Court File and Parties
COURT FILE NO.: CR-16-6604 DATE: 2019/05/24 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen – and – JS
Counsel: Stephen Donoghue for Her Majesty the Queen Michael Spratt for JS
HEARD: April 17, 2019 (at Ottawa)
Pursuant to s. 486.4 of the Criminal Code there is a continuing order in place making it an offence for any person to publish information that might lead to disclosure of the identity of the complainant.
Reasons for Decision
O’Bonsawin J.
Overview
[1] This is the sentencing decision for JS. He is currently thirty-eight years old.
[2] JS was charged with eight offences:
- assault contrary to s. 266 of the Criminal Code of Canada, R.S.C. 1985, c. C-46 (“Code”);
- assault contrary to s. 266;
- sexual assault contrary to s. 271;
- assault with a weapon contrary to s. 267(a);
- uttering a threat to cause death or bodily harm contrary to s. 264.1(2);
- uttering a threat to cause death or bodily harm contrary to s. 264.1(2);
- uttering a threat to kill or injure an animal contrary to s. 264.1(3); and,
- sexual assault with a weapon contrary to s. 272.
[3] On September 13, 2018, I found JS guilty of all charges.
Circumstances of the Offences
[4] I will provide a brief summary of the facts since they are quite detailed in my trial decision. At the time of the incidents, JS was a Geospatial Engineer with the C[…]. AG is a school teacher. She met JS through the school community; he was a parent of one of the children she had taught. They began dating in July 2015 and in October 2015, JS moved into AG’s apartment. They then moved into a rental house in December 2015 where they resided until June 3, 2016. Since JS had filed for bankruptcy, AG was the primary on the lease. Both JS and AG described their relationship as difficult, marked with highs and lows. There were highs at the beginning of the relationship and increased lows at the end of the relationship. There were issues about finances, both were dealing with mental health issues, and JS was dealing with issues regarding custody of his two children from a prior relationship.
[5] JS admitted to the following:
- he assaulted AG in the car by hitting her arm with his fist in December 2015/January 2016;
- he assaulted AG between December 2015-January 2016 when they were arguing about finances. JS grabbed AG’s hand and forcibly closed it around a coin; and
- he threatened AG, NR, PM, LM, HM and LM and AG’s dog.
[6] On June 3, 2016, JS assaulted AG. He grabbed her by the throat and threw her on the bed. JS pulled AG’s hair, he strangled her with his two hands around her throat, he punched her on the left cheek and then he sexually assaulted her. Afterwards, JS left the bedroom. AG got dressed and ready for work. While AG was still in the bedroom, JS returned holding in his hand a large knife. JS then sexually assaulted AG for a second time. JS also made threats of bodily harm/death at this time. The knife made contact with AG’s throat and JS also pointed it to various parts of AG’s body and told her what he would do to each body part if she told anyone about what had happened.
Impact on AG
[7] AG read her Victim Impact Statement at the sentencing hearing. It was poignant. She described the devastating effect that JS’ actions had on her. AG talked about how she continues to carry fear such as fear of confinement, locked doors and being in situations from which she cannot easily escape. It has effected how she travels. AG has nightmares of coming home to find her dog murdered or JS in her house. AG also feels guilt and as though she is at fault for what happened. She blames herself, just as JS blamed her. AG also described that she is recovering from a severe depression and suffers from anxiety. She has gone through periods where she has been bulimic, “hating myself and my inability to handle my everyday challenges”. Lastly, the emotional triggers that she suffers are unpredictable. The most striking part of her Victim Impact Statement was related to her description of daily triggers she experiences at work. She is a kindergarten teacher. “When the students come close to me to read a story, if they just sit next to me, or brush their book against my leg, or sit on my lap, all of these things are difficult. I feel guilty for distancing myself from their touch, I feel as though I am not being the loving adult they need…I spend every day worrying about when these small triggers will be big triggers. When will I fail to keep a lid on it. When will I lose control? I fight because I love my job…My job is my passion and my joy and I hate how it has become tainted by the attack.”
Circumstances of JS
[8] There were a series of documents entered as evidence at the hearing for submissions on the appropriate sentence for JS. Dr. Johnston’s letter advises that he is a Clinical and Forensic/Correctional Psychologist and he has met JS on eight occasions since JS’ referral to his office through V[…]. The John Howard Society of Thunder Bay’s letter confirms that JS has completed the Anger Management Program which consists of five two hour sessions. There are letters of support from his current girlfriend, CD, from her parents and from a friend. They all describe JS as a caring and compassionate person who also loves animals, volunteers, attends church, takes good care of his parents and loves his children. The Archdeacon and the Sunday School and the Children’s Ministries Coordinator of the church that JS attends also provided letters of support. They describe JS as reliable, open, authentic, friendly and kind. They also confirm that JS was a Sunday School teacher. It must be noted, however, these letters were dated prior to the release of my decision in which I found JS guilty of all charges. Since my decision, I have been advised that the church no longer permits JS to act as a Sunday School teacher.
[9] JS’ Recognizance of Bail contained the following conditions: he must reside with his surety, he must remain within 60 km of Thunder Bay expect when with his surety, he must not contact AG and a list of others and not possess any weapons. It must be noted that his conditions did not include house arrest.
[10] Lastly, JS’ curriculum vitae demonstrates, among other positions, his work history with the C[…] from July 2011 until July 2017 and lists his various educational degrees.
[11] JS has three children. One lives in the United States. JS’ ten year old son and four year old daughter live in Ottawa with their mother. His father has had a stroke and his mother has Stage 1 Lymphoma.
Position of the Parties
[12] With regards to the position of the parties, the Defence seeks a sentence of three years. The Defence also asks for a consideration of a sentence of two years and three years of probation which would create state control over JS for a period of five years. The Defence also seeks a credit of a few months to recognize the impact of the stringent bail conditions that were imposed on JS. Furthermore, the Defence seeks a stay of count #8 on the Kienapple principle since it was all related to the same sexual assault.
[13] On the other hand, the Crown seeks a sentence of an incarceration for a range of eight to nine years. The Crown submits that a credit related to the bail conditions is inappropriate in this matter. The Crown also argues that the Kienapple principle does not apply in this case because there were two separate sexual assaults. In addition, the Crown seeks the following orders:
- a mandatory DNA order;
- a mandatory s. 109 weapons prohibition for a period of life since JS was convicted of multiple sexual offences;
- registration as per the Sex Offender Information Registration Act which applies for life for JS’s convictions on these offences; and
- an order of non-communication with AG while JS is serving his sentence.
Sentence as per Sections in the Code
[14] I must sentence JS as per the sections of the Code in question. There are no mandatory minimum sentences for any of the Code provisions in question. The maximum sentences are listed below:
- assault contrary to s. 266 = five years
- sexual assault contrary to s. 271 = ten years
- assault with a weapon contrary to s. 267(a) = ten years
- uttering a threat to cause death or bodily harm contrary to s. 264.1(2) = five years
- uttering a threat to kill or injure an animal contrary to s. 264.1(3) = two years
- sexual assault with a weapon contrary to s. 272 = fourteen years
Factors to be Considered With Regards to Sentencing
[15] I will review the factors to be considered regarding sentencing. The sentencing principles according to s. 718 of the Code are denunciation, deterrence, rehabilitation and the protection of society. More specifically, according to s. 718 of the Code, the purpose and principles of sentencing are to:
- denounce unlawful conduct and the harm done to victims or to the community;
- deter the offender and other persons from committing offences;
- separate offenders from society, where necessary;
- assist in rehabilitating offenders;
- provide reparations for harm done to victims or to the community; and
- to promote a sense of responsibility in offenders; and acknowledgment of the harm done to victims or to the community.
[16] Section 718.1 of the Code provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[17] Section 718.2 of the Code lists other sentencing principles that are relevant in this matter such as:
- the taking into account the relevant aggravating or mitigating circumstances (evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner);
- a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
- where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
- an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances; and
- all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to the victims or to the community should be considered for all offenders.
Mitigating and Aggravating Factors
[18] In JS’s case, the mitigating factors are as follows:
- he does not have a criminal record;
- he was a pro-social law abiding member of the community before the events in question;
- he has a solid education and work history;
- he admitted to a number of the offences (however, not to the sexual assault offences);
- he has been seeing a forensic psychologist for a period of two years;
- he completed the John Howard Society of Thunder Bay’s Anger Management Program on his own initiative;
- he has a supportive network of family and friends;
- incarceration may impact his benefits and assistance that he receives from the m[…];
- there have been no allegations since these offences; and
- he was compliant with his bail conditions since his arrest.
[19] The Defence further argues that a lengthy incarceration will stop JS from spending time with his parents during their last days. JS will also miss seeing his children grow. In addition, JS will not be able to continue paying child support while incarcerated.
[20] The aggravating factors in this matter are as follows:
- there is a statutory aggravating factor under s. 718.2 (a)(ii) of the Code (evidence that the offender, in committing the offence, abused his common-law partner);
- the assault and sexual offences took place in JS and AG’s home, a place that is meant to be one of comfort and security;
- there was forced vaginal intercourse;
- there was use of a weapon (the knife); and
- AG suffered physical and emotional harm as a result of these offences.
Caselaw
[21] I will now turn to the caselaw. The Defence refers me to R. v. N. (B.D.), 2016 ONSC 1740; R. v. J.(V.), 2016 ONSC 6035, and R. v. W.E.G., 2018 ONSC 6246. The sentences range from two years to 42 months imprisonment.
[22] The Crown refers me to the following cases: R. v. Saccary (1995), 1995 7521 (NS CA), 144 N.S.R. (2d) 363, 416 A.P.R. 363 (C.A.) and R. v. G.M.F., 2016 MBQB 208. Both cases provided for sentences of nine years.
[23] With regards to the imposition of a first sentence of imprisonment, the Court of Appeal stated in R. v. Priest (1996), 1996 1381 (ON CA), 30 O.R. (3d) 538 (C.A.), at p. 545:
Even if a custodial sentence was appropriate in this case, it is a well-established principle of sentencing laid down by this court that a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence.
[24] In R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, the Supreme Court provided the following helpful guidance for sentencing judges:
53 This inquiry must be focused on the fundamental principle of proportionality stated in s. 718.1 of the Criminal Code, which provides that a sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender”. A sentence will therefore be demonstrably unfit if it constitutes an unreasonable departure from this principle. Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances. Individualization and parity of sentences must be reconciled for a sentence to be proportionate: s. 718.2 (a) and (b) of the Criminal Code.
54 The determination of whether a sentence is fit also requires that the sentencing objectives set out in s. 718 of the Criminal Code and the other sentencing principles set out in s. 718.2 be taken into account. Once again, however, it is up to the trial judge to properly weigh these various principles and objectives, whose relative importance will necessarily vary with the nature of the crime and the circumstances in which it was committed. The principle of parity of sentences, on which the Court of Appeal relied, is secondary to the fundamental principle of proportionality. This Court explained this as follows in M. (C.A.):
It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime...Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction. [para. 92]
57 … Where sentencing ranges are concerned, although they are used mainly to ensure the parity of sentences, they reflect all the principles and objectives of sentencing. Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered “averages”, let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case:
Even when an appellate court has established a range, it may be that a fact pattern will arise, which is sufficiently dissimilar to past decisions that the “range”, as it were, must be expanded. The fundamental point is that a “range” is not a straitjacket to the exercise of discretion of a sentencing judge.
60 In other words, sentencing ranges are primarily guidelines, and not hard and fast rules: Nasogaluak, at para. 44. As a result, a deviation from a sentencing range is not synonymous with an error of law or an error in principle. Sopinka J. stated this clearly in R. v. M. (T.E.), although he was referring in that case to categories of assault:
... in my view it can never be an error in principle in itself to fail to place a particular offence within a judicially created category of assault for the purposes of sentencing... . If the categories are defined narrowly, and deviations from the categorization are generally reversed, the discretion that should be left in the hands of the trial and sentencing judges is shifted considerably to the appellate courts.
Analysis
[25] I have considered the caselaw provided to me by both counsel. Although I must note that the caselaw was distinguishable based on the facts.
[26] At the times in question, JS and AG were living together as a couple. JS engaged in unacceptable and deplorable criminal behaviour and sexual assaults against AG. The sexual assaults occurred in the sanctity of their bedroom where AG should have felt safe. The sexual assaults involved full penetration and one also involved a weapon (knife). In addition, during the second sexual assault, JS also threatened AG’s life, those of the ones she loved and the life of her beloved dog. JS’ actions are very serious in nature. Based on my review of AG’s Victim Impact Statement, she has suffered significant psychological harm.
[27] Although JS agreed that he committed some of the offences in question, he steadfastly denied having sexually assaulted AG. This led to her having to testify. He does not receive the benefit of a mitigating factor for a guilty plea.
[28] JS has demonstrated some insight into his issues. He has sought anger management treatment and psychological treatment from Dr. Johnston, although it is unclear whether this treatment continues at this time. This insight along with the other mitigating factors lead me to impose a sentence that is less than the period of time requested by the Crown. While I am mindful of Priest and the Defence’s argument that a lengthy sentence for JS would “crush” him, due to the nature of the mitigating and aggravating factors in this case, a strong penitentiary sentence is warranted for JS. It must be clear that violence against women in a domestic context must be recognized as unacceptable and a stern penalty is warranted in such cases.
Final Disposition
[29] Since there are multiple offences, I am required to consider whether any or all of the sentences are to be served concurrently or consecutively. As stated in G.M.F., “[t]he general rule is that if the offences are sufficiently interrelated to form part of one single, continuous criminal transaction, a concurrent sentence is called for. However, if the offences are separate and distinct, then a consecutive sentence is to be imposed” (at para. 20).
[30] I agree with the Crown that there were two sexual assaults and that they were two distinct criminal transactions. After the first sexual assault, JS left the room and AG got dressed and prepared for work. JS then returned with a knife and made threats and sexually assaulted her a second time. Consequently, the sentences for the two sexual assaults will be consecutive. Furthermore, I find the Kienapple principle does not apply in these circumstances and a stay of count #8 is not warranted.
[31] In J.(V.), Spies J. noted that sentences for uttering a death threat range from the imposition of a suspended sentence to six months’ imprisonment. A sentence of one to two years is normally appropriate for a conviction of a common assault. Lastly, the sentence range for sexual assault involving forced intercourse with a spouse or former spouse is normally between 21 months to four years (at para. 28).
[32] In R. v. Downes (2006), 2006 3957 (ON CA), 79 O.R. (3d) 321 (C.A.), the Court of Appeal determined as follows: “the lengthy period the appellant spent under pre-sentence house arrest in this case is a relevant mitigating factor and should have been given some weight in his sentence. It is therefore necessary to consider the impact of the house arrest on the appellant. For the following reasons, I would give it relatively little weight” (at para. 42). The Court of Appeal provided the accused with a credit of five months for eighteen months of house arrest. In this matter, JS did not spend any time under pre-sentence house arrest. Consequently, I will not provide him with a credit.
[33] In coming to my decision, I have kept in mind the sentencing principles, the mitigating and aggravating factors, and all of the circumstances of this matter.
[34] Consequently, I proceed with the final disposition. I will begin with Count #3, sexual assault contrary to s. 271, I sentence JS to two years’ imprisonment.
[35] With regards to Count #2, assault contrary to s. 266, I sentence JS to six months to be served concurrently to the sentence on Count #3.
[36] With regards to Count #4, assault with a weapon contrary to s. 267(a), I sentence JS to one year to be served concurrently to the sentence on Count #3.
[37] With regards to Count #8, sexual assault with a weapon, contrary to s. 272, I sentence JS to three years to be served consecutively to the sentences for counts #2, 3 and 4.
[38] With regards to Count #5, uttering a threat to cause death or bodily harm, contrary to s. 264.1(2), I sentence JS to six months to be served concurrently to the sentence on Count #8;
[39] With regards to Count #6, uttering a threat to cause death or bodily harm, contrary to s. 264.1(2), I sentence JS to six months to be served concurrently to the sentence on Count #8;
[40] With regards to Count #7, uttering a threat to kill or injure an animal, contrary to s. 264.1(3), I sentence JS to one month to be served concurrently to the sentence on Count #8
[41] Lastly, with regards to Count #1, assault contrary to s. 266, I sentence JS to 30 days to be served consecutively to JS’ other sentences.
[42] As a result, JS’ total sentence is five years and thirty days.
[43] I also make the following ancillary orders:
- a mandatory DNA order pursuant to s. 487.051(1) of the Code;
- a mandatory s. 109 weapons prohibition for a period of life since JS was convicted on multiple sexual offences;
- registration as per the Sex Offender Information Registration Act which applies for life for JS’ convictions on these offences;
- JS must not have any contact or communicate directly or indirectly with AG as per s. 743.21.
Justice M. O’Bonsawin