COURT FILE NO. CR-18-14725
DATE: 20200103
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
IAN WALENDZEWICZ
Lara Crawford, for the Crown
Ryan Handlarski, for the offender
Heard: October 18 and 24, 2019
RESTRICTION ON PUBLICATION
By court order made under s. 486.4(1) of the Criminal Code, any information that could identify the victim, or a witness, shall not be published in any document, or broadcast or transmitted, in any way.
Bale J.
Introduction
[1] Following pleas of not guilty, a jury found the offender guilty on one count each of sexual assault, sexual interference and sexual exploitation, and not guilty on one count of threatening. At the request of Crown counsel, the proceedings in relation to the charge of sexual assault have been stayed. These are my reasons for sentence on the remaining two convictions.
[2] The victim’s sixteenth birthday was on May 18, 2016. The charge of sexual interference related to sexual activity with the offender before that date; the charge of sexual exploitation related to sexual activity after that date. The offender was 38 years old when the sexual activity was alleged to have begun.
[3] The victim and the offender’s daughter were best friends.
Fact-finding following jury verdict
[4] In order to arrive at a fit sentence, I must make several findings of fact.
[5] The issue on the charge of sexual interference was whether the offender engaged in sexual activity with the victim before her sixteenth birthday. It is inherent in the jury’s finding of guilt on that charge that they found as a fact that the offender had done so. However, as argued by defence counsel, the verdict goes no further than that. The offender’s position for the purpose of sentencing is that I should find there to be reasonable doubt as to whether any sexual activity occurred until shortly before the victim’s sixteenth birthday. Although no witness testified that the sexual activity began shortly before that date and the offender denied any sexual activity before her birthday, it was open to the jury (and they were so instructed) to believe some, all or none of the victim’s evidence.
[6] The victim testified that on New Year’s Eve, the offender gave her vodka and she became intoxicated. She said that at some point during the evening, while his daughter was upstairs taking a shower, the offender had vaginal and oral sex with her on a couch.
[7] She testified that after the incident on New Year’s Eve, sexual activity with the offender continued with increasing frequency. At first it was every week or two, and later increased to once or twice a week. She wasn’t sure how long after New Year’s Eve the next incident of sexual activity had occurred, but thought it was a month or a month and a half or possibly only three weeks. She said that the sexual activity took place mostly at the offender’s apartment in Brooklin, but that on several occasions, it took place in a house in Oshawa. She would always be provided with alcohol and would be intoxicated when they had sex. She said that she was addicted to alcohol, and had no other source of alcohol, because she had no money to pay for it.
[8] In his evidence, the offender denied having sex with the victim on New Year’s Eve or at any other time before her sixteenth birthday. He denied ever providing alcohol to her. He produced a copy of his lease for the Brooklin apartment showing the term of the lease to begin on April 1, 2016 and testified that he did not move into the apartment until April 12, 2016.
[9] In her evidence, the offender’s daughter said that on New Year’s Eve, she went upstairs to take her make-up off, but did not take a shower. She said that the bathroom door was left open, and that her father yelled several times for her to hurry up. She said that when she started back down the stairs, he was waiting at the door wearing his boots and jacket. She said that the victim had been drinking before she arrived, but that her father did not give them alcohol. She also said that she remembered that her father had not moved into the Brooklin apartment until April 2016, because she remembers that it was close to her birthday and that her father had explained that he couldn’t get her much for her birthday because he had to pay first and last month’s rent for the apartment.
[10] The victim’s father testified that when his daughter returned home on New Year’s Eve, she was very upset, but would not tell him why. He said that there were several things that she might have been upset about.
[11] Archibald Cullaton testified that he had been the tenant at the Brooklin apartment before the offender. He said that his tenancy had expired on March 31, 2016. He said that he had moved out at the end of February or beginning of March, and that as he was moving out, the landlord brought the offender in to view the apartment. He said that when he first rented the apartment in October 2013, the landlord had allowed him to move in a day or two before the commencement of his lease.
[12] At the time of the offences, the offender was on parole. His parole officer testified that he told her on April 21, 2016 that he was moving to the Brooklin apartment, and that she visited him there on April 28, 2016. She said that at the time of her visit, there was very little furniture in the apartment. She did not recall what furniture there was.[^1]
[13] Defence counsel argues that the idea that the offender “would sexually attack [the victim] while his daughter was upstairs with the door open and uncertain when she was coming downstairs is not something that accords with the probabilities of the circumstances and common sense.” I agree; however, this argument assumes that the offender’s daughter was telling the truth about what she was doing upstairs. On this issue, I prefer the evidence of the victim. As pointed out by Crown counsel, it seems unusual that the offender’s daughter would keep the offender and victim waiting while she took her makeup off – just as they were about to leave the house. She was not an objective witness. Her father had just come back into her life having been in jail on other charges from April 2012 to August 2015. When she found out that the victim had a sexual relationship with her father, she blamed the victim, they had a fight, and she was found guilty of assaulting the victim. Although she testified that she had not discussed her evidence with her father, a number of small details of their evidence were strikingly similar, especially considering that on their version of the events, nothing out of the ordinary had happened on this date more than three years earlier. Although a number of small details were similar, on the offender’s evidence, he was never alone in the living room with the victim; on his daughter’s evidence, she had left them alone in the living room when she went upstairs.
[14] Defence counsel argues that I should find as a fact that the offender did not move into the Brooklin apartment until mid-April, and that therefore, contrary to the victim’s evidence, sexual activity could not have occurred there in February or March.
[15] In her evidence, the victim was unsure about when, after New Year’s Eve, the sexual relationship had begun. Her estimates were between three weeks and a month and a half. I find that it is unlikely that it began quite that soon after; however, the fact that an 18-year-old victim cannot remember the exact details of incidents of sexual abuse occurring three years earlier does not mean that the incidents did not happen.[^2]
[16] The fact that the offender’s lease did not start until April 1, 2016 is some evidence in favour of the offender but is not determinative. Mr. Cullaton’s lease expired on March 31, and he moved out at the end of February or beginning of March. As he was moving out, the landlord brought the offender in to see the apartment. The landlord had allowed Cullaton to move into the apartment a few days early when he first rented it. Crown counsel argues that this means that the offender had access to the apartment as early as the end of February. Defence counsel argues that it does not follow, from the fact that the landlord allowed Cullaton to move in a few days early, that the offender was permitted to move in a month early. I agree.
[17] Having considered this evidence, I am satisfied beyond a reasonable doubt that the victim was sexually assaulted on New Year’s Eve 2015. On the issue of when the sexual relationship began following New Years’ Eve, I am unable to determine, with exactitude, when the apartment became available to the offender or when the sexual relationship began. I do, however, accept the victim’s evidence that there were a significant number of incidents prior to her sixteenth birthday.
Circumstances of the offender
[18] The offender is 42 years old. He grew up in Brooklin, Ontario and has a twin brother and older sister. He dropped out of high school when he was 17. He completed one year of college but did not graduate. He was a competitive snowboarder and worked at restaurants as a chef or sous-chef.
[19] The offender had a two-year relationship with his daughter’s mother. Their relationship ended when his daughter was five months old.
[20] The offender lived in Whistler, B.C. from 2004 to 2011 where he continued competitive snowboarding. He also taught snowboarding but was unable to make a living at it. He worked as a chef and did some farming in order to support himself. He returned to Ontario in 2011.
[21] In April 2012, the offender was charged with three counts of sexual assault, assault causing bodily harm, and threatening. He was unable to obtain bail and was incarcerated at Central East Correctional Centre pending trial. In June 2012, he was assaulted at CECC and taken to hospital. Following the assault, he was placed in administrative segregation from June 19, 2012 to July 27, 2012 (39 days). He was again assaulted in early December 2012 and again taken to hospital. Upon his return to CECC, he was placed in administrative segregation and remained there until July 19, 2012 (225 days).
[22] In an affidavit filed on sentencing, the offender says that during the latter seven and a half months in segregation, he was by himself 24 hours per day. He says that he only had access to the yard 39 times for approximately twenty minutes each time, and that he had little contact with anyone except a guard. He described the experience as “torture” and says that he “lost all hope and wanted to die.”
[23] In February 2013, the offender was found guilty of sexual assault, assault causing bodily harm and threatening. He was sentenced to a five-year prison term and taken to Joyceville Institution north-east of Kingston. He says that he then began to experience panic attacks, anxiety and insomnia; that he could never sleep for more than three or four hours a night; and that he would have terrible nightmares after which he would wake up and start screaming.
[24] The offender was paroled in August 2015 and moved backed to Brooklin with his parents. He reconnected with his daughter whom he had not spoken with for many years. He says that he continued to have anxiety, nightmares and panic attacks, and difficulty sleeping.
[25] In August 2017, the offender was arrested for the offences now before the court and again spent time at Central East Correctional Centre. In February 2018, his February 2016 convictions were set aside on appeal, and he was released on bail. Those charges came back before the court in July 2019, at which time he pleaded guilty to threatening bodily harm and the charges of sexual assault and assault causing bodily harm were withdrawn. He received a suspended sentence and probation for one year, with 20 days in custody noted on his criminal record.
[26] After being arrested in August 2017, the offender spent 187 days in pre-trial custody, before being released on bail following his successful appeal. During that period, there were 79 lockdowns. He says that the lockdowns brought back “painful memories and terror” from when he had been incarcerated at CECC in 2012 and 2013 on the first set of charges.
[27] In January 2018, the offender was diagnosed with moderate post-traumatic stress disorder and was prescribed medication for anxiety. At the time of the sentence hearing, the offender was attending counselling for PTSD.
[28] The offender is now married, and he and his wife are expecting a child. He is working as a carpenter doing home renovations and roofing and is in the process of starting an organic farming business with his wife on her parents’ land. He supports his twin brother who is addicted to opiate-based drugs and homeless, and supports his elderly parents. His wife and daughter have provided positive letters of support.
Positions of the parties
[29] Crown counsel’s position is that the offender should be sentenced to a prison term of seven years, less a credit for pre-sentence custody.
[30] Defence counsel’s position is that a reasonable sentence, without the unique mitigating factors that he argues are present, would be five years. However, he argues that because the offender has PTSD and will be more severely impacted than others by his time in custody, a four-year sentence would be reasonable. He argues that because the offender’s mental illness was caused by a “state-inflicted, cruel, unconscionable, prolonged segregation”, there should be a further reduction of two years, leaving a sentence of two years or 730 days. He then argues that the 730-day sentence should be reduced for pre-sentence custody at 1.5:1, and a lockdown credit at 3:1, leaving the offender with 212 days left to serve.
Aggravating factors
[31] Pursuant to s. 718.2 of the Criminal Code, the following are aggravating factors:
• that the offender, in committing the offence, abused a person under the age of eighteen years;
• that the offender, in committing the offence, abused a position of trust or authority in relation to the victim; and
• that the offence had a significant impact on the victim, considering her age and other personal circumstances.
[32] In this case, the victim was just 15 years old when the offender began to take advantage of her. The offences included repeated acts of oral sex and vaginal intercourse, over a significant period. These are significant aggravating factors.
[33] Crown counsel argues that the offender was in a position of trust in relation to the victim. Defence counsel disagrees. In my view, this is largely an academic argument. Whether technically a breach of trust or not, there can be no doubt but that taking advantage of a 15-year-old’s alcohol addiction, to sexually assault and exploit her, is an extremely aggravating factor.
[34] These offences have had a very significant impact on the victim. Although she did not provide a victim impact statement for the purpose of sentencing, in an earlier statement, the victim described in graphic terms the pain that she experienced living through the trial.
[35] A victim impact statement was provided by the victim’s father. In his statement, he describes the impact on the victim as being “tremendous” and a continuing daily struggle. He says the trial was traumatic for his daughter and that she felt victimized all over again. He says that she has had a difficult time at school, has a continuing fear of the offender, and has experienced anxiety and depression for which she has been in counselling, and for which she has been prescribed medication.
Mitigating factors
[36] The offender is employed, has the support of his wife and daughter, and supports his parents and brother.
Effect of offender’s mental illness on sentence
[37] Defence counsel submits that the offender’s post-traumatic stress disorder is a significant factor in determining a fit sentence and that it is, by itself, sufficient to justify a sentence below the usual range. While I agree that the offender’s PTSD is a mitigating factor, it does not follow that the resulting sentence should fall outside the usual range. Rather, it is simply one of the factors to be considered, together with all other mitigating, and aggravating, factors.
[38] Citing R. v. Belcourt, 2010 ABCA 319, defence counsel argues that where mental illness is a factor, denunciation and deterrence are less important in arriving at a fit sentence. However, in Belcourt, the appeal was allowed because the trial judge had failed to give adequate weight to the offender’s mental illness in assessing his moral blameworthiness. In my view, where the mental illness was not relevant to the commission of the offence, and the mitigation is based solely on the effect of the illness on the proportionality of the sentence, denunciation and deterrence are no less important and are to be weighed together with the other relevant factors, including the effect of the mental illness on the proportionality of the sentence to be imposed.
[39] With respect to the effect of mental illness as it relates to proportionality, and not to moral blameworthiness or rehabilitation, defence counsel relies on R. v. Shahnawaz (2000), 2000 CanLII 16973 (ON CA), 51 O.R. (3d) 29, [2000] O.J. No. 4151. In Shahnawaz, the trial judge had imposed a conditional sentence of 17 months less a day, with two years’ probation, in addition to seven months of pre-sentence custody. On appeal, the court held that the trial judge had placed too much emphasis on the effect of the offender’s PTSD, on his prospects for rehabilitation, and varied the sentence to one of six years.[^3]
[40] Unlike the present case, the court in Shahnawaz was provided with psychiatric evidence as to the likely effect of prolonged incarceration on the offender. The evidence was given by two psychiatrists. The first expressed the opinion that the offender’s experience in detention had reactivated and intensified the post-traumatic stress disorder suffered as a result of mistreatment while detained in Afghanistan, and the opinion that his condition would not likely improve as long as he was in detention. The second concluded that continued incarceration would probably lead to increased intensity of the offender’s post-traumatic stress disorder and would represent contemporary trauma and re-traumatization.
[41] However, I agree with defence counsel that even in the absence of psychiatric evidence, I should find that the offender’s mental illness will have a significant effect on his experience in prison. In weighing the effect of that illness on sentence, together with the other relevant factors, both mitigating and aggravating, I am guided by the following passage in Shahnawaz (at para. 34):
What we are left with as a relevant factor for consideration is the evidence, accepted by the trial judge, that imprisonment had and would probably continue to have an "extreme effect" on Mr. Shahnawaz. Given this fact, it becomes necessary to adjust the sentence imposed on this particular offender so as to ensure that it does not become disproportionate to his crime. The court must not lose sight of the fact, however, that it is difficult to predict Mr. Shahnawaz's future condition and that the state of any prisoner's health while in custody is largely a matter for the correctional authorities.
Whether state misconduct on prior charges is relevant to sentence
[42] The issue here is whether the offender’s sentence should be reduced as a result of the conditions under which he was held in pre-trial custody in 2012 and 2013, following his arrest on the first set of charges.
[43] In R. v. Wilson, 2008 ONCA 510, at paras. 45f, the court held that a sentencing judge is entitled to consider time spent serving another sentence as part of the complete picture for understanding an offender. However, the court should only consider factors that relate to the offence under consideration.
[44] In R. v. Nasogaluak, 2010 SCC 6, at para. 48, the court held that state misconduct may be considered in sentencing, provided that it aligns with the circumstances of the offence or the offender, as required by s. 718.2 of the Criminal Code.
[45] In Brazeau v. Canada (Attorney General), 2019 ONSC 1888, the court certified a class action for mentally ill inmates who spent more than 30 days in segregation. In Canadian Civil Liberties Assn. v. Canada (Attorney General), 2019 ONCA 243, the court held that administrative segregation, beyond 15 consecutive days, constitutes cruel and unusual punishment and declared provisions of the Corrections and Conditional Release Act permitting such segregation to be unconstitutional.
[46] Defence counsel argues that the fact that the offender spent 264 days in segregation during pre-trial custody on the first set of charges is shocking and intolerable and should result in a sentence reduction of two years. While I agree that the conditions of his pre-trial custody on those charges were both shocking and intolerable, the question remains whether that first period of pre-trial custody is sufficiently related to the offender, or the offences, now before the court.
[47] Defence counsel argues that the first period of pre-trial custody is related to the offences now before the court in two ways. First, he submits that the offender would not have spent 187 days in custody, with 79 lockdowns, following his arrest on the second set of charges, had he not been convicted and incarcerated on the first set of charges. Second, he submits that the offender will have a worse experience in custody as a result of the mental illness which the offender says was caused by the conditions under which he was held in pre-trial custody following his arrest on the first set of charges.
[48] With respect to the first submission, I agree that the offender would likely have been released following his arrest on the second set of charges had he not been convicted on the first set of charges. However, I do not see that as a connection between the first pre-trial custody and the charges now before the court entitling the offender to a sentence reduction, based upon the conditions of the first pre-trial custody. The offender’s remedy is a sentence reduction based upon the second pre-trial custody and the conditions under which it was served.
[49] With respect to the second submission, the mental illness from which the offender suffers is a mitigating factor relevant to the determination of a fit sentence. However, the only relevance of the conditions of the first pre-trial custody is its relevance to the proof of his current mental condition. Those conditions are not otherwise related to the offences before the court. Defence counsel acknowledges that if there was no connection between the first pre-trial custody and the current offences, the offender would not be entitled to a sentence reduction based upon the conditions of that custody. The difference between that hypothetical and the present case is only the fact that the offender continues to suffer from a mental illness caused or contributed to by those conditions. In my view, given that the mental illness is already being treated as a significant mitigating factor, a further reduction based upon the connection between the first pre-trial custody and the illness is not warranted. The effect of the conditions of the first pre-trial custody is also partially reflected in the sentence reduction to which the offender is entitled based upon the conditions of the second pre-trial custody.
Sentence
[50] In support of her position with respect to the appropriate range of sentence, Crown counsel relies upon R. v. D.D. (2002), 58 O.R. (3d) 788, 2002 CanLII 44915; R. v. Woodward, 2011 ONCA 610; R. v. D.M., 2012 ONCA 520; R. v. Mullins, 2016 ONCA 415, [2016] O.J. No. 3267; R. v. K.M., 2017 ONSC 2690, [2017] O.J. No. 2198 (S.C.J.); and R. v. F.L., 2018 ONCA 83, [2018] O.J. No. 482 (C.A.).
[51] In D.D., Moldaver J.A. identified the issue before the court to be “the appropriate range of sentence for adult offenders who prey upon innocent children to satisfy their deviant sexual cravings.” He then goes on to say that “as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms.”
[52] Having regard to the aggravating and mitigating circumstances, including the offender’s PTSD and its effect on proportionality, I have concluded that a fit sentence for this offender on these offences is five years, less credits for pre-sentence custody and the conditions of that custody, including lockdowns.
[53] At 1.5:1, the offender is entitled to a credit of 281 days for the 187 days he spent in pre-sentence custody, pursuant to ss. 719(3) and (3.1) of the Criminal Code.
[54] In R. v. Duncan, 2016 ONCA 754, the court held that in appropriate circumstances, harsh conditions of pre-sentence custody may provide mitigation beyond the usual 1.5:1 credit. In considering whether such credit should be given, the court will consider both the conditions of the pre-sentence incarceration and the impact of those conditions on the offender.
[55] In the present case, as a result of the conditions of his pre-sentence custody, including the lockdowns, and the effect of those conditions on the offender, he will receive an additional credit of 238 days. Deducting 519 days (281 + 238) from 5 years results in a sentence of 3 years and 211 days.
[56] The offender will comply with the following ancillary orders:
• an order prohibiting him from communicating directly, or indirectly, with the victim or her father, during the custodial period of his sentence;
• a firearms prohibition order, for 10 years, pursuant to s. 109 of the Criminal Code;
• an order that he comply with the Sex Offender Information Registration Act for life; and
• an order authorizing the taking of a DNA sample, and an order that he report and submit to the taking of the sample.
[57] Crown counsel requests prohibition orders pursuant to ss. 161(a), (b) and (c) of the Criminal Code. In my view, such orders are unnecessary for the protection of the public and would serve no useful purpose. There is no evidence that the offender is predatory or has engaged in the luring of young children.
“Bale J.”
January 3, 2020
REASONS FOR SENTENCE
Bale J.
January 3, 2020
[^1]: The jury was not told that the witness was a parole officer. [^2]: See R. v. R.W., 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122. [^3]: The Court of Appeal agreed with the trial judge that the appropriate range of sentence for offences involving similar amounts of heroin was 9 to 12 years’ imprisonment.