Court File and Parties

COURT FILE NO.: J-18-73 DATE: 2019/06/28 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – RYAN MACKENZIE Defendant

Counsel: D’Arcy Wilson, for the Crown Geoffrey Hadfield, for the Defendant

HEARD: June 27, 2019

REASONS FOR SENTENCE

Turnbull J.

[1] The defendant was found guilty by a jury of sexual assault of the complainant RW contrary to the provisions of Section 271 of the Criminal Code of Canada. I have received submissions from counsel and now am going to impose sentence.

Overview of the Facts

[2] The complainant went to her friend’s home late in the evening of June 16, 2017 to have some drinks and to “hang out” with her and her boyfriend. When she arrived, she continued to consume alcohol with her companions. Around 3:30 a.m., the defendant arrived at her friend’s residence. The defendant, the complainant and the complainant’s girlfriend sat up binge drinking until about 5:30 a.m. A considerable amount of alcohol was consumed by each of them. The female resident became so intoxicated that she began kissing and “making out” with the defendant. The complainant felt this to be inappropriate so she went upstairs, woke up her boyfriend and asked him to come downstairs to remove her friend from the embrace of the defendant. This occurred without incident and the female resident and her boyfriend went upstairs to bed. The defendant and the complainant, who had previously met but were never close friends, sat up for a short while, had some further drinks and lay down on separate couches to watch a movie. The complainant readily admitted that she was very drunk when she fell asleep on her chesterfield.

[3] The complainant testified that she next was aware of the defendant inserting his penis in her “bum crack” and then having vaginal intercourse with her as she sat on her knees on the floor in front of the couch where she had fallen asleep. She remembered her pants and underwear had been lowered to her knees and that the defendant was penetrating her from the rear “doggy style”. She attempted to resist this activity for a short period and ultimately her cries were heard by the male in the upstairs bedroom. He came downstairs, saw the defendant standing behind the complainant trying to put his penis back in his pants. Seeing this and hearing the cries of the complainant, he immediately called 911 and the police arrived a few minutes later. The defendant was arrested. After a preliminary hearing, he elected trial by jury.

[4] The defendant testified in his own defence at trial. He stated that after he lay down on his chesterfield, he awoke after a few minutes to find the complainant lying on the chesterfield beside him. Her face was away from him but her behind was allegedly being thrust into his groin area. After a few minutes of rubbing her back and touching her, he stated that they then progressed to consensual sexual activity which included vaginal intercourse. He testified that he was not even sure if he penetrated the complainant. It was shortly after she fell off the couch onto the floor, that the male visitor descended to find the complainant in a partial state of undress.

[5] Evidently, the jury rejected the version of events proffered by the defendant.

Factors in Sentencing

Sentencing Principles

[6] Parliament has now codified many former common law principles. Section 718 of the Criminal Code describes the fundamental purpose of sentencing as being “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 sanction.” It further sets out six objectives: denunciation, deterrence, separation of offenders, rehabilitation, reparations, and promotion of responsibility and acknowledgment of harm.

[7] Denunciation is an expression of disapproval of the offender’s conduct to reflect and communicate society’s disapproval and condemnation of particular criminal conduct, by punishing for encroachment on society’s basic code of values. The sexual integrity of each woman is to be respected at all times and when she is unable to clearly communicate her willingness to participate in sexual activity, that sexual activity is not to occur.

[8] Specific Deterrence involves the imposition of a punishment for the purpose of deterring the offender from repeating a similar offence or any other criminal offence.

[9] General Deterrence is a sentencing principle in that the sentence imposed should in some way deter others who may be inclined to commit similar offences. Men must understand that unless a woman clearly and unequivocally consents to sexual activity, that activity is not to occur.

[10] Section 718(c) of the Criminal Code lists as an objective, the separation of offenders from society, “where necessary.” This objective is relevant in the case of offenders who pose a danger to the community.

[11] Rehabilitation is a sentencing objective which reflects the concept that reformation of an offender is in society’s best interests in the long term. This sentencing objective is designed with a view to formulating a sentence, which serves to address some of the problems underlying the offender’s criminal conduct, such as alcohol or drug dependence, mental disorder, or lack of education.

[12] The objective of reparation is designed to reflect society’s increasing awareness of the need to address the interests of the victim, and can be addressed by restitution orders, or community service orders. In this case, it is not particularly relevant to my considerations.

[13] In sentencing, the Court in most cases, and certainly in this one, attempts to promote a sense of responsibility on the offender. This objective reflects the concept that offenders must be made to accept responsibility for their criminal actions, and to acknowledge the harm done to victims and to the community, before they can be productively reintegrated into society.

[14] Section 718.1 of the Criminal Code requires that a sentence “be proportionate to the gravity of the offence and the degree of responsibility of the offender.” Section 718.2(b) of the Criminal Code provides that disparity is to be avoided and like cases are to be treated alike. In that sense, one should strive for parity in sentence as between offenders involved in the same offence and recognize as a principle of sentencing that similar cases should, generally speaking, result in a similar sentence.

Mitigating Circumstances

[15] The defendant is 33 years of age. He is married and is the father of a 9 month old daughter. He is a journeyman carpenter and is a field supervisor for Scaffold Technology. He has no prior criminal record. While he denied that he had sexually assaulted the complainant, it is clear that he did not physically injure the complainant nor did he threaten her with harm. I have taken into account that he was clearly under the influence of alcohol at the time of the offence, though it certainly does not excuse his conduct.

Aggravating Circumstances

[16] The defendant took advantage of the complainant, who knew him distantly, when she was clearly under the influence of alcohol and unable to communicate her disapproval of his conduct until it was too late.

[17] The devastating impact of this criminal act on the victim, psychologically and emotionally, are clear from her Victim Impact Statement and the potential impact in the future is inestimable. To put it simply, the effects of the defendant’s actions will not end at the court house steps when everyone leaves this building today. S. 718.2(a)(iii.1) of the Criminal Code directs the court to consider the impact of the offence upon the victim.

Victim Impact Statement

[18] The victim, RW, provided a written Victim Impact Statement which was filed with the court by the Crown Attorney on her behalf. In it, she articulately expressed the significant emotional, physical and economic impacts of this incident on her life.

[19] She noted that she is an only child who has been raised by a single dad. She stated that she feels her father looks at her differently now with a look of sadness, pity, and disappointment. She feels that her father now looks at her with a sense of disdain.

[20] She also stated that her relationship with her former fiancé changed as a result of the events of this incident. Because her fiancé lived in New York, he felt terrible that he was unable to be present physically to comfort her. Despite this incident, they were engaged later the same year. The complainant’s self-worth was badly diminished by the incident and she was afraid that she would never be able to be a good wife for him. As a result, she ended the relationship with her fiancé on New Year’s Eve, 2017 and to this day she regrets calling off the engagement.

[21] She commented that she trusted the defendant because he was a good friend of Crystal, the owner of the home where this incident occurred. Her friend Crystal had told her that the defendant had once protected her and she indicated that the defendant was a good, genuine person. As a result, she felt it was safe enough to sleep over on separate chesterfields at her friend’s home like she had done so many times.

[22] As a result of the incident, she has been diagnosed with post-traumatic stress disorder. She suffers from nightmares, flashbacks, increased anxiety, panic attacks, and self-destructive behaviour. Her work performance has suffered significantly. She finds it hard to trust new people. She finds it very difficult to talk to males. Her self-esteem is almost non-existent. In 2018, she had to take 15 weeks off work for a medical leave because of her mental health and the requirement to change medications to offset the increased depression she was feeling.

[23] At the time of this assault, she had been employed with the same employer for six years and had been a model employee. Since this incident, she has had to call in sick almost every week due to anxiety or depression. She often is late for work because of panic attacks and anxiety. She notes she has gone from being a model employee to someone who gets warnings about her performance and attendance. Her hourly schedule has been reduced from 28 hours per week to 12 hours per week because of her frequent absences. She is having a difficult time paying her bills and being self-sufficient on these reduced hours, to the point that she no longer can afford to live in her own apartment and has had to be “couch-surfing” and staying with friends for a period of time.

Pre-Sentence Report

[24] This report is generally very favourable to the defendant. It is clear that he is and has been a hard worker in his relatively young life. He is the father of a one year old daughter and is the breadwinner for his partner Haley Thiessen (whom he married in April 2019) and his daughter. Ms. Thiessen described their relationship as loving and supportive and that she is looking forward to the future. The incarceration of the defendant will have a significant negative economic impact on Ms. Thiessen and their daughter. She stated that the charges and now the sentencing process have weighed heavily on him. Like his mother Sharron Mc Morrow, she describes the defendant as a fantastic father.

[25] He enjoys a good relationship with his mother and his step-father and with his father and his step mother. His mother reported that she speaks almost daily with her son and the family gets together for Sunday dinner on most Sunday evenings. She noted that her son is a hard worker and due to his work ethic and motivation, he easily gains the respect of his co-workers and employers. That is supported by the comments of his employer at Scaf-Tech, Uzzo Calderaro. He described the defendant as valued and trusted and that he had been given a position of leadership that demands extensive knowledge and experience and an aptitude for safety.

[26] Mr. MacKenzie quit school in grade 11 and began working. He attended college in Alberta to enhance his carpentry skills and became a member of the Carpenter’s Union in 2008. After this charge was laid, he closed his small scaffolding business in Alberta and returned to Ontario. He has been employed in Ontario since this charge was laid as a field level supervisor at Scaf-Tech Inc. Clearly, a period of incarceration may negatively affect his present employment and possibly even future employment opportunities.

[27] Mr. MacKenzie minimally consumes alcohol and uses marijuana daily pursuant to medical marijuana licence issued to him about 3 years ago. He finds that drug helpful for his rheumatoid arthritis pain, migraine headaches and anxiety.

[28] John Wilson, the father of Haley Thiessen and the father in law of the defendant, described the defendant as loving and supportive of his wife and a fantastic dad to his little girl. Mr. Wilson noted that Mr. MacKenzie is always respectful of others and he has never had any concerns regarding his behaviour.

Joint Submission

[29] At the outset of sentencing submissions yesterday afternoon, both counsel indicated that they would urge the court to impose a sentence of two years to be served in a federal penitentiary followed by two years of probation. Both counsel have provided me with a series of cases which reflect that sentences for similar offences in somewhat similar circumstances, involving relatively youthful first time offenders, fall within the range of fifteen months to three years. In that respect, I am guided by the decision of Campbell J. in R. v. Smith, 2015 ONSC 4304 at paras. 32, 33 and 34. The decision of Conlon J. in R. v. J.F. 2015 ONSC 5763 supports the submission that an upper mid- range reformatory sentence is not inappropriate in these types of cases.

[30] Mr. Hadfield, counsel for Mr. MacKenzie advised the court that his client would prefer to serve his sentence in a federal institution instead of a provincial institution. He is anxious to partake of training courses which he has learned are more readily available in the federal system.

[31] Having heard the submissions of counsel and having reviewed the case authorities provided to me by counsel, I have no difficulty in accepting their joint submission. In my view, it reflects the three primary goals of sentencing at play in this case, namely, denunciation, general deterrence and rehabilitation. The pre-sentence report confirms my feeling that Mr. MacKenzie is highly unlikely to ever repeat an offence similar to the one which has brought him before this court.

Conclusion

[32] The defendant is sentenced to a period of incarceration of two years to be served in a Federal Penitentiary.

[33] It is ordered pursuant to S. 743.21(1) of the Criminal Code of Canada that the defendant shall not communicate, directly or indirectly, with the complainant RW. during the custodial period of his sentence.

[34] After serving his custodial sentence, the defendant shall then be placed on probation for a period of two years on the following terms:

1. He shall keep the peace and be of good behavior.
2. He shall report in person to his probation officer as required.
3. He shall appear before the court when required to.
4. He shall notify the court or probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change in employment or occupation.
5. He shall attend for and actively participate in any assessment, treatment, or counselling recommended by his Probation Officer, and in particular, any recommended counselling for understanding, establishing, and respecting boundaries in relationships with women.
6. He shall not consume any non-medically prescribed drugs.
7. He shall have no communication or contact, directly or indirectly with the complainant.
8. He shall not venture within 500 yards of the residence, school, place of worship or place of employment of the complainant.

[35] It is further ordered pursuant to S. 109(2)(a) of the Criminal Code that the defendant shall not own or possess a weapon as defined in S. 109 of the Criminal Code for a period of 10 years.

[36] It is further ordered pursuant to S. 109(2)(b) of the Criminal Code that the defendant shall not own or possess a weapon as defined in that section of the Criminal Code for life.

[37] It is ordered that the defendant shall be subject to a Sex Offender Information Registration Act order for a period of 20 years and he shall be required forthwith to provide a DNA sample sufficient for forensic analysis pursuant to S. 487.051 of the Criminal Code.

Turnbull, J. Released: June 28, 2019