R. v. Mullins, 2015 ONSC 1724
COURT FILE NO.: CR 14-30000382-0000
DATE: 20150324
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MICHAEL MULLINS
Defendant
A. Sabbadini, for the Crown
J. Rosen, for the Defendant
HEARD: January 29, 2015
MOLLOY J.:
REASONS FOR SENTENCE
A. INTRODUCTION
[1] I convicted Michael Mullins of sexual assault and of administering a stupefying drug for the purposes of committing that assault. His victim (A.S.) was 18 years old and a close friend of his own daughter. He lured his victim into his truck on the pretext that he needed help shopping for a present for his daughter’s birthday. He then gave her an iced cappuccino and a marijuana cigarette, either or both of which were laced with enough benzodiazepines to render her unconscious. He kept her in that state for over 12 hours, during the course of which he brutalized her, including having violent unprotected sexual intercourse with her. The next morning, he dropped her off outside her father’s home, battered and bruised, and still feeling the effects of the drugs he had given her.
[2] Mr. Mullins testified in his own defence at trial. He denied any contact at all with A.S. on the night of the assault. His explanation for the presence of his semen in her vagina was that she had consensual unprotected sex with him on the night of November 20th, in his living room while his daughter was sleeping upstairs. He also claimed to have had consensual sexual intercourse with A.S. on three other occasions, each of them being in his house while his daughter was sleeping upstairs. A.S. denied ever having consensual sex with Mr. Mullins. I did not believe Mr. Mullins. He never had consensual sexual intercourse with A.S. The only time he ever had sex with her was after he drugged her into unconsciousness on the night of November 22 and in the early hours of November 23.
[3] The Crown seeks a sentence in the upper single digits. Defence counsel accepts that a penitentiary term is appropriate, but submits that the range is three to six years, with Mr. Mullins being at the mid to upper level of that range.
[4] In my view, the seriousness of these offences and the many aggravating factors warrant a global sentence of nine years. My reasons for that sentence are set out below.
B. CIRCUMSTANCES OF THE OFFENCE
[5] The sexual assault began on the evening of Monday, November 22, 2010 and continued into the morning of Tuesday November 23, 2010. Mr. Mullins was 47 years old at the time. The victim of the assault, A.S., was 18 years old and a close friend of Mr. Mullins’ daughter, Katlyn.
[6] A.S. knew Mr. Mullins quite well, having spent many sleepovers at his home after going out with Katlyn. Mr. Mullins had arranged to meet A.S. on the evening of November 22nd, with the ruse that he would take her shopping to help him purchase a birthday present for Katlyn. When A.S. got into Mr. Mullins’ truck, he presented her with a Tim Horton’s iced cappuccino and a marijuana cigarette, warning her that she might detect an odd taste on the cigarette because he had spilled some of his daughter’s perfume on it. She drank about half of the cappuccino and smoked some of the marijuana, but then passed out, while still in the truck. Mr. Mullins dropped A.S. off at her home the next morning at about 9:30 a.m. She had no memory of what had happened to her, apart from a few short snatches of memory in some location that was unfamiliar to her but which contained a bed and a shower. In those brief moments, she recalled seeing Mr. Mullins and hearing his voice, but nothing else.
[7] When A.S. arrived home, she was weak and disoriented. She had trouble speaking properly, concentrating, and remembering simple things. She was unsteady on her feet and had difficulty even sitting upright in a chair. She also had many unexplained injuries, mainly scrapes and bruises, which had not been there the day before. In particular, the physical examination conducted at the hospital showed the following:
• an area of tenderness above the left eye
• two bruises, each 2 x 1.5 cm at the back of the upper left shoulder
• a 1.5 cm bruise to the right inner arm
• a 2 cm x 3.5 cm bruise below the right elbow
• an area of tenderness at the back of the left arm above the elbow
• a 4 x 3 cm bruise below the left elbow
• three linear abrasions, with swelling, on the right hip, measuring 4 cm, 5 cm and 6 cm in length
• a 2 x 2 cm bruise below the abrasions on the right hip
• a 7 x 5 cm bruise on the left hip with a central crusted abrasion 4 cm long
• a 1 x 3 cm bruise just above the right knee
• a 5 x 2 cm bruise on the right kneecap
• a 3 x 1.5 cm bruise just above the left kneecap
• a 2 x 1 cm bruise just below the right knee cap
• a 5 x 4 cm bruise in the area at the front of the right foot
• an area of bruising at the front of the right foot, close to the ankle, measuring 7.5 cm long and 3 cm across
• a 2 x .5 cm linear abrasion on the outside of the left foot near the ankle
• a 9 x 2 cm bruise across the toe area of the right foot
• a 2 x 1.5 cm bruise on the inside of the left foot, just above the toes
• a 4 x 1 cm bruise above the toes of the left foot
• a 1 cm jagged vaginal tear
[8] Of these, the most significant injuries were the bruising and abrasions to both hips, the extensive bruising at the front of both feet, and the jagged tear at the entry to the vagina. The vaginal injury had long term sequelae, including an infection and problems that were ongoing even as of the date of trial, five years after the attack.
[9] Mr. Mullins’ semen was in A.S.’s vagina.
[10] Forensic testing revealed the presence of three types of Benzodiazepine drugs (Valium, Restoril, and Oxazepam) in A.S.’s urine. Oxazepam is a metabolite of the other two drugs and would not have been administered directly. Valium is an anti-anxiety medication available only by prescription. Restoril is a sleeping pill, also available only by prescription. Mr. Mullins had prescriptions for both Valium and Restoril.
C. CIRCUMSTANCES OF THE OFFENDER
[11] Michael Mullins was born in April 1963. He was 47 years old at the time of these offences, and is now nearly 52. He was born in Prince Edward Island, the fifth child in a family of ten, but spent periods of his childhood in orphanages and as a ward of the Children’s Aid Society. He dropped out of school after Grade 8, but he said at the time of sentencing that he has subsequently accumulated the equivalent of Grade 12.
[12] At the time of the offences, Mr. Mullins owned and operated his own business installing and repairing overhead doors in residences and commercial premises, and also doing other construction work. He owned his own home on Midland Avenue in Toronto, and also, according to him, a house in P.E.I, which he said had been left to him by his mother. Mr. Mullins has a heart condition for which he is on medication. He reports having had two heart attacks prior to 2010, but no medical information was filed at sentencing so I am unaware if he has any serious ongoing health concerns.
[13] Mr. Mullins has one daughter, Katlyn, who is now 22 years old. She testified at trial that her mother had substance abuse issues and that she was in the sole custody of her father since she was six years old (which would have been since 1997). She was still living with her father at the time of these offences, but now has her own apartment. She is clearly very attached to her father, and he to her. Apart from his criminality, he appears to have been a good father.
[14] Mr. Mullins’ criminal record started in 1980, when he was 17 years old, and continued fairly steadily until 2004. He has no convictions between 2004 and the date these offences were committed in 2010. He also has no convictions for anything of a sexual nature, although there are crimes of violence on his record. Up until now, his longest custodial sentence has been three months. In March 2012, Mr. Mullins was convicted of breaching the conditions of his bail in relation to these charges. His criminal record consists of the following:
Oct. 1980 – break, enter and theft, for which he received a suspended sentence and 12 months probation
Feb. 1983 – mischief to private property, $100 fine
Sept. 1983 – break, enter and theft, for which he was sentenced to a $300 fine, $138 restitution, and 12 months probation
May 1984 – personation with intent (which he explained was because he gave a false name to police because he was “young and stupid”), with a sentence of 60 days
Dec. 1984 – false pretences (passing a bad cheque), with a sentence of 30 days
Dec. 1984 – theft under $200 (gasoline), escaping lawful custody and driving with over 80 mg of alcohol in his blood, for which he was sentenced to a total of 60 days in custody and a fine of $800
Dec. 1984 – theft of an automobile and failing to remain at the scene of an accident, with a total sentence of 120 days
Oct. 1985 – possession of a narcotic (marijuana), with a fine of $800
Jan. 1990 – possession of stolen property (copper pipes which he testified he did not know were stolen, but to which he pleaded guilty at the time), with a fine of $500 and surcharge $75
Apr. 1992 – possession of a narcotic (marijuana), a sentence of $800
Feb. 1994 – public mischief (which he said was drinking in a restaurant, fighting with a guy there and then giving a false name), for which he was sentenced to $200
Oct. 1995 – impaired driving, with a sentence of $900, surcharge of $135, and a 6 month driving prohibition
Mar. 1998 – two counts of assault with a weapon with a total sentence of 90 days intermittent and 12 months probation (According to Mr. Mullins this incident involved his ex-wife and his sister. He was drunk and high on drugs. When his ex-wife asked him to leave he pulled a knife and threatened to kill her. His sister came to his ex-wife’s defence, whereupon he held her down and threatened to kill her as well. His ex-wife’s mother called the police).
Apr. 1998 – obstruct police (lied about his name), fine of $425
May. 2000 – obstruct police (lied about his name), fine of $250
Mar. 2001 – impaired driving, 90 days intermittent and 3 years’ probation
Oct. 2001 – traffic in Schedule II substance (sold marijuana to an undercover officer), for which he was sentenced to 11 days intermittent on top of 2 days pre-sentence custody, plus probation
Sept. 2003 – uttering threats and assault with a weapon, with a sentence of a total of 120 days intermittent on top of 10 days pre-sentence custody, plus 12 months probation (Mr. Mullins explained that he became angry when a traffic enforcement officer was putting a parking ticket on his truck, threatened to kill him if he ever ticketed him again, and threatened him with a long pole with a squeegee on the end of it).
Jan. 2004 – obstruct police, fined $500
Mar. 2012 – fail to comply recognizance, with a sentence of 4 days pre-trial custody plus one day.
D. AGGRAVATING AND MITIGATING FACTORS
[15] In determining a fit sentence, I am required to consider the mitigating and aggravating circumstances.[^1]
Mitigating Factors
[16] There are no strong mitigating factors.
[17] Mr. Mullins had sole custody of his daughter from the time she was six years old, so since 1997. He has a good relationship with her, which is in his favour. However, notwithstanding that responsibility, he committed numerous criminal offences after that date, including: a serious assault charge involving a knife and death threats against his ex-wife and sister; impaired driving; trafficking marijuana to an undercover officer; assaulting and threatening a traffic by-law enforcement officer; and several incidents of obstructing police officers by providing a false name. He did not receive a significant custodial sentence for any of those offences, which the defence suggests is an indication that they were not that serious. I doubt that. It is just as likely an indication that judges were lenient because of his responsibilities as a sole parent and the sole financial support for his daughter.
[18] Mr. Mullins has some health issues, particularly with respect to his heart condition. However, I do not see that as a factor reducing his sentence in the absence of evidence to support such a reduction.
[19] As a result of these charges, Mr. Mullins has lost his business, and has had to sell his house.
Aggravating: Criminal Record
[20] Mr. Mullins’ criminal record is an aggravating factor, both because of its length and the nature of some of his crimes, particularly the crimes of violence. That said, I note the absence of any offences between 2004 and 2010 and the fact that his sentences have been lenient, usually intermittent, and that his longest time in custody prior to these offences was three months. Also, there are no prior sexual offences, which, if they existed, would have rendered the criminal record more aggravating.
Aggravating: Nature of Relationship with Victim
[21] The Crown submits that Mr. Mullins, “in committing the offence, abused a position of trust . . . in relation to the victim,” which is deemed to be an aggravating factor under s. 718.2 of the Criminal Code. The defence argues that there was no such relationship between Mr. Mullins and A.S., pointing out that he is not a relative, had no custodial control, and had no relationship with her other than as the father of her friend. The Criminal Code states:
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,
shall be deemed to be aggravating circumstances;
[22] The term “position of trust” is not defined in the Criminal Code. However, since the term “position of authority” is included as an alternative, it follows that a position of trust does not necessarily carry with it any actual authority over the victim. In R. v. Audet,[^2] the Supreme Court of Canada considered what relationships would be encompassed by the term “position of trust,” as used in s. 153(1)(a) of the Criminal Code (sexual exploitation). In my view, the same general principles are relevant to the determination of what constitutes a “position of trust” under s. 718.2 for purposes of sentencing. A number of judges of this Court have also relied on Audet for this purpose.[^3]
[23] In Audet, the Supreme Court of Canada noted that the concept of a “position of trust” is difficult to define in the abstract in the absence of a factual context. However, it is relevant to look at the ordinary meaning of the words used, as well as their purpose and the objective of the legislation. Justice LaForest, writing for the majority, found that “trust” involved “confidence in or reliance on some quality or attribute of a person.”[^4] Further, he noted, at para. 36:
I would add that the definition of the words used by Parliament, like the determination in each case of the nature of the relationship between the young person and the accused, must take into account the purpose and objective pursued by Parliament of protecting the interests of young persons who, due to the nature of their relationships with certain persons, are in a position of vulnerability and weakness in relation to those persons.
[24] Justice LaForest referred with favour to the decision of Blair J. (as he then was) in R. v. P.S., and quoted from it as follows:[^5]
One needs to keep in mind that what is in question is not the specialized concept of the law of equity, called a “trust”. What is in question is a broader social or societal relationship between two people, an adult and a young person. “Trust”, according to the Concise Oxford Dictionary (8th ed.), is simply “a firm belief in the reliability or truth or strength of a person”. Where the nature of the relationship between an adult and a young person is such that it creates an opportunity for all of the persuasive and influencing factors which adults hold over children and young persons to come into play, and the child or young person is particularly vulnerable to the sway of these factors, the adult is in a position where those concepts of reliability and truth and strength are put to the test. Taken together, all of these factors combine to create a “position of trust” towards the young person. [Emphasis added by the Supreme Court of Canada.]
[25] Ultimately, the Supreme Court concluded that the analysis must be fact specific, but that relevant factors would be the age difference, the evolution of the relationship and the status of the accused in relation to the victim. Justice LaForest wrote, at para. 38:
It will be up to the trial judge to determine, on the basis of all the factual circumstances relevant to the characterization of the relationship between a young person and an accused, whether the accused was in a position of trust or authority towards the young person or whether the young person was in a relationship of dependency with the accused at the time of the alleged offence. One of the difficulties that will undoubtedly arise in some cases concerns the determination of the times when the “position” or “relationship” in question begins and ends. It would be inappropriate to try to set out an exhaustive list of the factors to be considered by the trier of fact. The age difference between the accused and the young person, the evolution of their relationship, and above all the status of the accused in relation to the young person will of course be relevant in many cases.
[26] Applying those principles to the case before me, I find that in assaulting A.S. as he did, Mr. Mullins abused his position of trust in relation to her. There are no air-tight compartments as to what may constitute a position of trust. The factual context is the most important part of the analysis. Mr. Mullins was 47 years old at the time of this offence; nearly 30 years older than A.S. He was the father of her close friend, and A.S. thought of him in that sort of parental role. He had no actual authority over her, but she frequently spent nights and weekends at his home with her friend Katlyn, and in that sense was from time to time under his control. He befriended her at a time when he knew she was particularly vulnerable due to the breakdown of her parents’ marriage. He gave her gifts, joked around with her, shared marijuana with her, and their relationship evolved into one where she trusted him. It was as a result of that trust that he was able to lure her into his truck with a story about shopping for a birthday present for his daughter. Completely unsuspecting and having absolute trust in her friend’s father, A.S. was tricked into a position of vulnerability and then horribly abused. In my view, these circumstances fall squarely within the notions of “trust” referred to in Audet, and within the purpose and intention of this sentencing provision in the Criminal Code.
[27] Further, I believe this conclusion is supported by other decisions on this issue. For example:
(a) in R. v. Budd,[^6] the Ontario Court of Appeal upheld a decision that a lawyer who owned an adjoining farm to the parents of two teenage girls and who became a family friend was in a “position of trust” with respect to the girls;
(b) in R. v. P.E.S.,[^7] a 44-year-old man was found to be in a position of trust in relation to a 17-year-old player on the girls’ hockey team he coached;
(c) in E.R.F.,[^8] a trusted family friend was found to be in a position of trust over an 11-year-old;
(d) in R. v. T.R.[^9] two families were very close friends, with the result that a position of trust was found to exist between the adult male father of one family in relation to the 14-year-old daughter of the other family.
[28] Accordingly, I conclude that Mr. Mullins lured A.S. into peril by using his position of trust, and then abused that trust by drugging her and violating her physically and sexually. Given that conclusion, I am required by s. 718.2 of the Criminal Code to treat this as an aggravating circumstance in sentencing.
[29] However, even if I am wrong about the relationship between Mr. Mullins and A.S. being a “position of trust” within the meaning of s. 718.2, I would nevertheless find that the circumstances of this assault are aggravating. This section of the Criminal Code specifies that the listing of circumstances “deemed” to be aggravating are not to be taken as having restricted the general provision that the sentencing judge is to take into account all aggravating factors. Mr. Mullins preyed on his daughter’s 18-year-old friend, befriended her, lulled her into a false sense of security, tricked her into thinking she was going out to purchase a birthday gift for her friend, and then assaulted her in the most brutal manner. Such conduct was a horrible betrayal of the trust and confidence A.S. had reposed in him and is a seriously aggravating factor in sentencing. I note as well that, according to A.S., one of the most traumatizing aspects of her ordeal has been the fact that somebody she trusted would do this to her.
[30] Accordingly, whichever route is used to get to this result, I find this factual context to be a seriously aggravating factor.
Aggravating: Premeditation
[31] This crime was premeditated and deliberately planned over a period of time. This is not a situation where the offender, in a moment of weakness or under the influence of intoxicants, committed an offence that was out of character for him. Mr. Mullins made a plan. He had lots of time to abandon that plan, but instead he continued with it in a cold and calculated manner, indifferent to the suffering of his victim, driven only by his own gratification. This is a seriously aggravating factor.
Aggravating: Danger to Life
[32] Urinalysis established the presence of three benzodiazepines in A.S.’s system: Diazepam (known by the generic name Valium); Temazepam (known by the generic name Restoril); and Oxazepam. At trial, I heard expert evidence from a forensic toxicologist, Patricia Solbeck, as to the effects of these drugs. Her evidence was essentially unchallenged and I accept it.
[33] There was no way to establish from the urinalysis which specific drugs were given to Ms. S., or in what quantity. Valium, after it is ingested, will metabolize as Temazepam and then Oxazepam. Temazepam will metabolize as Oxazepam. The presence of Diazepam (Valium) in the urine establishes that, at a minimum, A.S. was given this drug. She might also have been given Temazepam (Restoril), and in the opinion of Ms. Solbeck, that is likely to have been the case. When the opinion of Ms. Solbeck is combined with the facts as I have found them at trial, I conclude that Ms. S was given both drugs. She was unconscious after drinking only half the iced cappuccino Mr. Mullins gave her and taking only a few drags on the marijuana cigarette.
[34] Benzodiazepines act as central nervous system depressants. Valium is prescribed therapeutically to reduce anxiety. Restoril is a sleeping pill. If they are taken together, the effects are increased. Also, if they are dissolved in liquid, they become faster-acting. In non-therapeutic doses, benzodiazepines can cause sleepiness, memory impairment, loss of motor control, dizziness, lack of coordination, and confusion. Ms. S. had all of these symptoms on the morning after her assault, and throughout that day. The higher the dose of the benzodiazepines given, the greater the possibility of anterograde amnesia, with the person under the influence of the drug having no memory of what happened to her. Ms. S. also had this symptom. When taken in excessive quantities, benzodiazepines will cause symptoms from drowsiness, to lack of consciousness, to a comatose state. Ultimately, they can be fatal.
[35] It is impossible to know how far along that continuum Ms. S progressed. However, given that she lost consciousness so quickly, it seems likely that the initial dosage Mr. Mullins gave her was a high one. Further, given that she was unconscious for at least 12 hours without any memory of what he did to her and given the extent of the injuries he inflicted upon her during that time without her awareness, either the initial dose was extraordinarily massive, or else subsequent doses were administered. The anterograde amnesia experienced by Ms. S. also supports the conclusion that Mr. Mullins gave her very large doses of this medication.
[36] It is not possible to say if Ms. S. was in a comatose state during this period of time, or how close she came to death. What is clear, however, is that Mr. Mullins was engaged in a highly dangerous exercise that could have resulted in death for this vulnerable 18-year-old girl. That is a seriously aggravating factor.
Aggravating: Prolonged Nature of the Assault
[37] Mr. Mullins picked A.S. up at sometime between 7:00 and 9:00 p.m. and dropped her off at about 9:30 a.m. the next morning. The prolonged nature of the crime is an aggravating factor, particularly when coupled with the attendant dangers associated with using drugs to keep Ms. S. unconscious during that time.
Aggravating: Gratuitous Violence
[38] Ms. S.’s body was covered in bruises, particularly to her hip, knees and feet. Her vagina was torn. It is unclear whether Mr. Mullins inflicted those injuries purposefully on a completely unconscious and unresisting victim, just to be brutal and to cause pain, or whether Ms. S. was struggling even in her unconscious or semi-conscious state. Given the requirement that aggravating factors be proven beyond a reasonable doubt, I will assume the latter. However, even in that scenario, the extent of the physical injuries Mr. Mullins inflicted on this young woman is a seriously aggravating factor.
Aggravating: Exposure to Disease and Unwanted Pregnancy
[39] Mr. Mullins’ semen was found in Ms. S.’s vagina. That means that the sexual intercourse he had with her was unprotected, leaving her vulnerable to the risk of disease and unwanted pregnancy. That is an additional aggravating factor.
Aggravating: Emotional and Physical Impact on the Victim
[40] Every sexual assault has a negative impact on the victim. However, any impact that goes beyond what is ordinarily attendant as a result of such an assault is an aggravating factor in sentencing. In this case, the impact has been profound. The physical injuries sustained by A.S. at the time of the assault were significant. The vaginal tear resulted in an infection and has been an ongoing problem for her, even as of the date of trial. Due to her emotional difficulties following the assault, she was unable to work and her educational plans were interrupted.
[41] A.S. wrote a Victim Impact Statement that can best be described as heart-breaking. In her statement, A.S. describes the assault as “a traumatic experience that changed my life and my self-image.” She reports that as a result of the offence she has “struggled with depression, trouble sleeping (including recurring nightmares), flashbacks, trouble eating, and lethargy.” She has “been made to feel vulnerable,” whereas she used to feel “strong and confident.”
[42] She also explains poignantly the particular impact she experienced knowing this was done to her by someone she trusted, as follows:
I feel responsible for the guilt of others, including my parents. They educated me about personal safety and being aware of my surroundings. I never believed it would be me, happen in this way, or by someone I trusted. This has changed the way I interact with people, especially men. I have developed a discomfort, and I find myself always question[ing] my faith in others.
E. DENUNCIATION, DETERRENCE AND REHABILITATION
[43] Defence counsel fairly concedes that the nature of these offences requires an emphasis on denunciation and deterrence in considering the appropriate sentence. It is those factors that mandate a penitentiary term in this case. However, that does not mean that the prospects of rehabilitation are irrelevant. It is difficult to quantify that prospect in this case in light of Mr. Mullins’ denial that the offence ever occurred and his testimony that Ms. S. had consensual sex with him on four separate occasions. I have no information on the specific programming that may be available for Mr. Mullins, or the extent to which he would have to demonstrate some insight before he would be able to benefit from them. Mr. Mullins clearly has anger management issues, as demonstrated by his criminal record and his behaviour while in custody at the police station after his arrest. He may also have a substance abuse issue. Obviously, he also has issues with respect to his dealings with women. That said, these offences are the first crimes of this nature on Mr. Mullins’ criminal record. I am therefore cautiously optimistic that he can be steered away from any recurrence of this type of offence.
F. PARITY IN SENTENCING
[44] To the extent possible, similar offenders should receive similar sentences for similar offences committed in similar circumstances.[^10] This is a principle that is far easier to state than it is to apply. In reality, no two offenders are the same and the circumstances in which crimes are committed are infinitely variable. However, consistency in sentencing is important; wildly disparate sentences for similar offences must be avoided. To this end, I have considered carefully the cases suggested to me by counsel as being similar, as well as some other cases. There is no case on all fours with this one. However, some are instructive.
[45] The Ontario Court of Appeal’s decision in R. v. D.D.[^11] is a landmark decision in the sentencing of sexual assault cases. In that decision, Moldaver J.A. (as he then was) set out appropriate ranges for sexual offences against children involving breaches of trust. He held as follows at para. 44:
To summarize, I am of the view that as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms. When the abuse involves full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats of physical violence, or other forms of extortion, upper single digit to low double digit penitentiary terms will generally be appropriate. Finally, in cases where these elements are accompanied by a pattern of severe psychological, emotional and physical brutalization, still higher penalties will be warranted. (See, for example, R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, 105 C.C.C. (3d) 327 in which the Supreme Court restored the 25-year sentence imposed at trial and R. v. W. (L.K.) (1999), 1999 CanLII 3791 (ON CA), 138 C.C.C. (3d) 449 (Ont. C.A.) in which this court upheld a sentence of 18 and a half years imposed at trial.)
[46] The D.D. case involved four complainants. However, the Court of Appeal subsequently emphasized in R. v. D.M. that “although Moldaver J.A. referred to ‘children’ in the plural, it is the conduct that is aimed at; while the number of victims will be a factor, the instruction from D.D. does not become inapplicable where there is only one victim.”
[47] I recognize that the D.D. ranges are not directly applicable in the case before me. For one thing, A.S. was not a “young child.” On the other hand, age is a continuum. A.S. turned 18 in March 2012 and was assaulted in September. Although not a “young child,” neither was she a mature adult, and she was in a position of great vulnerability. There was only one incident of assault, not numerous incidents over a period of years as contemplated in D.D. However, that one incident involved brutal violence, a full sexual assault with physically damaging sexual intercourse, a prolonged period of confinement while the assault was being perpetrated, and the inherently dangerous addition of the stupefying drugs. I see this case as falling within the general parameters of the ranges discussed by Moldaver J.A. in D.D.
[48] The Crown relies on R. v. L.G.,[^12] in which a 60-year-old man who was a photographer had sexual intercourse with a 39-year-old female friend and model after he had slipped GBH (the “date rape drug”) into her glass of red wine. He also photographed the complainant in various sexual acts, both with him and a male friend of his. He was sentenced to the equivalent of 6 ½ years for sexual assault and administering a stupefying substance. This sentence was upheld by the Ontario Court of Appeal without much discussion of the particulars. The Court of Appeal held at para 12:
While we viewed the sentence imposed as stiff, we were not persuaded that it was outside the range. The appellant had a prior record for sexual assault and the trial judge identified numerous aggravating factors to justify the sentence he imposed, not the least of which is that this was a planned crime involving the administration of a dangerous drug.
[49] It is difficult to draw much from this decision in light of the limited details provided. However, it appears from the factum filed on that appeal that the aggravating factors included a prior sexual assault, the fact that no condom was used, the life-threatening aspect of using GBH, and the fact that a third party was permitted to watch. Mr. Mullins does not have a prior conviction for sexual assault, although his criminal record shows a history of criminality that is more extensive than the accused in L.G. I find the circumstances of the case before me to be worse than L.G., in that A.S. was only 18 years old, a breach of trust was involved, the crime involved greater premeditation, and the assault itself was far more violent.
[50] In R. v. Ajimotokan,[^13] the trial judge imposed a sentence of 5 years for sexual assaults on two separate women in the same year. The assaults involved forced fellatio and were planned, in that the offender took his victims to places he had previously selected. In one instance, he attempted to rape his victim. However, the trial judge also found many mitigating factors, including that the offender was only 23 years old, had no criminal record, was registered in a college business management program, had a supportive family and concrete plans for moving his life forward in a positive manner by working in the family business. The trial judge also noted that there was no evidence that the offender had otherwise been involved in a criminal lifestyle. The Court of Appeal upheld the sentence with a short endorsement, but stated that the trial judge erred in stating that the range for such an offence could be as low as a reformatory term. The Court of Appeal stated, “Given the circumstances of this case, the sentence imposed was lenient and reflected the appellant’s youth and lack of record.”[^14]
[51] Although there were two complainants in the Ajimotokan case, the facts in that case do not approach the aggravating factors present in Mr. Mullins’ situation. The victims were not drugged, they were not raped, and they did not sustain the degree of physical injury to which A.S. was subjected. Unlike Mr. Ajimotokan, Mr. Mullins is not a youthful first-offender; he was nearly 30 years older than his victim, and he was in a position of trust in relation to her. His circumstances deserve a far more significant sentence.
[52] The defence relies upon the decision of Fuerst J. in R. v. S.B.,[^15] a case that is highly unusual on its facts. The offender planned to sexually assault his 16-year-old niece who had been entrusted to his care while her father was on vacation. He attempted to get her drunk by giving her shots of vodka, but she became fearful, barricaded herself in her room, and called police. The police arrived before any assault took place. S.B. was so drunk that the police had to take him directly to hospital. In the ensuing investigation, it was learned that the offender had installed a webcam in his bathroom and had been surreptitiously filming his niece, his own daughter and other teenagers for a period of six years. Other child pornography was also found in his possession. He was charged with: attempting to administer a substance to enable the commission of an indictable offence; attempted sexual assault; attempting to make child pornography; voyeurism; and possession of child pornography. He pleaded guilty and was remorseful. He had no prior criminal record. On a joint submission, Fuerst J. imposed a sentence of three years. In doing so, she emphasized the following mitigating factors at para. 37:
S.B. is a first offender.
He pleaded guilty, which is a sign of remorse and willingness to take responsibility for his offences. He told the pre-sentence reporter that he is deeply remorseful, and holds himself responsible for his actions.
By pleading guilty, S.B. spared at least his niece from having to testify at either a preliminary hearing or a trial, and saved court time in two different judicial centres.
His cooperation with the police resulted in the discovery of the webcam camera.
He has the support of his father and siblings, which will assist in his rehabilitative efforts.
[53] Further, Fuerst J. noted as follows at para. 38:
I agree with Crown and defence counsel that even though S.B. is a first offender, he must be sentenced to a substantial jail term because of the seriousness of his offences. I am satisfied that the joint submission put to me by experienced Crown and defence counsel reflects the primacy of denunciation and deterrence, and properly balances the various aggravating and mitigating factors in this case, while having regard to the principle of totality.
[54] I do not consider this decision to be of any precedential value for the case before me. The young woman in S.B. was not drugged into unconsciousness and was not assaulted, either sexually or physically. Her circumstances are simply not equivalent to what happened to A.S. in the case before me, whatever might have been the ultimate plan of her uncle. The main offences for which he was sentenced were the child pornography charges. He had no prior criminal record, which distinguishes him from Mr. Mullins. However, most significantly, he pleaded guilty and expressed remorse. The trial judge specifically took into account the fact that his guilty plea spared his niece from having to testify at the preliminary hearing and trial. Mr. Mullins did not plead guilty. A.S. was not spared the ordeal of testifying at the preliminary hearing and trial. Further, Mr. Mullins alleged that she had engaged in consensual sexual intercourse with him on four occasions, that she had twice attempted to extort money from him, and that she had accused him of sexual assault as revenge for his refusal to pay up. She could be forgiven for feeling like she was the one on trial. I do not say that in order to punish Mr. Mullins for pleading not guilty and putting the Crown to the proof of its case. That is his right. It is not an aggravating factor that he pleaded not guilty. However, it is a factor that distinguishes the case before me from those cases in which the offenders did plead guilty, were remorseful, and were given the benefit of that mitigating factor in sentencing.
[55] Finally, and most importantly, as noted by Fuerst J., this was a joint submission supported by two experienced counsel. It would take unusual circumstances for a trial judge to go behind a joint submission unless it would be offensive to the public interest. I do not find this decision to be of any assistance in determining the fit sentence for Mr. Mullins.
[56] The defence also relies on the decision of Archibald J. in R. v. Bell.[^16] The offender in that case put a stupefying drug into the drinks of a female friend and her boyfriend, moved them into a bedroom and proceeded to sexually assault both of them. Both complainants went in and out of consciousness and could remember bits and pieces of what was happening to them, but were powerless to do anything. The Crown sought a sentence of four to five years; the defence sought a conditional sentence. Justice Archibald imposed an effective sentence of four years. In doing so, he referred extensively to mitigating factors, including the fact that Mr. Bell was a youthful first offender (aged 25). His mother suffered from a serious physical illness and Mr. Bell looked after her at home. He had a supportive family and stable employment. He acknowledged a drug and alcohol problem, for which he was seeking treatment. An opinion of a forensic psychologist was filed at sentencing, indicating that Mr. Bell was at a low risk to reoffend.
[57] Mr. Mullins does not have the advantage of these significant mitigating factors. Further, his conduct was more egregious given his age, his relationship to the victim, and the serious and gratuitous injuries he inflicted upon her. Parity of sentencing would require that he receive a substantially higher sentence.
[58] In my view, when adjustments are made for the way in which these precedents are similar to and different from Mr. Mullins’ situation, the principle of parity does not support the range of three to six years suggested by defence counsel. On the contrary, the parity principle supports the Crown’s submission that the appropriate sentence is in the upper single digits.
[59] Finally, I have taken into account the decision of the Alberta Court of Appeal in R. v. Lemmon,[^17] which is not a case cited by either counsel, but which contains a thoughtful analysis of the nature of offences such as choking and the administration of a stupefying drug in order to facilitate a sexual assault. The offender in that case was a far more dangerous criminal with a far worse record than Mr. Mullins. On the other hand, the predicate crime was similar, indeed somewhat less serious than Mr. Mullins’ crime. The complainant was a waitress in a bar who knew Mr. Lemmon and his employer and offered them a ride home at the end of her shift upon hearing they were otherwise planning to take a taxi. She dropped off Mr. Lemmon’s employer first, and upon arriving at Mr. Lemmon’s shop (where he slept), accepted his offer to come in for a drink. He immediately locked the door behind her and when she asked him to unlock it, grabbed her by the throat. He choked her into unconsciousness. When she came to, he ordered her to undress and then sodomized and repeatedly raped her. Eventually, she persuaded him to let her go, and upon leaving, immediately called 911. At hospital, she was found to have suffered “some bruising, minor vaginal tears, and petechial haemorrhaging on her face” (as a result of the choking). This was a crime of opportunity, rather than planning as was the case with Mr. Mullins. The complainant in Lemmon was unconscious for a shorter period of time and her injuries were not as extensive as those of A.S. Further, there was no position of trust between Mr. Lemmon and his victim, nor was his victim a vulnerable teenager. However, as I have noted, Mr. Lemmon had an extremely serious criminal record, similar in length to that of Mr. Mullins, but which included seven prior violent sexual offences. A dangerous offender application was brought by the Crown, but the trial judge found that treatment might be possible, and therefore found Mr. Lemmon to be a long term offender. The trial judge imposed a thirteen year sentence for unlawful confinement, sexual assault and choking with intent to commit an indictable offence, all those sentences being concurrent. In the result, the Court of Appeal upheld the global sentence of 13 years, although allocating it as eight years for the sexual assault and five years consecutive for the choking. Mr. Mullins would be deserving of a lesser sentence only because his prior criminal record is not as serious and does not include any other sexual offences.
[60] In Lemmon, the Alberta Court of Appeal noted that the maximum sentence for sexual assault and unlawful confinement is 10 years and therefore reduced the 13-year sentences for those offences to eight years each, concurrent. However, with respect to the choking charge, the Court found that it should have been consecutive. The Court first commented that, as a matter of general practice, s. 246 offences were being treated as an incident to the underlying offence and that it was time to consider whether such an approach adequately addressed the serious nature of those offences.
[61] Section 246 of the Criminal Code provides:
- Every one who, with intent to enable or assist himself or another person to commit an indictable offence,
(a) attempts, by any means, to choke, suffocate or strangle another person, or by any means calculated to choke, suffocate or strangle, attempts to render another person insensible, unconscious or incapable of resistance, or
(b) administers or causes to be administered to any person, or attempts to administer to any person, or causes or attempts to cause any person to take a stupefying or overpowering drug, matter or thing,
is guilty of an indictable offence and liable to imprisonment for life.
[62] The maximum sentence for a s. 246 offence is life imprisonment, whereas the maximum sentence for sexual assault is 10 years. The Court of Appeal concluded that this constitutes a recognition by Parliament of the inherent dangerousness of the conduct involved in such an offence. The Court held at para. 29:
In short, although this crime is typically employed as a means to achieve another, it is often the more serious and life-threatening. Accordingly, it would be wrong to treat the offence of choking, suffocation or strangulation, where the victim has been rendered unconscious, as merely a particular or detail of the underlying offence. To do so would fail to hold the offender responsible for what is often the more serious offence, and in the process marginalizes extremely dangerous conduct. I do not mean to suggest that every act of applied force to a victim’s throat will warrant a significant additional sentence. However, such a sentence is appropriate when the victim is rendered unconscious or suffers bodily harm.
[63] The Court then discussed how this could be achieved in sentencing, whether by a consecutive sentence for the choking, or by stipulating that the sentence for the sexual assault is increased by a specific period of years in order to reflect the choking, but still making it concurrent. Either route would achieve the sentencing objective of increasing the global sentence in order to reflect the seriousness of the aggravating factor of the additional s. 246 offence. However, that result cannot be achieved if adding an appropriate additional period for the choking as an aggravating factor would bring the sentence beyond the maximum sentence allowed for the other offence. That is, in fact, what happened in Lemmon. Given the other aggravating factors, the Court concluded that the appropriate sentence for Mr. Lemmon’s sexual assault offence was eight years. The Court further reasoned that an additional five years was appropriate to reflect the seriousness of the choking. Since that could not be added to the sexual assault sentence without bringing it beyond the maximum, it was made concurrent.
[64] Although the Lemmon case involved choking, the Alberta Court of Appeal specifically ruled that cases involving stupefying drugs should be treated in the same manner. The Court held as follows at paras. 33-37:
[33] Although the matter is not before us now, I will take this opportunity to indicate that in my opinion, the companion offence described in s. 246(b) - administering a stupefying or overpowering drug to another person to facilitate the commission of an indictable offence, should be treated in like manner. I see little difference between the offences; they both carry the same maximum penalty of life imprisonment, which reflects Parliament’s view that both are equally serious and dangerous. That is to say, both involve an attempt to exercise total dominion over another with potentially life threatening consequences.
[34] To illustrate, drugs with the ability to overpower do not come with prescribed dosages that advise that, for example, one pill is therapeutic, two will induce unconsciousness, and three or more may be fatal. Non-prescription or homemade drugs, such as the so-called date rape drug, are even more dangerous, as the offender will have no idea as to the amount that may be administered without leaving the victim brain damaged or dead.
[35] I would also note that administering an overpowering drug to another person will almost always involve a high degree of planning and preparation.
[36] In terms of proportionality, both strangulation and administering a stupefying or overpowering drug that renders the victim unconscious, will inevitably be a most serious offence and one where the offender’s degree of responsibility is very high.
[37] In my opinion, where unconsciousness or bodily harm results, whether by strangulation or the administration of a drug, a penitentiary sentence is appropriate for that offence alone. As noted above, that may be expressed as a consecutive sentence to any underlying offence that the act was intended to facilitate, or as a greater sentence to that otherwise appropriate for the underlying offence, to be served concurrently. [Emphasis added.]
[65] Obviously, the decision of the Alberta Court of Appeal is not binding on me. Further, this approach was not argued by either counsel before me and I have not applied it in my reasoning. However, I believe it has considerable logical force and would achieve greater clarity in the sentencing process. It would also provide some precedent for what sentence a s. 246 offence would warrant even where the ultimate planned indictable offence was never carried out. I agree with the observation of the Alberta Court of Appeal that the administration of a stupefying drug rendering a person unconscious, standing alone, would normally warrant a penitentiary sentence. In the result, such an approach would not affect the global sentence I would impose on Mr. Mullins, given that it would not exceed 10 years regardless of whether I treat the administration of the drugs as aggravating or as a separate consecutive sentence. Following the Lemmon approach, I would have found the sexual assault by Mr. Mullins, ignoring the drugs, to attract a sentence of five years, and the administration of the drugs to be an additional four years consecutive.
G. DETERMINING A FIT SENTENCE
[66] The starting point in determining a fit sentence is the principle of proportionality – the sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender.” I have reviewed above the circumstances of the offence and the circumstances of the offender. These are very serious offences carrying the potential for a maximum sentence of 10 years on the sexual assault and a life sentence for the administration of the stupefying drugs. Mr. Mullins’ responsibility is also high. He was the sole perpetrator and this was an offence deliberately planned some time in advance, then carried out without regard to the risks and harm to his victim.
[67] I am also mandated to take into account any mitigating and aggravating factors and to be mindful of the fundamental principles and objectives of sentencing as stipulated in s. 718 of the Criminal Code. The sentence must be sufficient to denounce the conduct and deter both the offender and other persons from committing such offences. In this case, notwithstanding the greater weight of deterrence and denunciation, rehabilitation remains an important factor. Mr. Mullins has never been convicted of this type of offence in the past, and I remain optimistic that he will receive some counselling or other rehabilitative programming to ensure he does not do so again. Therefore, the sentence must not be of such a crushing length as to be disheartening, so as to undermine the prospect of rehabilitation. In this particular case, I have considered the objectives of separating the offender from society, promoting responsibility in offenders and providing reparations to the victim, but have not found these factors to be of any significant import in all of the circumstances.
[68] I have already mentioned the importance of denunciation and deterrence. In this case, deterrence is important not only for Mr. Mullins himself, but also generally. Sexual assault is often, by its nature, a difficult offence to prove because it is committed in private and rarely has corroborative evidence. The use of drugs to stupefy the victim of a sexual assault frequently results in a victim who believes she has been abused but is unable to describe what has happened to her because her memory is completely missing. Often by the time she gets to a hospital there is no longer any trace of the drug in her system, which makes it an even more difficult case to prove. Not only are assaults committed in this manner difficult to prove and therefore attractive to their perpetrators, they are also extremely dangerous for the victims. For this reason, general deterrence is of particular importance in sentencing crimes of this nature.
[69] After weighing all of these factors in the balance, my view is that the fit global sentence for Mr. Mullins on the sexual assault count, applying the use of drugs as an aggravating factor, is nine years. I would further sentence him to four years for the stupefying drugs count, to be served concurrently.
H. CREDIT FOR TIME ON BAIL AND TIME IN CUSTODY
[70] Mr. Rosen submits that Mr. Mullins should get a credit of one year for the period of time he spent under restrictive bail conditions. I disagree for two reasons: (1) the bail conditions were not that strict; and (2) Mr. Mullins breached his bail.
[71] The leading case on credit for time spent on bail is the Ontario Court of Appeal decision in R. v. Downes.[^18] In that case, the accused was charged with forcible confinement, criminal harassment, uttering a death threat, and two counts of assault, all in relation to his former girlfriend. He was released on bail with the condition that he live with his surety, observe a curfew, and not be outside the house except in the company of his surety. There were no exceptions, not even for medical necessities, employment or religious worship. He breached his bail twice: once when he left the house without his surety and she called the police; and the second time when his surety checked him into a psychiatric hospital and left him there. The Court of Appeal held that house arrest bail is a form of punishment and as such is a relevant mitigating factor in sentencing that must be taken into account in determining a fit sentence. However, the amount of credit to be given is entirely within the discretion of the trial judge and there is no formula or guideline governing how it should be calculated. The Court held at para. 37:
• The amount of credit to be given for time spent on bail under house arrest is within the discretion of the trial judge and there is no formula that the judge is required to apply.
• The amount of credit will depend upon a number of factors including, the length of time spent on bail under house arrest; the stringency of the conditions; the impact on the offender’s liberty; the ability of the offender to carry on normal relationships, employment and activity.
• Where the offender asks the trial judge to take pre-sentence bail conditions into account, the offender should supply the judge with information as to the impact of the conditions. If there is a dispute as to the impact of the conditions, the onus is on the offender to establish those facts on a balance of probabilities in accordance with s. 724(3) of the Criminal Code.
[72] The onus was on Mr. Mullins to establish the factors supporting his claim to credit. The length of time spent on bail was significant. He was arrested on March 25, 2011 and released on bail on April 5, 2011. He was under house arrest, except for the purpose of work, going to and from work, the reporting centre, court, his lawyer’s office, hospital, or a doctor’s office. Even then, he was required to be with an adult. I agree that these initial terms are stringent.
[73] However, on May 19, 2011, there was a variation to enable him to attend church, do his banking, go grocery shopping on Saturdays, and to attend his daughter’s graduation. In July 2011, his bail was varied to enable him to travel to Prince Edward Island for a month. In May 2012, it was varied again to permit him to be outside his house without an adult for the purposes of employment, court appearances, attending church on Sundays, banking on Mondays and Fridays, and grocery shopping on Saturday afternoons. In addition, he was permitted to leave the province, provided he gave the officer-in-charge 24 hours’ notice with particulars of his itinerary and contact information. Mr. Mullins conceded on cross-examination that his bail was in fact varied five times, and the Crown consented every time. He went to Prince Edward Island twice and could have gone more often except for his own reasons. He also was slated to go to Edmonton for employment, which was only cancelled because the expected job fell through.
[74] On March 12, 2012, Mr. Mullins was stopped by police in his truck on a Friday night. His girlfriend was with him. He told the police that he was on his way to a service call. They did not believe him and arrested him for breach of his recognizance. The next Monday, Mr. Mullins pleaded guilty to that breach and was sentenced to time served, with no change to his bail conditions. Mr. Mullins testified before me that he was actually in breach of his bail conditions, but pleaded guilty merely because of the deal that was offered. He acknowledged on cross-examination that he was represented by counsel at the time, that he told the judge he was pleading guilty of his own free will and that he was in fact guilty. He now says that was all a lie. I do not believe him. Mr. Mullins is all too ready to lie under oath when it suits his purpose. If he was on a service call that Friday night, that would have been an easy matter to verify with one simple phone call. The fact that he chose instead to plead guilty is a clear indication of his guilt.
[75] Accordingly, Mr. Mullins had restrictive bail conditions for one year, which I find did not impair his ability to work. Thereafter his bail conditions were not at all onerous, particularly in light of the seriousness of his offence, his long criminal record, and his conviction for breaching his recognizance.
[76] In these circumstances, I believe a denial of any credit for time on bail could be justified. However, the Crown has conceded Mr. Mullins should get some credit and suggested that six months would be appropriate.
[77] Mr. Mullins was in custody prior to getting bail for a period of 12 days, for which he is entitled to a credit of 18 days.
[78] Upon his conviction on January 13, 2015, I revoked Mr. Mullins’ bail. He has therefore served an additional 71 days.
[79] In these circumstances, I will allow a credit of nine months for the period from the date of his arrest to the date of his sentencing, to take into account pre-trial custody, time spent on bail, and time served since conviction.
I. CONCLUSION
[80] Accordingly, I sentence Mr. Mullins to nine years on Count 1 (sexual assault). From this, Mr. Mullins is entitled to a credit of nine months, leaving eight years and three months remaining to be served. I further sentence Mr. Mullins to four years on Count 2 (administering a stupefying drug), to be served concurrently with Count 1.
[81] There is no dispute with respect to the ancillary orders. There will be a s. 109 Order for life, a DNA Order and an Order that Mr. Mullins be registered as a sex offender for a period of 20 years. While in custody, Mr. Mullins shall have no contact, directly or indirectly, with the complainant.
MOLLOY J.
Released: March 24, 2015
CITATION: R. v. Mullins, 2015 ONSC 1724
COURT FILE NO.: CR 14-30000382-0000
DATE: 20150324
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
MICHAEL MULLINS
Defendant
REASONS FOR SENTENCE
MOLLOY J.
Released: March 24, 2015
[^1]: Criminal Code, R.S.C., 1985, c. C-46, s. 718.2(a).
[^2]: R. v. Audet, 1996 CanLII 198 (SCC), [1996] 2 S.C.R. 171.
[^3]: R. v. E.R.F., [2009] O.J. No. 994, at paras. 40-45 (S.C.J.); R. v. P.E.S., [2010] O.J. No. 1125, at paras. 10-18 (O.C.J.); and R. v. M.C., 2012 ONSC 2505 [2012] O.J. No. 1797, at paras. 27-29.
[^4]: Audet, at para. 37 and 35.
[^5]: Audet, at para. 33.
[^6]: R. v. Budd, 2007 ONCA 722, [2007] O.J. No. 4013, at paras. 6-7.
[^7]: R. v. P.E.S., at para. 2.
[^8]: R. v. E.R.F., at para. 41-45.
[^9]: R. v. T.R., [1996] O.J. No. 4945, at para. 14 (Gen. Div.).
[^10]: Criminal Code, s. 718.2(b).
[^11]: R. v. D.D. (2002), 2002 CanLII 44915 (ON CA), 58 O.R. (3d) 788, 163 C.C.C. (3d) 471 (C.A.); see also R. v. D.M., 2012 ONCA 520, 111 O.R. (3d) 721, at paras. 24-28.
[^12]: R. v. L.G., 2007 ONCA 654, 228 C.C.C. (3d) 194.
[^13]: R. v. Ajimotokan, 2013 ONSC 1961, [2013] O.J. No. 6344, aff’d in R. v. S.A., 2014 ONCA 266, [2014] O.J. No. 1609.
[^14]: R. v. S.A., at para. 1.
[^15]: R. v. S.B., 2013 ONSC 5189, [2013] O.J. No. 3962.
[^16]:R. v. Bell, [2004] O.J. No. 4046 (S.C.J.).
[^17]: R. v. Lemmon, 2012 ABCA 103, [2012] A.J. No. 326.
[^18]: R. v. Downes, 2006 CanLII 3957 (ON CA), [2006] O.J. No. 555.