R. v. G.F. and R.B., 2017 ONSC 5203

Court File and Parties

COURT FILE NO.: CR 14-040

DATE: 20170906

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

G.F. AND R.B.Defendants

S. Scharger, for the Crown

Susan Jane von Achten for the Defendants, G.F. and R.B.

SENTENCING SUBMISSIONS HEARD: July 25, 2017

Reasons for Sentence

E. J. Koke J.

THE CONVICTION

[1] On June 9, 2016 G.F. and R.B. were convicted by this court of sexually assaulting 16 year old C.R., contrary to section 271 of the Criminal Code. They did not deny that they engaged in sexual acts with C.R. but they submit that C.R. consented to these acts. The Crown satisfied the court beyond a reasonable doubt that C.R. was impaired due to excessive alcohol consumption and was unable to provide the required consent.

THE CIRCUMSTANCES OF THE OFFENCE

[2] On the July 1, 2013 Canada Day long weekend C.R. accompanied her family on a weekend camping holiday to a wooded area north of Parry Sound, Ontario. C.R. had turned 16 years old approximately three months earlier.

[3] C.R.’s family included her mother and stepfather, and her seven year old brother. They were accompanied by four of her mother’s friends.

[4] The mother’s friends included G.F. and R.B.. Mr. G.F. was 42 years old at the time. Ms. R.B. was 38 years old and they had been in a common law relationship for about 13 years.

[5] They arrived on Friday, June 28. The campsite was not in an organized campground but on a parcel of Crown land adjacent to a river and a lake. They planned to stay for three days and return home on the following Monday.

[6] Mr. G.F. and Ms. R.B. set up a hard top camper trailer where they intended to sleep. There were two beds which extended from the trailer, one at each end. C.R. and her family slept in a tent approximately 20 feet away from the trailer.

[7] With the concurrence of the two defendants, C.R.’s parents agreed that she and her brother could sleep in the trailer with Mr. G.F. and Ms. R.B. on Sunday night. Her brother later changed his mind and decided to sleep with his parents in the family tent.

[8] While the group of campers were sitting around the camp fire on Sunday night Mr. G.F. gave C.R. several shots of alcohol, as well as some beer. She began to feel nauseous and decided to lie down in the tent trailer. While she was in the trailer Mr. G.F. came in and offered her some more drinks of alcohol. He came in a number of times. C.R. estimated that he gave her between 8 and 10 shots in total.

[9] C.R. testified that after consuming the alcohol given to her by Mr. G.F. in the trailer she began to feel what she referred to as “super sick”. She threw up a number of times, spilling vomit over the mattress cover. Eventually she passed out or fell asleep. The last thing she remembers before going to sleep was playing with her I-Phone.

[10] C.R.’s evidence, which the court accepted, was that she woke up later that night when she felt her pants and underwear being pulled down. She heard Mr. G.F. telling Ms. R.B. to “lick her pussy”, which Ms. R.B. proceeded to do to C.R..

[11] Next, Mr. G.F. moved C.R. by her hips toward him, inserted his penis in her vagina and pushed her face into Ms. R.B.’s vagina and directed her to “eat her pussy”.

[12] C.R. testified that while this was happening she felt dizzy, intoxicated and scared. She was in shock…these were her parent’s friends who were doing this to her. The last thing she remembers is Mr. G.F. and Ms. R.B. having sex together before she passed out.

[13] When C.R. woke up Monday morning she was lying on the bed naked, next to Ms. R.B.. This was unusual because she usually slept in her underwear. Her breasts were tender and her vagina was sore and swollen. She could not find her shirt or her I-Phone. These items have never been located. After exiting the trailer she helped her parents pack up and then drove with them back to their hometown in Southern Ontario. On the drive home she covered herself with a blanket and said very little.

[14] After arriving home C.R. sent a message to her aunt, informing her that she needed to talk to her. That evening she told her aunt about the events which had transpired at the campground on the Sunday night. Mr. G.F. and Ms. R.B. were subsequently charged and convicted of the sexual assault of C.R.

THE CIRCUMSTANCES OF THE OFFENDERS

[15] The court ordered that pre-sentence reports be prepared for both of the accused.

[16] The information contained in the pre-sentence reports can best be described as unremarkable. Neither of the two accused have a criminal record. Ms. Karen Scott, the probation and parole officer who prepared Mr. G.F.’s report, advises that Mr. G.F. immigrated to Canada from England with his parents at age 6. Mr. G.F. reported to her that he enjoyed a positive childhood free from abuse. His father died in 1998 and he continues to enjoy a good relationship with his mother and siblings.

[17] Ms. Scott reports that Mr. G.F. has two children aged 20 and 21 from a prior relationship which ended in 2000. He maintains a positive relationship with his children. He has been in a long-term relationship with the co-accused, Ms. R.B..

[18] With respect to his education, Mr. G.F. completed a college diploma in Marine Engineering Technology in 1996 and later returned to school and received his industrial mechanics license in 2007.

[19] Mr. G.F. has been employed at his current place of employment since March, 2010 in the position of maintenance manager. The owner of the company reports that he has never had any concerns about Mr. G.F. and described him as kind hearted, calm and genuine. He indicated that the nature of the charge appears to be out of character.

[20] The plant manager reported that Mr. G.F. has a professional skill set that is very difficult to find and noted that Mr. G.F. was a valuable and committed employee.

[21] Letters were submitted by several individuals who reported that Mr. G.F. and Ms. R.B. are loyal and considerate friends.

[22] Ms. R.B.’s pre-sentence report indicates that Ms. R.B. was born in Etobicoke, Ontario and her family moved to Brampton when she was four years old. Her father, who was employed as a computer programmer died approximately 5 years ago and her mother, who she described as her best friend, died two years ago.

[23] Ms. Kelly Laurence, the probation and parole officer who prepared Ms. R.B.’s report, advises that Ms. R.B. informed her that she has no memory from her childhood between the ages of 0-12 years old. Ms. R.B. described this as a “memory blockage”, noting that the only memory she has of that time is what her family has told her. She indicated that she does not know the reason for her lapse in memory but suspects she is blocking a traumatic experience that she endured during that time.

[24] Ms. R.B. informed Ms. Laurence that she and Mr. G.F. have been friends for 17 years and they have been in a long term common law relationship. She described her relationship with Mr. B. as “great” but advised that since the charges were laid the relationship has been somewhat strained.

[25] Ms. R.B. achieved a grade 12 education and although she has recently been in receipt of employment insurance benefits she has worked consistently throughout her life in various occupations, including as a cashier and in inventory control. She filed a letter with the court confirming that she has employment which was scheduled to commence on July 31, 2017.

[26] Ms. R.B. has struggled with anxiety and depression which has intensified since her arrest, and she has been prescribed the medication Cipralex for this.

[27] Mr. G.F. testified at the trial and Ms. R.B. did not testify. Mr. G.F.’s DNA was found on the crotch of the complainant’s underwear and he did not deny that he and Ms. R.B. engaged in sex with the complainant; he maintained however that the sex was consensual.

[28] Mr. G.F. and Ms. R.B. addressed the court during the sentencing hearing and both of them maintained that they did not believe that they had done anything wrong and they deny that they had done anything which warranted a conviction for sexual assault. They suggested that C.R. is a troubled individual who needs help.

THE IMPACT ON THE VICTIM AND THE COMMUNITY

[29] Victim impact statements were filed by C.R. and by her mother and her stepfather.

[30] There is no question that this incident has had a serious impact on the complainant and her family. C.R. has dropped out of school. She states in her victim impact statement that all she wants to do now is sleep and do drugs and drink, in order to forget what has happened to her. She has been prescribed medications for PTSD and depression, as well as sleep aids.

[31] C.R.’s mother reports that she has experienced great difficulty in watching her daughter’s life “turned upside down”. She is also experiencing guilt issues, blaming herself for what has happened and sits most evenings wondering why she decided to go away that weekend. She has also developed significant trust issues and has decided that she can no longer trust anyone.

[32] C.R.’s stepfather reports that he cries every day because of the hurt that he knows C.R. is going through. He too blames himself for what happened and refers to their lives as having been “turned upside down”. He describes C.R. as a “very smart girl”, but “ever since this has happened, C.R. has fallen into a hole, she drinks to not feel pain, she does drugs to forget and has cried herself to sleep”. He describes the family as “drained, mentally, physically and emotionally”.

THE POSITIONS OF THE CROWN AND DEFENCE

[33] The Crown seeks a four year custodial sentence for Mr. G.F., and a three year custodial sentence for Ms. R.B..

[34] The Crown requests different sentences for the offenders for a few reasons. Although Ms. R.B. was an active participant in the crime, the Crown characterizes Mr. G.F. as the lead perpetrator. The Crown points out that it was Mr. G.F. who demonstrated sexual interest in C.R. at various times during the weekend preceding the incident in the trailer, and it was Mr. G.F. who delivered alcohol to C.R. in the trailer.

[35] In addition to custodial sentences, the Crown also seeks an order that the two accused provide primary DNA samples, a section 109(1)(a) weapons prohibition for a minimum period of 10 years after release from imprisonment and an order placing their names on the sex offender registry for twenty years.

[36] Counsel for the defendants suggests that an appropriate sentence for the two accused consists of a two year suspended sentence with three years’ probation with maximum number of hours of community service, as well as counselling as directed by a psychologist. This fits the principles of sentencing as set out by the Supreme Court in R. v. McDonnell, 1997 CanLII 389 (SCC), 1997 CarswellAlta 214, [1997] 1 S.C.R. 948,

CASE LAW

[37] Both counsel agree that deterrence and denunciation are primary objectives in sentences for offences such as those committed by the accused. Counsel for the two accused did remind the court that principles of rehabilitation should always receive serious consideration when sentencing an accused, and that the particular circumstances of an accused should influence such considerations.

[38] The Crown submitted a number of cases in support of its position, recognizing in its submissions that each case must be decided on its own merits and taking into considerations its particular circumstances.

[39] In R. v. Lam, [2004] O. J. No. 357, the Ontario Court of Appeal sentenced the accused to 40 months in custody in addition to crediting him with 16 months pre-sentence custody, for a total custodial sentence of 4 years and 8 months.

[40] The facts in Lam involve a 15 year old complainant. The accused supplied the victim with alcohol and forced her to have intercourse with him while she was intoxicated, both anal and vaginal. The accused had no prior criminal record.

[41] In R. Ali, [1998] O.J. No. 4843 the Ontario Court of Appeal sentenced the accused to 6 years imprisonment for sexual assault and unprotected anal intercourse of a 15 year old girl. The girl was intoxicated and the appellant, who had an extensive criminal record for unrelated convictions, showed no remorse.

[42] In R. v. Bergeron, [2006] O.J. No. 4576 the accused was sentenced to a custodial term of 2 years less one day which was in addition to 9 months of time served prior to sentencing. The Superior Court, acting in its capacity as a court of appeal from a decision of the Ontario Court of Justice, expressed its view that this offence would normally attract a 3 year sentence, but that the offender was addressing his addiction issues at the time of sentencing. Aggravating factors included the fact that the sexual advances made by the accused on the 13 year old girl were planned and that the girl was given alcohol and marijuana by the offender. The accused pleaded guilty and this was considered a mitigating factor.

[43] In R. v. J.W.M. [2004] O.J. No. 1295 Justice C. Hill of the Superior Court, sitting on appeal from a decision of the Ontario Court of Justice, dismissed an appeal from a custodial sentence of 18 months imposed by the Ontario Court. In this case, the twenty year old victim, who had become extremely intoxicated at a party the previous evening, awoke in the accused’s apartment. She had vomited in the accused’s apartment and discovered that she had also had sexual relations with the accused during the night. The accused and the complainant had no previous romantic or sexual history, and the accused purportedly took her home for her protection. The reports submitted at trial indicated that the complainant had been profoundly affected by the experience.

[44] The accused in J.W.M. testified that the complainant had recovered from her intoxication and consented to the sexual activity but the trial judge found that at the material time the complainant was incapable of consenting to such activity due to the extreme effects of alcohol.

[45] In his decision Hill J. noted that Crown counsel initially requested a 3 year penitentiary term before being reminded by the judge that 18 months imprisonment was a maximum sentence in a summary judgment proceeding. He also noted that where the prosecution proceeds summarily in an instance for a sexual assault of a particularly grave type, as here, it may have one or more valid reasons for doing so, i.e. concerns respecting the complainant’s health were she to testify at both the preliminary inquiry and again at trial.

[46] Justice Hill rejected the defence argument that the accused should receive a conditional sentence. Although conditional sentences have been imposed for such offences, Justice Hill noted that the appellant raped an extremely intoxicated female when she was in his charge because she could not look after herself and that this represented an extreme abuse of trust. The accused had a criminal record, had already been the beneficiary of a conditional sentence, had fared poorly under community supervision and in the view of the court he was not entitled to a more lenient sentence.

[47] The Crown also relies on R. v. J.R. and J.D., 2008 ONCA 200, [2008] O.J. No. 1054, a decision of the Ontario Court of Appeal. In this case, the trial judge found that the two accused had sexually assaulted the complainant while she was incapacitated due to alcohol. There was no evidence of remorse. The accused JD had a record of 6 criminal convictions. It noted that the two year sentence imposed by the court was at the low end of the appropriate range of sentences for such offences.

[48] Finally, the Crown relies on R. v. H.H 2002 CanLII 41397 (ON CA), [2002] O.J. No. 1509, an appeal from a decision of the Superior Court which had imposed a conditional sentence of two years less one day custody. At the time of the appeal the conditional sentence had been completed.

[49] H.H. had been convicted for assault following a four day jury trial. The victim, who was 18 years old was H.H.’s employee. The evidence was that HH told her to accompany him to his home, gave her alcohol and refused when she stated that she wanted to return to work. After the victim passed out, HH initiated vaginal intercourse, and continued even when she attempted to push him off.

[50] The appeal court summarizes its position at par.5 of the decision as follows:

5. Having regard to the gravity and seriousness of the offence and the respondent's degree of moral blameworthiness, including his abuse of a position of authority, the fact that he took advantage of the complainant while she was unconscious and his failure to heed her plea to "stop" when she realized what was happening, we are of the view that the sentence imposed by the trial judge was manifestly unfit. In the circumstances, considering the nature of the crime and the personal circumstances of the offender, a custodial sentence was clearly called for and, in our view, a penitentiary term would have been appropriate.

[51] The court imposed a sentence of 18 months custody in addition to the conditional sentence which had been completed.

[52] The defence asks that I consider the principles of sentencing set forth by the Supreme Court of Canada in R. v. McDonnell, supra.

[53] In this 1997 case the accused pleaded guilty to two counts of sexual assault. The first assault involved a 16 year old who had been placed in the accused’s home by social services. While she was asleep the accused came home. He was intoxicated, undid her pants, took off her jeans and started to kiss her buttock area and tried to penetrate her vagina with his penis. Finally he said “you’re too difficult,” and he left. The second count involved a 14 year old baby sitter who fell asleep in the home and woke up to find that her underwear had been pulled down and the accused was on top her, rubbing her back and her buttocks. He touched her pelvis and vaginal areas and she then screamed and left the house.

[54] The sentencing judge found that neither of the assaults was what was then referred to in the Alberta jurisprudence as a “major” assault, and accordingly he imposed a sentence of 12 months for the first offence and a sentence of 6 months for the second, to be served concurrently. The Albert Court of Appeal allowed the Crown’s appeal, finding that the sexual assaults were “major” ones, and sentenced the accused to four years in custody for the first offence and considering the global effect of the sentences, to one year for the second, to be served consecutively.

[55] In my view, the case of R. v. McDonnell is not particularly helpful in the circumstances of this case. The Supreme Court was divided 5 to 4 in support of overturning the decision of the Alberta Court of Appeal and reinstating the decision of the trial judge. Most of the discussion in the case involved the Court’s jurisdiction to divide offences into “major “offences and “minor” offences for the purposes of sentencing, and whether the offences were properly classified as “minor ”offences by the trial judge.

[56] The majority emphasized in its decision the deference which is owed to trial judges by appellate courts in sentencing and could not find that the trial judge had failed to consider relevant factors and principles or that the sentence was demonstrably unfit. It did not provide its own view of what a proper and fit sentence should be in the circumstances of the case.

[57] The minority at the Supreme Court held that the sentence imposed at trial was “demonstrably unfit” and that a review of cases from Alberta reveals that a sentence of less than two years in circumstances similar to the case at bar constitutes a marked departure from the norm. The minority pointed out the circumstances of the case pointed to a number of aggravating factors, including abuse of trust and lasting emotional and psychological harm. The minority felt that by adding a year to the sentence the Court of Appeal would impose a sentence which reflected the seriousness of the offence as well as the particular circumstances of the accused.

MITIGATING AND AGGRAVATION FACTORS

[58] There are a number of mitigating and aggravating factors for the court to consider.

[59] Firstly, with respect to aggravating factors, I note that the complainant was only 16 years old, and that both of the accused are more than twice her age. At the age of 16 she lacked the maturity and confidence to adequately defend herself against this older couple who were friends of her parents and with whom she did not have a prior relationship. She was vulnerable on account of her age and naiveté.

[60] Secondly, she was under the influence of alcohol. The facts at trial were clear that she was an inexperienced drinker, too young to purchase alcohol, and that earlier that evening she requested permission from her parents to drink a beer. Thereafter, most of the alcohol she drank was consumed in the trailer, delivered to her by Mr. G.F. in the absence of and without the consent or approval of her parents. The court found as a fact that the amount of alcohol she drank caused her to vomit and to pass out. Clearly, the effects of the alcohol consumption clouded her judgement and ability to ward off the sexual advances.

[61] Thirdly, the sexual activity was a violation of trust which should have been exercised in favour of C.R. and her parents. Her parents trusted that their 16 year old daughter would be treated with respect and consideration when they agreed to let her sleep in the tent trailer with the two accused. They would never have let her sleep in the trailer if they had known that she would be given alcohol and then engaged in sex with their two friends.

[62] Fourthly, the sexual activity took place without any protection. This naturally gave rise to concerns about STD’s and pregnancy. At trial, Mr. G.F. attempted to deflect any concern about these matters by stating that he had undergone a vasectomy and that he had not been diagnosed with STD’s. However, this was not information known to C.R. or her parents at the time.

[63] The extent of sexual activity is in my view also an aggravating factor. The accused manipulated C.R. into several physical positions, over a course of some time. It was not a simple fleeting groping or similar type of low-end conduct; rather, it was full-blown intercourse by Mr. G.F. and cunningulous by Ms. R.B. As a result, C.R. was completely objectified and degraded as a sexual object.

[64] The mitigating factors include the fact that neither of the two accused have a criminal record and have no history of inappropriate sexual activity with young, inexperienced adolescents. They have led rather uneventful lives. The evidence is that they both work hard and are appreciated by their employers.

[65] Both accused addressed the court during sentencing. I am troubled by the fact that neither of the accused accepted any responsibility for their conduct, and instead sought to deflect blame and responsibility on C.R.. They did not deny that they engaged in sex with this impressionable young woman and denied only that she was under the influence of alcohol at the time the events occurred. Apparently because she was 16 years old they felt it was perfectly acceptable for them to engage in three way sex together, less than 20 feet from the tent in which C.R.’s parents and younger brother were sleeping. In his testimony, Mr. G.F. suggested that for C.R. this sexual encounter was “the greatest moment of her life” and that she had suggested following this incident up with a visit to the home of the complainants at a later date so they could continue to engage in sex. According to them, it is C.R. who is at fault for bringing this matter before the court, and C.R. is at fault for causing them the distress resulting from the charges against them.

[66] Of equal concern is that at no time, did they express any sorrow or compassion for C.R. or her parents, or consider that they have breached a trust. They view themselves as the victims and they fail to appreciate that their actions were predatory. In the circumstances, I question whether any rehabilitation is possible given their questionable moral and ethical makeup.

DECISION

[67] I have considered the various sentencing objectives and principles set out in the Criminal Code and the precedent cases put to me by counsel, as well as the relevant mitigating and aggravating factors. After doing so I have decided a just and fair sentence by this court consists of a custodial sentence of 3 years for R.B. and 3 ½ years for G.F.. The sentence for Mr. G.F. is longer than the sentence imposed for Ms. R.B. and reflects the fact that in many ways he planned and instigated the events which occurred. It was Mr. G.F. who supplied the alcohol to C.R. in the trailer and throughout the weekend he made a number of suggestive and inappropriate comments to C.R. which reflected his sexual interest in her.

[68] In addition to custodial sentences, I am imposing orders that the two accused provide primary DNA samples, an order for a section 109(1)(a) weapons prohibition for a minimum period of 10 years after release from imprisonment and an order placing their names on the sex offender registry for twenty years. Each of the accused is also required to pay the victim surcharge penalty of $200.

E.J. Koke SCJ

Released: September 6, 2017

CITATION: R. v. G.F. and R.B., 2017 ONSC 5203

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

G.F. AND R.B.Defendants

REASONS FOR SENTENCE

E.J. KOKE

Released: September 6, 2017