CITATION: R. v. A.M., 2019 ONSC 3253
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
– and –
A.M.
J. Fuller for
Her Majesty the Queen
K. Weinstein for
A.M.
HEARD: April 30 and May 3, 2019
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 - sentence
o’bonsawin J.
Overview
1This is the sentencing decision for A.M.
2A.M. was charged with 5 offences:
sexual assault contrary to s. 271 of the Criminal Code of Canada, R.S.C. 1985, c. C-46 (“Code”);
wilfully damaging property the value of which did not exceed five thousand dollars, and committing mischief contrary to s. 430(4);
sexual assault contrary to s. 271;
assault with a weapon contrary to s. 267(a); and
assault contrary to s. 266.
3On April 1, 2019, I found A.M. guilty of charges #1, 3 and 5.
4I will provide a brief summary of the facts of this matter since they are quite detailed in my trial decision.
5The accused A.M. and C.J., the victim, had been in a relationship for a number of years and remain married. They have two biological children and have raised four children together in total. A.M. and C.J. agreed that he would help raise all of the four children as his own. They separated after they arrived in Canada.
6In May 2015, C.J. and A.M. had a fight about Z, the other woman with whom he had a relationship. A.M. held C.J.’s arms and she tried to fight him off. In the laundry room in the basement, A.M. choked C.J. with a rope/wire used to hang laundry until she became unconscious. A.M. then called the ambulance. When C.J. woke up, A.M told her to tell the police that she did this to herself.
7During an evening approximately one-month prior to the November 1, 2016 sexual assault, A.M. arrived at C.J.’s house when she was not expecting him. C.J. did not recall all of the details of the event, and testified: “It is hard to remember that, I remember the day when I was complaining, I don’t know now if it is I had a lot of problems, I think it was night time, it was not a month after that, not a year after that, it was like that…He used to come for his children, he had a key I did not take it away from him, because the children did not know he lived in another place, I did not want them to feel that, he kept the keys, but he took out of the system that he was not living with me at home, he was not having anything to do with me, if he takes the children out in the night, I would go to bed and he would bring children, give them dinner and then take them to the bed and then he would leave”. C.J. was asleep in her bed where she sleeps with her son K. A.M. came into the bedroom, took off his jacket and his shirt and stayed there. C.J. asked him what he was doing and he responded that he wanted to sleep with her. C.J. told him that he was not going to sleep with her, and said “go to your wife”. A.M. responded to C.J. that he had fought with Z. C.J. then told A.M. that she would not sleep with him, to which he responded: “I can do whatever I want, I can come and sleep with you or I can go or I can sit, whatever I want to do I do”. A.M. then took off his pants, kissed C.J., and sexually assaulted her. C.J. did not report the sexual assault to police because A.M. later apologized for sexually assaulting her.
8On November 1, 2016, A.M. came over and took three of their children to the Boys and Girls Club. K. stayed behind. At around 4:00 p.m., A.M. returned to C.J.’s house. He changed K.’s diaper. C.J. and A.M. had a disagreement. She was wearing a normal robe, full sleeve with two layers, and a hijab showing her face but covering her ears, neck, hair, and shoulders. C.J. testified that A.M. told her: “You are my ra, something like that, and I said I don’t want you, you hate me, leave me alone, that is what I said...Then there was a forcing, you are my wife, I love you, things like that”. C.J. testified that afterwards, A.M. “forced me, he raped me in the sitting place”. Initially, C.J. was standing in the living room and then A.M. pushed her onto the sofa. A.M. grabbed her arms and legs. According to C.J., A.M. then “pulled my legs and did whatever he wanted to do with me… He wanted to rape me and use me as a woman and he did that, he tried things we used to do when we were [together] but in a bad way.” C.J. did not recall if A.M. said anything to her when he sexually assaulted her. Afterwards, she went upstairs and locked herself in her bedroom and later fell asleep. After she realized that A.M. had left, she went for a shower and then went back to the main level. She was angry at the time.
9Later that evening, A.M. called her to discuss who was going to pick up the children. C.J. testified that “I said why you did that to me, you are saying you will pick children up, you brought them there you pick them up, he said you pick them up and I will not come to you again, so I said you took them there take them back and then I was upset and called the police - when that happened it was 4:00 when I called police it was 7:00”.
Cicumstances of A.M.
10A.M. is currently forty-four years old. He was born in Somalia and grew up during the civil war. He never met his birth parents. Many of his family members died of starvation. A.M.’s uncle cared of him. He did not attend school in Somalia. A.M. found safe haven in Eretria and lived in overcrowded tents in a refugee camp for a period of eight years and he met C.J. in a camp. A.M. immigrated to Canada in 2008. He attended school in Canada for a period of eight months to learn English.
11A.M.’s first job when he arrived in Canada was as a cleaner. He worked as a cleaner for a period of two years. He then worked at a warehouse for one year and later worked full time for Uber from 2015 until the charges were laid. A.M. was then unable to continue with this employment. He currently works part time in food delivery which impedes his ability to assist in supporting his family.
12AM. has four sons with C.J. aged sixteen, twelve and ten years old. In addition, he has a son who is a little older than a year and a half with Z. and they are expecting a child together in August.
13Two letters of support were provided by A.M.’s friends, Mr. Hawadle and Mr. Ismail. They describe A.M. as a fine and responsible character as well as a credible person. He is comforting, supportive, helpful, predictable and always talking about his children. Mr. Hawadle even added that A.M. “never has anything to hide.” A.M. is thought of as a prominent member in the Somalian community.
Impact on C.J.
14C.J. was born in Somalia. She met A.M. in a refugee camp in Eretria. C.J. gave birth to two male twins in a refugee camp. K., one of the twins, is highly disabled; he is non-verbal, non-ambulatory, and incontinent. She also has two other sons with A.M. She currently resides outside of the jurisdiction of Ottawa and is on social assistance. It is clear based on the evidence before me that C.J. is a very vulnerable individual.
15C.J. provided a statement over the telephone to the support worker of Victim Services in which she advises that she wants her children to be reunited with their father. “Whatever happened to me and I forgave him, the impact doesn’t matter anymore and I want the government to forgive him as well.” She seems to blames herself for what has happened when she states: “The damage happened to me, it would be more painful if the children heard that their father was in jail because of me.” C.J. states that she does not want A.M. to be incarcerated because she needs him to help her look after the children. She also states “the children love my husband so much and I love him too, we cannot do this without him and I will say thank you to the government if they let him go.”
Position of the Parties
16With regards to the position of the parties, the Crown seeks a sentence of three and a half to four years. In addition, the Crown seeks the following orders:
a mandatory DNA order;
a mandatory s. 109 weapons prohibition for a period of life since A.M. was convicted on multiple sexual offences; and
registration as per the Sex Offender Information Registration Act which applies for life for A.M.’s convictions on these offences.
17The Crown also argues that ss. 725(1)(c) of the Code applies in this case. This section permits the sentencing judge to consider “any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge.” The Crown submits that the audio recording of A.M. impressing on C.J. that she should recant her version of events is a separate offence, the breach of A.M.’s bail conditions and an obstruction of justice, which constitutes a significant aggravating factor. It must be noted that at the trial, the Defence did not contest the evidence of the recording.
18The Defence replies that the decision in R. v. Larche, 2006 SCC 56 is a full answer to the Crown’s argument as per ss. 725(1)(c). Counsel refers me to para. 15 in which Fish. J. commented that ss. 725(1)(c) applies to uncharged offences. In this case, A.M. was charged with a separate offence that was not before me at trial and was later withdrawn by the Crown’s office. The Crown’s view is that these are only comments made in obiter by Fish J. and the issue reviewed by the Supreme Court was the interpretation of a different part of s. 725.
19The Defence, for its part, seeks a sentence of two years.
Documents & Books of Authorities
20There were documents entered as evidence at the hearing for submissions regarding the appropriate sentence for A.M. They included two letters of support A.M. and a statement provided by C.J. over the phone to a support worker of Victim Services. Each party also provided me with a Book of Authorities.
Sentence as per Sections in the Code
21I must sentence A.M. as per the sections in the Code in question. There are no mandatory minimum sentences for any of the Code provisions in question. The maximum sentences are listed below:
ss. 271(1) = maximum sentence of ten years; and
s. 266 = maximum sentence of two years.
Factors to be Considered With Regards to Sentencing
22I 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.
23Section 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.
24Section 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 mitigation 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
25In A.M.’s case, the mitigating factors are as follows:
he does not have a criminal record;
he is described as having an otherwise a good character;
he has a supportive network of friends; and
he has a good work history.
26The aggravating factors in this matter are as follows:
there is a statutory aggravating factor under ss. 718.2(a)(ii) of the Code (evidence that the offender, in committing the offence, abused his spouse);
the assault and sexual offences took place in C.J.’s home, a place that is meant to be one of comfort and security for her;
there was forced intercourse;
their son K. was asleep in the bed that C.J. shares with him when A.M. sexually assaulted her the month prior to November 1, 2016; and
A.M. attempted to convince C.J. to withdraw the charges against him.
27With regards to the s. 725 argument, I find that notwithstanding whether or not A.M. was charged with a breach of his bail conditions, the fact remains that he attempted to convince C.J. to withdraw the charges against him and this is an aggravating factor. This forms part of the circumstances that must be reviewed when sentencing A.M.
Caselaw
28I will now turn to the caselaw. The Crown refers me to the following cases: R. v. B.R. 2006 CanLII 29082 (ON CA), [2006] OJ No 3404 (ONCA); R. v. Smith, 2011 ONCA 564; R. v. W.R., 2012 ONSC 3935; R. v. D.D., 2015 ONSC 5865 and R. v. W.E.G., 2018 ONSC 6246. The sentences range from 24 months to three years and seven months.
29The Defence refers me to R. v. B(P), 2009 ONCJ 303; R. v. Giovannelli, 2017 ONCJ 408; R. v. Melo [1991] OJ No 347 (ONCA); R. v. McCart, 2016 ONCJ 512 (ONCJ); 2016 ONSC 7062 (ONSC); and R. v. Scinocco, 2017 ONCJ 359. The sentences range from 90 days to two years of incarceration.
30In R. v. Smith, the Court of Appeal found that a conviction for common assault committed against a spouse or domestic partner in the context of a lengthy pattern of domestic abuse ranges from one to two years (at para. 86). The Court of Appeal further provided a sentence range between 21 months to four years for sexual assault involving forced intercourse with a spouse or former spouse (at para. 87).
31With regards to the imposition of a first sentence of imprisonment, the Court of Appeal stated in R. v. Priest (1996), 1996 CanLII 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.
32In 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
33The evidence supports that C.J. is in a vulnerable position: she is an immigrant who is on social assistance, speaks only the Somalian language and relies on others for financial assistance. A.M. and C.J. are separated. However, it is clear from C.J.’s testimony at trial and her statement to the support worker that she still considers A.M. as her husband. A.M.’s comments to C.J. when he sexually assaulted her of “[y]ou are my wife” supports that he also still considers her as his wife.
34C.J. has been in a lengthy relationship with A.M. He may have no longer lived with C.J., however, he still had a key to her house. This notwithstanding the fact that he may have been cohabitating with Z. The Crown characterized A.M. as considering C.J. to be “duty bound to give him what he wanted, duty arose from his relationship with her. He felt entitled to her body because of the relationship they were in, so subjectively, he certainly felt they were in a relationship as well.”
35During the first sexual assault, A.M. used his key to enter C.J.’s house and he then went into the sanctity of her bedroom to sexually assault her in the bed where her disabled son was sleeping. C.J. should have felt safe and protected in her own bedroom. Instead, she was sexually assaulted by A.M., her husband that she continued to trust since he still had a key to her house. The Defence has tried to characterize A.M. as a loving father. It is totally unacceptable for a father, let alone anyone, to sexually assault a woman in the bed where her child is sleeping. The stress that she must have endured on this occasion is unimaginable.
36Throughout the majority of her testimony at trial and even in her statement to the support worker, C.J. continues to put the needs of her children before her own.
37The Defence argues that it is not clear from the evidence whether or not A.M. vaginally or anally penetrated C.J. In her evidence, C.J. testified: “[A.M.] pulled my legs and did whatever he wanted to do with me… He wanted to rape me and use me as a woman and he did that, he tried things we used to do when we were [together] but in a bad way.” Her testimony confirms that A.M. had sexual intercourse with her.
38With regards to the choking incident, the evidence supports that A.M. choked C.J. with a rope/wire used to hang laundry until she became unconscious. When C.J. woke up, A.M told her to tell the police that she did this to herself. A.M. has demonstrated by his actions that he wants C.J. to take the blame for his inappropriate, unacceptable and illegal actions – firstly, by telling her to lie to police after he choked her, and secondly, by trying to convince her to withdraw her allegations against him.
39The sexual assaults and the choking incident are all of a very serious nature. By his actions, A.M. abused C.J.’s trust in him and took advantage of her vulnerability.
40While I am mindful of Priest, due to the nature of the aggravating factors in this case, a strong penitentiary sentence is warranted for A.M. It must be clear that violence against women in a domestic context is unacceptable and a stern penalty is warranted in such cases.
Final Disposition
41In 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.
42Consequently, I proceed with the final disposition. I will begin with Count #1, sexual assault contrary to s. 271, I sentence A.M. to three years of imprisonment.
43With regards to Count #3, sexual assault contrary to s. 271, I sentence A.M. to three years of imprisonment to be served concurrently to Count #1.
44With regards to assault contrary to s. 266, I sentence A.M. to one year of imprisonment to be served concurrently to Count #1.
45As a result, A.M.’s total sentence is of three years of imprisonment.
46I 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 A.M. was convicted on multiple sexual offences;
registration as per the Sex Offender Information Registration Act which applies for life for A.M.’s convictions on these offences;
Justice M. O’Bonsawin
Released: May 28, 2019
CITATION: R. v. A.M., 2019 ONSC 3253
COURT FILE NO.: CR-16-DV7097
DATE: 2019/05/28
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
– and –
A.M.
reasons for decision - sentence
O’Bonsawin J.
Released: May 28, 2019