WEDNESDAY, APRIL 1, 2015

CITATION: R. V. D., 2015 ONSC 1312

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

Lalonde J. (Orally)

So, here are my reasons for sentencing. D.D. was convicted that he on or about the 30th day of June, in 2010, at the City of Ottawa, in the East Region, did commit a sexual assault on E.C., contrary to s. 271(1) of the Criminal Code, the index offence.

E.C., the complainant, (hereinafter called the complainant), invited D.D., (Mr. D.), to a party on June 29th, 2010. The complainant and Mr. D. were acquaintances and became friends as a result of their involvement in various school clubs at Carleton University.

After staying up the night before to pack her apartment, working all day, and then moving all night, the complainant invited some friends to her new home in the Glebe in Ottawa. Mr. D. received a text message invitation around 10:30 p.m. Mr. D. took a bus across town and joined the complainant and three other students who were drinking alcohol and smoking marijuana around midnight.

Over the span of approximately five hours, (9:30 p.m. to 2:30 a.m.), the complainant ingested two to four ounces of vodka and took one toke of marijuana. After his arrival, Mr. D. ingested some rum, some beer and marijuana in unknown quantities.

The party continued into the early hours of June 30th, 2010. Sometime after midnight, Mr. D., the complainant and another friend of the complainant’s went to a short walk/run. At around 2:30 a.m., the group left the apartment and went to get something to eat.

Upon returning to the apartment, the complainant testified that she went to lay down on the futon in the living room. She had not yet moved her things into her bedroom. She immediately fell asleep, no doubt exhausted from 24 hours of packing, working and moving, with no sleep. While I did not find that the complainant was intoxicated, alcohol and marijuana likely contributed to her drowsiness. The others in attendance at the party continued to socialize.

At the trial, much was made of whether by inviting Mr. D. over at such a late hour when buses were likely to stop running, the complainant also invited Mr. D. to sleep over. In any event, at some point in the night, it seems that Mr. D. was given a mattress and permitted to sleep on the floor in front of the futon. He went to sleep on the mattress on the floor, while the complainant slept on the futon, and the complainant’s female friend slept on the second couch in the same living room.

The complainant woke to find Mr. D. positioned behind her on the futon, penetrating her with his penis. The complainant testified that she was frightened, as she didn’t know what Mr. D. would do. She attempted to feign waking up to see if he would stop; she “wiggled” until his penis fell out of her. Mr. D. then proceeded to masturbate while standing at the end of the futon. The complainant testified that she did not consent to any of the contact with Mr. D.

Mr. D. testified that he woke up aroused and attempted to shake the complainant awake. He testified that he saw her eyes open and he then climbed in behind her. Mr. D. testified that nothing was said but that the complainant touched his head in a way that suggested “she was into it.” Mr. D. testified that he caressed the complainant, took off the complainant’s pants, put on a condom and began intercourse. When questioned about why he stopped the intercourse and masturbated, Mr. D. explained that he felt that the complainant climaxed and that he has the problem of lasting too long during sex. Mr. D. testified that he had the complainant’s consent. D.D. agreed that there was never any verbal exchange but that he had relied on physical cues.

The court also had the benefit of the testimony from a common friend of the complainant and Mr. D. At the complainant’s request, the witness met with Mr. D. after the assault. Mr. D. told the witness that he had made a mistake and that he was embarrassed and disgusted with himself. At trial, Mr. D. claimed that the mistake and disgust he expressed was in reference to the fact that he had sex with the complainant, who was his friend’s girlfriend. This was not the testimony of the witness, who explained that the comments were regarding the assault of the complainant.

The Victim Impact Statement, filed as Exhibit 1, it’s a full two pages. I won’t read all of it. Suffice it to say that the complainant had the following mental health issues prior to the assault: bipolar type 2 disorder, borderline personality disorder and anxiety disorder. She was also diagnosed with post traumatic stress disorder as a result of the assault.

The complainant testified that she went into a downward spiral in the fall of 2010. She stopped taking her medications, stopped seeing doctors or attending classes. She testified that she began drinking heavily, almost daily, as a means of coping with what happened to her. The complainant was able to get help from doctors in February, 2011. However, by 2012, the complainant dropped out of school and moved home to her home in Hamilton for support and later she ended up in the emergency room of a hospital due a suicide attempt.

The background. Mr. D. is 26 years old and was born in St. Vincent in the Grenadines. He immigrated to Canada when he was 16 years old. He lived with his mother until he was four years old and then went to live with his biological father and paternal grandparents.

He told Sandra McKenzie, who prepared the pre-sentence report, which is filed as Exhibit 1, that his parents were never married and never lived together. I think it’s Exhibit 2. He also said that his upbringing was positive as there were no reports of domestic violence, substance abuse, sexual abuse or mental health concerns in the family home.

Mr. D. is single, has no children and resides with his maternal aunt in Brampton, Ontario.

Education. Mr. D. completed high school in Brampton, Ontario in 2006 and received two scholarships towards his university education. The United Achievers of Peels scholarship is designed to help black youth for post-secondary education and in Mr. D.’s case, it was based on academic excellence and community involvement. He received the Principal’s Award for his overall contribution to the Brampton Centennial School Community. While studying political science at Ottawa University, he was a dynamic volunteer with the numerous student organizations. I’d like to correct that to Carleton University, I believe. He discontinued his university education due to financial reasons in 2011, the year after this incident occurred.

Employment. Since 2011 Mr. D. had been employed on a contractual basis as a brand ambassador experimental marketing representative for a business. His job entails performing dynamic events ranging from commercials to product demonstrations for various national brands to raising brand awareness. On a seasonal basis, he also does door-to-door sales as an independent contractor. Because of his conviction, he had to quit his job working as an aide to a minister in the Conservative government.

Criminal Record. Mr. D. has no criminal record.

Behaviour. Drinking alcohol and smoking marijuana got Mr. D. where he is now. From the description of his character given by Miss C. herself, J.B., Mr. D’s mother, and his aunt F.A.A., I take it that this offence was out of character for D.D. Their description joins the description given for the pre-sentence report by Fred Litwin, who has known Mr. D. for five years and who described him as friendly, popular, helpful and a well-behaved person. It is obvious Mr. D. has the support of his family and friends.

In her report, Sandra McKenzie relates the following: “Regarding the offence before the court, the subject expressed remorse and takes full responsibility for his actions. He stated, “I don’t know what overcame me.” “I don’t know what I was thinking” and he also stated, “This is the worst thing I have ever done and wish it didn’t happen.” He mentioned that he may have read too much into his friendship with Miss C. and acknowledges that he was under the influence of marijuana and alcohol at the time of the offence.”

I have dealt with many offenders over the years and what Mr. D. told the probation officer is a rare occurrence and his remorse statements stands to his credit, a remorse that he has expressed in court this morning.

Principles of Sentencing. The Principles of Sentencing are well-known and are set out in s. 718, 718.1 and 718.2 of the Criminal Code of Canada.

As stated in R. v. Proulx, 2000 decision reported at 140 Canadian Criminal Cases, 3rd Series at 449,

Sentencing is an individualized process in which the trial judge has considerable discretion in fashioning a fit sentence. The rationale behind this approach stems from the principle of proportionality, 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. Proportionality requires an examination of the specific circumstances about the offender and the offence so that the punishment fits the crime. As a by-product of such an individualized approach, there will be an inevitable variation in sentences imposed for particular crimes.

The case continues to say,

The proper emphasis in sentencing for a sexual offence of this type is on deterrence and denunciation. In the circumstances of this case, where there is an identifiable peer group that is aware of both the offence the court proceedings, the need for general deterrence and its potential for effectiveness are heightened and the decision in Proulx quotes Madam Justice Feldman of the Ontario Court of Appeal in R. v. Kennedy, 1999 decision reported in Ontario Judgment Number 4278.

Section 724.1 of the Criminal Code was amended by Parliament on December 1st, 2007. It is noted that this offence involving Mr. D. happened on June 30th, 2010, after the amendment that precludes the imposition of a conditional sentence for serious personal injury offences.

Section 752 of the Code defines serious personal injury as,

An indictable offence, other than high treason, treason, first degree murder or second degree murder, involving

(i) the use or attempted use of violence against another person, or

(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person, and for which the offender may be sentenced to imprisonment for ten years or more.

Sexual assault under s. 271 of the Code carries with it a maximum sentence of ten years.

The mitigating factors. You are young and you are employed. You have faithfully followed your release conditions since given bail and that means a lot in this case because some six years have gone by. You have a positive pre-sentence report showing remorse and acknowledging the harm that you have done to your victim. The neutral factor is that your action was not planned or deliberate.

The aggravating factors. (1) The harm done to your victim as quoted in the report of the probation officer and in the Victim Impact Statement filed as Exhibit 1 this morning, (2) a sexual assault on a semi-conscious woman.

The position of the Crown. The Crown seeks a sentence of incarceration in the upper reformatory range of two years less a day, followed by two years of probation and some related orders. Crown counsel reminds me that Mr. D. was not remorseful when he testified at trial. While it is not the worse case of sexual assault on the books, it had a devastating effect on Miss C. Mr. D. must take his victim with all the weaknesses that she had. She was a very vulnerable person.

The position of defence. The defence seeks a sentence of 12 to 18 months with two years of probation. Mr. D. is at low risk for recidivism and the court should concentrate on rehabilitation. Defence counsel provided information received from the Ontario Correctional Institute at Brampton, Ontario. In that facility rehabilitation is a primary target as psychologists educate and counsel offenders in developing a pro-social thinking and decision-making so that an offender can stay out of conflict with the law when released. Defence counsel stresses that the offence occurred over a short period of time. The occupants of the apartment had all consumed alcohol and the offender and the complainant had smoked marijuana.

As the defendant told the probation officer, he misread the complainant’s friendliness with him. The complainant awoke to find Mr. D. penetrating her vagina from the rear and she wiggled until she pushed him off. He then stood up and did not persist in penetrating her.

It also is to be underlined that both were not strangers.

My decision. The remorse shown by the offender allows the court to impose a lesser sentence. There is no evidence that the offender is a danger to the community. A sentence of incarceration would fall into the reformatory range and would qualify Mr. D. to be released to a period of probation following serving his sentence.

The Crown stresses that although a conditional sentence might be within the range of the broad range of sentences, because of the change in the law, conditional sentences are not open to him.

The court accepts the Crown’s position that denunciation is very important in this case. There are too many offences of this nature and the public must know that they will not be tolerated. Some of Mr. D.’s evidence was reviewed at the start of this decision. He first attempted to get away from responsibility for this offence before owning up to his repugnant conduct when interviewed by the probation officer. Mr. D. took advantage of the complainant’s generosity in letting him remain in her home since the buses no longer operated in the early hours of the morning when the incident took place.

Having considered the aggravating and the mitigating factors, the submissions of counsel and the pre-sentence report, I find that a period of incarceration is necessary notwithstanding the offender’s diligence in maintaining employment. My impression is that Mr. D. is not a predator but that he misread the complainant’s intentions. The end result is that the complainant has suffered a great deal emotionally.

Stand up, Mr. D. As you have already addressed the court this morning, I am now sentencing you to 12 months in the reformatory to be followed by a probation period of two years. In addition to the statutory term, within one week of your release you will report to a probation officer and thereafter as often as directed by that officer. You will attend and participate in any assessment or counselling for alcohol problems as directed by your probation officer. You will refrain from communicating directly or indirectly with the complainant and will not visit her residence or place of employment. In addition, there will be a probation order pursuant to s. 109 of the Criminal Code for a period of ten years. That’s a probation against carrying any kind of arms. An order pursuant to s. 487.051 to provide forthwith a sample for the DNA bank data and order that the offender comply forthwith with the Sex Offender Information Registry Act for 20 years, as mandated by the Criminal Code. The victim surcharge of $100.00 is waived as you are not going to be working for at least a year. A copy of these reasons will be sent to the Correctional Services so that they can understand that you are an excellent candidate for rehabilitation and their program can assuredly help you to return to society as an honest person. You understand all that? Thank you. You may be seated. Any comments as a result of what I’ve just said?

MR. DEVENZ: Did you indicate in the probation order for two years that he execute all waivers necessary to allow his probation officer to maintain....

THE COURT: I think that’s in the order that I signed.

MR. DEVENZ: Is it in the order? Okay, that’s fine. If that’s it, that’s the only comment that I make.

THE COURT: Can I see it?

MS. DOSTALER: Just to clarify, to sign any waivers....

MR. DEVENZ: Sign any waivers necessary to....

MS. DOSTALER: So that they can comply with any programs.

MR. DEVENZ: Yes.

MS. DOSTALER: Thank you.

MR. DEVENZ: Otherwise some third party agencies will not release information to the probation officer. That’s something we have learned in the Ontario Court of Justice. Thank you, sir.

THE COURT: Ms. Dostaler?

MS. DOSTALER: No, I wanted to confirm it as a specific recommendation on your part that he attend the Ontario....

THE COURT: In Brampton, Ontario.

MS. DOSTALER: Thank you.

THE COURT: Because it’s close to his home to boot.

MS. DOSTALER: Yes.

THE COURT: And plus that program is very tailored to his needs.

MS. DOSTALER: Thank you, Your Honour.

THE COURT: Thank you. I’ll be up in chambers to sign whatever you need.

MR. DEVENZ: Thank you, Your Honour.

THE COURT: I’d like to thank counsel for their able presentations.

MS. DOSTALER: Thank you, Your Honour.

FORM 2

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))

Evidence Act

I, Nancy White, certify that this document is a true and accurate transcript of the recording of R. v. D. in the Ontario Court of Justice held at Ottawa, Ontario taken from Recording No. 0411_CR33_20150401_091407_10_LALONDP which has been certified in Form 1.

Date (signature of authorized person(s)