R. v. B, 2017 ONSC 4907
CITATION: R. v. B, 2017 ONSC 4907
COURT FILE NO.: 13-84
DATE: 7/09/2017
INFORMATION CONTAINED HEREIN REGARDING THE IDENTITY OFTHE (WITNESSES or COMPLAINANT) IS PROHIBITED FROM PUBLICATION BY ANY METHOD PURSUANT TO SECTION 486(3) OF THE CRIMINAL CODE.
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
J. B.
Defendant
Michael Purcell, counsel for the Crown
D.W. Johnson, counsel for the Defendant
HEARD: October 3rd, 2016 August 14th, 2017 September 7th, 2017
REASONS FOR JUDGMENT
Lafrance-cardinal, J
[1] On October 3rd 2016, Mr. J.B. plead guilty to mischief, assault, assault causing bodily harm and sexual assault. These events would have occurred between the 23rd day of May, 2008 and the 24th day of January 2012. The victim Ms. A.L was Mr. B’s common-law spouse with whom he fathered three children.
[2] The maximum period of incarceration for mischief is that of two years, the maximum period of imprisonment for a simple assault is that of 5 years, the maximum period of imprisonment for assault causing bodily harm and or sexual assault is that of 10 years.
[3] In this case the Crown is asking that the Court consider a period of incarceration of two years less time served together with a maximum period of three years of probation. Defense is asking that the Court consider time served together with a period of probation of 24 to 30 months. Both Crown and Defense agree that the ancillary orders for weapon prohibition, DNA and SOIRA registration for 10 years are warranted.
FACTS
[4] A Crown brief synopsis was filed as an exhibit in these proceedings, Mr. B. admits the allegations contained therein although he alleges he has no recollection of the events because of his alcohol consumption.
[5] Mr. B. admits that both he and Ms. L. had been in a common-law relationship for a period of 8 years and that he is the biological father of their three children. In the summer of 2008 the victim decided to leave the relationship and as she was packing her things the accused destroyed all of the phones and phone lines in the home. This led to Mr. B. pleading guilty to section 430(4) of the Criminal Code being mischief under $5000.
[6] On that very same day, the victim and the accused continued to argue at which time the accused hit the victim with an open hand on the right side of her face. The strike carried such force that it knocked the victim to the ground and rendered her unconscious. When she awoke she was naked on her bed and could feel an object being removed from her vagina. She saw that the accused was standing near her and that there were two dildos and one set of anal beads on the bed beside her. The victim did not consent to any sexual acts, she was unconscious. She does not know how she ended up naked on the bed or what other sexual acts may have occurred. As a result of being struck in the face, the victim developed a large bruise under her right eye for which she did not receive medical treatment.
[7] The accused acknowledges that on the 24th day of January 2012 he sexually assaulted his common-law spouse. He was upset because he had learned that she had had an affair and he wanted to know how it had happened. He would have pushed her down onto the couch, pushed her face into the edge of the couch, removed her underwear and inserted his fingers into her vagina all the while calling her names. A little while later there was a physical altercation with the accused grabbing the victim by the neck with one hand and pulling her towards him. He then put both hands around on her neck and shook her to the point that the victim feared that the accused might strangle her to death. The accused then used his nails the scratch the victim’s chest to the point where he drew blood. The victim was elbowed and kneed several times in the right lower leg and torso, police were called. The victim was transported to the hospital by paramedics and she remained in the hospital overnight. As result of the assault, she suffered a strained neck for which she had to wear a neck brace. She suffered open bloody scratches to her chest and to her right left forearm.
[8] On September 22, 2014 the accused failed to show up for his 5 day Judge and Jury trial. His explanation was that he went missing for 8 months as he simply did not want to stop drinking at that time. He was subsequently arrested in Ottawa and was brought to Cornwall to face the charges that were outstanding. He was also at that time facing charges in Ottawa. In November of 2015 a four day in-custody judge alone trial was set for October 3rd, 4th, 5th and 6th, 2016. On the first morning of trial being October 3rd 2016, he plead guilty.
[9] On October 3rd, 2016 a plea of guilt was taken and a PSR was ordered. The PSR raised concerns with regards to his mental health and consequently the Court ordered a mental health assessment under section 21 of the Mental Health Act. It took until June 12, 2017 to receive the report from Doctor Federoff. The Court did on numerous occasions request that the report be expedited considering Mr. B. was in custody.
PRE- SENTENCE REPORT AND MENTAL HEALTH ASSESSMENT
[10] Both reports indicate that the accused had an unfavorable childhood. His mother raised him mostly as a single parent although she had relationships where the offender would have a step-dad for different periods of time. He started drinking when he was 8, finishing his step father’s bottles of beer. At the age of 18, he moved to Cornwall with his mother. At that time he was doing a lot of drugs and his mother believed that by relocating him he could start a new life. He had his first child in his early 20’s, a child with whom he has no relationship. The relationship with the victim in this case lasted for 8- 9 years, they have 3 children together two sons and a daughter. The victim also had a child from a previous relationship who was living with them. He acknowledges that his longest employment was for a period of 7 years where he had different positions within the same company.
[11] There is no doubt that this gentleman has a substance abuse problem both with alcohol and with drugs. He drank alcohol from the age of 8 to the age of 12. His consumption escalated at the age of 12 when he started to also use drugs. He reported that his favorite drug was acid, LSD. In the pre-sentence report he indicates: “I love acid you can’t find it anymore it’s probably the closest I’ve come to poking myself because I wouldn’t poke myself”. He admits to using and selling acid at the age of 12 and he also experimented with marihuana, heroin, crystal meth and hashish. He reports that his current drug of choice is alcohol because he can’t find good acid anymore.
[12] The accused did attend addiction services in Belleville for a 3 week residential program in 2014. In the spring of 2015 he attended the Royal Ottawa Hospital for Concurrent Disorders Clinic and completed a 2 month’s program as well as a 3 months aftercare weekly program. Unfortunately the file with the Substance Abuse and Concurrent Disorder Unit at the Royal Ottawa Hospital was closed in March 2014 when he once again dropped out. He is described as a challenging individual as a result of concurrent mental health issues and a pattern of always dropping out of counselling or programs.
[13] While at the Royal Ottawa Hospital the offender was diagnosed with type 2 Bi-Polar disorder and Attention Deficit Hyperactivity Disorder, he was prescribed medication. He was also referred to Dr. Manigat, a psychiatrist for follow up treatment; however he failed to keep appointments and was not compliant with medication. He was also referred for mental health counselling at a local agency however again he stopped attending.
[14] Most troubling is that the accused, as a youth, reports that he had several family pets including cats and dogs. He used to torture them because it was fun, he used to throw their cats off the second floor to see if they landed on their feet, he used to get his cats drunk by feeding them alcohol with an empty pen. He killed one of his dogs by kicking him hard into a wall. He apparently stopped mistreating animals at the age of 13 because he wasn’t home as much.
[15] At the age of 13 and 14, he enjoyed playing with fire and setting garbage cans and dumpsters on fire, however he was never charged.
[16] It is during the preparation of the pre-sentence report that the offender claimed that he would appreciate receiving a psychiatric assessment to explain why he has no emotions. He indicates that he stabbed his best friend when he was 10 in the stomach. He used to inflict pain on animals with a BB gun. He would break into homes for fun, tortured animals and then urinated and defecated in those homes. He describes acts of violence towards others including stabbing a friend at the age of 14, taking random shots at people in the park with his BB gun. He would have shot a child in the eye with a pellet for which he was charged with assault with a weapon: he was 14 at that time. The offender believed that the psychiatric assessment would address why he has no empathy and shows no remorse for any of his actions.
[17] Dr. Federoff in the mental health assessment scores Mr. B. in the low-moderate risk category with regards to sexual re-offences.
[18] He believes that Mr. B’s primary problems are secondary to his alcohol and substance use and his personality profile rather than due to a paraphilic sexual interest. Dr. Federoff makes the following diagnoses:
Bi-Polar Disorder (by disorder)
Attention Deficit Disorder (by history and self-disclosure)
Polysubstance abuse including alcohol
Anti-Social Personality Disorder (by his own admission)
[19] Dr. Federoff believes that if Mr. B. receives a federal sentence the best possible place for him to receive the necessary treatment would be at the Bath institution. However if the Court sentences Mr. B. to a provincial offence then he believes that the best possible treatment for Mr. B. would be obtained at the Secure Treatment Unit at the St. Lawrence Valley Correctional Institute in Brockville.
[20] Dr.Federoff finishes his report with the following conclusion:
“ On the basis of the information available, it is my psychiatric opinion that his needs would be better suited in a program devoted to treatment of substance use problems rather than a sexual behaviours clinic, but I would be pleased to provide ongoing consultation if this is deemed helpful. ”
MITIGATING FACTORS
[21] There are no mitigating factors that can be attributed to Mr. B. He failed to attend Court for his Judge and Jury Trial, and then he plead guilty on the morning of the second 4 day Judge alone trial that had been set in his matter. The dates had been expedited considering Mr. B. was in custody.
AGGRAVATING FACTORS
[22] The most aggravating factors are that we are dealing with extreme physical and sexual violence in a domestic context. It lasted over a period of time. The violence had a significant impact on the victim and on their children. Mr. B. is a repeat offender. He has a criminal record. His latest entry is in 2015 where he was found guilty with assault with a weapon, 2 charges of simple assault and failing to attend Court.
VICTIM IMPACT STATEMENT
[23] Ms. L. filed two victim impact statements, one dated February 25th 2012 and one dated September 30th 2016. Both statements were made exhibits in this Court proceeding. Ms. L. talks of suffering from a great amount of depression, from having a hard time sleeping because of the nightmares, of being afraid of the dark. She also lost a great amount of weight as her depression made it such that she lost her appetite. Ms. L speaks of being in a lot of pain as a result of the fights and the abuse that went on between them. She also has scars left on her arm and chest following the assaults. She was medicated and sought help with a counsellor in order to assist her. She also had to declare bankruptcy as she struggled financially once Mr. B. was incarcerated because of their debt load. Ms. L. goes to great lengths in explaining why she believes Mr. B. should never have any contact with her children. She fears for their safety because of the emotional scars that the children were left with.
THE LAW
[24] Mr. B. has been in custody since July 20th 2016. My calculations are that to date he has served 383 days of pre-trial custody. I acknowledge that the Supreme Court of Canada in the decisions of R. v. Summers (2014) 1 SCR 575, 2014 SCC 26 and R. v. Carver (2014) 1 SCR 605, 2014 SCC 27 indicate that it is only in the rarest of circumstances that we would not allow enhanced credit for pre-trial custody on a 1:1.5 basis. There is nothing in this case that would make it such that I would not give enhanced credit to Mr. B. and consequently his 383 days of pre-trial custody are now equivalent to 589 days or the equivalent of a little over 19 ½ months of pre-trial custody.
[25] Section 718 of the Criminal Code sets out the purpose and the principal of sentencing. In a case such as this one, deterrence and denunciation are at the forefront of any sentencing principles. Of course, rehabilitation is always the ultimate goal. However, in Mr. B.’s case it will take a lot of counselling before rehabilitation can be attained. He will also have to commit to being treated, and abiding by the treatment plan which, in the past, he has great difficulty maintaining.
[26] Having regards to the principles of sentencing, having regards to the aggravating factors in this file, the sentence proposed by the Crown of 2 years is at the low end of the range but fair and just in the circumstances of this particular accused. I will indicate that the sentence is 2 years less 1 day, less time served on an enhanced basis of 589 days, so that Mr. B. can continue serving his sentence in a Provincial facility. I will recommend following Dr. Federoff’s report that he be strongly recommended for the Secure Treatment Unit at the St. Lawrence Valley Correctional Institute in Brockville. I’m very cognisant that they would only be scratching the surface in the very little time that is left for Mr. B. to serve his sentence but even the scratching of the surface is better than nothing at all.
[27] Following this period of incarceration Mr. B. will be put on probation for the maximum period of 3 years. The terms of the probation will be as follows:
The usual statutory conditions including keeping the peace, being of good behavior, reporting to his probation officer within 3 days of being released, residing at an address that is approved of by a probation officer.
Mr. B. is to attend for counselling and/or programs for substance abuse both for alcohol and drugs.
He is to sign any necessary documents for the probation officer to be able to follow Mr. B.’s progress in the said counselling and programs.
He is to have no contact direct or indirect with the complainant Ms. L., not be within 100 metres of her person, her place of residence, her place of work, her place of worship or wherever she may be.
He is to have no contact direct and indirect with any of the children of the relationship, C.L. born […], 2002, K.B. born […], 2007 , K.B born […], 2005 and D.B. […], 2004 , he is not to be within 100 metres of their person, their place of work, their schooling, their place of worship or wherever they may be save and expect pursuant to a Family Court order obtained after today’s date.
There will be a weapon prohibition for a period of 10 years, there would be a DNA order on primary grounds, and Mr. B. will be registered under the Sexual Offender registry for a period of 10 years.
All other charges will be marked withdrawn at the request of the Crown.
Madam Justice Lafrance-Cardinal
Released: September 7, 2017
CITATION: R. v. B, 2017 ONSC 4907
COURT FILE NO.: 13-84
DATE: 7/09/2017
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
J.B.
REASONS FOR JUDGMENT
Madam Justice Lafrance-Cardinal
Released: September 7, 2017