CITATION: R. v. Nahwegezhic, 2016 ONSC 512

COURT FILE NO.: 14-70000489

DATE: 20160205

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Crown

– and –

RODNEY NAHWEGEZHIC

Defendant

Linda Shin, for the Crown

David Zbarsky, for the Defendant

HEARD: January 14, 2016

MCWatt, J:

REASONS FOR SENTENCE

Introduction

[1] Rodney Nahwegezhic is forty-four years old and has a five-page criminal record. Somewhere on the third page should have been a conviction for two more offences of Break and Enter and Sexual Assault with a Weapon, which he committed on July 20, 1998. However, he was not arrested for the crimes and went on to commit criminal offences until 2011.

[2] As a result of a cold case investigation in 2013, DNA evidence taken from his shorts left at the scene in 1998 linked Mr. Nahwegezhic to the offences. He pleaded guilty to them before me on October 23, 2014.

Agreed Statement of Facts

[3] On July 20, 1998, sometime after midnight, S.A. went to sleep in her apartment at 434 Ontario Street in Toronto. Ms. A. lived in this three bedroom apartment with two roommates. This was the three young women’s first apartment after graduating from university. One roommate was away that weekend. M.G. was home with Ms. A. that night.

[4] At approximately 4:00 a.m., Ms. A. woke up and saw Mr. Nahwegezhic standing over her bed. He had a weapon in his hand and was only wearing his underwear. Ms. A. believed the weapon was a knife. He told her to turn over and not to scream.

[5] Ms. A. screamed for her roommate M.G. Mr. Nahwegezhic wielded the weapon towards Ms. A. in a stabbing motion. He pulled down his underwear exposing himself. He grabbed Ms. A. by the leg and tried to turn her over. A struggle ensued. During this struggle, he ripped off Ms. A.’s underwear. Ms. A. continued to struggle with Mr. Nahwegezhic fighting him off and trying to push him away. Ms. A. started screaming again for M. At that point, Mr. Nahwegezhic ran out of Ms. A.’s bedroom.

[6] After he ran out, Ms. A. barricaded herself in her bedroom using a freezer to block the door. Ms. G., having woken up to the noise, went to Ms.A’s bedroom. Eventually, Ms. A. let Ms. G. in. The police were called.

[7] Ms. A. suffered various abrasion and scratches on her body during the struggle with Mr. Nahwegezhic.

[8] Ms. A. discovered that her purse had been taken from her room which had her wallet in it. She had about $60.00, her identification, credit cards and other items in her wallet. Later that same morning, her purse was found by police in a laneway off of College Street in Toronto and was returned to Ms. A.

[9] Upon looking around the apartment, Ms. A. and Ms. G. discovered that the television, stereo system, VCR and jar of coins had been taken. None of these items were ever recovered.

[10] Ms. A. also discovered that Mr. Nahwegezhic’s shorts were left in her bedroom. These shorts were seized by police and in 2013 were tested for DNA by the Center of Forensic Sciences (“CFS”). There was a single source male DNA profile found on a cut out from the inside back waistband of these shorts. This male DNA profile was compared to a consent DNA sample provided by Mr. Nahwegezhic. The result of the comparison was that Rodney Nahwegezhic cannot be excluded as the source of the male DNA profile on the shorts. The probability that a randomly selected individual unrelated to Rodney Nahwegezhic would coincidentally share the observed DNA profile is estimated to be 1 in 5.0 quadrillion.

[11] Mr. Nahwegezhic was a complete stranger to Ms. A. and her roommates.

Positions of the Parties

[12] The Crown’s position is that 23 days of pre-sentence custody should be noted and a further 4 years imprisonment should be imposed. This case warrants a penitentiary sentence because it was a home invasion. A DNA order should be made because both offences are primary designated offences. A section 109 Order for life should be made. There should be a section 743.21 non-communication order with S. A. and M. G. There should be a SOIRA order pursuant to the Criminal Code for 20 years.

[13] The defence asks that there be no further custody ordered or that a conditional sentence be imposed with strict conditions in order to protect the public and to ensure that the defendant continues his path of recovery. The defence disagrees that this case was a home invasion, but likens it more to a break and enter with an opportunistic sexual assault where no sexual contact took place.

Background of the Offender

[14] Although this matter commenced before me in October, 2014, it has taken over a year to come to the sentencing due to the time required to collect the exhibits filed in support of Mr. Nahwegezhic’s progress from 2011. The reports and documents are:

1. A Pre-Sentence Report;

2. a Flex binder of letters of support;

3. a section 21 Mental Health Act Assessment;

4. a Gladue Report;

5. a transcript of the defendant’s bail hearing in this matter;

6. a Psychological Risk Assessment by Dr. G. Ilaqua, dated September 1, 2015;

7. a letter from Mr. Nahwegezhic’s mother; and

8. a letter from Mr. Nahwegezhic to the court.

[15] Mr. Nahwegezhic was born on March 26, 1971. His father is unknown. His mother, Donna Mary Simpson (65 years old), was born in Blind River, Northern Ontario. Her mother was a member of Serpent River First Nation. Mr. Nehwegezhic is now a registered member of Serpent River First Nation. Mr. Nahwegezhic’s mother, Donna, was physically and sexually abused by her stepfather. At the age of sixteen or seventeen, she was sent to a reform school in Sault Ste. Marie, Ontario. Her parents had attended residential school as well.

[16] Mr. Nahwegezhic is the third child of four born to Donna Simpson. The youngest child, Mr. Nahwegezhic’s brother, recently died at the end of 2015.

[17] For periods while he was under the age of twelve years, Mr. Nahwegezhic and his siblings were taken into the care of several Children’s Aid Societies. One of his sisters was adopted by non-aboriginal parents in Nobleton, Ontario. She told the author of the Gladue Report prepared for the sentencing that her adoptive parents allowed her to understand “life out there” and helped her to see that there was more to life than drinking. “It’s kind of sad,” she said, “I had that, but my brothers and sister didn’t have it.”

[18] That statement aptly describes the backdrop to the life the defendant had growing up. All of the reports prepared for the sentencing set out what can only be described as a tragic childhood made up of abuse, trauma and neglect.

[19] At age 3, the defendant fell off his mother’s apartment balcony, landed on a car and rolled off. He was in a coma for several months.

[20] Mr. Nahzegezhic finished grade 5 in school. He was diagnosed with dyslexia in that grade. He started using cocaine at the age of twelve or thirteen years when he left home and began living on the streets. He told the author of the Gladue Report that …

“… One of the main reasons I had started using cocaine was just to numb the hurt and the feelings I was going through and all the traumatic stuff. For some reason, when I smoked cocaine it helped me forget about everything. … such an addiction where I wanted more and more of the drug and I would say that 93% to 95% of my criminal record is drug related property offences to try to get stuff to support my habit”.

[21] The defendant’s cycle of addiction and incarceration lasted twenty-five years. In 2000, he was diagnosed with Bi polar Disorder, Post traumatic Stress Disorder, Depressive Disorder and an Anxiety Disorder, which resulted in the granting of and his reliance on ODSP from that point in his life to the present. His disorders have been managed through psychotropic medications.

[22] Mr. Nahwegezhic was twenty- seven years old when he committed the offences before me.

[23] Mr. Nahwegezhic started to slow down his criminal activities in 2008 when he was convicted of Robbery, Fleeing from Police, Dangerous Driving and Driving while Disqualified. After serving a penitentiary sentence and completing a period of probation, he was arrested once again in 2011. Since that time, he has tackled his addiction issues and completed thirty-two treatment programs addressing a host of issues caused, no doubt, by his traumatic childhood. He has been sober and crime free for approximately five years.

[24] Mr. Nahwegezhic takes full responsibility for the offences.

The s. 21 Psychiatric Assessment dated December 15, 2014 and the Psychological Assessment dated September 1, 2015

[25] The s. 21 Psychiatric Assessment, authored by Dr. A. Iosif, and voluntarily undertaken by the defendant, concluded that Mr. Nahwegezhic “had little opportunity to develop psychological or vocational proficiencies during his formative years. He was neglected and abused by an ineffective parent, who clearly struggled with her own lack of life skills, and who inflicted her own disordered lifestyle on her young children”. Donna Simpson was the only adult the defendant had to learn from.

[26] Dr. Iosif found that the defendant was substance dependent – in remission, suffered from Anti-Social Personality Disorder with significant psychopathic traits, and the presence of a paraphilia could not be ruled out.

[27] Dr. Iosif opined that Mr. Nahwegezhic’s “complete psychiatric stability for the past four years that he has been abstinent from substances is the most convincing argument for substance induced psychosis and mood problems.” The doctor still assessed the defendant as a high risk to reoffend and recommended structure, supervision and abstinence from substances to mitigate against such risk.

[28] The psychological assessment, authored by Dr. Giogio Ilacqua, differed significantly from the s. 21 Psychiatric Assessment in some respects. It found, as a result of testing, that Mr. Nahwegezhic did not meet the criteria for psychopathy as per the PCL-R and was not of much concern for forcing sexual encounters. Dr. Ilacqua recommended the offender be placed in the Ontario Correctional Institute if he is imprisoned for the offences.

[29] He concluded that Mr. Nahwegezhic was a moderate risk to reoffend and such a placement would help to support the positive strides the defendant has made in the last five years.

Victim Impact

[30] S.A. still feels the effects of the night in July 1998 when Mr. Nahwegezhic broke into her apartment as she slept and sexually assaulted her. She suffered physical cuts and bruises from her encounter, which healed. She still, however, suffers emotionally from the incident and, although time has lessened her fears, they are never far beneath the surface of her emotions.

[31] As well as leaving the city after the incident and damaging her career as a result of time off work, she suffered sleepless nights, lost her social life for a time, and developed fear related habits like obsessively checking whether the door is locked and anxiety over strangers getting into in her personal space.

The Law

[32] The defence was unable to support its position of a non-custodial or conditional sentence with any case law.

[33] The Crown presented various cases, which I will review, and relied on the intent of s. 348.1 of the Criminal Code to support its position that four years in the penitentiary is the lowest sentence that should be imposed, in these circumstances.

[34] Section 348.1 of the Criminal Code makes a home invasion a statutorily aggravating factor on sentence. Ms. L. Shin, for the Crown, submits that, although the section does not apply to this case because it was enacted in 2002, these offences clearly fit the definition of a home invasion.

[35] In R. v. J.S., 2006 CanLII 22101 (ON CA), [2006] O.J. No. 2654 (C.A.), Blair J.A. set out at paragraph 30:

…it is the presence of the occupants of the home, with the violation of their sense of sanctity and security in that place and the attendant exposure to the threat (express or implied) of physical or psychological harm, that sets the home invasion apart from break and enter, robbery and other offences committed in relation to a home.

[36] It is the Crown’s position that, for these reasons, home invasions warrant lengthy penitentiary sentences ranging from four to five years to as high as eleven to thirteen years in jail.

[37] In R. v. Wright, 2006 CanLII 40975 (ON CA), [2006] O.J. No. 4870 (C.A.), Justice Blair reiterated the range for sentences for home invasions he set out in R. v. J.S., supra, and added that home invasion cases required careful examination of the circumstances of the particular case in question, the nature and severity of the criminal acts perpetrated in the course of the home invasion, and the situation of the individual offender (para. 24).

[38] In Wright, the appellant’s sentence of eight years was upheld after a guilty plea for robbery with a firearm and being disguised in the context of a planned home invasion for that purpose.

[39] In R. v. Corbiere, 2012 ONSC 2405, [2012] O.J. No. 2164, the accused was sentenced to nine years in jail after a guilty plea to robbery and sexual assault. He broke into an elderly woman’s home, stole her money and jewelry and sexually assaulted her by forcing her to perform fellatio and raping her. Mr. Corbiere, like Mr. Nahwegezhic, had a lengthy criminal record and was an Aboriginal offender who had also experienced disadvantages and discrimination as a result of his background. The court considered Gladue factors in the case as well.

[40] The facts in Corbiere can be distinguished from the facts before me. First, Mr. Nahwegezhic did not rob S.A. He took money, a television, VCR and stereo system while she and her roommate slept in the apartment. He then, apparently, returned to the apartment with a screwdriver he had used to gain entry, and attempted to sexually assault the victim. He managed to grab her leg after she refused to turn over. He pulled down his underwear, exposing himself and he ripped off her underwear, causing her cuts and bruises. He was then scared off by her screams and fled the apartment.

[41] Second, the offender in Corbiere had not made the strides towards rehabilitation that Mr. Nahwegezhic has made.

[42] Third, the Corbiere case was not an historical one.

[43] The Crown also filed R. v. Thompson [1999] O.J. No. 171 (C.A.) for the proposition that a four year sentence would not be inappropriate in this matter even though Mr. Nahwegezhic’s previous convictions to 1998 attracted low sentences. The court set out that, while often a helpful guide, the “jump” or “step” principle cannot be used in a way that diminishes the seriousness of an offence or distracts from the need for the protection of the public (par. 4).

Disposition

[44] The aggravating features of this case are:

1. The nature of the offence being an intrusion into the victim’s home to steal her property and then the use of a weapon to initiate a sexual assault;

2. The defendant’s criminal record up to the offence, which involved assaults, Break and Enter, theft, possession of stolen property, failing to appear for court, a robbery and possession of narcotics;

3. Mr. Nehwegezhic was on probation at the time of the offence;

4. Mr. Nahwegezhic is a medium to high risk offender;

5. The impact on the college age victim was profound.

[45] The mitigating factors are:

1. The defendant has pleaded guilty and expressed true remorse for the offences;

2. The defendant has undergone extensive court appointed assessment voluntarily as part of his acceptance of responsibility for the offences and a desire to rehabilitate himself;

3. Mr. Nahwegezhic had a debilitating childhood which the two court assessments and the Gladue Report attribute to his alcohol / substance abuse and criminal record. Nonetheless, he has been sober and crime free for the last five years, having lived in the community and completed thirty two programs to address addiction, his need for social skills and a host of other issues. Mr. Nahwegezhic also abides by a schedule of medication in order to control various diagnosed disorders;

4. Mr. Nahwegezhic has no convictions for sexual offences on his record.

[46] A period of four years in the penitentiary is not appropriate in this case. I am not able to find, from the agreed facts, that Mr. Nahwegezhic planned more than a break and enter to steal property to support his drug habit. I am not able to include the facts of this case in those set out by the line of cases filed by the Crown dealing with home invasions. At the same time, the offence should attract a custodial sentence due to the fact that Mr. Nehwegezhic broke into a stranger’s home in the night, stole the occupant’s possessions and went back to try and force sex on a defenceless young woman while using a weapon. Had she not fought the defendant off, he would have gone further than he did.

[47] Based on the strides Mr. Nahwegezhic has made, the recommendation of Dr. Ilaqua, the historic nature of the offence and the fact that it can be distinguished from the cases presented by the Crown, Mr. Nehwegezhic shall be sentenced to two years less one day in the reformatory. He shall then be placed on probation for thirty six months.

[48] This case is not an appropriate one for a conditional sentence. The defendant used violence against the victim while holding a weapon. What happened in this case can be seen as having caused a serious personal injury to the victim pursuant to section 742.1 of the Criminal Code and the case of R. v. Lebar 2010 ONCA 220, [2010], O.J. No. 1133.

[49] I recommend that, for the safety of the public, Mr. Nahwegezhic serve his sentence at the Ontario Correctional Institute as part of his continuing attempts at rehabilitation.

[50] The probation order shall contain the statutory terms along with the following conditions:

1. After release from custody, report within two working days or as the court directs, in person to a probation officer as directed and, thereafter, be under the supervision of a probation officer or person authorized by the probation officer to assist your supervision, and report at such times and places as that person may require;

2. Keep the peace and be of good behavior;

3. Appear before the court when required by the court to do so;

4. Notify the court or the probation officer in advance of any change of name or address;

5. Take counselling and treatment as recommended by your probation officer;

6. Cooperate with the probation officer and sign any consents or releases necessary to permit the probation officer to supervise you and provide upon request proof of compliance with any term of this order;

7. Have no contact directly or indirectly with S.A. or M.G.;

8. You are not to possess any weapon as defined by the Criminal Code;

9. You are to abstain from the consumption of alcohol;

10. You are not to possess any non-medically prescribed substances or substances defined in the CDSA or have in your possession any medication not prescribed to you;

[51] There shall be a DNA Order for both offences.

[52] There shall be a s. 109 Order for life.

[53] There shall be a non-communication Order pursuant to s. 743.21 with S.A. and M.G.

[54] There shall be a Soira Order for twenty years.

[55] The remaining counts on the Indictment are withdrawn at the request of the Crown.

[56] A copy of this judgment and all of the exhibits shall be sent to the institution where Mr. Nahwegezhic is placed to serve his sentence.

McWatt J.

Released: February 5, 2016

CITATION: R. v. Nahwegezhic, 2016 ONSC 512

COURT FILE NO.: 14-70000489

DATE: 20160205

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

Crown

– and –

RODNEY NAHWEGEZHIC

Defendant

REASONS FOR SENTENCE

McWatt J.

Released: February 5, 2016