Court File and Parties
Date: 20160729 Ontario Superior Court of Justice
Between: Her Majesty The Queen Soula Olver, for the Crown
- and -
Srinivasan Venkata Gadam Danielle Robitaille, for the Defendant
Reasons for Sentence
Trafford J.
THIS IS AN OFFICIAL COPY OF THE REASONS FOR SENTENCE THAT MAY BE USED FOR AN APPEAL IF IT IS SIGNED IN ORIGINAL BY TRAFFORD J.
Subject to any further order by a court of competent jurisdiction, an order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way.
A. Introduction
On May 5, 2016, Srinivasan Venkata Gadam was found guilty of sexually assaulting A.D. ("A.") between April 2013 and August 2013 at his condominium located at 60 Brian Harrison Way, Scarborough. A. complained to her husband K.R.K. ("K.") in August 2013, and the TPS in November 2013. The defendant was arrested in December 2013, charged in January 2014 and committed for trial in June 2015. He elected trial by judge alone.
This is the sentencing of the defendant.
B. The Circumstances of the Case
Let me begin with the circumstances of the case, as found by the court, keeping in mind that aggravating circumstances must be proven beyond a reasonable doubt. See R. v. Gardiner (1982), 68 C.C.C. (2d) 477 (SCC). Any other fact must be proven on a balance of probabilities. See s. 724(3)(d) of the Criminal Code. The trial judge should only make those findings of fact necessary for sentencing purposes. See R. v. Ferguson 2008 SCC 6, [2008] 1 S.C.R. 96 at para. 18.
The reasons for judgement described the circumstances of the case in detail. It is not my intention to repeat all of them now. Rather, I rely upon all of them, but will summarize those that are of most significance to me on sentencing.
A. was born and raised in India. She is a well-educated woman, having completed a Masters of Environmental Science at a university.
A. married K. in India in February 2009. He sponsored her emigration to Canada in November 2009. They have two children, a daughter who was born in October 2010 and a son who was born in November 2014. A. and K. speak Telugu, one of the many languages spoken in India.
As of November 2009, K. and A. resided in a rented apartment in a building on Lawrence Avenue West in Toronto. They met some other people in the building who also spoke Telugu, and socialized with them. One of those people was a woman named Prasoona. Through her, K. and A. met Srini and his wife, Bindu, and their daughter, Medha. Srini, Bindu and Prasoona were employed by various firms in connection with their skills with software. Srini was a Business Analyst with Telus. Bindu was a dot net developer at Telus. Prasoona obtained a job at the CIBC with Srini's help. A. was interested in a career in the software industry but did not have any specific training for it.
In 2011, K. and A. went to India with their daughter to attend the wedding of K.'s brother. A. took a course in software, for about 4 months, when she was in India. She returned to Canada.
When A. returned, she wanted to improve her skills with computers. She wanted a better job. K. was supportive of her desire. Prasoona helped her. She expressed to A. her belief that A. needed more training and a resume. Prasoona also cautioned A. that it was difficult to get a job in the software industry in Canada.
In those circumstances, Prasoona directed A. to the defendant. K. spoke to Srini. The three of them negotiated an arrangement whereby the defendant was to train A., prepare a resume and help her obtain some related experience in the field. K. agreed to pay Srini $1,000 as a fee and, upon employment, 20% of each month's cheque. The defendant told K. that the resume would be false in that it would falsely represent A. was employed by Telus, Monday to Friday, for 6 months. Srini was a Business Analyst with Telus. He arranged for a false verification of A.'s purported employment status at Telus by his immediate supervisor. In furtherance of this dishonesty, Srini helped Bindu obtain a job at the RBC. She worked there without terminating her employment with Telus. Her laptop at Telus was used by A., who would falsely represent herself to be Bindu by logging on to Bindu's computer and following some prompts. Telus continued to pay $5,000 per month to Bindu, for no services rendered. The defendant apparently received that $5,000 each month, paid A. around $1,000 to $1,200, paid the supervisor for the verification of the false resume for A. and kept the rest, including 20% of the purported income of A. She was only paid once over the course of this arrangement through August 2013.
The arrangement with the defendant began in 2012, and continued through August 2013. Initially, A. attended Srini's condominium in the evening hours, Monday to Friday. Bindu and Mehda were there, as was K. from time-to-time. Later, some of the training was during the day, when Bindu was at the RBC and Medha was at school.
A.'s attitude towards the arrangement changed noticeably in April 2013. She told K. she did not want to go to work. Sometimes the defendant called K. and asked about A., in particular, whether or not she had left for work. K. spoke to A. on those occasions. Typically, she said "…I am not feeling good… I don't want to go…". K. attempted to encourage her. He assured her she was in the final stages of the training. He urged her to complete it. However, she did not want to go, but did, and returned home very upset. K. expressed his concern about her distress. She merely said, in essence, that it was work related.
These developments led to a change in the arrangement with the defendant. Under the modified arrangement, A. was to go to Srini's condominium on Wednesdays and Fridays, and work from home on Mondays, Tuesdays and Thursdays. This arrangement continued through August 2013, with the exception of July 2013.
On August 28, 2013, A. complained to K. about the sexual harassment she experienced at the hands of the defendant. The sequence of the related events up to the complaint by A. to the TPS in November 2013 are described in detail in the reasons of judgement.
There were several sexual assaults of A. committed by the defendant from April 2013 to August 2013. The first one in April 2013 included an attempt to penetrate her vagina with his penis, that did not succeed, together with some threats of harm to A., K. and A.'s mother and brother in India if she complained about the incident. The other subsequent incidents included such threats as well as forced vaginal intercourse, the second one likely in early May 2013, with several others in May 2013, 4 or 5 in June 2013 and 2 in August 2013. For the purposes of sentencing the defendant, I am satisfied beyond a reasonable doubt that he had such forced sexual intercourse with A. eight times, from around May 1, 2013 into August 2013. All of them involved threats of harm to A. or people loved by her. The intercourse was unprotected. Some of it included ejaculation. It all occurred during a commercial relationship between them, with the defendant purportedly training and employing A. in an effort to provide her with a marketable skill in the software industry. Srini was in a position of trust in relation to A. She did not suffer any physical injuries as a result of the assaults. None of her clothing was damaged although it was forcefully removed by Srini on several occasions. The complainant was a very frightened woman as a result of these crimes, and continues to be, because of the treatment of women in India who complain of a sexual assault and the threats of harm uttered by the defendant.
C. The Background of Gadam
The defendant is presently 40 years old. He was born and raised in India, where his parents and two siblings still reside. He regards his upbringing as a fortunate one. Over the years he has maintained a good relationship with his family of origin. He visits them frequently, usually on an annual basis.
The defendant has a Bachelor's Degree in Computer Science, as well as a Master's Degree in Computer Science, from a college in India. He spent about 6 years as a student at that institution. He has a related employment history in India, the USA and Canada. Presently, he has his own business as a computer consultant that includes the training of other people in the operation of computer systems.
The defendant came to Canada in March 2003 as a landed immigrant. Later, he became a permanent resident. He is not a Canadian citizen.
The defendant married Himabindu Gadam in India in 2004. It was an arranged marriage. He sponsored his wife to come to Canada. They have been married for about 12 years. They have one child, now 10 years old. He has always provided for his family. He has not abused his wife, sexually or otherwise. It is a good marriage that is a treasured aspect of the lives of the defendant, Bindu and Medha. Any incarceration of the defendant will be devastating for Bindu and Medha.
The defendant takes his responsibility for his family, including his wife, daughter and those in India, seriously. He also does many acts of charity as a volunteer in the community. He is a devotee of Krishna. The goodness of his life is important to him. He practices yoga and meditation daily, and attends a local temple three times per week for prayer and services. At times in the religious calendar, for a period of 45 days, he attends the temple twice per day for prayer. He has been formally recognized by some organizations for his contributions to them as a volunteer, such as the International Society for Krishna Consciousness and the ISKCON Toronto Festival Committee. He has a reputation in the community as a kind, considerate and gentle man, who is respectful towards women and all of the other people he associates with. He does not consume alcoholic beverages or use illegal drugs.
As I said earlier, the defendant is a permanent resident in Canada. This conviction for sexual assault will likely lead to his deportation from Canada under the Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended. Both Bindu and Medha, whatever their status in Canada may be, will likely not be legally affected by the defendant's deportation. They may or may not go to India with him. These consequences for the defendant and his family will be a life-altering experience for all of them, even though India is a relatively sophisticated democracy where the defendant has family and legitimate business interests that may care for the family's financial interests.
D. The Effect of the Crimes on the Victims
A. has been adversely affected by the sexual assaults committed by the defendant. The psychological trauma she now experiences is devastating. She experiences fear, especially for her family, in Canada and India, and, at times, a desire to die that may include suicidal ideation. To A., her life has been permanently altered. She appears to be living a life without hope; she is overwhelmed by the circumstances of this crime, and does not seem to be in a good position to realize her potential as an independent professional woman, a wife and a mother, in her community. Some excerpts from her victim impact statement show the adverse effect of the defendant's sexual abuse:
This incident made my life miserable. I was very much scared of everything. I cried a lot and hurt myself so many times, when I got remember this incident. I tried so many times to die.
I was always think and worried about my family and their safety. I spent so many sleepless nights because of his harassment. I led a very stressful life in that abusing period.
Words are not enough to explain my pain. So many times when I was waiting for train to go to his house, I felt like to jump on tracks when the train comes. Like this I have so many incident and thoughts to hurt myself.
Every time he says I have lot off money in back home I can do any thing with money. I can kill your all family members.
He took away my blessed life. His physical tortures and mental tortures made me lifeless. The only reason I am still alive is my daughter, because I want to protect her my whole life from these kind of evil people. Still I am scared of trusting people around me.
After this incident my happy family was gone. I suffered with so many issues created by him in my family life.
He grabbed my life without my permission and playing accordingly to his wish. He made my whole life under his control and I lost all my strength and courage. He did not leave me when I was pregnant, that's how he suffered me.
Because of this bad person my family came on the road. We lost everything. I suffered physically, mentally, financially, socially.
His evil things ruined my life. Every day I was very much scared to hear any bad news from back home.
I lost my career because of you. I couldn't even sleep because of you. Why did you do it to me? I never harm you in my life, why did you do it to me? I am not living my life peacefully.
I wish no women on the Earth would get into this kind of situation. I pray God to save all women from these evil persons.
A.'s husband, K., also described the fear that he and A. have concerning the possibility of violence against themselves, or their loved ones in India, at the hands of the defendant, directly or indirectly. In his victim impact statement he said:
The day my wife broke out I am shocked, very angry and scared. I felt like all our hopes for the future were suddenly shattered. If we stayed one more day in this country Mr. Gadam is going to kill us. We were very scared.
A. and my self we were very scared of Mr. Gadam at that time. Specially when he said he stabbed some one when young age. I am more worried about A., my daughter in back home. Because he visited out house. He know's where we live. Mr. Gadam had a lot of money and property in back home. We feared even he will send some people to harm our family. We are more worried about our daughter because in India its very easy to harm people and get away with the crime if you have lot of money. I want my family to stay safe.
There is no evidence before this court that the defendant has acted upon the threats he uttered to A. during the sexual assaults.
Apparently, A. and K. are no longer accepted by the Telugu community they were a part of prior to the complaint that has led to the defendant's conviction. K. described this rejection by the community as follows:
Mr. Gadam is my best friend in Canada until 28th August 2013. We have no other Telugu friends. All our Telugu friends are introduced by Gadam only. After this offence came out we have no friends. Mr. Gadam arrange social meeting and acts like very gentleman.
The practical effect of this rejection by the community on A. and K., socially and by way of any adverse effect on their future in Canada, has not been proven.
E. The Principles of Sentencing
Under s. 718 of the Criminal Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing a just sanction. Any such sanction must, looking at the case as a whole, be the result of a fair and balanced consideration of the need to:
- denounce the unlawful conduct;
- deter the offender, and others, from committing such an offence;
- separate the offender from society, where necessary;
- assist in the rehabilitation of the offender;
- provide reparation for harm done to victims, or the community; and
- provide a sense of responsibility in the offender, while acknowledging the harm done to the victims and the community.
Section 718.1 of the Criminal Code requires the sentence to be proportionate to the offence and the degree of the offender's responsibility. Proportionality is a principle of fundamental importance in the sentencing of any person, but it is not a principle of fundamental justice. See R. v. Ipeelee, 2012 SCC 13, [2012] 1 SCR 433 at paras. 36-39, R. v. Anderson, 2014 SCC 4 at paras. 21-24 and R. v. Safarzadeh-Markhali, 2016 SCC 14 at paras. 67-73. An offender is not to be deprived of his liberty if less restrictive sanctions may be appropriate in the circumstances of the case. All available sanctions other than imprisonment that are reasonable in the circumstances must be considered for all offenders. Otherwise, aggravating and mitigating circumstances, as defined at common law or under s. 718.2 of the Criminal Code, are to be considered by the court. Sentencing is an individualized process. See R. v. Pham, 2013 SCC 15, [2013] 1 SCR 739 at paras. 8 and 11-19.
It is to be emphasized that these principles of sentencing do not include a principle of revenge. Offenders are not incarcerated for the purpose of establishing an equivalence between the loss of the victim, or victims, and the sanction imposed by the court. Rather, the court is required to recognize the inherent worth and dignity of the offender and, having balanced the principles provided by the Criminal Code, determine a fit sentence in the circumstances of the case. This is the Canadian tradition, a tradition that enjoys a long and respected history in Canada and some other free and democratic societies like it throughout the world. The arbitrary, harsh and disproportionate sanctions imposed upon conviction in other political regimes are contrary to the interests of justice and the values upon which the rule of law is based in Canada.
F. The Legal Analysis of the Case
What, then, is a fit sentence in the circumstances of this case?
In my view, a fit sentence in this case must denounce the defendant's sexual abuse of A., and emphasize the principles of specific and general deterrence while having regard for the rehabilitative interests of the defendant. Such denunciation, emphasis and regard will provide a sense of responsibility in the defendant, and acknowledge the harm done to A., K. and the community. A sentence of 3 years incarceration complemented by several ancillary orders is the just sentence in this case.
Let me, now, give my reasons for this sentence.
There were many sexual assaults, 8 of them, from April 2013 to August 2013, a period of about 4 months, given A.'s absence from Canada in July 2013. This is not a case of one sexual assault which in cases like R. v. Nolan, 2009 ONCA 727, R. v. B.D.N., 2016 ONSC 1740, R. v. Dorah [2011] O.J. No. 4912 (SCJ) and R. v. W.R., 2012 ONSC 100, led to sentences in the range of 2 years.
All of the sexual assaults in this case occurred within a relationship characterized as an employment or educational one that was exploited by the defendant in order to force himself on A. sexually. He abused the power he had over her within that relationship, when she declined to consent to his sexual advances. He violated her autonomy as a woman, and her sexual integrity.
A., however, was not a vulnerable woman. She is a mature, well-educated woman who was attempting to integrate herself and family into Canada. It was in that context that some force was used by the defendant to overcome A.'s attempts to resist his sexual advances, at least in April 2013. Threats of harm, to A. and her family, were uttered by the defendant throughout the relationship. They were repeated, frequently, each one adding to the adverse effect of the preceding ones. All of them had, and continue to have, an adverse effect on A. because of the culture in India, where she was raised, that women who complain of sexual abuse will be rejected by the community. The defendant knew of this culture and used it as a means of increasing the effect of the threats he otherwise uttered.
The sexual assaults included forced vaginal penetration, with the exception of the first assault which was a forced but unsuccessful attempt to penetrate A. vaginally. No condoms were used. Some ejaculation occurred.
The effect of the defendant's crimes on A. has been significantly adverse. The effects did not include any physical harm, but did include the emotional devastation described earlier in these reasons. She is still fearful for the physical well-being of herself and family, here and in India. Her sense of worth as a woman, a wife and a mother has been undermined. She seems to be without hope, despite the continuing love of K. and her children. These effects are common to many victims of sexual assault. As Cory J. said in R. v. McGraw, [1991] 3 S.C.R. 72 at 83:
…the psychological trauma suffered by rape victims has been well documented. It involves symptoms of depression, sleeplessness, a sense of defilement, the loss of sexual desire, fear and distrust of others, strong feelings of guilt, shame, sense and loss of self-esteem. It is a crime committed against women which has a dramatic, traumatic impact.
K. has also been disrupted by this series of events. Both of them are no longer accepted by the Telugu community in Toronto. These people were an important part of their integration into Canadian society, and their socialization since then.
The defendant does not have a criminal record. He is 40 years old, and is married, with a 10 year old daughter. The marriage is a good one. He enjoys a good reputation in the community as a peaceful, law-abiding man who has the desire and ability to support his family financially and otherwise. Both his wife and daughter will be adversely affected by his incarceration, and likely deportation. That deportation will be a significant hardship for him too, personally and in the sense of disrupting his family and their lives, actual and hoped for in Canada. What will happen to them consequential to any such deportation is difficult to determine, but it will be a life-altering aspect of their lives, even though India, his country of origin, is a democracy where the defendant can make a good living. Otherwise, the likely deportation is not a factor in this sentence -- a sentence of 6 months or less, which is required for an appeal of a deportation order, is completely outside the range for crimes like this one. See Pham at paras. 8 and 14, R. v. Pinas, 2015 ONCA 136, R. v. Nassri, 2015 ONCA 316 and R. v. Freckleton, 2016 ONCA 130.
The sentence of 3 years incarceration plus the various ancillary orders is a proportionate and otherwise just sentence, given the gravity of the sexual assaults and the moral responsibility of the defendant for them. These sexual assaults amounted to a course of conduct by the defendant that completely disregarded A.'s sexual autonomy and integrity. She, like any woman, was free to consent to his sexual advances as she saw fit. She chose to reject him. He responded by abusing her through his position as a consultant and employer. She and her husband have been devastated by these crimes. But for the defendant's good character and good prospects for the future, with his family and financially, and the significant adverse effect the deportation will have on him and his family, the sentence of incarceration would likely have been much more severe, probably in the range of 4 years. See R. v. F.L., 2009 ONCA 813, R. v. K.E., 2014 ONCA 186, R. v. H.E., 2015 ONCA 531, R. v. M.Q., 2012 ONCA 224 and R. v. D.J., 2010 ONSC 3910. All of these cases led to sentences between 3 to 4 years for offenders who, while in a position of trust in relation to the victims, sexually abused them over various periods of time, thereby causing the victims significant harm.
G. Conclusion
For these reasons, the defendant is sentenced to three years.
An order is made under s. 109 of the Criminal Code prohibiting him from possessing any firearm, ammunition, explosive substance, or other item referred to in the section for 10 years.
An order is made under s. 743.21 of the Criminal Code prohibiting the defendant from communicating, directly or indirectly, with A., K., their parents, their children and their siblings, in Canada or in India, during the custodial period of the sentence of three years. The names of the parents, children and siblings are to be included in the order.
An order is made under s. 487.051 of the Criminal Code authorizing the taking of such bodily samples from the defendant as may be reasonably required for the purposes of a forensic DNA analysis.
An order is made under s. 490.012 of the Criminal Code requiring the defendant to comply with the SOIRA for 20 years.
July 29, 2016 Trafford J.
THIS IS AN OFFICIAL COPY OF THE REASONS FOR SENTENCE THAT MAY BE USED FOR AN APPEAL IF IT IS SIGNED IN ORIGINAL BY TRAFFORD J.