Court File and Parties

COURT FILE NO.: CR-17-56 DATE: 2018-12-13

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN P. Keen, for the Crown

- and -

J.P. M. Van Walleghem, for the Defendant Accused

HEARD: August 13, 2018 at Kenora, Ontario Mr. Justice J.S. Fregeau

REASONS ON SENTENCE

INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE OF CANADA BY ORDER OF JUSTICE J. S. FREGEAU, SUPERIOR COURT OF JUSTICE

OVERVIEW

[1] On January 22, 2018, the accused appeared for trial on six counts, as follows:

1. On or about June 2015, at the First Nations Territory of W[…], did commit an assault on S.H. by pushing her contrary to s. 266 of the Criminal Code.
2. Between 1 June 2015 and 31 August 2015, at the First Nations Territory of W[…], did commit a sexual assault on S.H. involving fellatio, contrary to section 271 of the Criminal Code.
3. On or about March 2016, in the township of E[…], did commit an assault on S.H. by kicking her while she was holding a baby, contrary to s. 266 of the Criminal Code.
4. On or about March 2016, in the township of E[…], did commit an assault on S.H. by dragging her by the hair, contrary to s. 266 of the Criminal Code.
5. On or between May 2015 and May 2016, in the First Nation of W[…] and E[…] did commit an assault on S.H. by pulling her hair, contrary to s. 266 of the Criminal Code.
6. On or between May 2015 and May 2016, did commit a sexual assault on S.H., contrary to s. 271 of the Criminal Code of Canada, where no consent was obtained because consent was vitiated within the meaning of s. 265(3) or s. 273.1(2)(c) of the Criminal Code.

[2] The accused pled guilty to Counts 1, 3 and 4. Count 5 was withdrawn at the Crown’s request. Subsequent to the conclusion of the Crown’s case and the case for the accused, counsel reached a resolution as to Counts 2 and 6. Count 2 was withdrawn at the request of the Crown. The accused was re-arraigned on Count 6 and pled guilty to that charge, with facts in support of that charged being agreed to.

[3] The accused is therefore to be sentenced on Counts 1, 3, 4 and 6.

THE FACTS

1. Circumstances of the offences

[4] The accused and the complainant lived together in a common law relationship for approximately three years. Throughout that relationship, the accused was physically and sexually abusive to the complainant. The specific actions for which the accused has pled guilty to are:

• Count 1 – In June of 2015, the accused pushed the complainant;
• Count 3 – In March of 2016, the accused kicked the complainant in her leg with his bare foot while she was holding their child;
• Count 4 – In March 2016, the accused dragged the complainant by her hair. The complainant’s finger was hyperextended; and
• Count 6 – Between May 2015 and May 2016, the accused engaged in vaginal sexual intercourse with the complainant on at least two occasions when she had indicated that she did not wish to do so. The complainant believed, due to the previous assaultive conduct of the accused, that if she did not consent she would be assaulted. The accused concedes that the complainant’s consent to engage in sexual intercourse on these occasions was vitiated.

2. Circumstances of the offender

[5] The accused is a 22 year old First Nations individual with no prior criminal record. He grew up and currently resides in W[…] First Nation, a small, relatively isolated, yet progressive community approximately 70 km north of Vermillion Bay, Ontario.

[6] The accused is the older of two boys born to his parents’ common law relationship. His paternal grandmother was a subject of the “60’s scoop”. His mother is a residential school survivor. The accused’s parents both had serious alcohol abuse issues which resulted in significant, non-physical domestic turbulence when the accused was an infant. It is apparent that the ability of the accused’s parents to properly parent the accused and his brother was severely compromised by these circumstances.

[7] The accused’s parents separated and essentially abandoned him and his sibling when the accused was three years old. The accused was taken in and has been raised by his paternal grandmother, who has been a consistent, caring and supportive presence throughout his life. The accused has no relationship with his mother, who continues to struggle with her alcohol addiction. He had a limited relationship with his father until his father’s death approximately eight years ago. It is apparent that these circumstances have impacted the accused in a negative way, resulting in strong feelings of abandonment and confusion as he was growing up.

[8] The first child of the accused and complainant was still born. It is generally agreed that this had a profound impact on the accused, placing him on a downward spiral of alcohol and substance abuse, depression and anger. The accused has been able to maintain a limited, but consistent, relationship with his one child. He is described as a capable and loving parent.

[9] The accused left school while in Grade 11 due to the complainant’s pregnancy. He is currently working toward completing his Grade 12, which he expects to complete in 2019.

[10] The accused has a strong work history, beginning at the mill in E[…] when he left school and currently with the Resources, Mining and Forestry Department with his band. He is described as a valued employee.

[11] The accused started using alcohol and marijuana as a young teenager. His use of both increased to the level of dependency and abuse during his common law relationship with the complainant. His alcohol abuse has moderated since separation. He still uses marijuana on a regular basis.

[12] The accused is genuinely remorseful for his conduct toward the complainant. He has expressed gratitude toward the complainant for reporting his actions to the police, believing it halted what would have otherwise been a continued downward slide. The accused expresses some insight into his various issues and acknowledges his need for rehabilitative and substance abuse counselling.

3. Impact on the victim

[13] The complainant has filed a Victim Impact Statement. It is difficult to isolate the impact of the specific offences on the complainant from the issues she faces as a result of the abusive relationship at large. However, I do not see that it is necessary to do so for sentencing purposes.

[14] What is clear is that the complainant has suffered emotionally and physically as a result of the actions of the accused. Her sense of personal security has been compromised, requiring her to eventually return to her parents’ because she feels safer living there. It appears that she continues to suffer from a type of identity crisis as a result of the isolation imposed on her by the accused during their relationship. She has lost and is unable to re-connect with many close friends. Her family relationships have suffered.

[15] The complainant has quite properly embarked on counselling in an attempt to develop a stronger sense of self-worth and identity. She is claiming restitution for the cost of one year of therapy ($130/wk = $6,240/yr).

LEGAL PARAMETERS

[16] When prosecuted as an indictable offence, an accused convicted of assault is liable to a maximum term of imprisonment of five years. There is no minimum penalty.

[17] An accused found guilty of a sexual assault when the Crown has proceeded by indictment is liable to a maximum term of imprisonment of 10 years if the complainant is 16 years or older.

POSITIONS OF THE CROWN AND DEFENCE

[18] The Crown asks that the accused be sentenced to a period of custody of two years less a day followed by three years of probation. The Crown submits that the custodial sentence proposed is at the low end of the range for domestic sexual abuse within a physically abusive relationship. The Crown suggests that the applicable range of sentence in these circumstances is 21 months to four years custody.

[19] In support of their submission of two years less a day, the Crown submits that the sexual assault conviction is supported by an admission of “at least two” incidents of sexual intercourse in which the complainant’s consent was vitiated as a result of the accused’s abusive and threatening behavior, including three convictions for assault.

[20] The Crown submits that the conduct of the accused was degrading, repetitive and perpetrated over an extended period of time.

[21] The Crown acknowledges the accused’s guilty plea to the sexual assault charge but submits that it occurred at the end of the trial, after both the complainant and the accused had testified.

[22] The Crown also recognizes that the accused is a young, Aboriginal first offender with a strong work history and an educational plan. It is further acknowledged that the accused is genuinely ashamed of his conduct, remorseful and a low risk to re-offend.

[23] The Crown submits that the suggested sentence of two years less a day custody represents a restrained position which properly reflects the prevailing range of sentence for this type of offence and balances all aggravating and mitigating factors.

[24] The Crown also suggest that the accused be placed on probation for a period of three years following the completion of his custodial sentence. The Crown submits that the terms of probation should mandate counselling for both domestic violence and sexual offending behavior and prohibit the accused from having any contact with the complainant, unless in accordance with an order of a family court.

[25] The accused submits that he was young and unsophisticated during this common law relationship and that he did not understand the nature of a romantic relationship, with the result that he felt he was entitled to sexual gratification whenever he wanted it. It is submitted that he has now come to appreciate the seriousness of his misunderstanding, that he accepts responsibility for his actions and is remorseful.

[26] The accused submits that he is a young first offender, a low risk to reoffend and a good father to his child. It is submitted that the accused has a strong employment history and that he is working on obtaining his Grade 12 in the hopes of attending post-secondary education in the future.

[27] The accused submits that Gladue factors are present in his background and should serve to shorten what is acknowledged to be a necessary custodial sentence. The accused submits that he was abandoned by alcoholic parents at a young age and raised by his grandmother without a positive male role model in his life. He has had no relationship with his mother since age three and his father was only a marginal presence in his life up to the point in time when he died from alcohol related causes. The accused has, in turn, suffered from both drug and alcohol abuse issues which he is currently struggling to overcome. The sister of the accused committed suicide and he suffered racism in school.

[28] It is submitted on behalf of the accused that he continues to benefit from the strong support from his grandmother, who has been the only constant in his life.

[29] In all the circumstances, the accused suggests that a 15 month custodial sentence followed by probation is appropriate.

CASE LAW

[30] The Crown has submitted three cases for my consideration.

[31] R. v. H.E., 2015 ONCA 531 – This was a Crown sentence appeal from a global sentence of 18 months custody following convictions for sexual and common assault on the accused’s spouse and two counts of common assault on the accused’s children. The Court of Appeal described the facts in support of the sexual assault conviction as “many instances of forced intercourse”.

[32] The accused was an Iranian immigrant, a first offender and non-remorseful.

[33] The Court of Appeal described the 18 month sentence imposed by the trial judge as “manifestly unfit”. The Court reiterated their position, set out in R. v. Smith, 2011 ONCA at para. 546, as to the proper range of sentence for cases of domestic sexual assault. The Court stated that the sentence range for cases involving forced intercourse with a spouse is 21 months to four years, with cases at the lower end of the range involving single events.

[34] The Court imposed a global sentence of four years.

[35] R. v. S.M.C., 2017 ONCA 107 – the accused pled guilty to sexual assault for engaging in anal intercourse with his sleeping, intoxicated, estranged spouse. The trial judge sentenced the accused to 15 months custody. The Court of Appeal once again endorsed Smith and dismissed the accused’s sentence appeal.

[36] R. v. L.S., 2017 ONCA – The accused appealed a global sentence of two years imposed following convictions on two common assaults and one sexual assault in regard to his common law spouse. The sexual assault involved forced vaginal intercourse.

[37] The Court of Appeal found that the accused “raped his common law wife…and physically abused her twice…although the assaults were relatively minor”. In dismissing the appeal, the Court held that, in these circumstances, the predominant sentencing principle was denunciation and that a penitentiary term was fully warranted on the facts, absent the joint submission at trial.

[38] The accused has submitted two cases for my consideration.

[39] R. v. Bodosis, [2009] O.J. No. 2707 – The accused was convicted of sexual assault after trial, involving one act of forced non-consensual intercourse with his spouse. The accused was a first offender. The Court noted that the abuse of a spouse and of a position of trust were statutory aggravating factors on sentencing. The accused was sentenced to seven months plus five days pretrial custody.

[40] R. v. T.O., [2013] O.J. No. 4363 – the accused, who had an unrelated record, was convicted of two counts of sexual assault as a result of two acts of non-consensual intercourse with his former dating partner. The Court held that the “particularly onerous bail conditions”, equivalent to house arrest, in place for almost two years, was a mitigating factor. The accused was sentenced to 18 months custody less time served.

MITIGATING CIRCUMSTANCES

[41] The mitigating circumstances in this case include:

• The accused is 22 years old with no prior criminal record
• The accused has pled guilty to the offences; the guilty plea to the sexual assault offence being entered only after all evidence was heard
• The accused is sincerely remorseful for his conduct
• The accused accepts responsibility for his actions, is insightful as to his issues and is amenable to treatment and counselling
• The accused has a strong employment history and is attending school with plans for post-secondary education
• The accused has family support and is a low risk to re-offend

[42] The aggravating circumstances are:

• The common assault offences were repetitive and occurred over an extended period of time
• The sexual assault involved two incidents over an extended period of time

PRINCIPLES OF SENTENCING

[43] The fundamental purpose of sentencing is set out at s. 718 of the Criminal Code:

718. The fundamental purpose 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 persons from committing offences; c) To separate offenders from society, where necessary; d) To assist in rehabilitating offenders; e) To provide reparation for harm done to victims or to the community; and f) To promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community.

[44] It is a fundamental principle of sentencing that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[45] Section 718.2 of the Code requires that a sentencing court take into consideration the following principles:

1. The abuse of a spouse is a statutory aggravating factor; and
2. The particular circumstances of an Aboriginal offender must be considered in imposing sentence.

[46] The accused is an Aboriginal offender whose background falls squarely within the circumstances described by the Supreme Court of Canada in R. v. Gladue, [1999] 1 S.C.R. 688 and R. v. Ipelee, 2012 SCC 13, [2012] 1 S.C.R. 433. It is clear that these background circumstances have played a part in bringing the accused before the court to be sentenced for these offences.

[47] Given the accused’s background, this court is required to accept that the accused has a lower degree of moral blameworthiness for his conduct than would otherwise be the case. As a result, restraint must be exercised in determining the appropriate sentence for this offender and these offences.

REASONS

[48] I accept the submission of the Crown that the Ontario Court of Appeal has established that the range of sentence for forced sexual intercourse with a spouse is 21 months to four years, with the low end of the range applicable for single events. In this case, the offence included two acts of forced intercourse and were accompanied by repetitive, physically assaultive behavior of the accused toward his spouse.

[49] However, the accused is a young Aboriginal offender with no prior criminal record, a strong work history, and insight into his outrageous conduct toward his domestic partner. He is also amenable to participating in counselling and therapy. Given these characteristics, it is required that a sentence, while adequately addressing the principle of denunciation, take into consideration Gladue principles while balancing the principles of sentencing together with all aggravating and mitigating factors. The sentence imposed must not “crush” the accused.

[50] In all the circumstances, I find that a just and fit sentence is as follows:

1. On Counts 1, 3 and 4, the accused is sentenced to 20 days on each count, consecutive;
2. On Count 6, the accused is sentenced to 18 months consecutive.

[51] This results in a total period of incarceration of 20 months in addition to pretrial custody of five days. This custodial sentence would have been longer, absent the Gladue factors present.

[52] Further, the custodial sentence shall be followed by a three year period of probation on the following terms:

1. The accused shall report to a probation officer as directed;
2. The accused shall attend and actively participate in all assessments, counselling and rehabilitative programs for domestic violence and sexual offending as directed by his probation officer and complete them to the satisfaction of his probation officer; and
3. The accused shall not communicate or come into contact with the complainant, directly or indirectly, nor shall he be found within 100 metres of her home, place of employment or locations she is known to frequent, except in accordance with the express terms of a family court order for the exercise of access to his child.

[53] I recommend to correctional authorities that the accused be considered for any domestic violence or sexual offending counselling and therapy as may be available during his period of incarceration.

[54] Section 271 of the Code is a primary designated offence and s. 266 is a secondary designated offence. The accused shall submit such samples of his DNA as required. This shall apply to all counts.

[55] The accused shall comply with the registration provisions of the Sex Offender Information Registration Act for a period of 20 years.

[56] Pursuant to s. 738(1)(b) of the Criminal Code, the accused shall be the subject of a restitution order in favour of S.H. in the amount of $6,240.00. This accused shall have two years to satisfy this restitution order. This two year period shall begin to run upon the completion of the custodial sentence.

[57] Pursuant to s. 109(2) of the Criminal Code, the accused shall be subject to a weapons prohibition for a period of 10 years. Pursuant to s. 113 of the Code, the accused shall be entitled to possess firearms and ammunition for the purpose of subsistence hunting while under the direct supervision of a person lawfully entitled to possess firearms.

The Hon. Mr. Justice J.S. Fregeau Released: December 13, 2018