Court File and Parties

Court File No.: CR-14-034 Date: 2017-05-26

Ontario Superior Court of Justice

Between:

Her Majesty The Queen Ms. Dewson, for the Crown

- and -

C.R.A., Accused Ms. Wiebe, for the Accused

Heard: April 25, 2017 at Kenora, Ontario

Platana J.

Reasons For Sentence

Overview

[1] C.R.A. was convicted after trial of sexual assault contrary to section 271 of the Criminal Code.

The Offence

[2] In summary, the facts disclosed that on April 19, 2013, Mr. C.R.A., along with a number of friends, attended a wedding in Dryden, Ontario. A pre-wedding gathering was held where Mr. C.R.A., the victim J.A. (no relation) and several others were drinking. J.A. smoked some marijuana. After attending the wedding and reception, they later returned to a private residence where the partying and drinking continued, drinking whiskey and beer over a three hour period. Both consumed cocaine at some time in the evening.

[3] At one point in the evening, Ms. J.A. recalled being seated on a couch with Mr. C.R.A. and another female. The two had been involved in an on/off relationship prior, but were not involved romantically on the day in question. Her evidence is that at some point he suggested that they should “hook up.” She replied that she was “not intrigued by him.” She later recalls being on the couch and he was seated at a table in the adjacent kitchen area.

[4] She was drinking heavily, 10 drinks over a 12 hour period. She had done a line of cocaine earlier in the day. Her evidence is that later in the early morning hours she fell asleep around 4:30 a.m. She was awakened when she felt pain; C.R.A. was penetrating her in her vagina with his penis. She yelled at him, squeezed her legs and kicked him off. Her pants and underwear had been removed. Her bra and shirt were on. His pants were down. She continued yelling at him and rushed downstairs in a frenzied and frantic state and told others who were at the residence that “C.R.A. just raped me.” She was described by others as being hysterical and very visibly upset.

[5] All of those present at the party were friends. She had been friends with C.R.A. for some time and, because she felt confused, did not immediately report the matter to the police. Subsequent investigation and DNA testing revealed Mr. C.R.A. could not be excluded from DNA on her clothing.

[6] Her evidence was that prior to being awakened, she had not removed any of her clothing, and she had not consented to any form of sexual activity with Mr. C.R.A..

[7] Mr. C.R.A. offered no evidence at trial.

Exhibits on Sentencing

[8] Filed as Exhibits in this sentencing were:

• A Pre-Sentence Report. I note that counsel advised that Gladue factors are not a consideration for sentencing purposes.
• A report of Dr. David Kolton.
• A Victim Impact Statement of J.A..

[9] Dr. Kolton is a registered psychologist. At the request of the offender, he prepared a psychological assessment of Mr. C.R.A.. He used a variety of risk assessment measures as well as an examination of clinical factors and variables in the research literature as associated with risk for sexual re-offending. A number of findings in Dr. Kolton’s report are important for consideration in my imposition of sentence:

• When discussing the four convictions for Sexual Assault during clinical interview, Mr. C.R.A. demonstrated a minimal level of accountability for his offences.
• In terms of his insight about his offences, Mr. C.R.A. was able to identify alcohol and drugs as significant contributors to his offending and he vaguely referenced his own history of sexual abuse as likely contributory; however, beyond blaming these factors for his behaviour, it was evident that he has little understanding of the dynamics that have resulted in his being convicted for sexually assaulting four women. It was also evident that, when given the opportunity, Mr. C.R.A. was reluctant or unable to reflect in depth about his offending behaviour, the origins of this behaviour, or its consequences to others.
• A review of these three risk assessment tools suggests that Mr. C.R.A. is an Above Average Risk for sexual reoffence and that offenders from research samples in this category reoffend at a rate of between 15-25% over 5 years. Importantly, several dynamic risk factors have been identified as contributing to his risk for future sexual offending, including intimacy deficits, lack of support, negative emotionality/hostility, poor emotional self-regulation, sexual preoccupation, impulsivity, cognitive distortions, and substance abuse.
• It is strongly recommended that Mr. C.R.A. participate in intensive psychological treatment to address his risk factors for sexual re-offending. The focus of treatment should be twofold: sex offender specific treatment and substance abuse treatment. Both types of treatment should involve high-intensity treatment programs. Appropriate treatment targets may include: his history of abuse, difficulties with attachment, and instability in relationships; assisting him to develop self-regulation and healthy coping skills; dealing with anger in healthy ways; addressing his extensive substance use; and supporting the development of insight about the factors that contributed to his sexual offending, particularly more vulnerable emotional states he has a harder time recognizing (e.g., feelings of rejection, sexual inadequacy, fear). Particular attention should be given to the evidence sexual pathology in his offending because deviant sexual interest (i.e., to coercion and force) is associated with increased risk. Although he denies a pattern of arousal to sexual violence (i.e., previously engaging in violent sexual fantasies or acts, any previous sexual violence in his relationships, or watching violent pornography), precluding a diagnosis of sexual sadism, there are clear elements of sadism in his offending history which warrant further exploration. Treatment should further explore his sexual interests and fantasies for themes of violence, sadism and dominance.

C.R.A.

[10] Mr. C.R.A., of Inuit heritage, was born December 9, 1980, making him 32 at the time of the offence. He was raised in a stable parental relationship of 42 years. He described his upbringing as stable and considers his parents supportive of him. He has lived with his family in the Dryden area for most of his life. He has resided with them since August 2015.

[11] He has a high school education, and started, but did not complete a three-year college Environmental Program.

[12] He has a son, born in October 2010. The couple separated nine months after the child was born. He has had sporadic and inconsistent involvement with his son over the last three years. There are ongoing difficulties between the parents, although the mother is supportive of the boy having an ongoing relationship with the paternal grandparents and family.

[13] He had previously worked five summers as a firefighter. He has worked in his brother’s pizza business, for a building contractor, and at intermittent construction jobs. He worked at a sawmill; however, he was forced to leave because of respiratory problems.

[14] At the time of sentence, he has no source of income.

[15] The reports filed show the beginnings of an alcohol/drug problem at the age of eighteen. It was that problem that led to domestic problems with his partner, the mother of his son. She remains concerned for her son’s safety if Mr. C.R.A. has contact when he is using alcohol or drugs.

[16] He attended counselling sessions and a treatment centre which focused on a “holistic approach” to recovery. He successfully abstained from substance issues from July 2013 until January 2014 when he returned to the use of alcohol and drugs.

[17] In December 2008, in Nova Scotia, he underwent a “Comprehensive Psychological Sexual Offender Assessment” following release from custody for domestic assault. He was assessed to be at low – moderate risk for future violence (including sexual assaults). He subsequently attended 14 of 30 weekly group sessions, then left Nova Scotia and returned to Ontario. Following his return, he attended in individual counselling sessions, the Pre-Sentence Report notes that he was extremely resistant towards attending a sexual behaviours program.

[18] In 2011, he disclosed that he had been sexually abused by a male teacher when in grade seven. At that time, he attended individual counselling. He was prescribed anti-depressant and anti-anxiety medication. He considers this to have had a significant impact on his life. He felt shame and guilt for several years and had a “distorted view” and “selfish attitude” in relationships.

[19] He denies responsibility for this offence. He is not interested in any type of treatment or counselling because he believes he does not require it.

[20] His criminal record, as noted in the Pre-Sentence Report, shows a conviction in January 2000 for assault (domestic) for which he received a 30 day conditional sentence followed by 12 months’ probation; two convictions for sexual assault in 2007 for which he received 12 months and two years’ probation; sexual assault in 2009 for which he received one day (having spent 163 days in pre-sentence custody) and three years’ probation; and in 2013, 30 days in jail followed by 12 months’ probation for unlawfully in a dwelling house – a charge related to a domestic dispute.

Crown’s Position

[21] The Crown seeks a custodial sentence of six years, and ancillary orders for sex offender registration, DNA testing, and a lifetime prohibition under s. 109 of the Criminal Code.

[22] The Crown acknowledges mitigating factors that Mr. C.R.A. is a relatively youthful, but four times offender. Further, she notes his victimization as a youth of sexual abuse.

[23] Ms. Dewson notes aggravating factors to be considered are that this is a major sexual assault involving vaginal penetration; that, although not a situation of trust, the incident occurred against a friend in circumstances where she was asleep.

[24] The Crown notes Mr. C.R.A.’ three prior convictions for sexual assault, and submits that he has shown a disturbing pattern in his relationships with females.

[25] Ms. Dewson references the Victim Impact Statement filed on behalf of J.A., and how she says this incident has changed the dynamics of life for her and affected her relationships with friends.

[26] She submits that Mr. C.R.A. appears to have no sense of how overriding a problem substance abuse is for him. He has not followed treatment programs, denied he has a problem, and has consistently denied responsibility for his offences, showing an overwhelming lack of insight into his behaviour. She references the report of Dr. Kolton, filed, which she suggests shows Mr. C.R.A. displays a minimum level of accountability.

[27] Ms. Dewson submits that R. v. Sandercock, 1985 ABCA 218, 1985 CarswellAlta 190 suggests a starting point for sentence of three years for an offender with no prior convictions, and of good character. She has referenced cases R. v. Aleekuk, 2010 CarswellNWT 67, R. v. Lafferty, 1999 NWTSC 14 and R. v. F.R.L., [1999] Y.J. No. 94, from the Northwest Territories and Yukon as being cases where courts have imposed sentences of three and a half years, but have commented that a range of six to eight years is appropriate. The Crown notes that in all these cases the victims were assaulted while asleep.

[28] She notes the Ontario Court of Justice decision in R. v. Smith, 2002 CarswellOnt 5736, where the Aboriginal offender, who at age 14, had been subjected to sexual assault, was sentenced to four years for sexually assaulting a sleeping victim by thrusting an aerosol air freshener can into her vagina. He had a prior record for sexual assault for forced vaginal intercourse.

[29] Ms. Dewson further points to the Ontario Court of Appeal decision in R. v. Thurairajah, 2008 ONCA 91 where the court varied a sentence of two years less a day to be served in the community and six months’ probation, to nine months and six months’ probation. The Crown points to the comments of the Court that while nine months at the time of the appeal was appropriate (some 16 months post-sentence), recognizing the objectives of denunciation and to a lesser extent general deterrence, the appropriate sentence at the time of trial was between two years less a day and four years.

[30] As noted, the Crown seeks a sentence of six years.

Defence Position

[31] Ms. Wiebe submits that the Crown has not submitted any cases which support a sentence of six years. She refers me to the Ontario Court of Appeal decision in R. v. J.R., 2008 ONCA 200, [2008] O.J. No. 1054 where the accused was one of two who had been convicted of sexual assault by having intercourse with a sleeping victim. The court commented that both accused took advantage of the victim when she was incapacitated. The other offender was a good friend of the victim. The court commented that the two years imposed on the other offender was at the low-end of the appropriate range of sentence.

[32] She submits that for Mr. C.R.A. there are a number of mitigating factors which should be taken into account: he has prospects of rehabilitation, particularly because of the support of his family; he has been employed when employment is available; he has a relatively limited criminal records with a gap in sexual assault convictions and he has been on strict conditions for nearly three years. Since January 2014, his conditions have been to reside with his parents; not to change his address; report weekly; refrain from communication with the victim; not to have any weapons; and to remain in his residence between the hours of 7:00 p.m. and 7:00 a.m., except to attend medical appointments, for employment, or in the company of a surety. He also was the victim of sexual abuse as a youth. The report of Dr. Kolton suggests that dealing with sexual abuse will have a positive effect of his prospects for rehabilitation. Ms. Wiebe specifically notes that he has had some success at rehabilitation before and that I should consider this is still a reasonable consideration.

[33] Ms. Wiebe relies on the decision in R. v. J.F., [2015] O.J. No. 4770 where sentence was imposed on a young man with no criminal record and good prospects for the future who sexually assaulted his female friend. Conlan J. noted at para 35, “The usual range of sentence for an accused who has sexual intercourse with a sleeping or unconscious victim is between an upper reformatory term of imprisonment and a lower penitentiary sentence. R. v. Smith, 2015 ONSC 4304, [2015] O.J. No. 3513 (S.C.J.), at paragraph 32.” He quoted further from R. v. Smith, “Justice Campbell described that range in numbers as between eighteen (18) months and three (3) years in custody.”

[34] Ms. Wiebe submits that an appropriate range of sentence is 2-3 years.

The Principles of Sentencing

[35] The principles of sentencing are set out in Section 718 of the Criminal Code, which provides as follows:

The fundamental purpose of sentencing is 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; (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 acknowledgement of the harm done to victims and to the community.

[36] Section 718.1 provides that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 sets out other sentencing principles that a court is required to consider. Under this section a court needs to consider any aggravating or mitigating circumstances relating to the offence or the offender. In addition, a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[37] The determination of an appropriate sentence is a matter of discretion on the part of the presiding judge. That discretion must, of course, be judicially exercised by taking into account, and balancing, the various principles of sentencing, the circumstances surrounding the commission of the offence, and the circumstances of the offender.

[38] In R. v. Mitchell, Thorburn J. reviewed the law for sentencing when considering strict bail conditions. She relied on the decision in R. v. Downes (2006), 79 O.R. (3d) 321, 205 C.C.C. (3d) 488 (Ont. C.A.) that, “…time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance. …The amount of credit and the manner in which it is taken into account as a mitigating factor is a matter for the trial judge.”

Aggravating and Mitigating Factors

[39] Any sentence must take into consideration the circumstances of the particular offender in the circumstances of the particular offence, and note both mitigating and aggravating factors.

[40] I have considered as mitigating factors:

• Mr. C.R.A.’ history of having been sexually abused as a youth;
• Although not to be considered as an excuse for his behaviour, I have recognized the use of alcohol and drugs as an element of his behaviour, and the fact that he has struggled with substance abuse of both alcohol and drugs in the past;
• I have also considered that he has made some limited progress in the past, and there appears to be a prospect for rehabilitation, provided he seeks treatment, which he has not done seriously in the past;
• He clearly has indicated ability to work and has done so when employment was available; and
• I have considered all indications are that he has a supportive family.

[41] As aggravating factors, I have considered:

• Penetration having occurred, this must be considered a major sexual assault, further aggravated by the fact that the victim was asleep, and someone in a close personal relationship, in a vulnerable situation;
• His criminal record shows three prior convictions for sexual assault;
• The evidence in the Pre-Sentence Report and the report of Dr. Kolton, suggest that his problems with acting on his sexual tendencies appear to be unresolved;
• In spite of limited success, he has shown resistance towards attending a sexual behaviours program;
• Of particular concern is the indication in the Pre-Sentence Report that he is not interested in any type of counselling or treatment because he believes he does not require it; and
• I cannot see any aspect of remorse as he denies responsibility for this offence.

[42] The maximum sentence for an offence under section 271 is 10 years. The parties have provided me with a number of cases suggesting a wide range of sentences. I am satisfied that the principles of sentencing to be applied in this case should focus on denunciation and deterrence, with less importance placed on rehabilitation.

[43] As noted, Ms. Wiebe has submitted a range from 2-3 years. The Crown’s request is for a sentence of 6 years.

[44] Mr. C.R.A. has served 7 days of pre-trial custody and has been on release under bail conditions since January 10, 2014, a period of 3 years, 4 months, and 15 days. I allow him credit for 10 days of pre-trial custody, and 10 months of pre-sentence custody, while on release under conditions.

Conclusion/Sentence

[45] Mr. C.R.A. committed a serious sexual assault involving penetration on an intoxicated friend when she was clearly incapacitated. He has not shown any remorse, or accepted responsibility for his actions.

[46] In considering the range of appropriate sentences, reflecting the above principles, and after taking into account the 10 day credit for pre-trial custody, and accepting as a mitigating factor 10 months of pre-sentence house arrest, I sentence Mr. C.R.A. to 4 years in penitentiary.

[47] In addition:

• A primary DNA order is to issue under s. 487.081;
• A section 109 order under the Criminal Code is to issue for a period of life; and
• A Sex Offender Registry Order is issued for a period of 20 years.

[48] Despite Mr. C.R.A.’ expressed unwillingness to follow treatment, I recommend to the custodial institution where he may be incarcerated that opportunity and encouragement be given to him, that he follows any available and recommended programs for substance abuse for sex offender assistance as noted in the Pre-Sentence Report, and the report of Dr. Kolton. I direct that both these reports be forwarded to the custodial institution where he may be placed.

"original signed by" The Hon. Mr. Justice T.A. Platana

Released: May 26, 2017