Court File and Parties

Court File No.: CR-18-10000204-0000 Date: 2020-06-10 Ontario Superior Court of Justice

Between: Her Majesty the Queen Brigid McCallum for the Crown

- and -

Tyler Carter Leah Shafran for Tyler Carter

Heard: June 9, 2020

Reasons for Sentence

Subject to any further order by a court of competent jurisdiction, an order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way.

Corrick J. [orally]

Introduction

1On June 9, 2020, Mr. Carter pleaded guilty to two counts of sexual interference, contrary to s. 151 of the Criminal Code. He did so by teleconference from the Toronto East Detention Centre due to the suspension of normal court operations as a result of the COVID-19 pandemic. One of the complainants, L. D., also joined by teleconference.

2Counsel have jointly submitted that a sentence of two years less one day to be followed by three years probation is the appropriate disposition. Counsel agree that the sentence Mr. Carter receives should be reduced to account for the amount of time he has already served in custody, pursuant to s. 719 of the Criminal Code and R. v. Summers.

3Counsel part company on whether Mr. Carter’s sentence should be further reduced as a result of the risks associated with COVID-19 in the prison setting.

The Facts

4The facts giving rise to the guilty pleas were set out in an Agreed Statement of Fact. They can be summarized as follows.

5In September 2016, Mr. Carter, who was 22 years old, began corresponding through Facebook Messenger, with the two complainants, his cousin, D.S. and her friend, L.D. The messages were often sexual in nature. Both girls were 14 years old and had just started grade nine.

6On October 5, 2016, Mr. Carter met the two complainants on the grounds of Hodgson Middle School. Mr. Carter kissed L.D. The three of them left the school grounds and walked around a cemetery. Mr. Carter made repeated sexual advances on L.D. while they were at the school, in the cemetery, and in a wooded area. Mr. Carter had unprotected vaginal intercourse with L.D. in the wooded area.

7Following this, Mr. Carter and the two complainants went into a shed on the top of an office building. There, he had unprotected oral sex and vaginal intercourse with both girls. Mr. Carter ejaculated once onto his shirt, and once in D.S.’s mouth. He asked her to swallow his semen, which she did.

8The complainants’ families learned of these incidents a few days later after L.D. disclosed them to the vice-principal of a school.

9Mr. Carter was arrested on October 7, 2016. At the time, he was bound by an undertaking from the Winnipeg Police Service, which included a condition to keep the peace and be of good behaviour.

Personal Background

10Mr. Carter’s background is set out in great detail in an assessment report prepared by Dr. Nina Vitopoulos, which is marked as an exhibit in these proceedings.

11Mr. Carter is 25 years old. He was born in Toronto and moved to Winnipeg in 2005 with his parents. He described his home life as violent. He witnessed violence between his parents and was himself a victim of physical punishment. His parents separated in 2009 when he was 15 years old, and over the next seven years he moved between his mother’s and father’s house in Toronto and Winnipeg. He has been living in Toronto since 2016. Although he had an address when he went into custody, he was homeless for a significant period of time, living in youth shelters, where he was exposed to other traumatic events.

12Mr. Carter is socially isolated. He no longer has any relationship with his parents. Although he has three children from two relationships, he has no contact with them. He reported having one friend whom he met at a youth shelter. He is reluctant to get close to other people.

13Mr. Carter has little formal education, having left high school in grade 10. He reported having been bullied in school and being expelled for getting into fights. He was in the process of obtaining his high school diploma in custody but was unable to complete it when the COVID-19 pandemic struck, and his exam was cancelled. Since 2017, he has worked in several tire shops and as a semi-professional wrestler.

14At the time of these offences in 2016, Mr. Carter had no criminal record. Since that time, he has amassed seven entries on his criminal record. They include two counts of mischief under $5000, possession of a scheduled substance, four counts of assault, assault with a weapon, two counts of utter threats, and breach of probation. He has not previously been sentenced to a period of incarceration longer than 60 days.

15Dr. Vitopoulos conducted a thorough psychological assessment of Mr. Carter and the results are detailed in her report. Rather than summarize all of her findings, I am going to order that the report be sent to the custodial institution where Mr. Carter is incarcerated.

16According to the report, Mr. Carter is dealing with several complex mental health challenges, none of which have been treated. He has been diagnosed with complex Post-Traumatic Stress Disorder, Cannabis Use Disorder, Borderline Personality Disorder, Intermittent Explosive Disorder, Generalized Anxiety Disorder and Major Depressive Disorder. There is no indication that Mr. Carter has a preference for children as sexual partners or that he is at risk of future sexual violence.

17Dr. Vitopoulos reported that Mr. Carter has good insight into how these challenges affect his everyday functioning and is highly motivated to seek treatment. Unfortunately, in the past, he was advised that as a man there was no treatment available to him for his Post-Traumatic Stress Disorder and Borderline Personality Disorder. This led to Mr. Carter feeling hopeless.

18The doctor disagrees that no treatment is available. She recommends Dialectical Behaviour Therapy for Mr. Carter and provides several options for accessing this treatment. She also recommends that further investigation be done to determine what effect the multiple concussions Mr. Carter has suffered during his wrestling career has had on his mental health.

19It is clear from this report that treatment is critical if Mr. Carter is to remain out of the criminal justice system.

Aggravating and Mitigating Circumstances

20In determining that the joint submission of two years less one day satisfies all the principles of sentencing, I have considered the following aggravating and mitigating circumstances.

21The complainants in this case were 14 years of age. Mr. Carter took no steps to determine their age before he engaged in sexual activity with them. The age of the complainants is itself a statutory aggravating factor, pursuant to s. 718.2 (a)(ii.1) and s.718.01 of the Criminal Code.

22These offences were committed against two young girls. Multiple acts of sexual interference were committed against each complainant. Mr. Carter did not use any protection putting the young girls at risk.

23The impact of sexual violence against children is well recognized. It can lead to everlasting psychological trauma, fear, a loss of self-esteem, a lack of trust of others, an inability to form relationships, and challenges with intimacy. This is vividly laid out in the victim impact statement of the complainant, L. D., which was before the court. L. D. wrote about her feelings of guilt, embarrassment and shame. She has difficulty trusting people and it takes her a long time to become comfortable with anyone. Her performance at school has suffered, as have her relationships with her family. She is angry. She has clearly suffered as a result of these offences.

24In mitigation, I have considered the fact that at the time of these offences Mr. Carter had no criminal record. He was also relatively youthful, being only 22 years of age.

25He has pleaded guilty to these offences and spared the complainants the trauma of having to testify at a trial. He has accepted responsibility for these crimes. This is an important first step in his rehabilitation. Mr. Carter addressed the court and indicated that he was sorry for these offences, recognized that he had made very bad choices, and did not want to cause the complainants any more pain.

26There are good reasons to hope that Mr. Carter can be rehabilitated. He has developed realistic and pro-social goals for himself. He intends to complete his high school education and study to become a motorcycle and car mechanic. He intends to return to Winnipeg where he has more of a support network. He has developed insight into his mental health challenges, is strongly motivated to seek treatment and has concrete options from Dr. Vitopoulos to access that treatment.

Joint Submission

27The importance of joint submissions in the administration of criminal justice has been acknowledged by Canadian courts, including the Supreme Court of Canada. The test for rejecting a joint submission is relatively high and was set by the Supreme Court of Canada in R. v. Anthony-Cook. A trial judge ought not to depart from a joint submission proposed by counsel unless the proposed sentence would bring the administration of justice into disrepute or would otherwise be contrary to the public interest. In all of the circumstances of this case, the proposed sentence of two years less one day to be followed by three years probation would not bring the administration of justice into disrepute and is not contrary to the public interest.

Credit for Pre-Sentence Custody

28Counsel agree that Mr. Carter ought to receive credit for the 189 days he has spent in pre-sentence custody. Crown counsel submits that he should receive 1.5 days for each day in pre-sentence custody. Ms. Shafran submits that Mr. Carter ought to receive three days for each day Mr. Carter has been in custody during the COVID-19 pandemic. In the alternative, Ms. Shafran submits that I ought to consider the impact of COVID-19 on incarcerated individuals as a collateral consequence and reduce the sentence accordingly. She submits that the final sentence should be 10 months and 17 days.

29I do not disagree with Ms. Shafran that the pandemic has increased the stress on prison inmates and has increased the hardship of being incarcerated. However, in my view, the proposed sentence of two years less one day for these very serious offences is already a lenient sentence. To reduce it further as a result of collateral consequences will result in a sentence that is no longer proportionate to the gravity of the offences and Mr. Carter’s moral blameworthiness. For this reason, I am not going to credit Mr. Carter with any time other than that permitted by s. 719 and R. v. Summers.

Sentence

30Mr. Carter, you are sentenced to two years less one day on each count to be served concurrently. You will be credited with 284 days for the 189 days that you have spent in pre-sentence custody, leaving 445 days remaining to be served.

31In addition, you will be placed on probation for a period of three years, the terms of which I will outline in a moment.

Recommendations

32I urge the correctional authorities to make every effort to ensure that Mr. Carter receives the treatment that he badly requires and wants. This is the only way to assist Mr. Carter to become a contributing member of society and to ultimately protect the public. I fear that without it, Mr. Carter will be back before the courts again.

33I recommend that Mr. Carter serve his sentence at the St. Lawrence Valley Correctional and Treatment Centre or other like facility. I am directing that the psychological assessment report prepared by Dr. Vitopoulos and a copy of these reasons be sent to the Toronto East Detention Centre and forwarded to the institution where he will ultimately serve his sentence.

Probation Order

34Following the completion of his custodial sentence, Mr. Carter will be placed on probation for a period of three years. I am recommending that his probation be transferred to Winnipeg if he moves there to live. In addition to the statutory conditions, the conditions of probation are as follows:

1. Report to a probation officer immediately upon release and thereafter as required.
2. Have no contact, direct or indirect, with the complainants, D.S. and L.D.
3. Not be within 100 metres of D.S.’s or L.D.’s place of residence, employment or education, or any other place where you know them to be.
4. Take any counselling your probation officer directs.
5. Sign any releases of information necessary to allow your probation officer to monitor your compliance with the counselling condition.

Ancillary Orders

35Mr. Carter will be subject to the following ancillary orders:

1. an order pursuant to s. 743.21 of the Criminal Code prohibiting him from communicating directly or indirectly with D.S. and L.D. during the custodial part of his sentence;
2. an order pursuant to s. 487.051(1) of the Criminal Code that he provide a sample of a bodily fluid for the purpose of forensic DNA analysis;
3. an order pursuant to s. 490.012 of the Criminal Code that he comply with the Sex Offender Information Registration Act for a period of 20 years;
4. an order pursuant to s. 161(a.1) of the Criminal Code prohibiting him from being within two kilometres of any dwelling house where D.S. or L.D. resides for a period of ten years; and
5. an order pursuant to s. 161 (b) of the Criminal Code prohibiting him from seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years for a period of ten years.

Corrick J.