Court File and Parties
Court File No.: CR-16-50000229-0000 Date: 2017-05-29 Ontario Superior Court of Justice
Between: Her Majesty the Queen – and – B.M. Accused
Counsel: Paul Zambonini, for the Crown Richard Elbirt, for the Accused
Heard: April 26, 2017
Before: B.A. Allen J.
Reasons for Decision on Sentence
Background
[1] B.M. was charged with two counts of sexual assault against two women, A.Y. (count 1) and C.M. (count 2). He pleaded guilty to those charges on April 24, 2017, the first day of trial. Crown counsel read the facts from the synopsis into the record.
[2] When he committed the offences, B.M. and his wife were in Canada on visitors’ visas from India. He was 29 years of age. He set up a business in the basement of a convenience store where he performed various types of “fortune telling” and “spiritual services”. He placed an ad in a local newspaper to attract customers. His ad touted him as being “Pandit Sai Kumar, International famous astrologer and powerful spiritualist” who can remove black magic, bad luck and fix love problems. The two complainants in this case are women who responded to the ad.
Count 1
[3] A.Y. was separated from her husband at the time of the offence and attended B.M.’s premises around July 1, 2014 hoping to get help with her problems. She was received there by a woman who indicated she was B.M.’s wife. A.Y. was led to a room on the second floor of the premises where B.M. was. The room was adorned with spiritual pictures, incense and candles. The wife remained in the room for that visit.
[4] B.M. asked A.Y. to talk about her problem. A.Y. inquired as to what B.M. would be doing to help her with her problem with her husband. B.M. asked A.Y. to just trust him because he knows. B.M. stated the fee for 15 years of marital protection would be $650 and $750 for 21 years of protection. A.Y. agreed on the 21-year plan and gave a down payment of $400. The first session lasted 40 minutes.
[5] Some days later A.Y. returned and paid the $450 balance. B.M.’s wife was present. B.M. began to perform various rituals such as chanting and placing powders on A.Y.’s hands. A.Y. expressed some skepticism but B.M. reassured her he knew what he was doing and told her she must wait.
[6] A.Y. returned later in July 2014. The wife left the room on that occasion. B.M. asked A.Y. to stand up and take her shirt off. She expressed discomfort with this but ultimately complied. She took off her shirt and stood wearing her pants and bra. He began rubbing limes on her body and hair and attempted to put his hands down her bra. A.Y. stopped him and inquired as to how touching her breasts would help her with her problems with her husband. B.M. again tried to reassure her but she insisted on rubbing the limes on herself. B.M. then removed A.Y.’s bra stating this was necessary and she must allow it.
[7] B.M. rubbed lime on her breasts and upper body and attempted to put his hands down A.Y.’s pants but she stopped him. A.Y. had remained barefoot and naked from the waist up for about 30 minutes before she left.
[8] On the next occasion in mid-August, A.Y. relented when B.M. asked her to lie on the carpet. The wife was not present. B.M. knelt down over her. B.M. again reassured her and told her to take all of her clothes off. She asked how doing this would bring her husband back. A.Y. explained she was in the middle of her menstrual cycle. She was told to lie on the carpet. She eventually gave in and did what B.M. asked. B.M. put his fingers in A.Y.’s vagina and started to dig with his fingers for 10 to 20 minutes. A.Y. left and felt depressed afterwards.
[9] A.Y. then received a phone call from her estranged husband. She returned to see B.M. The wife told her she was going to see something that would change her belief about what B.M. was doing. B.M. required A.Y. to do as she had done in previous visits. He put his fingers in her vagina. He then asked her to drink two litres of water and walk around the block. She did as asked.
[10] When A.Y. returned B.M. presented her with a water bottle containing some powder and told her to urinate into the bottle and that she must do it in front of him. A.Y. did as she was told and urinated into the bottle. A flame and smoke arose from the bottle. B.M. told A.Y. that the flame was proof that black magic and a spell had been put on her. A.Y. returned once more in September and told B.M. she would not be returning.
[11] In October A.Y. was stopped in a traffic stop by a police officer. She told the police about the sexual assaults. He advised her to report this to the police which she did.
Count 2
[12] The incidents related to count 2 occurred during the same time period as the incidents related to count 1. C.M. attended B.M.’s business on five different occasions over three weeks in August and September 2014. On each visit B.M. convinced her that the visits were necessary for her to have good luck. B.M. conducted the ritual of rubbing a cut lime on C.M.’s arms, shoulders and forehead. He then gave her a gold coin and told her to take it home. She collected three gold coins. During the first four visits there was a woman in the room. There was no inappropriate sexual contact during those visits.
[13] The fifth visit occurred on September 11, 2014. During this visit the woman who was present on the other occasions was in the washroom. In the beginning B.M. conducted the same ritual as he had done on the previous occasions. As he went through the ritual he asked C.M. to remove her shirt saying it was part of the ritual. He rubbed lime over her stomach and around her bra. Several times she asked B.M. to stay away from her breasts. B.M. squeezed lime on his hand and proceeded to put his hand under her bra and touched her breast. C.M. was shocked and left the premises. She later made a report to the police. On October 5, 2012, B.M. was arrested.
Victim Impact Statements
[14] A.Y. and C.M. prepared written Victim Impact Statements which the Crown read into the record.
[15] A.Y. stated that her experience with the sexual assaults by B.M. has led her to drinking to drown the memories and to an attempt at suicide. She has felt “dirty and unworthy”. Her husband has left her. Because of shame it has taken her some time before she could share her experiences with anyone. She felt a setback in any progress she had made in dealing with the situation when she saw B.M. at court and had to repeat, I assume at the preliminary inquiry, what had happened to her. She has grown to distrust men and does not go out on dates. She feels she must keep on going with life for the sake of her children.
[16] C.M. stated that the sexual assault has held her back emotionally. She fears meeting people and feels insecure. She has problems trusting and connecting with people. It has affected her relationship with her partner for whose love and support she is grateful.
Principles on Sentencing
Basic Objectives of Sentencing
[17] Section 718 of the Criminal Code sets out the objectives for sentencing: denunciation, deterrence and the separation of the offender from society.
[18] A fundamental principle 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 potential future offenders from committing offences; and (c) to separate offenders from society.
[19] Proportionality is also a guiding principle for sentencing. A sentence must be proportionate to the gravity of the offence, determined on the particular facts of the case. The narrow focus of the sentencing process is directed to imposing a sentence that reflects the circumstances of the specific offence and the attributes of the specific offender: Criminal Code, s. 718.1 and R. v. Hamilton (2004), 186 C.C.C. (3d) 129, 72 O.R. (3d) 1 (Ont. C.A.).
[20] The parity principle requires a sentence be similar to sentences imposed on similar offenders for similar offences committed under similar circumstances. Sentencing is however an individualized process which necessarily means that sentences imposed for similar offences may not be identical: R. v. Cox, 2011 ONCA 58 (Ont. C.A.) and R. v. L.M., [2008] 2 S.C.R. 163, 2008 SCC 31 (S.C.C.).
[21] Section 718.2 of the Criminal Code provides that a sentence shall be increased or reduced to take account of any relevant aggravating or mitigating circumstances related to the offence or the offender. This provision sets out a non-exhaustive list of examples of possible aggravating and mitigating factors to consider. The Crown argues one of the statutorily identified aggravating factors that is relevant to the facts of this case is found at s. 718.2(a)(iii). That provision identifies as aggravating evidence that the offender, in committing the offence, abused a position of trust or authority.
Parties’ Positions
[22] The Crown seeks a global two-year penitentiary sentence for both charges and the following ancillary orders: a Criminal Code s. 487.051(1) DNA order; a Criminal Code s. 490.013 SOIRA order for life; and a Criminal Code s. 109 firearm prohibition for ten years. The defence does not dispute the ancillary orders. The defence seeks a global nine-month sentence for both charges.
Case Authorities
[23] The most pertinent decision presented was a case where an accused was charged with sexual assault involving several incidents of digital vaginal penetration and sexual intercourse. The court found the accused, a pastor age 60 at the time of sentencing, to be in a position of trust. He was also a spiritual healer who gave spiritual baths to assist with expelling curses and evil spirits. The complainant, age 24 at the time, went to the accused over a period of seven years for help with an undetermined illness. The complainant lived with the accused after she left an abusive family and she had a baby with the accused. The accused, with no criminal record and with positive references, was sentenced to four years’ imprisonment: R. v. Lawrence, [2008] O.J. No. 1342 (Ont. S.C.J.).
[24] The accused in the second case was a chiropractor who the court found to be in a position of trust in relation to 13 patients who he treated for various ailments for ten years and with whom he had sexual relationships. Victim impact statements spoke to the psychological harm caused by the sexual relationships with the chiropractor. The Court of Appeal overturned the 18-month conditional sentence imposed by the trial court and imposed a nine-month prison sentence: R. v. Bedard, [2001] O.J. No. 1894 (Ont. C.A.).
[25] In another case the accused’s employer committed a sexual assault and two common assaults on a vulnerable employee. He was sentenced to a nine-month global sentence on all charges: R. v. R.A.R., [2000] 1 S.C.R. 163 (S.C.C.).
[26] In the next case, a psychologist was charged with two counts of sexual assault on two patients without their consent. Each of the women was attending therapy, one for two years and the other for a few months. The Supreme Court agreed with the trial court that a term of imprisonment was required with a breach of fiduciary duty: R. v. Matheson, [1999] O.J. No. 1320 (Ont. C.A.).
[27] In another case the accused, a psychiatrist age 66 years, was convicted on two counts of sexual assault that occurred over a period of several years with a patient he treated. The patient had issues with alcoholism and sexual identity. The accused was sentenced to two years’ imprisonment: R. v. Tejeda-Rosario, [2010] O.J. No. 2080 (Ont. C.A.).
Credit for Pre-Trial Custody
[28] The statutory scheme for granting credit for pre-sentence detention is found in s. 719(3) of the Criminal Code. This provision allows for a maximum of one and one-half days credit for each day spent in custody “if the circumstances justify it”. The conditions in pre-trial detention are recognized as frequently being exceptionally harsh. This has been acknowledged by the Supreme Court of Canada: R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575 (S.C.C.).
[29] B.M. is entitled to credit for pre-trial custody from March 9 to May 29, 2017 or 83 days. I find he is entitled to enhanced credit for time served at the Toronto South Detention Centre and Maplehurst Correctional Centre in Milton, Ontario. He is therefore entitled to 124 days’ credit (83 days x 1.5) which equates to four months’ credit.
Conclusion
[30] A conditional sentence is not available to B.M. as of the amendment to the law in November 2012. I find a two-year sentence is somewhat excessive. Most of the cited cases involve trust relationships much more formalized and for longer durations between the complainants and accused. This is not to minimize the impact of what the complainants in the case at hand have experienced.
[31] I find as an aggravating factor that the sexual assaults were committed by a person in a position of trust who preyed on two vulnerable women who went to him for help with their problems. He falsely held himself out to the complainants as having the panacea for what ailed them. I also find aggravating that B.M. placed an ad in a widely distributed newspaper that promoted his “special spiritual powers”. This means many people could potentially have been subject to his deceitful scheme.
[32] As mitigating factors I have taken into account that B.M. pleaded guilty and accepted blame on the first day of trial sparing his victims from once again speaking about their embarrassing experience. I also considered B.M. does not have a criminal record in Canada.
[33] Denunciation and deterrence must guide the assessment of a fit sentence.
[34] I find a global sentence of 18 months is a fit sentence, 12 months for the assault against A.Y. and six months consecutive for the assault against C.M. Therefore, B.M. shall receive 183 days’ credit which amounts to four months’ credit for pre-trial custody. His total sentence shall be 14 months’ imprisonment.
[35] I also sentence B.M. to two years’ probation following his custodial sentence.
Verdict
[36] I will now pronounce sentence. B.M., will you stand?
[37] You have been convicted of two charges under the Criminal Code, for which you stand to be sentenced.
[38] I sentence you to 12 months’ imprisonment on count 1 on the indictment for the sexual assault on A.Y.
[39] I sentence you to 6 months’ imprisonment on count 2 on the indictment for the sexual assault on C.M. to run consecutively with the sentence on count 1.
[40] You shall receive four months’ credit for pre-trial custody.
[41] Your total sentence shall be 14 months’ imprisonment in a provincial detention centre.
[42] I also sentence you to a probationary period on the following terms to follow your custodial sentence: (a) that you not contact A.Y. or C.M. directly or indirectly by any means during your custodial sentence and thereafter. (b) that you not place any ads in any news media or by any other means or in any other place advertising any astrological, spiritual healing or fortune-telling services.
In addition there will be the following ancillary orders: (a) a Criminal Code, s. 487.051(1) DNA order (b) a Criminal Code s. 490.013 SOIRA order for life (c) a Criminal Code s. 109 firearm prohibition for ten years