NEWMARKET COURT FILE NO.: CR-14-8246

DELIVERED ORALLY: 20151113

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ALLEN CHOW

Defendant

M. Henschel, for the Crown

J. Penman, for the Defendant

HEARD: May 12, 13, September 8 and 9, 2015

REASONS FOR SENTENCE

MULLIGAN J.:

1On May 11, 2015, Allen Chow pleaded guilty to a 36-count indictment. A four-day sentencing hearing followed. The 36 counts involved sexual assault causing bodily harm and administering an overpowering drug to 18 different victims. A non-disclosure order was made as to the names of the victims. Therefore, in this sentencing decision, I will refer to the victims only by their initials. Crown and defence counsel filed a lengthy and detailed Agreed Statement of Facts together with certain video and other exhibits, which were sealed to protect the anonymity of the victims. Several victims filed written Victim Impact Statements, and some chose to read their statements to the court. Although no pre-sentence report was filed, Mr. Chow has previously undergone a detailed and comprehensive assessment at the Forensic Treatment Unit of the Brockville Mental Health Centre in 2014, under the supervision of Dr. John Bradford, a psychiatrist. That report was filed as an exhibit. Dr. Bradford gave evidence at the sentencing hearing at the request of the defence, where he was also cross-examined by the Crown. Defence counsel filed several letters of support on behalf of Mr. Chow, and both Crown and defence filed a Casebook of Authorities to assist the court in determining a fit sentence for Mr. Chow.

2At the end of the hearing, the Crown requested a stay with respect to Count 36, which was in essence a repetition of Count 35, sexual assault causing bodily harm.

3Mr. Chow was originally arrested on December 4, 2012 and spent seven days in custody. He was released on bail, but was re-arrested on March 25, 2013 with respect to these 36 counts before the court. He has been in custody since then. It is important to note that between 2009 and 2012, the period in which Mr. Chow committed these offences, he was at all times a licensed pharmacist operating his own retail pharmacy business. The Ontario College of Pharmacists, of which Mr. Chow was a licensed member, has a Code of Ethics. Its preamble provides:

All members of the College have moral obligations in return for the trust given them by society. They are obligated to act in the best interests of and advocate for the patient, observe the law, upholding the dignity and honour of the profession, and practice in accordance with ethical principles and the respective standards of practice.

Principle Five of that Code provides "Each member acts with honesty and integrity.”

Circumstances of the Offences

4The Agreed Statement of Facts filed in this case was comprehensive and thorough. I will briefly review the facts with respect to each of the 18 victims and at the same time, discuss the Victim Impact Statements for those victims that filed reports with the court. There is no question that Mr. Chow’s conduct is unprecedented in terms of the number of victims he drugged and videotaped while performing all manner of sexual acts on them while they were unconscious. As the Agreed Statement of Facts provided at para. 17:

Mr. Chow subjected his victims to degrading and dehumanizing activity. He spit on them, licked them, kissed them, digitally penetrated them and engaged in unprotected anal and vaginal sex, exposing all of the women to significant risk of contracting sexually transmitted diseases. He treated the women as objects, manipulating their bodies as he pleased.

5After police arrested Mr. Chow based on a complaint from one of the victims, numerous SD cards were found in his possession. These SD cards contained the videos he had taken of himself with a number of the victims. The victims were sex-trade workers, who had agreed to consensual sex. Mr. Chow’s modus operandi was to seek out sex-trade workers and pay them for sexual services in a hotel room. At the hotel room, he would set up a video camera, unbeknownst to the victim. He would then administer a noxious substance, Lorazepam to the victim. While the victims were unconscious, he would engage them in all manner of sexual activity, including vaginal sex and anal sex, often without the use of a condom. He filmed these encounters, often focusing on his face while engaged in these activities. When he was finished, he would often leave the victims in the hotel room to regain consciousness on their own and make their way home in spite of the condition he had subjected them to. He had numerous similar encounters with several of the victims over a three-year period.

6When Mr. Chow was arrested, police also seized his briefcase containing Lorazepam, Viagra, Cialis, and cough syrup bottles containing ethanol. A subsequent search of his residence led to the seizure of further SD cards, as well as bottles containing Oxycodone, Morphine, and other pharmaceuticals. A complete list of the items seized is set out in the Agreed Statement of Facts.

7In a painstaking and thorough investigation, the police reviewed the seized videos to determine the names of the victims. Over a period of time, they were able to identify and interview 18 victims. It was only then that the victims learned that they were subject to this degrading and humiliating activity while being videotaped. It is clear that none of the victims consented to unprotected sex, anal sex, to being rendered unconscious, or to being videotaped while in such a state.

8Seized evidence consisted of 70 hours of video footage with respect to 17 different women, assaulted on multiple occasions on 95 different dates over a three-year period.

9I will now review the counts with respect to the 18 different victims. Unless otherwise noted, there are two counts involving each victim: the first is sexual assault causing bodily harm; the second is the administration of a stupefying or overpowering drug.

Counts 1 and 2

10S.S. was the first victim to contact police as a result of her relationship with Mr. Chow. Her relationship with him as an escort began when she was 18. Her report to the police led to Mr. Chow’s arrest and search. The police found, among other items, the video files previously noted. The video of S.S. showed that she was unconscious and unresponsive while being videotaped on 14 different occasions.

11S.S. provided a Victim Impact Statement. She indicated in part:

When I came to court and watched my video statement I felt sick, when I got home that was all I could think about, I cried constantly and didn’t even want to hold my daughter because I didn’t think I was good enough.

Counts 3 and 4

12R.A. was 27 when Mr. Chow assaulted and videotaped her. The Agreed Statement of Facts indicates that she always practiced safe sex with clients and required them to use a condom. She did not allow clients to take any pictures or videos and she did not agree to have anal sex or use drugs. During the police interview, she recognized herself in the still photo, but refused to watch all of the video footage located by the police depicting her.

Counts 5 and 6

13M.W. was seen in 24 separate videos taken by Mr. Chow. At the time, she was 22 to 24 years of age. She had earlier entered into a sexual relationship with Mr. Chow as a sex-trade worker. In her Victim Impact Statement, she recalled falling asleep in Mr. Chow’s company and not being able to explain why. She recalled driving home after one such occasion going to bed and sleeping until the next day. When she woke up, she had no recollection of the drive home. At her request, Mr. Chow provided her with birth control pills. She was not aware that the encounters were being videotaped.

14In her Victim Impact Statement, M.W. provided in part:

When the police approached me to tell me I was a victim of a crime, I vaguely remembered, I lost everything, five times, as chaotic rolling bouts of depression took over my life. I want to be strong, though, and I think I’m getting there.

She reports that she is seeking professional counselling and stated, “I really wanted to just say that he has ruined my life, as far as I know it, so far.”

Counts 7 and 8

15The victim who I will identify by her last initial. W. was 32 when she encountered Mr. Chow. The video shows that she was unconscious and unresponsive while Mr. Chow filmed himself spitting on her and penetrating her anally and vaginally. On the last occasion they were together, she declined a drink but took a sip of orange juice and had no recollection of anything thereafter. She woke up confused and had no memory of what happened. She went to a clinic and confronted Mr. Chow. He denied that anything improper had occurred, but he never called her again. She had difficulty watching the video the police showed her.

16In her Victim Impact Statement, W. indicated that when the police contacted her, she was:

Overwhelmed and feeling unsure of what I just heard, my secret was out there, denial, shame, guilt, blame. All these emotions were going on and the question in my mind was, how do I tell my mom, her one fear for me being alone in the city. It happened … It has been four years since my assault, but the emotions are still overpowering at times, where I feel that more counselling and lots of tears will help me leave my intense emotions behind and find a more peaceful environment in which to heal.

Counts 9 and 10

17The videos depicted Mr. Chow having intercourse with M.S., anally and digitally penetrating her, and licking and spitting on her on seven different occasions. She was 20 years old at the time. During their relationship, he bought her alcohol and gifts. At one point, she accused Mr. Chow of drugging her, but he denied it. On another occasion, she recalled being sick to the point of vomiting.

Counts 11 and 12

18The videos showed Mr. Chow having unprotected vaginal and anal intercourse with N.S. while she was unconscious. As the Agreed Statement of Facts indicates, she had certain rules as an escort, including no anal sex, no videotaping or photographing, and that clients must wear condoms. It was her practice not to accept drinks from clients but she did take a sandwich. She had no recollection of what occurred after that, other than recalling that she was on her stomach with Mr. Chow on top of her. She woke up feeling ill and went to the bathroom to vomit. He was gone. It took her a day or two for her head to clear. She decided not to see Mr. Chow after that incident. The Agreed Statement of Facts indicates that Mr. Chow told her he was a pharmacist and he could get her “different kinds of stuff”. The police asked her to review the videos, but she was crying and was too upset to continue watching. She was 26 years old at the time.

Counts 13 and 14

19The videos depicted Mr. Chow having vaginal and anal intercourse with E.M., together with other sexual acts. This activity began when she was 19 years of age. She was unresponsive in the videos which depicted 13 different occasions. As the Agreed Statement of Facts indicated, Mr. Chow told her he was a pharmacist and he would be able to provide her with medication. He provided her with Nitrazepam during their relationship. On one occasion, he drove her to a location so she could pick up crystal meth for her own use. She thought her memory loss was due to the use of crystal meth and alcohol. She was able to identify herself on the videos shown to her.

Counts 15 and 16

20The videos showed Mr. Chow performing sexual acts on A.A. while she was unconscious and unresponsive. She was 20 years old. She saw him several times and he would often request 15 minutes to prepare the hotel room. She recalled awaking to find Mr. Chow having unprotected sex with her. Shortly thereafter, she underwent testing for STDs at a clinic.

Counts 17 and 18

21The video showed Mr. Chow engaging in sexual acts with S.J., where she was unconscious and unresponsive on nine separate dates beginning when she was 21. She did not agree to sex without a condom or to him videotaping their encounters.

Counts 19 and 20

22There were no videos of encounters with A.H., but she was identified by officers as a result of text messages between her and Mr. Chow. She was interviewed and recalled an occasion at a hotel room where “after taking a drink of vodka and orange juice” from Mr. Chow, she next woke up at home without knowing how she got there. On another similar occasion, she recalled waking up and not remembering anything about the evening. She thought she may have driven herself home at that time. She was about 21 years old at the time.

Counts 21 and 22

23Investigators located still photos and videos showing Mr. Chow digitally penetrating S.W.’s anus, as well as having unprotected sexual contact with this 19-year-old victim. She was able to identify herself from a still photograph, but was unwilling to look at the videos.

Counts 23 and 24

24The videos revealed Mr. Chow having sexual contact with K.W. while she was unconscious and unresponsive. She knew he was a pharmacist. She recalled having a drink on one occasion and passing out with no memory of what happened. She recognized herself in the videos but refused to watch them in their entirety. These events occurred in 2009, when she was 33 years old.

25In her Victim Impact Statement, K.W. said in part:

I have had numerous hospitalizations for suicide attempts and post-traumatic disorder from what happened to me. He, of all people, a medical professional, purposely and knowingly preyed on me numerous times.

Counts 25 and 26

26The video showed Mr. Chow performing sexual acts on J.N. while she was unconscious and unresponsive. She was 20 years old at the time. She recalled “feeling really messed up” after accepting a drink from Mr. Chow while in the hotel room. On another evening, she had no recollection of how she got home that night. When she learned of the video, she was devastated and could not watch it.

27J.N. provided a Victim Impact Statement. She stated in part:

I find myself randomly screaming and bursting into tears. The hardest part about it all was telling my parents. I’ve never seen such heartbreak and shame in two people who love me so much. I let them down. I hate myself for that.

Counts 27 and 28

28The video showed Mr. Chow engaging in unprotected sexual intercourse with K.J. while she was unconscious and unresponsive. At the time, she was 20 years of age. He told her he was a pharmacist. Her rules were to practice safe sex. She did not allow videos or anal sex. She was upset and crying when she watched the video.

Counts 29 and 30

29The video showed Mr. Chow engaging in unprotected sexual intercourse with T.M. while she was unconscious and unresponsive. She was 20 years old at the time. She provided a statement to the police but sobbed uncontrollably for much of it. When she met with Mr. Chow, she refused to take a drink because she was not a drinker, but she recalled he brought take-out food.

30T.M. provided a Victim Impact Statement. As she stated in part, “It has given me anxiety and nightmares. I try not to think about it because it is a feeling that I can’t describe, to know that something like this happened to me without even knowing it.”

Counts 31 and 32

31The video showed Mr. Chow engaged in unprotected sexual intercourse with T.S. while she was unconscious and unresponsive. She was 27 at the time. She recalled that on one occasion, she blacked out and couldn’t explain why. She felt “messed up”. She viewed the videos and was able to identify herself, and confirmed that she had no knowledge that she was being videotaped.

Counts 33 and 34

32The videotape showed Mr. Chow having unprotected sexual intercourse with S.T. while she was unconscious and unresponsive. She was 22 years of age at the time. She agreed to meet Mr. Chow for escort services, but would have only consented to protected sex. She did not consent to anal sex. She fell asleep and did not wake up until the following morning. She became emotional watching the video.

Counts 35 and 36

33The video showed Mr. Chow engaging in unprotected vaginal and anal intercourse with J.R. while she was unconscious and unresponsive on three different occasions. She was 26 years of age. In one of the videos, she appears to be unconscious with foam coming out of her mouth. She may have vomited. She recalled meeting Mr. Chow on several occasions for escort services. She felt ill while having drinks and dinner with Mr. Chow. She went to the hotel and fell asleep. She was able to identify herself from the videos, but became upset and emotional. As the Agreed Statement of Facts indicates, “When she learned that Mr. Chow had sodomized her, she became physically ill in the waste basket of the interview room.”

34As previously noted, Count 36 was stayed at the request of the Crown. It was a duplication of Count 35, sexual assault on J.R., causing bodily harm.

35J.R. stated in her Victim Impact Statement in part:

When I think of you, my chest gets tight, I feel sick to my stomach, and I get major anxiety which I have had some major anxiety attacks when thinking about what you have done to not only me, but many other women and young ladies. I also had depression after I found out about all of this.

Circumstances of the Offender

36Mr. Chow has no criminal record. At the time of the sentencing hearing, he was 62 years of age. Although no pre-sentence report was prepared, much information was provided through the report of Dr. Bradford after Mr. Chow’s assessment at the Brockville Mental Health Centre. Mr. Chow came to Canada from Hong Kong on a student visa and met his future wife while attending York University. They are married and have an adult daughter. Mr. Chow obtained a pharmaceutical degree, became a licensed pharmacist, and ran his own retail pharmacy for 17 years, until he was arrested for these offences. He and his wife lived together in the same residence for over 30 years.

37In 2005, Mr. Chow was diagnosed with prostate cancer. He sought medical advice and chose to engage in a program of clinical surveillance rather than surgery. In follow-ups, his PSA score did not increase and he stopped attending the surveillance clinic.

Psychiatric Evaluation

38At the request of his defence counsel, Mr. Chow was referred to the Brockville Mental Health Centre for a forensic psychiatric evaluation pursuant to a court order. From February to May of 2014, he resided at the Brockville Mental Health Centre and was subject to a battery of tests under the supervision of a psychiatrist, Dr. John Bradford. Dr. Bradford prepared a report, which was marked as an exhibit. In addition, Dr. Bradford gave evidence at the sentencing hearing. In his testimony-in-chief and on cross-examination, he fleshed out and provided further explanation about aspects of the report. To assist future Parole Board authorities, I have ordered a copy of the transcript of his testimony to be provided to the correctional authorities, together with his report.

39Dr. Bradford and his team had access to all of the disclosure information provided by the Crown, including the videos previously referred to.

40As part of the forensic psychiatric assessment, Dr. Bradford’s team took a sexual history of Mr. Chow, a family history, and personal history. While at Brockville, a forensic social worker conducted a biopsychosocial assessment.

41A neuropsychological assessment indicated that Mr. Chow was suffering from a significant level of clinical depression.

42In cross-examination, Dr. Bradford was also questioned about the risk assessment note of Carol Cavaliere, MA, Psych Resident, dated March 23, 2014. Her report considered the various tests conducted and opined:

However, results of the PCL-R suggest significant clinical risk and risk management concerns. Specifically, his scores on the PCL-R suggest a general lack of empathy and remorse, and an unwillingness to accept personal responsibility. During the current assessment, Mr. Chow engaged in significant minimalization and rationalization of his index offences. Although Mr. Chow expressed an awareness of the various factors that may have contributed to his offending behaviour, he demonstrated a tendency to externalize the blame for his behaviour. As a result, his plans to avoid future offending appear overly simplistic (eg. stating he will not re-offend because the past stressors that he perceives as having made him offend are no longer relevant). At present, Mr. Chow demonstrates ineffective coping skills (i.e. drinking, sex) and, as a result, it is likely that he may resort to these maladaptive strategies when faced with future stressors or recurrence of his major depressive disorder (as diagnosed by Dr. Bradford). Combined with a lack of empathy noted above, this is an area of concern.

43A sexual behaviours assessment was more telling. As Dr. Bradford noted in his report, “He showed an increased rape index of 1.3, showing a sexual preference towards coercive sex.” Dr. Bradford explained in his testimony that a reading over 1 is significant, and a reading of 2 to 3 would be in the very significant range. Dr. Bradford opined that the rape index would have been higher if measured while Mr. Chow was consuming alcohol.

44As to risk assessment, Dr. Bradford noted that on the Static 99R Scale, “Mr. Chow received a score of -1, which places him in the low category for sexual offence recidivism. This would place him below the tenth percentile.”

45The report noted that around age 55, Mr. Chow started drinking significantly, including drinking while he was working at the pharmacy. His alcohol was secreted within medicine bottles or containers. As to diagnosis, Dr. Bradford concluded that, “Mr. Chow presented with a major depression without psychotic features; alcoholism; and paraphilia NOG [not otherwise specified], as well as cancer of the prostate.” Dr. Bradford felt that Mr. Chow was an anomaly because of the late onset of his sexual disorder and alcoholism. As to why these offences occurred, Dr. Bradford opined:

Mr. Chow committed the offences in my opinion as a result of a sexual motivation that probably developed incidentally from viewing pornography of unconscious females on the Internet and in addition the real-life experience of an escort who was drunk falling asleep while he was engaged in sexual activity. Through this combination of events it is likely an erotic preference developed for him to have sex with unconscious females. This led to him subsequently using Lorazepam to drug sex trade workers to make them unconscious while he engaged in sexual acts with them. This was all recorded in detail on the extensive videotaping that he used to film the victims when they were unconscious and he was engaging in a range of sexual activity with them. Mr. Chow admits a sexual motivation to the behaviour but also gives an explanation that as he was paying for their services he felt justified in making them unconscious for sexual gratification. The only thing he was considering under the circumstances was that he was more comfortable in sexual situations with unconscious females. This deviant behaviour started most likely in 2008/2009 and would have continued if he had not been apprehended. Although Mr. Chow is very embarrassed now that his deviant sexual behaviour has been exposed, at the actual time he was perpetrating these acts it does not appear that he was considering the consequences either to himself or to the victims.

46Dr. Bradford further opined that coercive sexual activity such as this falls within the spectrum of sexual sadism. Dr. Bradford also noted:

The consumption of alcohol in general terms enhances certain deviant sexual preferences, while at the same time providing some level of disinhibition make it easier to act out the deviant sexuality.

Dr. Bradford concludes, “In my opinion, Mr. Chow has developed a paraphilic disorder which fits sexual sadism and paraphilic coercive disorder.”

47Dr. Bradford explained that sexual sadism may manifest itself in several ways when non-consensual activity takes place. Some individuals are aroused by instilling fear, torture or threatening behaviour with their victims. Others seek to control their victims. In Mr. Chow’s case, he controlled his victims by drugging them and then engaging in non-consensual sexual activity.

48As to possible treatment, Dr. Bradford recommended:

The treatment would be comprehensive both psychological, but also would have to include pharmacological treatment and specifically antiandrogen treatment. In the case of Mr. Chow, the most appropriate treatment given his diagnostic presentation would be the use of a luteinizing hormone releasing hormone agonists such Leuprolide Acetate (Lupron). This would bring about a pharmacological castration and the treatment of choice for this diagnostic condition.

Dr. Bradford concluded, “With this treatment, the risk of any future recidivism is low.”

49In his testimony, Dr. Bradford indicated that Mr. Chow was an anomaly due to the late onset of his condition. Dr. Bradford explained that for some individuals, sexual sadism represents a trait. For others, it represents a state. As he explained, often sexual sadism manifesting in individuals in their twenties or thirties indicates a trait, which presents a significant risk for the future. Others such as Mr. Chow may find themselves in a state at a certain point in life when sexual sadism manifests itself. Dr. Bradford felt that a number of factors may have impacted Mr. Chow’s state, including worries about cancer, rising level of alcohol consumption, depression and anxiety, and otherwise acting out of character after many years of a productive lifestyle at work and at home.

50In cross-examination, it was underscored that Mr. Chow presented a lower risk only if he agreed to psychological counselling and pharmacological treatments. Dr. Bradford noted that these treatments could not be made mandatory or ordered by the court. Much depended on Mr. Chow’s agreement to follow these course of treatments.

51In cross-examination, Dr. Bradford was taken to several clinical notes made during his assessment of Mr. Chow, including his note of March 10, 2014, where he concluded, “His insight is limited and his judgment is limited.” Dr. Bradford noted that while Mr. Chow was being assessed, he was not receiving treatment other than medication for his depression. He noted that Mr. Chow now has a lifelong disorder. He stated that if a person in these circumstances were to re-offend, it would more likely be the same type of offence, and that once these offences start, they can escalate over time.

52Mr. Chow used Lorazepam to sedate his victims. Dr. Bradford explained that this controlled drug, as used by physicians, induces sleep. It has a half-life of about two hours. When combined with alcohol, it can lead to feelings of drunkenness and instability upon recovery.

Mr. Chow’s Comments to the Court

53In accordance with the requirements of the Criminal Code, Mr. Chow was given an opportunity to speak to the court before the hearing concluded. He read a letter, which was filed as Exhibit 10. The victims who attended court on an earlier date were not in court to hear Mr. Chow’s statement. In the result, I asked the Crown to consider providing a copy of this statement to the victims. Mr. Chow begins his letter as follows:

First and foremost, I’d like to offer my deepest and most sincere apology to each and every one of my victims. I have deceived them, betrayed their trust, and taken advantage of them, and I have caused them physical and psychological harm. My actions are callous, heinous, selfish and degrading, and they are unlawful.

54Mr. Chow’s letter indicates that he has undergone a period of self-reflection while in custody. I accept Mr. Chow’s apology and self-reflection as genuine. However, the medical records taken during his assessment indicate that he lacked insight into his conduct. Some aspects of his letter to the court give me concern. As he states in the same letter:

I indulged my sexual fantasy to the fullest degree. I wanted to feel young again by associating with young escorts to reassert my virility. I am not misogynistic. My actions were never meant to harm, nor were they carried out with violent, malicious or criminal intent. They were pure sexual fantasy merely, nothing more. I was naïve and ignorant not to have realized the criminality of my actions.

Letters of Support for Mr. Chow

55Defence counsel filed a number of letters of support for Mr. Chow, including letters from his wife, his daughter, his nephew, and his siblings, as well as his friends and neighbours. His accountant also filed a letter of support attesting to kindnesses shown to him by Mr. Chow over the years. All showed an understanding of the predicament that Mr. Chow faced and the seriousness of the charges before the court. This family and community support will no doubt assist Mr. Chow during his period of incarceration and later his integration back into the community.

Position of the Crown and Defence

56Both Crown and defence made submissions on sentencing and filed a Casebook of Authorities. But both Crown and defence point out that Mr. Chow’s late onset of sexual sadism is unprecedented as to the nature and extent of his offences. For sentencing purposes, there are simply no direct comparisons. The offence of sexual assault causing bodily harm carries a maximum sentence of 14 years. The Criminal Code provides a maximum sentence of life for administering a noxious substance.

The Position of the Crown

57The Crown seeks a significant sentence of 20 years in addition to credit for time served for pre-trial custody. The Crown points to the gravity of these offences, including the number of occurrences and the number of victims as significant aggravating factors. In addition, the Crown seeks ancillary orders, including a DNA order, a weapons prohibition order, and a SOIRA order. The Crown also asks the court to consider delaying parole eligibility pursuant to the provisions of s. 743.6 of the Criminal Code. Such an order would render Mr. Chow ineligible for parole until he has served one-half of his sentence.

The Position of the Defence

58The defence submits that a fit sentence for Mr. Chow would be 12 years less credit for pre-trial custody. The defence relies on a number of mitigating factors, including Mr. Chow’s guilty pleas, his lack of a previous criminal record, his loss of profession as a pharmacist, his previous productive life, his current age and health issues, and his prospects for rehabilitation.

59There are a number of mitigating and aggravating factors in this case. I have touched on the number of these factors earlier in this decision. The following is a summary of the factors and have considered in crafting an appropriate sentence.

Mitigating Factors

(i) Mr. Chow entered a guilty plea to all 36 counts before the court. A guilty plea is an expression of remorse. Although the victims were required to meet with the police and view the videos, they were not required to testify at a preliminary hearing or at trial.

(ii) Mr. Chow is a first-time offender with no history of previous criminal involvement.

(iii) Mr. Chow has otherwise led a productive life as a pharmacist, husband, father and law-abiding member of the community.

(iv) Mr. Chow is now 62 years of age and has been diagnosed with prostate cancer.

(v) Mr. Chow has never received a criminal sanction before. Dr. Bradford’s report indicates that he is a low risk to re-offend, provided that he submits to the recommended counselling and pharmacological therapy while maintaining sobriety when he returns to the community.

Aggravating Factors

(i) Mr. Chow’s actions were planned and deliberate. He took steps to develop a trust relationship with some of the victims and brought with him to the hotel room his video recording device and drugs to administer to the victims through food or drink. He did not do this once, he did not do this twice, he did it 75 times with 18 different victims.

(ii) He targeted a vulnerable group, seeking out young sex-trade workers, some as young as 18 who were less likely to report their condition, including memory loss or illness, after spending time with Mr. Chow. He exploited them financially by paying them and providing gifts and sometimes drugs. They trusted him because he told some of them he was a pharmacist and presented himself as a nice guy.

(iii) The victims had various adverse effects to being rendered unconscious. Some of them became ill, some of them had no memory of events, and some of them drove home in a condition where they ought not to have been driving. This occurred because Mr. Chow left them to their own devices after he had completed his sexual gratification in the hotel room. His lack of use of a condom exposed the victims to sexually transmitted diseases or pregnancy. In one case, he provided the victim with birth control pills, which he had no right to do as a pharmacist.

Failure to Appreciate his Actions

(iv) Several of Mr. Chow’s comments to medical practitioners while being assessed at the Brockville Hospital indicated a lack of insight into his actions.

Moral Blameworthiness

(v) Mr. Chow is a well-educated person with a degree in pharmacology and was at the time a licensed pharmacist. He was subject to a Code of Ethics. Yet, he administered a drug to render his victims unconscious. After his disgusting sexual conduct, he showed no concern for his victims’ recovery or ability to get home safely. All of them had no memory of the events that occurred while they were unconscious and several were sick during their recovery.

Principles of Sentencing

60Parliament has now codified many former common law sentencing principles in the Criminal Code. The fundamental purpose of sentencing, described in s.718 of the Code, is “to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions.”

61The Code sets out six objectives for sentencing judges to consider at ss.718(a) to (f):

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community.

62Both Crown and defence filed Casebooks of Authorities to assist the court in crafting a fit sentence for Mr. Chow. Both counsel acknowledged that they could find no cases of close comparison given the 36 offences here involving 18 victims of 95 incidents over a three-year period. I am satisfied that the cases filed do not establish an upper limit to offences such as these.

63The Crown made reference to the Supreme Court of Canada’s decision in R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500. Although the facts are not comparable, the Supreme Court provided guidance on retribution as distinct from vengeance. As the Court stated at paras. 79-80:

Retribution, as an objective of sentencing, represents nothing less than the hallowed principle that criminal punishment, in addition to advancing utilitarian considerations relating to deterrence and rehabilitation, should also be imposed to sanction the moral culpability of the offender.

However, the meaning of retribution is deserving of some clarification. The legitimacy of retribution as a principle of sentencing is often in question as a result of its unfortunate association with “vengeance” in common parlance. But it should be clear from my foregoing discussion that retribution bears little relation to vengeance, and I attribute much of the criticism of retribution as a principle to this confusion. As both academic and judicial commentators have noted, vengeance has no role to play in a civilized system of sentencing. Vengeance, as I understand, represents an uncalibrated act of harm upon another, frequently motivated by emotion and anger, as a reprisal for harm inflicted upon oneself by that person. Retribution in a criminal context, by contrast, represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender’s conduct. Further, unlike vengeance, retribution incorporates a principle of restraint, retribution requires the position of a just and appropriate punishment, and nothing more. [Citations omitted.]

64I will now review a number of other cases filed by the Crown. In R. v. Byer, 2007 ONCA 694, [2007] O.J. No. 3957, the sentencing judge imposed a ten-year sentence which the Court of Appeal upheld. After a trial, the accused was found guilty of sexual assault and administering a stupefying substance to four separate victims. The offences involved planning and deliberation.

65In R. v. Geary, 2010 MBCA 33, 251 Man. R. (2d) 258, the offender received a sentence of eight years, which was upheld on appeal. The offences involved two women who were sex-trade workers. The Court noted that the victims were deliberately chosen because they were vulnerable women.

66In R. v. G.(L.), 2007 ONCA 654, 228 C.C.C. (3d) 194, the offender received a sentence of six-and-one-half years. He drugged a woman and had non-consensual sex with her. The Court found that the offender, who had a previous criminal record, had carefully planned this crime.

67In R. v. Doodnaught, 2014 ONSC 1196, [2014] O.J. No. 870, the accused, a 65-year-old anaesthesiologist, received a sentence of ten years. He had no prior criminal record. The offences were committed within an operating room while the victims were under anaesthesia. The victims were aware of the sexual activity but unable to resist, due to the medication administered by the offender. Twenty-one victims were involved and the offences spanned four years. While in the operating room, the offender forced fellatio on some victims, touched other victims inappropriately, kissed victims, and used victims for masturbation.

68In his sentencing decision, Justice McCombs noted at paras. 27-29:

However, general principles of sentencing emerging from the decided cases make it clear that the overriding principles in this case must be denunciation of the conduct and the deterrence of others.

The offender’s moral blameworthiness is at the high end of the spectrum. His conduct did enormous damage and was reprehensible in the extreme. It must be condemned in the strongest of terms.

The Court has a duty to send a clear message that reflects society’s abhorrence for the conduct, and serves as a deterrent to others in a position of trust who might be inclined to prey upon vulnerable sedated patients.

69The Crown submits that Mr. Chow’s conduct was far worse than that of Dr. Doodnaught. Dr. Doodnaught’s patients were anaesthetized with their consent in a controlled environment. Although his assaults were horrendous, they were brief in nature and were not videotaped. Although there was a breach of trust, the incidents did not appear to be the result of planning and deliberation. Referencing the same case, the defence submits that Dr. Doodnaught’s offences were worse because the victims were aware of the sexual activity while sedated but were unable to do anything to stop it. He manipulated them in circumstances which amounted to an egregious breach of trust.

70In R. v. Lemmon, 2012 ABCA 103, 524 A.R. 164, the Alberta Court of Appeal varied a sentence against an offender with a previous record, who rendered a victim unconscious and sodomized and repeatedly raped her. The trial judge imposed a sentence of 13 years for each count and granted the Crown’s application to designate him as a long-term offender. The Court of Appeal varied the sentence as to the individual counts, but did not vary the global sentence or the designation of long-term offender status. As the Court of Appeal noted at paras. 27-28:

Parliament’s recognition of the inherent dangerousness of rendering a person unconscious to facilitate the commission of another offence is reflected by the maximum penalty prescribed for that offence, life imprisonment. But in context, that is a significantly greater sentence than could have been imposed for the underlying offence in this case, the sexual assault, which carries a maximum penalty of ten year’s imprisonment. In other words, what is usually seen as the “incidental” offence carries a much greater penalty than the one it facilitates. The only other related offences of personal violence subject to such a serious penalty are attempted murder and aggravated sexual assault.

A moment’s reflection will reveal a reason for that. Rendering a person unconscious, whether by choking, strangulation or suffocation is an inherently dangerous act that is easily capable of causing death or brain injury with devastating lifelong consequences.

71The defence submitted a number of cases suggesting that a lower sentence than that sought by the Crown would be appropriate in these circumstances. In R. v. Bedard, 2001 CanLII 8536 (ONCA), 158 C.C.C. (3d) 216, the Court of Appeal set aside a conditional sentence and imposed a sentence of nine months’ imprisonment. The offender, a chiropractor, pleaded guilty to nine counts of sexual assault relating to his patients. Under the guise of providing treatment, the offender digitally penetrated some of the victims, fondled them, and manipulated their genitals.

72In R. v. Buckingham, 2008 NLTD 12, 273 Nfld. & P.E.I.R. 50, the accused, a medical doctor, received a sentence of seven years after a trial for five counts of sexual assault on his patients. As the Court noted at para. 67:

However, the aggravating factors are legion. To name a few, he breached his professional responsibility in a most egregious fashion; he took grossly unfair advantage of his highly vulnerable patients; he trafficked in prescription drugs for profit or for base personal gratification; he has a criminal record; the number of offences involved.

73The defence responded to a number of cases filed by the Crown where courts imposed a dangerous offender designation as part of the sentencing decision. Such an order was not sought by the Crown here.

74The upper range of sentencing based on the cases submitted would appear to be ten years. However, there is no doubt that this case constitutes an exception, requiring the imposition of a much higher sentence. Indeed, defence conceded that a 12-year sentence was warranted. The Ontario Court of Appeal in R. v. Devaney, 2006 CanLII 33666 (ONCA), 213 C.C.C. (3d) 264, provided guidance with respect to cases that may fall outside the range. As Feldman J.A. stated for the Court at para. 14:

However, a trial judge is entitled to deviate from that starting point or range after considering the particular facts of the case including the circumstances of the victim, the particulars of the crime, and the history and circumstances of the offender. Where there are facts or circumstances that distinguish the situation significantly from other cases where sentences were imposed within the range, whether because of the victim, the nature of the crime itself, or the history or current circumstances of the offender, the trial judge is entitled to impose a sentence that adequately reflects the significance of those facts.

75It is clear, therefore, that in unprecedented circumstances, such as the ones I am faced with, my decision on sentencing is not confined by the upper range of the cases referenced to me.

Conclusion

76It is clear that the primary sentencing considerations for this offender are denunciation and deterrence. Notwithstanding his plea of guilty and lack of criminal record, a substantial period of incarceration is required. I do not need to repeat all of the aggravating factors here. Mr. Chow used his knowledge as a pharmacist and access to prescribed drugs to render his victims unconscious, only to engage them in all manner of non-consensual sexual activity for his own sexual pleasure. The offences were compounded by his videotaping these encounters for his own sexual pleasure. The sheer number of victims, 18, and the number of videotapings, 95, over a three-year period is unprecedented. During the period of these offences, he turned to alcohol and has been diagnosed as an alcoholic. He has also been diagnosed as a sexual sadist. He is at a low risk to re-offend only if he undergoes counselling and pharmacological treatment. These are decisions that he needs to make. His conduct in rendering these women unconscious in a hotel room and leaving them to their own devices when he was finished using them as objects, put them at risk. Some of them experienced sickness and some of them drove home unaware of the effects of the drugs in their system. Sometimes these drugs were combined with excessive alcohol use by the victims. As a pharmacist, Mr. Chow knew or ought to have known that a combination of the medications that he secreted into their food or drink together with alcohol could have harmful effects on these vulnerable young women. In my view, a global sentence of 18 years is a fit sentence for this offender.

77Mr. Chow is entitled to credit for time served in custody prior to this sentencing decision. To date, he has been in custody for 967 days. When multiplied by one-and-one-half, he is entitled to credit for 1450.5 days which I round up to the nearest month, 48 months or four years. This leaves a remaining sentence of 14 years to be served.

78The sentence for each count shall be recorded as follows:

(i) Count 1 – Sexual assault causing bodily harm – eight years;

Count 2 – Administering a noxious substance – ten years, consecutive with Count 1;

(ii) Count 3 – Sexual assault causing bodily harm – eight years;

Count 4 – Administering a noxious substance – ten years, consecutive with Count 3; Counts 3 and 4 concurrent with Counts 1 and 2;

(iii) Count 5 – Sexual assault causing bodily harm – eight years;

Count 6 – Administering a noxious substance – ten years, consecutive with Count 5; Counts 5 and 6 concurrent with Counts 1 and 2;

(iv) Count 7 – Sexual assault causing bodily harm – eight years;

Count 8 – Administering a noxious substance – ten years, consecutive with Count 7; Counts 7 and 8 concurrent with Counts 1 and 2;

(v) Count 9 – Sexual assault causing bodily harm – eight years;

Count 10 – Administering a noxious substance – ten years, consecutive with Count 9; Counts 9 and 10 concurrent with Counts 1 and 2;

(vi) Count 11 – Sexual assault causing bodily harm – eight years;

Count 12 – Administering a noxious substance – ten years, consecutive with Count 11; Counts 11 and 12 concurrent with Counts 1 and 2;

(vii) Count 13 – Sexual assault causing bodily harm – eight years;

Count 14 – Administering a noxious substance – ten years, consecutive with Count 13; Counts 13 and 14 concurrent with Counts 1 and 2;

(viii) Count 15 – Sexual assault causing bodily harm – eight years;

Count 16 – Administering a noxious substance – ten years, consecutive with Count 15; Counts 15 and 16 concurrent with Counts 1 and 2;

(ix) Count 17 – Sexual assault causing bodily harm – eight years;

Count 18 – Administering a noxious substance – ten years, consecutive with Count 17; Counts 17 and 18 concurrent with Counts 1 and 2;

(x) Count 19 – Sexual assault causing bodily harm – eight years;

Count 20 – Administering a noxious substance – ten years, consecutive with Count 19; Counts 19 and 20 concurrent with Counts 1 and 2;

(xi) Count 21 – Sexual assault causing bodily harm – eight years;

Count 22 – Administering a noxious substance – ten years, consecutive with Count 21; Counts 21 and 22 concurrent with Counts 1 and 2;

(xii) Count 23 – Sexual assault causing bodily harm – eight years;

Count 24 – Administering a noxious substance – ten years, consecutive with Count 23; Counts 23 and 24 concurrent with Counts 1 and 2;

(xiii) Count 25 – Sexual assault causing bodily harm – eight years;

Count 26 – Administering a noxious substance – ten years, consecutive with Count 25; Counts 25 and 26 concurrent with Counts 1 and 2;

(xiv) Count 27 – Sexual assault causing bodily harm – eight years;

Count 28 – Administering a noxious substance – ten years, consecutive with Count 27; Counts 27 and 28 concurrent with Counts 1 and 2;

(xv) Count 29 – Sexual assault causing bodily harm – eight years;

Count 30 – Administering a noxious substance – ten years, consecutive with Count 29; Counts 29 and 30 concurrent with Counts 1 and 2;

(xvi) Count 31 – Sexual assault causing bodily harm – eight years;

Count 32 – Administering a noxious substance – ten years, consecutive with Count 31; Counts 31 and 32 concurrent with Counts 1 and 2;

(xvii) Count 33 – Sexual assault causing bodily harm – eight years;

Count 34 – Administering a noxious substance – ten years, consecutive with Count 33; Counts 33 and 34 concurrent with Counts 1 and 2;

(xviii) Count 35 – Sexual assault causing bodily harm – eight years, concurrent with Count 1;

Count 36 – Administering a noxious substance – stayed at the request of the Crown.

Ancillary Orders

(i) There will be a weapons prohibition order under s. 109(1) of the Criminal Code;

(ii) There will be a DNA order under s. 487.051(1); and

(iii) Mr. Chow is required to comply with the Sex Offender Information Registration Act (SOIRA) for life, pursuant to ss. 490.012 and 490.013(2) for life.

Delayed Parole Eligibility

79In addition to its sentencing submissions, the Crown seeks an order delaying Mr. Chow’s parole eligibility, so that one-half of his sentence must be served before Mr. Chow could be considered for release under full parole. In circumstances such as this, the sentencing judge has the ability to consider this request under s. 743.6(1) of the Criminal Code, which provides in part:

…The court may, if satisfied, having regard to the circumstances of the commission of the offence and the character and circumstances of the offender, that the expression of society’s denunciation of the offence or the objective of specific or general deterrence so requires, order that the portion of the sentence that must be served before the offender may be released on full parole is one-half of the sentence or ten years, whichever is less.

80In R. v. Zinck, 2003 SCC 6, [2003] 1 S.C.R. 41, the Supreme Court of Canada considered this section with respect to an offender who had a long criminal record. LeBel J. noted the rationale for this section at para. 23 by quoting the earlier decision of R. v. Chaisson, 1995 CanLII 58 (SCC), [1995] 2 S.C.R. 1118, which stated:

…To indicate an intention on the part of Parliament explicitly to allow a trial judge to reduce the discretion of the Parole Board in certain circumstances, by requiring an accused to serve one-half of his or her term of imprisonment before being able to seek parole. …The determination of conditional release eligibility has now become a factor in sentencing and not simply a matter exclusively in the hands of the Parole Board. [Emphasis in original. Citations omitted.]

81The Court noted that this consideration remains out of the ordinary and involves a two-step process. First, the sentencing judge must determine a fit sentence for the offender. Second, the judge must review the same facts from the perspective of the requirements of deterrence and denunciation, which are to be given priority at this stage.

82After considering what the Court described as a double-weighing exercise, Justice LeBel concluded at para. 33:

[The delay of parole eligibility] may be made, for example, if after due consideration of all the relevant facts, principles and factors at the first stage, it appears at the second stage that the length of the jail term would not satisfy the imperatives of denunciation and deterrence.

83In Zinck, the Supreme Court of Canada made reference to an earlier decision of the Ontario Court of Appeal in R. v. Goulet 1995 CanLII 1198 (ONCA), 22 O.R. (3d) 118 at p.125:

A history of prior parole violations or violations of other forms of conditional release or evidence that significant prior custodial sentences have had little impact would be appropriate factors to consider in applying s. 741.2.

84In R. v. Jageshur, 2014 ONSC 5822, [2014] O.J. No. 4729, R.A. Clark J. imposed a sentence of ten years and ten months for an offender with a lengthy criminal record for importing a substantial amount of cocaine. After considering the principles in Zinck, including the double-weighing exercise, Justice Clark granted the Crown’s request to delay parole eligibility and stated at para. 104:

The offender was obviously not deterred by the sentences he received in 2000. I am satisfied that if he were not required to serve at least half of his sentence, he would not be specifically deterred from further such activities.

85Mr. Chow has received a global sentence of 18 years for his offences. The aggravating factors need not be repeated. Society’s abhorrence of his conduct is reflected in this lengthy sentence which gives prominence to specific deterrence and denunciation. Unlike the offender in Zinck, Mr. Chow does not have a criminal record. Unlike the offender in Jageshur, Mr. Chow pleaded guilty to these offences. Mr. Chow is at a low risk to re-offend provided he consents to treatment such as that described by Dr. Bradford and maintains sobriety upon release. It is in society’s interest that Mr. Chow receives treatment as soon as possible, so that its effectiveness can be monitored and measured. In my view, the Parole Board is in the best position to determine a fit period of parole eligibility in accordance with the Corrections and Conditional Release Act, S.C. 1992, c.20, after one-third of his sentence has been served.

86The application by the Crown for delayed parole eligibility is dismissed.

Delivered orally on November 13, 2015

NOTE: This ruling, as delivered orally, is to be considered the official version and takes precedence over these written reasons read into the record. If there are any discrepancies between the oral version and this written version, it is the oral version that is the official record to be relied upon.