Court File and Parties

Court File No.: CR-18-037-00 Date: 2020-06-25 Ontario Superior Court of Justice

Between: Her Majesty the Queen And: Kristopher Vaughan, Defendant

Counsel: Greg Skerkowski, for the Crown Brian A. Callender, for the defendant

Heard at Kingston: 4 March and 11 June 2020

Before: Mew J. (Orally)

Sentencing Decision

[1] Kristopher Vaughan, following a trial conducted over eight days, you were found guilty on a single charge of sexually assaulting Cheryl Wright.

[2] You were to have been sentenced on 5 May 2020. However, due to the public health emergency resulting from the COVID-19 pandemic, that has been delayed until today.

[3] Last week, on 16 June, I granted your application for an order revoking your bail: reasons reported at 2020 ONSC 3765. You are now in custody, and today’s hearing is being conducted by videoconference.

Circumstances of the Offence

[4] The assault took place in the early hours of 20 August 2017 on a couch located in the ground floor of the family home occupied by you and your then wife, Sherri Vaughan. There had been a party there the previous evening. A great deal of alcohol had been consumed by the partygoers, one of whom was Ms. Wright. She had either passed out or fallen asleep on the couch. You and your wife had gone upstairs to bed. However, during the night, you came back downstairs and sexually assaulted Cheryl Wright.

[5] Ms. Wright’s account of the incident – which you deny occurred at all - is that she had been asleep, but remembered waking up and seeing you over the top of her. You pushed up her tank top and bra and fondled her breasts aggressively. Then you penetrated her vagina with your fingers. You suggested that she remove her pants so that you could have intercourse with her. She did not respond. You then put your penis, which was not erect, in her mouth and tried to push it back and forth. You eventually left. Ms. Wright remained on the couch, but left the next morning before you or your wife had got up.

Circumstances of the Defendant

[6] You are now 42 years old. You have two daughters from a previous marriage. You became separated from Sherri Vaughan after you were committed for trial. You currently reside with your half-sister, her husband and three children.

[7] From 1996 until October 2019, you were a member of the Canadian Armed Forces. You were medically released due to what are described in the pre-sentence report as your “occupational related mental health diagnoses”.

[8] You plan to take an architectural technology course once this criminal process has concluded.

[9] In recent years, you have had problems with excessive alcohol consumption. You have also had mental health challenges. While in the military, you received government support for diagnosed post-traumatic stress disorder and degenerative disease.

[10] You have served this country and the military in often challenging circumstances. You completed tours of duty in Bosnia, Afghanistan and Iraq.

[11] At one point, between the time you were charged and your preliminary hearing, you attempted suicide. It was after that attempt that it was recommended that you attend the Homewood Facility in Guelph, which has expertise in treating PTSD for first responders and members of the military.

[12] You have the support of family members, including your mother, Cheryl-Ann Tracey, who provided a written statement to the court at the time of your sentencing hearing.

[13] It has been recommended that you attend for further in-patient treatment at Homewood for your anxiety and mood symptoms. According to the pre-sentence report, you have indicated an interest in doing so, however, you are waiting for your sentence to be determined prior to making any further arrangements to attend.

[14] Your mother has expressed herself to be “so shocked on so many levels” by your conviction, noting that there was “nothing that would indicate he would ever do this” and suggesting that your mental health diagnoses may have impacted your judgment.

Impact on the Victim

[15] At the time of the offence, Cheryl Wright had recently experienced marital breakdown. She was already vulnerable. Shortly after the incident she, too, attempted taking her own life.

[16] After the assault, she describes herself as having been in shock and numb to what had happened. She was trying to make sense of everything. She had let her guard down on that night. She thought she was safe in her surroundings. Your actions robbed her of that feeling of security. Now, wherever she goes, she questions her own safety. She walks to her car with a key between her fingers. She becomes anxious when a male is behind her in line at the grocery store. She becomes nervous when she sees a man in military uniform. Time and time again, she has had nightmares and flashbacks in which she still sees you over the top of her but, as was the case on the night of the assault, is unable to move or fight you off. She says that she can still hear your voice as you assaulted her.

[17] Ms. Wright says that her whole life has been turned upside down. Her children have had to witness her at her lowest point. She is still in counselling and expects that to continue.

Legal Parameters

[18] When tried by way of indictment, s. 271 (a) of the Criminal Code provides that a person found guilty of a sexual assault is liable to a term of imprisonment of not more than ten years.

Position of the Parties

[19] The Crown seeks a term of imprisonment of two years less one day less any pre-sentence custody which, in your case, would amount to the equivalent of five days.

[20] In addition, the Crown requests that you are placed on probation for eighteen months after the completion of your custodial sentence with conditions that would include counselling for mental health and alcohol, a prohibition on alcohol consumption, and no contact with your victim.

[21] The vulnerability of the victim, the place of the assault and the degree of invasiveness are all submitted as aggravating features of your offence. So is the impact of your actions on Ms. Wright.

[22] Mitigating factors include the absence of any criminal record, your service to your country and the combined effect of alcohol consumption and the use of anti-depressant medication.

[23] While the Crown acknowledges your post-traumatic stress disorder, no evidence was presented of a causative link between that and the subject offence.

[24] The Crown referred to a number of authorities in which the range of custodial sentences went from eighteen months to five years.

[25] On your behalf, it is submitted that you should receive a sentence of twelve months’ imprisonment. While you maintain that you did not commit the offence, it was said on your behalf that you accept the outcome. It was not suggested that your post-traumatic stress disorder is linked to this offence.

[26] It was submitted that mitigating factors include this conduct being completely out of character, a generally positive pre-sentence report and the existence of other challenges, including mental health.

[27] I am also asked to take into account that you will be serving your sentence during the ongoing COVID-19 pandemic.

Sentencing Principles

[28] The general principles of sentencing are set out in s. 718 of the Criminal Code. Judges passing sentence are required by law to impose a just sanction that has one or more of the following six objectives:

1. To denounce unlawful conduct;
2. To deter the offender and others from committing offences;
3. To separate offenders from society where necessary;
4. To assist in the rehabilitation of offenders;
5. To provide reparation for harm done to victims or to the community; and
6. To promote a sense of responsibility in offenders, and acknowledge harm done to victims and to the community.

[29] As well, the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. It must also be similar to those imposed on similar offenders, for similar offences committed in similar circumstances.

[30] The Court of Appeal has held that a sentencing judge may take into account the fact of the COVID-19 pandemic and its implications for persons in custody in much the same way that it would of other “collateral consequences” that have a bearing of the impact of a particular sentence: R. v. Morgan, 2020 ONCA 279, at para. 9. But any variation must not deviate from the range of otherwise appropriate sentences to such an extent that it is no longer proportionate to the gravity of the offence and the responsibility of the offender and, thus, becomes a sentence that is unfit.

[31] In R. v. Hearns, 2020 ONSC 2365, Pomerance J. observed, at paras 11 and 12:

[11] The risk of infection is, by necessity, higher in custodial institutions, where conditions – cramped quarters, shared sleeping and dining facilities, lack of hygiene products – make it difficult, if not impossible, to implement social distancing and other protective measures. This is not to say that the virus is rampant in jails, or that government officials are not trying to protect inmates. It is only to say that, as a matter of logic and common sense, the risk of contracting the virus is higher in an environment where people are forced to habitually congregate with one another.

[12] There is no suggestion that Mr. Hearns has any enhanced vulnerability flowing from age or underlying medical conditions. This does not negate the concern. The virus does not discriminate. There are reports of otherwise healthy individuals succumbing to severe illness and, in some cases, death. We must assume that no one is immune from the disease or the full range of potential consequences.

[32] Pomerance J. concluded, at para. 16:

COVID-19 also affects our conception of the fitness of sentence. Fitness is similar to proportionality, but not co-extensive with it. Proportionality dictates that the sentence should be no more than is necessary to reflect the gravity of the crime and the moral blameworthiness of the offender. Fitness looks at a broader host of factors. A sentence may be fit even if it is not perfectly proportionate. Fitness looks, not only at the length of a sentence, but the conditions under which it is served. As a result of the current health crisis, jails have become harsher environments, either because of the risk of infection or, because of restrictive lock down conditions aimed at preventing infection. Punishment is increased, not only by the physical risk of contracting the virus, but by the psychological effects of being in a high-risk environment with little ability to control exposure.

[33] I agree with those comments. However, as Madam Justice Pomerance and other judges remind us, a recognition of the potential harmful health impact on persons detained in the prisons and similar institutions must be balanced against the court’s administration of justice responsibilities and, in particular, the protection of the public. Nor has the pandemic generated some sort of “get out of jail free” card: Hearns, at para. 23.

[34] It is clear that, even taking into account these factors, a custodial sentence is warranted in this case.

[35] The aggravating factors include:

a. The vulnerability of Ms. Wright, who was taken advantage of when she was in no position to consent or defend herself; she was essentially helpless and you knew that. b. The place of the assault – she was visiting the home of friends from the military community and had the right to feel safe. c. The degree of invasiveness: although there was no evidence of sexual intercourse, there was other invasive conduct, including digital penetration and your attempt to insert your penis into your victim’s mouth. d. The incident was relatively prolonged – although there is not much evidence of exactly how long it lasted, it was for long enough that there were episodes of aggressive fondling, digital penetration moving between the use of one and two fingers, various utterances, and an attempt to force oral sex. e. The impact on Ms. Wright. Her victim impact statement was clear about the degree of the emotional impact. As a result, she made one attempt on her own life, has experienced insomnia, fear and flashbacks.

[36] Mitigating factors include:

a. The absence of a criminal record. b. Your service to your country with some distinction. c. Your health challenges, including depression and the physical effects of mixing anti-depressants with alcohol. d. The existence of family support. e. Reasonable prospects for rehabilitation.

[37] Your biological mother wrote in her statement of the tremendous emotional toll that some of your experiences in the military took on you. When you came back to Canada after your tour of duty in Iraq, your mother felt that your erratic behaviour put a strain on your already rocky marriage and that your personality shifted.

[38] While there was limited medical evidence to that effect, it would not be surprising if there had been an event or events in your life which had some bearing on how you moved from a law abiding, pro-social existence, to the behaviour that now brings you before the court.

[39] But, regardless of what may have happened in your life that influenced your behaviour, the fact remains that your assault of Ms. Wright was cynical, opportunistic, cowardly and utterly despicable. You left the bed that you were sharing that night with your wife and went downstairs where you sexually assaulted a defenceless victim who was sleeping off the effects of an evening of excessive drinking.

[40] I agree with the Crown that the fact that there was no intercourse, either attempted or actual, is of no great significance in terms of being a mitigating factor.

[41] In R. v. M.R., 2018 ONSC 583, the defendant sexually assaulted an employee who had come to a meeting at the accused’s residence. Many drinks were consumed. Like Ms. Wright in the present case, the victim got drunk and threw up on himself. He then passed out on a couch in the defendant’s recreation room. He subsequently awoke to find the defendant fondling his genitals, squeezing his buttocks and digitally penetrating him.

[42] Boswell J. noted, at para. 32, that the usual range of sentence for an offender who has committed an invasive sexual assault on a sleeping or an unconscious victim is eighteen months to three years in custody.

[43] In R. v. M.R., the defendant was sentenced to fourteen months. That took into account that the nature of the offence was “for the most part, an intrusive fondling” rather than something more invasive.

[44] Another case involving a victim who was assaulted after having passed out as a result of excessive alcohol consumption, is R. v. McCaw, 2019 ONSC 3906. The defendant had removed all of the victim’s clothing as she lay on a couch and then kissed her breasts following which he engaged in unprotected vaginal intercourse. He was sentenced to a term of imprisonment of 40 months.

[45] In R. v. Thakoordeen, 2019 ONSC 1540, a case relied on by the defence, there was a struggle between the victim, on the one hand, and the accused and one of his friends, on the other during which the two men removed her purse and pushed her to the ground. The defendant got on top of her and started thrusting. He had removed his penis but did not penetrate the victim. Instead, he digitally penetrated her with what she said felt like three fingers a couple of times.

[46] The defendant was sentenced to two years’ incarceration for what, the defence submits, was a fair more violent attack than that perpetrated by you.

[47] I want to make clear to you that the fact that you do not admit that you sexually assaulted Ms. Wright is not a relevant factor to my sentencing decision. You cannot be penalised for insisting on your right to a trial, although you do not get the benefit of a reduced sentence because of a guilty plea.

[48] Although you did not seek to blame your conduct on your post-traumatic stress disorder, much was said about your dependence on alcohol and your general mental health as mitigating factors.

[49] I am not unsympathetic to the challenges that you and other men and women like you who have put their lives on the line, served in highly dangerous circumstances, and endured experiences which would be unimaginable to most lay people. However, I do not regard these things as mitigating factors in this case.

[50] This was, as I have already indicated, an opportunistic crime. The impact on your victim has been life altering.

[51] To your credit, you have a plan for a future, including retraining and further addressing your mental health challenges. This speaks well of your prospects for rehabilitation. I believe, too, that your risk for reoffending is low, particularly if you are able to obtain suitable programming to assist you.

[52] Nevertheless, it is important that you understand that denunciation and both special and general deterrence are also important objectives which have influenced my sentencing decision.

[53] The likelihood that the conditions you will serve your sentence in will be made harsher because of the public health pandemic has factored into my sentencing decision, applying the considerations set out in the Hearns decision.

Sentence

[54] Mr. Vaughan, I sentence you to a term of imprisonment of fifteen months. You are entitled to credit for the equivalent of five days that you have served in pre-trial custody, as well as the nine days that you have served since the revocation of your bail. A total of fourteen days will therefore be deducted from the total of fifteen months.

[55] After your release, you will be on probation for a further eighteen months. In addition to the mandatory terms,

a. You will report to a probation officer within two working days, and thereafter, be under the supervision of a probation officer or a person authorised by the probation officer to assist in your supervision and to report at such times and in such places as that person may require; b. You shall abstain from the purchase, possession or consumption of alcohol or other intoxicating substances; c. You shall abstain from the purchase, possession or consumption of drugs except in accordance with a medical prescription; d. You will attend and actively participate in such counselling programs as may be recommended by your probation officers and sign any necessary releases so that probation can confirm your participation in such counselling programs; e. You shall make reasonable efforts and maintain suitable full-time employment and/or pursue further education; f. You shall not associate, contact or hold any communication, directly or indirectly, with Cheryl Wright, nor be within 200 metres of her person, place of residence, school, university, employment or where you find her to be.

[56] I also make the following ancillary orders:

a. You will be prohibited pursuant to s. 109 of the Criminal Code from possessing any weapon as described in s. 109(1) , the applicable term of such prohibition order, which is mandatory for an indictable offence involving violence against a person which carries a maximum prison term of ten years or more, being for ten years; b. There will be a DNA order pursuant to s. 487.051(1) of the Criminal Code. c. There will be an order pursuant to sections 490.012 and 490.013 of the Criminal Code requiring you to comply with the Sex Offender Information Registration Act for 20 years; and d. There will be an order pursuant to section 743.2(1) of the Criminal Code prohibiting you from communicating with Cheryl Wright, directly or indirectly, during the custodial period of your sentence.

[57] The pre-sentence report noted that you would benefit from any programmes specific to sexual offenders that may be available. I strongly endorse, and recommend, that if at all possible, such programing should be made available to you during the custodial portion of your sentence.

Graeme Mew J.

Handed down: 25 June 2020 (orally)