COURT FILE NO.: CR-18-50000350-0000
DATE: 20191105
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
H.P.
Gus Kim, for the Crown
Brian Crothers, for the Defendant
HEARD: September 27, 2019
Davies J.
PUBLICATION RESTRICTIONS NOTICE
A non-publication order in this proceeding has been issued pursuant to subsection 486.4(1) of the Criminal Code. By order of this court, any information that could identify the Complainant shall not be published in any document, broadcast or transmission.
REASONS FOR SENTENCE
A. Introduction
[1] On December 31, 2016, B.M. and H.P. went to a New Year’s Eve party at a friend’s apartment. B.M. left the party after about an hour later to go to a club with some friends. H.P. stayed at the party. B.M. was too drunk to get into the club so her friend sent her back to the party. B.M. was so intoxicated that she passed out on the stairs before she got into the apartment. H.P. carried her up the stairs and put her in bed. H.P. then went back to the party. An hour or two later, H.P. joined B.M. in the bedroom. She was still asleep. H.P. lay down beside her and touched her leg hoping to initiate sex with her. He then removed her underwear and started to have intercourse with her. B.M. woke up a few seconds after H.P. penetrated her and yelled at him to stop. I found H.P. guilty of sexual assault. These are my reasons for sentence.
[2] The Crown argued that the appropriate sentence in this case is a period of imprisonment for two years less a day followed by probation for three years. The defence argued that the appropriate sentence is nine to 12 months in prison followed by a period of probation for one or two years.
[3] Crown and defence counsel each gave me a number of cases to support their position. The Crown relied on the decision of R. v. C.R., 2010 ONCA 176, in which the Court of Appeal dismissed an appeal from a two-and-a-half-year sentence. In that case, C.R. was convicted of sexually assaulting his intimate partner on two separate occasions. The Crown also relied on R. v. J.R., 2018 ONCA 200 in which the Court of Appeal confirmed a sentence of two years less a day for two people convicted of sexually assaulting their good friend while she was intoxicated.
[4] Finally, the Crown relied on R. v. Colborne, 2013 ONCA 308. In that case, the Court of Appeal dismissed a sentence appeal from a 14-month sentence. Mr. Colborne was convicted of sexually assaulting an acquaintance when she was extremely intoxicated. In dismissing the appeal, the Court noted, “if anything the sentence was on the low end of the range”: Colborne, at para. 17.
[5] On the other hand, the defence relied on two cases where the Court of Appeal refused to interfere with much shorter sentences for sexual assault. For example, in R. v. McKenzie, 2017 ONCA 128, the Court of Appeal upheld a nine-month sentence. Mr. McKenzie had non‑consensual anal intercourse with his co-worker who was very drunk at the time. Similarly, the Court of Appeal did not interfere with a nine-month sentence in R. v. Dahousky, 2008 CanLII 19498 (ON SC), [2008] O.J. No. 1665. In that case, Mr. Dahousky was convicted of sexually assaulting an acquaintance who had offered him a place to stay for the night when he was intoxicated. Mr. Dahousky had a criminal record and was on probation at the time of the offence, which are aggravating factors not present in this case.
[6] The cases relied on by counsel clearly demonstrate that sentencing is a highly individualized exercise. The just and appropriate sentence in any given case depends on the seriousness of the offence and the moral culpability of the offender having regard to the unique constellation of mitigating and aggravating factors in each case; R. v. Lacasse, 2015 SCC 64 at para. 58.
[7] There are two important aggravating factors that make this a relatively serious sexual assault.
[8] First, H.P. breached B.M.’s trust. They were in an intimate relationship at the time of the offence and had been for several months. B.M. was intoxicated to the point that she passed out on the stairs outside the apartment earlier in the evening. H.P. carried her into the apartment. I found that H.P. knew B.M. was extremely intoxicated when he put her to bed. Given her level of intoxication, B.M. was in a very vulnerable position at the time of the offence. She was entitled to expect H.P. to protect her not take advantage of her vulnerability. The fact that H.P. violated the trust inherent in an intimate relationship by initiating non-consensual sexual intercourse while B.M. was asleep is a significant aggravating factor in this case.
[9] Second, the sexual assault has understandably had a devastating impact on B.M.. She continues to experience anxiety and depression as a result of what happened to her. It has also had a profound effect on her friendships and her intimate relationships. She finds it hard to trust people and, for a long time, she was scared the same thing would happen again in her current relationship.
[10] Given the seriousness of this offence, the sentence imposed in this case must send a clear message denouncing H.P.’s conduct. It must also deter, to the extent possible, H.P. and others in his position from engaging in similar behaviour in future.
[11] There are also several important mitigating factors in this case.
[12] First, H.P. has no criminal record. He was also 24 years old at the time of the offence, which is relatively young. Individual deterrence and rehabilitation take on greater significance in sentencing someone for the first time. Even if a jail sentence is required, as it is in this case, I must exercise restraint because H.P. is a first offender. In other words, I must impose the shortest sentence that would still satisfy principles of denunciation and deterrence: R. v. Thurairajah, 2008 ONCA 91 at paras. 41 and 42, R. v. Brown, 2015 ONCA 361 at para. 7 and R. v. Dirie, 2018 ONSC 5536.
[13] Second, H.P. has expressed remorse for the harm he caused B.M.. He wrote her a letter of apology, which he read in court. B.M. was told in advance that H.P. had written her an apology. She was asked if she wanted a copy of the letter and if she wanted to be in Court when H.P. read the letter. She chose to be in the Court when H.P. read the apology letter.
[14] The Crown argued that H.P.’s expression of remorse should be given little, if any, weight because H.P. told the probation officer who prepared the Pre-Sentence Report that he did not know how intoxicated B.M. was and he thought she was consenting. The probation officer also wrote that H.P. “accepted responsibility for his offence although he felt the situation was a misunderstanding.” The Crown argued that these statements demonstrate that H.P. does not accept responsibility for his conduct.
[15] Defence counsel advised that H.P. wrote the letter because he felt the Pre-Sentence Report did not accurately reflect his feelings about what had happened.
[16] I accept H.P.’s letter as a sincere expression of his remorse for hurting B.M.. I appreciate that the letter was written after the finding of guilty and after he received both the Pre-Sentence Report and B.M.’s Victim Impact Statement. Whatever caused H.P. to come to terms with the impact of his behaviour on B.M., I accept that he now realizes the seriousness of what he did and is sorry for it.
[17] Third, H.P. has relatively good rehabilitative prospects. He has ongoing support in the community from his current partner and his family, all of whom know about his conviction. He also has a strong employment history. Both these factors will help H.P. reintegrate into society after serving the custodial portion of his sentence.
[18] H.P.’s rehabilitative prospects would have been a stronger mitigating factor if he had taken some steps to address his use of alcohol, which appears to have been a significant factor in this case. Clearly, the fact that H.P. was drunk at the time of the offence does not, in any way, excuse his behaviour. In fact, I am worried that H.P. is continuing to drink without having addressed how his alcohol consumption contributed to his past criminal behaviour.
[19] H.P.’s rehabilitation would also be a more significant mitigating factor if he had pursued some sort of counselling or education to ensure that he fully understands what constitutes consent in general and in the context of intimate relationships. Again, I am not saying that H.P.’s apparent lack of understanding of consent makes this offence less serious. I am simply noting that any rehabilitative program I impose must include counselling or education to ensure that H.P. truly understands what constitutes consent and what does not constitute consent.
[20] Balancing the mitigating and aggravating factors in this case, I am of the view that a sentence of 12 months in jail is appropriate. I appreciate this is on the low end of the range of sentences imposed in similar cases in the past. Sentencing ranges are just guidelines. They do not displace the principles of proportionality and restraint that apply in this case.
[21] H.P. is a relatively young first-time offender who committed a serious sexual assault on his intimate partner that caused her lasting harm. I have no doubt that a 12-month sentence, and the long-term consequences that will come with it, will impress on H.P. the seriousness of his behaviour and will deter him from engaging in any similar conduct in the future.
[22] No sentence can undo the harm B.M. suffered. Nonetheless, I hope that by giving H.P. a significant term of imprisonment, I am sending a clear message to her, to society and to others in H.P.’s situation that engaging in non-consensual sexual activity with an intimate partner will be taken very, very seriously by this Court.
[23] To promote H.P.’s ongoing rehabilitation, I am also going to impose a term of probation for 24 months. In addition to the statutory terms of probation, the following conditions will be included in the probation order:
a. Report to a probation officer within 72 hours of your release from custody and thereafter as directed;
b. Do not have contact with B.M. directly or indirectly through any means;
c. Do not go within 100 metres of any place that you know B.M. to live, work or go to school;
d. Do not go within 100 metres of any place you know B.M. to be;
e. Attend and participate in counselling as directed by your probation officer for
i. Preventing alcohol abuse;
ii. Maintaining healthy relationships;
iii. Understanding consent in intimate and casual sexual relationships; and
iv. Any other issue identified by your probation officer;
f. Complete 100 hours of community service within the first 12 months of your probation. Your community services should be in some way related to addressing the prevalence of sexual assault in society and promoting a better understanding of consent by other young adults, if possible and if deemed appropriate by your probation officer;
g. Seek or maintain employment or education on a full-time basis, to the extent that does not interfere with your obligation to complete counselling and community service; and
h. Sign any consents or release of information forms required to allow your probation officer to monitor your compliance with this probation order.
[24] H.P. will be required to provide a sample of his DNA for forensic analysis pursuant to s. 487.051(1) of the Criminal Code. There will also be an order under s. 490.012(1) of the Code requiring H.P. to comply with the Sex Offender Information Registration Act for 20 years.
Davies J.
Released: November 5, 2019
COURT FILE NO.: CR-18-50000350-0000
DATE: 20191105
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
H.P.
REASONS FOR SENTENCE
Davies J.
Released: November 5, 2019