SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
JERRY KABULA
R E A S O N S F O R S E N T E N C E
BEFORE THE HONOURABLE JUSTICE T. CAREY
on November 2, 2020 at WINDSOR, Ontario
INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED,
BROADCAST OR TRANSMITTED PURSUANT TO S.486.4 OF
THE CRIMINAL CODE OF CANADA
APPEARANCES:
J. Lall Counsel for the Crown
E. Weber Counsel for Jerry Kabula
ONTARIO COURT OF JUSTICE
T A B L E O F C O N T E N T S
INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED,
BROADCAST OR TRANSMITTED PURSUANT TO S.486.4 OF
THE CRIMINAL CODE OF CANADA
W I T N E S S E S
WITNESSES
Examination in-Chief
Cross- Examination
Re- Examination
No witness gave testimony
during this proceeding
L I S T O F E X H I B I T S
EXHIBIT NUMBER ENTERED ON PAGE
4 Memo to justice partner 19
REASONS FOR SENTENCE ................................. 1
Transcript Ordered: November 2, 2020
Transcript Completed: November 11, 2020
Ordering Party Notified: November 12, 2020
COURT REGISTRAR: Her Majesty the Queen and Jerry Kabula ...
R E A S O N S F O R S E N T E N C E
CAREY J. (Orally):
These are my reasons and my pronouncement of sentence for Mr. Jerry Kabula.
Mr. Kabula was found guilty by me on February 21st, 2020 on the one-count indictment before the court that he, on or about the 22nd day of April in the year 2017 at the City of Windsor in the Southwest Region, did commit a sexual assault on J.M., contrary to s.271 of the Criminal Code. There is a ban on publication of the victim’s name and she will be referred to as “J.M.” I gave oral reasons at the time of conviction on the finding of guilt.
In summary, these are rather unique facts, to say the least. Mr. Kabula and his friend Gabriel, went to a local Windsor bar essentially to meet women who, in their words, “they could have fun with”. In other words, they were there to meet women they could take home and have sex with.
After meeting J.M. and her friend, they went to Gabriel’s house, stopping on the way to pick up some beer from J.M.’s place. The two men said in their evidence that there was talk about multiple
partner sex, threesome, foursome but this was denied by J.M. in her testimony. At Gabriel’s townhouse, they paired off with Gabriel and the complainant going upstairs to Gabriel’s bedroom, and the accused going downstairs to the basement with J.M.’s friend Jackie. It is not disputed that they had consensual sex and there was no evidence that there was any protection used such as a condom.
The evidence is that J.M. and Gabriel went upstairs and had consensual sex which at some point included J.M. putting on a mask and having her hands lightly tied with what was described as earphones, and having sex from behind her with her on her knees which continued until Gabriel said he needed a break. It was clear that he went down and had a break. The timing of that was estimated by the complainant to be perhaps a couple of minutes while she remained naked with her posterior up and her head down and masked on the bed until intercourse resumed. She quickly realized it was not Gabriel and she had removed her mask to look. She started screaming. She was very upset. She yelled that she had been raped and she was angry at both the accused and Gabriel as well as her friend whom she quickly perceived was not sympathetic.
Her friend did not testify as noted in my reasons for judgment. She was quoted by Gabriel as saying, “you always do this”. It is quite clear that her reaction had a deep effect on the complainant (and I will deal with that later) but it was quite clear on the evidence that J.M. had not consented to any sexual contact with the accused and had not communicated any consent. Following the event, everyone got dressed and the complainant was driven home.
In her testimony and in her victim impact statement, she says essentially that her life was completely devastated and changed forever by this event.
The accused’s testimony was that he had introduced himself when he went upstairs and told J.M. that she was “looking good” and that he had caressed her before penetrating her vaginally. If he said anything, it was not heard by J.M.
It came out and was observed at trial that Mr. Kabula was very soft-spoken and that the complainant was deaf in one ear. It is clear that he did not remove the mask of the complainant. He testified he said he was called upstairs. I found no evidence to support that. It is clear there was no discussion with the complainant about, first of all, why she was masked, and no discussion of whether she was still with Gabriel despite his absence. Apparently, it had not occurred to Mr. Kabula to wonder where his friend was. Both of them agreed in their evidence that they did not have any discussion regarding changing partners at the time Mr. Kabula came upstairs, essentially. It is clear he had no discussion at all with the complainant but importantly, there was no discussion about having sexual intercourse and not using a condom even though, on all of the evidence, Mr. Kabula just had unprotected sex with another woman who he did not know before that evening. Essentially, Mr. Kabula presumed that J.M. would consent based on his perception of her reactions earlier around him.
I rejected his evidence about his beliefs primarily because of his lack of recall of details of the events in cross-examination. He essentially admitted he had a bad memory of the events due to his intoxication. I found that instead of making sure that J.M. knew it was him and was consenting to having sex with him, he ignored what should have been warning signs that required clarification. The fact that she was masked, the fact that he did not talk to Gabriel, her present sexual partner, were all circumstances where he was obliged to confirm who he was, why he was there, and whether she wanted to have sex with him. Instead, he proceeded with unprotected sexual intercourse. I concluded in my judgment that those circumstances constituted non-consensual sexual intercourse and a sexual assault.
When we look at the offender and his circumstances, he has no record, he has a positive pre-sentence report and that includes a traumatic background in the Democratic Republic of the Congo. He was the sixth of nine children in his family. He witnessed a war and violence in the Congo including an incident where rebels broke into his neighbour’s home and killed him. He said in his statement to the court that he witnessed the rape of his sister and was in a situation where he felt he could have been killed. He also witnessed violence in the refugee camp and racism to his family.
His family immigrated to Canada and he obtained his citizenship in 2016. His family confirmed their experiences in the Congo and Uganda and that Mr. Kabula was severely injured. Despite his tumultuous past, his mother indicates in the pre-sentence report he had no behavioural issues and he has had a couple of serious romantic relationships but nothing in his background indicates any abuse of his partners.
He has been educated both here in Windsor and in Ottawa. He is reportedly a talented soccer player and he had applied and enrolled in a police foundations program in Ottawa but did not return due to being charged with this offence. I note that this charge was briefly stayed by the Crown in court for just under two months. The reasons for that were put on the record. I note that this offence dates to the 22nd of April in the year 2017, so three and a half years ago.
The pre-sentence report indicated that he had one experimentation with marijuana when he was a child. It is noted he was intoxicated at the time of this offence and has not consumed alcohol since the offence. The pre-sentence report, as well as his statement in court, expressed remorse. The pre-sentence report indicates, as he had indicated in court, his belief at the time that J.M. was interested in sexual activity with him and he has indicated his remorse and his apology in court and to the pre-sentence report author.
The pre-sentence report concluded that he “presents as requiring further intervention to address the trauma from his past and would benefit from detailed education regarding sexual consent given its impact on the offence. He presents as an individual who can address these need areas in a community setting.”
I have concluded he was sincere in his belief that at the time of this incident the victim was consenting, but this was an unreasonable belief coloured by substantial alcohol consumption and perhaps by his conversations with the other two people in the house that evening.
I note that the complainant’s reaction before and after the event, both in court and in her victim impact statement, the fracturing of her relationship with the woman who was with her and whom she called her best friend, had a serious impact on her life. I emphasize to Mr. Kabula that he could not rely on anything either Gabriel or Jackie said to him in order to skip getting clear communicated consent from J.M. Mr. Kabula seemed not to even consider the use of a condom after just having sex with J.M.’s friend, someone he did not know well. The unprotected sex in today’s society with concerns of STDs, AIDS and, of course, always unwanted pregnancy, is hard to understand as a rational decision.
As I indicated, clearly this offence had a significant impact on J.M. Her victim impact statement was written out and read by her over the phone to this court as a result of the Covid 19 pandemic and is part of the record. She related how she had concerns about trusting people and friends and potential sexual partners as a result of this incident. She emphasized she would never have agreed to multiple partners. She was particularly concerned because of her knowledge of her friend’s promiscuity and said she would never have consented to having sex with someone who had just had sex with her friend.
It was clear in her victim impact statement that she was deeply impacted by losing her best friend who, she said, stole her rent money and some clothes from her.
She lost her apartment and it spiraled into a period of drug use, homelessness and alcoholism, which she indicated she has returned from and has been able to turn her life around.
The Crown’s position on sentencing is that this is a major sexual offence and urges a range of the sentence, the lowest point of which is three years and urges acceptance by this court of the starting point philosophy that the Alberta Court of Appeal has set out.
The defence relies on the Ontario Court of Appeal’s decision in McKenzie as well as the basic principles of sentencing and suggests a range of six to nine months.
It is helpful to review the basic principles of sentencing. I was referred to the decision of R. v. J.S., [2017] O.J. No. 2495 and it contains a summary of the events in that case which were entirely different from the events here. However, it contains a good summary of the principles of sentencing. The Criminal Code sets out:
“The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
a) to denounce unlawful conduct ...;
b) to deter the offender and other persons from committing offences;
c) to separate offenders from society, where necessary;
d) to assist in rehabilitating offenders;
e) to provide reparation for harm done to victims or to the community; and
f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community.”
Paragraph 15 of the J.S. decision notes:
“Denunciation is important to reflect society’s condemnation of certain conduct by punishing those who disobey society’s basic values. Deterrence is important to deter the offender in question and to deter others who commit such offences. Denunciation and general deterrence are the overriding principles of sentencing to be applied in cases of sexual assault, assault causing bodily harm and forcible confinement.”
Continuing with that case:
“However, as Chief Justice Lamer noted in R. v. M.(C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500:
Sentencing is an individualized process and the search for a single appropriate sentence for a similar offender in a similar crime will frequently be a fruitless exercise or academic abstraction. As well, sentences for particular offences should be expected to vary to some degree across various communities and regions in this country, as the “just and appropriate” mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred.”
Also in the J.S. decision at paragraph 24 Justice Gorman noted the court in Sandercock had quoted with approval the description in that case, 1985 ABCA 218, 1985 62 AR 382 paragraphs 15 and 16. It is useful here where the Crown is asking that this case be treated as a major sexual assault.
“The key, then, to a major sexual assault is the evident blameworthiness of the offender, which was described as ‘... contemptuous disregard for the feelings and personal integrity of the victim’.”
Continuing in that paragraph:
“It is sometimes said that we live in a sexually permissive era, the age of the liberated libido. Many believe that gratification of sexual desire by almost any means is not only normal, but “healthy”.
This attitude, unsurprisingly, has led to some confusion, and the belief by some that society also permits the use of others as objects of sexual gratification. It does not, and denunciatory sentences are needed to reinforce the point.”
Paragraph 16:
“The other aspect which creates a major sexual assault is the effect on the victim. Notwithstanding statements in some authorities to the contrary, the tradition is to assume, in the case of a rape, for example, that the victim has suffered notable psychological or emotional harm aside entirely from any physical injury. Of course, once this assumption is brought into question, the Crown must prove it. Nevertheless, harm generally is inferred from the vary nature of the assault. This harm includes not just the haunting fear of another attack, the painful struggle with the feeling that somehow the victim is to blame, and the sense of violation or outrage, but also a lingering sense of powerlessness. What we mean by this last is that, while we are all aware in an intellectual way about the fragility of normal existence, to experience a sudden and real threat to one’s well-being, a threat so intense that one must beg to be spared, tends to destroy that sense of personal security which modern society strives to offer and humanity so obviously wants.”
I can note, as I quoted from the J.S. case, that Justice Gorman was dealing with multiple counts, including break and enter and aggravated sexual assault. She noted at paragraph 19 of her decision that the incident was “exceptionally violent.” The incident occurred within the sanctity of the victim’s home. The relationship between the offender and the victim made these offences clear breaches of trust and the unlawful confinement lasted several hours. In addition, Mr. J.S. had a lengthy criminal record.
The principles of sentencing require that I look at mitigating and aggravating circumstances which may exist here.
In mitigation, Mr. Kabula is a youthful first offender and as indicated in the pre-sentence report, he is single. He was born on July 27th, 1996. At the time of the offence he was 21 and is now 24. He had a trial and cannot rely on the mitigating aspect of an early plea or any plea which would have saved the victim from testifying. He essentially relied on his mistaken belief in consent and denies that there was no communicated consent. At the time of the event, he quickly reacted to Ms. J.M.’s upset at him having penetrated her and was immediately apologetic and got off of her. His estimate was a few seconds of sexual conduct, perhaps, as he said, “five strokes.” I concluded he was talking perhaps 20 seconds or less.
His alcohol consumption clearly was a factor in his very wrong assumptions and ignoring what, clearly, a rational and sober person should have done; to confirm who he was, why he was there and not to presume those things that he presumed.
In terms of aggravating factors, I do find that the actus reus of this offence was that he did not seek communicated consent. In addition, it is aggravating that in these circumstances no condom was discussed or used, and that clearly has had an effect on the victim.
In terms of the law, as indicated in Sandercock, there are strong reasons to have a classification of major sexual assault. However, as set out in R. v. Glassford in 1988 by the Supreme Court of Canada, there has not been a national acceptance of a starting point in major sexual assaults or even an agreed definition as to what is a major sexual assault. As recently as this year in R. v. Friesen, 2020 SCC 9, a national starting point for a sentencing range for offences of sexual assault against children was found not to be appropriate and the court said one should not be created. Clearly, that is the Supreme Court’s position for children and it should apply to a case such as this with adults.
The Supreme Court’s position is set out in R. v. Lacasse 2015 SCC 64. It sets out there is a broad discretion to trial judges and that there needs to be a balancing of moral blameworthiness of a particular sexual assault, that previous cases should not be used as averages or straightjackets and rehabilitation remains a strong principle. I find that is particularly appropriate for youthful first offenders.
I have concluded that Mr. Kabula’s moral blameworthiness in this particular case is significantly lower than in most of the precedents that I have sought out of major sexual assaults involving penetration.
In a case in this jurisdiction presided over by my colleague, Justice Pomerance in R. v. I.R. 2014 ONSC 4086, the unusual facts, included that the offence was before the court some 11 years after it had occurred. The events involved an accused, being 17 at the time, living with his girlfriend who had a young daughter who was between three and five years of age at the time of the offence. I.R. and his girlfriend engaged in experimental sexual behaviour including sexual acts involving defecation. The offence involved defecation on the face of the child which, quite appropriately, Justice Pomerance found to be a major sexual assault. But the offender, given his age at the time, was treated as a youth and was given a 12-month custodial sentence, eight in a secure custody and four in open custody.
In R. v. Lupi 2019 ONSC 3713, Justice G. Roberts in the Superior Court of Justice dealt with a case where there was consensual sex agreed to with a condom. The evidence was that at a point in the sexual interaction, the condom was taken off, which resulted in a somewhat brief period of unprotected sex. Justice Roberts was dealing with this as a summary conviction appeal and she indicated at paragraph 41 of the decision:
“There is no basis to intervene in the trial judge’s broad discretion to craft a fit sentence in the circumstances of this offence and this offender.
The 15-month sentence imposed is within the range suggested by counsel (18 months by the Crown and 90 days intermittent or six months conditional by defence counsel). It is below the range for a major sexual assault involving penetration (the very bottom of which is generally two years – see e.g. R. v. S.A. (2014) ONCA 266). It cannot be said to be manifestly unreasonable. I note that Mr. Hutchison was sentenced to 18 months.”
Hutchinson, in the Supreme Court of Canada, counsel will know, involved consensual sex with a condom that had been pierced. Mr. Hutchinson wanted to impregnate his partner. She goes on at paragraph 43 to say:
“The trial judge recognized that Mr. Lupi’s decision to take off the condom was what vitiated consent and gave rise to the sexual assault, but concluded it was also an aggravating feature of the case. It was open for him to do so. The actus reus
lay in Ms. V’s lack of consent in the circumstances. The failure to use a condom, and all the potential harm that brings, both physical and psychological, is a well-established aggravating fact in sexual assault cases.
Even if the trial judge erred in principle in considering the absence of a condom as aggravating in the particular circumstances of this case, there is no nexus between this and the sentence imposed such that the sentence imposed is unfit.”
She relies on R. v. DiBenedetto 2019 ONCA 496.
It is noted in that case that Mr. Lupi was a first offender and the trial judge explicitly noted that he was an architect who had lived and worked in Canada in the last 10 years and was steadily employed. A criminal conviction had made him permanently inadmissible and could cause him to be deported.
I note on the facts of this case (and trying to find a balance in these circumstances is a difficult one), but in looking at his moral blameworthiness, I do not conclude that Mr. Kabula consciously set out to have intercourse against the consent of the complainant. I note, she was apparently, by her own evidence, not intoxicated to any extent to affect her ability to consent or to remember the events. I know he wasn’t aware of her deafness in one ear, but he didn’t know about her lack of consent or consider her friend’s promiscuity, or her deafness or that she didn’t know it was him because he didn’t ask. He didn’t seek her consent. In his self-intoxicated state, he decided to go ahead and have sexual intercourse.
In a case relied on by the defence, R. v. McKenzie, the facts included circumstances arguably more frightening and they are certainly more serious. In using those words “more serious”, I recognize the potential of misuse of comparing case to case. But noting the facts, I can say that it was forced partial anal penetration in a cubicle in a bathroom at a club that lasted either 20 or 30 seconds or 20 to 35 seconds.
In the McKenzie case at paragraph 23, the court again emphasizes every case of sexual assault is unique and must be decided on a balance of the circumstances, the aggravating and mitigating factors, the conditions at the time of the offence and the personal conditions of the accused.
In all of the circumstances, and you can stand up, Mr. Kabula, I am sentencing you to a period of incarceration of one year and a period of probation, about which I will hear from your counsel and the Crown before I impose your sentence, as well as ancillary orders for which I will also hear input from the Crown and defence. You can have a seat.
I have noted there are no immigration circumstances here but that because of the accused’s current location in Ottawa, he would be, in all likelihood, at least for some period of time, incarcerated away from his occupation and home.
As to the term of probation, I am considering a one-year period where he reports to a probation officer. The following terms are recommended in the pre-sentence report:
You must attend and actively participate in counselling or rehabilitative programs as recommended by your probation officer;
You are not to associate, contact, or communicate directly or indirectly by physical, electronic or other means with J.M.;
You are not to attend within 500 metres of any place of employment, residence or education of J.M.;
You are not to enter any establishment where the primary source of revenue is derived from the sale of alcohol. This term does not appear to be a problem for him.
As recommended in the pre-sentence report, counselling will include addressing the trauma from his youth for which he has not had assistance.
Are there any comments on that proposed probation period, first of all, on behalf of the defence, Mr. Weber?
MR. WEBER: I was listening carefully to the proposed conditions and those seem appropriate from my standpoint. Thank you.
THE COURT: Mr. Lall?
MR. LALL: The conditions make sense, Your Honour. Thank you.
THE COURT: All right. In terms of the ancillary orders, is there an agreement as to the appropriate ancillary orders?
MR. LALL: I’d suggest – well, first of all, the s.109 order for a period of 10 years. DNA is primary for this offence and due to the Crown election, the SOIRA would be for 20 years, Your Honour. I think those are all the ancillary orders that would be appropriate here.
MR. WEBER: I agree with that, Your Honour.
THE COURT: All right. So in addition to the period of incarceration and probation, sir, you will be subject to a s.109 weapons prohibition order as set out in s.109: not to possess any weapons as defined in the Criminal Code for a period of 10 years. Today, you will be subject to giving a sample of your DNA, I believe by mouth. I am required by the nature of this offence to have you subject to the Sexual Offender Registry for a period of 20 years. Is there anything else, counsel?
MR. LALL: No thanks.
THE COURT: Sir, you are to go now into custody
and you will be processed. You will also, at some point, have to talk to a probation officer. I know from what you have said that you have taken this matter seriously. I hope you continue to reflect on what happened here. Your rehabilitation is likely, given what I have read in this pre-sentence report. I should mention I took into account the positive letters of your family and friends who have known you as to your personality. Society is best protected from criminality when offenders are rehabilitated and no longer pose a threat to Society. I wish you the best of luck in that and in your future. I hope that the courts will not see you before them again.
EXHIBIT NUMBER 4 – Memo to Justice Partner – produced and marked.
THE COURT: So you will be on probation after you have served your sentence and within 48 hours of that you are to report to a probation officer where you are residing. All right, anything else?
MR. LALL: Thanks.
THE COURT: Thank you.
FORM 2
Certificate of Transcript
Evidence Act, subsection 5(2)
I, Agnes Dickson, certify that this document is a true and accurate transcript of the recording of H.M.Q. v. Jerry Kabula, in the Superior Court of Justice, held at 245 Windsor Avenue, Windsor, Ontario, taken from DRD recording number 0899-245-CRTRM1-20201102-092710-10-CAREYT, as certified in Form one.
November 23, 2020 “Agnes Dickson”
Date Agnes Dickson
Authorized Court Transcriptionist