CITATION: R. v. W. V., 2016 ONSC 7661
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
W. V.
Respondent
Philip Zylberberg, for Her Majesty the Queen.
Renée E. M. Gregor, for the Respondent.
HEARD: August 5, November 14 – 18, November 25, December 6, 2016
Restriction on Publication
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code.
r. d. gordon, r.s.j.
Overview
1On March 24, 2016 I found Mr. V. guilty of touching the complainant, a person under the age of 16, for a sexual purpose. On consideration of all of the evidence, I was and remain satisfied beyond a reasonable doubt that Mr. V. and the complainant were involved in a regular and long term sexual relationship which included sexual intercourse, attempted anal intercourse and oral sex. The relationship ended before she attained the age of sixteen years.
2My decision today deals with the sentence to be imposed upon Mr. V.
3There is a wide disparity between the positions taken by counsel.
4The Crown has suggested that Mr. V. receive a sentence of 8 years and that he be given credit for 40 months of pre-trial custody, leaving a further 56 months to be served.
5Defence counsel, on the other hand, submits that a fit sentence would be 3.5 to 4 years and that Mr. V. should be given credit for that full amount given the conditions at the Sudbury Jail where he spent most of his pre-trial custody. She asks that he be released with a probationary term of three years.
6Mr. V. was arrested and taken into custody on November 10, 2014. Although he was deemed to be suitable for release on certain conditions he was unable to meet those conditions and has remained in custody since. As of today, December 6, 2016, he has been in custody for practically 25 months. 19 of those months were spent at the Sudbury Jail.
7In coming to my sentencing decision today I have considered, first, what an appropriate sentence for Mr. V. would be without regard to his pre-trial and pre-sentence custody; and second, what credit is appropriate in light of his pre-trial and pre-sentence custody.
Sentence Before Consideration of Pre-Trial Custody
Applicable Sentencing Principles
8Section 718 of the Criminal Code provides that the fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
To denounce unlawful conduct and the harm done to victims or to the community.
To deter the offender and other persons from committing offences.
To separate offenders from society, where necessary.
To assist in rehabilitating offenders.
To provide reparations for harm done to victims or to the community; and
To promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
9In 2002, in the case of R. v. D.D., our Court of Appeal gave consideration to these sentencing principles in the context of crimes of a sexual nature committed by adults upon young persons and held that: (1) Our children are our most valued and our most vulnerable assets; (2) We as a society owe it to our children to protect them from the harm caused by sexual predators; (3) Throughout their formative years, children are very susceptible to being taken advantage of by adult sexual offenders and they make easy prey for such predators; (4) Adult sexual predators recognize that children are particularly vulnerable and they exploit this weakness to achieve their selfish ends, heedless of the dire consequences that can and often do follow; (5) Three such consequences are now well-recognized: (i) children often suffer immediate physical and psychological harm; (ii) children who have been sexually abused may never be able, as an adult, to form a loving, caring relationship with another adult; (iii) and children who have been sexually abused are prone to become abusers themselves when they reason adulthood.
10The court said that absent exceptional circumstances, in the case of adult predators, the objectives of sentencing commonly referred to as denunciation, general and specific deterrence and the need to separate offenders from society must take precedence over the other recognized objectives of sentencing.
11The court went on to say that, as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms.
12These general principles have been reiterated by the Court of Appeal in R. v. Woodward 2011 ONCA 610, R. v. D.M. 2012 ONCA 520, and R. v. C.C. 2015 ONCA 59, recognizing, however, that sentencing must be an individualized process and that ranges of sentence are not necessarily binding.
13Section 718.2 of the Criminal Code requires that I take into account any relevant aggravating or mitigating circumstances relating to the offence or the offender.
Aggravating Factors
14There are several aggravating factors in this case. To begin with, the sexual contact took place over several years. Second, the complainant was quite young when it began – likely between the ages of 9 and 11. Third, the sexual abuse was regular and progressively more invasive, eventually evolving to regular sexual intercourse, oral sex and attempts at anal intercourse. Fourth, Mr. V. was in a position of trust to the complainant, having assumed the role of step-father towards her. Fifth, Mr. V. used his position of authority to reward the complainant for the sexual relationship, including intervening with her mother to lessen discipline and providing her with money, alcohol and marijuana. Lastly, but perhaps most importantly, are the consequences of these actions on the complainant. Not unexpectedly, she has suffered from depression and anxiety, has been admitted to a mental health facility on two occasions, has acted out against those closest to her, dropped out of school and been in trouble with the law.
Mitigating Factors
15There are few mitigating factors. Mr. V. is 44 years of age. He has a 17 year old son who is a crown ward. He has a not insignificant criminal record, but it is somewhat dated and contains no offences of sexual misconduct. Although he has limited education and training, he has generally been able to find and maintain employment.
Analysis
16In my view, there are no exceptional circumstances in this case which would take the appropriate sentence for Mr. V. outside of the range prescribed by the Court of Appeal. It follows that an appropriate sentence would fall within the range of 5 to 9 years.
17Within that range, a consideration of the aggravating and mitigating factors lead me to conclude that an appropriate sentence is 7 years. This reflects his position of trust, the long term and invasive nature of the abuse along with the significant consequences it has had on the complainant. It also recognizes that Mr. V. has no related criminal record, and that his sexual relationship with the young complainant did not involve other acts of violence of threats of violence towards her.
18Let me turn now to the issue of credit on account of pre-trial and pre-sentence custody.
Credit / Mitigation on account of Pre-Trial and Pre-Sentence Custody
The Applicable Law
19In the case of R. v. Summers 2014 SCC 26, [2014] 1 S.C.R. 575, the Supreme Court of Canada held that credit on account of pre-sentence custody is to be assigned on the basis of a quantitative rationale, to account for lost eligibility for early release and parole during pre-sentence custody, and a qualitative rationale, to account for the relative harshness of the conditions in detention centres. The court held that the loss of early release, taken alone, will generally be a sufficient basis to award the maximum credit of 1.5 days for every day spent in pre-sentence custody prescribed in section 719(3.1) of the Criminal Code. The Crown has agreed the credit at the maximum rate of 1.5 to 1 is appropriate in this case.
20Section 718.2 of the Criminal Code also requires that I consider whether the sentence to be imposed should be decreased to account for any relevant mitigating factor.
21In the very recent case of R. v. Duncan 2016 ONCA 754, the Ontario Court of Appeal held that in appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation under section 718.2, apart from and beyond the 1.5 credit referred to in section 719(3.1) and that in considering whether any enhance credit should be given, the court is to consider both the conditions of the presentence incarceration and the impact of those conditions on the accused.
22The issue, then, is whether Mr. V. was subject to particularly harsh conditions of presentence incarceration.
The Sudbury Jail
23The Sudbury Jail is primarily a remand centre, holding people who have not been granted judicial interim release, or who have been unable to meet the conditions for release. As such, most have not yet had their trial and enjoy the presumption of innocence. The jail also houses inmates who have been found guilty and have been sentenced to periods of incarceration of 6 months or less.
24The jail was first built in the years 1928 to 1930. An addition was added in 1986. There are sufficient beds to accommodate 186 inmates.
25The jail is made up of several different units or clusters of cells. Typically, although not uniformly, a unit is made up of 5 cells, all of which open into a larger common area. The common area has three tables, each with four stools around it and typically has a television and a radio. There is a smaller separate area with a telephone and another smaller area housing a shower and toilet. Around the perimeter of the common area is a corridor where guards walk to complete their patrols.
26A typical cell is 7.5 feet long and 5 feet wide and contains 2 bunk-style beds, along with a combined sink/toilet unit.
27During their time at the jail, inmates are held in one of segregation, protective custody or general population.
28Segregation is just what the name suggests – a place where inmates are segregated or kept away from other inmates. This is done in one of two ways. First, inmates can be put in a segregation unit comprised of a cluster of cells as I have earlier described; or second, they can be placed in one of four cells in the area known as “the hole”.
29Either way, they are basically confined to their cell for all but one hour per day. When allowed out of their cell, it is alone (or with their cellmate, should they have one). They are not allowed to gather in the common area with other prisoners. They have no television or radio.
30The Hole is a particularly dismal place. There are four cells in the hole and each is basically a concrete rectangle with a concrete platform and mattress which functions as the bed, and a combined toilet/sink. The door to the cell is basically solid. The light is kept at a constant dim level. It is what I envision when I hear the term “solitary confinement”. It has no common area. It has no radio or television.
31Inmates may be placed in segregation at their request, for their safety, or as a result of misconduct in the jail.
32Inmates may also be assigned to protective custody. Protective Custody is much like being in general population as I will describe in a moment, but with other inmates who are not thought to be a danger.
33General Population is where inmates who are not in protective custody or segregation are housed. In general population, inmates are locked in their cells at 7:30 in the evening where they remain until about 7:30 in the morning. In the morning, their cells are opened and they have access to the common area in addition to their cell. At 10:00 a.m. they are locked out of their cells until 3:00 in the afternoon. At 3:00 the cells are re-opened and are accessible to the inmates. They can then access both their cell and the common area until 7:30 when they must return to their cell and are once again locked in.
34While they have access to the common area they are able to use the telephone and shower facility. They are also able to watch television and listen to the radio. The television is often left on after 7:30 in the evening but can only be viewed by inmates in certain cells.
35Under normal conditions those in general population and in protective custody are able to shower daily and have daily 30 minute access to the “yard” – a small outdoor courtyard in which they may walk and get some fresh air. Under normal conditions those in segregation are to be granted access to the yard each day for up to 30 minutes also, but are able to shower only twice per week. They are to be given access to a telephone on request.
36The Sudbury Jail has few programs available to its inmates. The John Howard Society delivers books on a regular basis. There is an anger management program, a continuing education program, aboriginal programs, along with bible studies, alcoholics anonymous and narcotics anonymous. There is little else.
The Complaints
37The following is a list of the complaints raised by Mr. V. that he argues should entitle him to enhanced credit:
Pervasiveness of mold.
Infestation of mice.
Overpopulation of inmates, often requiring that cells accommodate three or four inmates.
Lack of hot water in the cells and inconsistent water temperatures in the showers.
Lack of cleaning supplies.
Uncleanliness of cells including lengthy periods when vomit and feces are left in cells without adequate supplies to clean.
Lengthy wait times for medical and dental consultations.
Exposure to dangerous persons and situations.
Lack of mental health services.
Frequency and length of lockdowns.
Lack of programming.
Lack of maintenance, particularly of toilets which are often plugged or inoperable.
Lack of regular range checks by guards.
Lack of respect from certain guards.
Extended periods of segregation.
Minimal Yard time.
Poor Air Quality.
38Let me comment upon Mr. V.’s evidence during the sentencing hearing. Much as I determined during the trial itself, Mr. V. gave his evidence in a forthright and believable manner. I do not doubt that most of his complaints have some basis in fact. However, it is clear that Mr. V. is given to overstatement. For example, his statement that there are probably a hundred million mice in the jail strikes me as unlikely. His statement that 95% of all shower exteriors are covered in black mold is doubtful. His evidence of the number of lockdowns was inaccurate – for example, he said that the jail was in lockdown most of July of this year whereas the records confirm that the jail was locked down for seven days in July. These types of overstatements have led me to a critical examination of the various complaints and a search for corroborating evidence.
39I also feel compelled to observe what should be fairly self-evident: Time in jail cannot be expected to be a walk in the park. Living in close quarters with other men who have little investment in their surroundings is likely to result in less than pristine living conditions. Being housed in a building with more than 100 other men, many of whom have violent tendencies, will expose inmates to dangerous persons and dangerous situations. In a building which has been in service for more than 85 years, an inmate might reasonably expect to have some issues with the plumbing, particularly when other inmates are known to regularly jam clothing and towels into the toilets. That hot water will not flow consistently at all times is a nuisance, not a hardship.
40That being said, several of Mr. V.’s complaints should be taken very seriously. In particular, the complaints of extended time in segregation, frequent lockdowns, infestation of mice, poor air quality, wait times for medical attention, prevalence of mold and overpopulation require closer examination.
Extended Time in Segregation
41As I have indicated, segregation means that an inmate is essentially confined to his cell for about 23 hours per day. Inmates in segregation are generally to be alone in their cell. In reality, overcrowding of the segregation unit often results in the sharing of cells. The inmate has no television and no radio. He is allowed to shower perhaps twice per week. If in the hole, his cell is subject to a constant dim light. Although he is to be given access to the yard regularly, in fact that access is relatively infrequent and subject to disruption during lockdowns.
42It is not entirely clear how many days Mr. V. has spent in segregation. According to him it is about 338 days. According to Ms. O’Rourke it is about 250. The difference lies in whether Unit 6B, in which Mr. V. was housed from November 10, 2014 to February 6, 2015 is said to be a protective custody unit or a segregation unit. She said it was protective custody and was not cross-examined on the point. Mr. V. said it was then a segregation unit and was cross-examined on the point only briefly. There was also an issue of whether Range 7, the last range in which Mr. V. has been housed, is a segregation unit or a protective custody unit. Perhaps it would best be described as a hybrid of the two. However, given that it is subject to many of the restrictions placed on segregated prisoners, I have considered it as a segregation unit. Of his time in segregation, Mr. V. was in the Hole for 50 days (48 of which were consecutive).
43The Crown made an effort to establish that Mr. V. was in segregation at his own request and cannot therefore now be heard to complain. What emerged from the evidence, however, was that the jail authorities could not ensure his safety unless he was in segregation and so he was given a choice: return to protective custody with the very real risk of physical harm from other inmates, or remain in segregation. I am not surprised with his decision, but it is my view that he should not have had to make it.
44It is not appropriate to say to an inmate: “I am sorry. We cannot protect you unless we isolate you, deprive you of almost all other human contact, confine you to a small space, subject you to a constant dim light, and deprive you of fresh air and shower facilities for days at a time.”
45Surely we can do better. We must do better. Surely we can expect the government to provide the jail sufficient manpower and resources to provide all inmates with adequate protection and equivalent living conditions regardless of the charges they are facing.
Frequent Lockdowns
46Over the last two years, lockdowns have occurred at the Sudbury Jail with alarming frequency. The evidence established that during Mr. V.’s time at the Sudbury Jail there were approximately 75 days of lockdown. Although certain lockdowns were due to inmate activities, the vast majority were the result of staff shortages.
47The effect of a lockdown is significant. For those in general population or protective custody, it means the day is spent in their cells. It means no yard time, no phone privileges, no visitors, restricted television access, no programming and reduced access to showers. For those in segregation what little human contact they are afforded is reduced yet again. Yard Time is lost. Showers are delayed.
48The loss of these privileges puts the inmates on edge. Tensions rise. Stress increases on what staff remains. Absences ensue, and the cycle continues.
49The frequency of the lockdowns at the Sudbury Jail has been unacceptable. I am heartened to learn that in recent months there has been a significant increase to staff levels that has greatly reduced the number of lockdowns. However, those hirings can do nothing to change the conditions which prevailed there for the last two years.
Infestation of Mice
50That the Sudbury Jail has a rodent problem is beyond dispute. It is an old building. There are many cracks and crevices by which they can enter. There is warmth and there is an abundance of food to entice them. I have little doubt that mice are encountered in the jail on a daily basis. If it were otherwise there কাশী no need for pest control services to attend three times per week to tend to the traps.
51Where there are mice there is also mice feces and urine. I have little doubt that it is prevalent from time to time in the cells of the inmates and in the areas where they eat their food. Given that it is not unusual for inmates to be sleeping on a mattress on the floor, it is likely that they encounter mice up close on a regular basis.
52The local jail personnel do what they can to address the issue. They cannot keep them out. The best they can do is try to control their numbers inside. Surely we can do better than require inmates to share their very confined living space with vermin.
Poor Air Quality
53Not unexpectedly, when 100 plus men are confined to a single building, with irregular showering due to lockdowns, and foods being cooked in-house the air quality can suffer. In April of 2016, after some 18 months of installation efforts, work was completed on a new HVAC system for the jail. All the witnesses who testified remarked how much better the air quality in the jail is now compared to what it was previously.
54With counsel, I attended for a view of the jail. The air was not what I would describe as fresh. It must surely have been horrendous before the installation of this new system. Following a tour of the jail on January 4 of this year, Nickel Belt MPP France Gelinas was quoted as saying: “It’s gross, just gross. It stinks in there through the whole place.” I do not doubt that this was the situation for much of Mr. V.’s stay.
Wait times for Medical and Dental Attention
55There is a process at the Sudbury Jail by which inmates are to have regular access to medical and dental services. However, these services can be interrupted by emergencies and lockdowns, resulting in significant delays. In particular, the records for Mr. V. indicate that he presented at the doctor’s office on April 13 with dental pain (what I might commonly refer to as a toothache). The earliest dental appointment he could get was May 9. On May 9 the appointment was cancelled due to an emergency medical admission. On May 20 he again saw the doctor, who remarked on the number of cavities he had and referred him again for dental work. It was not until June 27 that he was scheduled to see the dentist.
56I am not satisfied that there are regular long term delays in providing services to inmates. However, that Mr. V. was required to endure dental pain for two and a half months before treatment could be arranged is unfortunate at best.
Mold
57Mr. V. complained of mold on the exterior of showers, on toilets and in most every cell.
58The jail officials who testified indicated that there are regular inspections for such things and any mold issue is dealt with promptly. They were not aware of any mold or complaints of mold by inmates. They did acknowledge that there has been an isolated mold issue in the basement storage area that had been remedied.
59In the reports by France Gelinas of her various tours of the jail, although there was mention of a musty or moldy smell, there was no report of having observed mold as reported by Mr. V.
60On our view of the jail I saw no mold. However, the shower areas often had pockets of rust on the exterior of the stalls and nearby walls which would indicate long term problems with moisture.
61Perhaps the new HVAC system has assisted with the humidity and moisture in the Jail so that mold growth has slowed or stopped in the recent past. Perhaps the problem has been with mildew as opposed to mold.
62In any event, on all of all of the evidence, I am not satisfied that mold has been or is a significant problem in the jail.
Overpopulation
63Mr. V. complained of overcrowding in the jail. He says he has often been in a cell with more than one other inmate with the result that one of them (usually him) must sleep on a mattress on the floor. His evidence was that he has been on the floor about 50% of the time while at the Sudbury Jail.
64Although I rather suspect that Mr. V. has overstated the case somewhat, it is clear that more than two persons are allocated to a cell on a fairly routine basis. Exhibit 11 is the “bed book” for Range 7 for certain days in the month of October, and show what inmates were assigned to what cells. These were the only bed books filed as evidence and they indicate that of the 11 days of October reported, Mr. V. was in a cell with two others on 7 of those days.
65Even worse, Mr. V. gave un-contradicted evidence on November 15 that a fourth inmate had been moved into his cell.
66The evidence established that the assignment of more than two inmates to a cell arises when there are more inmates assigned to a specific unit than there are beds for them. For example, if there is only one unit available for segregation inmates, and that unit has 10 beds, but there are 16 inmates who have requested or been assigned to segregation, they must be accommodated within the unit that has been assigned. This is so notwithstanding that there may be another unit or units in the jail that have no inmates occupying them. The rationale for this was not entirely clear to me, but must be based on staffing levels. That is, opening and policing another unit of cells in the jail would involve more staff than having the inmates triple-bunked in a single unit, and staffing levels are not high enough to accommodate that.
67Remember, the cells in this jail are 7.5 feet long and just 5 feet wide. One could make a decent argument that the cells are hardly large enough to accommodate two adult males. That they should accommodate three and sometimes four is completely unacceptable. Add to this that while in segregation or during lockdown the inmates are largely confined to their cells and the situation borders on inhumane.
Conclusion
68Over the last two years, the requirement that Mr. V. spend extended periods of time breathing foul air while languishing in segregation or in lockdown, often in an overcrowded and undersized cell in which mice are regularly present constitutes particularly harsh presentence incarceration. It amounts to a relevant mitigating circumstance relating to the offender that merits a reduction in sentence.
69I wish to make clear that I do not hold the local jail officials and staff responsible for these shortcomings. I am satisfied that they make the best of the facilities and staff levels available to them. In addition, I am somewhat heartened by recent staff increases and improvements that are being made to the facility itself. Hopefully on a go-forward basis, these steps will render the Sudbury Jail a more humane place for those who are required to reside there.
70In my view, an additional credit of 9 months custody is appropriate in the circumstances of this case. Accordingly, Mr. V. will be credited with a total of 46.5 months of presentence custody.
Summary of Sentence
71The term of imprisonment that would have been imposed before any credit on account of pre-sentence custody is 84 months.
72Mr. V. has been in custody for just shy of 25 months. He will be granted credit for time served of 46.5 months in total.
73This leaves the sentence imposed today at 37.5 months incarceration.
74The following corollary orders are also made:
Under section 487.051(1) of the Criminal Code I authorize the taking from Mr. V. of the number of samples of bodily substances that is reasonably necessary for the purpose of forensic DNA analysis.
Under sections 490.012(1) and 490.013 of the Criminal Code, Mr. V. is required to comply with the Sex Offender Information Registration Act for 20 years.
Under Section 110 of the Criminal Code, Mr. V. is prohibited from possessing any weapon for a period of 10 years following his release from prison.
Under Section 737 (1), Mr. V. shall pay a victim surcharge of $200.
That Mr. V. have no contact with the complainant during his period of incarceration.
R. D. GORDON, R. S. J.
Released Orally: December 6, 2016
CITATION: R. v. W. V., 2016 ONSC 7661
COURT FILE NO.: 751/15
DATE: 20161206
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Applicant
– and –
W. V.
Respondent
decision on Sentence
R. D. GORDON, R.S.J.
Released Orally: December 6, 2016
