term and probation, I make the following ancillary orders:

• A DNA order under s. 487.05(1)(1) of the Code.

• A firearms and other weapons prohibition for a period of 15 years under s. 109(1), of the Criminal Code.

• A SOIRA order of 15 under s. 490.012 and 490.013.

• An order under s. 743.2(1) that you not communicate directly or indirectly by any means with M-J.C. during the custodial term of your sentence.

A copy of my reasons on conviction and sentencing shall be sent to your probation officer, as well as your corrections institution to facilitate assessment and treatment.

A victim surcharge of $100, under s. 737(1) of the Criminal Code is mandatory for an offence punishable by indictment. How long do you propose for payment, Mr. Engel?

MR. ENGEL: I'm going to ask for perhaps a year after release, so maybe two years.

THE COURT: Any objection, Mr. Cavanagh.

MR. CAVANAGH: No objection.

THE COURT: Thank you. Are there other matters or orders that have escaped my attention before I make closing remarks?

MR. CAVANAGH: No. Well, two points, Your Honour. The first is that Sergeant Harding asks that his name be added to the no contact communication condition.

THE COURT: Both as part of the custodial term and as part of the probation term?

MR. CAVANAGH: As part of the probation, please.

THE COURT: Only the probation?

MR. CAVANAGH: Yes, thank you.

THE COURT: All right. My order on probation is so amended, then.

MR. CAVANAGH: Yes. Thank you. And secondly, unless – I may be misreading the code but if I'm not misreading it, then I think the term has to be 20 years for the SOIRA order, under 490.013(2)(b). I'll just show it to my friend.

THE COURT: I think I took guidance from your own letter, Mr. Cavanagh.

MR. CAVANAGH: That is possible, and I've since had to take steps to correct an order that I was responsible for the wrong term being imposed, so I'm better educated with regard to that. So what I think – I just have my friend checking. Under 490.013(2)(b).

THE COURT: Oh, that's right. You are right. The menu is ten years, 20 years, or life. I do not think I can offer a term in between.

MR. CAVANAGH: Yeah.

THE COURT: Do you agree, Mr. Engel?

MR. ENGEL: It appears so, yes.

THE COURT: So my order should be varied to reflect the SOIRA order should be 20 years.

MR. CAVANAGH: That's all.

THE COURT: Mr. Engel, have I escaped anything before I make closing remarks?

MR. ENGEL: If I could just have a moment. Nothing from my end. Nothing, Your Honour.

THE COURT: Thank you.

Mr. D.E., before I rise, I wanted to close by saying you are a young man, not without initiative and not without education. You have a good mother, a good father and a supportive sister who are and have demonstrated support for you. That is a strength. You carried out a serious offence against a friend for which you can make redress in time served and with treatment and counselling. I invite you, I urge you to gain insight and understanding and take responsibility for your wrongdoing and your own rehabilitation and healing, and society will welcome you back as a contributing member of your community.

Those are my reasons.

MR. CAVANAGH: Thank you, Your Honour.

MR. ENGEL: Thank you.

THE COURT: Mr. Registrar, you asked for guidance with respect to the sentence. It was two years, less a day, with six months credit, leaving 18 months, less a day in custody.

CLERK REGISTRAR: Thank you.

THE COURT: Was there any other question regarding the sentence?

CLERK REGISTRAR: No, thank you, Your Honour.

...Whereupon proceedings concluded