COURT FILE NO.: YC-16-80000008-0000
DATE: 20190618
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
R.D.M.
Defendant
Cara Sweeny, for the Crown
Lisa Jorgensen, for the Defendant
HEARD: March 21, 2019
REASONS FOR SENTENCE
B. P. O’MARRA, j.
overview
[1] R.D.M. has been found guilty of sexual assault while armed with a knife, robbery and threatening death contrary to ss. 272(d), 272(a), 343(d), and 264.1(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46 [CC], as it appeared on August 17, 1990. The offences occurred on that date. The incident involved two perpetrators. The victim was a sex trade worker. R.D.M. was 17 years and 4 months old at the time. He is now 46 years of age. He has accumulated an extensive criminal record after these offences occurred. The Crown has applied for an adult sentence. The defence seeks a sentence disposition under the Youth Criminal Justice Act, S.C. 2002, c. 1 [YCJA].
[2] These are my reasons for sentence.
THE FACTS
[3] In my reasons for judgment reported at 2018 ONSC 5358, I reviewed the evidence in detail and set out why I was satisfied beyond a reasonable doubt that all of the offences had been proven beyond a reasonable doubt. I will now refer to portions of those reasons as the factual basis for sentence:
2 At the time of the alleged offences S.W. was a prostitute who worked in the Church and Carlton Streets area in Toronto. S.W. could not identify either of the attackers in August 1990 or at this trial in June 2018. The Crown’s case rests most significantly on DNA evidence found on the underwear S.W. wore when she was attacked. R.D.M. could not be excluded as the donor of that DNA. R.D.M. did not testify. He had no obligation to do so, or to prove anything at this trial.
3 The defence challenged the reliability of S.W.’s evidence on certain crucial issues, including her interaction with clients before the attack and the state of her clothing. The defence also challenged the clothing’s chain of continuity, specifically the underwear, in the months and years following the attack before the DNA evidence implicating R.D.M. was detected.
4 S.W. was 49 years old when she testified at trial. She has lived in western Canada for some 27 years. She is employed in construction. She lives in a common law relationship and has two adult children ages 24 and 22 years-old.
5 In August 1990 S.W. lived in downtown Toronto. She worked for an escort service in addition to prostituting herself. She lived in a large rooming house located a short cab ride from the Church and Carlton intersection where she usually worked. Her boyfriend, Richard, lived on Spadina Avenue.
6 In August 1990 S.W. only had unprotected sex with Richard. If she was menstruating she would not have sex with Richard but would do so with customers.
7 She worked for an escort agency and also independently on Thursday to Saturday nights inclusive.
8 When S.W. had sex with a client she usually kept some clothes on in case she had to leave quickly. It was not safe to have all her clothes off and she rarely did so.
9 S.W. always required that her clients used two condoms, even for oral sex. She would put each condom on separately. After the fact she sometimes removed them and put them in the trash.
10 On the evening of August 16, 1990 S.W. started work at about 10:00 p.m. at the corner of Church and Carlton. On that night S.W. was alone, except for a few other sex workers in the area. S.W. stood near a bus stop in a bright area where she felt comfortable. She could see Maple Leaf Gardens (as it then was) from where she stood. She wore a skirt, top, black stiletto heels, and underwear. She could not recall whether she wore a bra.
12 S.W. testified that she dealt consensually with three customers on the evening of August 16 and into the early hours of August 17 before the alleged sexual attacks.
21 After the third customer dropped her off S.W. reached into her purse for a cigarette when she was attacked. The lighting was not very good. Her attacker began to drag her and she “just started freaking out”. He dragged her to a parking lot. She had never been to the spot where she was dragged. It was dirty and dark. There were vehicles on either side of her. She could no longer see the street. She could not see any people or vehicular traffic around. Her attacker told her not to scream or move. She saw a knife in his hand. He threatened to hurt her if she screamed or tried to get away. He put the knife to her throat lengthwise. He kept threatening her and “messing” with her clothes. She could not recall whether he took off all of her clothes. He took off enough for the sexual intercourse that followed. He whistled and another man approached them. She described the first attacker as the “blonde”. She saw his hair colour as she struggled. The blonde and the other man took turns raping her. The blonde raped her first. During the attack, both men kept threatening her with knives. While one man raped her the other held a knife to her throat. The first man forced his penis into her vagina while he stood behind her, and while she was on her hands and knees. She guessed that this rape lasted for 15 minutes or so. He ejaculated. She felt “stuff” running down her leg. The men then switched places and the second man forced himself on her. She kept her eyes squeezed shut as she feared her attackers would hurt her more if she looked at them. The blonde held a knife against her throat during the second rape. The second man also ejaculated.
22 S.W. testified that the two attackers passed the knife that they used to threaten her back and forth between them. She was referred to her evidence at the Preliminary Hearing where she indicated that there were two knives, rather than one passed back and forth. She now believed there was one knife and not two, but was not sure. She referred to the position she was in and the difficulty in making her observations.
23 Aside from the threats she heard the two men talk to each other during the attacks. She had never seen either of the attackers before. When the second man finished S.W. said she was “full of blood”. She was not sure whether she bled from being cut or from menstruating. She tried to “get herself together” and figure out how to escape. There was blood on the ground when she tried to get up. She was not sure if her attackers would allow her to move.
24 Both men proceeded to have vaginal sex with her a second time. The blonde was first. He was unable to penetrate her and the other man laughed at him. The second man then raped her again. She cannot recall whether he ejaculated that time.
25 S.W. testified that she was sure that the blonde ejaculated the first time. She could feel “stuff” running down her leg, heard noises as he did “it”, and felt “it” inside her. She denied that she could not say whether there was ejaculation in the first sexual incident. She was also certain that the second man ejaculated inside her.
26 S.W. did not know how she avoided being cut on the neck during these incidents.
27 S.W. testified that she was on her hands and knees during the sexual attacks. She also said “they had me on the ground in every way”. She was referred in cross-examination to her evidence at the Preliminary Hearing when she indicated the following positions during the attacks:
“they were laying on top of me”; and
“at one point they had me up against a car”.
28 At trial S.W. testified that she gave those answers at the Preliminary Hearing. She stated that she must have been forced into several different positions and now had no clear memory. In re-examination counsel referred S.W. to her August 1990 police statement in which she stated: “they sat me up on the trunk of the car.”
29 S.W. kept some money in the insole of one of the black stiletto shoes she wore that night. She had approximately $600 from the three customers she dealt with before being attacked. The blonde found the money. The two men counted it and said words to the effect “looks like you had a good evening”. They took some of the money and returned the rest, about $100, to her.
30 The two men also looked at the contents of S.W.’s purse. She does not recall if they took anything else. When they found a pager they asked if she was “a cop or something”. She told them if she was a cop they would probably be dead because she would have had a gun (or words to that effect). Her purse contained cigarettes, a lighter, and condoms.
32 The second man told the blonde to “get out of there”. She feared that he intended to kill her as he said they “can’t let her get away” and that she would “go to the cops” and not stay quiet. The blonde told him “its more trouble if we do . . . this is just raping her and let’s get out of here”. One of the men pinned her head to the ground and told her not to move. She then heard footsteps going away.
33 The only names she heard mentioned by the two attackers were “Buddy” and “Steve”.
34 S.W. then opened her eyes and looked around. She grabbed her skirt and shirt. The skirt was near a car. She dressed herself. She agreed that her underwear may have been off and on the ground before she put it back on. She ran onto the street, flagged a taxi, and went to the hospital immediately.
36 At the hospital S.W. said she had been raped. She was taken to a second hospital. She spoke to a woman who examined her and explained the rape kit process. The hospital staff kept her clothes and gave her fresh clothes to wear home.
39 In 2014 the RCMP contacted S.W. She had no idea why they would contact her. The police told her that they had found DNA related to the 1990 incidents. She did not know anyone named R.D.M.
53 Staff Sergeant John has been a TPS [Toronto Police Service] member for 27 years. In June 2002 she worked in the sexual assault squad as one of three members assigned to the cold case unit. At that time, the DNA databank had been created and cases that had not yet been submitted for DNA analysis were being revisited.
54 On June 26, 2002 Detective Mori advised Officer John that the underwear held by TPS related to S.W.’s case was to be submitted to the CFS [Center of Forensic Sciences]. Officer John retrieved the sexual assault kit box from property storage at the sexual assault squad building. The box contained a number of bagged items. She seized item “1C” listed as a pair of underwear in a brown paper bag. She placed the brown paper bag into a property bag, noting a corresponding number in her log book. She submitted the sealed paper bag and underwear to the CFS on June 27, 2002.
55 On September 5, 2002 Officer John received a report from the CFS indicating that DNA had been detected on the underwear. The case was refiled for investigation.
56 On October 16, 2002 Officer John attended the CFS and retrieved items relating to various cases, including the paper bag with the underwear from this case.
THE DNA EVIDENCE
58 Melissa Kell is a forensic biologist at the CFS. The defence conceded that she is qualified to give opinion evidence as an expert related to the examination and interpretation of bodily fluids and DNA analysis. She first became involved in this case when it was assigned to her in 2002. This assignment was part of a sexual assault cold case program in partnership with TPS to re-evaluate cases and utilize the DNA databank that was now available. The critical item Ms. Kell examined was S.W.’s underwear, which she provided to police on August 17, 1990.
59 Staff received the underwear at the CFS on June 27, 2002 in a box with seals and identifiers. Officer John delivered the box. Based on the case history the CFS staff examined the underwear for semen.
60 The first examination step involved a chemical test to try and localize areas on the underwear to test further for sperm, which is the cell component of semen. Based on that test a portion of the crotch area of the underwear was cut out to be examined microscopically for sperm cells. A further test confirmed that sperm cells were present. A DNA profile can be obtained from such a sample.
62 There was ample DNA in the sperm cell sample to generate a profile. The DNA profile from the sperm contained a mixture of at least two males. There was a major and minor DNA profile suitable for comparison. There was nothing in the profile to indicate more than two males present. Both profiles had enough DNA information to qualify for upload into the DNA databank.
63 Once the examination was complete the underwear was packaged and resealed to be sent back to the submitter. The DNA extracted from the cut out was stored at the lab and was available for further testing at a later date. The submission form in this case indicated that the underwear was packaged for return in September 2002. The DNA was stored at the laboratory and further tests were done.
65 On June 30, 2016 the CFS staff received a reference or comparison sample of blood related to this case. The sample was used to generate a DNA profile to compare to any of the DNA profiles in this case. A DNA profile was generated from the blood and compared to the DNA profile obtained from the underwear. The blood sample was submitted with a coded identifier rather than a name. Comparison samples coming in from persons of interest or consenting persons are given a code so their name is not associated with any DNA profile. If there is an exclusion that link is broken so that the name is not connected to the DNA profile. The blood sample submitted on June 30, 2016 was later confirmed to be from R.D.M. There is no dispute at this trial that the comparison sample came from him.
66 In July 2016 Ms. Kell reported that R.D.M. cannot be excluded as a source of the major profile from the underwear cut out. The probability of a randomly selected person unrelated to R.D.M. sharing this DNA profile was 1 in 26 trillion. Her report, dated July 18, 2016, was filed as an exhibit on consent.
75 S.W. has described a particularly vicious sexual attack by two knife-wielding men. She testified that she was raped multiple times, threatened, and robbed. These allegations relate to events that occurred over 28 years ago. S.W. could not identify either of the attackers then or at trial in 2018. The overarching issue in this case is identity. The case against R.D.M. is circumstantial.
76 Based on Melissa Kell’s DNA evidence the defence does not dispute that the accused’s semen was found in the crotch area of the complainant’s underwear.
83 The DNA evidence from the semen in the crotch area of her underwear indicates a major and minor contributor. R.D.M. is effectively identified as the major contributor. The location and amount of DNA material in these circumstances is significant circumstantial evidence that R.D.M. was one of S.W.’s attackers.
86 I do not see a basis on the evidence to find an exculpatory hypothesis as to how R.D.M’s semen was deposited on that garment in that location other than direct sexual contact.
87 [The only rational inference that can be drawn from the circumstantial evidence] is that R.D.M. was one of the two armed attackers who raped, threatened, and robbed S.W.
POSITION OF THE PARTIES
[4] The Crown submits that R.D.M. should be sentenced as an adult and suggests a term of 10 years in custody.
[5] The defence submits that R.D.M. should be sentenced under the YCJA to the maximum, which would be 16 months in custody followed by 8 months under a supervision order. If R.D.M. is to be sentenced as an adult, the defence suggests a term of 3 years in custody.
APPLICATION BY THE CROWN FOR AN ADULT SENTENCE
[6] As of the date of these offences, R.D.M. was a “young person” as defined in s. 2 of the YCJA. The Crown has applied pursuant to s. 72 of the YCJA for the imposition of an adult sentence. That section sets out the test and onus to be applied as follows:
Order of adult sentence
72 (1) The youth justice court shall order that an adult sentence be imposed if it is satisfied that
(a) the presumption of diminished moral blameworthiness or culpability of the young person is rebutted; and
(b) a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38 would not be of sufficient length to hold the young person accountable for his or her offending behaviour.
Order of youth sentence
(1.1) If the youth justice court is not satisfied that an order should be made under subsection (1), it shall order that the young person is not liable to an adult sentence and that a youth sentence must be imposed.
Onus
(2) The onus of satisfying the youth justice court as to the matters referred to in subsection (1) is on the Attorney General.
Pre-sentence report
(3) In making an order under subsection (1) or (1.1), the youth justice court shall consider the pre-sentence report.
Court to state reasons
(4) When the youth justice court makes an order under this section, it shall state the reasons for its decision.
Appeal
(5) For the purposes of an appeal in accordance with section 37, an order under subsection (1) or (1.1) is part of the sentence.
[7] Section 38 of the YCJA sets out the purpose and principles related to youth sentences. Section 3(1)(b)(ii) of the YCJA provides that the criminal justice system for young persons must be separate from that of adults based on the principle of “diminished moral blameworthiness or culpability” and must emphasize “fair and proportionate accountability that is consistent with greater dependency of young persons and their reduced level of maturity.”
[8] These two preconditions for an adult sentence were explained by the Court of Appeal for Ontario in R. v. M.(W.), 2017 ONCA 22, 134 O.R. (3d) 1, leave to appeal to S.C.C. refused 37480 (June 15, 2017). In that case, three young persons were convicted of first degree murder. The trial judge allowed the Crown application to sentence them as adults. The shooter did not appeal, but the other two accused sought dispositions under the YCJA. On appeal, the adult sentences were set aside and youth sentences were imposed. At paras. 94, 95, 97, 98, 101, 103, 104 and 112, the Court held as follows:
(1) For there to be an adult sentence, the Crown must (i) overcome the presumption that young people start from a position of lesser maturity, moral sophistication, and capacity for independent judgment than adults and (ii) satisfy the youth court that a sentence under the YCJA would not be sufficient to hold the offender accountable for his or her criminal conduct.
(2) In terms of the presumption, the focus must be on the issue of maturity. The Crown must satisfy the Court that the young person demonstrated the level of maturity, moral sophistication and capacity for independent judgment of an adult such that an adult sentence and adult principles of sentencing should apply. The seriousness of the offence must be considered in determining whether the Crown has rebutted the presumption. However, the seriousness of the offence does not, by itself, lead to the conclusion that an adult sentence must be imposed. There must be an analysis of the level of moral judgment or sophistication demonstrated in the planning and implementation of the offence and the young person’s role in carrying out the offence.
(3) In terms of accountability, the accountability analysis necessarily involves consideration of proportionality and rehabilitation, with rehabilitation being “subject to” the proportionality principle. Under s. 38 of the YCJA, consideration must be given to the sentence that has the greatest chance to rehabilitate the young person. Accountability in the YCJA context is the equivalent to the adult sentencing principle of retribution. That requires the imposition of a just and appropriate punishment, and nothing more.
(4) The Court must undertake a separate analysis for each of the two preconditions for an adult sentence. They are related but distinct questions. A central premise of the YCJA is that adolescents’ lesser maturity should affect the extent to which they are held accountable for criminal conduct. This premise connects the presumption’s focus on maturity with the determination of accountability.
BACKGROUND OF THE ACCUSED
[9] R.D.M. is now 46 years old. At the time of the offences on August 17, 1990 he was 17 years and 4 months old. His biological parents and stepfather had substance abuse issues. His stepfather was physically abusive towards him and his brother. From the age of 7 years, R.D.M. lived in the foster care system in several areas of Ontario until his late teens. On supervised visits with his mother, he observed that she had injuries inflicted by his stepfather. He experienced abuse and conflict in some of his foster home placements.
[10] R.D.M. has been in a relationship since April 2017. He lives with his 38-year-old spouse and their 9-month-old daughter. His spouse is currently on a maternity leave from her employment as a personal support worker. She was very surprised to learn about the current charges and convictions. She describes R.D.M. as hard-working, honest, loving, caring and very talented. She says he is a great partner, father and friend. The trial process and convictions have been very upsetting and stressful to them both, especially the financial strain due to legal costs. She is committed to support R.D.M. and they plan to have a future together.
[11] R.D.M. has 4 adult sons from two prior relationships. His 23-year-old son lives at the home shared by R.D.M., his spouse and daughter. In November 2018, his son attempted suicide and was hospitalized for approximately three weeks.
[12] R.D.M. had another long-term relationship of four years prior to his current one.
[13] The pre-sentence report refers to a serious substance abuse issue related to alcohol. This had negative impacts on his family relationships and employment. He claims he has abstained for several years now.
[14] R.D.M. is self-employed. His primary source of income is profit from the sale of homes he has purchased and renovated.
THE CRIMINAL RECORD OF THE ACCUSED
[15] The accused accumulated an extensive criminal record including crimes of violence, dishonesty, breaches of court order and drugs. All of the convictions are dated after the offence date for which he will now be sentenced. The particulars of the criminal record are as follows:
1991-08-12 Toronto ON (Youth Court)
(1) Robbery (2) Aggravated assault Section 268 CC
(1-2) 12 months secure custody and 3 months open custody on each charge concurrent. 1992-05-13 – sentence varied on review to 10 months secure custody and 5 months open custody on each charge concurrent.
1991-12-11 Newcastle ON
(1) Fail to comply with recognizance Section 145(3) CC (2) Obstruct peace officer Section 129(a) CC
(1-2) 3 days on each charge concurrent.
1992-09-28 Sault Ste. Marie
Possession of property obtained by crime Section 354 CC
60 days
1992-10-27 Hamilton ON
Escape lawful custody Section 145(1)(a) CC
2 months consecutive to sentence serving
1994-01-25 Collingwood ON
Theft over $1000 Section 334(a) CC
60 days (time served 28 days)
1994-02-16 Oshawa ON
(1) Theft over $1000 Section 334 (a) CC (2) Possession of property obtained by crime over $1000 Section 354 CC
(1) 4 months concurrent with sentence serving and probation 12 months (2) 2 months concurrent and probation 12 months
1995-10-10 Oshawa ON
Possession of narcotic Section 3(1) Narcotic Control Act, R.S.C. 1985, c. N-1, as repealed by Controlled Drugs and Substances Act, S.C. 1996, c. 19 [CDS Act].
Suspended sentence and probation 6 months
1996-08-22 Hamilton ON
(1) Assault with a weapon Section 267 CC (2) Assault Section 266 CC
(1) 60 days and probation 1 year (2) 30 days concurrent
1998-09-21 Hamilton ON
(1) Assault with a weapon Section 267 CC (2) Fail to comply with recognizance Section 145(3) CC
(1) 2 months and probation 2 years and (1 month pre-sentence custody) and prohibited firearms, ammunition or explosive substances for 10 years (2) 1 day consecutive.
2000-11-06 Hamilton ON
Fail to comply with probation order Section 733.1(1) CC
Suspended sentence and probation 2 years and (3 days pre-sentence custody)
2001-11-07 Hamilton ON
Obstruct peace officer Section 129(a) CC
3 months conditional sentence order and probation 3 years
2003-08-12 Hamilton ON
Criminal harassment Section 264(2) (b) CC
45 days and probation 3 years and (66 days pre-sentence custody) and discretionary prohibition order Section 110 CC for 10 years
2005-05-03 Hamilton ON
Fail to comply with probation order Section 733.1(1) CC
7 days and (3 days pre-sentence custody)
2011-04-15 Hamilton ON
Uttering forged document Section 368(1) (a) CC
Suspended sentence and probation 14 months
2014-07-09 Hamilton ON
(1) Produce a scheduled substance Section 7(1) CDS Act
(2) Possession of a scheduled substance Section 4(1) CDS Act
(1) 9 months conditional sentence and mandatory weapons prohibition Section 109 CC
(2) 9 months conditional sentence conc.
VICTIM IMPACT EVIDENCE
[16] S.W. referred to the impact of these terrible crimes from August 1990 as follows in a statement filed on sentence:
Emotional Loss
• The trial in Ontario was retriggering and was terrifying just walking to the court house from the hotel
• Extreme hyper-vigilance when outside of my home and I am always scanning my environment in fear, in constant state of alert
• Sensitive startle response to unexpected sounds, causing me to jump out of my skin
• Sleep disturbances and nightmares
• Very uncomfortable with physical contact as well as intimacy
• No appetite and difficulty keeping food down which has caused drastic weight loss
• Difficulty concentrating, memory difficulties
• Depression which causes difficulty motivation myself to do the simplest tasks like getting out of bed or making a phone call
• Trusting others has become difficult which has created social isolation
• Frequent flashbacks 2-3 times/day which are unexpected and caused by unknown triggers
• Leading up to the trial, I was forced to remember details and since remembering, I can’t seem to get these memories out of my head
• Panic attacks
• A feeling that I am not safe in this world
• Sometimes I wish I would disappear (would never end it, due to husband and kids) but feel a sense of having no way out some days
Physical Injury
• Frequent illness due to many emotional impacts listed above
Financial Impact
• Had to turn down work to the trial and also had to tell my employer the reasons why in order to get time off which violates my own privacy
• Had to turn down jobs prior to the trial
I once lost my place to live because my roommate could hear me when I had nightmares and he couldn’t handle it and I had to find a new place to live. People I live with have a hard time emotionally, dealing with my nightmares and paranoia.
SHOULD THERE BE AN ADULT SENTENCE?
[17] The two-part test in this case must be assessed bearing in mind the following:
(1) R.D.M. was 8 months shy of being viewed as an adult in the eyes of the law when he committed these crimes; and
(2) There is no factual or inferential basis to distinguish between the acts of R.D.M. and his unidentified co-perpetrator. There was no leader and follower. Both were equally involved.
[18] I am satisfied that the first precondition to imposing an adult sentence has been fulfilled, that is, the presumption of diminished moral blameworthiness has been rebutted in this case. The attack on the victim was not sophisticated but it was also not spontaneous, or impulsive. The concerted actions of the two culprits, including the brandishing of one or two knives, is evidence that they went to the area equipped and ready to inflict sexual violence and robbery. Furthermore, the area was one known for prostitution; the victim was targeted in the circumstances as a vulnerable person who could be sexually assaulted and robbed. The facts demonstrate the perpetrators knew she was a prostitute, as when they robbed her, one of them said “looks like you had a good evening.” They dragged the victim to a parking lot to carry out the attack, which was an area not visible from the street and at a distance from potential witnesses. In addition, the actions of the perpetrators following the sexual violence supports moral judgment or sophistication similar to that of an adult as rather than immediately fleeing the scene, they took the time to rob the victim and discuss “not letting her get away”. They ultimately decided against it, judging it would result in “more trouble” for them.
[19] Although the evidence does not suggest that R.D.M. took on a leading role in the commission of the crime, both perpetrators played an equally significant role. The joint planning in bringing a knife, targeting a vulnerable victim, carrying out the attack in a secluded place away from witnesses, taking the time to rob the victim instead of immediately fleeing, and debating but declining to commit a more serious offence by not letting their victim “get away” all support a level of maturity, independent judgment, and foresight similar to that of an adult. Moreover, R.D.M. was chronologically very close to the adult age of 18 years at the time of the offence.
[20] I am also satisfied that there is no disposition available under the YCJA that would be of sufficient length to hold R.D.M. accountable for his crimes. The sexual attacks at knifepoint, including threats and robbery, were egregious. The threats caused the victim to fear for her life. The perpetrators sexually assaulted the victim numerous times and did not use a condom, potentially exposing her to sexually transmitted diseases. Then, while their victim was lying on the ground after being sexually assaulted, the perpetrators threw money at her and discussed not letting her “get away”. Any assessment of accountability must factor in these aggravating circumstances.
[21] Potentially in favour of a youth sentence are the factors of rehabilitation and reintegration. R.D.M. is 46 years of age and has arguably reintegrated into society, as demonstrated by his previous four year-long romantic relationship, his current romantic relationship, and his current self-employment. However, even taking these factors at their best, rehabilitation and reintegration are not determinative of the accountability inquiry: R. v. Ellacott, 2017 ONCA 681, at para. 36, citing R. v. O.(A.), 2007 ONCA 144, 84 O.R. (3d) 561, at para. 57. A custodial disposition of 16 months and a supervision order for 8 months would not be proportionate in this case and would not approximate the accountability due on these facts.
[22] As a result, an adult sentence should be imposed.
AGGRAVATING FACTORS
[23] These crimes involved two men, armed with a knife, who repeatedly raped, robbed and threatened a very vulnerable victim. They caused bodily harm and harsh indignity to her in the course of protracted sexual assaults. The impact on the victim is severe and continues to this day, years after the crimes occurred.
[24] R.D.M. has accumulated an extensive criminal record, all of it since the offences were committed in August 1990. They are not prior convictions that would otherwise support an increased sentence based on well-established principles. However, he is not Jean Valjean who stole a loaf of bread long ago and has led an exemplary life since. In my view his record of convictions since 1990 are of some limited relevance on the issue of prospects for rehabilitation.
MITIGATING FACTORS
[25] R.D.M. had a difficult childhood and adolescence. He has struggled with substance abuse and is apparently clean and sober for the last several months. He has the emotional support of a spouse and is the father of a young child. He is committed to his current family relationship.
REMORSE
[26] R.D.M. did not testify at trial. He had no obligation to do so. In the presentence report he did not express any remorse for these offences and denied that he committed them. His stated lack of remorse is not an aggravating feature on sentence. It is the absence of what would otherwise be a mitigating factor. R.D.M. was entitled to have a trial and test the Crown’s case. There were very triable issues in this circumstantial case. He is also entitled to maintain his innocence and appeal the conviction and/or sentence.
PRINCIPLES OF SENTENCE
[27] The following sections of the Criminal Code are relevant to this sentencing:
Purpose
718 The fundamental purpose of sentencing is to protect society and 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 and the harm done to victims or to the community that is caused by 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 reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
Fundamental principle
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
Other sentencing principles
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,
shall be deemed to be aggravating circumstances;
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
[28] In R. v. Kavanagh, 2009 ONCA 759, the appellant had been convicted of sexual assault with a weapon, unlawful confinement and robbery. He was sentenced to 9 years after credit for 2 years of pretrial custody. On appeal, the sentence was reduced to 10 years less 2 years of pretrial custody resulting in 8 years. The Court referred to the lack of mitigating factors and referred to the offences and the impact on the victim at para. 7:
[7] This was a brutal sexual assault on a vulnerable woman working at night in a convenience store. The appellant came into the store, waited until there were no other customers, then locked the door and threatened the complainant that he would kill her with the knife he claimed to have in his back pocket. He forced her into the back room and forced her to perform oral sex, then penetrated her vaginally without using a condom. The offence was premeditated and brutal on a totally vulnerable victim who suffered significant long-term consequences in her personal life, including estrangement from her family and ongoing fear. The appellant had a criminal record that included a domestic assault.
THE TIME LAPSE IN SENTENCING SEXUAL ASSAULTS
[29] In R. v. H.S., 2014 ONCA 323, the Court addressed this issue at para. 53:
[53] The leading case on the treatment of time lapse in sentencing is R. v. Spence (1992), 1992 ABCA 352, 78 C.C.C. (3d) 451 (Alta. C.A.), adopted by Juriansz J.A. for this court in R. v. W.W.M (2006), 2006 CanLII 3262 (ON CA), 205 C.C.C. (3d) 410 (Ont. C.A). In Spence, at pp. 454-456, the court held that:
When a period of many years has elapsed between the commission of an offence of sexual assault and its discovery by the authorities, that circumstance dictates review of the degree to which the usual principles of sentencing are applicable in such circumstances.
The lapse of time does not in any way render inapplicable the principles of general deterrence and denunciation. The first of these requires a sentence which will intimidate those other than the offender who might be tempted to follow his example. The second requires a sentence by the imposition of which the court will reflect society's view of the wrongness of the conduct, and persuade those who might be confused about what is right and wrong. These two principles may overlap in their effect on the choice of sentence.
The need for the sentence to reflect the community's desire to denounce offences of the kind with which we are concerned is not diminished by the passage of time. Conversely, if the court were to impose a lenient sentence because of the passage of time, some members of the community might regard the sentence as judicial condonation of the conduct in question. That would tend to lessen respect for the administration of justice. In the circumstances we are considering in these appeals, the lapse of considerable time, and (we assume, for the purpose of discussion) the intervening years of unblemished conduct, do not lessen the relevance of these two principles.
The only sentencing principles which may be affected by the lapse of time are those of individual deterrence and rehabilitation. By individual deterrence we mean that the sentence should deter the accused from committing a similar offence in the future. By rehabilitation we mean that the sentence imposed should reflect the hope that somehow, while serving his or her sentence, the accused will be rehabilitated and at its end will resume his or her place in society as a useful and law-abiding citizen. These two principles overlap. In the case of a sexual offence against a child, when on occasion the child does not report the offence to the police or any other authority until many years after the event, should the sentence be less than what it would have been if the prosecution had occurred not long after the commission of the offence? If the accused, during the intervening years, has led an exemplary life in all respects, including non-repetition of sexual offences, and upon the matter ultimately being reported to the authorities and during the resulting investigation and prosecution he is remorseful, then the principles of individual deterrence and rehabilitation may arguably, by themselves, not justify a stern sentence of the kind which would have been obligatory many years earlier. It will be noted, however, that if, despite having led an exemplary life, the offender lacks remorse, any potential discount must be less than it otherwise would have been. Indeed, in cases of this sort, of sexual abuse of children by parents, one might well ask whether one could ever have both remorse and lengthy suppression of the facts.
ANCILLARY ORDERS
[30] R.D.M. will be subject to the following ancillary orders:
(1) Counts 1, 2 and 3 are primary designated offences as defined in s. 487.04 of the Criminal Code. DNA samples are ordered pursuant to s. 487.051 for those offences.
(2) Pursuant to s. 109 of the Criminal Code, a weapons prohibition order for life.
(3) Pursuant to s. 743.21 of the Criminal Code, an order not to contact S.W. or any member of her family directly or indirectly during the custodial period of sentence.
(4) Pursuant to s. 490.012 of the Criminal Code, an order that he comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10 for a period of 20 years.
RESULT
[31] Count 1 alleged that R.D.M. was a party to a sexual assault. Count 2 alleged he committed a sexual assault while armed with a knife. Based on the principles set out in Kienapple v. R., 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729, count 1 is stayed even though both counts were proven.
[32] R.D.M. was an active participant in a protracted sexual assault while armed with a knife. The victim was also threatened with death and robbed. She was a very vulnerable victim. I have already referred to other aggravating features as well as some minimal mitigation. The overriding principles to be reflected in such cases are general deterrence and denunciation. I am mindful that totality is a consideration. On count 2 there will be a sentence of 6 years. On counts 3 and 4 there will be a sentence of one year on each count consecutive to each other and consecutive to the sentence on count 2. The total sentence is 8 years.
B. P. O’MARRA J.
Released: June 18, 2019