Court File and Parties
COURT FILE NO.: CR-17-70000661-0000 DATE: 20190517 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – B.Z.
Counsel: Craig A. Brannagan, counsel for the Crown Nathan Gorham, counsel for the Accused
HEARD: February 15, March 21 and April 10 2019
G. DOW, J.
REASONS FOR SENTENCING
[1] B.Z. proceeded to trial with a jury on October 9 to November 6, 2018. The jury reached a verdict on November 8, 2018 that B.Z. was guilty of:
a) Count 1 – sexual assault of S.L., contrary to Section 271 of the Criminal Code; and
b) Count 2 – unlawful confinement of S.L. contrary to Section 279 of the Criminal Code.
Background
[2] The circumstances giving rise to the guilty verdicts involves S.L. returning to Canada in 2016 from China. She came to resume her studies in the department of mathematics and studying statistics at the University of Toronto. S.L. sought a room to rent on the internet including reviewing photographs. She located a place near Yonge Street and Gerrard Street and began communicating with B.Z. who was the landlord. B.Z. resided on the same street, a few properties to the west.
[3] S.L., then aged 21, arrived at Pearson Airport on January 6, 2016. She proceeded to the premises with an acquaintance. She met B.Z., then aged 48, and obtained access to her residence. She testified becoming aware B.Z. was a University of Toronto graduate. She described him as friendly. She denied being sexually attracted to him.
[4] The next time she saw B.Z. she was asked by him to assist in removing leaves from the yard. In return, he would treat her to a meal. She responded that was not necessary. She viewed him as an elder to be respected.
[5] Both parties gave evidence that the internet or digital contact before the events giving rise to the charges included S.L.’s mother, a gynecologist residing in China, being in contact with B.Z. and requesting B.Z. to “look after” her daughter. He agreed.
[6] On January 9, 2016 S.L. exited her upper level room around noon and observed B.Z. on the main floor sorting books at her premises. She asked if she could help him and he accepted. This involved carrying some books down the street to B.Z.’s residence.
[7] Upon completing the movement of the books, B.Z. showed his place to S.L. and asked her to stay for lunch.
[8] A previously, partially consumed bottle of red wine was produced by B.Z. and S.L. accepted his offer of a glass or “cup”. B.Z. began questioning S.L. about what she was studying. S.L. testified feeling uncomfortable about the nature of the questions. She responded by questioning B.Z. about his family including children and being advised B.Z. had no children. During the lunch, S.L. consumed a second cup of red wine.
[9] As a courtesy, S.L. began to clean up and doing the dishes at the sink in the kitchen. She testified leaning forward and not paying attention to where B.Z. was situate.
[10] B.Z. began to hug her from behind. S.L. was shocked by this behaviour. She testified telling him to “stop doing this”. B.Z. turned her around while maintaining the hug and then lifted her off the ground in his arms and carried her to the bedroom.
[11] It is this evidence the Crown relied on in support of the forcible confinement offence under Section 279 of the Criminal Code.
[12] B.Z. testified he came over to the sink when S.L. held a glass up saying it was cracked. He could not see the crack but then she began smiling at him, holding his shoulder and telling him of stomach pain she was having. S.L. asked if she could lay down on his bed.
[13] S.L. testified after being put on B.Z.’s bed, he began removing her clothes, principally her stockings and underwear. He removed his pants and underwear. This was followed by B.Z. penetrating S.L.’s vagina with his penis and stroking back and forth until he ejaculated inside her. During this time, S.L. testified she asked him to stop. He did not.
[14] Following the assault, S.L. became concerned she would get pregnant and told B.Z. she needed the morning after pill. She testified his initial response was that he wanted a child as he was rich and had no one to inherit his antique furniture. At the risk of over simplifying, S.L. and B.Z. departed his residence a short time later and proceeded to a nearby Shoppers Drug Mart where B.Z. purchased the Plan B pill and a bottle of Centrum vitamins for S.L.. S.L. testified observing the vitamins as they proceeded to the check-out and felt she deserved them as a victim and being entitled to compensation.
[15] S.L. explained she was trying to get free from B.Z. and be safe but was aware he had a key to her residence. Her thinking in accompanying B.Z. to the Shoppers Drug Mart was that the street and the store were public places where it was unlikely anything further that was bad would occur. She admitted in cross-examination accepting B.Z.’s coat as they walked back from the Shoppers Drug Mart because she was cold. Upon returning to her residence, S.L. sent emails to friends in China and locally. S.L. also began an exchange of texts with B.Z. (marked in various forms as Exhibits 30, 31 and 52) regarding her need for a new laptop computer. This culminated in B.Z. offering to give S.L. his iPad. Upon making contact with friends later that evening, S.L. was persuaded to contact the police and called 911. B.Z. was arrested in the days following.
[16] It should be noted that B.Z. represented himself at trial. The court appointed an amicus who attempted to assist B.Z. during the trial. Further, the court appointed counsel to cross-examine S.L. pursuant to the provisions of Section 486.3 of the Criminal Code. Neither of those counsel were the current counsel that represented B.Z. during submissions on sentence.
[17] In a thorough and skilled cross-examination by counsel, S.L. rejected the suggestion that she asked to lay on B.Z.’s bed due to stomach pain and this led to kissing and consensual sexual intercourse. She admitted to a discussion and internet search after the sexual assault of the drug, dydrogesterone. This drug alleviates menstrual pain. This was done given her prior use of the medication and concerns whether it would impair the effectiveness of the Plan B pill.
[18] Counsel for the Crown sought a sentence of four to five years in total given the two verdicts. In addition, the following ancillary orders were sought, some of which are mandatory given the convictions involved are designated offences:
provision of a DNA sample pursuant to Section 487.051 of the Criminal Code;
prohibiting B.Z. from possessing those items identified in sub- section 109(2) (a) of the Criminal Code for 10 years after release from imprisonment and those items identified in sub-section 109(2)(b) of the Criminal Code for life;
registration of B.Z. under the Sex Offender Information Registration Act for 20 years in accordance with Section 490.012 of the Criminal Code;
prohibiting B.Z. from communicating with S.L. during the custodial period of the sentence in accordance with Section 743.21; and
restitution in the amount of $3,000.00 under Section 738(1)(b) with regard to the rent deposit paid by S.L. to B.Z. and not returned.
[19] Counsel for B.Z. submitted the appropriate sentence was at the low end of the range of 9 to 12 months. The ancillary orders were not contested except for the request for restitution in the amount of $3,000.00.
[20] Defence counsel also submitted that the conviction for forcible confinement should be stayed. This was based on the principle made clear in R. v. Kienapple, [1975] 1 S.C.R. 729 that the conduct upon which the offence was based formed an integral part of the conviction for sexual assault.
Mitigating and Aggravating Factors
[21] The mitigating factures begin with the now 51 year old defendant having no prior criminal record. B.Z. came to Canada in 2001 and attended the University of Toronto where he obtained Bachelor of Science with Honours and Masters of Mathematical Finance degrees by 2007. He had previously obtained an engineering degree in China.
[22] He maintained steady employment and was working with a major bank as a Senior IT Solutions Developer until shortly after these charges arose. Subsequent to his release, B.Z. has been on bail for more than three years without incident. Counsel for B.Z. also submitted the publication of his name by Toronto Police Services to determine if there were other victims should be considered public humiliation, particularly in the absence of any evidence that any other victims came forward and a mitigating factor.
[23] While acknowledging other factors raised do not amount to mitigating factors, the absence of any physical injuries was raised. In response to that, Crown Counsel noted the victim impact statement, translated from Mandarin, spoke of significant emotional trauma including feelings of isolation, and the lack of ability to trust oneself. It should be noted that submissions were made to both to the reliability of the victim impact statement given S.L. testified at trial about how the experience affected her. Her evidence at trial was far less detailed. I have only repeated what I have found to be consistent with the evidence at trial. It would also be appropriate to note that society and judges are now alert to avoid any pre-conceived ideas about how victims of sexual assault will react. There is no particular way to react. Each victim reacts in a way unique to them. This can be positive or negative to their coping with what has occurred and the extent and manner in which recovery is possible.
[24] Regarding aggravating factors, in order to have convicted B.Z., the jury must have concluded B.Z. had non-consensual, sexual activity with S.L. It should be noted that contrary to what was suggested to S.L. by B.Z.’s counsel (appointed by the court to cross-examine S.L. that there was consensual sexual intercourse), B.Z. gave evidence that there was no vaginal penetration. Instead, B.Z. testified S.L. used her hand and mouth to cause B.Z. to ejaculate. The results of DNA testing of a sample from inside S.L.’s vagina taken subsequently, concluded the random match probability that B.Z. could not be excluded to be 1 in 2.4 quintillion. According to B.Z., this resulted from S.L. placing her semen covered fingers into her vagina subsequent to his ejaculating on them as part of “pleasing herself”.
[25] The Crown described the conduct of B.Z. in agreeing to S.L.’s mother’s request to “take care” of S.L., and sexually assaulting her within three days of meeting her for the first time as akin to grooming. I disagree. To the extent the Crown described this behaviour as disturbing, I agree. I also agree this sexual assault was inherently violent and violated S.L.’s safety, privacy and the sanctity of her body. Intercourse without a condom and ejaculating inside S.L. as described by her exposed her to pregnancy and perhaps disease. These are aggravating factors which defence counsel acknowledged.
[26] The use of alcohol, in an attempt to get S.L. to, as stated by the Crown “lower her guard” is disturbing. B.Z.’s statement about being rich and having a child for an inheritance in response to S.L.’s concern about getting pregnant is also of concern. It is lessened by the subsequent conduct of accompanying her to the Shoppers Drug Mart and purchasing the Plan B pill for her.
[27] The Crown also raised B.Z. being a landlord to S.L. and agreeing to S.L.’s mother’s request to look after her as being a person in a position of trust or authority as an aggravating factor under Section 718.2(a)(iii). I do not agree. B.Z. stated, in addition to the submissions made by his counsel, that the agreement to “look after” someone in the Chinese culture does not take on the depth of commitment the Crown seeks to infer. This raises a concern which I am unable to resolve and do not include it as an aggravating factor.
[28] The pre-sentence report contained comments raised by defence counsel as not relevant and inadmissible based on contested facts. This included opinions that B.Z. was not forthcoming, difficult to engage, and engaged in victim shaming. Further, B.Z., although a first time offender, was unsuitable for community supervision. The Crown relied on Section 721(3)(a) which includes the direction that the report deal with the offenders “character, behaviour” and “attitude”. However, Crown counsel acknowledged the adoption by Justice Trotter (as he then was) in R. v. Green, 2006 ONCJ 364 (at paragraph 13) that the investigator’s impressions of the facts or the offenders role in it should be disregarded in sentencing. I agree and am ignoring those comments as identified to me by B.Z.’s counsel.
[29] Further, the pre-sentence report raised B.Z.’s lack of remorse and assertion he had been framed and seduced by S.L. I noted to counsel my conclusion on prior occasions and reliance on an offender’s ongoing denial of what the jury found to have occurred as not appropriate to treat as an aggravating factor. I raised with counsel and repeat my agreement with the statement in R. v. Valentini et al, [1999] O.J. No. 251 that, (at paragraph 83) “to treat lack of remorse as an aggravating factor in those circumstances, comes close to increasing the sentence because the accused exercised his right to make full answer and defence”.
The Law
[30] In support of the submissions of a sentence at the low end of a 9 to 12 month range, defence counsel repeatedly relied on the decision in R. v. Garrett, 2014 ONCA 734, where the Crown’s appeal on conviction was allowed and Mr. Garrett’s sentence of 90 days to be served intermittently plus two years of probation was increased to 18 months. The factual matrix of a meal and alcohol was submitted as comparable. In my view, there are significant distinguishing features to the factual matrix in that case which do not support B.Z.’s position. This includes:
a) consensual kissing and holding hands after dinner, drinks and “generally” a “good time” (at paragraph 2);
b) returning to the complainant’s apartment with more consensual kissing on the sofa; and
c) in sentencing, “glowing character letters describing him as a gentlemen” (at paragraph 9).
[31] In addition, the court concludes the sentence imposed “should not be taken as a sentence within the appropriate or usual range” (at paragraph 23). In addition, the court notes sexual assault “constitutes demeaning behaviour and contemptuous disregard for the personal integrity of the complainant and engages the predominant sentencing principles of denunciation and deterrence” (at paragraph 19).
[32] I was referred to a variety of decisions and sentences for sexual assaults by counsel for B.Z. in support of his position. In R. v. Pecoskie, [2002] O.J. No. 4056, the conditional sentence of two years less a day with 180 hours of community service work was not altered. However, the Court of Appeal stated “we would not necessarily have imposed” that sentence (at paragraph 15).
[33] In R. v. Nikkanen, [1999] O.J. No. 3822, the sentence of 18 months plus three years probation was not disturbed. The Court of Appeal cited the offender being married with three teenage children, with the eldest planning to attend College the next year. The offender was a self-employed contractor. The Court described “disastrous financial results” being possible which differs markedly from what has been presented to me.
[34] In R. v. Killam, [1999] O.J. No. 4289, the sentence of two years less a day was not altered. It was noteworthy the defender was only 20 years old at the time of the offence and fresh evidence at the sentencing confirming the positive direction of his post offence lifestyle in continuing his education, obtaining a good full time job, seeing his infant daughter regularly and increasing his support payments to her. Despite same, the Court of Appeal expressed “considerable doubt a conditional sentence could adequately reflect the gravity of this offence and send the proper denunciatory message to the public” (at paragraph 14). Justice Doherty also states “I might even go so far as to say a period of incarceration would have been more appropriate” (at paragraph 16).
[35] In R. v. Hughes, 2017 ONCA 814, a sentence of 18 months was not altered. That matter involved two University students with the sexual assault occurring in a dormitory. I consider this a significant distinguishing factor to the factual matrix before me.
[36] The decision of R. v. McKenzie, 2017 ONCA 128 and R. v. Crespo, 2016 ONCA 454 both raised immigration consequences which are distinguishable to the situation before me. Further, in R. v. McKenzie, supra there was neither vaginal intercourse nor ejaculation. In R. v. Crespo, supra those involved “were all heavily intoxicated” and the victim had passed out on the floor of the offender’s bedroom for some time before being awakened by the offender having sex with her. The victim pushed the offender off her upon awakening and he left the room. This, in my view, distinguishes the case from the circumstances before me.
[37] In R. v. Colbourne, 2013 ONCA 308, the sentence of 14 months was upheld. Again, those involved spent the “evening drinking at a bar” (at paragraph 2). The complainant vomited in the driveway of the offender’s home after leaving the bar. The complainant recused herself from the room “where the party was ongoing” (at paragraph 4) to a bedroom where she was sleeping. She testified being asleep “when she felt a dark figure over top of her” (at paragraph 5) and pressure in her vaginal and pelvic areas. This distinguishes the situation from the circumstances before me.
[38] In R. v. J.R., 2008 ONCA 200, the sentence of two years was upheld for one offender (J.D.) and reduced by one day from two years for the other offender (J.R.). It involved “gang sexual assault” (at paragraph 1) with the complainant having no memory of sexual intercourse the day following due to the consumption of alcohol and drugs. The court engaged in a comparison of the two offenders different circumstances and agree they should not have received the same sentence. These circumstances distinguish it from the factual matrix before me.
[39] Finally, in R. v. R.D.C., [2005] O.J. No. 2922, a sentence of two years less a day plus three years’ probation was not altered. In that case, the Court of Appeal noted the offender “supported his common law spouse and child and that incarcerating him in jail would disrupt his employment and family life” (at paragraph 4). These circumstances differ from the situation before me.
[40] To the contrary, the Crown relied on five decisions:
(a) R. v. Bradley 2008 ONCA 179;
(d) R. v. Mitrovic, 2017 ONCA 1829; and
(e) R. v. Zhao, [2013] O.J. No. 6105.
[41] These decisions describe a range of three to five years as appropriate. The decision of R. v. Mitrovic, supra is helpful with regard to reference to comments about the decisions in R. v. Colbourne and R. v. Garrett which are described as “anomalous and turn on their own facts. They are outside of the appropriate range of sentence on the facts at issue here” (at paragraph 39).
[42] Regarding the submission that the conviction for forcible confinement should be stayed, counsel for B.Z. relied on R. v. D.(S.), [1992] O.J. No. 1848. That matter involved six offenders confining and sexually assaulting the complainant over three days. The court concluded the “forcible confinement occurred during the sexual assault and cannot be separated from them” (at paragraph 15). As noted previously, the forcible confinement relied on by the Crown and as stated in the charge to the Jury in this matter arose from the conduct of B.Z. at the kitchen sink. The facts in support of the sexual assault relied on was what occurred on B.Z.’s bed. The conduct of B.Z., which must have been accepted by the Jury in order to convict him of the forcible confinement offence included a sexual assault. Had the conduct of B.Z. ended after he lifted her off the ground and he was convicted of both offences, I would agree with the submission of counsel for B.Z. However, B.Z.’s conduct did not end at that point and thus I do not agree with this submission and reject this request.
[43] In my analysis to determine the appropriate sentence, there are guiding principles I must consider. The first is the fundamental purpose of sentencing found in Section 718 of the Criminal Code and the need to protect society as part of demonstrating a need for respect for the law and the maintenance of a just, peaceful and safe society by imposing a sentence in order to achieve different objectives. It sets out objectives which balance the need for denunciation of unlawful conduct, deterrence to the offender and other persons and, assisting in rehabilitating offenders.
[44] The fundamental principle is the requirement for proportionality as set out in Section 718.1 of the Criminal Code. That is, the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[45] Second, what is described as the parity principle contained in Section 718.2 (b) of the Criminal Code. That is, the sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. This must be addressed cognizant of each crime being committed in unique circumstances by an individual with a unique background.
[46] A third guiding principle is the totality principle as set out in Section 718.2 (c) of the Criminal Code. This addresses where there are multiple offences and the possibility of consecutive sentences and that the combined effect should not be unduly long or harsh.
[47] A fourth guiding principle is that of restraint as reflected in Section 718.2 (d) and (e) of the Criminal Code, where, as here, incarceration is contemplated as opposed to all other available sanctions.
Conclusion
[48] The request to stay the conviction of forcible confinement is denied.
[49] It is clear to me what occurred requires a sentence reflecting the guiding principles of Sections 718, 718.1 and 718.2 of the Criminal Code as I have summarized. I am unable to agree with counsel for B.Z. that 9 to 12 months would fulfil those principles. This was a serious sexual assault involving vaginal intercourse without a condom and ejaculation. It went far beyond the conduct reviewed by the Court of Appeal in the decisions provided by the offender. I have determined, after long and careful thought, a sentence of 42 months properly balances the objectives of denunciation, general and specific deterrence and the prospect of rehabilitation. This sentence combines both convictions which shall be served concurrently. It reflects both the aggravating and mitigating factors I have detailed along with assisting B.Z. in his rehabilitation.
[50] The ancillary orders sought by the Crown shall also form part of this sentence except for restitution of $3,000.00. I was not satisfied upon review of the evidence of the precise amount that could be ordered repaid. This is both with regard to the amount of time the unit was not available to B.Z. to re-rent the premises and the precise amount paid to him and not returned.
Mr. Justice G. Dow
Released: May 17, 2019