R. v. L., 2016 ONSC 733

COURT FILE NO.: 14-74

DATE: 2016/01/29

ONTARIO

SUPERIOR COURT OF JUSTICE

INFORMATION CONTAINED HEREIN REGARDING THE IDENTITY OF THE COMPLAINANT AND/OR ACCUSED IS PROHIBITED FROM PUBLICATION BY ANY METHOD BY ORDER DATED THE 22ND DAY OF NOVEMBER, 2013 PURSUANT TO SECTION 486.4 and 486.5 OF THE CRIMINAL CODE OF CANADA.

BETWEEN:

HER MAJESTY THE QUEEN

– and –

D.L.

Elaine Evans, counsel for the Crown

Tilton Donihee, counsel for the accused

HEARD: January 22, 2016

reasons for SeNTENCE

LACELLE, J.

[1] Mr. D. L. is being sentenced following his convictions after trial for the offences of sexual assault and assault.

[2] A pre-sentence report and a victim impact statement were filed with the court as exhibits at the sentencing hearing, as well as the books of authorities submitted by the parties.

The positions of the parties

[3] The defence submits that a sentence of two years imprisonment followed by probation for three years is an appropriate one on the facts of this case, having regard to the relevant principles of sentence and the wide range of sentence established for similar offences and offenders in the case law. The defence consents to the various ancillary orders applicable in view of the offences committed.

[4] The Crown submits that the appropriate range of sentence for offences of this kind has been set by our Court of Appeal at three to five years, and that the cases outside that range upon which the defence relies are distinguishable on their facts. She submits that a sentence of two years would be outside the range set by the Court of Appeal, and would not meet the principles of sentencing. She seeks a sentence of six years imprisonment in view of the aggravating features of the offences here, as well as various ancillary orders.

The circumstances of the offences

[5] The victim, Ms. M., was 53 years old at the time of the offences. She had a number of medical issues, including fibromyalgia and arthritis. She required the use of a wheelchair at the time that she testified at trial.

[6] At the time of the assaults she describes on November 6, 2013, Ms. M. was living at an assisted living residence. As far as Ms. M. was aware, the residence was for people with physical and mental issues.

[7] Ms. M. was not in a wheelchair in November 2013, but used a walker. She found it hard to walk, and could not walk very far. She was also taking a number of medications for various issues including panic attacks, “nerves” and pain. She was also a daily user of marijuana. She said it kept her calm, and helped reduce her pain.

[8] The victim and the accused were known to each other prior to these events. They met because the accused had lived in an apartment above the apartment the victim had briefly shared with her cousin. In the time before the offences, she saw the accused about once a week when the accused visited at the residential facility where she lived. The accused would visit because his sister and other friends lived there.

[9] On the date of the offence, November 6th, 2013, Ms. M. was outside the residence with a group of other residents to have a cigarette. At some point, the accused came over and was talking to some of the others in the group. The accused left the group about a half hour after he arrived.

[10] Eventually, the others in Ms. M.’s group went inside for snack, which generally occurred at 8 p.m. While Ms. M. was outside, the accused approached her. The accused started talking and “suggesting something go on”. Ms. M. understood that the accused wanted to have sex. She said no.

[11] The accused had a glue bag while he talked to her. He kept putting glue in it and breathing it in. Ms. M. testified that she kept putting him off, and said “no, no, no”. At some point, the accused sternly told her to stand up. She described his tone as being like a father giving an order. She said she was scared, and didn’t know what to do. She stood up.

[12] The accused grabbed her arm, told her to lean on her walker and pushed her down on to the walker. She said the pressure on her arm was enough to leave bruises. Her hands were on the seat of the walker, and her neck was on the back rest of the walker. She said she knew “he was going to take it”, and that she could not fight him because she was too weak.

[13] Ultimately, the accused pulled her pants down and tried to put his penis in her vagina, but she was too dry. Ms. M. said the accused was grunting, and “trying to ram it in”. She said he “couldn’t put it in, so he made me suck him”. He went around to the front of the walker and told her to suck it, saying “get it wet get it wet”. He pushed her head downwards, and made her perform oral sex. He then went around the back again and tried to put his penis in her vagina once more. Because she was still dry, he returned to the front of the walker where her head was and told her to suck it so it was wet enough to put it in. Ms. M. said the accused did this about five times. He ultimately succeeded in penetrating her vagina with his penis. He also tried to penetrate her rectum, but his penis would not go in.

[14] Ms. M. experienced pain as this was going on. She described feeling like she was ripping wide open. She said she had never felt anything other than having a baby that hurt that bad. She felt like she was choking given the position of her neck on the back rest. She was gasping for breath, and not able to breathe very well. She thought she would black out.

[15] Ms. M. testified that she kept saying “no, no”, all through the whole thing. She recalled saying things like “please stop, I can’t take it, you’re hurting me”. These comments had no impact on the accused. He kept “pumping and pumping harder and harder”.

[16] Ms. M. also indicated that the accused continued to sniff glue throughout the assault. She also said he did not use a condom.

[17] Ms. M. testified that at some point, the accused said he had been watching her sleep in her bedroom, which frightened her, because she felt that he had been stalking her.

[18] After the assault was over, Ms. M. said the accused suggested they have a cigarette. She thought to herself that she should run, but knew that she couldn’t. She had a cigarette, because she did not know what else to do. She and the accused then went inside the residence together. The accused asked a nurse if he could use a washroom, and she went straight to her room.

[19] Ms. M. recalled that she waited in her room for about 10 minutes until the accused had left, and that she then went and spoke to a nurse. She believed she was in shock when she spoke with the nurse. They ended up talking in the TV room. Following that, the crisis team attended and took her to the hospital to do a rape kit.

[20] Ms. M. testified that she had a number of injuries as a result of the assault. She had bruising to her arm. She said her neck had a mark like a hickey from being pressed against the walker. She said she had pain in her neck and throat for a few hours. She also had pain in her vagina, which felt like a cut, and lasted about three days.

[21] The nurse who examined Ms. M. for the sexual assault kit documented the injuries she observed. There was redness in a 3 inch band around Ms. M.’s neck. Soreness was noted on the back of her neck when it was touched. Redness was noted to her vagina, as well as to her anus and rectum. Redness was noted on both the left and right vaginal walls. She also noted Ms. M. had a hoarse voice. Photographs of the victim showed a small but significant bruise to her inner left arm above her elbow, as well as a small bruise on the inside of her left forearm.

[22] In my reasons for judgment, I found that Ms. M. was forced by the accused to perform oral sex, that he penetrated her vaginally, and that he attempted to penetrate her anally, all without her consent. I found that the accused pushed her onto her walker and used force to secure her compliance. I found that there were repeated incidents of oral sex and attempts at vaginal penetration before the accused successfully penetrated Ms. M. I further found that these events were extremely painful for Ms. M. and caused her to have the injuries documented at the hospital and later at the police station.

The circumstances of the offender

[23] The pre-sentence report sets out Mr. L.’s criminal record, which includes 23 convictions between 1995 and 2010 for various offences. There are two entries for violent offences, the last being a conviction for assault from 2009. The remainder primarily consist of breaches of court orders and thefts.

[24] Mr. L. is now 40 years old. He has a 20 year old child from an early relationship, with whom he is reported to be close. He is currently in a relationship with a woman who remains supportive of him despite her knowledge of his past life and addiction, and the circumstances of this offence. Mr. L. also has familial support, and friends in the community, a number of whom were present during the sentencing hearing. He enjoys a close relationship with his mother, who raised him as a single mother with his four half-sisters.

[25] Mr. L.’s background was difficult. His father abandoned the family shortly after his birth, and he has never had a male role model. He was also the victim of sexual abuse at the age of 16, an event which led him to use glue sniffing in order to cope with that trauma. It appears he has never been supported with counselling to address these events.

[26] The accused has a limited education, having only completed grade nine. He is dyslexic. He has not held any employment of any duration, and is supported by ODSP.

[27] Mr. L. is noted to have had a history of glue sniffing from the age of 14. At one point, his addiction was so pronounced that he would consume between eight to fifteen tubes of glue per day. He says he developed this habit to “cope with life”. However, since the offences before the court, the accused has gone “cold turkey” and is no longer abusing this substance. He admits to occasional alcohol and marijuana use. He has attended counselling for substance abuse in the past, but did so only because it was court-ordered. After completing a five session program, he was able to cut his drug use in half. However, he relapsed, and refused to attend any further counselling as he did not believe it would help him. Nevertheless, he understands that his addiction to solvents has controlled a great deal of his life, affecting his relationships, and leading to his involvement with the criminal justice system on several occasions.

[28] In the pre-sentence report, Mr. L. continued to deny his guilt, as is his right. At the same time, and consequently, there is no evidence in the report, or from any other source, that Mr. L. has any insight into his offending behaviour here, or its impact on the victim. At the same time, the fact that Mr. L. stopped using solvents after these offences is some indication that he at least has some insight into its role in his offending behaviour.

[29] The author of the pre-sentence report was of the view that if Mr. L. continued to be committed to abstaining from the use of solvents, he would likely be successful if serving part of his sentence in the community. While she expresses concern that the accused is reluctant to attend programming or treatment for his addiction, which might help him to prevent a relapse, she considers him a suitable candidate for a term of community supervision because he is motivated to maintain a pro-social lifestyle and has a great deal of support.

Factors considered on sentence

1. The relevant principles of sentencing

[30] The relevant principles of sentencing are set out in ss. 718, 718.1 and 718.2 of the Criminal Code. Section 718.1 directs that the sentence imposed by the court must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Further, the purpose of the sentence imposed by the court must reflect the principles set out in s. 718. In this context, the jurisprudence has consistently emphasized that the purposes of denunciation and deterrence have primacy. The objective of rehabilitating the offender figures less prominently. Section 718.2 codifies the principle of restraint. It further directs that the court should impose a sentence that is similar to sentences imposed on similar offenders for similar offences in similar circumstances.

2. The mitigating factors

Post-offence rehabilitative efforts

[31] Mr. L.’s abstinence from substance use for the past two years is to be commended, and as indicated above, demonstrates his understanding that substance abuse has led to his involvement in the criminal justice system. His commitment to sobriety and a pro-social lifestyle are significant changes he has made on his own and the court recognizes his hard-won progress in moving forward in overcoming a tragic addiction. The court accepts the sincerity of Mr. L.’s desire to continue with a sober and pro-social lifestyle.

Community support

[32] Mr. L. also has substantial support from his new partner, her family, his family, and other friends in the community. Much of this support has crystallized since he stopped sniffing glue. This support will help him in future years to maintain his commitments to sobriety and a pro-social lifestyle.

The accused’s disadvantaged background

[33] The court also considers the difficult circumstances Mr. L. faced as a child, given the absence of a father in his life and the experience of sexual abuse as a teen-ager. Mr. L. indicates that he used glue sniffing to cope with life, and his addiction is no doubt a product of these difficult circumstances in his early years. He was also dyslexic, and appears to have had significant difficulties in a school environment, facts which further diminished the likelihood he would succeed in his adult life.

3. The aggravating factors

Victim Impact

[34] Ms. M. prepared a victim impact statement, and also spoke with the author of the Pre-Sentence Report about the impact of the offences upon her. The pre-sentence report notes that Ms. M. has difficulty sleeping, that she has nightmares, tremors, and she wakes up in the middle of the night scared and feeling sick. She has lost weight, has a decreased appetite and cries all the time.

[35] Ms. M.’s victim impact statement further describes difficulties she has experienced since this offence. She is under extreme stress and fears retaliation by others in the community because the accused has been convicted of these offences. She has consequently stopped leaving her house at all if she can. She also reports that describing these events at trial has caused all the memories and pain to surface, and she can’t seem to forget the incident. She dreams about it, and wakes up feeling terrified and panicked. She worries the accused is looking through her window to the point that she keeps her windows and curtains closed at all times. While she acknowledges that she has been told that counselling might assist her, she is in a wheelchair and getting around in winter is not easy. She reports that her physical and emotional health have “gone downhill” since the incident.

The vulnerability of the victim

[36] At the time of the assault, the victim suffered from various health conditions and required the use of a walker. She was less physically strong than the offender, and unable to resist or escape the assault given her limited mobility. As the Crown put it, she was at the mercy of the accused. The vulnerabilities of the victim with respect to her limited mobility were plain for the accused to see, and he took advantage of them. I consider too that her vulnerable condition has made it more difficult for her to recover from these events.

The prolonged and invasive nature of the assault

[37] This was an invasive and prolonged assault. The progression of the assault from attempts to penetrate the victim, to forcing her to perform oral sex so that the accused’s penis could more easily penetrate her, had to increase the victim’s experience of fear and degradation.

The force used to subdue and control the victim during the commission of the assault

[38] Sexual assault is in and of itself a violent offence. On the facts here, there was additional force used during the commission of the sexual assault. The accused pushed the victim onto her walker, resulting in the victim’s neck being pinned against a bar on the walker. The victim described how she could not breathe, and thought she might lose consciousness. This position made her even more vulnerable, as her voice was her only defence against the assault given her limited mobility. While the extent of the additional violence used is at the lower end of the scale, it was sufficient to subdue and control the victim, and caused her neck to be placed in a position that caused her pain and distress.

[39] I am mindful that this violence resulted in an additional conviction for assault, and the accused will not be sentenced twice as a result of the additional violence used. The global sentence will reflect the totality of the circumstances giving rise to both convictions.

The pain, injury, and risk of harm suffered by the victim

[40] Apart from the psychological harm described above in relation to the impact of this offence upon the victim, the assault caused significant pain and some injury to the victim. With respect to the pain, the victim indicated she felt like she was ripping wide open. She had not felt pain that bad other than having a baby. She experienced pain in her neck and throat for a few hours. She had pain in her vagina for days. She was left with bruising to her arms.

[41] Since a condom was not used by the accused, the victim was also exposed to the risk of a sexually transmitted disease.

The accused’s prior criminal record

[42] The accused has a significant criminal record that includes convictions for violence.

The accused’s substance abuse

[43] The accused sniffed glue even as he committed the offences. His criminal record and his counsel’s submissions on sentence confirm that his substance abuse has been sufficiently problematic for him to result in a number of criminal convictions, including convictions for violence, and yet he continued with his substance abuse. In this context, the accused must bear responsibility for the condition he was in when he assaulted the victim. His moral blameworthiness for the offence is enhanced by the fact that he must have known that being high put him at risk of criminally offending. While the accused now appears to recognize the link between his drug use and his criminality, regrettably, he had not taken responsibility for his substance abuse before assaulting the victim.

[44] The accused has now maintained a period of sobriety. It is relatively brief when considered against his history of substance abuse. The accused would be a risk to the community if he relapsed. While I consider that his risk in this regard is significantly attenuated at the moment, given the accused’s current degree of insight into his addiction and his reluctance to engage in counselling, some risk remains.

4. The sentence imposed for similar offences committed by similar offenders in similar circumstances

[45] The parties have provided cases for the court’s consideration in arriving at a just sentence. The defence relies upon the following authorities: R. v. Colbourne, 2013 ONCA 308, R. v. Garett, 2014 ONCA 734, R. v. Cubillan, 2015 ONSC 2747, R. v. Ouellet, 2014 ONSC 5387, R. v. Lewis, 2013 ONSC 3181. The Crown relies on: R. v. Barton, [2002] O.J. No. 4105 (Ont. C.A.); R. v. Bradley, 2008 ONCA 179, [2008] O.J. No. 955 (Ont. C.A.); R. v. Myers, [2000] O.J. No. 1787 (S.C.J.), [2002] O.J. No. 965 (C.A.); R. v. Desjardins-Paquette, Reasons for Judgment April 7th, 2010 (S.C.J.), [2002] O.J. No. 4669 (Ont. C.A.); R. v. R.C., [2001] O.J. No. 4486 (C.A.), and R. v. L.N.B., [2004] M.J. No. 29 (Prov. Ct.).

[46] While I have reviewed all the authorities submitted, the facts and statements of principle in certain cases merit further discussion here. While the circumstances of the offender were quite different in Bradley (the accused was a police officer), the offences also involved a serious sexual assault. The accused was convicted because he had engaged in non-consensual vaginal and anal sex with the complainant, demanded oral sex from her, and made degrading comments to her. The accused was a thirty-nine year old police officer at the time. The complainant was a twenty-one year old aboriginal woman who had aspired to become a police officer, and met the accused through a high school co-op placement. The Court of Appeal confirmed at paragraph 18 that the appropriate range of sentence on these facts was three to five years. The Court of Appeal held a sentence of three years at the low-end of the range was fit, because the offence had not involved any violence apart from that which is inherent to the offence of sexual assault, because the offence had occurred many years prior to the trial, and the accused, who had no prior criminal record, had presented much evidence of his otherwise unblemished character and positive role as a father.

[47] The cases of Colbourne and Garett are anomalous and turn on their own facts. They are outside of the appropriate range of sentence on the facts at issue here. Garett is the only appellate authority provided by the defence which endorses a sentence below the three to five year range identified in Bradley. However, the Court of Appeal was careful in that case to clarify that in substituting an 18 month sentence for the 90 day sentence imposed by the trial judge in Garett, that sentence was not within the appropriate range of sentence. Its language at paragraph 23 is clear: “The sentence imposed by this court should not be taken as a sentence within the appropriate or usual range. We are constrained in this regard by the Crown’s position at trial”.

[48] The remaining cases cited by the defence which fall outside the three to five year range involve differing circumstances, and as indicated above, are not authorities from an appellate court. There were fewer aggravating features to the offences in Cubillan, and the circumstances of the offender also differed significantly from those of the accused here. Mr. Cubillan had no prior criminal record, no history of substance abuse, and had adduced evidence of his involvement in his church parish, including social and cultural activities. He had never had any significant periods of unemployment, and was reportedly at risk of deportation as a result of his conviction. The Crown agreed that a two year sentence was within the range on the facts of that case, and a two year sentence was ultimately imposed. In Ouellett, where the sentence imposed was 30 months, there was good character evidence presented by the accused, who had a more limited and dated criminal record. The circumstances of the offence did not have similarly aggravating features. Further, the court in that case accepted that the range of sentence was 2-4 years based on the authorities submitted by counsel, and did not reference the Court of Appeal’s decision in Bradley. In Lewis, the court imposed a sentence of two years concurrent time on two counts of sexual assault arising from the same incident, as well as a probation order. Again here, the circumstances of the offence were less aggravating, and the offender’s circumstances were more positive. The court did not reference the range in sentence indicated in Bradley. I am not persuaded by these authorities that a sentence in the range proposed by the defence is appropriate.

[49] In support of her position, the Crown has provided cases where the sentence exceeds the usual range of sentence for an offence involving forced intercourse. Those cases are also

distinguishable on their facts. In Barton, where the sentence of six years imposed at trial was upheld by the Court of Appeal, the accused was on bail when the offence was committed and he had been previously convicted of similar offences, some of them in relation to the same complainant. Desjardins-Paquette also involved a sentence of six years at trial that was upheld on appeal. The offender in that case was an untreated schizophrenic man who was found to have no insight into his illness. The pre-sentence report indicated that because of his mental illness, there was a significant risk that the offender would either harm himself or others. Consequently, the trial judge found that the accused was an ongoing risk to the community. The accused was also on bail in relation to another alleged sexual assault at the time he committed the offences. R.C. also involved a sentence at trial of six years, upheld on appeal. However, R.C. was being sentenced in relation to numerous charges in addition to sexual assault and assault, and he had a history of violence against the same victim. He was found to have assaulted and sexually assaulted her the day after his release from his sentence in relation to those prior convictions. I am not persuaded by these authorities that a sentence of six years is similarly appropriate here.

5. Conclusion

[50] This was a serious sexual assault that has had profound effects upon the victim. Given the range of sentence for offences of this kind confirmed in Bradley, and the nature of the aggravating circumstances here, I find that a sentence at the high end of the range is appropriate. While I have considered the mitigating factors, given the seriousness of the offence and the significant aggravating factors present here, particularly the additional force used by the accused to subdue the victim and her extreme vulnerability at the time the offence was committed, I find that a global sentence of five years is appropriate.

[51] I have considered the defence submission about the value of a probation order to rehabilitate the accused and thereby protect the public. Given my conclusion about the appropriate range of sentence, a probation order is not available. However, I note that counselling for substance abuse will be available to the accused while serving his sentence.

6. The sentence imposed

[52] Accordingly, Mr. L. is sentenced as follows:

[53] On count one, the sexual assault, Mr. L. is sentenced to 5 years imprisonment.

[54] On count two, the assault, Mr. L. is sentenced to 3 months to be served concurrently to the sentence on count one.

[55] While in custody, pursuant to s. 743.2(1) of the Code, Mr. L. is not to have any contact or communication, directly or indirectly with Ms. M.

[56] Pursuant to s. 487.051 of the Criminal Code, there will be an order requiring Mr. L. to provide a sample of his DNA to the police for the purposes of the DNA databank.

[57] Pursuant to s. 490.012, and in conjunction with s. 490.013(2)(b), there is a SOIRA order for 20 years.

[58] Pursuant to s. 109(1)(b) of the Code there is an order prohibiting Mr. L. from having possession of the items set out in that section for 20 years.

[59] The court also imposes a Victim Surcharge of $400, to reflect two convictions for indictable matters. In view of his limited financial prospects, Mr. L. will have two years to pay that fine. He may apply for an extension to pay it if he is unable to pay it within the two year period granted today.

Madam Justice Laurie Lacelle

Released: January 29, 2016

CITATION: R. v. L., 2016 ONSC 733

COURT FILE NO.: 14-74

DATE: 2016/01/29

ONTARIO

SUPERIOR COURT OF JUSTICE

INFORMATION CONTAINED HEREIN REGARDING THE IDENTITY OF THE COMPLAINANT AND/OR ACCUSED IS PROHIBITED FROM PUBLICATION BY ANY METHOD BY ORDER DATED THE 22ND DAY OF NOVEMBER, 2013 PURSUANT TO SECTION 486.4 and 486.5 OF THE CRIMINAL CODE OF CANADA.

HER MAJESTY THE QUEEN

– and –

D.L.

REASONS FOR SENTENCE

Madam Justice Laurie Lacelle

Released: January 29, 2016