R. v. John, 2020 ONSC 5171

COURT FILE NO.: CR-18-50000126

DATE: 2020-08-28

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DWIGHT DESHAWN JOHN

Chris Chorney, for the Crown

Adele Monaco, for the Applicant

HEARD: July 29, 2020

Davies J.

PUBLICATION RESTRICTIONS NOTICE

A non-publication order in this proceeding has been issued pursuant to subsection 486.4(1) of the Criminal Code. By order of this court, any information that could identify the Complainant shall not be published in any document, broadcast or transmission.

REASONS FOR SENTENCE

A. Overview

1Following a trial, I found Mr. John guilty of sexually assaulting JN but acquitted him of sexual interference in relation to the same incident.¹

2Mr. John first met JN on the night of the sexual assault through his friend, AM. JN was just 11 years old at the time and Mr. John was 19. JN spent several hours hanging out and smoking marijuana with AM and Mr. John in Mr. John’s backyard. Mr. John’s mother eventually told AM and JN to leave. Mr. John left with them. They walked to an abandoned house on Weston Road. Mr. John and JN went into the house and AM then left. JN lay down on a bed that was in the living room on the main floor of the house. Mr. John sat down beside her. They talked for a bit and then Mr. John kissed JN. Mr. John removed some of JN’s clothing. He then initiated sexual intercourse with JN. JN did not say anything or try to stop Mr. John. Mr. John took JN’s failure to object or her passive acquiescence as consent. He did not ask JN if she wanted to have sexual intercourse with him or do anything to find out if she was consenting. Needless to say, silence and passivity are not consent.

3The Crown argues that the appropriate sentence is three to four years’ imprisonment.² The defence argues that a 12-month sentence would satisfy the principles of denunciation and deterrence. The defence also argues that Mr. John should be given credit for time he has spent in pre-sentence detention on other charges to reduce the sentence I impose.

4There are two issues for me to decide in this case:

(a) What is the appropriate sentence in this case?

(b) Should Mr. John be given credit for his pre-sentence custody on other charges?

5For the reasons that follow, I find that a sentence of two years less a day in custody followed by two years probation is proportionate to the seriousness of the offence and Mr. John’s responsibility for it. Mr. John is entitled to credit for the time he spent in pre-sentence custody on these charges. However, I am not prepared to give him credit for time he has spent in pre‑trial custody on other charges.

B. What is the appropriate sentencing in this case?

6Every sexual assault is inherently violent and traumatic for the victim. Every sexual assault undermines the victim’s bodily integrity and autonomy. In cases of sexual violence, the sentence must focus on denunciation and deterrence.³ However, sexual assaults occur in a wide variety of circumstances. As a result, some sexual assaults will attract much longer sentences than others to reflect the relative seriousness of the conduct in question and the culpability of the perpetrator.

7Crown and defence counsel each provided me with cases to support their position on sentencing. The Crown relies on several cases that suggest the sentencing range in cases involving a single incident of forced intercourse is 18 months imprisonment at the low end and three or four years at the high end.⁴ The defence provided cases where the Court of Appeal upheld sentences of 14 or 15 months for a single incident of non-consensual intercourse.⁵

8Each case relied on by the Crown and defence is similar to Mr. John’s case in some ways, but there are important differences as well. No case is directly comparable to the circumstances of this case. Nonetheless, based on my review of the cases, I am of the view that Mr. John’s sentence should fall in the middle of the established range.

9In R. v. Rand, the Court of Appeal upheld a four-year sentence, which is at the very top of the range. In that case, the victim was 17 years old and Mr. Rand was 27. Both Mr. Rand and his friend sexually assaulted the victim while she was intoxicated. That case also involved forced anal intercourse, which is a significant aggravating factor not present here. In upholding the sentence, the Court of Appeal noted several aggravating factors:

The appellant took advantage of a vulnerable intoxicated young woman. He committed acts of unprotected anal and vaginal sex. He has a prior criminal record dating back to 2004 that includes offences of dishonesty and also convictions for crimes of violence…The sentence imposed by the trial judge in this case was well within the appropriate range.⁶

10In R. v. K.T., the accused had unprotected intercourse with the victim while she was unconscious. The sexual assault took place in the presence of other people, causing the victim added humiliation. After the assault ended, K.T. then left the victim partially clothed in a snow bank. The Court described the defendant’s conduct as “stunningly callous”. The victim was taken to hospital in life threatening condition after her brother called 911. The trial judge imposed a two‑year conditional sentence, which the Court of Appeal found to be demonstrably unfit even for a young, first offender. The Court held that a sentence between two years less a day and four years would have been appropriate at trial. In the end, the Court imposed a 9-month sentence because K.T. had already served 16 months of his conditional sentence by the time the appeal was decided.⁷

11The 26-month sentence imposed in R. v. Tweneboah-Koduah falls in the middle of the range. Mr. Tweneboah-Koduah met the victim during her first week of university when she was 17 years old. The victim was extremely intoxicated at the time of the offence. The sexual assault involved forced intercourse and forced fellatio. Part of the sexual assault took place when the victim was unconscious. The victim woke up to find Mr. Tweneboah-Koduah’s penis in her mouth, causing her to choke. The victim also suffered injuries as a result of the assault. The Court of Appeal held that a 26-month sentence was entirely within the range even though Mr. Tweneboah-Koduah’s was young and had no criminal record.⁸

12At the very low end of the range, defence counsel provided several cases where the trial judge imposed sentences of 12 to 15 month.⁹ Defence counsel also provided cases where the Court of Appeal upheld sentences of less than 18 months. For example, in R. v. Crespo, the Court of Appeal upheld a 15-month sentence. In that case, Mr. Crespo initiated sexual intercourse with his partner while she was asleep. The issue on appeal was whether Mr. Crespo’s sentence should be reduced because of the immigration consequences. The Court of Appeal refused to vary his sentence.¹⁰

13Similarly, in R. v. M.G., the Court of Appeal upheld a 14-month sentence. M.G. was convicted of sexually assaulting his roommate while she was sleeping. The Court dismissed M.G.’s sentence appeal:

The jail term of 14 months imposed by the trial judge was well within the applicable range. The seriousness of the offence and the aggravating circumstances (the complainant, who was the appellant’s roommate, was asleep when the assault occurred) warranted a significant reformatory term. Fourteen months is well within that range.¹¹

14There is one important fact that distinguishes Mr. John’s case from most of the cases relied on by defence counsel: Mr. John has a criminal record. In July 2018, Mr. John was convicted of robbery, assault, uttering a threat, theft under $5,000 and failing to comply with his bail. If Mr. John had no criminal record, I would have been required to impose the shortest sentence possible that was consistent with the applicable principles of sentencing. However, because Mr. John has a criminal record, that rule does not apply.

15Without meaning to minimize in any way the seriousness of the sexual assault Mr. John committed, I find that the circumstances in this case are less serious than in K.T., Tweneboah-Koduah and Rand. I, therefore, find that Mr. John’s case does not call for a sentence at the high end of the sentencing range. However, given that Mr. John has a criminal record, I find that his sentence should not be at the lowest end of the range either.

16In my view, the appropriate sentence for Mr. John will fall somewhere in the middle of the range of sentences for a single incident of forced intercourse. To settle on a specific sentence for Mr. John, I must consider the seriousness of his offence and his moral culpability having regard to the unique constellation of aggravating and mitigating factors in his case.¹²

17The Crown argues that the sexual assault against JN was particularly serious because she was a vulnerable victim. JN was only 11 years old when Mr. John sexually assaulted her. In addition, Mr. John was also told that AM was trying to make money by engaging JN in prostitution. The Crown argues that both these factors made JN particularly vulnerable. I agree.

18The relevance of JN’s age is not entirely straightforward in this case. I found that Mr. John believed that JN was 18. In fact, I accept that Mr. John would not have engaged in any sexual activity with JN if he thought she was 11 years old. Nonetheless, s. 718.2(a)(ii.1) of the Criminal Code requires me to consider the fact that Mr. John abused a person under the age of 18 when I determine the appropriate sentence. In addition, s. 718.01 of the Code says that when a court imposes a sentence for a violent offence against a child, “it shall give primary consideration to the objectives of denunciation and deterrence.” In my view, the inclusion of ss. 718.01 and 718.2(a)(ii.1) in the principles of sentencing reflects the reality that violence, and sexual violence in particular, harms children and young people in a different and more profound way because of their age and their inherent vulnerability. I, therefore, find that the fact that JN was only 11 years old is a significant aggravating factor in this case. If Mr. John sexually assaulted JN knowing that she was 11 years old, that would have been even more aggravating.

19The fact that Mr. John was told that JN was being trafficked by AM is also an aggravating feature of this case. It does not matter, nor did I hear evidence about, whether JN was being trafficked by AM. The important issue is Mr. John’s state of mind: he believed that JN was being trafficked. He should have understood that JN was in a very vulnerable position the night they met. Rather than taking steps to help or protect JN, he chose to have intercourse with her despite her silence and passivity.

20I agree with the Crown that JN was a particularly vulnerable victim because of her age and her circumstances at the time of the offence, which is a significant aggravating factor in this case.

21The impact of the sexual assault on JN is also an aggravating factor. JN chose not to prepare a victim impact statement for the sentence hearing. She is not required to provide a victim impact statement and I respect her decision not to do so. Without a victim impact statement, I do not have information about whether the sexual assault has had a lasting impact on JN. However, based on her testimony at trial, there is no doubt that this was a very frightening, life-changing event for JN. JN testified that she felt unsafe while she was alone with Mr. John. She said, “I was young and I was afraid”. She testified that she was scared during the sexual assault. She said she did not tell Mr. John to stop because she thought he might hurt her. She testified that she was confused about what had happened and it took her some time to understand the significance of what she had been through. I accept her evidence on the impact this offence had on her.

22There are several mitigating factors that I must consider when crafting an appropriate sentence for Mr. John.

23First, Mr. John has tremendous support in the community. I received letters from Mr. John’s mother, father, step-mother, grandfather and sister. Mr. John’s mother describes him as kind, generous and committed to his family. His step-mother describes how Mr. John’s father has been absent from his life. She says that has taken a toll on Mr. John. Nonetheless, she describes Mr. John as compassionate, giving, fair and loving. She says that Mr. John has talked to her about how sorry he is for what he did to JN. She says that he is ready to take responsibility for his conduct and “to emerge a better person”. Mr. John’s grandfather wrote, “My grandson needs support to get himself back on the right track. I will devote my time and energy to support Dwight in a very positive manner. I truly believe in Dwight”. Mr. John’s sister lovingly describes Mr. John as “the only prominent male figure” in her life. She describes some of the things Mr. John has taught her, including how to cook, how to save money and the importance of believing in herself. I also received letters from family friends and from the Senior Pastor of Love and Life Ministry. Mr. John is very fortunate to be surrounded by people who love him and who have pledged to support him once he is released from custody.

24Second, Mr. John has already taken steps towards his own rehabilitation while in custody. Mr. John is participating in the education program at the Toronto South Detention Centre. He is preparing to write his high school equivalency exam. The manager of the program describes Mr. John as a “dedicated, capable and engaged participant” who takes initiative and maintains a positive attitude.

25I recognize that the principles denunciation and general deterrence must be most prominent in cases, like this, involving serious sexual violence against a young person.¹³ Nonetheless, all of the principles of sentencing, including rehabilitation, remain important.¹⁴ The fact that Mr. John has significant support in the community and is committed to his own rehabilitation will help him reintegrate into society in a productive manner once he completes the custodial portion of his sentence.

26Finally, Mr. John expressed remorse for the harm he caused to JN. When asked if he wanted to say anything before I decided on his sentence, Mr. John apologized to JN. He said that he has thought a lot about where he went wrong and understands that he should have asked JN for her consent before he acted. He says he knows this sexual assault has been a life altering experience for JN and he is “torn up” about the decisions he made that night. He reflected on how he would never want his little sister, who is the same age as JN, to experience what he did to JN. I accept that Mr. John is genuinely sorry for sexually assaulting JN and the harm he has caused her, even though his apology comes after trial.

27Having considered the seriousness of the offence Mr. John committed as well as the mitigating and aggravating factors in this case, I find the appropriate sentence is 2 years less a day followed by probation for 2 years. For someone who was only 19 years old at the time of the offence, a sentence of 2 years less a day is a very significant term of imprisonment. It also sends a very clear message that sexual assault is a very serious offence and simply will not be tolerated. To the extent that any particular sentence can deter others from engaging in similar conduct, I am satisfied that a sentence of 2 years less a day will achieve that objective as well.

28An important consideration for me in settling on a custodial sentence of 2 years less a day is that it allows me to also impose a period of probation with terms that will foster Mr. John’s long‑term rehabilitation.

C. Credit for pre-sentence detention

29Mr. John was arrested on these charges on March 14, 2017 and released on bail on April 28, 2017. He spent 46 days in pre-sentence custody on these charges. The Crown agrees that Mr. John is entitled one and a half days credit for each of the 46 days he spent in custody before receiving bail on these charges. Mr. John is, therefore, entitled to 69 days credit.

30Defence counsel asks me to give Mr. John credit for the time he has been in pre-trial custody on another set of charges. Mr. John was arrested in the spring of 2019 and has been in custody for the last 15 months. I was not provided with the date of Mr. John’s arrest nor the nature of Mr. John’s outstanding charges. I was told that Mr. John has not had a bail hearing in relation to his outstanding charges and his bail on the sexual assault and sexual interference charges has not been cancelled.

31The Court of Appeal has granted credit on one set of charges for time spent in custody on other charges in two cases.¹⁵ In both those cases, the accused was granted bail on the first set of charges. The accused was denied bail on the second set because he could not satisfy the reverse onus that applies when someone is alleged to have committed an offence while on bail. In other words, the accused was denied bail on the second set of charges because of the first set of charges. In both cases, the second set of charges was ultimately withdrawn. The Court of Appeal was willing to give the accused some credit for the time spent in custody on the withdrawn charges because that time could be attributed to the first set of charges.¹⁶

32More recently, the Court of Appeal refused to grant credit for time spent in custody on unrelated charges that were stayed.¹⁷ In R. v. Pammett, the accused was released on bail on the first set of charges. Mr. Pammett was re-arrested on a second set of charges while on bail. He did not bring a bail application in relation to the second set of charges and the bail order on the original charges was never cancelled. The Court held that Mr. Pammett was not in custody because of the first set of charges and the pre-trial detention on the second set of charges could not be attributed to the first set of charges. In those circumstances, the Court held that there was “no basis” to credit Mr. Pammett with the time he spent in custody on the second set of charges.

33Mr. John is in the same position as Mr. Pammett. He was granted bail on the charges before the court. He was arrested on other charges. He has not applied for bail on those charges and his original bail has not been cancelled. As a result, the last 15 months he has spent in pre-trial custody cannot be attributed to the charges before me. I, therefore, decline to grant Mr. John any credit for the time he has spent in pre-trial custody since his release on these charges.

D. Conclusion

34Mr. John is sentenced to 2 years less a day or 729 days in custody. A total of 69 will be deducted from Mr. John’s sentence. He will, therefore, be required to serve a further 660 days in custody.

35Mr. John will also be required to complete 2 years of probation with the following terms:

(i) You are to report to a probation officer within 72 hours of your release from custody and thereafter as required;

(ii) You must not contact the complainant, JN, directly or indirectly through any means;

(iii) You must not go within 50 metres of where you know JN lives, works or goes to school;

(iv) You must not go within 50 metres of anywhere you know JN to be;

(v) You must attend, participate in and complete any counselling recommended by your probation officer to address issues related to healthy intimate relationships and consent;

(vi) You are to be enrolled in school or vocational training or you are to seek and maintain employment throughout the term of your probation; and

(vii) You are required to sign any authorizations or consents necessary for your probation officer to monitor your compliance with the terms of your probation.

36In addition, Mr. John will be required to provide samples of his bodily substances for the purpose of forensic DNA analysis.¹⁸ Mr. John is also prohibited from possessing any firearm, crossbow, restricted weapon, ammunition and explosive for life.¹⁹ Finally, Mr. John is required to comply with the Sex Offender Registration Act for 20 years.²⁰

Davies J.

Released: August 28, 2020

COURT FILE NO.: CR-18-50000126

DATE: 2020-08-28

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

DWIGHT DESHAWN JOHN

REASONS FOR SENTENCE

Davies J.

Footnotes

1. 1R. v. John, 2020 ONSC 3790
2. 2There is a mandatory minimum sentence of 1-year imprisonment if the victim of a sexual assault is under 16 years of age. The one-year mandatory minimum has been found unconstitutional in several provinces. The Crown took the position that I should proceed on the basis that there is no mandatory minimum sentence, notwithstanding that no constitutional challenge was brought to s. 271 of the Code by Mr. John; see R. v. Lafferty, 2020 NWTSC 4, R. v. Deyoung, 2016 NSPC 67, R. v. ERDR, 2016 BCSC 684, R. v. YH, 2019 YKSC 28, R. v. MacLean, 2018 NLSC 209
3. 3R. v. K.T., 2008 ONCA 91 at para. 41 - 42
4. 4R. v. Gordan, 2018 ONSC 6217 at para. 111, R. v. Tweneboah-Koduah, 2017 ONSC 640 aff’d 2018 ONCA
5. 5R. v. M.G., 2019 ONCA 796, R. v. Crespo, 2016 ONCA 454
6. 6R. v. Rand, 2012 ONCA 731 at para. 19
7. 7R. v. K.T., supra at 46 - 48
8. 8R. v. Tweneboah-Koduah, 2018 ONCA 570
9. 9R. v. W.G.T., [1998] O.J. No. 263; R. v. H.P., 2019 ONSC 6421; R. v. D.D., 2015 ONSC 1312
10. 10R. v. Crespo, 2016 ONCA 454
11. 11R. v. M.G., 2019 ONCA 796 at para. 12
12. 12R. v. Lacasse, 2015 SCC 64 at 58
13. 13Criminal Code, s. 718.01
14. 14R. v. K.T., at paras. 41
15. 15R. v. Tsai, 2005 22191 (ON CA), [2005] O.J. No. 2574 (C.A.) at paras. 19 – 22, R. v. Reid, 2005 14964 (ON CA), [2005] O.J. No. 1790
16. 16R. v. Wilson, 2008 ONCA 510 at para. 50
17. 17R. v. Pammett, 2016 ONCA 979
18. 18Criminal Code, ss. 487.04 and 487.051(1)
19. 19Criminal Code, s. 109(3)
20. 20Criminal Code, s. 490.013(2)(b)