Her Majesty the Queen v. Cole Louis MacDougall

COURT FILE NO.: 199/19 DATE: 20200819

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

COLE LOUIS MACDOUGALL Defendant

COUNSEL: H. Donkers, for the Crown S. Puchala for C. Conron, for the Defendant

HEARD: March 10, 2020

McArthur, M.D., J.

RESTRICTION ON PUBLICATION

By court order made under s. 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner.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

Introduction

[1] On December 19, 2019, Mr. MacDougall pled guilty to assault causing bodily harm, sexual assault and the unlawful confinement of the complainant between August 10 and 12, 2018 and to wilfully attempting to obstruct justice between August 29 and September 27, 2018 by his efforts to dissuade the complainant from giving evidence in a judicial proceeding.

[2] A publication ban is in effect as to the identity of the complainant.

Assaults, Sexual Assaults and Confinement

[3] Mr. MacDougall had been in an intimate relationship with the complainant for approximately three months, with the relationship ending at the beginning of August 2018. On Friday, August 10, 2018, the victim attended Mr. MacDougall‘s apartment and they both commenced drinking alcohol.

[4] From Friday evening until approximately Sunday, August 12 at 5 PM, the defendant held the complainant in his bedroom with the exception of one outing to a local Tim Horton’s restaurant. Throughout this time, the defendant assaulted the complainant repeatedly. The complainant was not able to escape nor call for help. The defendant had seized her phone so she could not make any phone calls.

[5] At approximately 11 PM Friday evening, Mr. MacDougall looked at the complainant’s cell phone and became upset that she was seeing other men. He then began to strike the complainant repeatedly with an open hand and screamed at her, covered her mouth and began to choke her to stop her from screaming. He would not allow the complainant to leave the apartment and threatened to strike her with a metal bat that he held his hand. He did not want her to leave the apartment because of visible injuries she received from his assault upon her.

[6] In the early morning hours the next day, Saturday, August 11th, Mr. MacDougall asked the complainant to have intercourse. Out of fear she may be assaulted again, she agreed. During intercourse, she asked him to stop. The defendant responded “you are not doing this to me” and he continued to have unprotected vaginal intercourse until he ejaculated. The sexual intercourse occurred twice to the point of ejaculation. She feared that he may assault her so she allowed him to continue during these times that day. The complainant fell asleep at approximately 8:00 am the following day.

[7] In the morning on Sunday, August 12, 2018, the defendant asked her to have sexual intercourse again and she said no. The defendant gave her a dirty look and asked why. She again agreed to have sexual intercourse out of fear of being assaulted again. The defendant then had unprotected vaginal intercourse until he ejaculated.

[8] Between 12 PM and 1 PM that same day, the defendant asked to have sex again for a fourth time and, again, the complainant agreed out of fear of the defendant. The defendant again had unprotected intercourse with the complainant until he ejaculated.

[9] At approximately 5 PM, a plan was formulated to release the complaint to her mother if she lied to her mother about the incident. The defendant escorted the victim to her home and believed that she was going to tell her mother that she had been involved in a fight with an old friend. When inside her home, the complainant told her mother, who called police to report the incident.

[10] The police attended and observed injuries to the complainant that involved 2 black eyes, bruising around the neck consistent with choking, bruising on both upper arms and chest, several goose-egg swelling areas on her head and a swollen lip. These injuries to the complainant are observable in the series of photographs taken by the police and have been made collectively Exhibit #1 on the guilty plea.

[11] A warrant was obtained for the arrest of the defendant who was subsequently taken into custody on August 23, 2018.

Attempt to obstruct justice

[12] Soon after his arrest, an order was made by the court that Mr. MacDougall abstain from communicating directly or indirectly with the complainant or her mother.

[13] On August 29, 2018, the complainant received a Facebook message from the defendant. From September 3 to September 7, the complainant and her mother received two handwritten letters from the defendant which made the complainant fearful of the tone and content of the letters while attending meetings at court. These letters were disclosed to the police on September 27. and all of these communications were in violation of the earlier court order regarding non-communication.

[14] The letters were also attempting to obstruct the course of justice by persuading the complainant to lie about the charges by asking the complainant to speak in court and say that he did not do what the police thought he did and that he was a nice guy and that she was not worried about him getting out of jail and that at a trial to say that he did not do it and that she was drunk and hit her head and got into a fight.

[15] The obstruction effort continued when the complainant was contacted by telephone from another female identified as the defendant’s mother saying that she would take the complaint to court to say she was intoxicated, that her injuries were sustained from an unrelated bar fight and that the defendant was innocent of the charges.

Mr. MacDougall

[16] Mr. MacDougall is now 28 years of age. A presentence report was prepared and filed as Exhibit #1. He is single, never married and has no dependants.

[17] Mr. MacDougall was born in London, Ontario. He was in his mother’s care until age one and then placed into the care of his great aunt by the CAS because of concerns about her substance use. He did not know his father until he was a teenager. His father also struggled with drug use and was incarcerated a number of times. There is some suggestion that Mr. MacDougall may have suffered from Fetal Alcohol Spectrum Disorder but this is not supported on the information before the court and, even if it had, it would play little if any role in this case. Mr. MacDougall is certainly a most articulate and capable individual.

[18] He received a Grade 11 education and he has since completed various certificate courses while in custody these many months. He was diagnosed with Attention Deficit Disorder in school but had no learning disabilities. He experienced some difficulties in school and was suspended or reprimanded on some occasions. He began using alcohol at age 13 and drugs at age 14. He has an alcohol and a drug addiction. He reports he has remained sober for the past 5 years and has been consistently following a methadone program for at least the last 3 years.

[19] His great aunt, who died in 2019 while he was in custody, may not have maintained the optimal structure nor expectations for him growing up. He has a step-brother and step-sister, the former of which he sees and gets along well with. He had no other siblings. He was described as quiet and introverted by his grandmother. His grandfather, who also assisted in his upbringing, died in 2012.

[20] Mr. MacDougall regarded his youth favourably. He indicated that he had been abused by a non-family individual which was not reported to the police. He has not had continued contact with this individual. He described that he fell into the wrong crowd during his teenage years and was negatively impacted by his peers.

[21] He has been in 4 past intimate relationships, excluding the complainant, since age 16 when he was involved in an initial relationship for approximately 4 years and which exposed him to drug use. A second relationship lasted one year. A third relationship at age 23 years, lasted 4 months and ended up in him being charged with domestic assault. A fourth relationship ended amicably.

[22] Mr. MacDougall has held various labourer positions over the years including work in renovations, recycling plants and automotive repairs. He also has received social assistance when unemployed.

[23] Mr. MacDougall’s criminal record referred to in Exhibit 3 upon his guilty pleas includes the following:

a. 2012-10-29: Assault, Fraud and Forcible Confinement, among other convictions, for which he received 36 days incarceration and probation for 18 months;

b. 2014-01-24: Mischief and Forcible Confinement, among other convictions, for which he received a sentence of 90 days incarceration and 18 months probation;

c. 2016-07-15: Assault and Forcible Confinement, among other convictions, for which he received 60 days in jail and probation for 2 years;

d. 2016-12-07: Assault for which he received 1 day in jail and 18 months probation.

[24] He has convictions for failing to comply with recognizance and one for failing to attend court (for 8 convictions in total) and one failing to comply with probation.

[25] Mr. MacDougall has been incarcerated now since his arrest. While incarcerated in October 2018, he was assaulted by other inmates and received injuries that included bruising to his face, arm and shoulder pain, three areas of dental fractures and a possible concussion. No significant surgical intervention was required. He has also received medication for sleeping and for post-traumatic stress while incarcerated. He has remained in segregation since October 2018 and refused to disclose who his assailants were.

[26] Mr. MacDougall addressed the court at the end of the sentencing hearing held just prior to the COVID-19 pandemic measures coming into effect. He is an articulate person who addressed the court directly. He stated that he was sorry, knows his conduct toward the complainant was wrong. He also stated that his perspective has changed a lot while incarcerated and that he has completed every program he has been able to and that he wants to have a normal life, job and home when he is released. He also stated he wants no contact with the complainant and that he will not drink alcohol and that sobriety is needed.

[27] The sentence was to be pronounced on April 2, 2020 but has been delayed due to COVID-19 related delays.

Positions of the Parties

[28] Both parties agree that a jail sentence is required. They disagree on the length of sentence.

[29] The Provincial Crown seeks a global sentence of 4 to 5 years. As to the time that Mr. MacDougall has while in segregation, the Crown submits this should be credited at the rate of 1.5 to 1 and not on any other further enhanced basis.

[30] The defence seeks a sentence of 3 years in totality less presentence custody with enhanced credit for time served particularly in segregation following the attack upon him.

[31] I have also raised and received the submissions of both counsel as to the incarceration since April 2, 2020.

Aggravating Factors

[32] The aggravating factors in this case involving the assaults, sexual assaults and confinement include the following: first, Mr. MacDougall engaged in a prolonged and serious series of assaults, sexual assaults and confinement that included sexual intercourse and injuries to an intimate female partner. These factors are deemed aggravating pursuant to the provisions of the Criminal Code. Secondly, the nature of the sexual assault involved a complete disregard of any consent, dignity of nor respect for the complainant. Third, the complainant sustained physical and psychological injury, the latter of which continues to be significant and ongoing as expressed in her statement. Fourth, Mr. MacDougall has a past record for prior assaults including those in a domestic context including other unlawful confinements. The assaults in the domestic contexts all involved alcohol use and his loss of control. Mr. MacDougall was also on probation at the time of these offences.

[33] As to the effects, the complainant’s physical injuries have healed as she has written in the Victim Impact Statement filed. However, her mental, spiritual and emotional functioning continues to be substantially affected with anxiety, fear, haunting memories and flashbacks. All of this she must deal with while being the single mother of a young child. These are, effectively, psychological prions which the complainant will continue to struggle with.

[34] The aggravating factors in relation to the obstruct justice conviction involve the flagrant disregard of a court order that prohibited any contact with the complainant, his continued efforts to manipulate the feelings and thoughts of the complainant from the domestic relationship, his persistent, ongoing and various modes and efforts to dissuade the complainant and subvert the proper course of justice as well as a number of other past breaches for failing to comply for which he received sentences of incarceration.

Mitigating Factors

[35] Mr. MacDougall pled guilty to the offences and has expressed his remorse. He has accepted responsibility for serious misconduct to the complainant and appears to acknowledge his bad judgment for continued effort to subvert the course of justice.

[36] While incarcerated, Mr. MacDougall suffered injuries from an assault and remained in segregation. He also completed many of the programs available to him while incarcerated. Mr. MacDougall certainly has the ability to do well if and when he puts him mind and efforts to it. He has been on the methadone program consistently while in custody as well as before his incarceration.

[37] Although he is only 28 years of age, Mr. MacDougall is not a youthful first offender. He has a record which is significant and of increasing severity. In the letters he sent to the complainant as part of his efforts to dissuade her, Mr. MacDougall specifically acknowledges “I could get 5+ years” and “I’m worried they may try to D.O. me”. I am cautious to avoid conflating such comments where he is clearly writing to manipulate the complainant, boasting about his own prowess in custody, among other things. Nevertheless, Mr. MacDougall clearly knows the seriousness of his offending and the potential consequences.

[38] I was impressed how articulate Mr. MacDougall is, not only from his verbal address at court, but from the series of letters filed as Exhibit 2 for the guilty pleas. There are also gaps in his past record and relationships that appeared to have been functional. He has intelligence and abilities that are both encouraging and potentially disturbing; encouraging in the sense that he demonstrates insights into the obvious fact that, as mentioned in the pre-sentence report, “he does attribute his domestic offences in part to alcohol use as he stated that when he does drink, he loses his temper and gets angry.” And at the same time disturbing since, in the same report, “he feels that he can still drink in moderation.”

[39] He has also been employed for periods of time, although he has a history of failure to comply while on probation and otherwise.

[40] I recognize and commend that his counsel wisely raised his alcohol use with him directly. As mentioned earlier, at the sentence hearing Mr. MacDougall expressed his intentions to no longer consume alcohol. This is an encouraging start along with the insight and willingness to complete the various programs while incarcerated. This demonstrates rehabilitation potential provided that he avoids alcohol use, in particular involving any intimate partner. Otherwise, Mr. MacDougall would be a clear and present danger in any intimate or domestic context, particularly while consuming any alcohol.

Principles of Sentencing and Cases

[41] The principles of sentencing are set out in Section 718, 718.1 and 718.2 of the Criminal Code. They need not be repeated here and are well-known. The public and the citizenry must be protected.

[42] The law is clear that in cases of repeated and serious domestic assaults, the predominant sentencing principles are denunciation and deterrence. I am also aware to consider the prospects for rehabilitation, the principles of totality and also give regard to other cases and sentences imposed by the courts.

[43] A leading case is R. v. Smith, 2011 ONCA 564, [2011] O.J. No. 3832 where the Ontario Court of Appeal established that in cases of sexual assault involving forced intercourse with a spouse or former spouse, sentences generally range from 21 months to 4 years. The Crown also submitted the cases of R. v. S.M., [2016] O.J. No. 2010 where a sentence of 5 ½ years was imposed for a sexual assault, assault and unlawful confinement as a result of a home invasion. That case otherwise bears a number of factual features and similarities with this case: demeaning sexual assaults and assaults, threats, choking, injuries that were transient and not long-lasting, substantial program completion while incarcerated, among others. I have also considered the case cited by the Crown of R. v. C.B.K., [2015] N.S.J. No. 542 where a sentence of 4 ½ years was imposed after trial and conviction for a prolonged confinement, sexual assault and theft upon a girlfriend.

[44] I have considered all of the cases and the submissions provided to me by both counsel. Taking this all into account, a penitentiary term would be warranted here on the collective offences, excluding the attempt to obstruct justice. As to the efforts by Mr. MacDougall to dissuade the complainant, this is a distinct and separate matter and, although it involves continued coercion and manipulation of the complainant and involvement of other third parties, it is a clear affront to the administration of justice since it involved both the flagrant breach of a court order and the subversion of the proper functioning of the administration of justice.

Summers credit for enhanced pre-sentence incarceration

[45] The credit for pre-sentence custody has consistently been allowed by the courts absent justification to the contrary: see R v. Summer, 2013 ONCA 147. This credit should not overwhelm the sentencing process itself. In this case, the Crown’s position is that pre-sentence custody be enhanced on the basis of 1.5 to 1. In this case, an enhanced credit on this basis is fair and just in the circumstances.

Duncan credit for enhanced pre-sentence incarceration

[46] The Ontario Court of Appeal in R. v. Duncan 2016 ONCA 754 confirmed that in appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 to 1 credit as provided in the Criminal Code. In this case, the assault caused some injury and required medical treatment. Mr. MacDougall then remained in segregation largely since he would not disclose who was responsible and allow the authorities to address the situation. This is not a situation where the institution failed to provide medical care, avoided efforts to address the assault nor has there been established unique adverse effects on Mr. MacDougall flowing from general pre-sentence conditions up to April 2, 2020. He fortunately did make the best of the programs offered that were completed while incarcerated. I find that an enhanced credit beyond the 1.5 to 1 does not apply.

COVID-19 Presentence incarceration

[47] I recognize that the sentencing of Mr. MacDougall would have occurred on April 2, 2020 had not the COVID-19 court operational interruption and consequent delays occurred. Since particularly, April 2, 2020, there fortunately have been limited COVID-19 cases at the Elgin-Middlesex Detention Centre. Nevertheless, the conditions in which Mr. MacDougall has lived since April 2, 2020 have been more restricted, access to visitors and any additional programming have been limited, particularly where he had previously sought and followed with rehabilitation efforts. It is appropriate to consider COVID-19 as a real retrospective collateral consequence in the sentence of Mr. MacDougall in these circumstances.

[48] However, on a prospective basis from this date, in applying these factors based on the evidence before this court, COVID-19 has minimal relevance to the sentence and does not serve to reduce the sentence further on this basis. This situation is not unlike that encountered by Justice Skarika in R. v. Hannaford, 2020 ONSC 3665 in a case where he observed that the court can recognize and consider COVID-19 implications in sentencing: see at para. 37, citing R. v. McConnell, 2020 ONCJ 177 at para. 34; R. v. Kandhai, 2020 ONSC 1611 at para. 6; and R. v. Hearns, 2020 ONSC 2365 at paras. 2, 20.

[49] Other appellate decisions that have recognized that pre-sentence restrictions can and should be taken into account: See also R. v. Downes, 2006 CanLII 3957 (ON CA), [2006] O.J. No. 555 where Justice Rosenberg determined restrictive bail conditions as factors to be treated as a mitigating circumstance that should be taken in consideration. Other appellate decisions have recognized the impact as a collateral consequence; See R. v. Okash, 2015 ONCA 58. Here, there will be recognition for those further restrictions that have arisen and continued for approximately five months in this case on the basis as a collateral consequence.

Summary and Conclusions

[50] Mr. MacDougall, like the public, should expect that sentences shall continue to step-up in view of escalating and ongoing serious criminal intimate partner violence and violations of court orders. This was a case of a serious sexual assault to a domestic partner with continued efforts to manipulate that partner and undermine our system of justice.

[51] After considering all the aggravating and mitigating factors, I find there are some prospects for his rehabilitation. Mr. MacDougall through reflection, recognizes and appears willing to be helped. He has obvious abilities and has maintained employment in the past. There remains concerns about the depth of his insights as to his use of alcohol. All of his encounters with alcohol have seriously disinhibited his conduct and obviously lead to a loss of control over an internal rage that is directed to others, particularly in domestic contexts.

[52] As to time that Mr. MacDougall has been incarcerated since August 23, 2018 to August 19, 2020, this amounts to 727 days and, on a 1.5 to 1 basis, is 1,091 days or essentially 3 years on an enhanced-basis time served.

[53] To maintain principles of denunciation and general deterrence and the principle of totality and proportionality, and after considering the aggravating and mitigating factors and the collateral consequences as referred to above, the sentence of the court for Mr. MacDougall shall be as follows:

a. On the conviction for sexual assault, the sentence would have been 3 ½ years, however, in view of the additional COVID-19 and collateral consequences identified, the sentence shall be 3 years and one month in jail less time served which is deemed to be 3 years for a balance remaining of 1 month in jail to be served;

b. On the conviction for assault and unlawful confinement, the sentence on each count shall be 6 months in jail, concurrent with each other but consecutive with the sexual assault count;

c. On the count of attempting to obstruct justice, the sentence shall be 4 months in jail consecutive to any other count referred to;

d. There shall be a probationary order for 3 years on all counts, with terms, in addition to the statutory terms, to be as follows:

i. Report to a probation officer within 48 hours of your release from custody and thereafter as and when directed by your probation officer;

ii. Not to have any contact, directly or indirectly, with the complainant and her family;

iii. Not to attend within 100 metres of the residence, the place of employment, education or training of the complainant and her family and at all times remain 10 metres from any other of these persons;

iv. Not to consume non-medically prescribed drugs or alcohol, nor be under the effect of non-medically prescribed drugs or alcohol in the presence of any female person;

v. Report immediately to your probation officer the name, address and phone number of any intimate or prospective intimate female partner;

vi. Attend for any assessment, counselling and treatment as recommended by your probation officer, not limited to drug and alcohol abuse, anger management and domestic relationships; and

vii. Seek and maintain gainful employment or educational programs.

[54] This sentence reflects a substantial sentence for you Mr. MacDougall and a substantial increase from past offences and sentences you have received. You should be aware that in the future if you commit any similar offences, sentences will likely substantially increase. As you indicated in one of your letters as I mentioned earlier, you should be worried about any future that could involve a dangerous offender designation. It should be abundantly clear to you Mr. MacDougall that you should absolutely have no contact with the complainant or her family.

[55] There will be an order pursuant to Section 743.21 that during the remaining term of your jail sentence, you shall not communicate directly or indirectly with the complainant or her family.

[56] There shall also be a DNA order and a lifetime prohibition order under Section 109 of the Criminal Code as to weapons on the applicable counts.

[57] There is also an order for 20 years in relation to the sexual offender registry and report and provide information as required.

[58] Mr. MacDougall, I have made mention about your insight as to your use of alcohol. When you have used alcohol, you become a danger to others. Your alcohol use might be an explanation of your conduct but it is not an excuse. You would do yourself and others, sooner than later, to better deepen your understanding and insight into alcohol and its effects on you and others. You have abilities. Apply them in a positive and meaningful manner.

MCARTHUR, M.D., J.

Released: August 19, 2020