CITATION: R. v. Armstrong, 2016 ONSC 5760
COURT FILE NO.: CRIMJ(P) 486/14
DATE: 2016 09 20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
G. Hendry, for the Crown
- and -
Eric Armstrong
J. Hebel, for the Defendant
Defendant
HEARD: February 9, 10,11,12,16, 2016, May 27, 2016, June 20, 2016, August 30, 2016 & September 20, 2016
REASONS FOR SENTENCE
Edwards J.
1. Overview:
[1] On February 16, 2016 a jury found Mr. Armstrong guilty of one count of sexual assault on A.C. contrary to s. 271 of the Criminal Code of Canada.
2. The Facts:
(a) Circumstances of the Offence
[2] The offence arose out of a 15 month relationship between Mr. Armstrong and A.C, who was approximately 43 years old at that time. During that time, between 20 to 25 times, usually twice a month, they were together, usually at Mr. Armstrong’s residence. They slept together and had sexual relations. In August 2009 Mr. Armstrong went to A.C.’s residence. Initially A.C. performed consensual oral sex. Next, Mr. Armstrong had forced anal sexual intercourse on her. A.C. attempted to stop this from occurring, but was unsuccessful.
(b) Circumstances of the Offender
[3] The PSR reports describes Mr. Armstrong’s circumstance as follows:
[4] Mr. Armstrong was born in Jamaica. He is 64 years old and came to Canada on his own in 1974. He had six siblings. Two sisters live in the USA where one is a doctor and the other is a nurse. He has a sister and a brother who live in Mississauga; his sister is a nurse and his brother is a police officer. His oldest sister died in 2013. He was married in Jamaica and had two children prior to marriage. He had three children with his wife. He has had numerous affairs that have produced 10 children. He said that his wife was aware of his affairs. However, the reason that his marriage failed was because he followed his religion and his wife was of another denomination. He currently has contact only with his twin daughters, and until recently was carrying for his mentally ill son.
[5] He said that in 2002 he began living separate and apart from his wife under the same roof. Around that time, he met Audrika Smith with whom he had a romantic relationship on and off for a number of years until he was divorced in 2007. At that time Ms. Smith said that she moved in with him. After six or seven years Ms. Smith wanted more from a relationship so they lived separate and apart, but in the same house because she was his surety and it was easier that way.
[6] As I noted, Mr. Armstrong was divorced in 2007. He said that this was very hard on him financially, both in terms of a lump sum equalization payment and ongoing support payments. In fact, he borrowed $60,000.00 from A.C. and did not pay it back until A.C. reported it to the police, prior to reporting the sexual assault, and after she began collection proceedings.
[7] Mr. Armstrong completed primary school in Jamaica. He started apprenticeship training in Jamaica for automotive gas and diesel mechanic, which he completed in Canada. He obtained both licences through Centennial College in 1975. He worked at General Motors of Canada in 1980 and began working at Kane Cadillac in 1982. Eastside Old Mill Cadillac purchased Kane Cadillac in 1989. He has been on disability leave from March 2013 due to his stroke. Mr. Lou Vavaroutsos, the owner of the dealership, confirmed that he is an excellent worker and he would love to have him back at work.
[8] Mr. Armstrong denied any drug use, but said he was a social drinker and his preferred drink was wine.
[9] He presented himself as a very hurt and emotionally fragile individual. He denies sexually assaulting the victim. He agreed that they had sex three times, but he did not want a relationship with her. He said that their relationship began after he borrowed money from her. He speculated that he was very popular in the church and was a challenge to the pastor who was concerned for his position. The victim was close to the pastor.
[10] Mr. Armstrong is a first time offender.
(c) Mr. Armstrong’s Health
[11] During the sentencing phase of this matter, the issue of Mr. Armstrong’s health, the impact of incarceration on his health and on the inmate population was canvassed in detail.
[12] Dr. Beairsto who is Mr. Armstrong’s G.P. testified. He described Mr. Armstrong’s current health condition. The doctor stated that Mr. Armstrong acquired C. difficile (“C-dif.”) bacteria three years ago while taking a course of antibiotics for a dental abscess. Since then he has had a significant portion of his bowel removed during emergency surgery, spent a significant amount of time in the ICU, and has a number of life threatening episodes. The lab results confirm that he remains positive for C-dif. In Dr. Bearisto’s opinion, Mr. Armstrong “would die if inside” an institution. Further, he stated that the C-dif. bacteria is “very contagious and hard to get rid of; it can contaminate an institution” and jeopardize everyone inside. He said that the strain that Mr. Armstrong has is 23 times more virulent than most C-dif. strains.
[13] Dr. Bearisto stated that Mr. Armstrong is basically confined to his home because of the frequency of his bowel movements, and his concern that he could infect others if he came into contact with them. He leaves the home primarily for medical appointments.
[14] He testified that the head of infectious diseases at Credit Valley Hospital, Dr. Saltsman, treats Mr. Armstrong. When he has an episode, Mr. Armstrong identifies that he has the issue, and then he goes to the Emergency Department at Credit Valley. The doctors there place him directly into Dr. Saltsman and her team’s care.
[15] Mr. Armstrong has been on courses of all of the drugs normally used to treat C-dif., but the C-dif. has returned each time. Because of her expertise and connections, Dr. Saltsman was able to get a 10 day course of the most expensive drug, most current drug, but it did not cure him. It only helped him over a crisis. Dr. Bearisto made an application to Ottawa for a back-up supply of this drug, but he was unsuccessful.
[16] Dr. Bearisto said that Mr. Armstrong’s only possible cure is a fecal transplant. The specialist in Hamilton rejected him for a fecal transplant because he was bleeding from the bowel. Dr. Bearisto hopes that Mr. Armstrong might be approved for a transplant at Credit Valley Hospital. Mr. Armstrong has a test scheduled for early September to try to identify the source of the bleeding.
[17] Dr. Bearisto testified that when Mr. Armstrong has a crisis, he needs treatment within an hour or two, and that any delay could be fatal. He is concerned that the federal and provincial institutions will not have the ability to move that quickly. He said that the drugs necessary to treat Mr. Armstrong are not carried by your “corner pharmacy”, and the ordinary doctor would not know how to treat Mr. Armstrong. In his opinion, this delay would be fatal to Mr. Armstrong.
[18] Mr. Armstrong spoke of his C-dif. illness and how he acquired it through treatment for an abscessed tooth. He stated that he is in constant pain unless he takes pain medication. He said that he has diarrhea and uses the toilet 6 to 7 times a day. He is in constant fear of giving others the bacteria and also, from dying of the disease. He asks for an opportunity to continue to care for his health with his G.P. and at Credit Valley Hospital.
[19] The sentencing phase of this matter was adjourned twice to allow the Crown to provide the Court with information from federal and provincial penal institutions regarding their ability to care for a person in Mr. Armstrong’s state of health and how that would be accomplished.
[20] The Crown did not produce any witnesses or sworn statements to provide these details. By way of oral submissions, he did, however, provide the results of his inquiries.
[21] He stated that both the federal and provincial institutions have medical facilities and staff. They have a legal obligation to care for all inmates. If the medical issue required further specialist knowledge, or more intensive care than can be provided at the institution, the inmate would be transported to a nearby hospital. He felt that if Mr. Armstrong was placed in the federal system, he likely would be located close to Kingston, which he advised has a specialist in fecal transplant for the treatment of C-dif.
(d) Impact on the Victim and/or Community
[22] The victim, A.C., read a victim impact statement. She explained that the offender’s actions have caused her emotional and physical distress, and that this continues today. She felt shattered and betrayed.
[23] She stated about the immediate physical discomfort that she suffered because of the offence and her discomfort in the following days.
[24] She said that she has lasting psychological trauma that includes sleepless nights, crying, nightmares and shame.
3. Legal Parameters:
[25] In our circumstances the Criminal Code provides that Mr. Armstrong is liable to imprisonment for a term of not more than 10 years. There is no minimum sentence. As the offence occurred on the first Friday in August 2009, a conditional sentence is not available.
4. Positions of Crown and Defence:
[26] The Crown requests a sentence as follows: three (3) years imprisonment, probation of an unspecified duration, a s.109 of the Criminal Code of Canada Order for ten years (weapons prohibition), a DNA Order, and a Sex Offender Registry Order for 20 years.
[27] The Crown submits that Mr. Armstrong should receive credit for pre-trial custody for four days in pretrial custody on a 2 for 1 basis for a total of 8 days.
[28] The Crown relies upon denunciation and deterrence as the paramount sentencing objectives and points to the aggravating factors. These include: there was a previous relationship; it was forced anal sex; and he continued notwithstanding A.C’s pleas to stop.
[29] The Crown urges me to accept that the victim had told Mr. Armstrong a week before that she did not want anal sex and knowing this Mr. Armstrong still forced himself upon her and performed forced anal sex.
[30] Further, Mr. Armstrong expresses a lack of remorse and does not accept responsibility.
[31] The Crown submits that both the federal and provincial institutions have the medical facilities and staff to care for Mr. Armstrong; indeed they have a legal obligation to do so. He noted that each time Mr. Armstrong has an issue, he self-identifies it and then proceeds to the Emergency Department of the hospital. There is no reason that he could not self-identify the issue in jail, and then advise the staff to transport him to a hospital, if the local medical facility was unable to provide the necessary care.
[32] The Defence requests a suspended sentence with strong terms. Alternatively, if I order incarceration the Defence requests that it be for 12 to 16 months, and that I order that Mr. Armstrong be enrolled in the Temporary Absence Program.
[33] The Defence does not dispute that denunciation and deterrence are the main sentencing objectives.
[34] The Defence provided me with case law. However, these cases either were not Ontario cases, or if they were, they were older sex assault cases, dealt with juveniles or matters other than sexual assault. I did not find them of assistance to me in determining a fit sentence.
5. Case Law:
[35] The Ontario Court of Appeal in R. v. Smith 2011 ONCA 564 noted that in cases of sexual assault involving forced intercourse with a spouse or former spouse sentences generally range between 21 months to four years.
[36] The Ontario Court of Appeal has stated where there has been an ongoing intimate sexual relationship between adults, it is founded on a certain amount of trust and confidence, “at least to the extent that each participant may reasonably expect that he or she will not knowingly be exposed by the other to serious and obvious perils.” The Court of Appeal dismissed a sentence appeal with respect to a sentence of two and a half years on two counts of sexual assault to be served concurrently where one of the counts was forced anal sex in such a relationship: R. v. C.R., 2010 ONCA 176.
[37] In R. v. Aquino, 2002 CarswellOnt 3078 the Ontario Court of Appeal in overturning a sentence that did not fall within the accepted range stated:
The respondent is seriously disabled and will require special care and rehabilitative therapy for the duration of the time he will spend in custody. The correctional authorities are obliged under the Corrections and Conditional Release Act to provide inmates with essential health care. For that purpose, the respondent should be assessed immediately and appropriate steps taken to provide the proper medical care, including the rehabilitative treatment which the evidence indicates that the respondent requires.
[38] In 2014 the Ontario Court of Appeal touched on this issue again:
The status of the offender’s health may be a relevant consideration on sentencing, but in this case there was no evidence at the sentencing hearing that the respondent’s medical conditions could not be properly treated while he was incarcerated. In these circumstances, no reduction in an otherwise fit sentence was warranted due to the respondent’s health. R. v. H.S. 2014 ONCA 323
6. Mitigating and Aggravating Factors:
[39] I find that the following are aggravating factors:
The effect of the offence on the victim, A.C.;
The sexual assault was anal sexual intercourse;
The assault continued after A.C.’s plea to stop; and
There was a previous relationship.
[40] The Crown urged me to find as an aggravating factor that the victim had told Mr. Armstrong a week before that she did not want anal sex, and knowing this, Mr. Armstrong still forced himself upon her and had forced anal sexual intercourse. I have a doubt as to whether that occurred, and I decline to make such a finding of fact.
[41] I find that the following are mitigating factors:
Mr. Armstrong has no criminal record;
Mr. Armstrong had a previous strong work history; and
Mr. Armstrong is elderly.
[42] As Mr. Armstrong has not accepted responsibility for the act nor has he demonstrated remorse, these are not mitigating factors.
7. Principles of Sentencing:
[43] The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objects:
(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 acknowledgment of the harm done to victims and to the community. (s.718)
[44] As well, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. (s.718.1)
8. Reasons:
[45] In the absence of any consideration of the current health of Mr. Armstrong the range of sentence for this type of offence is between 21 months and four years.
[46] I find that denunciation and deterrence are the paramount sentencing objectives for sentencing.
[47] I am satisfied that, without factoring in Mr. Armstrong’s health, a fit sentence for this offence would be 22 months for the following reasons:
There was forced anal sexual intercourse with a partner and that is an aggravating factor. Although the physical discomfort was initially intense, she did not require medical treatment for it.
The physiological issues that the victim sustained have been significant and remained with her for some time. This is an aggravating factor.
Mr. Armstrong has no previous criminal record. He is elderly. He had a strong work history prior to his stroke. These are all mitigating factors.
[48] Having concluded that, without considering Mr. Armstrong’s current health issues, a fit sentence would be 22 months, what impact, if any, does his health issue have on sentence?
[49] In Aquino the Ontario Court of Appeal noted the obligation of the penal system to provide appropriate health care to inmates. In H.S. that court stated that “the status of the offender’s health may be a relevant consideration on sentencing”, but as no evidence was adduced to show that the offender’s health issues could not be properly treated while he was incarcerated, no reduction to an otherwise fit sentence was warranted due to the offender’s health.
[50] I have the un-contradicted evidence of Dr. Bearisto that Mr. Armstrong has several incidents per month that necessitate treatment at the hospital, and that when he has these incidents he needs medical treatment within an hour or two. If not, the crisis could be fatal.
[51] Dr. Bearisto’s evidence is that Mr. Armstrong’s situation is unique. He has had most of his bowel surgically removed. He has a strain of C-dif. that is 23 times more virulent than most. The head of infectious diseases at Credit Valley Hospital treats him.
[52] I accept Dr. Bearisto’s evidence beyond any doubt. There is no contradictory evidence before me on the subject of Mr. Armstrong’s health.
[53] I find that Mr. Armstrong’s health would be seriously compromised if he was incarcerated.
[54] I find that, if within an hour or two of a flare up, doctors having the medical expertise do not treat Mr. Armstrong; his life is at serious risk.
[55] I find that in the circumstances a fit sentence would be a suspended sentence with probation for 3 years on the following terms: He shall:
keep the peace and be of good behaviour;
refrain from communicating, directly or indirectly, with the victim, A.C.;
appear before the court when required to do so by the court;
notify the court or the probation office in advance of any change of name or address, and promptly notify the court or the probation office of any change of employment of occupation.
[56] Under Section 732.1(3)(h) of the Criminal Code of Canada I have the authority to require that the offender comply with such other reasonable conditions, as I may consider desirable for protecting society.
[57] Because of the infectious nature of Mr. Armstrong’s disease and the risk of infecting others, I order that during the term of the probation order, Mr. Armstrong shall not leave his residence without the prior approval of his probation officer except for medical appointments and unscheduled visits to the Emergency Department of the hospital.
9. Ancillary Orders:
[58] The following Mandatory and/or Unopposed Sentencing Orders shall issue:
A Primary DNA Order shall issue.
A s.109 Criminal Code of Canada Order (firearms and weapons prohibition) shall issue for a term of ten years under subsection (2)(a) and for life under subsection (2)(b).
[59] A s. 490.012 order shall issue requiring Mr. Armstrong to comply with the Sex Offender Information Registration Act for 20 years.
10.Final Decision
[60] I order that Mr. Armstrong’s sentence shall be a suspended sentence with probation for 3 years on the following terms: He shall:
keep the peace and be of good behaviour;
refrain from communicating, directly or indirectly, with the victim, A.C.;
appear before the court when required to do so by the court;
notify the court or the probation office in advance of any change of name or address, and promptly notify the court or the probation office of any change of employment of occupation;
not leave his residence without the prior approval of his probation officer, except for medical appointments and unscheduled visits to the Emergency Department of the hospital.
Edwards J.
Released: September 20, 2016
CITATION: R. v. Armstrong, 2016 ONSC 5760
COURT FILE NO.: CRIMJ(P) 486/14
DATE: 2016 09 20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
ERIC ARMSTRONG
Defendant
REASONS FOR SENTENCE
Edwards J.
Released: September 20, 2016