Court File and Parties
COURT FILE NO.: 7892/17 DATE: 2018-12-12 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Dana Peterson, Counsel for the Crown
- and -
JESSE LEE BERNIER C. Bruce Willson, Counsel for Jesse Lee Bernier
TY ROGER OLIVER-MORIN Mark Palombi, Counsel for Ty Roger Oliver-Morin
HEARD: October 31, 2018
McMillan J.
Reasons for Sentence
A. Overview
[1] Pursuant to a preferred indictment, the two accused were jointly charged with three counts of sexually based offences and individually with one count each of sexual assault to which the other accused was a party, pertaining to a then 15-year-old female complainant.
[2] On August 22, 2018, both accused pleaded guilty to Count 1, invitation to sexual touching, contrary to s. 152 of the Criminal Code, and to Count 3, sexual assault, contrary to s. 271 (a) of the Criminal Code, in accordance with a negotiated plea agreement. The remaining counts were to be withdrawn. There was not to be a joint submission regarding the sentencing of the offenders.
[3] Findings of guilty were made on Counts 1 and 3 against each of the two offenders and pre-sentence reports were requested. Sentencing submissions were scheduled for October 31, 2018.
[4] On the sentencing hearing, defence counsel requested, with the concurrence of the Crown, that I disabuse my mind of certain commentary contained in each of the offenders’ pre-sentence reports. For clarity, I ruled out and initialed the inappropriate passages in both documents which were entered as Exhibit 6 (Bernier) and Exhibit 5 (Oliver-Morin).
B. Facts Relating to the Offences
[5] The Crown entered a statement of facts, Exhibit 1, concurred with by both defence counsel, as an accurate account of what transpired leading to these charges. An abbreviated recital thereof is as follows:
[6] On May 27, 2017, T.D. was a 15-year-old, born […], 2001, high school student attending a high school prom in Wawa, Ontario with two friends. Afterwards she attended a party at Sandy Beach amongst 30 to 80 other attendees; mostly students but with some persons beyond that age group. The party concluded between 5:00 and 6:00 a.m.
[7] Ms. T.D. drank four alcoholic beverages and felt “woozy”. She was described by others as very intoxicated and observed to have vomited and was stumbling. At approximately 2:00 a.m., she left the campfire and walked to a wooded area a short distance away which had been used by others as a latrine. While there, she was accosted by the two offenders who had followed and who pushed her to the ground on to her stomach. Oliver-Morin took her cellphone from her and had unprotected vaginal intercourse with her from behind while Bernier forced fellatio by holding her in place by her hair. They told her they would continue to sexually assault her.
[8] Ms. T.D. didn’t have complete recall of the entire event because at some point she passed out. She did recall being turned over on to her back and both offenders forcing their penises into her mouth at the same time and that it went on for “a very long time”. Two witnesses went into the bush area around 4:00 a.m. to urinate and saw Oliver-Morin stumbling out of the bushes. Bernier remained and was attempting to kiss the victim and perform oral sex on her but she pushed him away. Bernier stood her up while again trying to kiss her and walked her out of the bushes.
[9] Ms. T.D. was extremely distraught and crying. She immediately told her friends what had happened to her and pointed out the two males. She recovered her cellphone from Oliver-Morin’s pocket as he lay “passed out” by the fire. When confronted by her friends about “raping her”, Oliver-Morin appeared confused and stated “What?” A witness stated that Ms. T.D. came out of the bushes around 5:00 a.m. and was distraught and crying.
[10] Sometime between 5:00 a.m. and 6:00 a.m., two male witnesses who were leaving the area were approached by Bernier who offered payment to say he wasn’t involved and stated to them that he “didn’t do it. She’s exaggerating.” Oliver-Morin provided a cautioned statement to police on May 30, 2017 in which he denied knowing the victim; was “blackout drunk”; and, that he didn’t know what he had done that night.
[11] The Crown filed as Exhibit 2, on consent, a Biology Report from the Centre of Forensic Sciences containing a DNA profile summary implicating both offenders as a result of DNA analysis of samples taken from Ms. T.D.’s clothing.
[12] Ms. T.D. did not consent to any of the sexual contact that befell her on the aforesaid occasion.
C. Circumstances of the Offenders
Jesse Lee Bernier
[13] The offender was 22 years of age at the time of these offences and turned himself into the police the following day. He is a first-time offender who resides with his mother, his surety, and step-father in Wawa. His recognizance of bail, taken on August 22, 2017, has confined him to her residence under house arrest unless accompanied by her. Although he was always previously employed, he has not been since August 2017.
[14] Mr. Bernier has a close relationship with his mother but has been estranged from his biological father for some time. He was diagnosed with ADHD at a young age and attended Trillium Demonstration School for two years. High school was a difficult time and he was suspended for aggressive behaviour. He grew uninterested in school and did not graduate. He has used alcohol from the age of 17 and to the point of memory loss. His mother advised the author of the pre-sentence report that her son’s behaviour on May 27, 2017 is out of his character and that he was not in any state to attend the prom party by reason of his being “heavily intoxicated”.
[15] While Mr. Bernier expressed remorse and empathy towards Ms. T.D. to the author of the pre-sentence report, he did not demonstrate an acceptance of responsibility but rather attributed his behaviour to his inebriation and loss of memory. However, when given the opportunity to address the court on his sentencing hearing, pursuant to s. 726 of the Criminal Code, the offender expressed full responsibility for his actions; empathy for the victim; remorse; and, a desire to be rehabilitated.
[16] The author of the pre-sentence reports recommended that “the most appropriate option for treatment” for both offenders “would be the Ontario Correctional Institute (OCI) located in Brampton”, which specializes in both addiction and sexual behaviour.
Ty Roger Oliver-Morin
[17] This first-time offender was 20 years of age at the time of these offences. His recognizance of bail, taken June 6, 2017, was similar to Bernier’s but not as restrictive in that he had an 8:00 p.m. to 6:00 a.m. curfew during which time he was not allowed to be away from his residence without his surety, that being his mother.
[18] Mr. Oliver-Morin was only six years old when his father abandoned him and his mother. The offender’s mother was supportive but was often working, which led him to develop a strong bond with his caregiving grandmother. His mother remarried but her new husband did not adopt a father figure role respecting this offender. Other than a short period of time after high school when he made an unsuccessful attempt at post-secondary study at Sir Sanford Fleming College in Peterborough, the offender has continuously resided in his birth place of Wawa. He continues to reside with his mother, his surety.
[19] Mr. Oliver-Morin’s criminal conduct effectively concluded his serious relationship with Ms. D. Weaver that had developed since high school. The death of a close friend that occurred when he and Ms. Weaver were living in Peterborough negatively altered his personality causing him to display anger, aggression, irritability, quick temper, and controlling behaviour not previously demonstrated.
[20] Mr. Oliver-Morin did convey remorse and empathy for Ms. T.D. to the author of the pre-sentence report but had difficulty accepting responsibility for his conduct, believing himself to be incapable of such behaviour and his lack of memory induced by excessive alcohol consumption. However, when addressed by the court in accordance with s. 726 of the Criminal Code, he advised that he was taking full responsibility for his actions; was sincerely apologetic; remorseful and desired to be rehabilitated.
D. Significance of Impact on the Victim
T.D.
[21] A victim impact statement, dated February 13, 2018, and signed by T.D. was entered as Exhibit 3 on the sentencing hearing. It is important to note that at the time of the offences, Ms. T.D. was 15 years of age, 16 years of age at the date of the victim impact statement, and is currently 17 years of age. She was in attendance at the sentencing hearing and asked that her victim impact statement be read into the record and Crown counsel did so. She was not interviewed by the author of the pre-sentence reports in light of her age and risk of any further traumatization. Her victim impact statement comprises a comprehensive and insightful account of the significance of the impact that the events of May 27, 2017 have had upon her. What follows is a brief summary thereof.
[22] As a result of her traumatic encounter with the offenders, Ms. T.D. sustained “internal bruising/tearing” and bruised ribs. She attended the sexual assault care centre in Sault Ste. Marie for evaluation as well as four subsequent attendances regarding prevention treatment as a precautionary measure against sexually transmitted disease. She incurred expense and inconvenience associated with travel from her residence in H[…] to Sault Ste. Marie and Wawa in relation to treatment and counselling sessions.
[23] In 2016, Ms. T.D. was diagnosed with a panic disorder but was improving and managing her symptoms with daily gym workouts and healthy eating habits. Since this life altering experience of May 27, 2017, she has regressed to the point of recurring suicidal ideation. Over the summer of 2017 she began to self-harm, and on July 3, 2017 admitted herself to hospital in relation thereto. She is in a constant state of fear for her safety, be it at home or elsewhere. She takes prescribed medication to help her sleep but the nightmares continue.
[24] Ms. T.D. is currently in grade 12. She has lost interest in sports and academics and has become reclusive, fearing to be alone with anyone. She has lost friends due to her altered personality; exhibiting angry, rude and negative behaviour or complete silence. Music, movies, television and every day interaction that relates to sex or female exploitation are alarming and unmanageable for her. On a class trip to Europe in March 2018, she was haunted daily by the events of May 27, 2017 and her ensuing stress disorder.
[25] She continues to suffer a loss of self-worth, disgrace, disgust, shame, self-hatred and depression. She thinks cynically of the future possibility of a normal, healthy future romantic relationship predicated on trust. Her greatest fear is for her personal safety and of encountering the two offenders.
R.D.
[26] She is the mother of the victim and also submitted a victim impact statement, dated April 26, 2018, and entered as Exhibit 4 on the sentencing hearing. Mrs. R.D. corroborated the effects experienced by her daughter that have resulted from her sexual assault by the two offenders. T.D.’s father died when she was only two years of age. She had been bullied throughout most of her school years and was diagnosed with social anxiety disorder not long before this incident. However, she was improving and had made some great friends in Wawa who she visited regularly.
[27] The family has had to alter many traditions and forego gatherings and vacations to accommodate T.D.’s fears and desperation. Her 16th birthday could not be celebrated in the normally eventful fashion. As is stated by Mrs. R.D. in reference to her daughter, “She can’t even be a teenager anymore”, and that they are on “an emotional roller coaster”.
[28] T.D.’s resulting condition has taken a toll on the marital relationship between her mother and stepfather. Mrs. R.D. finds that she has little time for her husband now. She spends considerable time travelling with her daughter from their somewhat remote Northern Ontario community to seek “the counselling and medical help needed”. They have also endured some financial strain as a result of this criminal conduct. Mrs. R.D. is consumed with devoting herself entirely towards the healing and recovery of her daughter if that is attainable.
E. Position of the Parties
The Crown
[29] Ms. Peterson submits that three years imprisonment in a federal penitentiary is an appropriate sentence for each offender. As the complainant was under the age of 16 years at the time of commission, the two offences each carry a maximum period of imprisonment of 14 years. I am not to be concerned with a minimum sentence. The Crown also seeks five separate ancillary orders which are not opposed by the defence.
The Defence
[30] Defence counsel both submit that incarceration for a term of two years, less one day, in a provincial reformatory, plus the ancillary orders sought by the Crown is an appropriate sentence for each of the two offenders.
F. Analysis
The Legislation
[31] The court’s sentencing considerations are governed by the statutory provisions set out in sections 718, 718.01, 718.1 and 718.2 of the Criminal Code. The sentence must reflect one or more of the following objectives: the denunciation of unlawful conduct and the harm caused; specific and general deterrence to the offender and others; where necessary, separating offenders from society; assist in the rehabilitation of offenders; provide reparations for harm done to victims or community; and, to promote responsibility in offenders for the harm done by them. In this matter, I am required to give primary consideration to the objectives of denunciation and deterrence bearing in mind that the offences involved the abuse of a 15-year-old victim.
[32] The fundamental principle of sentencing requires the sentence to be proportionate to the gravity of the offence and the degree of responsibility of the offender. Additional principles must as well be considered by the sentencing judge and those applicable to this case include:
(a) That a sentence should be adjusted upward or downward to reflect relevant aggravating or mitigating circumstances of the offence or offender;
(b) Abuse of a person under 18 years of age and any significant impact of the offence on the victim having regard to age, personal circumstances, health and financial circumstances are deemed to be aggravating circumstances;
(c) There should be similarity or parity with sentences imposed on similar offenders for similar offences committed in similar circumstances;
(d) The offender should not be deprived of liberty where less restrictive sanctions may be appropriate in the circumstances; and
(e) All available sanctions, other than incarceration, that are reasonable in the circumstances and consistent with the harm done to the victim should be considered.
[33] At this point I should indicate that although the court is sentencing two offenders and giving consideration to their individual backgrounds and circumstances, both Crown and defence counsel have stated that there ought not to be any disparity in their respective sentences. Further, counsel have submitted that, for sentencing purposes at least, the two offenders should be regarded to be equally culpable. I recognize that only Oliver-Morin had intercourse with the victim, probably unprotected, and which usually calls for a greater penalty because of its invasiveness. Bernier had concurrent forced fellatio. They both subsequently had forced fellatio. However, Bernier briefly continued to sexually molest the victim after Oliver-Morin had left. I accept counsels’ submissions in this regard, and I note that the recommendations set out in their pre-sentence reports are identical.
[34] The aggravating circumstances attendant to these offences are several:
(a) The victim was only 15 years of age;
(b) The offences were committed by two older assailants, both of whom forcefully subdued her in tandem;
(c) In addition to her youth, she was vulnerable due to her level of insobriety, described by some witnesses as very intoxicated, stumbling and vomiting;
(d) The offenders stated that they would continue to assault her. As best I can determine from the agreed facts, the sexual assault was not a momentary or brief occurrence.
(e) The offences have had a significant impact on Ms. T.D.’s wellbeing as enumerated in both pre-sentence reports, and in her victim impact statement and that of her mother. Ms. T.D. was previously an introverted young woman with few friends. She had only recently formed a trusting peer group with whom she attended the after prom party where the offences took place. She has experienced behavioural issues including seclusion, stress, frustration, anger, insomnia, self-blame, suicidal ideation, school disruption, and generalized fear, most notably of encountering the offenders. She was diagnosed with PTSD in August 2017 and continues to attend counselling.
[35] There are several mitigating circumstances to be considered:
(a) Neither of the offenders have a criminal record and both are first offenders. Their mothers and other family members were dismayed and disappointed to learn that the offenders had committed these offences considering their background;
(b) The offences relate to a single occurrence and absent any premeditation;
(c) The offenders, while older than the victim are both young men. At the time of the commission of the offences, Jesse Bernier had just turned 22 years of age, born April 2, 1995, and Ty Oliver-Morin was aged 20 years, born September 30, 1996.
(d) Both offenders have expressed remorse and empathy for the victim in two circumstances. Firstly to the author of their respective pre-sentence reports, and secondly to the court directly when addressed in compliance with s. 726 of the Criminal Code. With regard to their responses, they both indicated that each takes full responsibility for their offences and a desire to be rehabilitated.
(e) Perhaps the most compelling mitigating circumstance in favour of a reduction in the offenders’ sentence is the entry of their guilty pleas. In my view, the significance of the guilty pleas is heightened somewhat. Firstly, the Crown filed a preferred indictment dated March 1, 2018, pursuant to s. 577 (a) of the Criminal Code which effectively removed the prospect of a preliminary hearing and thereby preventing the defence from testing the Crown’s evidence in advance of a trial had they wished to do so. Secondly, the guilty pleas were entered relatively early in the prosecution of the case as reflected by the various endorsements on the back of the indictment. Thirdly, the pleas of guilty were entered without any prospect of a joint submission as to sentence by the Crown and defence counsel. Fourthly, the victim was spared the trauma and unpleasantries of the preparation for trial with the Crown and the conduct of a trial involving cross-examination by two defence counsel respecting the intimate details of the occurrence of May 27, 2017, and most notably in light of the negative post-offence impact on the victim’s wellbeing as particularized in her victim impact statement. The guilty pleas in isolation represent an additional measure of remorse.
(f) Lastly, there is the relevant mitigating circumstance of time spent under stringent bail conditions, especially under house arrest. In R. v. Downes (2006), 79 O.R. (3d) 321, J.A., at para. 33, Rosenberg J.A. held:
Accordingly, I conclude that time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance. However, like any potential mitigating circumstances, there will be variations in its potential impact on the sentence and the circumstances may dictate that little or no credit should be given for pre-sentence house arrest....
[36] This principle was followed by D. Watt, J.A. in R. v. Adamson, 2018 ONCA 678, at paras. 106, 107, 108 and 117. I am recognizing the offenders’ predisposition bail conditions as a mitigating factor. Particularly with regard to Bernier who has been under house arrest since at least August 22, 2017 and subject to ten other restrictive conditions, see Exhibit 7. It should be noted that Bernier had always maintained an interest in employment and was consistently employed since withdrawing from high school. His young age constitutes another relevant factor in assessing the significance of his house arrest. In my consideration of this factor, I am adopting the authority taken from para. 117 of the aforesaid decision of D. Watt J.A. “by assigning it weight when determining an appropriate sentence” as opposed to fixing “an explicit award of credit”.
[37] In assessing Oliver-Morin’s predisposition bail conditions, he has been the subject of a recognizance of bail since June 6, 2017 in which he was not placed under house arrest, but was subject to a daily curfew between the hours of 8:00 p.m. and 6:00 a.m. The other conditions are essentially identical to those of Bernier. As has been the case since he was 14 years old, according to the pre-sentence report, he has maintained employment while on bail. Although I would not give his predisposition release conditions as much mitigating weight as Bernier, I would assign some lesser weight considering the approximately 18 months he will have fulfilled; his young age; and the impact on his liberty in such a small town considering the stringency of his other conditions.
Parity in Sentencing
[38] Counsel provided the court in combination with 26 reported decisions each of which references principles of sentencing but, not surprisingly, none of which are on all fours with the circumstances of these offences and offenders. The jurisprudence presented varies in many respects. Many did not include guilty pleas before trial; involved more than one occurrence; dealt with offenders who had criminal records or involved themselves in further offences while awaiting trial; more than one victim; increased culpability with gratuitous violence beyond the sexual intrusiveness; greater number of assailants; and, premeditation or planning.
[39] While the cases are helpful to some extent, the court must be cautious not to be overly influenced by only one result as befitting the exercise at hand. In other words, circumstances may call for disparity when influenced by proportionality and as was stated by Doherty J.A. in R. v. Hamilton (2004), 72 O.R. (3d) 1, at para 85,
[85] Sentencing is a delicate case-specific exercise. There is seldom only one fit sentence. Fitness usually describes a range of appropriate sentencing responses. ...
Of the jurisprudence presented in this matter, I found the Ontario Court of Appeal decision in R. v. Kennedy, [1999] O.J. No. 4278 (O.C.A.), although not contemporaneous, and R. v. Hussein, 2017 ONSC 4202, [2017] O.J. No. 3567 to be helpful.
The Fit Sentence
[40] I am not approaching the sentencing of these two offenders as simply acquiescing to one or the other of the submissions of counsel; that is three years imprisonment as sought by the Crown or two years incarceration as submitted by defence counsel. A sentence in either of those ranges could arguably be contended to be sufficient to deter the offenders from committing offences in the future.
[41] There is yet to be addressed the principle of restraint as reflected in s. 718.2 (d) and (e) of the Criminal Code and the objective of assisting in the rehabilitation of both offenders, while giving due acknowledgment to the primary consideration of denunciation and deterrence mandated by s. 718.01 of the Criminal Code as they relate to the abuse of T.D. at the young age of 15 years.
[42] As courts have repeatedly stated in offences of this nature and as defence counsel acknowledged in submissions, there is literally nothing that the court can do to ameliorate the harm and distress occasioned to Ms. T.D. by the abhorrent, cowardly and irreversible criminal acts of sexual violence visited upon her on May 27, 2017, an experience that she is not likely to ever completely purge from her memory. Thus the need to have denunciation and deterrence at the forefront of their sentence, even without the requirement of s. 718.01 of the Criminal Code.
[43] Ms. T.D. had only relatively recently emerged from her diagnosed social anxiety disorder and reclusive behaviour. She was progressing with the management of her symptoms by exercising; eating healthy; and, formulating friendships in Wawa which, ironically, led to her attending the prom and after party. She has regressed considerably and relies on the devoted support of her mother and counsellors. Her future is fraught with uncertainties.
[44] However, the significance of the consequences of an offence ought not to be permitted to unduly distort the court’s determination of an appropriate sentence. (R. v. Mellstrom (1975), 22 C.C.C. (2d) 472, at p. 486 (Alta. S.C. App. Div.)
[45] The principle of restraint as codified in s. 718.2(d) and (e) requires that a sentence of incarceration imposed on a young first offender should be as brief as possible while giving adequate weight to the principles of general deterrence and denunciation: R. v. Hayman (1999), 135 C.C.C. (3d) 338 Ont. C.A. at para. 22. In R. v. Rocchetta, 2016 ONCA 577, [2016] O.J. No. 3871, para. 35, the court followed R. v. Hayman and held that, “The restraint principle should have been one of the primary considerations in fixing the appropriate period of incarceration. Instead, the trial judge failed to apply the principle.”
[46] Lastly, I wish to give consideration to the objective of assisting in the rehabilitation of the offenders. The mothers of both offenders were dismayed and disappointed upon learning of the involvement of the offenders with Ms. T.D., considering that it was a significant aberration of each of their characters.
[47] It appears to me that each of these offenders was and perhaps continues to be in denial or disbelief that they could have consciously acted in such a callous manner and that this conduct is attributable to substance/alcohol abuse. My view is supported by the author of their pre-sentence reports where he alludes in various passages to their respective failures to accept responsibility for their actions.
[48] It is for that reason, I believe, that the author of the pre-sentence reports has recommended treatment at the Ontario Correctional Institute (OCI) in Brampton which specializes in both addictions and sexual behaviour if they are subjected to a custodial sentence. Upon their release, in all probability they will return to their family homes in Wawa. Community supervision would also be a prudent measure given their potential risk or threat to the community attributable to substance abuse according to the recommendations in their respective pre-sentence reports.
[49] Community supervision would also serve to provide Ms. T.D. with an extended measure of personal safety by eliminating contact with the offenders over a lengthy period of time.
[50] Both offenders indicated directly to the court when asked if they had anything to say that they desired to be rehabilitated. Considering their age, family support, absence of any previous criminal record, work ethics, and that I found their requests to be genuine, I believe that their prospects for rehabilitation are promising.
I. Disposition
[51] Having given primary consideration to the objectives of denunciation and deterrence and the circumstances of the offences, the offenders and the harm visited on the victim, I conclude that a fit and proportionate sentence on count 3 for each of the offenders requires incarceration for a term of 24 months, less one day, with a strong recommendation that the eligible portion of the term be served at the Ontario Correctional Institute in Brampton, and that both offenders are encouraged to apply for it. In my view, a penitentiary term of imprisonment carries implications that are ill-advised in this case and which would effectively remove the availability of a period of probation which I do consider to be warranted in the case of both offenders.
[52] On count 1, each offender is sentenced to a term of 16 months incarceration to be served concurrently to count 3.
[53] In addition, each of the two offenders shall be subject to a two-year period of probation on the first six conditions recommended by the author of their pre-sentence reports, which are identical.
[54] The Crown sought the following ancillary orders which were not opposed by defence counsel and which are granted:
(i) DNA order pursuant to s. 487.051 for a primary designated offence;
(ii) Mandatory weapons prohibition order pursuant to s. 109(2) of the Criminal Code for a period of ten years;
(iii) A SOIRA order pursuant to s. 490.013(2)(b) for life;
(iv) An order pursuant to s. 161(1)(a.1) prohibiting the offender from being within two kilometres of the residence of T.D. for a term of 10 years;
(v) An order pursuant to s. 743.21 of the Criminal Code prohibiting communication with T.D. while the offender serves his custodial sentence.
[55] Each offender is subjected to a victim surcharge pursuant to s. 737 of the Criminal Code, in the sum of $400.00.
[56] Counts 2, 4 and 5 are withdrawn at the Crown’s request.