Reasons for sentence

COURT FILE NO.: 2454/17

DATE: 20200824

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Joshua Audet

BEFORE: C.M. Smith, J

COUNSEL: Sam Humphrey, for the Crown

Bruce Sosa, for the Accused

HEARD: August 24, 2020 by Teleconference

Reasons for sentence

Introduction

[1] On November 12, 2019, I convicted Mr. Joshua Audet of one count of sexual assault and one count of sexual interference, contrary to ss. 271 and 151 of the Criminal Code of Canada. These are my reasons for sentence.

Positions of the Parties

[2] The Crown seeks a sentence of four years in the penitentiary, less appropriate credit for pre-trial custody. In addition, the Crown seeks a number of ancillary orders, including a DNA order, a s. 109 prohibition order, SOIRA registration for 20 years, and a five-year s.161 order. The Defence submits a sentence of two years, coupled with a period of probation, would be appropriate in the circumstances of this case. The Defence opposes the imposition of a s. 161 order.

Circumstances of the Offences

[3] This matter arose as a result of a complaint made by the victim in this matter, PJM, to police on October 31, 2017. In the course of her testimony before me, PJM described how she originally met Mr. Audet through her friend at her friend’s apartment in July 2017. PJM described her first meeting with Mr. Audet as being brief, PJM having attended her friend’s apartment that day for other reasons. On a subsequent occasion, PJM attended her friend’s apartment and found herself alone in the living room with Mr. Audet. On that occasion, she described how Mr. Audet came at her and started kissing her. PJM attempted to resist by saying no and by trying to push Mr. Audet away, however he persisted. When Mr. Audet started to finger PJM, she got scared and tried to push him away again. She said her fear made her freeze. At that point, Mr. Audet took PJM into the bathroom and engaged in vaginal intercourse with her from behind. PJM described the encounter as being relatively brief, that the accused used a condom and she believed he ejaculated. PJM left the premises shortly thereafter. She reported the matter to the police some weeks later. PJM testified that she was 15 years of age at all material times herein.

[4] As I indicated in my reasons for decision following the trial, the evidence in this case left me with no doubt that Mr. Audet did not have an honest belief about the age of the complainant when he engaged in sexual encounter with her. I also accepted the evidence of the complainant to the effect that she did not consent in any way to the sexual encounter.

Circumstances of Mr. Audet

[5] There were two pre-sentence reports prepared in this matter. The first, dated December 12, 2019, was prepared in contemplation of the original sentencing date being December 16, 2019. That report was prepared without personal input from Mr. Audet as he failed to attend for his meetings with the author. Mr. Audet did not appear for the original sentencing date as a result of which a warrant was issued for his arrest. When Mr. Audet was eventually re-arrested in the spring of 2020, a further report dated July 6, 2020 was prepared which contained input from him.

[6] The reports reveal that Mr. Audet had a very challenging and difficult early life. He reported that he never met his biological father and that his biological mother was a sex trade worker who entertained her clientele in her home with Mr. Audet present. Mr. Audet reports being mistreated physically and sexually by these people such that eventually the CAS became involved and removed him from the home. He lived with his maternal grandparents for a period of time and then in a series of foster and group homes from approximately age 8 to 15. He went out on his own at age 16 and has led a transient lifestyle since with no apparent stability. He has had no contact with any of his family members since he was a small child. Mr. Audet is currently 26 years of age.

[7] Notwithstanding his very troubled youth, Mr. Audet was able to successfully complete grade 12. He also pursued some post-secondary education in a business and marketing program at a community college, however he left that school before finishing because of financial strain. Mr. Audet reports that while at school he was heavily involved in extracurricular activities including sports, student council, dance and music. His future plans include starting multiple businesses including a clothing label, a music label and an entourage app.

[8] Mr. Audet has a criminal record which commenced in the fall of 2015 and has regular entries through and including July 2020. Many of his convictions were for breach of court order charges, however the record does include convictions for theft under, two counts of assault and a break and enter. In July 2020, after his conviction for the incident in question, Mr. Audet was found guilty of an assault causing bodily harm charge. Mr. Audet’s longest sentence to date appears to be a 57day sentence for theft under and assault which was imposed on top of 63 days pre-sentence custody.

[9] Mr. Audet has been placed on probation at least four times. He has five convictions for breaching probation. The author of the pre-sentence report indicates that Mr. Audet’s previous response to community supervision “has been quite poor”. In fact, the author goes on to advise that he has been “described by more than one previous probation officer as not being suitable for community supervision”. When asked about the prospect of compliance should he receive probation as part of his sentence, Mr. Audet responded “Good luck. You might as well just keep me in here (jail)”. The author of the PSR believes that Mr. Audet “could benefit from receiving a sentence in a more structured environment to assist him with rehabilitation” because “future supervision will likely result in enforcement”.

[10] Mr. Audet pleaded not guilty to the offences before the court and continues to assert his innocence, as is his right. He told the author of the PSR that he thinks the victim “felt that he used her for sex”, and that “[s]he’s pulling strings”. He blames his conviction on racism stating “I’m a black man charged against a white woman in a white town with a white Crown and a white Judge. It is a sea of white and I’m the only speck of dust in this whole thing.”

Victim Impact Statement

[11] The victim in this matter completed a victim impact statement which was filed as an exhibit and which was read into the record by the Crown Attorney. In that statement, the victim describes the impact this incident has had on her life to date. She describes a loss of self-confidence and a developing belief that all anybody cared about was her body. She describes how she started to hang around the wrong kind of people and that she fell into drug use so she would “feel numb and forget how I was feeling”. She describes how she started to “do whatever it took to get money to have drugs”. Her relationship with her mother was apparently irreparably damaged. She moved away from the Peterborough area because she was told that Mr. Audet would have her killed if she said anything. She described her anxiety at the thought that Mr. Audet was out of custody.

Mitigating factors

[12] The PSR reveals that Mr. Audet had an extremely difficult and challenging childhood which began with indifferent parents and deteriorated into a series of group and foster homes. I am impressed by the fact that notwithstanding that background, Mr. Audet was able to successfully complete grade 12 and was also able to move on and do some post-secondary education. That fact, coupled with his ambition to become a small businessman, tells me that Mr. Audet has the potential to make an appropriate and better life for himself. Unfortunately, other than that fact there is a dearth of mitigating factors.

[13] Defence counsel pointed to the fact that the incident in question was spontaneous, unplanned and unsophisticated. He indicated it was an isolated incident, that there was no grooming. He points to the fact that the age difference was 8½ years and suggests it could have been greater. In my view, these are not mitigating factors. As has often been stated by other judges in other cases, the absence of an aggravating factor does not equate to a mitigating factor. As for the age difference, in my view the years between age 15 and age 23 constitute the most transformational stage in anyone’s life, involving as it does the transition from childhood to adulthood. Whatever his age, Mr. Audet was an adult male at the time of this incident. He decided to engage in sexual activity with a teenage girl, who at the tender age of 15, was still a child in the eyes of the law.

[14] Mr. Audet continues to maintain his innocence in this matter, which is, of course, is absolute right. To his credit though, he did tell the court that he was “remorseful for however his actions affected [the victim]”.

Aggravating factors

[15] Regrettably, there are many aggravating factors about this case. The most aggravating factor is the fact that Mr. Audet, an adult male, decided to engage in sexual activity with a child. Mr. Audet brushed aside the victims attempts to push him away and ignored her when she said no. The Crown, quite correctly, characterized this as Mr. Audet overcoming the victim’s resistance.

[16] The sexual activity in question involved full intercourse to ejaculation. Fortunately, Mr. Audet apparently chose to use a condom.

[17] Mr. Audet has a criminal record which is becoming lengthy. The record consists primarily of offences against the administration of justice, however Mr. Audet does have two assault convictions on his record, at least one of which was apparently domestic in nature. Mr. Audet has been sentenced to jail on at least five separate occasions.

Rehabilitation

[19] Mr. Audet made light of the rehabilitation process in his comments set out in the PSR. He advised that he attended for counselling as a youth and found it beneficial, however he has received no counselling of any kind since that point, notwithstanding his experiences with the negative effects of alcohol and his daily use of marijuana since the age of 12. When he was ordered to complete the Partner Abuse Response program after his conviction for domestic assault, he refused to do so saying it was “stupid” and that “he is not violent towards women”. I also found it concerning that he professes to have had approximately 200 sexual partners in his young life. All of these issues suggest a profound need for ongoing counselling as part of the rehabilitation process. Unfortunately, Mr. Audet’s limited insight into his behavior, coupled with his negative perspective on counselling generally, suggests that the prospects for successful rehabilitation in this matter are bleak.

Purpose and Principles of Sentencing

[20] I have carefully considered the purpose and principles of sentencing set out in s. 718 of the Criminal Code of Canada. The objectives of that section include denouncing unlawful conduct and harm done to victims, deterring offenders and other persons from committing offences, separating offenders from society where necessary, rehabilitating offenders, to provide reparations for harm done to victims and to promote a sense of responsibility in offenders.

[21] I have also paid particular attention to the provisions of s. 718.01 which directs me to give primary consideration to the objectives of denunciation and deterrence when imposing a sentence for the abuse of a person under the age of 18 years.

[22] One of the fundamental principles of sentencing is set out at section 718.1 which requires a sentence to be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[23] Other sentencing principles are to be found at s. 718.2 which provides, among other things, that sentences be increased or reduced to account for any relevant aggravating or mitigating factors relating to the offence or the offender. The aggravating factors set out therein include evidence that an offender, in committing the offence, abused a person under the age of 18 years, as well as evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation. That section also provides for parity of sentencing in cases involving similar offenders and similar offences committed in similar circumstances. The importance of not depriving an offender of liberty where less restrictive measures would be appropriate is also emphasized.

The Case Law

[24] Counsel have supplied me with a number of authorities in support of their respective positions. I will start my consideration of these cases with those of the Defence, who is arguing for a sentence of two years.

[25] The first of the Defence authorities herein was the case of R. v. S.B., [2015] O.J. No. 6271, a decision of Madam Justice Fuerst of this court. In that case, the offender pleaded guilty to several counts of sexual touching and one count of sexual assault following a preliminary inquiry. The victims in the case were his three children and his wife. The offender expressed a desire to make amends and embraced the notion of counselling. Justice Fuerst acceded to the joint position of the parties and imposed a four-year sentence. The Defence points to this case as having a much more serious set of facts than the case at bar and that it involved multiple victims. That being the case, the Defence argues that parity would require or justify a lower sentence for Mr. Audet. The difficulty I have with that submission is that unlike the case at bar, the S.B. case involved both a guilty plea and a joint submission.

[26] The Defence also offers the case of R. v. Al-Shimmary, [2017] O.J. No. 690, wherein the Ontario Court of Appeal allowed a Crown appeal of sentence and increased the sentence of the trial judge to four years in a case involving non-consensual intercourse following some lengthy online communication. The defence suggests that because that case involved violence, as well as planning and deliberation, it too constitutes a much more serious case than the case at bar thereby justifying the defence position herein. However, it should be noted that the Court of Appeal limited themselves to four years simply because that was the Crown’s position on the appeal. Apparently, had that not been the case, the Court of Appeal would have imposed an even higher sentence. The case also involved a guilty plea.

[27] In the case of R. v. A.G., [2017] O.J. No. 2965, the Ontario Court of Appeal upheld a sentence of 22 months for an offender charged with performing one act of cunnilingus on a ten year old girl on the basis of the victims young age, the appellant’s breach of trust, the impact on the victim and the appellant’s prior record. Unfortunately, neither the Court of Appeal decision nor the original trial decision contain details of the offender’s record or of the victim impact statement. That being so, I find the case of little assistance and something of an outlier.

[28] Lastly, the Defence points to the case of R. v. R.D., [2017] O.J. No. 5565. That case involved a mentally challenged offender who committed a sexual assault on his younger sister. The trial judge imposed a sentence of 30 months on the sex charges, followed by six months consecutive on a threats charge for a total of 36 months based, in part, on the fact that there was no intercourse involved. The offender had only a limited record involving three offences on three separate occasions for which he received three conditional discharges. Again, this case is of little assistance to me given what I believe to be significant disparities in the both the history of the offender and the factual circumstances of the case.

[29] For its part, the Crown filed a series of cases commencing with the decision of the Supreme Court of Canada in the case of R. v. Friesen, 2020 SCC 9, [2019] S.C.J. No. 100. At paragraph 116 of that decision the court held that sentences for offenders who sexually abuse children need to go higher:

While sexual violence against either a child or an adult is serious, Parliament has determined that sexual violence against children should be punished more severely. First, Parliament has prioritized deterrence and denunciation for offences that involve the abuse of children (Criminal Code, s. 718.01). Second, Parliament has identified the abuse of persons under the age of 18 as a statutory aggravating factor (Criminal Code, s. 718.2(a)(ii.1)). Third, Parliament has identified the abuse of a position of trust or authority as an aggravating factor; this is more common in sexual offences against children than in sexual offences against adults (Criminal Code, s. 718.2(a)(iii); L.V., at para. 66). Fourth, Parliament has used maximum sentences to signal that sexual violence against persons under the age of 16 should be punished more severely than sexual violence against adults. The maximum sentence for both sexual interference and sexual assault of a victim under the age of 16 is 14 years when prosecuted by indictment and is 2 years less a day when prosecuted summarily. In contrast, the maximum sentence for sexual assault of a person who is 16 years or older is 10 years when prosecuted by indictment and 18 months when prosecuted summarily (see Criminal Code, ss. 151(a) and (b), and 271(a) and (b)). This is a clear indication in the Criminal Code that Parliament views sexual violence against children as deserving of more serious punishment. These four legislative signals reflect Parliament’s recognition of the inherent vulnerability of children and the wrongfulness of exploiting that vulnerability.

[30] The court particularized this approach in paragraph 114 of the decision where it held as follows;

… Nonetheless, it is incumbent on us to provide an overall message that is clear (D. (D.), at paras. 34 and 45). That message is that mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances. We would add that substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim, as in this case, Woodward, and L.M. In addition, as this Court recognized in L.M., maximum sentences should not be reserved for the “abstract case of the worst crime committed in the worst circumstances” (para. 22). Instead, a maximum sentence should be imposed whenever the circumstances warrant it (para. 20).

[31] The court also had this to say about the cases involving victims who are adolescent girls:

At the same time, courts must also be particularly careful to impose proportionate sentences in cases where the victim is an adolescent. Historically, disproportionately low sentences have been imposed in these cases, particularly in cases involving adolescent girls, even though adolescents may be an age group that is disproportionately victimized by sexual violence (Benedet, at pp. 302, 304 and 314; L. (D.O.), at pp. 464-65, per L’Heureux-Dubé J.). In particular, sexual violence by adult men against adolescent girls is associated with higher rates of physical injury, suicide, substance abuse, and unwanted pregnancy (I. Grant and J. Benedet, “Confronting the Sexual Assault of Teenage Girls: The Mistake of Age Defence in Canadian Sexual Assault Law” (2019), 97 Can. Bar Rev. 1, at p. 5; “The ‘Statutory Rape’ Myth”, at p. 269; R. v. Hess, 1990 CanLII 89 (SCC), [1990] 2 S.C.R. 906, at pp. 948-49, per McLachlin J.).

[32] The case of R. v. Ajimotokan, [2013] O.J. No.6344, involved an offender charged with sexually assaulting two young women on two separate occasions. The case involved premeditation and planning. The five-year sentence imposed by the trial judge was upheld on appeal (R. v. S.A., 2014 ONCA 266, [2014] O.J. No. 1609). The appeal court’s only criticism being about the trial judge’s suggestion that the range for sexual offences involving young persons could extend as low as the reformatory.

[33] I was also supplied with the case of R. v. M.M., 2017 ONSC 1829, [2017] O.J. No. 1523, wherein Molloy J. imposed a sentence of four years on an offender who persisted with full sexual intercourse after the victim rebuffed his advances. In the course of a very thorough review of the circumstances of that particular case and of the extensive case law supplied by counsel in that case, Molloy J had this to say at paragraph 38;

In my view, the cases establish that the general range for offences of this nature is between three and five years although (as I have said already) there will always be exceptional cases and outliers that go beyond either end of the range.

Conclusion: The Appropriate Sentence in this Case

[34] The case law supplied to me, by both Crown and Defence, establishes quite clearly that the only fit and appropriate sentence for a case involving non-consensual sexual intercourse with a 15-year-old child is a penitentiary sentence. The appellate courts are taking a very hard stand on this issue as seen in the decision of the Supreme Court of Canada in the Friesen case and in the comments of the Ontario Court of Appeal in the S.A. case noted above. The question then becomes the number of years that an offender, in a particular case, should spend in the penitentiary. The court in Friesen suggested a mid to upper single digit sentence is appropriate, even for a first offender convicted of a single incident of this nature. In my view, the words “mid-single digits” mean just that, the midpoint between one and nine, being five years.

[35] The Crown in this case has asked for a sentence of four years. In my opinion, given the facts and circumstances of this case, and given the state of the case law as set out above, a sentence of four years is fit and appropriate. Anything less than that would simply not be proportional to the seriousness of the offence and the degree of harm done by the offender to the victim. A lesser sentence would also fail to properly denounce the offence and deter others from engaging in similar behaviour.

The COVID-19 Issue

[36] Defence counsel quite properly submits that it is incumbent upon me to consider the current COVID-19 pandemic and its impact upon people in custody in the course of my decision regarding the quantum of sentence in this matter.

[37] Counsel has pointed me to the decision of this court in the case of R. v. W.W., [2020] O.J. No. 2590, wherein Boswell J considered the issue of COVID-19 and its impact on sentencing going forward. After reviewing the impact of the COVID-19 virus on closed populations, such as those in jails, Boswell J elected to reduce the sentence he imposed so as to reflect the heightened impact of a sentence on an offender in current conditions. However, Boswell J did hold, at paragraph 52, that “even with a further reduction, the sentence to be served must remain true to the overarching principle of proportionality.” (emphasis added).

[38] In the M.W. decision, Boswell J was able to craft an appropriate sentence, with a COVID-19 reduction, which met the proportionality test.

[39] I have also considered the case of R. v. Hearns, 2020 ONSC 2365, [2020] O.J. No. 1648. In that case, Pomerance J provides a very thoughtful analysis of the impact of COVID-19 on sentencing considerations before crafting a sentence which, like that of Boswell J in M.W., was proportional to the offence while also taking into account the impact of COVID-19.

[40] In the Hearns case, Pomerance J imposed a time served disposition, based on the joint position of counsel, which she found to be a fit and appropriate sentence in the circumstances of that particular case. In the course of doing so, Pomerance J made the following observations about the impact of COVID-19 on the sentencing equation generally and what she saw as being the appropriate approach to the problem in the sentencing process.

[20] In the current context, the issue is not state misconduct. No one is to blame for the pandemic. I accept that those in charge of jails are doing their best to control the spread of infection. Nor does the issue fall neatly into the category of collateral consequences. There is nothing collateral about the conditions of imprisonment – they are as direct a consequence as one can imagine. Yet, the impact of the pandemic is a matter that is extraneous to the pillars of proportionality – the gravity of the offence and the moral blameworthiness of the offender. The point to be taken is this: a sentence may be reduced where it is necessary to denounce state conduct, or where it is necessary to account for other punitive consequences, or where the sentence would have a more significant impact on an offender. In this case, the impact is not attributable to the characteristics of the offender, though in some cases there may be heightened vulnerability. The impact is attributable to the social conditions of the time, which are very different than those in the past. COVID-19 is not a mitigating factor in the classic sense. However, it adversely affects conditions of imprisonment, and increases health risks for those in jail. On that basis, it is an important part of the sentencing equation.

[21] I offer two caveats to this analysis.

[22] First, I am not suggesting that the offender receive more than the statutory credit for pre-sentence custody. The accused is entitled to credit on a 1.5 to 1 basis and that is what he will receive. I am not at liberty to assign credit beyond that prescribed in the Code. The question is not whether, looking backwards, the offender is entitled to more credit. The question is whether, looking forward, the pandemic warrants reduction of the sentence yet to be served. The question is whether the sentence already served, calculated with 1.5 to 1 credit, is a sufficient penalty. Given the pandemic, it may be that a sentence of shorter duration is not only tolerable, but appropriate, in the interests of personal and public safety.

[23] Second, I am not suggesting that the pandemic has generated a “get out of jail free” card. The consequences of a penalty – be they direct or collateral – cannot justify a sentence that is disproportionately lenient, or drastically outside of the sentencing range. It cannot turn an inappropriate sentence into an appropriate one or justify dispositions that would place the public at risk. See: R. v Day, 2020 NLPC 1319A00658 at para. 1. It is ultimately a question of balance. As noted by A.J. Goodman J. in R. v. T.K., 2020 ONSC 1935, at para. 74:

In summary, even in these very challenging times, the court must fully recognize the potential harmful health impact on detained persons in the various institutions, while at the same exercising the balancing required to sustain its fundamental role in the administration of justice and protection of the public.

[41] The pandemic, now in its seventh month, has received almost constant, 24/7 coverage in the media. As a result, I can comfortably take judicial notice of the fact that most experts expect the pandemic to last into 2021, although none are prepared to say that with certainty. That being the case, the only sentence I could impose that would allow Mr. Audet to avoid the experience of being in custody during any part of the COVID-19 pandemic would be one of time served. I am not prepared to impose such a sentence as, in my view, it would simply not be a sentence that is proportional to the gravity of the offence and the moral blameworthiness of Mr. Audet.

[42] Any lesser reduction of Mr. Audet’s sentence would still result in him being in the penitentiary during most, if not all, of the expected course of the pandemic. As the experts cannot proffer any reliable prediction about the length of the pandemic, I have no evidence whatsoever to use as a basis for calculating an appropriate reduction. Any reduction that I might choose to make to the length of Mr. Audet’s sentence would therefore be arbitrary and capricious. The National Parole Board will be in a much better position, some months down the road, to decide what to do about the COVID-19 problem, as it relates to Mr. Audet, than I am today. That being the case, I will not make a COVID-19 reduction.

Credit for Pretrial Custody and Lockdowns

[43] Counsel are in agreement that Mr. Audet deserves credit for 446 days of pre-trial custody, which should be grossed up by the usual 1.5:1, resulting in a credit for pre-trial custody of 669 days.

[44] Defence counsel has also supplied me with a very helpful chart setting out various approaches to the question of what credit to give for days served in custody under lockdown conditions. Those cases show wildly diverging approaches to this issue, ranging from credit at a rate of less than one day for each day of lockdown to a credit of as much as three or four days for each day of lockdown. I have also been supplied with a lockdown report from the Central East Correctional Centre showing that during his pre-trial custody Mr. Audet was in lockdown for all or part of 106 days. The Crown does not contest that number and agrees that Mr. Audet should be given extra credit for lockdown time but suggests that credit should be no more than 30 to 60 days.

[45] Defence counsel suggests Mr. Audet should be given credit for lockdown days on a one-for-one basis. I agree with that approach. Time spent behind bars must surely drag from time to time, doubly so when one is confined to one’s cell for 24 hours of each day with little to do but stare at the walls and argue with one’s cellmate. I will credit Mr. Audet for an extra 106 days pre-trial custody given his lockdown time.

Sentence

[46] I sentence Mr. Audet to forty-eight (48) months in the penitentiary. He will receive credit for his pre-trial custody of 669 days and a further 106 days for his lockdown credit resulting in total pre-trial custody of 775 days or some 25.83 months, which I will round up to 26 months for ease of calculation. That results in a total sentence going forward of 22 months (48 – 26 = 22).

[47] The sentence is imposed on the sexual interference charge. The charge of sexual assault is stayed in accordance with the principles set out in R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.

Ancillary Orders

[48] I will make the following ancillary orders in this case:

i) A 10-year firearms prohibition pursuant to the provisions of s.109 of the Criminal Code.

ii) There will be a 20-year registration on on the Sex Offender Registry pursuant to s. 490.012 of the Criminal Code.

iii) A DNA sample will be taken pursuant to s.487.051 of the Criminal Code.

iv) An order pursuant to provisions of s. 743.21 of the Criminal Code prohibiting Mr. Audet from contacting the victim herein, directly or indirectly while he is in custody.

v) As there is no evidence that Mr. Audet engaged in any predatory behaviour so I will decline to make an order under s. 161 of the Criminal Code.

Justice C.M. Smith

Date: August 24, 2020