R. v. Richards, 2016 ONSC 2940
COURT FILE NO.: 13-SA5103
DATE: 2016/05/06
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ERIC RICHARDS
Accused
J. Bocking, for the Crown
P. Giancaterino, for the Accused
HEARD: March 29, 2016
REASONS FOR JUDGMENT RE SENTENCE
Aitken J.
Offences
[1] On December 10, 2015, a jury found Eric Richards guilty of the following offences under the Criminal Code, R.S.C. 1985, c. C-46: sexual assault with a weapon of J.B. (s. 272(2)), unlawful confinement of J.B. (s. 279(2)), operation of a motor vehicle in a manner dangerous to the public while driving in Beechwood Cemetery (s. 249(1)), uttering a threat to cause death to J.B. (s. 264.1(2)), mischief as a result of damage to property at Beechwood Cemetery (s. 430(4)), unlawful confinement of S.D. (s. 279(2)), and assault of S.D. (s. 266).
Evidence Regarding Offences
J.B.
[2] On September 6, 2013, J.B. was working as a sex trade worker on Montreal Road in Vanier. Mr. Richards picked her out as his target and stopped his vehicle just in front of her. J.B. approached the vehicle and asked if he wanted company. J.B. and Mr. Richards negotiated a price of $40 for a “blow job”. Mr. Richards drove J.B. to Beechwood Cemetery. Mr. Richards started to undo his jeans. J.B. stopped him and asked to be paid up front. Mr. Richards started to hit J.B. in the face and head with his fist and elbow. He produced a knife and slashed it down her body with the dull side. He told her that she was going to do exactly what he said or else she was going to get extremely hurt. Mr. Richards told J.B. to pull up her bra and to pull down her pants. While he held the knife at her neck, he put her breasts in his mouth and fingered her vaginal and anal areas. Then he pulled J.B.’s head down to his groin so that she could give him oral sex. J.B. begged him to put on a condom that she had with her, and he agreed. While J.B. was performing fellatio, Mr. Richards held the knife over her head, poking her with it, and telling her that if she hurt him or bit him, the knife would go through her head. Mr. Richards then put J.B. back in the passenger seat. He reached over her, reclined the seat, moved it further back, and then got on top of J.B. and penetrated her vagina. He had his fingers in her anus, causing her pain. When J.B. saw a jogger go by, she screamed. Mr. Richards punched her in the face and held the knife to her face, telling her that if she got him into any kind of trouble, he would kill her. Mr. Richards then turned J.B. over, pushing her face into the headrest and, with some difficulty, penetrated her anally.
[3] Meanwhile, the jogger had alerted the operations supervisor at Beechwood Cemetery that she thought a woman was in trouble in a near-by car. The supervisor immediately drove his truck to where Mr. Richards’ car was parked. Through the open driver’s side window, the supervisor could clearly see Mr. Richards on top of J.B.. Mr. Richards had one arm around J.B.’s head and neck, her head was pushed into the seat, and Mr. Richards was trying to penetrate her from behind with his penis. As soon as the supervisor asked what was going on, J.B. started to scream, and Mr. Richards rolled back into the driver’s seat, turned on the engine, and sped off. When Mr. Richards got off her, J.B. tried to get out of the car, but Mr. Richards pulled her back in as he sped away. When Mr. Richards slowed his vehicle to turn a corner, J.B. got out.
[4] The supervisor immediately called 911 and then quickly drove his truck to where he knew Mr. Richards was heading. He blocked Mr. Richards’ route, so that Mr. Richards could not exit the cemetery. Mr. Richards drove over a curb and landscaped area, crashing into a lamp post and eventually stopping in a parking lot. The supervisor ordered Mr. Richards out of the car and kept him confined until the police and an ambulance arrived. The police retrieved the knife used in the attack from the driver’s seat of Mr. Richards’ vehicle. J.B. was taken to hospital by ambulance, where she underwent a sexual assault assessment. She was then taken to the police station where she provided a formal statement as to what had happened. Mr. Richards was arrested at the scene.
S.D.
[5] In the late morning or early afternoon of June 18, 2012, S.D. was approached by Eric Richards while she was near the corner of Lafontaine and Lévis Streets in Vanier. Mr. Richards asked whether S.D. would like to make a quick twenty dollars. S.D. was a sex trade worker who was pregnant at the time. S.D. agreed to go with him, expecting that she could earn some easy cash by giving Mr. Richards a “hand job” or a “blow job”. Mr. Richards drove her to the St. Laurent Sports Complex parking lot, which was not far away. Mr. Richards took out his penis. S.D. asked for the money up front. Mr. Richards looked in his wallet and his pockets and then confessed that he had no money. Mr. Richards then started to play with S.D.’ breasts. She told him that he was taking advantage of her, and she started to leave the car. Mr. Richards pulled S.D. back into the car by her hair and prevented her from leaving the car.
[6] I am satisfied beyond a reasonable doubt that, at some point after these offences of unlawful confinement and assault, Mr. Richards and S.D. had a sexual encounter in Mr. Richards’ car during which Mr. Richards deposited semen on the sundress that S.D. was wearing. After this encounter was over, Mr. Richards offered S.D. one of his home rolled cigarettes. S.D. had one cigarette in the car and took two others with her when she left. These, along with the sundress she was wearing, were provided to the police the following day. The semen on the sundress and the fluid on the cigarette yielded DNA which was placed on the DNA database. When Mr. Richards was arrested on September 6, 2013 following the J.B. attack, DNA evidence from the condom retrieved from Mr. Richards’ clothing was linked to the DNA obtained from S.D.’ sundress and the cigarette.
[7] At trial, Mr. Richards claimed that the sexual encounter between himself and J.B. had been entirely consensual – an assertion clearly rejected by the jury. At trial, Mr. Richards acknowledged that at some point in the past, he may have used the services of S.D.; however, he asserted that any such encounter would have been consensual in nature. I find beyond a reasonable doubt that the semen on S.D.’ sundress was deposited by Mr. Richards on June 18, 2012 while he and S.D. were in his car at the St. Laurent Sports Complex.
Circumstances of Eric Richards
[8] Eric Richards’ circumstances are described as follows in the Pre-sentence Report dated February 2, 2016.
[9] Mr. Richards is 43 years of age. He was born with a hearing problem, though it is unclear to what extent, if any, this issue has impacted his life. Mr. Richards advised that he was bullied as a child because he is short and has a hearing problem but that it was no more than most children are bullied for one thing or another. Mr. Richards described his childhood as being relatively uneventful and middle class, though the family’s long-time physician advised that the family always had money problems. Mr. Richards has one brother with whom he is quite close.
[10] Mr. Richards dropped out of school when he was 15. When he was 18, he moved to Sioux Lookout to live with his aunt and to assist her in a home daycare operation. He stayed there for about seven years, during which time he completed high school. Once back in Ottawa, Mr. Richards enrolled in a college program in Hotel and Restaurant Management, but dropped out of that after one semester due to poor grades.
[11] In approximately 1994, Mr. Richards married a woman who was 15 years his senior. The marriage lasted about three years. The couple lived in Cornwall, where Mr. Richards worked for a couple of months as a factory worker. He sustained a back injury and was terminated during his probationary period. Although Mr. Richards has had many jobs over the years, he has not been able to maintain any.
[12] In approximately 2010, Mr. Richards met a women on line who resides in the United States. They corresponded and visited each other in the United States about twice annually. In approximately 2012, the couple married. The plan was for Mr. Richards to immigrate to the United States and live with his wife; however, that plan did not materialize. After his wife found out about the charges against him in this case, she has not had any further contact with Mr. Richards. Mr. Richards’ wife had one child prior to her relationship with Mr. Richards. She had a son during their relationship, which Mr. Richards believes is his. Mr. Richards has no contact with the children.
[13] Prior to his arrest, Mr. Richards had been residing with his brother for about four and a half years. Mr. Richards’ mother and brother continue to be supportive of him. Mr. Richards plans to live with his mother in Brockville when he is released from prison.
[14] There is no history of drug or alcohol abuse or dependency with Mr. Richards. He has taken pain medication for a back injury sustained when he was working in Cornwall, but otherwise has had no significant health issues.
[15] Mr. Richards acknowledged using the services of prostitutes three or four times a year.
Eric Richards’ Criminal Record
[16] Mr. Richards has no criminal record.
Victim Impact Statement
[17] J.B. read out her victim impact statement in which she recounted how Mr. Richards’ attack on her resulted in her living in fear and suffering many sleepless nights. Very wisely, she has sought help to get her through the difficult times after the trauma of this event. J.B. is a credit to herself, her colleagues, and her friends for having the courage and perseverance to participate fully in the criminal justice system to ensure that Mr. Richards is held accountable for his actions. Although S.D. declined to submit a victim impact statement, the way in which she reported the attack on her to the police and saved relevant evidence also showed her sense of responsibility that something needed to be done to ensure others did not experience what she went through.
Objectives of Sentencing
[18] The key objectives to sentencing in this case are denunciation and general deterrence.
[19] An important message that needs to be reinforced is that sex trade workers are human beings like everyone else and are entitled to the same benefits under the law as all other citizens receive. It is for them to decide to whom they will render services, the nature of those services, and the cost of those services. The sexual services provided by sex trade workers are not there for the taking, without the worker’s express consent. Sex trade workers have the right to say no. They have the right to change their minds and to stop any encounter they are in. They have the right to leave a situation in which they are no longer comfortable. And they are no more obliged to provide free services than the next person – be that person a construction worker, a teacher, a lawyer, or a factory worker.
Position of the Crown and of the Defence
[20] The offences of which Eric Richards stands convicted carry the following maximum sentences:
• sexual assault with a weapon of J.B. (s. 272(2)) – maximum of 14 years,
• unlawful confinement of J.B. (s. 279(2)) – maximum of 10 years,
• operation of a motor vehicle in a manner dangerous to the public while driving in Beechwood Cemetery (s. 249(1)) – maximum of 5 years,
• utter a threat to cause death to J.B. (s. 264.1(2)) – maximum of 5 years,
• mischief as a result of damage to property at Beechwood Cemetery (s. 430(4)) – maximum of two years,
• unlawful confinement of S.D. (s. 279(2)) – maximum of 10 years, and
• assault of S.D. (s. 266) – maximum of five years.
[21] The Crown is seeking a global sentence of eight to ten years with Mr. Richards receiving credit for time served at a rate of 1.5 to one.
[22] Defence counsel argues that a fair and just sentence would total four and a half years, broken down as follows:
Re J.B.
• Sexual assault with a weapon: four years
• Unlawful confinement: three months concurrent
• Uttering threats: three months concurrent
• Dangerous operation of a motor vehicle: 30 days concurrent
• Mischief to property: 15 days concurrent
Re S.D. (consecutive sentences to those relating to J.B.)
• Unlawful confinement: three months consecutive
• Assault: three months consecutive
[23] Defence counsel argued for an ultimate sentence of time served or at least a sentence of under two years plus a period of probation, once credit for pre-sentence custodial time had been considered.
[24] As of May 6, 2016, Mr. Richards will have been in custody for approximately two years and eight months. Crown counsel takes no issue with Mr. Richards receiving credit at a rate of 1.5 to one for this entire period. This means that, at a minimum, Mr. Richards would receive credit for 48 months of pre-sentence custody, or four years.
[25] Defence counsel argues that Mr. Richards should receive additional credit for the particular circumstances of his pre-sentence custody; namely, the number of days in which the Ottawa Regional Detention Centre has been on full or partial lockdowns since January 1, 2015. As can be seen from the following chart, there has been an alarming number of days with lockdowns at the institution:
2015
of Full Day Lockdowns
Days with One Lockdown
Days with Two or more Lockdowns
Notes
January
3
2
4
February
5
5
6
March
5
7
10
April
2
8
2
May
2
7
9
June
4
7
9
Client moved to Lindsay from 4th – 11th
July
4
5
9
August
0
8
10
Several lockdowns ended 7:10-7:15, somewhat interfering with evening access
September
8
1
9
October
6
13
5
Client in court on 22nd and 27th
November
3
9
13
Client in court from 23rd – 27th & 30th
December
14
8
5
Client in court from 1st – 10th
2016
January
15
3
10
Consecutive full day lockdowns between 3rd and 15th
February
2
11
12
March
3
11
8
Power outage on 23rd
Analysis
Aggravating Factors
[26] There are several aggravating factors in this case:
• Eric Richards took advantage of women in a vulnerable sector in society – those addicted to drugs and working in the sex trade in order to support themselves and their habit.
• Mr. Richards used a weapon, namely a knife, to threaten and confine J.B.. And he went into the encounter with J.B. with a knife at the ready in his car. He was planning to use it to threaten and confine J.B. if she put up any barriers to his getting what he wanted. The fact that Mr. Richards used a knife in regard to the sexual assault has already been taken into account in the charge itself.
• Mr. Richards went into the encounters with both J.B. and S.D. knowing that he did not have any money to pay them, and with no plans to pay them for their services. He realized that they would insist on being paid and that this would likely result in a confrontation. He went into the encounters prepared for this eventuality.
• Mr. Richards’ attack on J.B. involved oral, vaginal, and anal penetration, and J.B. experienced pain as Mr. Richards tried to penetrate her.
• Mr. Richards planned to have intercourse with J.B. without using a condom, thus potentially exposing her to sexually transmitted diseases or the fear of having been exposed to them.
• Mr. Richards committed the offences against J.B. in a cemetery frequented by walkers, joggers, cyclists, those looking for a quiet corner for reflection, and those visiting the graves of loved ones. For any of them to come across what was happening in Mr. Richards’ car would have been frightening. For the general population to know that this kind of thing could happen at Beechwood Cemetery might give them pause when contemplating a visit there. It certainly shows disrespect for the solemnity of the environment.
• Mr. Richards committed the unlawful confinement and assault offences against S.D. in a public place frequented by both adults and children. Again, for anyone to witness what was going on in Mr. Richards’ car would have been frightening.
• S.D. was obviously pregnant at the time Mr. Richards assaulted and confined her.
Mitigating Factors
[27] The following mitigating factors are present:
• Eric Richards has no criminal record.
• Mr. Richards has the support of his family.
• From January 1, 2015 to March 29, 2016, the Ottawa Regional Detention Centre had approximately 76 days of full-day lockdowns and 226 days of one or two part-day lockdowns. This represented a significant amount of time during which Mr. Richards was confined to a cell with one or two other inmates and without access to showers, outside contact, exercise, or programming.
[28] There is a line of cases which stands for the proposition that, even though credit for pre-sentence custody has been capped at the rate of 1.5 to one, where the offender has experienced particularly harsh and inappropriate conditions during the period of pre-sentence custody, this can be considered a mitigating factor impacting on the sentence itself (R. v. Tulloch, 2014 ONSC 6120, 117 W.C.B. (2d) 95, at para. 29; R. v. Doyle, 2015 ONCJ 492, 124 W.C.B. (2d) 523; R. v. Gardner, 2016 ONCJ 45, 127 W.C.B. (2d) 438; and R. v. Bedward, 2016 ONSC 939). Exceptionality is not a precondition to meeting the test for mitigation founded on qualitative hardship (Bedward, at para. 19). That being said, it improves the chances of an offender’s sentence being reduced due to the mitigating factor of particularly harsh pre-sentence custody if some evidence is tendered regarding the impact of the particular circumstances on the particular offender. As well, when the offender is relying on a high number of institutional lockdowns, it would be helpful to provide evidence as to the reasons for the lockdowns. Neither type of evidence was tendered in this case. Nevertheless, Defence counsel urged me to significantly reduce Mr. Richards’ sentence to take into account the high number of lockdowns at the Ottawa Regional Detention Centre during the period of Mr. Richards’ pre-sentence custody.
Jurisprudence
[29] Crown and Defence counsel referred me to numerous cases relating to the range of sentences appropriate for sexual assaults with weapons committed against sex trade workers, and I consider the following the most useful in this regard: R. v. Kane, 2011 BCSC 345, 93 W.C.B. (2d) 309 (4 years), R. v. Walters, 2012 ABQB 83, 529 A.R. 126 (3, 7, 9 years for three separate sexual assaults with a weapon reduced to global sentence of 14 years), R. v. Alexander, 2013 ABCA 231, 107 W.C.B. (2d) 615 (5 years), R. v. White, 2016 ABQB 24 (5 years), R. v. Rayworth (1999), 45 W.C.B. (2d) 291 (4 years). The range of sentences in these cases was from a low of four to a high of nine years, prior to the totality principle being taken into account in multi-count sentences and prior to the impact of any pre-sentence custody being taken into account in either a quantitative or qualitative sense.
[30] I accept one consideration to be that, when sentencing a first time offender to incarceration in a penitentiary, the court ought to look to the shortest possible sentence that will achieve the relevant objectives of sentencing (R. v. Borde (2003), 2003 CanLII 4187 (ON CA), 168 O.A.C. 317, 172 C.C.C. (3d) 225 (C.A.), R. v. Thomas, 2014 ONSC 6946, 118 W.C.B. (2d) 97). In this case, the key objectives to sentencing are denunciation and deterrence, coupled with the goal to keep Mr. Richards away from the vulnerable population on which he has preyed. Therefore, even though Mr. Richards is a first offender, and this will be his first exposure to a prison sentence, there are objectives which require that his sentence be significant. Preying on vulnerable drug-addicted sex trade workers demands denunciation in strong terms.
Disposition
[31] After considering all of the circumstances of the offences and of Mr. Richards, and taking into account all of the aggravating and mitigating factors set out above, and that includes reducing the sentence otherwise deemed reasonable by a modest amount to account for harsh pre-sentence remand conditions, I conclude that the following sentences would individually be appropriate for each of the offences of which he has been convicted:
Re J.B.
• Sexual assault with a weapon: six years
• Unlawful confinement: three years concurrent
• Uttering threats: six months concurrent
• Dangerous operation of a motor vehicle: 60 days concurrent
• Mischief to property: 30 days concurrent
Re S.D. (consecutive sentences to those relating to J.B.)
• Unlawful confinement: one year
• Assault: six months concurrent
[32] This results in a global sentence of seven years which I consider proportionate to the seriousness of the crimes committed and in no need of reduction according to the totality principle. I consider this a fit and just sentence in all of the circumstances.
[33] Under s. 719(3) of the Code, “in determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody”. That provision is qualified by s. 719(3.1) to the effect that: “if the circumstances justify it, the maximum is one and one-half days for each day spent in custody”, subject to some exceptions.
[34] The Supreme Court of Canada confirmed in R. v. Summers, 2014 SCC 26 that:
• Enhanced credit for pre-sentence time in custody is based on two realities: (1) pre-sentence custody does not count for the purposes of eligibility for parole, earned remission, or statutory release, and this can result in a longer term of actual incarceration of offenders who were denied bail; and (2) conditions in remand centres tend to be particularly harsh, with such facilities often being overcrowded, dangerous places lacking in any meaningful programming (para. 2).
• Ineligibility for early release is a circumstance that, on its own, can justify credit of 1.5 days for each day of pre-sentence custody, even if the conditions of detention are not particularly harsh and parole is unlikely (para. 71).
• As a result of the wording of ss. 719(3) and (3.1) of the Code, a sentencing judge cannot give more than 1.5 days for each day of pre-sentence custody (para. 70).
• “The unavoidable consequence of capping pre-sentence credit at [the rate of 1.5 to one] is that it is insufficient to compensate for the harshness of pre-sentence detention in all cases. However, this does not mean that credit should be scaled back in order to “leave room at the top” of the scale for the most egregious cases. A cap is a cut-off and means simply that the upper limit will be reached in more cases” (para. 72).
[35] In this case, Crown counsel acknowledged that credit at a rate of 1.5 to one was appropriate for Mr. Richards, and I will allow that. Mr. Richards has been in custody for 32 months as of today. This means that he is entitled to credit for pre-sentence custody of four years.
[36] Taking this into account, I sentence Mr. Richards to an additional global term of imprisonment of three years.
[37] In addition, Mr. Richards shall be subject to a weapons prohibition order under s. 109 of the Criminal Code for life.
[38] Pursuant to s. 743.21 of the Code, Mr. Richards shall not communicate directly or indirectly with J.B. or S.D. during the custodial period of his sentence.
[39] Mr. Richards shall provide a DNA sample under s. 487.051 of the Criminal Code.
[40] Mr. Richards shall comply with all relevant provisions under SOIRA for a period of 20 years.
Aitken J.
Released: May 6, 2016
COURT FILE NO.: 13-SA5103
DATE: 2016/05/06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
ERIC RICHARDS
REASONS FOR JUDGMENT RE SENTENCE
Aitken J.
Released: May 6, 2016