CITATION: R. v. D.A., 2017 ONSC 1800
COURT FILE NO.: CR-15-0030
DATE: 2017-03-20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Peter Keen, for the Crown
- and -
D.A.
Christopher Avery, for the Accused
Accused
HEARD: March 20, 2017, at Thunder Bay, Ontario
Mr. Justice W.D. Newton
WARNING
AN ORDER RESTRICTING PUBLICATION OF ANY INFORMATION THAT COULD “IDENTIFY” THE COMPLAINANT OR WITNESS HAS BEEN MADE IN THIS PROCEEDING UNDER SECTION 486.4(1)(a) OF THE CRIMINAL CODE OF CANADA
Reasons For Sentence
Overview
[1] D.A. was charged with sexually assaulting T.T. contrary to section 271 of the Criminal Code of Canada. D.A. admitted that he touched T.T. in a sexual way. The issue at trial was whether T.T. consented to the sexual contact.
[2] Following trial, reasons reported at 2016 ONSC 6521, I found D.A. guilty.
[3] A presentence report was ordered.
The Facts
A. Circumstances of the Offence
[4] D.A. and T.T. were coworkers, nurses working in a remote First Nation’s community. They had some drinks together and, when T.T. went to leave D.A’s room, D.A. grabbed T.T. and pushed her on to a bed. I summarized her evidence, at para. 9, as follows:
While still holding her by the arms he climbed on top of her and she said to him “seriously you need to get up off of me.” He did not and then fondled and kissed her. She said that he put his hands up her shirt and fondled her breasts underneath her bra. She said he also tried to put his hands down the front of her pants but was unable to get very far because the drawstring on her pants was tied tightly. She confirmed that his fingers did not penetrate her vagina. She was wearing a tampon at the time.
B. Circumstances of the Offender
[5] D.A. is 33. He is originally from Ghana. His family immigrated to Canada in 1987. He is a registered nurse. He is engaged to be married. He financially supports a 10-year-old daughter from a prior relationship. This conviction will have significant consequences for his chosen profession. Should he not be able to continue as a nurse he will be reduced to labouring jobs.
Presentence Report
[6] The probation officer interviewed D.A., his fiancée, his parents, his siblings, the victim and a police officer. D.A. has no prior criminal record. He lost his employment as a result of this charge but has secured part-time employment since. His current employer is not aware of these charges but the College of Nurses of Ontario is investigating this occurrence. All but the victim described him in very positive terms. He and his fiancée are to be married.
[7] The probation officer concluded:
On a positive note, he does not present with substance abuse related issues and has social supports, in particular, his intimate partner, parents and siblings, who described him as a respectful family oriented person for whom the offence is out of character. Further, he presents with consistent employment history and motivation to continue working.
The above notwithstanding, he has not accepted responsibility for his behaviour as evidenced through his denial of committing the offence. He described the current matter before the Court as a consequence of a false accusation made by the victim, who advised of the emotional and psychological impact of his behaviour on her and her children. This apparent lack of insight into this conduct may impede the efficacy of offence related intervention strategies. Nonetheless, he may benefit from community-based and/or Ministry of Community Safety and Correctional Services sexual offender programming given his reported amenability to attend for counselling despite his insistence of innocence.
Presentence Report Recommendations
[8] The report concluded that, should the Court determine that a period of supervision is appropriate the following conditions were recommended:
a) report to a probation officer as directed;
b) not to associate, directly or indirectly, with the victim; and
c) attend and actively participate in any assessments and recommended counseling/treatment/rehabilitative programs as directed by the supervisor.
Letters of Support
[9] Four coworkers delivered letters of support. All were very supportive of his character and his professionalism.
C. Impact on the Victim and/or Community
[10] T.T. submitted a Victim Impact Statement. I reproduce some of her comments:
after your violent attack on me, I was diagnosed with PTSD.
I find myself scared to be in close contact with a male because I begin to sweat, panic, and shake and have to struggle to control and calm myself. I consistently have to reassure myself that I am safe, because I am constantly in flight mode of just wanting to run. I find myself living in fear, to the point where I stay home 90% of the time, and even then if I hear an unexpected sound, I begin to panic with fear. These fears are new to me and haunt me again.
I am tired and I am sad all the time and I continually experience enormous shame – although I know I did nothing wrong.
[11] She has become suicidal and is on medication. Her ability to parent her children has been impaired. Her dreams of going to medical school have been destroyed.
[12] She stated that, because she filed a complaint, she was de-rostered from Health Canada and suffered a significant decrease in her income. That coupled with her mental health issues caused by the PTSD resulted in significant financial hardship. Her workplace experiences are now strained. She has experienced ongoing bullying and harassment by medical staff. She says that she has lost friends and colleagues because of this. She gets treatment from counsellors and psychiatrists.
Legal Parameters
[13] The following Criminal Code provisions apply:
Purpose and Principles of Sentencing
718 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:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by 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 or to the community. R.S., 1985, c. C-46, s. 718; R.S., 1985, c. 27 (1st Supp.), s. 155; 1995, c. 22, s. 6; 2015, c. 13, s. 23.
Fundamental principle
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. R.S., 1985, c. 27 (1st Supp.), s. 156; 1995, c. 22, s. 6.
Other sentencing principles
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,
… shall be deemed to be aggravating circumstances;
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(d) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. 1995, c. 22, s. 6; 1997, c. 23, s. 17; 2000, c. 12, s. 95; 2001, c. 32, s. 44(F), c. 41, s. 20; 2005, c. 32, s. 25; 2012, c. 29, s. 2; 2015, c. 13, s. 24, c. 23, s. 16.
Positions of the Crown and Defence
[14] The Crown seeks a 90 day custodial sentence followed by one year probation. The Crown notes that this was a forcible sexual assault and that the victim had to fight off her attacker to stop the assault.
[15] While counsel for D.A. acknowledged that denunciation and deterrence are the governing considerations in cases such as this he argued that denunciation and deterrence would be addressed by the mandatory ancillary orders and specific deterrence by the employment consequences. He suggested a conditional discharge as the appropriate sentence. This would allow D.A. to continue to provide financial support to his daughter. Alternatively, the submission was that I suspend the passing of sentence. If a custodial sentence was imposed the submission was that it should be served intermittently to allow D.A. to work.
Reasons and Sentence
[16] In imposing sentence I have considered that the objectives of denunciation and deterrence must take precedence.
[17] I am guided by the fundamental principle that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. I recognize that, in committing this offence, this has had very significant impact on T.T.’s mental health, family relationships and finances. While the continuum of what conduct constitutes a sexual assault is broad there is no such thing as a trivial sexual assault. A sexual assault is an invasive violation of the victim’s physical, mental, and emotional integrity.
[18] A custodial sentence is necessary to reflect the objectives of denunciation and deterrence. I note D.A.’s positive work history and lack of prior criminal conduct.
[19] Please stand Mr. A.
[20] Mr. A., after considering all the relevant factors and sentencing principles, I conclude that the appropriate sentence in this case is 90 days to be served intermittently on weekends from Friday at 6:00 p.m. to Monday at 6:00 a.m. commencing Friday, March 31, 2017.
[21] I further order that you be placed on probation for a period of one year. The conditions will be that you shall:
(a) report to a probation officer as directed;
(b) not to associate, directly or indirectly, with T.T. except as otherwise required by law;
(c) attend and actively participate in any assessment/counseling/treatment programs, including the Ministry of Community Safety and Correctional Services Sex Offender Relapse Prevention (SORP) program and/or other sexual offending programs, as directed by the supervisor; and
(d) sign any necessary releases to allow the supervisor to monitor your progress in any counselling/treatment/rehabilitative programs.
[22] Pursuant to s. 732(1)(b) you must abide by the terms of your probation order while serving your intermittent sentence.
[23] As a further consequence of your conviction, ancillary orders are mandated by the Criminal Code. Pursuant to section 109(1)(a), you are prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, and explosive substances for a period of 10 years. Pursuant to section 487.051(1), you are required to provide samples of bodily substances reasonably required for DNA analysis to the national DNA databank. Pursuant to section 490.012, you are to comply with the Sex Offender Information Registration Act for 20 years. Pursuant to section 737, you must also pay a victim surcharge of $200 and that is payable within 90 days.
[24] You shall surrender yourself into custody today for processing.
“Original signed by”____
The Hon. Mr. Justice W.D. Newton
Released: March 20, 2017
CITATION: R. v. D.A., 2017 ONSC 1800
COURT FILE NO.: CR-15-0030
DATE: 2017-03-20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
D.A.
Accused
REASONS FOR SENTENCE
WARNING
A NON-PUBLICATION ORDER HAS BEEN MADE IN THIS PROCEEDING
UNDER S.486.4(1)(a) OF THE CRIMINAL CODE OF CANADA
Newton J.
Released: March 20, 2017
/sab