CITATION: R. v. Basil Smith, 2015 ONSC 3330
COURT FILE NO.: 13-40000734
DATE: 2015/05/25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
– and –
Basil Solomon Smith
Accused
Paul Alexander, for the Crown
Michael Freeman, for the Accused
HEARD: April 16, 2015
REASONS FOR SENTENCE
a.j. o’mARRA J.;
[1] Mr. Basil Smith was found guilty by jury after trial of aggravated sexual assault, two counts of sexual assault with a weapon, assault causing bodily harm, four counts of assault, and threatening death to his former partner, R.T. during their relationship between 1988 and 1992.
[2] Mr. Smith is here today to be sentenced.
Facts
[3] R.T. testified that she met Mr. Smith in the fall of 1987 when they both worked as bus drivers for different bus companies. They would meet for coffee and over time their relationship developed. By early 1988 they moved in together.
[4] R.T. testified that approximately six to eight months into their relationship Mr. Smith began to tell her that she was possessed by the devil and that she needed to be cleansed. She said that in the first incident he ordered her to strip off all her clothes and then he proceeded to hog-tie her feet and hands while she was on the bed face down. He duct-taped her mouth and she was unable to say or do anything. He inserted a candle up her rectum and lit it. When the candle burned to the point where it began to burn her buttocks he removed it. Such incidences involving the candles occurred several times a month until she finally left. She described each incident as leaving her “shattered emotionally”, shocked and sickened by what had happened. She would also experience physical effects such as rectal bleeding and problems with bowel movements.
[5] In addition to the insertion of candles she described other incidences during which he would demand that she strip naked. He would then insert the handle of a toilet plunger into her rectum and he would masturbate. Sometimes the plunger handle was covered with a condom and lubricant. These incidences occurred once or twice a month during the time they lived together.
[6] She testified that when she protested against what he was doing to her he would threaten to kill her and her family.
[7] R.T. described other incidences of violence the jury accepted as having occurred. She described how in another argument Mr. Smith grabbed her by the knee and twisted her leg sharply which caused her great pain and required medical attention. On July 30, 1991 she was seen at Women’s College Hospital for a fracture consultation where it was determined she had “a partial avulsion of the fibular head”. She was required to wear a splint for her right knee for four weeks as a result.
[8] During another argument Mr. Smith pushed her onto a marble coffee table which had been given to her by her family, causing it to break into several pieces. In another incident which occurred as a result of her simply trying to turn on a tri-light lamp, Mr. Smith became angry with her and slapped her across the face.
[9] Toward the end of their relationship they had attended to the Yorkdale Mall where Mr. Smith wanted R.T. to buy him a computer. Not finding anything she could afford, on leaving the mall in the parking lot, Mr. Smith grabbed R.T. by the top of her head and smashed her head into the door column of the vehicle. After they got into the vehicle Mr. Smith drove it wildly through the parking lot onto the 401 where he began to drive in an erratic and dangerous fashion. R.T. became quite frightened as a result of his driving and his statement to her that he was going to kill them both if she did not buy him a computer.
[10] Their relationship ended when Mr. Smith had followed her one day to the place where she worked. Due to his aggressive behavior and R.T.’s reaction a fellow employee fearing for her safety called the police. Eventually, the matter was dropped at her request. Many years later, however, after she had left, a telephone call by him to her mother’s home where she had returned to live resurrected her fears leading her to contact the police again. This time she related the history of sexual abuse
Position of the Parties
[11] The Crown’s position is that Mr. Smith should receive a sentence in the penitentiary for a period of 6 years to reflect the sentencing objectives of denunciation and deterrence. In addition, the Crown seeks the ancillary orders of a DNA order authorizing the taking of a DNA sample pursuant to s.487.051, a weapons’ prohibition pursuant to s.109 of the Criminal Code and that he be named to the Sex Offender Registry.
[12] Defence counsel suggests that a period of incarceration in the range of 2 to 3 years is appropriate. The principle focus of the court in determining a sentence should be his rehabilitation.
Victim Impact Statement
[13] R.T. provided a Victim Impact Statement wherein she described ongoing physical and psychological difficulties as a result of the sexual abuse suffered in her relationship with Mr. Smith.
[14] In terms of the physical consequences, she describes having a prolapse in the gynecological areas which required surgery. She experiences chronic migraine headaches and continuing nightmares even many years later because of the sexual abuse she suffered. Feelings of fear, low self-esteem and lack of confidence continue to negatively influence her life. In her Victim Impact Statement she writes:
The stress brought on a couple of mild strokes and high blood pressure. Even with medication my blood pressure still has trouble coming down. I have trouble trusting men, being touched physically, sexually and emotionally. My present marriage of 23 years failed right from the start because of the lack of trust. It destroyed it.
The Offender
[15] A Pre-Sentence Report was ordered in this matter. Mr. Smith is 53 years old. He was born in Newfoundland, the 6th of 11 children. Initially he moved with his family to Nova Scotia and then later to Toronto as a youth.
[16] Generally, Mr. Smith was vague in his responses to questions about his family, and past relations with women. He described, however, having been married for two years before his relationship with R.T. from which a son was born. When their son turned 19 he moved to Hamilton to be with his mother and Mr. Smith has not had any relationship with him or her since.
[17] After his relationship with R.T. he formed a relationship with another woman which produced a second son, now 13 years old. That relationship dissolved but they remain co-parents.
[18] In terms of his education, it appears that he was suspended from school due to truancy but returned as an adult and completed his grade 10 education through a community college programme. Later, he enrolled in a butcher programme at a community college but did not complete it. He states he still has plans to complete his grade 11 and 12 sometime in the near future so he can “be a role model for his son”.
[19] With respect to his work history, he stated that he first entered the work force after he obtained a work permit excusing him from high school. His employment included positions as a bus driver, butcher and carpenter. However, he has been unemployed since 1992 and began receiving financial assistance from the Ontario Disability Support Programme in 1995. He states that he has issues with his feet, which have required nine operations.
[20] In terms of his day to day activities a longtime friend, Ms. Yorgason, who described him in her view as being productive, says he spends “his free time riding his bicycle, visiting friends and neighbours, sight-seeing with her son, staying active to keep his body in shape, watching movies and playing video games”. She said that they share mutual friends and that from her perspective he chooses his friends carefully and has cut ties with previous friends over behaviour he did not approve. She also said that he has assisted in teaching a neighbour’s developmentally delayed 21 year old son to play the guitar. She describes him as being reliable and responsible and a dedicated father to his son.
Mr. Smith has a dated criminal record for break, enter and theft in 1978, attempt break, enter, with intent in 1980 and an assault in 1984.
Sentencing Principles
[21] The fundamental purpose of sentencing as set out in s.718 of the Criminal Code is to ensure respect for the law, maintenance of a just, peaceful and safe society. The court in seeking to impose just sanctions should consider the following objectives: denunciation and deterrence, both specific and general, separation of offenders from society when necessary, rehabilitation, reparation for harm done and the promotion of a sense of responsibility in the offender and acknowledgement of the harm which criminal activity brings to our community.
[22] In addition the court must take into account the principles of proportionality and the applicable aggravating and mitigating circumstances relating to the offence as set out in s.718.2 of the Criminal Code. In this instance, s.718.2 (a)(2)(i) of the Code deems “evidence that the offender, in committing the offence, abused the offender’s spouse or common law partner ”as an aggravating factor.
[23] The principles of denunciation and deterrence are overriding factors to be considered on sentencing in cases of domestic violence. The Ontario Court of Appeal noted in R. v. Bates (2000), 2000 5759 (ON CA), O.J. No. 2558 at para. 30 states:
The courts have been made increasingly aware of the escalation of domestic violence and predatory criminal harassment in our society. Crimes involving abuse in domestic relationships are particularly heinous because they are not isolated events in the life of the victim. Rather, the victim is often subjected not only to continuing abuse, both physical and emotional, but also experiences perpetual fear of the offender.
[24] This is a case not only of prolonged domestic abuse, but degrading and dehumanizing sexual violence. The acts perpetrated by Mr. Smith have had a life-long physical and emotional consequence to the victim.
[25] In R. v. McCrow, 1991 29 (SCC), [1991] S.C.J. No. 69, Cory J. speaking for the Supreme Court at paras. 29-32sets out the harm crimes of sexual assault cause the victims:
It seems to me that to argue that a woman has been forced to have sexual intercourse has not necessarily suffered grave and serious violence is to ignore the perspective of women. For women, raped under any circumstance must constitute a profound interference with their physical integrity. As well by force or threat of force, it denies women the right to exercise freedom of choice as to their partner for sexual relations and the timing of those relations. These are choices of great importance and may have substantial affect upon the life and health of every woman. Parliament’s intention of replacing rape laws with the sexual assault offences was to convey the message that rape is not just a sexual act but is basically an act of violence….
Violence and the threat of serious bodily harm are indeed the hallmarks of rape. Where the bruises and physical results of the violent act will often disappear over time, the devastating psychological effects may last a lifetime. It seems to me that grave psychological harm could certainly result from an act of rape.
The psychological trauma suffered by rape victims has been well documented. It involves symptoms of depression, sleeplessness, a sense of defilement, loss of sexual desire, fear and distrust of others, strong feelings of guilt, shame and loss of self-esteem. It is a crime committed against women which has a dramatic, traumatic impact…to ignore the fact that rape frequently results in serious psychological harm to the victim would be a retrograde step, contrary to any concept of sensitivity in the application of the law.
[26] The Ontario Court of Appeal has made it clear that where abuse has occurred over an extended period of time the sentencing objectives of denunciation and deterrence are of paramount importance: see R. v. M.Q., [2012] O.J. NO. 1584 at para. 62, R. v. R. (B.S.), 2006 29082 (ON CA), [2006] O.J. No. 3404 at para. 84.
[27] In cases of sexual assault involving forced intercourse with a spouse or former spouse the sentences have generally ranged from 21 months to 5 years: see R. v. R. (B.S.) supra, R. v. Jackson, (2010) ONSC 3910, R. v. M. (B.), (2008) ONCA 645, R. v. Nolan, (2009) ONCA 727, R. v. Toor, (2011) ONCA 114, and R. v. M.Q., supra).
[28] In my view the circumstances and sentence imposed in R. v. M.Q. are instructive in this case. There the Court of Appeal dismissed an appeal against a 5 year penitentiary sentence for sexual assault, 2 counts of assault with a weapon, and simple assault of the offender’s spouse. At trial, it was found that the appellant routinely sexually assaulted his wife over a period of months using both threats and force. The sexual abuse included vaginal and anal rape, as well as forced fellatio. The complainant was found to have been sexually objectified by the appellant who felt entitled to treat her that way because she was his wife. The court found that there had been continuing emotional and psychological consequences to the complainant. In the result the court imposed a sentence of 3 ½ years for the sexual assault and consecutive sentences of 9 months each for 2 counts of assault with a weapon. The Court of Appeal found that the global sentence of 5 years was not unfit given MQ’s pattern of engaging in serious sexual crimes against a vulnerable victim during an abusive marital relationship.
[29] Here, I am satisfied, based on R.T.’s Victim Impact Statement and her testimony at trial that even more than two decades after Smith’s repeated interference with her physical integrity, she suffers serious psychological harm. She recounts experiencing depression, sleeplessness, fear, and distrust of others, a loss of sexual desire, and feelings of guilt, shame, and loss of self-esteem, the same consequential effects described by Cory J. of rape victims in R. v. McCrow.
[30] Mr. Smith perpetrated vile acts of sodomy with foreign objects to satisfy his deviant sexual pleasure. I find little by way of mitigation in either the circumstances or background of Mr. Smith to take into account in determining a fit sentence.
[31] In this instance, I sentence Mr. Smith to a period of 4 years in the penitentiary for the aggravated sexual assault, 4 years imprisonment for the two counts of sexual assault with a weapon to be served concurrent to each other and concurrent to the aggravated sexual assault; 6 months for each of the assault simpliciter counts and threatening to cause death to be served concurrent to each other and to the aggravated sexual assault and sexual assault with weapons offences and 1 year imprisonment for assault causing bodily harm consecutive to the aggravated sexual assault and sexual assault with weapons sentences.
[32] In the result, the total sentence is 5 years imprisonment in a penitentiary.
[33] In addition, there shall be the mandatory DNA order pursuant to s.487.051(1) authorizing the taking of a DNA sample; the mandatory firearms/weapons prohibition for 10 years pursuant to s.109(1)(a) of the Criminal Code; an order that Mr. Smith’s name be added to the Sex Offender Registry and that he comply with the Sex Offender Information Registration Act for life pursuant to ss.490.011, 490.012, and s.490.13(2.1) of the Criminal Code having committed the designated offences of aggravated sexual assault, sexual assault with a weapon x2.
[34] Further, Mr. Smith shall have no communication directly or indirectly with R.T. during the period of his incarceration pursuant to s.743.21 of the Criminal Code.
A.J. O’Marra J.
Released: May 25, 2015
CITATION: R. v. Basil Smith, 2015 ONSC 3330
COURT FILE NO.: 13-40000734
DATE: 2015/05/25
ONTARIO
SUPERIOR COURT OF JUSTICE
Her Majesty the Queen
– and –
Basil Smith
Accused
REASONS FOR SENTENCE
A.J. O’Marra J.
Released: May 25, 2015