SUPERIOR COURT OF JUSTICE

TUESDAY, SEPTEMBER 1, 2015

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

Dawson J. (Orally):

On May 15^th, 2015, I gave oral reasons convicting Carlington McKenzie of sexually assaulting the complainant on December 14^th, 2013. Sentencing submissions were made on June 24^th, 2015. The matter was then adjourned so counsel could conduct research and prepare brief written submissions concerning the immigration consequences to Mr. McKenzie depending upon the sentence I might impose. Mr. McKenzie is not a citizen, but a permanent resident of Canada.

The issue today is the imposition of a fit sentence for the offence Mr. McKenzie stands convicted of. His counsel has stressed the immigration consequences and has asked me to impose a sentence of six months less a day plus a period of probation having regard to the potential for deportation. Crown counsel submits that the range of sentence is two to four years and submits that a three year sentence is appropriate.

The Offence

I gave fairly extensive reasons for conviction which outlined all of the important aspects of the evidence. I will not repeat that here. However, I will make brief reference to my findings of fact and to my core reason for convicting the accused.

The sexual assault occurred in a washroom at the Jamaica House Restaurant, in Brampton, during the restaurant’s employee Christmas party. Mr. McKenzie was 33 years old at the time and worked as a cook at the restaurant. The complainant was 19 years old at the time and was in training as a waitress and cashier. The two were only casually acquainted. They had not been spending time together at the party until shortly before the alleged assault.

Alcohol was flowing freely at the party and both Mr. McKenzie and the complainant had been drinking. The complainant was starting to feel the effects of the alcohol at the time of the offence but was not feeling drunk until after the assault.

The complainant had accompanied one of her girlfriends and a young man her girlfriend had met at the party to the area just outside the two single occupancy washrooms in the restaurant. The girlfriend testified that she and the young man wanted to make out. The complainant’s girlfriend and the young man she was with began dancing near the washroom. At that point the accused pulled the complainant to, in the complainant’s words, “start dancing on him.”

The accused was “posted” to the wall. The complainant said she had her backside against him and was “winding and grinding on him.” The complainant’s girlfriend was doing the same thing to the young man she was with. The two girls were facing each other about one metre apart. The complainant said the accused began to touch her buttocks and thighs. While she felt uncomfortable, she did not tell him that. She moved off him but continued to dance with him. He then spun her around and kissed her twice. She agreed she kissed the accused on the lips although it was not her desire to do so. She did not tell the accused she did not want him to kiss her.

The other couple then moved into one of the washrooms. At that point the accused and the complainant moved into the other washroom. The door was closed and locked. The accused was kissing the complainant on her neck in the washroom. She did not tell him to stop. The accused turned the light on in the washroom. The complainant reacted by asking why it was so bright in there. This led the accused to turn off the light.

The accused then spun the complainant around and her hands automatically went up against the door or the wall. The accused then quickly undid and lowered both his own and the complainant’s pants. She then felt the tip of his penis in her anus. Just the tip of the accused’s penis penetrated and only for a short time, which she estimated at 20 to 30 seconds. At that point the complainant said “No, no, no”. She said she felt pain. At the same time there was a knock on the bathroom door which interrupted what occurred. That ended the encounter and the two left the washroom.

I found that the accused stopped because of the knocking on the door. In my reasons for conviction I said he did not stop because the complainant said no. Upon further reflection, I believe that it would have been more accurate to say that I conclude the knocking on the door is what ended the incident. I am not certain the encounter would have continued if that knocking had not occurred.

I wish to make it clear, as I believe I did in my reasons for conviction, that I appreciate that consent is subjective on the part of the complainant. There was no obligation on the complainant to communicate her lack of consent to the accused prior to the act of anal penetration.

That said, as I indicated in my reasons for conviction, I was concerned throughout the trial that there were factual elements in this case capable of offering some support to a defence of honest but mistaken belief in consent.

Ultimately, I rejected that defence at stage 3 of my W.(D.) analysis because I was satisfied beyond a reasonable doubt that the accused had failed to take reasonable steps to determine whether the complainant was consenting. I would observe that until s. 273.2 of the Criminal Code was added to the law by amendment in 1992, no such steps were required. Prior to that, as held in R. v. Pappajohn, 1980 13 (SCC), [1980] 2 S.C.R. 120, a mistaken belief in consent did not have to be based on reasonable grounds.

I make these comments because I am of the view that the presence of these factual elements, while not leading to an acquittal in the circumstances of this case, remain as factors to be taken into account in assessing the overall seriousness of the offence committed by Mr. McKenzie when it comes to determining the appropriate range of sentence in this case.

The circumstances leading up to the offence, which included the complainant voluntarily winding and grinding on the accused, together with the kissing and touching that occurred without the accused being aware of any objection, impact my assessment of the seriousness of the offence.

The Impact of the Offence on the Complainant

I have been provided with a victim impact statement. The complainant indicates she had difficulty digesting that someone would take advantage of her as the accused did. During the trial she linked this to her drinking alcohol. She has also expressed that she was hurt by the particular defence the accused advanced, which I rejected, to the effect that she was the sexual aggressor on the night in question. While this is understandable, I conclude it is not a factor which should influence my sentencing decision. The complainant has also indicated she had some minor discomfort with bowel movements immediately after the assault.

While the offence is significant, in the context of harms that may result from a sexual assault of this nature, the impact on the complainant falls lower down on the scale than in many other cases. Fortunately, the complainant had access to immediate counselling and to the support of her friends.

The Circumstances of the Accused

The accused is currently 35 years of age. He was 33 at the time of the offence. He has no criminal record. He was not in a position of trust in relation to the complainant. He was born and raised in Jamaica. He left school in Jamaica when he was about 10 years old in order to help support his mother. The pre-sentence report indicates that in Jamaica he worked selling merchandise in a market, in agriculture and in carpentry.

The accused’s natural father was living in Canada and sponsored the accused to come to Canada. Counsel for the accused advised me that was more than 15 years ago, and I infer the accused arrived here when he was in his late teens. His mother remains in Jamaica.

In Canada the accused has worked as a general labourer, a cook, doing woodworking, and as a shipper in a trucking business. He is currently employed in a factory which makes fibreglass pallets. Based on the pre-sentence report, I conclude the appellant is hard working and regularly employed. At present, he is also the owner of a barbershop and beauty supply store which employs others.

The accused is the father of two Canadian children. He is currently in a stable relationship with the mother of his second child. I am told he supplies both financial and emotional support to both children. His current partner remains supportive of him despite being upset by the offence. I am advised the accused also sends what money he can to his mother in Jamaica.

Overall, the pre-sentence report is positive. The accused is described as a passive person who is kind and helpful to others. He is described as generally family oriented. Based on the comments made to the pre-sentence reporter, his conduct in this case is out of character and was likely affected by consumption of alcohol. He is described as an occasional or moderate drinker. Alcohol is not generally a problem. His counsel clarified that although the pre-sentence report refers to marijuana use, that was before the accused left Jamaica.

The pre-sentence reporter indicates that there is a consensus that the accused would benefit from individual counselling and programs to address his passiveness. Informal counselling regarding alcohol consumption is also recommended.

However, the accused advised the pre-sentence reporter that he is innocent, and to that extent there is a lack of remorse. I do not propose to give this any weight in determining the accused’s sentence. However, he cannot receive the credit he might have had he been remorseful.

The Position of the Parties

Crown Counsel takes the position that the range of sentence in this case should be determined to be two to four years, and urges me to impose a sentence of three years. The Crown relies on R. v. Garrett, 2014 ONCA 734; and R. v. Rand, 2012 ONCA 731, and R. v. Thurairajah, 2008 ONCA 91, at para. 38 to support this range.

Counsel for the accused submits that having regard to the fact that the accused is a permanent resident and not a citizen of Canada I should impose a sentence of six months less a day, to be followed by a period of probation, in order assist the accused in avoiding deportation.

Defence counsel also submits that the factual circumstances surrounding the commission of the offence in this case show that it is not nearly as serious as the factual circumstances in the cases the Crown relies upon to justify a sentence in the range of two to four years. Counsel for the accused, however, has not referred me to any case which would take the range of sentence for an offence similar to this one down to the area of six months.

The Applicable Legal Principles

The principals of sentencing are well known and are set out in Part XXIII of the Criminal Code. Pursuant to s.718.1, the fundamental principle of sentencing is that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Pursuant to s.718.2 I must take into account the presence or absence of aggravating and mitigating factors. Some of these are listed in s.718.2.

In addition to the statutory principles I note that generally, a first sentence of incarceration should be as short as a proper consideration of the principles of sentencing will allow.

Immigration consequences may be taken into account to modify a sentence in a particular case so long as the sentence that is imposed remains proportional to the seriousness of the offence and the degree of responsibility of the offender. It is not proper to deviate substantially from the appropriate range of sentence on the basis of the immigration consequences that will flow to the accused, as that would thwart the will of Parliament in relation to immigration laws and policy. See R. v. Pham 2013 SCC 15; R. v. Hamilton (2004), 2004 5549 (ON CA), 72 O.R. (3d) 1 (C.A), at paras. 156 to 158; R. v. Nassri, 2015 ONCA 316; R. v. Edwards, 2015 ONCA 537; and R. v B.R.C., [2010] O.J. No. 3571 (C.A).

Analysis

What occurred in this case was a significant sexual assault. The accused succeeded in penetrating the anus of the complainant with the end of his penis. Consequently, the principles of denunciation and general and specific deterrence must be given significant weight in arriving at a fit sentence. While the complainant was not a minor, I note that there was a considerable age difference between the accused and the complainant.

However, I am unable to see the significant sexual assault which occurred here as being as serious as those which were dealt with by the Court of Appeal in the three cases cited by Crown Counsel.

In Garrett there was a fully completed act of sexual intercourse without the complainant’s consent. The complainant in that case repeatedly told the accused to stop and tried to stop him, but the accused persisted and completed the act. The complainant suffered bruising between her legs and an injury to her tailbone. The Court of Appeal imposed a sentence of 18 months in lieu of the 90 day intermittent sentence imposed at trial, as at trial Crown Counsel had submitted the range of sentence extended from 18 months to three years.

In Rand, where an appeal from a sentence of four years imposed at trial was dismissed, the appellant had forced full vaginal and anal intercourse and oral sex on the complainant. The complainant repeatedly said no and was drifting in and out of consciousness. The complainant was then left in a bush and a friend of the appellant then also forced vaginal intercourse on the complainant. The appellant in that case also had a criminal record, including a record for violence.

In Thurairajah the accused had sexual intercourse with a drunk and passed out 14 year old who was incapable of consenting. He then dumped the complainant in a snow bank. At trial he received a sentence of two years less a day to be served conditionally in the community. The Crown appealed. The Court of Appeal set aside the conditional sentence. In that case Doherty J.A. set the bottom of the range of sentence for such an offence at two years less a day. He did not refer to the upper end of the appropriate range. However, at para. 42 he held:

The emphasis to be placed on denunciation and to a lesser extent general deterrence, grows with the seriousness of the particular circumstances surrounding the sexual assault...”

In that case Doherty J.A. emphasized the age and vulnerability of the victim, that the respondent committed the offence in the presence of others, that there was significant emotional harm to the complainant, and the respondent’s callous and highly life threatening treatment of the complainant after the rape.

In my respectful view, what occurred in the present case was less serious than the misconduct that was being sanctioned in the cases cited by the Crown. I would add that had there been a fully completed act of vaginal or anal intercourse with the complainant in the face of her saying “No, no, no”, a sentence of three years would be entirely appropriate. However, what happened here was a partial penetration of very short duration, which ended at the same time the complainant first said no.

In my view, judged from the point of view of the seriousness of the offence for sentencing purposes, what had occurred before the assault is also significant. The complainant had been grinding her backside into the accused’s groin. This is a form of sexual activity. From the accused’s perspective, there was consensual kissing and the complainant went into the bathroom without protestation. When he turned on the lights, she said something which, reasonably interpreted, suggested she wanted them turned back off.

While these things do not excuse the accused’s subsequent conduct, just as the factual circumstances surrounding a physical assault may render it less serious, these circumstances render the sexual assault in this case somewhat less serious than the assaults in the cases referred to by the Crown.

What then is the range of sentence that is appropriate in this case? As the facts of this case are important, I have searched for cases with somewhat similar facts but without much success.

Perhaps the closest case factually is R. v. Dohouky, 2008 19498 (ON SC), [2008] O.J. No. 1665 (S.J.C.) per D.R. McDermid J, affirmed 2009 ONCA 2190. The facts must be pieced together from the Court of Appeal’s endorsement and the trial judge’s reasons for sentencing. I have not been able to locate the trial judge’s reasons for conviction, where he said in his reasons for sentence the facts were fully set out.

In that case the accused and the complainant were in a relationship. There was some form of “quasi-sexual consensual activity” before the event. The complainant was asleep and awoke to find the accused attempting to penetrate her anally with his penis. She was awakened by a sharp pain. The event appears to have been of short duration. Consumption of alcohol was a factor in the appellant’s behaviour. The appellant in that case was 22 when sentenced, and was maintaining his innocence and exhibited no remorse.

The sentence imposed by the very experienced trial judge was nine months. The defence had sought a conditional sentence, which was rejected by the trial judge. The Crown did not appeal the nine month sentence. An appeal by the accused, seeking a conditional sentence was dismissed. The Court of Appeal made no adverse comment about the length of the custodial sentence imposed at trial. Based on Dohouky, I conclude a sentence of nine months is within the range of sentence that is appropriate on these facts.

I observe that in R. v. McDonnell, 1997 389 (SCC), [1997] 1 S.C.R. 948, a majority of the Supreme Court of Canada found that a sentence of one year was within the range of sentence for a sexual assault by the accused upon his 16 year old foster child. The assault involved partial penetration of the complainant’s vagina. The majority held that one year was at the bottom of the range. There were two sexual assaults in McDonnell. I note that the assaults described in McDonnell included young victims and a significant breach of trust. Those aggravating factors are not present in this case.

It seems to me that nine months represents the bottom of the range of sentence that would be appropriate in this case based on all of the facts.

Having regard to the absence of aggravating factors in this case, to the accused’s lack of criminal record, disadvantaged background, good work record, relatively positive pre-sentence report, and to the fact that this will be a first custodial sentence, I am of the view that a sentence of nine months to be followed by two years probation is an appropriate sentence for the accused.

I note that the accused has excellent prospects for rehabilitation. The offence was out of character for the accused and I infer his consumption of alcohol contributed to his involvement. He is described as generally being a moderate drinker. The evidence at trial was to the effect that the manager of the restaurant was walking around providing free drinks to all employees on the night in question.

Nine months is a meaningful period for someone without a criminal record to spend in jail. I am satisfied that it is a sentence which denounces what occurred in the case and that it is a sufficient period to provide an adequate measure of general and specific deterrence.

In addition, there will be two years of probation imposed on the terms recommended by the probation officer who did the pre-sentence report.

It is often said that sentencing is the most difficult task that a judge is called upon to perform. I have found this to be a very difficult case having regard to the immigration consequences that may flow from it.

Because the accused, who is a permanent residence and not a citizen, has been convicted of an offence with a maximum sentence of at least 10 years, for immigration purposes he is considered to have been convicted of an offence involving serious criminality. This could lead to a removal order being made against him. His counsel states this will almost certainly occur. However, should I impose a sentence of less than six months, the accused would have the right to appeal that decision, which could result in his being permitted to stay in Canada on conditions. No appeal is available if he is sentenced to more than six months. See generally the Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 36, 44, 45, 63 and 64; R. v. Aujla, 2015 ONCA 325.

After anxious consideration, I have come to the conclusion that to impose a sentence of six months less a day, as sought by the accused, would be to impose a sentence that is demonstrably unfit having regard to the degree of violation to the sexual integrity of the complainant. I wish to add, however, that should I be found to have been in error in this regard, I would have imposed such a sentence if I felt it was within an appropriate range of sentence due to the impact deportation will have upon the accused.

I note that in R. v. Nassri, as cited above, the Court of Appeal reduced a sentence by three months to ensure that the appellant had the right to appeal any removal order that might be made. In R. v. B.R.C., also previously cited, there was a reduction in the sentence of six months for the same reasons, at a time when the cut off point for the right to appeal a removal order was a sentence of two years.

However, in each of those cases, the court concluded that the sentence remained within the appropriate range. Unfortunately for the accused, I have not been able to reach a similar conclusion in this case.

The accused is sentenced to nine months in jail to be followed by two years probation. The accused will be subject to the following terms in addition to the statutory terms:

To report to a probation officer within five days of his release from custody and thereafter as directed by his probation officer;
Not to contact or communicate directly or indirectly with the complainant;
Not to knowingly be within 100 metres of the complainant;
To attend and actively participate in any rehabilitative and/or counselling program as recommended by his probation officer to address issues of a) inappropriate sexual behaviour and violation of boundaries; b) the consumption of alcohol. And to sign and necessary releases to allow the probation officer to monitor your attendance and progress in such programs;
To reside at an address approved of by his probation officer;
To seek and maintain full time employment or enrol in full time school and provide his probation officer with of his efforts to do so upon request.

In addition, the accused will be subject to a weapons prohibition order pursuant to s. 109. To the extent such an order is discretionary, it will be for 10 years. The accused will also provide a sample of his DNA suitable for inclusion in the convicted offenders data bank.

Pursuant to s. 490.012 of the Criminal Code the accused is also ordered to comply with the provisions of the Sex Offender Information Registration Act for a period of 20 years.

Pursuant to s. 743.21, the accused is prohibited from communicating directly or indirectly with the complainant during the time he spends in custody.

FORM 2

CERTIFICATE OF TRANSCRIPT

Evidence Act, Subsection 5(2)

I, Ryan Easson, certify that this document is a true and accurate transcription of the recording of, September 1, 2015, in, R. v. McKenzie in the Superior Court of Justice, held at 7755 Hurontario Street, Brampton, Ontario, taken from the Recording(s) 3199_402_20150901_092119__30_DAWSONF

which has been certified in Form 1.

(Date) (Ryan Easson)

Court File No. 14-526