COURT FILE NO.: 45/18
DATE: 2020/02/12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Vanessa Decker, for the Crown
- and -
WOPATSHU UKUMU
Defendant
Cassandra DeMelo, for the offender
HEARD: January 13, 2020
RESTRICTION ON PUBLICATION
By court order made under s. 486.4 of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
REASONS FOR SENTENCE
LEACH J. (ORALLY)
Introduction
[1] Before me for sentencing is Mr Wopatshu Ukumu who, on September 30, 2019, following a trial by judge alone, was found guilty of having committed a sexual assault on E.T. on November 1, 2016, here in the City of London, contrary to s.271 of the Criminal Code of Canada, (“the Code”).
[2] Following my rendering of judgment on September 30, 2019, the matter was adjourned to be spoken to in the next assignment court, (eight days later), for scheduling of a date for the delivery of sentencing submissions; a process which resulted in the setting of January 13, 2020, for the further return of the matter before me.
[3] Prior to the matter being adjourned on September 30, 2020, the possible preparation of a presentence report pursuant to s.721 of the Code was raised but not directed, as it was felt that Mr Ukumu had few contacts here in Canada whom a probation officer might consult, (for reasons I will outline later, in discussing the circumstances of Mr Ukumu), and counsel were confident that Mr Ukumu’s situation could be conveyed adequately through counsel submissions, information about Mr Ukumu’s circumstances that had been conveyed during the course of a voir dire hearing in this matter that proceeded before me in January of 2019, (which led to my mid-trial ruling delivered on June 17, 2019), and/or other information presented during the trial.
[4] Counsel and Mr Ukumu then appeared before me on January 13, 2020, for the tendering of sentencing submissions.
[5] As I indicated earlier today, and noted to counsel through the trial coordinator shortly after counsel’s appearance on January 13, 2020, Mr Ukumu, through my inadvertence, nevertheless was not asked that day to provide any direct comments to me pursuant to s.726 of the Code, so the matter was adjourned again to this morning, (through an intervening appearance in London’s assignment court), to ensure arrangements were in place so that Mr Ukumu would be provided with that opportunity today.
[6] In particular, my intention was to call on Mr Ukumu for any comments he wished to make and, if he did make any comments, to consider and reflect on those comments at greater length during the course of today before finalizing my sentencing decision.
[7] In the result, however, Mr Ukumu declined that s.726 opportunity when it was offered to him, and indicated that he had nothing he wished to say to me directly in relation to sentencing.
[8] I then stood the matter down again, briefly, to finalize my sentencing reasons, having considered and reflected on all the information I had received, including the victim impact statement of Ms T., counsel submissions, and the various sentencing precedents submitted to me by counsel, to arrive at a final determination of an appropriate sentence, and imposition of that sentence.
Circumstances of the offence
[9] I begin with consideration of the circumstances of the offence in respect of which Mr Ukumu has been convicted.
[10] They were outlined in considerable detail during the judgment I delivered on September 30, 2019, and I accordingly will not replicate all of those many details here. I have regard to all those details, and these sentencing reasons accordingly should be considered together with my earlier judgment, as far as the circumstances of the underlying offence are concerned.
[11] For present purposes, however, I think it sufficient to summarize the details of those circumstances, albeit in a still extended fashion, as follows:
a. On the evening of October 31, 2016, the victim in this matter, E.T., went on a planned social outing with a male companion, O.G., here in the city of London. The two had known each other and been friendly for a few months, and the planned outing was in the nature of a “first date”.
b. The two began the evening with an initial meeting at the home of Ms T. in the east end of London, (where marihuana was smoked and alcohol was consumed), after which they proceeded by taxi, in Halloween costumes, to a particular bar on “Richmond Row” in downtown London where they consumed more alcohol, and enjoyed dancing and other socializing with friends.
c. Ms T. and Mr G. left the bar in question at approximately 1:30am, by which time both had consumed a significant amount of alcohol over the course of their time together, with Ms T. in particular having consumed 2-3 full shot glasses of whisky while the couple were at her residence, followed by 3-4 glasses of beer and a “couple” full shot glasses of a “white liquor”. (either vodka or rum), while the couple were at the bar.
d. After leaving the bar, the couple walked south on Richmond Street to a small restaurant selling slices of pizza, where they stopped for a time, getting something to eat.
e. The couple then proceeded further south along Richmond Street to Dundas Street, (the main east-west thoroughfare that passes through the centre of downtown London), where they turned east, and began walking along the north side of Dundas Street towards Ms T.’s distant residence in east London. By that time, it was approximately 3:12am, and the early morning temperatures were frigid. Ms T. was still dressed in her Halloween costume, (a black long sleeve crop top, short pants she described as little “active wear” shorts, and a black cloak with a hood), with her winter coat over top.
f. At approximately 3:12am, Mr Ukumu, driving east on Dundas Street, passed the couple and then turned his car around to pull up near to them on the north side of Dundas Street. After calling out to the couple, Mr Ukumu offered them a ride, falsely representing to them that he was a driver for Uber; a professional car ride service which was then new to London, and with which Ms T. and Mr G. had little or no prior experience.
g. After Mr G. and Mr Ukumu had negotiated a fare of $10.00 for the proffered ride, Mr G. and Ms T. got into the rear seat of Mr Ukumu’s vehicle. Mr Ukumu then turned the vehicle around, and drove the couple to Ms T.’s home in east London. During the 10-15 minute ride, Mr G. and Ms T. held hands, while engaging in occasional small talk with Mr Ukumu, which included Ms T. thanking Mr Ukumu for stopping and providing the ride, (as it had been cold outside and it was warm in Mr Ukumu’s vehicle), and Mr Ukumu indicating that the couple would be his “last fare” of the night. For the most part, however, Ms T. put her head back and closed her eyes, as she was struggling with motion sickness and the effects of the alcohol she had consumed.
h. When the vehicle arrived outside Ms T.’s residence in east London, there were initial complications with payment of the agreed $10.00 for the ride, as neither Mr G. nor Ms T. had the requisite amount of cash, and Mr Ukumu falsely represented, (in response to questions from Ms T.), that he had a facility for taking payment by cards but it was not working. Eventually, however, Ms T. was able to retrieve the requisite cash from her home, after retrieving a key to her home from the residence of her nearby grandmother, and leaving her cellular phone with Mr Ukumu temporarily as collateral to secure the promised payment for the ride. She and Mr G. then proceeded into her residence, leaving Mr Ukumu outside in his vehicle.
i. During the next five minutes, Mr G. remained in the washroom of Ms T.’s residence, while she removed her coat and shoes and made herself comfortable – noting, at one point, that Mr Ukumu’s car was still outside idling, for some unknown reason.
j. When there was then a knock at the front door of the residence, Ms T. opened it to find that it was Mr Ukumu, telling her that she had forgotten something in his car, and indicating that he wanted her to return to the vehicle to check and see if the “something” was hers.
k. Without thinking to ask for more information, Ms T. then put her shoes back on, and followed Mr Ukumu back to his vehicle, as he walked a few paces ahead of her.
l. When they approached Mr Ukumu’s vehicle, Mr Ukumu proceeded towards and opened the rear passenger door on the driver’s side of his vehicle and, while still holding that door open, pointed inside the rear of the vehicle to where two cards were situated on the floor of the vehicle, between the vehicle’s back seat and front passenger seat. In other words, Mr Ukumu had led Ms T. to the rear vehicle door farthest away from where the two cards were situated, which he then opened before inviting her to inspect the two cards on the more distant side of rear seat area.
m. Although Ms T. was not missing any cards of her own, she wanted to see if the cards she could see on the floor of the vehicle belonged to Mr G., (as he had been sitting in that location), so she leaned into the vehicle to reach for the cards. At that point, when Ms T. had put herself into a position where she was leaning into the card and off balance, Mr Ukumu used a part of his body to make contact with her “hip and rear”, and “knock” her forwards into the vehicle. In the result, Ms T. landed inside the vehicle’s rear passenger seat area on her chest and stomach.
n. As Ms T. tried to roll over and figure out what was going on, she saw Mr Ukumu climbing in on top of her, after closing the vehicle door behind him and positioning his right leg initially on her left thigh and hip, before moving it to the left side of her body.
o. In that regard, Mr Ukumu was successful in climbing on top of Ms T., putting his arms up towards her chest and shoulder area, and putting his weight onto her thighs and vaginal area, after which he successfully, while moaning, kissed Ms T.’s neck in some areas; e.g., approximately up to the midway point on the left and right sides of her neck. He nevertheless was frustrated in his attempts to kiss other areas of Ms T.’s neck, as she was, by that point, not lying flat on her back, but instead leaning back against the vehicle’s right rear passenger door, such that her head was tilted slightly forward, towards but not all the way down to her chest; i.e., such that her neck was in a position whereby it was partially obstructed, but still exposed to kissing by Mr Ukumu. At the same time, Ms T. was raising or “shrugging” both of her shoulders, in an upwards direction, in an effort to prevent Mr Ukumu from kissing her neck and make him stop what he was doing. Undeterred, Mr Ukumu also reached down with his left hand to rub Ms T.’s genitalia over her clothing.
p. While such activity was happening, Ms T. understandably was very frantic and very upset, and repeatedly said things such as “Please, no, stop”. Notwithstanding such pleas from Ms T., Mr Ukumu persisted in what he was doing.
q. Although Ms T. gave some thought to trying to kick Mr Ukumu, in an effort to get away, she felt that Mr Ukumu was in a position to easily overpower her, and that she would have lost any physical struggle between the two of them.
r. At some point after engaging in such conduct, and while still facing Ms T., Mr Ukumu then leaned back and sat up, partially raising his weight off Ms T., in order to use both of his hands to start undoing his belt and the button of his pants – intimating that he intended to have sexual intercourse with Ms T. Ms T. reacted with further pleas for Mr Ukumu to stop what he was doing; e.g., pleading “No, stop, please, no”, to which Mr Ukumu replied, “What, no sex?”, causing Ms T. to say “No, no fucking sex!”
s. Despite such pleas from Ms T., Mr Ukumu persisted in his unwanted sexual contact, while Ms T. was trying to “squirm” or “squiggle” her legs out from under Mr Ukumu, and “get away” from him as best she could as he was undoing his trousers. In the course of doing that, Ms T. said she also was using her arms in an effort to escape; e.g., by lifting herself up further, (in an effort to help get her body out from underneath Mr Ukumu), and repeatedly reaching behind the right side of her head with her right hand, in an effort to locate the interior handle of the vehicle’s right rear passenger door, and hopefully open that door to exit the vehicle that way. As a result of such actions, she was moving herself further “into the car”, (vis-à-vis the left rear passenger door), but did not have much room in which to back away, such that her head correspondingly began moving further up the interior side of the vehicle’s right rear passenger door.
t. While that was happening, Mr Ukumu continued to hover over her Ms T., sometimes putting his weight on her legs and sometimes not, as he tried to maintain his balance, effectively straddling Ms T., with a leg to either side of her, and his crotch positioned somewhere over her body, as he was trying to undo and remove his trousers.
u. When the unlocked right rear passenger door of the vehicle then suddenly opened behind her, Ms T. managed to escape, falling and rolling backwards out of the vehicle and onto the street, while still holding on to the now opened door of the vehicle. At that point, the sexual assault taking place in the vehicle had lasted approximately two to five minutes.
v. Immediately after she had managed to exit the vehicle, Ms T. was frantic, distraught and crying. However, while still on her knees and bent over, she had the presence of mind to reach back into the vehicle and successfully grab the two cards on the floor of the right rear passenger seat area, where they had remained during the course of the sexual assault. (Later examination would confirm that the two cards did not belong to either Ms T. or Mr G., but to a female student from Fanshawe College, in respect of whom Ms T. had no knowledge.) After grabbing those two cards from the vehicle, and managing to stand up, Ms T. moved briefly around the back of Mr Ukumu’s vehicle to regain her residence – pausing at the rear of the vehicle, for approximately 10 to 15 seconds, to successfully note and accurately remember its entire licence plate letters and numbers, except for some minor uncertainty in relation to its last digit. Not seeing Mr Ukumu or knowing whether he too had exited the vehicle, Ms T. then ran towards the door of her home. Before entering, she saw Mr Ukumu drive off quickly in his vehicle.
w. On entering the home, Ms T. summoned the assistance of Mr G., and the police were called.
[12] Again, that is a non-exhaustive though somewhat detailed outline of the circumstances of Mr Ukumu’s underlying sexual assault offence.
[13] Perhaps it would go without saying, having regard to my earlier reasons set forth in my judgment, but to the extent necessary, I find that the aggravating facts and circumstances outlined herein have been established beyond a reasonable doubt, pursuant to the requirements of section 724 of the Code.
[14] My current task is to determine the appropriate sentence Mr Ukumu should receive in relation to his offence and conviction, in respect of which, (the parties agree), Mr Ukumu spent 144 days in actual presentence custody; i.e., from the time of his arrest on November 4, 2016, until the time of his judicial interim release on March 28, 2017.
[15] In that regard, there also was no dispute that, in relation to any custodial sentence I might impose, Mr Ukumu should receive credit for those 144 days of actual presentence custody at the rate of 1.5 days for each actual day of presentence custody, pursuant to s.719(3.1) of the Code – for a total credit of 216 days of presentence custody.
Circumstances of the offender
[16] As for the personal circumstances of Mr Ukumu, I do not, for the reasons noted above, have the benefit of a presentence report prepared pursuant to section 721 of the Code.
[17] However, owing to the manner in which this proceeding unfolded, I was presented, during the voir dire mentioned earlier, during further trial testimony from Mr Ukumu, and through the submissions of counsel, with considerable evidence concerning Mr Ukumu’s personal circumstances. In that regard, I note again that, while evidence from the voir dire was disregarded for purposes of the trial, it was agreed that evidence from the voir dire concerning Mr Ukumu’s personal circumstances should be imported into the sentencing proceedings, and that I should have regard to that evidence for the purpose of sentencing.
[18] The material filed by Mr Ukumu’s defence counsel in this proceeding, in relation to sentencing, also included correspondence provided by Mr Loebach, the lawyer who acts for Mr Ukumu in relation to immigration matters he is pursuing with Canadian authorities.
[19] I have reviewed and considered all of the information to which I have made reference, but note that Mr Ukumu’s personal circumstances include the following:
a. He was born in December of 1989, making him 26-years-old at the time of his sexual assault upon Ms T., and 30-years-old at the time of sentencing.
b. He was born and raised in the Democratic Republic of Congo, (hereafter referred to as “the DRC”), where French is the official language and the predominant European language used by the country’s residents.
c. French accordingly is Mr Ukumu’s first language – although, during the first 18 years of his life, living in the DRC, he also developed the ability to speak a number of African languages; i.e., Lingala, Tetala and Swahili. While schools in the DRC offered courses in English up to a certain level, they were optional and Mr Ukumu did not chose to take any such courses.
d. For Mr Ukumu, life in the DRC was challenging and dangerous. He describes the DRC as a place where “there are no laws”, people “have no rights”, and people are naturally intimidated by police who presume them to be guilty, in circumstances where the people can do nothing about it. He and other members of his family also were obliged to endure extreme trauma. For example, Mr Ukumu described a particularly harrowing incident when, at a young age, (i.e., when Mr Ukumu was 11), he and his sister had been forced into a corner at gunpoint and threatened with death, while their mother was being raped nearby.
e. At the age of 17 or 18, Mr Ukumu decided to leave the DRC, in 2010, in search of life in a place that offered more safety. Mr Ukumu therefore left his parents and fled the DRC, embarking on a somewhat nomadic journey as a refugee. In particular:
i. He initially travelled to South Africa, where he spent three days living with his aunt, with whom he was able to communicate in French.
ii. However, his school grades were such that he was able to travel shortly thereafter to Brazil, having been accepted into a school scholarship program there. After arriving in Brazil, he remained there for the next 2½ years, completing a one-year course in introductory Portuguese, while also learning to speak a “little bit” of Spanish. In both languages, however, his comprehension ability was poor, and lagged behind his speaking ability. Moreover, emotional and financial problems prevented his contemplated start into computer engineering courses, and he instead began working illegally in Brazil to support himself.
iii. Mr Ukumu then proceeded north to the United States of America, after a friend advised him of an opportunity to move there, as a scholarship student, to study computer and IT engineering in the city of Dallas, Texas. In the result, Mr Ukumu initially spent a month living in a house, located in the nearby city of Fort Worth, Texas, inhabited solely by other Congolese refugees. During that time, he also learned that he might qualify for formal refugee status in Canada, and that there were facilities available, in American cities bordering Canada, that would provide him with support and assistance in that regard.
iv. Having made a decision to relocate to Canada, Mr Ukumu thereafter travelled to the border city of Buffalo, New York, where he spent two weeks, in another house of Congolese refugees, waiting to meet with Canadian immigration authorities. While there, Mr Ukumu spoke with the other Congolese refugees, some of whom provided information about the process of claiming refugee status in Canada.
v. In September of 2012, after having met with French speaking Canadian immigration officers, Mr Ukumu was permitted to enter Canada. At the time of his entry into this country as a refugee, at the age of 22, Mr Ukumu spoke no English apart from a few basic phrases.
f. Following his entry into Canada, Mr Ukumu initially travelled to Montreal, where he understood that he would be able to communicate in French. He continued to reside there for the next 8-9 months. However, he found that the French spoken in Quebec was quite different from the “Belgian style” of French he had learned in the DRC, and he found it more difficult to communicate than he had expected. Wanting to learn English instead, Mr Ukumu made a decision to relocate to Ontario. On the recommendation of an African friend he had met after leaving the DRC, he decided to move directly to London, Ontario.
g. Mr Ukumu arrived in London in the spring of 2013, (i.e., between April and June of that year), and has lived here since that time. Immediately after arriving in London, Mr Ukumu lived for several months in an institution known as “St Joseph House”; a facility that housed only refugees. He then relocated to a rented room at another London address, where he essentially lived alone, (albeit with other individuals living in the building), up to the time of his arrest in early November of 2016.
h. At the time of the trial’s commencement in January of 2019, Mr Ukumu was still pursuing but waiting for a judicial hearing in relation to his request for formal confirmation of his refugee status. In the meantime, he was working intermittently as a self-employed French language tutor, helping Francophone children of Francophone parents with the completion of homework in French.
i. Mr Ukumu received no formal instruction regarding the English language until he began taking “English as a Second Language” (or “ESL”) courses, in London, in August or September of 2014; i.e., approximately 26 months before being arrested on the charge that brings him before the court.
j. Mr Ukumu initially progressed through a series of 12 “levels” of instruction in English, which are not the equivalent of public-school grades, but which are designed to give non-English speaking persons the basic “tools needed to fend for themselves” in English speaking Canada.
k. Having demonstrated intelligence and scholastic ability in the DRC, Mr Ukumu undertook further efforts through the Canadian Learning Centre to obtain an Ontario high school equivalence diploma, in the hopes of eventually progressing to college or university studies, and the study of dentistry or construction engineering in particular. He managed to obtain that high school equivalence diploma by the end of 2015, primarily by concentrating on the completion of necessary credits with a science and math focus, (e.g., chemistry, biology and mathematics), where an ability to speak and understand English was relatively less important than it would be in other courses. He nevertheless did also take and complete further English classes.
l. At the time of completing his studies in Ontario, Mr Ukumu considered his ability to speak English “intermediate”, and his ability to comprehend English “mediocre”.
m. Moreover, Mr Ukumu found that his ability to practice English and improve his English comprehension skills was somewhat limited, as he had very few friends, (e.g., only two at the time of trial), engaged in few social activities, and the employment he was able to secure through a series of short term jobs, (e.g., as a field labourer paid “under the table”, a seasonal production and packaging worker for a local clothier, and as a part time dishwasher working alone in the back kitchen of a restaurant – where he would receive instructions and other messages primarily through a French speaking chef), did not involve much social interaction, speaking or communication beyond basic English, and while working, he tried not to “bother” others in any way that might jeopardize his employment. He also has remained single, (engaging in no dating relationships since he left Quebec), and has no children, such that he has no partner or other familial ties that might have facilitated or required more ongoing interaction with English speaking people. He nevertheless has continued to encounter and interact with English speaking Canadians in daily life.
n. There is nothing before me to suggest that Mr Ukumu, prior to the misconduct that brings him before me now, has ever been in trouble with the law, resulting in a criminal record here in Canada or anywhere else. In other words, he comes before me as a first-time offender.
o. Nor is there any indication that Mr Ukumu has been anything but compliant with the terms of his interim release, pending the outcome of this proceeding. He certainly has not been the subject of any additional criminal charges during the period he has been released on bail. During that time, he apparently has secured further employment. In particular, although he apparently lost the job he had at Blackfriars restaurant, at the time of his arrest, it seems he has worked hard at a number of other positions since his release – including work at a cleaners, work as a delivery driver for the London Free Press, and work as an administrator at a condominium corporation, in addition to other employment. At the time of sentencing submissions, Mr Ukumu was working for another London business; a restaurant called “Ketolibriyum”, which apparently prepares, serves and delivers specialized fresh foods.
p. It seems clear, based on applicable legislation and the correspondence from the correspondence provided by Mr Loebach, (Mr Ukumu’s immigration lawyer), that these criminal proceedings have seriously jeopardized Mr Ukumu’s claim for refugee status and ability to remain in Canada. Information and opinion provided by Mr Loebach in that regard includes the following:
i. Mr Ukumu’s conviction for sexual assault, contrary to section 271 of Canada’s Criminal Code, probably will result in his being characterized, pursuant to s.36(1) of the Immigration and Refugee Protection Act, S.C. 2001, c.27, (or “IRPA”), as “inadmissible” on the basis of “serious criminality”. In that regard, I independently note that s.36(1)(a) of the IRPA provides that “a foreign national is inadmissible on grounds of serious criminality for … having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment for at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed.” I also note that sexual assault, contrary to s.271 of the Code, is punishable by imprisonment for “not more than 10 years”, (and therefore at least 10 years), if the complainant is over the age of 16.
ii. Mr Loebach opines that, in the absence of an acquittal, Mr Ukumu accordingly will be determined to be “inadmissible”, regardless of the length of any custodial sentence imposed, unless Mr Ukumu’s sexual assault conviction is dealt with by way of an absolute or conditional discharge.
iii. Moreover, foreign nationals who are characterized as “inadmissible”, pursuant to s.36(1) of the IRPA, are in turn ineligible to make a refugee claim, having regard to the provisions of s.101(1)(f) of the IRPA, which reads in part as follows: “a claim is ineligible to be referred to the Refugee Protection Division if … the claimant has been determined to be inadmissible on grounds of … serious criminality”.
iv. In the circumstances, Mr Loebach predicts that the Canada Border Services Agency (“the CBSA”) accordingly will apply to terminate Mr Ukumu’s refugee claim. If and when that happens, Mr Loebach predicts that the Refugee Protection Division (or “RPD”) of the Immigration and Refugee Board (or “IRB”) will either suspend Mr Ukumu’s refugee claim until he has served his sentence, or terminate Mr Ukumu’s refugee claim upon receiving the CBSA’s request, if Mr Ukumu has not appealed his conviction.
v. In either case, Mr Ukumu apparently faces the definite prospect of his being subjected to a “removal order” which, if it comes into force and is not stayed, would have to be enforced as soon as possible pursuant to s.48(2) of the IRPA, in turn requiring Mr Ukumu to leave Canada immediately.
vi. Having said that, Mr Loebach notes that Mr Ukumu also likely will be eligible for a “pre-removal risk assessment”, (or “PRRA”), which will be offered to Mr Ukumu eventually by the CBSA. If a PRRA is approved, the Ministry will suspend the order requiring Mr Ukumu’s removal from Canada, with the suspension then being reviewed periodically. However, if the PRRA is refused, the removal order against Mr Ukumu will be enforced.
q. Mr Ukumu has indicated that he is a devout Christian, and that one of the tenets of his personal faith is that one generally should abstain from sexual activity before marriage.
r. Consistent with his plea of “not guilty” and defence at trial, Mr Ukumu apparently continues to maintain his innocence, which is his right. In the result, however, I am left with no indication that he accepts responsibility for the sexual assault underlying his conviction, and he has expressed no remorse for his conduct.
Position of the crown
[20] While acknowledging Mr Loebach’s indication that any sentence beyond an absolute or conditional charge is likely to result in Mr Ukumu being characterized as “inadmissible” under the IRPA, with potentially dire consequences for Mr Ukumu’s claim to refugee status here in Canada, Crown counsel submits that an absolute or conditional discharge lies far outside the permissible range of fit sentencing in the circumstances of this particular case.
[21] The Crown submits that the appropriate sentencing range for a sexual assault in circumstances such as this should be 10-15 months, and that, having regard to all the circumstances, an appropriate custodial sentence for Mr Ukumu’s particular offence should be 12 months, prior to Mr Ukumu then being given credit for the time he already has spent in presentence custody.
[22] Again, by agreement of the parties, and as noted above, that pre-sentence custody came to 144 days of actual incarceration. However, the parties also agreed that, subject to the court’s approval, Mr Ukumu should be given credit for that pre-sentence custody on the basis of 1.5 days for every actual day spent in jail, pursuant to s.719(3.1) of the Code, in which case Mr Ukumu effectively would receive a credit of 216 days, or 7.2 months, for time already spent in custody in relation to this offence.
[23] In effect, the Crown therefore seeks imposition of a net custodial sentence that would require Mr Ukumu to spend approximately 4.8 more months in custody.
[24] In addition to that period of incarceration, the Crown asked that Mr Ukumu’s custodial sentence be followed by a two-year period of probation, with terms and conditions including, beyond those mandated by s.732.1(2) of the Code, the following:
i. a prohibition against Mr Ukumu having any direct or indirect communication or association with E.T. or O.G.;
ii. a prohibition preventing Mr Ukumu’s attendance within 200 meters of any known place of residence, employment or education of E.T. or O.G.;
iii. a prohibition preventing Mr Ukumu from knowingly being within 25 meters of E.T. or O.G.;
iv. a term requiring Mr Ukumu to complete programs of assessment and counselling as directed by his probation officer; and
v. a term requiring Mr Ukumu to complete 50 hours of community service.
[25] The Crown also sought a number of ancillary orders that would include the following:
i. pursuant to s.109(1)(a) of the Code, a mandatory weapons prohibition order, for a suggested duration of 10 years;
ii. pursuant to sections 490.011(1)(a)(xvi), 490.012(1) and 490.013(2)(b) of the Code, an order requiring Mr Ukumu to comply with the Sex Offender Information Registration Act (or “SOIRA”) for a period of 20 years;
iii. pursuant to ss.487.04(a)(xi.3) and 487.051(1) of the Code, an order compelling Mr Ukumu to provide the number of samples of bodily substances reasonably required for forensic DNA analysis; and
iv. pursuant to s.743.21 of the Code, a non-communication order, prohibiting Mr Ukumu from communicating directly or indirectly with E.T. and/or O.G. during the custodial period of Mr Ukumu’s sentence.
Position of the defence
[26] Defence counsel did not dispute that an absolute or conditional discharge, (i.e., the dispositions that apparently would spare Mr Ukumu the prospect of deportation), lay outside the range of fit and appropriate sentencing for Mr Ukumu’s offence.
[27] However, defence counsel submitted that an appropriate custodial sentence for Mr Ukumu would be “time served”; i.e., a custodial sentence of 7.2 months, deemed served by the agreed credit Mr Ukumu would be receiving for time spent in presentence custody.
[28] It was suggested that that custodial sentence, shorter than that sought by the Crown, could be supplemented by a period of probation longer than that sought by the Crown, (i.e., for a period of three years rather than two), with terms and conditions, beyond those required by statute, to include:
i. imposition of a curfew, except for purposes of employment – which is similar to the bail restriction Mr Ukumu has been living with for approximately 3 years;
ii. the taking of counselling, as directed by the probation officer;
iii. the terms and conditions requested by the Crown to extend “no contact” protections to Ms T. and Mr G.; and
iv. the requirement of community service, (50 hours), sought by the Crown.
[29] Defence counsel took no issue with the ancillary orders sought by the Crown.
[30] Again, the primary sentencing submission of the defence focused on a suggested custodial sentence of 7.2 months; i.e., time effectively served by the credit Mr Ukumu will be receiving for time spent in presentence custody.
[31] However, as a “fall back” position, (i.e., if I found that suggested custodial sentence of 7.2 months to be unacceptable), defence counsel suggested that I impose a custodial sentence no greater than 10.2 months, (prior to Mr Ukumu receiving credit for presentence custody), such that the net remaining custodial sentence to be served would be brought within a maximum duration of 90 days, in turn making it possible for Mr Ukumu to serve his remaining custodial sentence on an intermittent basis, pursuant to section 732 of the Code. In that regard, defence counsel noted that such a disposition would allow Mr Ukumu to keep working at his current employment with Ketolibriyum.
Sentencing objectives
[32] As emphasized by s.718 of the Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society, by imposing just sanctions that have one or more of the following objectives:
a. denunciation of unlawful conduct;
b. deterring the offender and others from committing offences;
c. separation of offenders from society, where necessary;
d. assisting in the rehabilitation of offenders;
e. providing reparations for any harm done to victims or the community; and
f. promotion of a sense of responsibility in offenders, and their acknowledgment of the harm done to victims and the community by their conduct.
[33] Pursuant to s.718.1 of the Code, a sentence should be proportionate to the gravity of the offence, and the degree of responsibility of the offender.
[34] Pursuant s.718.2 of the Code, I note that, amongst other considerations, the court is obliged to take into account that:
i. a sentence should be reduced or increased to account for any mitigating or aggravating circumstances relating to the offence or the offender;
ii. a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
iii. an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
iv. all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.
[35] The sentencing objectives outlined above are applicable in relation to all convictions, and I accordingly have them in mind throughout the process of arriving at a just sentence for Mr Ukumu, in relation to the conviction now before me.
[36] However, the legislation provides further guidance as to how these general sentencing objectives should be applied, including provisions whereby, pursuant to subsections 718.2(a)(iii) and (iii.1) of the Code, aggravating circumstances are deemed to include:
• evidence that an offender, in committing the offence, abused a position of trust or authority in relation to the victim; and
• evidence that the offence had a significant impact on the victim, considering his or her age and other personal circumstances, including his or her health and financial situation.
[37] Moreover, pursuant to s.718.04 of the Code, when a court imposes a sentence for an offence that involves the abuse of a person who is vulnerable because of personal circumstances, (which in my view would include an intoxicated young female, alone in the early hours of the morning), the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.
[38] Beyond such legislative directions, I have regard to judicial authority offering further guidance on how sentencing generally should be approached in relation to such situations.
[39] This includes frequently repeated indications that, having regard to the inherently serious and violent nature of sexual assault, (underscored by its express inclusion within the Code’s s.752 definition of “serious personal injury offence”), and its unfortunate frequency, considerations of denunciation and deterrence usually are paramount in this context. See, for example, R. v. Wells, [2000] 1. S.C.R. 207, at paragraphs 25 and 47-48.
[40] Bearing in mind the general sentencing objectives and guidelines outlined above, I turn next to a consideration of possible aggravating and mitigating factors.
Aggravating factors
[41] Mr Ukumu’s ongoing assertion of innocence certainly is not an aggravating circumstance, although I note that it does leave the court without a basis for inferring that Mr Ukumu has insight into his sexually assaultive behavior, and the absence of insight may be relevant to the need for specific deterrence and/or Mr Ukumu’s prospects for rehabilitation. See R. v. C.B., 2008 ONCA 486, [2008] O.J. No. 2434 (C.A.), at paragraph 57.
[42] In my view, this case nevertheless does present a number of aggravating circumstances, which include the following:
i. First and foremost of these, I think, is the devastating impact Mr Ukumu’s reprehensible conduct apparently has had on the life of Ms T.. That impact, deemed to be an aggravating factor pursuant to s.718.2(a)(iii.1) of the Code, was evident in her compelling testimony at trial, and was addressed in more detail in her victim impact statement, which Ms T. bravely read out loud, (albeit with difficulty), during the course of these sentencing proceedings. In relation to the impact Mr Ukumu’s conduct has had on Ms T.:
a. As I noted in my judgment, Ms T. sustained a number of physical injuries as a result of Mr Ukumu’s sexual assault, including:
i. bruising on her thighs;
ii. bruising and cuts on the second knuckle and base area of her right “pinky” finger; and
iii. bruising to both of her knees.
b. However, those transitory physical injuries, (which Ms T. says healed quickly), were accompanied by severe emotional and mental trauma, which Ms T. experienced and continues to experience as a result of Mr Ukumu’s sexual assault upon her.
c. In that regard, both Ms T. and Mr G. described, in their testimony, Ms T.’s initial upset when she returned to the safety of her home in a completely disheveled state. Mr G. said Ms T. was “shaking uncontrollably”, “hyperventilating”, “completely distraught”, and in an “absolute disarray”. My T. herself described how she was “pretty hysterical” and “crying” as she re-entered the home, and “collapsed” shortly thereafter, before and while working with Mr G. to summon the police.
d. However, her trauma and the impact of the sexual assault on her life did not end there. In particular, further information provided by Ms T., through her victim impact statement, included the following:
i. She says that, because of Mr Ukumu’s conduct, her life was “turned upside down”.
ii. Shortly after the incident, Ms T. experienced what she described as a “psychotic break” and “freak out”, in respect of which someone unfortunately made a video recording that was uploaded to the internet, in turn exposing Ms T. to widespread ridicule and humiliation.
iii. Ms T. suffered and continues to suffer from anxiety, including what she describes as “constant flashbacks” to the events of that Halloween night in 2016.
iv. She struggled and struggles to visit downtown London late at night anymore, saying she is “barely” able to do so, and requires someone “being there” for her.
v. In an effort to cope with her anxieties and fears, she resorted to self-medication for a time, and significantly increased use of alcohol.
vi. More generally, however, she says she was simply “no longer herself” anymore, in the wake of the incident, and that her anxiety and changed behavior in turn caused a great deal of instability and suffering in her life, in terms of damaged and lost relationships with friends and family, and difficulty maintaining employment; e.g., “jumping from job to job”, as she put it.
vii. Because her family in particular “couldn’t stand to be around” her, after the changes in her behavior, she lost a stable home and became somewhat transient, “couch surfing” between various locations for approximately 19 months, which further complicated her ability to hold down steady employment.
viii. Ms T. says it took a long time for her to seek proper help, and that her life has “started to come together again” only recently, through anxiety medication prescribed by her family doctor, counselling from a therapist, and ongoing support from the Canadian Mental Health Association.
ix. However, in her words, Ms T. feels she still has “a long way to go”, in terms of her recovery.
e. In my view, there is nothing to suggest that any of these physical, emotional and psychological injuries experienced by Ms T. were caused by anything other than Mr Ukumu’s sexual assault upon Ms T.. They accordingly represent a serious aggravating factor in determining an appropriate sentence for Mr Ukumu’s misconduct
ii. In my view, that initial aggravating factor, (i.e., the impact on Mr Ukumu’s victim), is significantly reinforced in this case by Mr Ukumu abusing a position of trust he voluntarily had assumed in relation to Ms T.; i.e., by falsely representing himself to be a professional driver providing transportation to members of the public in exchange for monetary compensation. In that regard:
a. In s.718.2(a)(iii) of the Code, Parliament has made it clear that, where there is evidence that an offender, in committing his or her offence, abused a position of trust in relation to a victim, that is deemed to be an aggravating circumstance.
b. The term “position of trust” is not defined in the Code. However, as demonstrated by the numerous authorities Crown counsel had filed, our country’s courts repeatedly have accepted that the concept extends to taxi drivers and those engaged in “similar occupations”, while the courts have grappled with the troubling and apparently recurrent problem of such drivers choosing to assault their passengers. For example:
i. In R. v. Savard (1979) 1979 CanLII 2936 (QC CA), 55 C.C.C. (2d) 286 (Que.C.A.), the Quebec Court of Appeal had “no doubt” that taxi drivers and “others in similar occupations” occupy positions of trust, emphasizing that “citizens must feel safe in hailing cabs, especially at night”, (when doing so might represent the only means of transport), and that incidents of sexual assault by such drivers on their passengers “must be prevented, insofar as it is within the power of the courts to do so” by the imposition of sentences that will deter others.
ii. Similarly, in R. v. Dale, [1998] B.C.J. No. 23 (S.C.), the court emphasized that the offender, (a taxi driver who had sexually assaulted his young female passenger), “stood in a position of trust”, as he “had a duty to protect her, to offer her a safe haven, and to convey her safely from one location to another”. More generally, it was emphasized that “all members of the public rely on taxis as a safe means of transport, particularly when they have consumed alcohol or when the hour is late”, and that young people in particular “are encouraged to take a taxi rather than endanger their safety by walking on the streets” at night. A taxi driver’s abuse of that position of trust, to enable the commission of a heinous crime like sexually assaulting an innocent young woman, was seen to be a serious aggravating factor that “loomed large”.
iii. Those authorities were cited and echoed in R. v. Aulakh, [2010] B.C.J. No. 1665 (S.C.), wherein the court emphasized that “when a passenger enters a taxi cab, he or she is entitled to assume that they are entering a place of relative safety”, which actually is “one of the reasons for taking a taxi”. Indeed, our society encourages the use of such services as a responsible and safe way of getting home without harm, when in an intoxicated condition. Those using such services accordingly are “entitled to rely on the integrity” of such drivers, to deliver their passengers safely to their destinations, “free from molestation”.
iv. In R. v. Singh, 2012 BCSC 466, it was emphasized that the sentencing principles of general deterrence and denunciation take on increased importance in cases involving sexual assault by taxi drivers, who are “recognized to hold a special position of trust to the travelling public who rely upon taxis late at night as a safe means of transportation home”, and that is “especially so when a passenger is intoxicated and young”. The court adopted and emphasized the view expressed in R. v. Aulakh, supra, that when a passenger enters a taxi cab, he or she is “entitled to assume they are entering a place of safety”.
v. Similar sentiments were expressed in R. v. Malik, [2012] B.C.J. No. 680 (S.C.), where the court had no hesitation finding that the offender, as a taxi driver, was in a position of trust in relation to his passenger victim; a position of trust that was that much greater given the victim’s status as a young intoxicated female, who was entitled to expect the driver’s assistance in getting her safely to her destination, without taking advantage of her vulnerability. The court emphasized the importance of clear denunciation and deterrence, both specific and general, in relation to such cases of sexual assault, as all people – but women in particular – must be able to feel safe in a taxicab.
vi. In R. v. Dhindsa, [2014] M.J. No. 369 (Prov.Ct.), the court emphasized that the public is entitled to have high expectations of taxi drivers, whose vehicles “are seen as safety preservers”, and that our society accordingly promotes “use of taxis by those who are too intoxicated to get themselves home in safety”. Indeed, the court in that case emphasized that even a “hitchhiking” passenger, with a stated inability to pay any fare, was entitled to feel safe in the vehicle of a taxi driver who nevertheless agreed to provide the passenger with a ride.
vii. In R. v. Gill, [2015] B.C.J. No. 2241 (S.C.), the court expressly endorsed the views expressed in R. v. Singh, supra, and R. v. Aulakh, supra, emphasizing that, when a passenger enters a taxi cab, he or she is “entitled to assume they are entering a place of safety”.
viii. In R. v. Jakupaj, [2018] N.J. No. 134 (S.C.), the court agreed with earlier authorities in Newfoundland and elsewhere, (including the already noted decisions in R. v. Savard, supra, R. v. Aulakh, supra, R. v. Singh, supra, and R. v. Dhindsa, supra), and emphasized that offenders acting as taxi drivers are clearly in a position of trust vis-à-vis their customers. The court noted, in particular, that sexual assault by taxi drivers of young and vulnerable passengers, (such as young women under the influence of alcohol), is deserving of public outcry and a high degree of public abhorrence. In that regard, the court emphasized that such misconduct has an impact not only on the immediate victims but on the broader community, which is entitled to expect being free from harm when trust is placed in such drivers, and understandably “feels at risk when the well-used and relied upon safety of a taxi ride home after a night of drinking becomes a potentially predatory opportunity for sexual assault”. The court accordingly emphasized that a breach of trust by such drivers, who sexually assault their passengers, must loom large as an aggravating factor when it comes to sentencing.
c. I agree with all of the sentiments expressed in these various taxi driver cases, and think they apply with no less force to someone who effectively chooses to assume such a position of trust by falsely holding himself out to be a professional driver working for an established transportation organization. Where such a person then abuses that trust by assaulting a passenger who hired him or her in good faith, and it was only by means of the offender’s false representations that he or she successfully encouraged the passenger victim to trust him or her, in my view the aggravating factor of having breached a position of trust can and should be no less aggravating because the offender attained that position of trust through deliberate misrepresentations. Indeed, I think the aggravating nature of such considerations is all the more serious in such a case, where the offender has engendered trust through such false and fraudulent representations, and therefore merits greater denunciation and deterrence.
iii. In my view, another significant and very troubling aggravating factor in this case is evidence of premeditation and calculated strategy on the part of Mr Ukumu, insofar as he, after Ms T. initially had returned to the safety of her home, lured her back into his vehicle, alone, for the purpose of committing a sexual assault. In other words, this particular offence was not purely a crime of opportunity, but a crime where Mr Ukumu took deliberate and calculated steps to create the opportunity for him to commit his crime. As indicated in my reasons for judgment, I think there is ample evidence in this case to support that conclusion, beyond a reasonable doubt. Without limiting the generality of the foregoing:
a. Mr Ukumu himself repeatedly emphasized, during the course of his trial testimony, that he keeps his car very clean. In that regard, he himself suggested that he looks carefully around the interior of his vehicle to ensure its cleanliness, after providing rides to anyone.
b. Notwithstanding such practices, two cards, belonging to a female Fanshawe College student that neither Mr G. nor Ms T. knew, came to be lying on the floor where Mr G.’s feet had been during the ride back to Ms T.’s residence - without Mr G. having noticed anything there while entering, riding in, or exiting the vehicle. In my view, the logical and sensible conclusion is that Mr Ukumu deliberately placed the two cards there during the five minutes he remained in his vehicle, (idling outside the home of Ms T., after she and Mr G. had entered her residence), while formulating a plan that hopefully would lure Ms T. back to the vehicle on her own.
c. In furtherance of that plan, Mr Ukumu, instead of bringing the two supposedly discovered cards to Ms T.’s residence to ask if they belonged to Ms T. or Mr G., (as any honest finder of such cards would have done), Mr Ukumu deliberately left them on the floor of the vehicle before proceeding to Ms T.’s residence, (where she fortuitously – at least for Mr Ukumu - answered his knock on the door), to ask that she come back to his vehicle to look at unspecified items he supposedly had found. In doing so, I note that Mr Ukumu specifically indicated to Ms T. that she, rather than Mr G., had left something in his vehicle, notwithstanding the reality that the cards were located in the area where Mr G. had been sitting.
d. In her testimony, Ms T. emphasized that she would not have entered a complete stranger’s vehicle that evening without understanding him to be a professional driver, working with an established organization to provide rides in exchange for compensation. In my view, it is equally clear - and Mr Ukumu realistically would have known - that Ms T. would not have left the safety of her home, in the early morning hours, to proceed alone, with a complete stranger, to his waiting vehicle, and thereafter enter that vehicle for any reason, unless she was demonstrating trust in Mr Ukumu’s presumed honesty and decency because he supposedly was a professional driver, working with an established organization, to provide rides in exchange for compensation.
e. When Mr Ukumu then led Ms T. back to his vehicle, to look inside at what she supposedly had left there, he notably did not open the rear passenger door near to where the cards were located, (and where he would have known the cards were located, even on his own evidence), but instead led Ms T. to and opened the door closest to where Ms T. was sitting during her ride home; i.e., with Mr Ukumu thereby simultaneously encouraging Ms T.’s belief that she, (rather than Mr G.), may have left something in the vehicle, while also effectively forcing Ms T. to lean or otherwise go far inside the vehicle to reach and inspect the items to which Mr Ukumu was directing her attention, before Mr Ukumu then used the opportunity to deliberately and forcefully knock Ms T. into the vehicle while she was off balance.
f. In my view, such actions clearly display a level of premeditation, (albeit one reflecting a successful plan that may have been formulated within the preceding 5 to 20 minutes), underlying Mr Ukumu’s sexual assault, all of which makes the incident more reprehensible and disturbing, in turn warranting heightened denunciation and deterrence. While the duration of Mr Ukumu’s planning and execution of a scheme to lure Ms T. out of the safety of her home and back into his vehicle may have been relatively brief, in terms of minutes, in my view it still represents a very conscious and deliberate decision, in the calm quiet of isolated thought, while Mr Ukumu was on his own, to orchestrate and engage in this particular sexual assault.
g. Again, unlike many of the other precedents to which I was referred, the situation here was not purely a crime of opportunity; i.e., with the sexual assault occurring after the female passenger happened to enter the taxi expecting safety during a ride home. In this case, Mr Ukumu created the opportunity for a sexual assault through deliberate efforts to lure Ms T. from the safety of her home back to his vehicle, on her own and on more false pretences, for the purpose of engaging in his sexual assault.
h. In my view, that is an aggravating factor that significantly elevates Mr Ukumu’s level of moral culpability and blameworthiness, in the circumstances of this particular case.
iv. A further aggravating factor, in my view, is Ms T.’s consumption of drugs and alcohol in the hours leading up to the sexual assault, and her corresponding heightened vulnerability in that regard. Numerous authorities indicate that a sexual assault on an intoxicated victim, and therefore also in an obviously heightened state of vulnerability, is an aggravating factor. In this case, I think Mr Ukumu knew or should have known of that vulnerability, as he was driving the streets of London, in the early morning hours after the city’s downtown bars had stopped serving alcohol to their patrons, looking to offer such patrons rides in exchange for compensation. Thereafter, Mr G. and Ms T., both of whom had been consuming significant quantities of alcohol, and both of whom were conversing within close proximity to Mr Ukumu, would have been exuding some odour of alcohol. Moreover, Ms T. – whom Mr Ukumu looked at from time to time in the backseat, according to his own evidence – also had her head back with her eyes closed for much of the ride, which also obviously indicated or should have indicated to Mr Ukumu that she was not entirely well or fully alert.
v. Finally, I think another aggravating factor in this case is the nature of Mr Ukumu’s sexual assault, in terms of his particular actions and their impact on his victim. In that regard, his sexual assault included contact with Ms T.’s vagina and clitoris – albeit over Ms T.’s clothing. While such sexual contact obviously falls short of more serious acts of direct touching under clothing and/or penetration, the touching of genitalia obviously places a sexual assault on the more serious end of the scale, in terms of the extent to which a victim’s personal integrity is violated. I also think it aggravating that Mr Ukumu’s actions, in straddling Ms T. while she was lying backwards, while simultaneously attempting to undo and remove his pants, effectively indicated to Ms T. that she was in imminent danger of forced sexual intercourse prior to her escape from the vehicle. In that regard, the sexual assault in this case fortunately did not progress to any such intercourse or other form of penetration – and Mr Ukumu certainly should not be penalized as if it did; i.e., as if he had committed a level of sexual misconduct that did not occur. However, in my view, if only because of its understandably greater traumatic impact on a sexual assault victim, an incident of sexual assault that involves clear indications that the offender intends to proceed immediately with forced sexual intercourse, prior to the sexual assault being interrupted, is more serious than one that does not.
Mitigating factors
[43] In this case, there was no guilty plea or any other expression of remorse from Mr Ukumu for his conduct, so I am unable to give Mr Ukumu any credit in that regard, in terms of a corresponding reduction in sentence.
[44] However, having regard to all the circumstances of the case, in my view, and as emphasized to some extent by Mr Ukumu’s counsel, there are a number of potentially mitigating considerations here, a number of which were recognized and acknowledged by Crown counsel. They include the following:
i. First, as noted above, there are no indications that Mr Ukumu has had any prior involvement with the criminal law, either in Canada or in any of the other countries in which he has lived. He accordingly comes before me as a first-time offender, in respect of which our courts have emphasized the importance of restraint; e.g., because such offenders inherently have demonstrated a capacity for prosocial behavior making them more amenable to successful rehabilitation, and any sentence imposed on a first-time offender – especially a custodial sentence – is likely to have a much greater impact in terms of specific deterrence.
ii. Second, although arguably not “young”, Mr Ukumu was still a relatively “youthful” offender – 26-years-old – at the time of his offence. That too usually bodes well for potential rehabilitation; i.e., when someone may be more capable of being redirected in a positive direction for the remainder of his or her life.
iii. Third, prospects for rehabilitation also seem more marked in the case of Mr Ukumu, (despite his current lack of friends and familial support), insofar as he apparently has been able to lead a prosocial life, including sustained efforts at education, self-improvement and employment - despite a personal background and exposure to violence and instability that far exceeds that which most people in this country have ever had to endure. In that respect, Mr Ukumu’s very challenging and difficult background, described in detail earlier – coupled with the possibility that Mr Ukumu may be suffering from hitherto untreated depression and anxiety, (which he personally suspects, but in respect of which he is not entitled to any health benefits permitting that suspicion to be investigated) - represents another mitigating factor.
iv. Fourth, Mr Ukumu has indicated, through counsel, that he is amenable to counselling and treatment to address the underlying circumstances which may have brought him to his current situation.
v. Finally, I have regard to the reality, highlighted by defence counsel and the filed correspondence from Mr Loebach, (Mr Ukumu’s immigration lawyer), that Mr Ukumu now faces, as a very serious collateral consequence of his criminal conviction for sexual assault, the prospect of being forced to leave the safety of Canada. In that regard:
a. I hesitate to characterize that formally as a “mitigating consideration”, as the Supreme Court of Canada has itself indicated, in authorities such as R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, that while immigration consequences may be taken into account in sentencing, as personal circumstances of the offender, they are not, strictly speaking, aggravating or mitigating factors. Rather, their relevance flows from the application of the principles of individualization and parity. Relevance also may flow from the sentencing objective of rehabilitation.
b. Moreover, the Supreme Court of Canada also has emphasized that, where the court takes collateral immigration consequences into account, the sentence ultimately imposed must still be proportionate to the gravity of the offence and the degree of responsibility of the offender. In that regard, the Supreme Court adopted, with approval, the statement of Moldaver J.A., (as he then was), in R. v. Badhwar, 2011 ONCA 266, that “immigration consequences cannot take a sentence out of the appropriate range”.
c. Furthermore, the Supreme Court also emphasized that the flexibility of the sentencing process should not be misused by imposing inappropriate and artificial sentences in order to avoid the collateral consequences which may flow from a statutory scheme, thereby circumventing the will of Parliament.
d. The same fundamental points were emphasized by our Court of Appeal in R. v. Hamilton (2004), 2004 CanLII 5549 (ON CA), 72 O.R. (3d) 1 (C.A.). The risk of deportation cannot justify a sentence that is inconsistent with the fundamental purpose and principles of sentencing, and the sentencing process cannot be used to circumvent the provisions and policies Parliament has adopted and legislated in the IRPA.
e. In short, a sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, but there are limits. In particular, the sentence ultimately imposed must still be proportionate to the gravity of the offence and the degree of responsibility of the offender. Such consequences cannot be allowed to dominate the exercise, or distort the process either in favour of or against deportation, and it remains open to a sentencing judge to conclude that even a minimal reduction in a proposed sentence will render the sentence inappropriate for the particular offence and the particular offender. See R. v. Gill, supra, at paragraph 40, citing R. v. Pham, supra, at paragraph 12, and R. v. Hamilton, supra, at paragraphs 44-45.
f. In the case of Mr Ukumu:
i. One can have nothing but sympathy for refugees from around the world, including nations such as the DRC, who long for the safe environment we enjoy here in Canada, and which they unfortunately cannot hope for in their countries of origin in prevailing circumstances.
ii. However, through legislation such as the IRPA, and its statutory scheme designed to balance carefully the legitimate interests of refugee claimants with the offsetting legitimate interest of other residents of Canada to safety and security, (e.g., by making a refugee claimant’s decision to engage in serious criminality a disqualifying consideration), Parliament essentially has made clear its will that a serious crime such as sexual assault may have justifiable repercussions on an offender’s claim for refugee status in this country.
iii. While Mr Ukumu’s exposure to removal from this country is a collateral consequence that should not be ignored, (e.g., insofar as it no doubt will compound the significance of the sentence he will receive, and make his life far more uncertain and troubled during service of any custodial sentence, compared to those who are not facing such additional consequences of serving a sentence), it also cannot and must not be manipulated, in the course of this sentencing, to impose a disproportionate result by being overly lenient, so as to avoid the prospect of Mr Ukumu’s claim for refugee status undergoing the additional scrutiny and treatment Parliament expressly has contemplated to address such situations. For example, while imposition of an absolute or conditional discharge in relation to Mr Ukumu’s offence might preclude the drastic consequence of his being declared “inadmissible”, his refugee claim being terminated, and his being made the subject of a removal order that might result in his immediate removal from Canada, (e.g., if the order is not suspended in the wake of a pre-removal risk assessment), in my view such a sentence would hardly be proportionate to the serious offence of sexual assault, committed in these circumstances. I think such an approach would run entirely counter to the Supreme Court of Canada’s guidance in R. v. Pham, supra, and be tantamount to a refugee claimant having something akin to a licence to commit a serious crime, such as sexual assault, without facing the prospect of a sentence, (appropriately and proportionately reflecting individual responsibility, denunciation and deterrence), that all others in Canada might expect to receive for committing such a crime
[45] Before moving on from discussion of possible mitigating considerations in this case, I note that defence counsel suggested that Mr Ukumu’s time on judicial interim release also be regarded as a mitigating consideration. However, based on the submissions I received, I was not persuaded that the conditions of that judicial interim release, (e.g., involving a release without sureties and a curfew), been that restrictive. In particular, it was not disputed that the relevant terms and conditions did not approach anything resembling house arrest, and that some of the conditions governing Mr Ukumu’s release, (e.g., a requirement to report to police up until the summer before his trial), were lifted over time. In the circumstances, it seems to me that this case does not involve the sort of significant time, spent on very stringent presentence bail conditions, wherein such conditions give rise to the level of a mitigating consideration in sentencing pursuant to authorities such as R. v. Downes (2006), 2006 CanLII 3957 (ON CA), 205 C.C.C. (3d) 488 (Ont.C.A.).
[46] Nor was I persuaded by defence counsel submissions that Mr Ukumu should receive some form of additional credit or mitigation for the breaches of Charter rights confirmed and addressed in my endorsement released on June 17, 2019; i.e., the endorsement wherein I confirmed that members of the London Police Service had violated rights guaranteed to Mr Ukumu by s.10(a), s.10(b) and section 7 of the Canadian Charter of Rights and Freedoms by failing to take further reasonable steps to ensure that Mr Ukumu, a Francophone, actually understood those s.10(a), s.10(b) and section 7 Charter rights when they were communicated to him in English, and that he was able to exercise those rights in a meaningful way, when “special circumstances” called for such steps. In that regard:
a. I acknowledge that a sentence reduction to address breaches of Charter rights is a possibility, as confirmed in authorities such as R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206. In particular, if a Charter breach previously has been alleged and established, a trial judge is not prevented from reducing sentence, to address such a Charter breach, so long as the incidents giving rise to the breach are relevant to the usual sentencing regime, and do not reduce a sentence below a mandatory minimum, or result in a reduced sentence not provided by statute.
b. In this instance, however, I am not persuaded that Mr Ukumu should receive any further relief in relation to the established Charter breaches beyond the relief already granted that was tailored to address specifically the consequences of the established breaches. In particular, in my view, the relief previously granted in that regard was adequate to address and redress fairly the impact of the breaches on Mr Ukumu’s Charter-protected rights, while sending the appropriate message to the police that those rights were to be taken seriously. I do not think it appropriate to alter that balanced and tailored remedy by providing Mr Ukumu with a further mitigating consideration or credit in that regard.
Further analysis
[47] With all of the above information, considerations and principles in mind, I now turn to determination and imposition of an appropriate sentence for the offence and conviction now before the court.
[48] In that regard, in addition to the matters outlined above, I also have considered the authorities referred to by counsel, bearing in mind the sentencing objective, noted above, that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
[49] The reality, of course, is that no two cases are exactly alike, and as emphasized by former Chief Justice Lamer in R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at paragraph 92:
Sentencing is an individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise or academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the “just and appropriate” mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred.
[50] However, Crown counsel referred me to the following authorities, as possible benchmark indications of an appropriate sentence in this case:
a. In R. v. Aulakh, supra, the 46-year-old offender was convicted, after trial, of sexually assaulting a young female passenger, (19 years old at the time), while engaged in his occupation as a taxi driver. In particular, the young woman became extremely intoxicated after drinking at a downtown nightclub and, with the aid of a female friend, hailed the offender’s passing taxi. The female friend paid the offender in advance for the ride, and instructed the offender to drive the victim home, where others would be waiting to receive her and pay any excess fare. On the way to the victim’s home, the offender took a circuitous route through secluded areas, where he stopped the vehicle, effectively disabled the taxi’s security camera by blocking its view, and then sexually assaulted the victim by intercourse that penetrated her vagina with sufficient force to inflict a laceration or tear to the exterior opening of the victim’s vagina. Before taking his inebriated victim to her home, he also stole her debit card, which he then used to steal money from her. Midway through the trial, he pled guilty to charges relating to the theft and use of the debit card, but demonstrated no remorse for his sexual assault. The victim had continued to experience sadness and nightmares for an extended period of time, but was trying to forget the incident and move on with her life. The offender was not born in Canada, but had been a Canadian citizen for approximately 27 years. He had a prior criminal record, (for theft under $5,000), and had received a conditional discharge in relation to another prior offence, (involving false pretences). On the other hand, he had a family he was supporting through his employment, and letters of support from numerous relatives and members of the community speaking to his generally good character. The court imposed a custodial sentence of four years, in addition to the standard ancillary orders, (i.e., weapons prohibition, DNA sample and SOIRA orders), for such an offence. By way of comparison and contrast with the case before me:
i. The nature of the sexual assault by Mr Aulakh was much more serious and prolonged, insofar as it involved sexual intercourse in a secluded location, substantially delaying the victim’s arrival at her destination, and produced a significant physical injury. As traumatic as Ms T.’s experience was, it nevertheless thankfully involved physical contact that fell short of such penetration, or more lasting physical injuries, and the duration of the sexual assault Ms T. experienced lasted approximately 2-5 minutes.
ii. Although Ms T. had been drinking, she apparently was not as vulnerable as Mr Aulakh’s victim, who was severely incapacitated, to the extent where she apparently had difficulty recalling with certainty that the sexual assault had taken place until she attended for medical treatment the next day, which confirmed the nature and extent of the injuries she was feeling.
iii. Although neither offender could be described as young, in my view, Mr Ukumu was somewhat youthful, and Mr Aulakh was considerably older than Mr Ukumu. Moreover, although he too was not born and raised in Canada, there was no indication that he had experienced hardship before immigrating to this country, and he had been in Canada for a significantly longer period of time.
iv. Unlike Mr Ukumu, Mr Aulakh also had a prior criminal record – albeit not one for sexual-related activity.
v. On the other hand, Mr Ukumu, unlike Mr Aulakh, has no family to support.
vi. Nor does Mr Ukumu appear to have the substantial community support that was available to Mr Aulakh; a factor which usually bodes well for rehabilitation
b. In R. v. Malik, supra, the 47-year-old offender, (married with three children), was a taxi driver who was convicted, after trial, of having sexually assaulted one of his young teenage passengers. Mr Malik had picked up the 17-year-old complainant and her friend to take them to a distant party, where an acquaintance was to pay their cab fare. On arrival at the destination, however, nobody was there, and the complainant and her friend were unable to pay the cab fare. After initially refusing to do so, the offender agreed to drive the complainant and her friend home. However, after dropping the friend at her home, Mr Malik then drove the complainant to his home, (from which his wife and children happened to be away that evening), claiming he had to change cars, and indicating the complainant could use the washroom there. When the complainant exited the washroom, Mr Malik was naked and repeatedly tried to have sex with her; e.g., putting his arms around her, trying to kiss and undress her, pulling her head towards his crotch, and pulling her to the floor where he lay on top of her, before she was able to squirm away and run from the house to a nearby coffee shop to call for assistance. While declining to provide a victim impact statement, (indicating instead that she simply wanted to get on with her life), the complainant indicated in earlier statements to the police that the incident had a negative impact on her, causing her to mistrust and fear others, (as well as taxi rides generally), and that reliving the matter through the trial process had been stressful. The offender had been born and raised in Pakistan, and had emigrated to Canada approximately 11 years before the offence. He was well-educated, (with a number of post-graduate university degrees), and a very solid employment history, including work as a finance and accounts manager and controller for a number of employers, including the Canadian High Commission in Pakistan and other companies in Canada. He had taken to driving a taxi as a second job. He was married, with three children aged 19, 17 and 12, all of whom he was supporting. (The court was presented with evidence that the family would experience severe financial hardship during any period of Mr Malik’s incarceration.) He was very involved with the community, through charity work, service club participation and athletics. He had no criminal record, and significant community support, reflected in numerous letters of support from friends, family and work associates, all of whom expressed shock at Mr Malik’s offence, which was said to be vastly out of character. Mr Malik’s sexual assault conviction also had been reported in prominent newspapers, resulting in considerable shame and humiliation not only for himself but for his family as well. The court imposed a custodial sentence of 18 months, to be followed by two years of probation, along with the standard ancillary orders. By way of comparison and contrast with the case before me:
i. Like Mr Ukumu, Mr Malik was a first-time offender. He too had breached his position of trust as a professional driver, and attempted to take advantage of a vulnerable victim.
ii. Mr Malik’s sexual assault was arguably more serious than that committed by Mr Ukumu, insofar as the offender was naked, and in addition to grabbing, kissing and lying on top of the complainant before she wriggled free and escaped, also tried to force her to engage in fellatio.
iii. Mr Malik also was more mature than Mr Ukumu, and despite his immigration to Canada, there were no indications that he otherwise had experienced any kind of disadvantaged background or hardship. Nor is there any indication that Mr Malik was facing any prospect of deportation.
iv. On the other hand, unlike Mr Malik, Mr Ukumu has nothing near the solid work record and demonstrable community contributions of Mr Malik, and does not have a wife and three children who are counting on him for financial support. Nor are there any indications that Mr Ukumu has experienced any kind of significant detrimental social or employment impact from public shaming. Mr Ukumu’s conduct also seems to have had a much more significant impact on his victim.
c. In R. v. Singh, supra, the 26-year-old offender was a taxi driver convicted of sexual assault after trial. He had picked the young female complainant up at night, while she was extremely intoxicated. Instead of driving the complainant directly to her boyfriend’s home as requested, Mr Singh brought her to his own home, and put her on his bed, where he then forced his penis into her mouth before eventually driving her to her destination. The entire incident lasted approximately an hour. Mr Singh was arrested and charged a year after the incident, after the police successfully traced semen found in the complainant’s brassiere. The sexual assault had an extremely significant impact on Mr Singh’s victim. A pre-existing mild anxiety disorder became very pronounced, to the point where the victim lived in a constant state of panic, causing dizziness and vomiting, and inability to leave home at times. She was medicated and her relationships suffered. She was obliged to move home with her mother, she missed a year of schooling, was unable to work, and suffered financially. Mr Singh, the offender, had been born and raised in India before emigrating to Canada, but had been raised in a good supportive family, with no indications of hardship. He had no criminal record, and had worked constantly at a variety of jobs after arriving in Canada. Most of his family had relocated to Canada as well, and he had their strong support, as well as the support of many others in the community who supplied numerous letters of support indicating the offence was very much out of character. Numerous professional psychiatric assessments prepared in relation to sentencing confirmed that Mr Singh was ashamed, remorseful and presented a very low risk of reoffending. There was also a very positive presentence report. Mr Singh’s status in Canada was such that he risked deportation if he received a federal term of imprisonment. In addition to the standard ancillary orders, the court imposed a custodial sentence of two years less a day, plus one year of probation. By way of comparison and contrast with the case before me:
i. Mr Singh and Mr Ukumu were both 26 when they committed their respective sexual assaults.
ii. Mr Singh’s victim apparently was more intoxicated and vulnerable at the time of his offence, the nature of his sexual assault was more serious and prolonged, and the impact on his victim, although similar in some respects to that on Ms T., was apparently more serious than that experienced by Ms T..
iii. On the other hand, unlike Mr Ukumu, Mr Singh had strong supports in the community, had a very positive presentence report, and numerous professional assessments confirming his remorse, acceptance of responsibility and low risk of reoffending.
d. In R. v. Torres, [2013] Y.J. No. 18 (Terr.Ct.), the 41-year-old offender was convicted, after trial, of sexually assaulting an intoxicated female passenger of unspecified age. He had picked his victim up as a fare, but after initially driving her to her home as requested, he then drove to a nearby bus turnaround where he had non-consensual sexual intercourse with the passenger. While she had tried to “block out” most of the incident, the victim was left an “emotional wreck”, who suffered from depression and suicidal thoughts, and had been forced to leave her employment because of stress associated with the incident. The offender was a Mexican citizen who had been living and working in Canada on a work visa for approximately five years. He had a high school education. He had no criminal record in Canada, and his uncontradicted testimony indicated he had no criminal record in Mexica either. Most of his family, including two sons, lived in Mexico. However, he had married in Canada, and had a one-year-old daughter with his Canadian wife - although he and his wife had separated shortly after the marriage. He had led a very prosocial life with a fairly solid work record, and had been regarded as a trustworthy and valued employee before the sexual assault. He accepted no responsibility for his conduct, maintaining the position that the sexual intercourse had been consensual. He was professionally assessed to be at low risk of reoffending – apart from his refusal to accept responsibility. His work visa nevertheless had been revoked, as a result of his conviction, and he would likely be subject to a deportation order as a result of his conviction. However, he would have a right to appeal such an order so long as he did not receive a sentence in the federal penitentiary range; i.e., two years or more. In addition to the standard ancillary orders, the court imposed a custodial sentence of 28 months, prior to giving credit for presentence custody. By of comparison and contrast with the situation before me:
i. Like Mr Ukumu, Mr Torres had no prior criminal record, and generally had led a prosocial life up until the time of his sexual assault offence.
ii. Mr Torres was obviously significantly older than Mr Ukumu.
iii. Like Mr Ukumu, Mr Torres generally lacked supports in the Canadian community, apart from his estranged wife and one-year-old daughter, and was facing deportation as a result of his conviction.
iv. The sexual assault committed by Mr Torres nevertheless clearly was much more serious, insofar as it involved completed sexual intercourse.
v. On the other hand, Mr Torres had been professionally assessed to be at low risk of reoffending.
e. The Crown also provided me with the decision in R. v. Dhindsa, supra. In that case, the offender was a taxi driver, who agreed to provide a gratuitous ride home to a young female who was inebriated and waiting at a bus stop in Winnipeg in the cold early morning hours of New Year’s Day, without the means to pay for a ride. Instead of taking his victim home, the offender drove her to a secluded industrial area and, while doing so, kept reaching for and touching her breast and crotch areas over her clothing. Although inebriated, the victim continued to voice her protests, and managed to exit the vehicle after 13 minutes. At an early stage, the offender pled guilty to a summary conviction offence of sexual assault, which spared the victim from having to testify. The victim also declined to submit a victim impact statement, indicating any lasting effect or impact of the relevant sexual assault, saying simply that she just wanted to get on with her life. Although of unstated age, the offender was old enough to have emigrated from India to Canada on his own eight years prior to sentencing, and to have worked as a professional taxi driver for three years prior to his offence. He had no prior criminal record, a previously unblemished record as a taxi driver, and the court was supplied with numerous character references and letters of support, as well as a comprehensive expert report from a psychologist who had conducted a thorough assessment. All emphasized that the offender’s misconduct was entirely out of character, and there was a low risk of reoffending. He was extremely remorseful, and had voluntarily embarked on sexual offender counselling at his own expense. The offender was a devout Sikh, and already had experienced numerous significant collateral repercussions because of his conduct, including loss of his employment, as well as a significant fall from grace within his family, (whose aging parents had experienced physical illness because of his misconduct), and within his worship community, where he was regarded as having committed an egregious sin contrary to the tenets of his faith. As a permanent resident in Canada, still lacking citizenship, the offender also faced deportation if he received a sentence, (even a conditional sentence, available at the time of the offence), exceeding six months. In the circumstances, the Crown apparently was content to request a sentence of a length shorter than that, which the court initially doubted was sufficient to address the sentencing principles of denunciation and deterrence. In the result, however, the court agreed, despite its apparent initial reluctance, to impose a five-month conditional sentence, coupled with two years of probation, along with the standard ancillary orders; a sentence that would not result in the offender’s deportation. By way of comparison and contrast with the case before me:
i. The sexual assault in that case similarly involved sexual touching without penetration. However, in my view, the sexual assault in that case was less serious, (as reflected in the Crown’s decision to proceed summarily rather than by way of indictment), insofar as it occurred while the offender was driving, without as much bodily contact, and without the imminent threat of sexual intercourse present in this case, when Mr Ukumu was straddling Ms T. in the back seat of his vehicle, trying to undue his pants, while speaking to Ms T. about having sex.
ii. Mr Ukumu’s offence arguably involved a greater breach of trust, in that Ms T. was a paying passenger in what she believed was a professionally driven taxi or Uber vehicle, whereas Mr Dhindsa’s victim was a gratuitous hitchhiker who nevertheless had legitimately expected to enjoy the safety of a taxi.
iii. Mr Ukumu displayed a degree of premeditation that Mr Dhinsa did not.
iv. Unlike Mr Dhinsa’s victim, who presented the court with no evidence to suggest lasting or significant impact of the relevant sexual assault, there is evidence before me indicating that Mr Ukumu’s sexual assault has had a very serious and lasting impact on Ms T..
v. Unlike Mr Ukumu, Mr Dhinsa expressed considerable remorse for his conduct from the outset, and entered an early guilty plea which spared his victim the ordeal of having to testify. Ms T. enjoyed no such benefit in this proceeding.
vi. Unlike Mr Ukumu, Mr Dhinsa had significant supports in the community, and there was substantial professional evidence before the court supporting a conclusion that he was at low risk of reoffending.
vii. Unlike Mr Ukumu, Mr Dhinsa already had voluntarily engaged in counselling for sexual offenders, at his own expense.
viii. Unlike Mr Ukumu, Mr Dhinsa already had experienced significant collateral impacts as a result of his offence, in terms of employment, family relationships, and being shunned by his faith community.
ix. Unlike Mr Ukumu, Mr Dhinsa was still capable of receiving a custodial sentence sufficient to adequately address the principles of denunciation and deterrence while sparing him the further collateral consequences of a deportation order; a consideration which apparently drove the court, albeit reluctantly, to impose a more lenient sentence to avoid the risk of such a deportation order
f. In R. v. Gill, supra, the offender was a taxi driver who was convicted, after trial, of sexually assaulting a young female passenger. He had picked the victim up outside a nightclub in the early morning hours. Slightly inebriated, she provided the offender with her boyfriend’s address, called the boyfriend to say that she was on her way home, and then fell asleep. After blocking the taxi’s security camera, the offender woke the victim when he reached over, repeatedly touching the victim’s left thigh closer and closer to her vaginal area, before moving his hand higher, pushing her underwear aside, and forcing two fingers into her vagina. He also forcefully grabbed the victim by the upper left arm, pulling her towards him and trying to kiss her, ultimately slobbering on her left lip and cheek area. The entire time, he ignored her repeated pleas for him to stop. The sexual assault ended when the taxi arrived at the boyfriend’s home, at which point the victim ran from the vehicle crying, to the safety of her boyfriend. The victim sustained bruising to her arm, and a cut or tear in her vagina, in addition to suffering severe and prolonged emotional and psychological trauma. The offender, who was 38-years-old, had been born in India but had become a permanent resident of Canada in 2009, approximately three years before the sexual assault. He came from an untroubled and positive background that was very supportive and free from any neglect or abuse, had no prior criminal record, and had led a prosocial life, involving post-secondary education and graduate degrees, as well as relatively continuous employment at a number of occupations. He was married with two children, and the presentence report, emphasizing his family lifestyle, employment record and religious activities, was quite positive. The court was provided with numerous testimonials and reference letters, from family, friends and employers, as well as an expert report from a psychologist indicating, after a professional assessment, that the offender was at low to low-moderate risk of sexual crime recidivism. As the offender was only a permanent resident, who had not yet attained Canadian citizenship, he faced the risk of deportation if the court imposed a sentence in excess of six months. After reviewing numerous sentencing precedents, focusing on those involving sexual assaults by taxi drivers who had abused their position of trust, the court opined that the appropriate sentencing range fell between a low end of 18 months to two years less a day to a higher end of four to five years. In the result, the court held that the potential collateral consequence of deportation effectively was a non-consideration, as a fit sentence was significantly in excess of six months in any event. (In that regard, I will note that, in this case, as I mentioned earlier, any sentence beyond an absolute discharge or conditional discharge will make the consequences of Mr Ukumu’s offence the same in any event, from an immigration perspective.) In the result, the court imposed a custodial sentence of three years on Mr Gill, along with the standard ancillary orders. By way of comparison and contrast with the case before me:
i. The sexual assault committed by Mr Ukumu arguably was less serious, insofar as did not involve any actual acts of digital or other penetration, although it did carry the apparent threat of contemplated intercourse, which was not a realistic possibility in Mr Gill’s case, at least insofar as he continued to operate his vehicle while committing his sexual assault.
ii. The physical consequences to Mr Gill’s victim apparently were more serious, although the emotional and psychological consequences arguably were comparable.
iii. There is no indication that Mr Gill had experienced anything like the challenging upbringing and background of Mr Ukumu.
iv. However, unlike Mr Gill, Mr Ukumu does not have a young family to support, a positive presentence report, a record of prosocial activity, expert evidence confirming that he presents a low to low-moderate risk of reoffending, or evidence of substantial support in the community
g. In R. v. Jakupaj, supra, the offender was a taxi driver who was convicted, after trial, of having sexual assaulted two of his young female passengers, on separate occasions. On the first occasion, the lone female passenger entered the front seat cab of the taxi, requesting a ride home from the George Street bar area in downtown St John’s, Newfoundland. When the taxi arrived outside the passenger’s home, the offender forcibly kissed her, thrusting his tongue inside her mouth and grabbing the back of her neck to pull her towards him, all without her consent, before she managed to push him away and exit the vehicle. On the second occasion, the offender had driven the victim and a number of other passengers from the same George Street bar area back to an apartment residence, in the early morning hours. Shortly thereafter, the offender exited his vehicle, and followed the victim into the apartment building. Once inside, he passed the victim on the stairwell, touching her breast outside her clothing, without her consent. The offender then followed the victim to a downstairs apartment where he demanded a hug, which the victim initially refused but then briefly provided, in an effort to hasten the offender’s departure. However, the offender then embarked on more aggressive acts of sexual assault; e.g., placing his tongue in the victim’s mouth, forcibly attempting to hug and kiss her, touching her breast and vaginal area outside her clothes, attempting to place his hand inside her clothes, pulling down her pants, touching her buttocks, all while placing his arm against her throat and/or pinning her to a wall and set of appliances with his body. He stopped and departed only when a loud noise from upstairs suggested that someone else was approaching. The decision contains no express indications of victim impact. The offender was 32 at the time of the two sexual assaults, and 34 at the time of sentencing. At or around the age of 20, he had emigrated to Canada from Kosovo, where he had been involved with the war there at an early age, resulting in a formally diagnosed condition of post-traumatic stress disorder. However, he thereafter had spent 10 years in Canada without engaging in any criminal activity, and leading a generally prosocial life of employment while providing assistance to his father. At the time of the sexual assaults, he accordingly had no criminal record. However, shortly after the two sexual assaults bringing him before the court, he had committed a further offence in respect of which he already had been sentenced to four years imprisonment; i.e., an offence which involved his picking up a female passenger and breaking into the residence which had been her final destination, apparently with the intent of sexually assaulting her, although he fled when the passenger’s male partner noticed the offender’s entry and intervened. There was no presentence report, and the offender’s prospects for rehabilitation were uncertain, especially having regard to his later offence, notwithstanding his voluntary attempts to pursue and secure rehabilitative programming while in prison, (including sexual offender programming), and his brief statement to the court indicating remorse and a promise to never offend again. The offender’s later offence and related incarceration already had put an end to his employment as a taxi driver. As noted above, the court emphasized the breach of trust aspects to the sexual assaults, resulting from his status as a taxi driver. After reviewing numerous authorities, the court opined that the six-month sentence sought by the Crown in relation to the first sexual assault, limited to an instance of forced kissing, was disproportionate. In relation to the second more serious sexual assault, however, the court opined, after reviewing numerous cases involving more serious sexual assaults by taxi drivers, that the appropriate range of sentencing for such an offence was between 18 months and five years, depending on individual mitigating and aggravating circumstances – particularly having regard to the nature of the underlying sexual assault and the circumstances of the offender. In the result, the court imposed consecutive sentences of two months custody in relation to the first sexual assault, and 20 months custody in relation to the second sexual assault, along with the standard ancillary orders for such offences. No probation was sought or ordered, having regard to the reality that the offender already would be serving a length period of imprisonment. By way of comparison and contrast with the situation before me:
i. Mr Jakupai’s first sexual assault was much less serious than that committed by Mr Ukumu, but his second sexual assault arguably was more aggressive and invasive.
ii. Although he formally was a first-time offender for the purpose of sentencing, Mr Jakupaj’s subsequent offence suggested a need for increased specific deterrence.
iii. Like Mr Ukumu, the offender had come from a troubled background in another country.
iv. Like Mr Ukumu, there was no presentence report available, and the prospects for rehabilitation were uncertain.
v. Unlike Mr Ukumu, the offender nevertheless expressly indicated his remorse, and already had voluntarily and actively pursued and engaged in whatever rehabilitative programming was available to him, suggesting a level of insight into his misconduct.
[51] I also have reviewed the additional sentencing precedents to which I was referred by defence counsel, but frankly did not find them to be that helpful as sentencing precedents in the current situation before the court.
[52] In particular, while I appreciate defence counsel’s efforts to draw broad analogies between the position of trust occupied by professional drivers and other positions of trust, (e.g., someone considered to be “like a member of the family” in the case of R. v. R.F.B., 2013 ONSC 3311, a hairstylist operating a salon in the case of R. v. Chen, 2017 ONCJ 612, or an employer in R. v. Racco, 2013 ONSC 1517), and to similarly draw analogies between situations of vulnerability, (e.g., between an intoxicated young female passenger in a taxi and a mentally delayed female relative, a female customer in a salon, or a female subordinate), I think the cases specifically focused on assaults by professional drivers such as taxi operators on female passengers, (particularly young and inebriated female passengers), provides much closer guidance in terms of the particular denunciation and deterrence concerns that are the paramount concerns in relation to offences of this nature.
Assessment
[53] It has been said many times, and in many different ways, that sentencing is more of an art than a science – and I have given a great deal of thought to the appropriate sentence in this case.
[54] Having done so, I think the proposed custodial dispositions suggested by defence counsel are simply too low; i.e., to adequately address the concerns of denunciation and deterrence that must remain paramount in this context, and constitute an appropriately proportionate sentence reflecting the moral culpability of Mr Ukumu in these particular circumstances.
[55] Without limiting the generality of the foregoing, insofar as defence counsel relied heavily on the precedent of R. v. Dhinsa, supra, as an appropriate sentencing “basepoint” on which to build her primary sentencing submission, subject to what I viewed as relatively modest incremental adjustments, (e.g., in an attempt to address realities such as the important fact that precedent dealt with a summary conviction sentencing, following a guilty plea, and a sentence apparently reluctantly accepted by the judge as an extraordinary outcome to avoid deportation consequences – which were a possibility in that case), I simply did not regard that precedent as an appropriate starting point. For all the reasons identified earlier, I think the circumstances in that case are easily distinguishable from the circumstances before me, in many important respects.
[56] More generally, after much consideration, and even having regard to the various mitigating considerations I have identified, I simply am not comfortable or content with the suggestion that the custodial sentence prior to credit for presentence custody should be less than the 12 months requested by the Crown.
[57] In particular, while I have considerable sympathy for Mr Ukumu’s very challenging background and respect for his past pro-social behaviour despite his challenges, while rehabilitation of Mr Ukumu is something I obviously have borne in mind and considered, and while in some respects it would be gratifying to keep Mr Ukumu’s net sentence within the intermittent range so as not to disrupt his current employment and thereby assist in his rehabilitation, (particularly if he may have increased difficulty locating another job in the wake of giving up his car and ability to pursue jobs such as delivery work that require a vehicle), rehabilitation is simply not the primary focus here.
[58] Again, the paramount considerations in a case of this nature are denunciation and deterrence, as in sexual assault matters generally, but in my view, for the reasons I have indicated, those concerns are elevated in a case such as this which involves additional combined considerations such as the aggravating factors I have mentioned, including the need for added denunciation and deterrence in matters involving breach of trust by professional drivers, vulnerable victims, as well as the concerns in this particular case about premeditation and the severe impact Mr Ukumu’s conduct has had on Ms T..
[59] In saying that, I certainly am not ignoring the mitigating considerations I have identified, but I do not think they sufficiently offset the numerous aggravating factors I have identified, and the precedents I have reviewed suggest to me that an appropriate sentence in these circumstances might very well have been higher than the 12 month custodial sentence being requested by the Crown.
[60] While I am not inclined to impose a sentence greater than that sought by the Crown, I simply do not think anything less than that requested custodial sentence would be appropriate to do justice in the particular circumstances of this case, weighing all the considerations I have identified.
[61] On the whole, having regard to all the circumstances, I therefore find that the appropriate sentence for Mr Ukumu’s offence should be imprisonment for a period of 12 months, prior to receiving credit for presentence custody in the agreed manner; i.e., credit for 144 actual days of presentence custody, enhanced on a 1.5 for 1 day basis pursuant to s.719(3.1) of the Code, for a total credit of 216 days or 7.2 months – leaving 4.8 months remaining to be served.
[62] That further custodial sentence will be followed by a two-year period of probation, the terms of which I will indicate below during imposition of sentence.
[63] As for the various further orders requested by the Crown and not opposed by the defence, with the exception of the requested discretionary s.743.21 non-communication order, the requested orders are not only appropriate in my view but mandatory in the circumstances, having regard to the specific provisions already identified.
[64] As for the s.743.21 non-communication order, I independently find that to be entirely appropriate in the circumstances.
Formal imposition of sentence
[65] At this point, Mr Ukumu, I am going to ask you to please stand.
[66] For the reasons I have outlined, I am sentencing you to a period of imprisonment of 12 months. However, in relation to that 12-month custodial sentence, you shall receive a credit in relation to your time spent in presentence custody, on the basis of 1.5 days for each actual day spent in custody.
[67] In particular, you shall receive credit for 7.2 months of presentence custody, calculated on the basis of 144 actual days spent in presentence custody, credited at the rate of 1.5 days for each actual day, for a total resulting credit of 216 days, or 7.2 months, to be applied against your custodial sentence of 12 months. That will require you to spend a further 4.8 months in custody.
[68] That further period in custody will be followed by a two-year period of probation, on terms and conditions that shall include the following:
a. to report to a probation officer within two working days of your release and thereafter, when required by the probation officer and in the manner directed by the probation officer, and to remain under the supervision of the probation officer;
b. to remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained in advance from the probation officer or the court;
c. to keep the peace and be of good behavior;
d. to refrain from any direct or indirect communication or association with E.T. or O.G.;
e. to refrain from attending within 200 meters of any known place of residence, employment or education of E.T. or O.G.;
f. to refrain from knowingly being within 25 meters of E.T. or O.G.;
g. to appear before the court when required to do so by the court;
h. to notify the court or your probation officer in advance of any change of name or address, and promptly notify the court or probation officer of any change of employment or occupation;
i. to attend and actively participate in, to the satisfaction of the probation officer, any assessment, treatment or counselling program as required by your probation officer, with such programming to include but not be limited to any recommended sex offender specific therapy or counselling programs the probation officer considers feasible and advisable; and
j. to complete 50 hours of community service.
[69] There will, as well, be further ancillary sentencing orders whereby:
a. pursuant to s.109(1)(a) of the Code, you will be subject to a mandatory weapons prohibition order, for a period of 10 years;
b. pursuant to sections 490.011(1)(a)(xvi), 490.012(1) and 490.013(2)(b) of the Code, you will comply with the Sex Offender Information Registration Act for a period of 20 years;
c. pursuant to ss.487.04(a)(xi.3) and 487.051(1) of the Code, you will provide the number of samples of bodily substances that is reasonably required for forensic DNA analysis; and
d. pursuant to s.743.21 of the Code, you will be subject to a non-communication order, prohibiting you from communicating directly or indirectly with E.T. and/or O.G. during the custodial period of your sentence.
[70] Mr Ukumu, please have a seat. I am going to endorse the indictment now.
JUSTICE I.F. LEACH
Released: (Orally) February 12, 2020
COURT FILE NO.: 45/18
DATE: 2020/02/12
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
WOPATSHU UKUMU
Defendant
REASONS FOR sentence
Leach J.
Released: (Orally) February 12, 2020