Court File and Parties
CITATION: R. v. B.D.N., 2016 ONSC 1740
COURT FILE NO.: 14-RD19563
DATE: 20160311
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
B.D.N.
Accused
COUNSEL:
Chantal Lefebvre, for the Crown
Dominic Lamb, for the Accused
HEARD: March 11, 2016
NOTICE: THE COURT HAS MADE AN ORDER UNDER SECTION 486 OF THE CRIMINAL CODE OF CANADA PROHIBITING THE PUBLICATION OF EVIDENCE THAT COULD IDENTIFY THE COMPLAINANT IN THIS PROCEEDING
REASONS FOR SENTENCE
C.T. Hackland J.
[1] The accused was convicted following a six day trial of sexual assault (s.271 of the Criminal Code of Canada R.S.C., 1985, c. C-46 (“CCC”), unlawful confinement (s. 279(2) CCC) and sexual assault with a weapon (s. 272(2) CCC) and assault with a weapon (s. 267(a) CCC). The threatening charge was dismissed on consent of the Crown. The charges of sexual assault, (count 3) and assault with a weapon (count 1) are conditionally stayed on the Kineapple principle.
[2] At the time of the offences, the accused was living separate and apart from his wife, the complainant, but both remained in the matrimonial home. On the evening of December 26, 2013, following a discussion about separation, the accused lured the complainant upstairs to the computer room in this home. He later pushed the complainant onto the bed in the computer room, bound her hands and feet with rope, shaved her pubic hair, whipped her with a leather belt and had forced sexual intercourse with her.
[3] The accused’s evidence was that he intended his actions to be a step towards reconciliation even though he acknowledged he did not ask the complainant to consent to any aspect of his assault. I my view, he was acting out of a sense of entitlement and in an effort to assert his dominance over the complainant. The complainant reported the assault to the police the next morning.
[4] The Crown has recommended a sentence in the range of two and a half to three years in penitentiary. The Defence submits that a proper sentence would be a reformatory term of 15 to 18 months.
[5] At the commencement of sentencing submissions, the complainant asked to address the court. She made an emotional plea that her husband not be sent to jail. She said “everyone can make a mistake and he has learned his lesson.” She explained that she and the accused share the care of their three children, and they also jointly run their business which is a small retail store. She explained that they each work half days and there may not be adequate money to hire an employee to replace the accused if he is incarcerated. She also wanted to be in the position to talk to the complainant, particularly so that she could negotiate a separation agreement to deal with the business and the children’s issues. She stressed that the children did not want their father to go to jail.
[6] The complaint’s situation serves to illustrate how the accused’s actions have harmed the other members of his family on an ongoing basis. To give effect to the complaint’s wishes would have the effect of allowing the accused to escape punishment due to problems he has created for others by his unlawful acts.
[7] I will attempt to identify the aggravating factors in this crime as follows:
a) This was an act of domestic violence of a particularly serious nature. The complainant is the accused’s spouse. Section 718.2(ii) deems this to be an aggravating factor suggesting an increased sentence.
b) The whipping with the belt and shaving of pubic hair and tying the victim with ropes all served to degrade and torment the complainant. I reject the accused’s argument that because consensual bondage and role playing was an activity this couple engaged in from time to time, that this attack was somehow less egregious.
c) He refused to use a condom and penetrated the complainant when she implored him not to do so.
d) The entire attack, including the use of ropes and bondage paraphernalia was done surreptitiously.
e) The whipping with the leather belt in conjunction with the accused’s talk about the children was cruel and particularly egregious.
[8] The mitigating factors would be the following:
a) The accused was a first offender when this offence occurred and he had led a pro-social and indeed, very impressive lifestyle up to the time of this offence.
b) The accused has a highly supportive family, and indeed, even the complainant is prepared to speak well of him.
c) The accused is a well-educated professional and an extremely hard worker who, in the courts view, is not likely to re-offend.
[9] The Pre-Sentence Report (“PSR”) is generally favourable. However, it is noted that the accused continues to deny responsibility for his crime by saying “I thought we were having make-up sex.” This lack of responsibility and lack of acceptance of moral culpability, while not an aggravating factor, is nonetheless concerning from a rehabilitative perspective. On the other hand, the PSR states that the accused is willing to complete the New Directions program, which deals with domestic violence.
[10] I note the following authoritative statement of the relevant sentencing range from the case of R. v. Smith 2011 ONCA 564, 274 C.C.C. (3d) 34, per Epstein J.A. at para. 87:
87 Finally, in cases of sexual assault involving forced intercourse with a spouse or former spouse, sentences generally range from 21 months to four years: see R. v. R.(B.S.) (2006), 2006 CanLII 29082 (ON CA), 81 O.R. (3d) 641 (C.A.), 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.
[11] There is no question that the dominant sentencing goal in a case such as this is denunciation and general deterrence. Because the accused is a first offender, and considering the complainant’s remarks to the Court referred to in para. 5 above, I will impose a sentence at the lower end of this range. However, the violence and degradation inflicted on the complainant in this incident persuades me that a penitentiary sentence is required.
[12] I will ask the accused to stand. Sir, I sentence you to two years imprisonment in penitentiary for the offence of sexual assault using weapons (count 2) and on the offence of unlawful confinement, 12 months, to be served concurrently.
[13] In addition, I make the following ancillary orders:
You will provide a DNA sample which will be retained in the appropriate registry;
You will be prohibited from possessing any weapons as provided for in the Criminal Code of Canada, section 109, for a period of 10 years; and
You will be registered in the Sexual Offenders Registry for a period of 20 years.
Mr. Justice C.T. Hackland
Released orally: March 11, 2016
CITATION: R. v. B.D.N., 2016 ONSC 1740
COURT FILE NO.: 14-RD19563
DATE: 20160311
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
B.D.N.
Accused
REASONS FOR JUDGMENT
Hackland J.
Released orally: March 11, 2016