Her Majesty the Queen v. J.W.
COURT FILE NO.: CR-18-1201-AP
DATE: 2020 09 23
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
J. Forward for the Appellant Crown
- and –
J.W.
W.G. Punnett for the Respondent
HEARD: September 4, 2020 by Zoom conference
RESTRICTION ON PUBLICATION
By court order made under subsection 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of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner.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.
JUDGMENT ON SUMMARY CONVICION APPEAL
[On appeal from the judgment of Justice D. G. Carr
dated March 19, 2018 and the sentence imposed June 18, 2018]
D.E HARRIS J.
[1] This is a Crown appeal under Section 813(b)(i) of the Criminal Code against the respondent’s acquittal on one count of sexual assault. If the appeal against acquittal is allowed, the Crown requests that the respondent be convicted and sentenced for that offence.
[2] The respondent was charged with 8 counts of simple assault and one count of sexual assault against his wife, H.W. The allegations spanned 12 years, ending in 2015. The Crown elected to proceed summarily and the defence waived the statutory limitation period. After a trial over two days, the trial judge convicted the respondent of one of the 8 assaults (dating from 2006) and acquitted the respondent of the sexual assault count (committed June 15, 2015) but instead found him guilty of the included but lesser offence of assault. The respondent was sentenced concurrently on each count to a suspended sentence, two years probation and 24 hours of community service.
I. The Appeal From the Respondent’s Acquittal on the Sexual Assault Count
[3] The underlying facts are not in dispute. The respondent and his wife, the complainant, were watching television together on the couch in their home on June 15, 2015. Ms. W. fell asleep. She woke up in the middle of the night and joined her husband in bed. When she woke-up in the morning, the respondent had already left for work.
[4] Ms. W. received a text from the respondent later that morning. It read: "Sorry I jerked off in your face." Ms. W. went to the washroom and saw a dry substance on her cheek and neck area. She testified that she felt extremely violated and angry. Some rancorous texts between the respondent and the complainant followed.
[5] The two had .a conversation when the respondent returned from work. Ms. W. testified that:
I talked to him about that and he told me that that's what I get for falling asleep on him. That it was my fault that it happened because I shouldn't have fallen asleep because he would have expected some sort of sexual exchange that night and I fell asleep on the couch instead so this was my punishment for falling asleep.
[6] There was no issue at trial that the acts took place, that they were without consent and that they therefore constituted an assault. The debate then and now is whether the assault was a sexual assault. Ms. Forward filed written submissions and argued the issue orally as well. Amongst other things, she argued,
The test … is objective "viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer?''[reference to R. v. Chase, 1987 23 (SCC), [1987] 2 S.C.R. 293 at p. 301]
While sexual gratification or motivation may assist in proving that the assault occurred in circumstances of a sexual nature, to require proof of sexual motivation, a sexual purpose or sexual gratification, as an element of the offence, is an error in law as it would convert the offence of sexual assault from a general intent offence to a specific intent offence. [references omitted].
[7] The trial judge disagreed and acquitted the respondent of the charge of sexual assault, entering a finding of guilt on the included offence of simple assault. He said:
There is absolutely no evidence before me that Mr. W. touched Ms. W. in any fashion or relied upon her in any way to assist him in masturbating on her face. Indeed the evidence that I heard was t hat he was angry with her, not enamored with her when she fell asleep· on him. Ms. Wood was asleep at the time and would not even have known the masturbation had occurred unless Mr. Wood had admitted to it in a text message. I find this to be far different than the cases provided.by the Crown since there is absolutely no evidence that what Mr. Wood did was for a sexual purpose.
Indeed in my mind from the evidence before me the clear purpose was to degrade Ms. Wood and to assault her. not to use her in some fashion for his own sexual gratification because, as I have said, he was angry with her at the time.
DECISION ON THE APPEAL AGAINST ACQUITTAL
[8] The trial judge erred in law in not finding that the respondent’s actions constituted a sexual assault. Over 30 years after it was decided, R. v. Chase 1987 23 (SCC), [1987] S.C.J. No. 57, [1987] 2 S.C.R. 293 remains the leading authority. The critical passage from Chase, one relied upon by the Crown at trial and upon appeal, states:
11 … Sexual assault is an assault within any one of the definitions of that concept in s. 244(1) of the Criminal Code which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated. The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: "Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer" (Taylor, supra, per Laycraft C.J.A., at p. 269). The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force, will be relevant (see S.J. Usprich, "A New Crime in Old Battles: Definitional Problems with Sexual Assault" (1987), 29 Crim. L. Q. 200, at p. 204.) The intent or purpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor in considering whether the conduct is sexual. If the motive of the accused is sexual gratification, to the extent that this may appear from the evidence, it may be a factor in determining whether the conduct is sexual. It must be emphasized, however, that the existence of such a motive is simply one of many factors to be considered, the importance of which will vary depending on the circumstances.
12 Implicit in this view of sexual assault is the notion that the offence is one requiring a general intent only.
(Emphasis Added)
Also see R. v. Lutoslawski, 2010 SCC 49, [2010] 3 S.C.R. 60 (S.C.C.); R. v. Litchfield, 1993 44 (SCC), [1993] 4 S.C.R. 333 (S.C.C.), at p. 345.
[9] Properly applying the dicta in Chase to the undisputed facts in this case admits of only one possible answer: this was a sexual assault. The correct question was: Would a reasonable observer conclude that the assault was committed in circumstances of a sexual nature, such that the sexual integrity of the complainant [was] violated? The indisputable facts based on the admissions in his text messages to his wife were that respondent masturbated and ejaculated. Both, needless to say, are sexual acts. The consequence, one fully intended by him, was to have the ejaculate land on his wife’s face. Both the conduct and the consequence were overtly sexual and violated the complainant’s sexual integrity. That is where the analysis should have begun and ended.
[10] The trial judge found that there was no sexual purpose or sexual gratification behind the respondent’s actions but, rather, there was only an intention to degrade her. In his mind, this finding precluded the assault being characterized as sexual. It is clear that in making this conclusion, the trial judge applied the wrong test. The error, which the Crown warned him about at trial, is that the purpose of an assault and the issue of sexual gratification are mere subfactors in the overall question of whether the assault was in committed in circumstances of a sexual nature. If the trial judge had applied that broad based test from Chase, the respondent’s acts would inevitably have led him to conclude that the assault was a sexual assault.
[11] No where in the case law has it been held that the absence of a sexual purpose or the lack of a sexual gratification motivation precludes an assault from being a sexual assault. This would be in direct contradiction to Chase. As the Crown argued, it would erroneously convert this general intent offence to one of specific intent.
[12] The Court of Appeal in R. v. Trachy, 2019 ONCA 622, 147 O.R. (3d) 250 (C.A.) examined acquittals for sexual assault allegations where the trial judge found that the accused touching his violin students’ breasts was not for a sexual purpose but only to ensure that their violin rests were properly placed. In entering convictions, Justice Benotto described the error as the trial judge focussing exclusively and erroneously on the issue of sexual purpose:
75 The trial judge erred in law by determining that the respondent's lack of sexual purpose was determinative of the sexual assault and indecent assault charges. In short, he confused the sexual purpose of the respondent with the sexual nature of the conduct.
[13] In the significantly different factual context of this case, the same error was made. I should add, moreover, although unnecessary to my decision, even on the erroneous sexual purpose test applied by the trial judge, I disagree with the trial judge’s result. The respondent’s wife, against his wishes, was unable to engage in sexual activity with him. He decided to take revenge against her for this perceived transgression by ejaculating on her to express his anger and to degrade her. When both the motivation and the nature of the sexual act committed are fully appreciated, it is clear that the purpose was indisputably sexual.
[14] Section 686(4)(b)(ii) of the Criminal Code permits an appeal judge to substitute a finding of guilt if the accused should have been found guilty but for the commission of an error of law by the trial judge: R. v. Trachy, at paras. 86-87; R. v. Skalbania, 1997 337 (SCC), [1997] 3 S.C.R. 995 (S.C.C.). This indictable appeal provision is incorporated into the summary conviction appeal regime by Section 822(1) of the Code. If the trial judge had not misconstrued the law, he would inevitably have found the respondent guilty of sexual assault.
[15] For these reasons, I allow the appeal, set aside the acquittal on the count of sexual assault and substitute a finding of guilt for that offence.
II. The Crown’s Appeal From Sentence
[16] Since the respondent has been found guilty of a sexual assault upon appeal, the trial judge’s sentencing on the simple assault must be set aside and the respondent sentenced for the sexual assault. The Crown recommends a sentence of 4 to 6 months incarceration be now imposed.
[17] The facts on the one count of assault for which the trial judge found him guilty and imposed a suspended sentence must be considered as part of the context. Mr. and Ms. W. returned home from a Christmas party in 2006 and a fight ensued over comments that Mr. W. had made about other women’s breasts. Ms. W. threw a model car belonging to the respondent across the room. Mr. W. then shoved her with both hands and she fell to the couch. He got on top of her and held her down by the neck with his left hand. As he held her neck, he punched her and slammed down his hand on her forehead.
[18] Ms. W.'s mother corroborated her daughter's evidence and observed injuries to her. The mother testified that she heard a blood-curdling scream from her daughter who was shouting "he's trying to kill me." She could see clear and visible finger marks on her daughter’s neck and observed a goose-egg on her forehead. Mr. W. warned the mother that if she called the police she would never see her granddaughter again and that he would barricade himself downstairs.
[19] In her victim impact statement, Ms. W. said that she has lasting problems interacting with men, She has nightmares in which the respondent abuses her and she has no ability to control or stop him. The respondent took her trust and kindness and misused it. Instead of having the instinct to protect her, her husband violated her while she slept and “left me soiled in your ejaculate like a piece of trash.” I think any woman would feel exactly the same way.
[20] The trial judge struggled with whether a sentence of incarceration was warranted in light of the assault being domestic in nature and the negative consequences to the victim. He ultimately imposed a suspended sentence and two years probation.
[21] In my view, the nature of the assault being now recognized as a sexual assault substantially increases the seriousness of the offence and the need for denunciation and deterrence. The complainant was not only degraded, she was degraded as a consequence of a sexual offence. That is different in kind than the offence the trial judge sentenced him for. The psychological detriment from a sexual assault is significantly more damaging to a woman than would be a similar assault without the sexual element. It burrows much deeper into a woman’s identity and her innermost feelings of self-worth and autonomy. Sexual crimes have profoundly damaging consequences; they tend to rankle in a much more insidious way. In the case here, the sexual act expressed a virulent disdain and disrespect for her. It was aimed at and inflicted harm on her sexual integrity and her right to control her sexual choices. It must be denounced.
[22] The respondent is 39 years old with no prior record. He and Ms. W. have a 14 year old daughter from their former relationship and he has a toddler from a new relationship. He has a good work history. A positive letter from his present employer was filed on the appeal.
[23] A major factor in re-sentencing Mr. W. is that this crime took place five years ago. The information was not laid until over a year after the offence and then there were delays in completing the trial. The appeal by the Crown has languished for two years because the respondent did not have a lawyer and because of the COVID crisis. Even though a good part of the trial and the appellate delay may have been attributable to the respondent, in my view the five years since the offence was committed remains germane to crafting a fit and appropriate sentence: R. v. Hartling, 2020 ONCA 243, [2020] O.J. No. 1438 (C.A.) at paras. 115-122; R. v. Hamilton, 2004 5549 (ON CA), 72 O.R. (3d) 1, 186 C.C.C. (3d) 129 (C.A.) at paras. 165-166.
[24] The demands of denunciation and deterrence have abated with the lapse of time. The offender is in a different place in his life than he was then. Furthermore, in the circumstances, it makes little sense from a cost-benefit vantage point to jeopardize the respondent’s job or the stability of his family life for an offence of this nature committed five years ago.
[25] At trial, a stronger denunciatory sentence would have been appropriate. But in the present circumstances, taking into account the delay and the restraint called for in the use of incarceration in sentencing mandated by Section 718.2(e) of the Code, a conditional sentence of four months satisfies the principles of sentencing. It is important to note that a conditional sentence has significant denunciatory impact: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61 (S.C.C.) at para. 102
[26] In the result, the suspended sentence and probation order below with respect to the June 15, 2015 count is set aside. The victim surcharge, concurrent on both counts, is also vacated: R. v. Boudreault, 2018 SCC 58, [2018] S.C.J. No. 58. The DNA databank and Section 110 orders as imposed at trial will stand. There will be a SOIRA order for 10 years.
[27] The legal pre-conditions for a conditional sentence are satisfied. A four month conditional sentence will be imposed, including the statutory conditions and the following additional conditions:
I. For the entirety of this sentence you are confined to your residence under house arrest twenty-four hours per day, seven days per week except for the following:
(i) Being at work, including the time necessary to travel directly to and from work;
(ii) Reporting to your supervisor, including the time necessary to travel directly to and from the appointments;
(iii) Attending medical, dental or legal appointments approved in advance by your supervisor, including the time necessary to travel directly to and from such appointments;
(iv) Dealing with a medical emergency for you, your spouse or your children; and
(v) Once a week, for a period not exceeding four hours including travel time, for personal or household errands, provided that the period is agreed upon in advance with your supervisor;
vi) For any other purpose approved by your supervisor.
D.E HARRIS J.
Released: September 23, 2020
COURT FILE NO.: CR-18-1201-AP
DATE: 2020 09 23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Appellant
- and –
J.W.
Respondent
APPEAL JUDGMENT
D.E HARRIS J.
Released: September 23, 2020