Court File and Parties

COURT FILE NO.: CR-15-10000447-0000 DATE: 20180705 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – E.G.F. Accused

COUNSEL: Tom Schreiter, for Her Majesty the Queen Corbin Cawkell, for the Accused

HEARD: July 5, 2018

REASONS FOR SENTENCE

DUNNET J. (Orally)

[1] E.G.F. has been found guilty of sexual assault following trial by jury. Mr. E.G.F. admitted that he had sexual intercourse with B.C.. The only issue for the jury was whether Ms. B.C. consented to the sexual intercourse. By their verdict, the jury rejected Mr. E.G.F.’s version of events and accepted Ms. B.C.’s version that she did not consent to sexual intercourse with Mr. E.G.F..

[2] At the time of the sexual assault, Ms. B.C. was a 59 year old television advertising producer. Two months earlier, she had enrolled in a 21 day residential alcohol program at The C[…] in Toronto (C[…]) where she met Mr. E.G.F.. He was part of her support group and a friend.

[3] One week before the assault, Ms. B.C. lost a project at work, which was worth $50,000 in compensation to her. She was devastated and went home. She started drinking wine, which turned into a week-long binge.

[4] On July 2, 2013, Ms. B.C. recognized that she was going into alcohol withdrawal and needed someone to take her to a detoxification centre. She wanted to go with someone who was not judgmental because she was ashamed and embarrassed. She telephoned two people from her support group at C[…] who were not able to assist. Then she called Mr. E.G.F..

[5] When he arrived at her apartment, he told her dog walker who was there to check on Ms. B.C. that he would make her dinner and then decide if she should go to the hospital. The dog walker left and Mr. E.G.F. locked the front door.

[6] Ms. B.C. was lying on the couch in the living room. Mr. E.G.F. immediately got on top of her and started pulling up her shirt. He told her that he had always found her to be “hot and incredibly sexy” and that he had always wanted to “fuck” her. She testified, “I was in a daze and I doubly said no.”

[7] As he started to kiss her breasts and suck her nipples, she was trying to push him away. He was holding her down with his right arm. She was kicking him and trying to fight him off with her left arm. He undid her pants and performed oral sex on her. Then he penetrated her vaginally and ejaculated inside of her. He was not wearing a condom. He put on his pants and left her in her apartment.

[8] At the hospital, Ms. B.C. underwent a sexual assault examination. The DNA of Mr. E.G.F. was found on her vaginal swab. She took a regimen of prophylactic HIV medication because of her fear about the possibility of sexually transmitted diseases. The medication made her physically ill for four weeks.

[9] Her victim impact statement articulates the emotional, psychological, physical and financial impact of the sexual assault. When she met Mr. E.G.F. within the C[…] support system, she thought that he was a friend. She states that she trusted him to look after her when she needed help to go to the hospital and that her trust was tragically misplaced, affecting her ability to trust anyone now.

[10] As a result of the sexual assault, Ms. B.C. has suffered from acute depression, anxiety and panic attacks. She has become reclusive and fearful.

[11] She has attended and continues to attend therapy programs sponsored by Women’s College Hospital and C[…]. Her psychiatrist has diagnosed her with post-traumatic stress disorder.

[12] During the sexual assault, she sustained nerve damage to her left arm, which has left her with numbness in her left hand.

[13] Ms. B.C. was unable to work for one month and when she returned, she was not able to cope with the stress of her career. She went from “self-reliance to poverty in a matter of months with no hope of recovery.” She was forced to move to subsidized housing, sell her car and give up her dog.

[14] Mr. E.G.F. is a 43 year old painter.

[15] He has a criminal record for violence, dishonesty and failing to abide by court orders. In 1995, he received a fine for using a cancelled credit card. In 1997, he received a suspended sentence and 18 months’ probation for assault and possession of property obtained by crime under $5000. In 2012, he was sentenced to 1 day in addition to time served of 4 days and 2 years’ probation for assault and received a suspended sentence and 2 years’ probation in addition to time served of 11 days failing to comply with his recognizance.

[16] Following the sexual assault, Mr. E.G.F. incurred further convictions.

[17] In September 2014, he was sentenced to 12 days in custody in addition to 3 days of pre-sentence custody for theft under $5000 and failing to comply with his recognizance. In November 2014, he was sentenced to 50 days in custody for assault, being unlawfully in a dwelling house, mischief under $5000, failing to comply with probation and 3 counts of failing to comply with his recognizance. In December 2014, he was sentenced to 1 day in addition to 5 days of pre-sentence custody for being unlawfully at large.

[18] In 2015, he was sentenced to 30 days in custody for failing to comply with his recognizance. In April 2016, he was sentenced to 48 days in addition to 28 days of pre-sentence custody for 2 counts of failing to comply with his recognizance and failing to comply with probation. In August 2016, he was sentenced to 1 day in addition to 2 days of pre-sentence custody for theft under $5000 and possession of a schedule II substance.

[19] Although a sentence must be based on the offender’s criminal record as it stood at the time that the offences were committed, a sentencing judge is entitled to consider offences committed afterwards when determining prospects for rehabilitation: R. v. Hersi, 2015 ONSC 5378, per Clark J., at para. 50.

[20] The pre-sentence report states that Mr. E.G.F. reported that he has no psychological issues; he does not suffer from depression and appears to have a supportive network of friends. He began using drugs and alcohol in high school and in 2012, he realized that his substance use was “out of control.” He registered himself for a residential treatment program at C[…] and between 2013 and 2017, he completed three addiction inpatient treatment services programs followed by outpatient groups. He states that he has not used substances for two years.

[21] The Crown seeks a penitentiary sentence of three to five years, giving credit at a rate of 1.5 days for 99 days of pre-sentence detention. The defence submits that the applicable range of sentence is between two and four years, given that this was a forcible sexual assault, but without gratuitous violence. It is submitted that in this case, a sentence of two years in addition to pre-sentence detention plus a period of probation would allow Mr. E.G.F. to be monitored in the community and take counselling for his addiction.

[22] The aggravating factors in this case are as follows: (a) Mr. E.G.F.’s criminal record includes convictions for domestic assault; (b) The sexual assault occurred in the home of Ms. B.C. where she was entitled to enjoy a sense of privacy and security; (c) Despite telling him to stop, he continued to sexually assault her; (d) The sexual assault was serious. He ejaculated vaginally without using a condom, exposing her to disease and forcing her to take prophylactic medication; (e) Knowing the risks associated with alcohol withdrawal in the context in which they met at C[…], he exploited her trust in him by isolating her and sexually assaulting her; and, (f) The sexual assault has had a severe impact on Ms. B.C. emotionally, physically and financially.

[23] The only mitigating factor is the mention in the pre-sentence report that Mr. E.G.F. appears to have the support of friends.

[24] Mr. E.G.F. addressed the court on sentencing and said that he never intended to hurt anyone, nor did he intend for Ms. B.C. to feel that this has happened to her and he wished her the best. He stated that he has been a victim because he has suffered a loss of earnings and the stigma associated with this charge has affected his relationship with his children, parents and friends. He also stated that he has made mistakes in his past as a result of his issues with alcohol, which he has addressed on his own.

[25] In cases of sexual assault, the sentencing objectives of denunciation and deterrence are of paramount importance.

[26] The Crown relies on the following cases: In R. v. Bradley, 2008 ONCA 179, the offender had received a four year custodial sentence after sexually assaulting a young woman to whom he had been a mentor. The Court of Appeal reduced the sentence to three years. There was no violence other than that inherent in the offence. The offence occurred many years prior to trial and the offender had no prior criminal record. Evidence was presented of the offender’s unblemished character and his positive role as a father. Mr. E.G.F. cannot benefit from the same assessment of character or record.

[27] In R. v. Mitrovic, 2017 ONSC 1829, the complainant had consumed alcohol and drugs and called the offender to come to her home. She believed that he was coming as a platonic friend to make sure that she was all right. He sexually assaulted her while she was unconscious. Although she was not physically harmed, she suffered from psychological harm. The offender was sentenced to four years based on the complainant’s vulnerable position and his lengthy criminal record, which included violent crimes.

[28] In R. v. Mullins, 2015 ONSC 1724, the 47-year-old offender was sentenced to nine years for sexual assault after drugging and raping his daughter’s 18-year-old friend. He received four years concurrent for administering a stupefying substance. The following factors were considered aggravating: his lengthy and violent criminal record; his position of trust with the complainant; the premeditated, prolonged and violent nature of the assault; the exposure to disease, unwanted pregnancy and risk of death, and the emotional and physical impact on the complainant. The Court of Appeal upheld Molloy J.’s reasoning apart from an error in the calculation of credit for pre-trial custody (2016 ONCA 415). Molloy J. stated that had she ignored the issue of drugs, she would have sentenced the offender to five years for sexual assault (at para. 65).

[29] In R. v. Trumpa, 2017 ONSC 5966, the 29-year-old offender held down and choked a 19-year-old woman while he sexually assaulted her in a park at night. It was not planned and it was influenced by the offender’s alcoholism. He was sentenced to four years for the sexual assault and one year concurrent for choking.

[30] The defence has submitted five cases on sentencing. With respect, I do not find them to be of particular assistance in this case.

[31] In R. v. Nelson, 2018 BCCA 161, the offender drove off with the complainant after deliberately striking her boyfriend with his vehicle. He choked her and sexually assaulted her, although there was no intercourse. The trial judge imposed a global sentence of 45 months, including two years for the sexual assault. The British Columbia Court of Appeal upheld the sentence and commented that it was “on the high side for a first time offender.” Mr. E.G.F. is not a first-time offender, nor does he possess the substantial unaddressed mental health issues of the offender in Nelson.

[32] In R. v. Diaz, 2017 ONSC 1883, the complainant agreed to go on a date and have sex with the offender in exchange for money. After consensual sex, the offender performed nonconsensual anal intercourse and was convicted of sexual assault. André J. sentenced him to twenty months in prison based on his exemplary education and employment history, his lack of a criminal record, the support of his family and the community, and the collateral risk of deportation.

[33] In R. v. Burton, 2017 NSSC 181, the offender sexually assaulted his friend, who was sleeping at his house after drinking too much and taking a sleeping pill. The offender was sentenced to two years in prison so that the judge could also order a further three years’ probation and participation in a sex offender treatment program. The offender had acknowledged his guilt and the pre-sentence report was very positive.

[34] In R. v. Stankovic, 2015 ONSC 6246, the offender and the complainant met for one night. After some consensual sexual activity, the offender engaged in nonconsensual intercourse. The offender was sentenced to three years based on his failure to stop when the complainant said “no,” the emotional impact on the complainant, the fact that there was anal intercourse, and the lack of mitigating factors. Though the complainant suffered emotional trauma, she was able to return to work and suffered no physical injuries. As noted above, this was not the case for Ms. B.C..

[35] In R. v. G.M., 2015 BCCA 165, the offender assaulted and sexually assaulted his ex-boyfriend, with whom he had maintained a casual sexual relationship. The British Columbia Court of Appeal imposed a term of imprisonment of 18 months followed by 18 months’ probation. The Court noted that this was not within the appropriate or normal range, but followed the Crown’s recommendation. The Crown has made no such recommendation here.

[36] The defence submits that this is not a case of breach of trust. I respectfully disagree. Mr. E.G.F. was a trusted friend. He had placed himself in a position of trust with Ms. B.C. because of their shared mutual issues with alcohol. When she was vomiting and recognized that she was feeling the effects of alcohol withdrawal, she asked for his help to take her to a hospital. He took advantage of her vulnerable state and violated the trust she placed in him by forcibly sexually assaulting her. At the time of the assault, Mr. E.G.F. was on probation.

[37] For these reasons, I am of the opinion that the appropriate sentence is four years in the penitentiary. He will be given credit for five months of pre-sentence detention.

[38] I make the following ancillary orders under the provisions of the Criminal Code: (a) Pursuant to s. 487.051(1), bodily samples will be taken from Mr. E.G.F. for forensic DNA analysis; (b) Pursuant to s. 490.012, Mr. E.G.F. is ordered to comply with the Sex Offender Information Registration Act, S.C. 2004, c.10 for 20 years; (c) Pursuant to s. 109(3), Mr. E.G.F. is prohibited from owning any weapons for life; (d) Pursuant to s. 743.21, Mr. E.G.F. is prohibited from having any communication, directly or indirectly, with B.C..

Dunnet J. Released: July 5, 2018