COURT FILE NO.: CR-19-70000473 DATE: 2020-05-04
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
THOMAS JOHN STUDD
COUNSEL: David Spence, for the Crown Christopher O’Connor, for Mr. Studd
HEARD: April 29, 2020
BEFORE: 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 By order of this court, any information that could identify the Complainant shall not be published in any document, broadcast or transmission.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. Overview
[1] Mr. Studd pled guilty to one count of sexual assault with a weapon and one count of sexual assault. The victim of each offence is Mr. Studd’s former partner, T.N.
[2] On December 17, 2018, Mr. Studd and T.N. were engaged in consensual sexual activity. Mr. Studd admits that during that encounter, he inserted a bottle into T.N.’s vagina without her consent. T.N. clearly told him to stop but he did not stop immediately. After approximately 15 seconds, Mr. Studd removed the bottle and later apologized to T.N.
[3] Mr. Studd videotaped the December 17, 2018 sexual assault. The video of that assault was uploaded to a pornographic website without T.N.’s consent. The video was viewed close to 1000 times before it was removed at the request of the police.
[4] Mr. Studd also admits that on January 10, 2019, while T.N. was sleeping, he cut her underwear and touched her vagina. Mr. Studd videotaped that sexual assault as well. He showed the video to T.N. the following morning. That video was not posted online.
[5] Mr. Studd pled guilty on March 10, 2020. Mr. Studd’s sentencing hearing was scheduled for April 7, 2020 but was adjourned when the Court suspended normal operations because of the COVID-19 public health emergency. Mr. Studd’s sentencing hearing proceeded by teleconference on April 29, 2020. T.N. was invited to attend the hearing by telephone but chose not to do so.
[6] The Crown argues that the appropriate sentence in this case is four years in custody: two and a half years for the first sexual assault and a year and a half for the second. The defence takes the position that once Mr. Studd is given credit for pre-sentence custody and the harsh conditions at the Toronto South Detention Centre (TSDC), he has already served enough time in custody to satisfy the principles of denunciation and deterrence.
[7] The issues for me to decide in this case are as follows:
(a) What is the appropriate sentence in this case given the aggravating and mitigating factors?
(b) How much credit should Mr. Studd be given for his pre-sentence custody?
(c) Should Mr. Studd’s sentence be further reduced as a result of the risks associated with COVID-19?
[8] For the reasons that follow, I find the appropriate sentence in this case is 33 months in custody: 24 months for the first sexual assault and 9 months for the second. I find that Mr. Studd is entitled to 681 days' credit for the time he spent in pre-sentence custody. He is entitled to a further 198 days' credit for all the lockdowns he experienced at the TSDC. He has, therefore, already served the equivalent of approximately 29 months. I am prepared to reduce his sentence by four months because of the risk he would face if he were to remain in custody of contracting COVID-19 and being subject to further lockdowns as a result of the public health emergency. I, therefore, sentence Mr. Studd to one day in custody to be followed by a period of probation for two years.
B. What is the appropriate sentence having regard to the mitigating and aggravating factors?
[9] Every sexual assault is inherently violent and demeaning, and it undermines the complainant’s personal integrity. Any sentence imposed in a sexual assault case must focus on denunciation and deterrence.
[10] There is, however, a wide range of conduct that will constitute a sexual assault. As a result, some sexual assaults will attract much longer sentences than others to reflect the relative seriousness of the conduct in question.
[11] The sentence range for cases involving forced intercourse with an intimate partner or former partner is 21 months to four years' imprisonment.[^1] In this case, the first incident involved forced penetration with a bottle. The second incident involved touching with no penetration.
[12] In 2015, the Criminal Code was amended to require sentencing judges to consider giving consecutive sentences when sentencing an individual for more than one offence if the offences “do not arise out of the same event or series of events”: Criminal Code, s. 718.3(4)(b)(i).
[13] Here, the Crown chose to charge each incident as a separate offence and Mr. Studd pled guilty to two separate offences that occurred on different days. In other cases, the Crown will choose to file an indictment with a single count that covers a number of incidents of sexual assault. In cases involving multiple incidents charged as a single count, the Court of Appeal has held that cases falling at the low end of the 21-month to 4-year range typically involve a single incident.[^2]
[14] I find that consecutive sentences are appropriate in this case. Although T.N. is the victim of both sexual assaults and they both took place during their relationship, they do not arise from the same event or series of events. I also find that the sentence for the first sexual assault must be much longer than the sentence for the second sexual assault to reflect the fact that the first sexual assault involved vaginal penetration with an object. Finally, I find that the total sentence imposed for both offences cannot be at or near the bottom end of the established range for these offences.
[15] There are a number of other features of these sexual assaults that makes them serious.
[16] The fact that Mr. Studd and T.N. were in an intimate relationship is an aggravating factor on both counts: Criminal Code, s. 718.2(a)(ii).
[17] In relation to the first assault, T.N. clearly communicated she was not consenting to Mr. Studd inserting the bottle into her vagina. The fact that she consented to other sexual activity with Mr. Studd moments before the assault does not make the non-consensual sexual activity less serious.[^3] The onus was on Mr. Studd throughout to ensure that T.N. was consenting and continued to consent to each sexual act he initiated. He did not do that. Rather, he acted without obtaining her consent in advance and then ignored her when she said she wanted him to stop. This shows a clear disregard for T.N.’s autonomy and personal security.
[18] The fact that the video of the first incident was posted online without T.N.’s consent is also an aggravating factor. This represents the most profound invasion of T.N.’s privacy and personal security.
[19] T.N. was asleep when the second assault occurred. This is also an aggravating factor. A person is at their most vulnerable when they are asleep. People trust their intimate partners not to abuse them when they are not conscious. As the Alberta Court of Appeal noted in R. v. Arcand, sexually assaulting a person who is asleep is treating that person as “an object to be used – and abused – at will.”[^4] The fact that Mr. Studd videotaped the second assault adds to the objectification of T.N. and to the seriousness of that incident.
[20] These offences have had a significant impact on T.N. She described in her victim impact statement how these offences have caused her to experience depression and anxiety. She is less trusting of others and has distanced herself from people in her life. She has less energy and does not want to participate in activities she once enjoyed.
[21] The sentence imposed in this case must also take into account Mr. Studd’s personal circumstances and any mitigating factors.
[22] Mr. Studd is 55 years old. He has a very lengthy criminal record consisting mostly of property offences and failing to comply with Court orders. Counsel advised that Mr. Studd has addiction issues and many of his past convictions relate to his addiction. Importantly, Mr. Studd has never been found guilty of sexual assault before. He only has two prior convictions for assault on his record from 1988 and 2013. He also has one prior conviction for assault with intent to resist arrest from 1995. The longest sentence he received for any crime of violence in the past is 45 days in custody.
[23] The most important mitigating factor in this case is that Mr. Studd pled guilty. He has taken full responsibility for his conduct and saved T.N. from having to testify at trial.
[24] Mr. Studd also expressed his remorse for his conduct. When asked if he had anything to say, Mr. Studd said that all he wants is for T.N. to be able to move on from the harm he caused. I have no doubt that Mr. Studd’s comments were sincere.
[25] Finally, Mr. Studd completed eight educational programs while in custody that will contribute to his long-term rehabilitation, including “Connections”, “Supportive Relationships”, “Anger Management”, “Substance Abuse” and “Managing Stress”. These programs are relevant to the root causes of these offences and his past offending behaviour. I find that by completing these programs, Mr. Studd has demonstrated insight into the issues he needs to address and has taken positive steps towards his own rehabilitation.
[26] Having considered all the mitigating and aggravating factors in this case, I find that a sentence of 24 months is appropriate on the first incident and 9 months is appropriate on the second. Sentencing is a highly individualized process. No two cases are alike. Nonetheless, the Crown provided me with two cases in which a sexual assault was committed using a bottle that provided me with some guidance in this case.
[27] In R. v. Wobbes, the Court of Appeal upheld a 26-month sentence for an individual convicted as a party to a sexual assault in which the complainant was penetrated with a bottle and her pubic hair was shaved off.[^5] There are two significant features of that case which are not present here. First, Mr. Wobbes was convicted after a trial. He, therefore, was not entitled to the mitigation of sentence that typically follows a guilty plea, although he was a youthful first offender, which was a mitigating factor not present here. Second, that case involved a sexual assault perpetrated by three people at the same time. That is a significant aggravating factor that is not present here. Again, without in any way meaning to minimize the seriousness of Mr. Studd’s conduct, his case is less serious than Wobbes and, as a result, a lower sentence is justified.
[28] In R. v. J.A.P, the Court imposed a sentence of two years less a day for an accused who was found guilty after a trial of sexual assault with a weapon and sexual assault causing bodily harm.[^6] The two offences in J.A.P. related to the same incident in which the accused inserted a beer bottle into the victim’s vagina, causing her serious injury. The trial judge found that J.A.P. continued to show a lack of remorse for the victim, telling the probation officer that he hoped that the victim “rots in hell”. The Court considered imposing a three-year sentence but gave J.A.P. a sentence of two years less a day to reflect the fact that he had no criminal record. Again, there are aggravating factors in J.A.P. that are not present in Mr. Studd’s case, including the injuries caused to the victim and the absence of remorse. This might suggest that Mr. Studd should be given a sentence of less than two years in relation to the first offence. However, J.A.P. is a decision from 20 years ago. This Court’s approach to sentencing in sexual assault cases has evolved significantly over the last 20 years. A much higher sentence would likely be imposed now in a case with facts comparable to J.A.P. Nonetheless, when considered together with the decision in Wobbes, the decision in J.A.P. provides some support for my conclusion that a sentence of two years is appropriate for Mr. Studd in relation to the first offence given that T.N. suffered no injuries, Mr. Studd has taken full responsibility for his conduct and has demonstrated clear remorse.
[29] The fit and appropriate sentence in this case is 24 months in relation to the sexual assault with a weapon and nine months in relation to the sexual assault, to be served consecutively.
C. How much credit should Mr. Studd be given for his pre-sentence custody?
[30] Mr. Studd has spent 454 days in pre-sentence detention. The Crown agrees that he should be given one and a half days of credit for each day he has spent in pre-sentence detention. He has, therefore, served the equivalent of 681 days in custody, or approximately 22 and a half months.
[31] Mr. Studd has been detained at the TSDC since February 8, 2019. During that time, there have been 204 full or partial lockdowns at the institution.[^7] In other words, Mr. Studd has been subjected to some sort of lockdown almost 45 percent of the time he has been in custody. The TSDC provided an explanation for each lockdown. All but six of the lockdowns Mr. Studd experienced were caused by a staff shortage at the institution. Counsel for Mr. Studd argues that he is entitled to enhanced credit because of the persistent problem with lockdowns at the TSDC.
[32] Particularly harsh conditions in pre-sentence custody can provide mitigation beyond the 1.5 credit referred to in the Criminal Code.[^8] Several decisions from this Court have granted additional credit to individuals held at the TSDC because of complete or partial lockdowns.[^9] There is no formula for calculating the amount of enhanced credit to be given for unacceptably strict conditions in pre-sentence detention. Whether and how much credit is appropriate depends on the conditions of pre-sentence detention and the impact of those conditions on Mr. Studd.
[33] The Crown does not dispute that Mr. Studd should be given enhanced credit because of the harsh conditions at the TSDC. The Crown argued that Mr. Studd should be given one day credit for each full lockdown he experienced because of staff shortages. However, the Crown argued that Mr. Studd should be given no credit or less than one full day credit for partial lockdowns caused by staff shortages. I disagree. It is not simply the number of hours that detainees are locked down that make the conditions at the TSDC intolerable. It is the persistence of the problem, the cumulative effect of repeated lockdowns and the unpredictability of how long any lockdown will last that causes unacceptable stress and tension for the detainees.
[34] Occasional lockdowns for security or operational issues are to be expected in large correctional facilities like the TSDC. However, the number of lockdowns at the TSDC is simply unacceptable and the reason for the lockdowns is unconscionable. Staff shortages at the TSDC have been a problem for years.[^10] The failure to address this problem reflects a shocking lack of concern on the part of the institution and/or the government to the rights of individuals detained in pre-trial custody. Adequate resources must be allocated to ensure that inmates in pre-sentence custody are treated in a humane manner.
[35] I find that Mr. Studd is entitled to one additional day of credit for each one of the 198 days he experienced a lockdown because of staff shortage at the TSDC. When added to Mr. Studd’s statutory credit for pre-sentence detention, he has served the equivalent of 879 days in custody, which amounts to almost exactly 2 years and 5 months.
D. Should Mr. Studd’s sentence be further reduced as a result of the risks associated with COVID-19?
[36] The remaining question is whether Mr. Studd’s sentence should be further reduced to account for the risk of contracting COVID-19 in custody and the conditions in which he will be detained if a further period of imprisonment is imposed.
[37] The Crown filed a document entitled “Response to COVID-19 Information Note” dated April 28, 2020 that was prepared by the Ministry of the Solicitor General. It sets out, in general terms, the Ministry’s response to the pandemic.
[38] While I accept that the Ministry is taking the pandemic seriously, the physical structure of correctional institutions does not allow detainees to physically distance themselves from other detainees or staff, which is one of the key recommendations of Ontario Public Health.[^11] The Court of Appeal recently held that judges can take judicial notice of “the fact of the COVID-19 pandemic, its impact on Canadians generally, and the current state of medical knowledge of the virus, including its mode of transmission and recommended methods to avoid its transmission”.[^12]
[39] In addition, it does not appear that detainees are able to decide for themselves whether to wear personal protective gear while in custody. The Information Note says that as of April 27, 2020, staff and visitors are required to wear masks at all times while in the institutions. However, the Information Note says that detainees are only provided with personal protective equipment “where necessary”. This suggests that detainees are not being provided with masks and other personal protective equipment on a routine basis to wear at their own discretion.
[40] There has already been a significant outbreak at one correctional institution in Ontario, the Ontario Correctional Institute, where more than 82 detainees and 22 staff have tested positive for COVID-19. Again, I do not mention this to criticize the Ministry’s response to that outbreak. Rather, it simply demonstrates the reality that the virus can spread quickly and widely within an institution where people are confined and cannot engage in proper physical distancing or other protective measures.
[41] I am entitled to consider whether a particular sentence would have a more significant impact on Mr. Studd because of his circumstances.[^13] I heard that Mr. Studd has a compromised immune system because of medication he is taking for a pre-existing condition. Given the current state of medical knowledge about COVID-19, I find that Mr. Studd is likely at a heightened risk in relation to the virus.
[42] The Supreme Court of Canada has recognized that there will be situations that call for a sentence outside the normal sentencing range because of the specific circumstances of a particular case.[^14] However, proportionality must still prevail. Individual or collateral consequences cannot reduce a sentence to the point that it becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender.[^15]
[43] The risks posed by the COVID-19 pandemic to those who are incarcerated is one of those circumstances that can be taken into account when deciding whether a sentence below what would otherwise be imposed is nonetheless just and appropriate.[^16] Were it not for the COVID-19 pandemic, I would order Mr. Studd to serve a further four months in custody.
[44] If I sentenced Mr. Studd to a further four months in jail, he would be subject to particularly harsh conditions throughout that time. He would face an ongoing risk of infection. He would also experience restrictive conditions as correctional institutions attempt to prevent infections and manage any outbreaks.
[45] As the Court noted in R. v. Hearn, our sense of community, decency and humanity during this public health emergency must extend to incarcerated individuals. If the time an individual has already served in custody will address the principles of sentencing, even imperfectly, the Court should not impose a further term of imprisonment in the unique circumstances of the current global health crisis. In those cases, a sentence that will ensure immediate release from custody will be just and appropriate, even if it is below the range that might otherwise be imposed.[^17]
[46] I am satisfied that the 29 months already served by Mr. Studd will adequately, if not perfectly, denounce his very serious and violent conduct. It will also serve to deter him and others from similar conduct to the extent that any particular sentence has that effect. While a 29‑month sentence is slightly below the sentence I would ordinarily impose, it is not dramatically outside the range nor disproportionate.
[47] Having regard to the real risk associated with ongoing incarceration during the COVID‑19 pandemic, I sentence Mr. Studd to one day in custody followed by a period of probation for two years. The terms of his probation will be:
(a) Report to a probation officer before 5pm EST on Friday May 8, 2020 and thereafter as required;
(b) Do not contact the complainant, T.N., directly or indirectly through any means;
(c) Do not go within 50 metres of anywhere you know T.N. lives or works;
(d) Do not go within 50 metres of anywhere you know T.N. to be;
(e) Attend, participate and complete any counselling recommended by your probation officer to address issues related to healthy intimate relationships and consent; and
(f) Sign any authorizations or consents required to allow your probation officer to monitor your compliance with the terms of your probation.
[48] Mr. Studd will be required to provide samples of his bodily substances for the purpose of forensic DNA analysis: Criminal Code, ss. 487.04 and 487.051(a). In addition, Mr. Studd is prohibited from possessing any firearm, other than a prohibited or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive for a period of 10 years, and any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life: Criminal Code, s. 109. Finally, Mr. Studd is required to comply with the Sex Offender Registration Act for life: Criminal Code, s. 490.013(2.1).
COURT FILE NO.: CR-19-70000473 DATE: 2020-05-04
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
THOMAS JOHN STUDD
REASONS FOR SENTENCE
Davies J.
Released: May 4, 2020
[^1]: R. v. H.E., 2015 ONCA 531 at para. 44, R. v. Smith, 2011 ONCA 564 at para. 87 [^2]: H.E., supra at para. 44 [^3]: R. v. Garrett, 2014 ONCA 734 at para. 20 [^4]: R. v. Arcand, 2010 ABCA 363 at paras. 282 - 283 [^5]: R. v. Wobbes, 2008 ONCA 567 at paras. 1 - 2, 75 [^6]: R. v. J.A.P., [1999] O.J. No. 690 (Gen. Div.) [^7]: Counsel obtained lockdown records from the TSDC, which show that there were 198 full or partial lockdowns between February 9, 2019 and April 6, 2019. Mr. Studd advised the Court that he believes there have been six lockdowns since April 6, 2019. Both counsel agreed that I should accept Mr. Studd’s evidence on this point, which brings the total number of lockdowns to 204. [^8]: R. v. Duncan, 2016 ONCA 754 at para. 6 [^9]: For example, in R. v. Ward-Jackson, 2018 ONSC 178, Kelly J. gave an additional 485 days of credit because Mr. Ward-Jackon had been subject to full or partial lockdowns on 488 days (or 40% of his time) in pre-sentence detention. Similarly, in R. v. Dibben (unreported, September 8, 2017), McMahon J. granted 420 days credit for 383 days of lockdowns at the TSDC. In R. v. Jama, 2018 ONSC 1252, Goldstein J. gave an additional 120 days credit for 175 days of lockdown at the TSDC. [^10]: R. v. Persad, 2020 ONSC 188 at para. 2 and 29 [^11]: See, for example, https://www.publichealthontario.ca/-/media/documents/ncov/factsheet/factsheet-covid-19-guide-physical-distancing.pdf?la=en [^12]: R. v. Morgan, 2020 ONCA 279 at para. 8 [^13]: R. v. Suter, 2018 SCC 34 at para. 48 [^14]: R. v. Lacasse, 2015 SCC 64 at para. 58 [^15]: Suter, supra at para. 56 [^16]: R. v. Hearns, 2020 ONSC 2365 at para. 18 [^17]: Hearns, supra at para. 24