Her Majesty the Queen v. J.R.G., 2020 ONSC 7074

ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-18-1300

DATE: 2020 11 18

B E T W E E N:

HER MAJESTY THE QUEEN

Robin Prihar, for the Crown

• and –

J.R.G.

Andrew Edgar, Counsel for the Accused

REASONS FOR SENTENCE

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of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner.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.

D.E. HARRIS J.

BACKGROUND

1These are sentencing reasons for J.R.G. Mr. R.G. pled guilty to sexual interference against A.B.H. committed June 2, 2017 (count 2 of the indictment) and to two counts of breach of his bail condition not to have contact with the complainant committed August 15, 2017 (count 6) and August 9-15, 2017 (count 7). He pled not guilty to several other counts including threatening death and one count each of sexual assault and sexual interference allegedly committed August 15, 2017.

2With respect to the sexual interference, consent was not an element of the offence by reason of the five year plus age difference between the accused and the complainant (Section 150.1(2.1) of the Criminal Code). The complainant was 14 years old, the accused was 19 years old. A Gardiner hearing ensued with the Crown alleging that the sexual interference committed June 2, 2017 was without the complainant’s actual consent. Ultimately, I found that the complainant, having the capacity to consent, did not in fact do so: R. v. J.R.G, 2020 ONSC 841 (Ont.S.C.J.).

3With respect to the other counts, it was held that although it had been proved beyond a reasonable doubt that Mr. R.G. did threaten Ms. B.H. at the bus stop after the sexual interference on June 2, 2017, saying that he would put “a cap in everyone’s ass,” the particularization of this as a threat against Ms. B.H. was not proven beyond a reasonable doubt. An acquittal was entered but this circumstance can be considered as an aggravating circumstance on sentence. Mr. R.G. was also acquitted of the sexual assault and sexual interference allegedly committed on August 15, 2017, as the sexual nature of this act was not proven beyond a reasonable doubt.

4The Crown is asking for a sentence of 4 years for the sexual interference and 6 months consecutive for the bail breaches. The defence recommends a total sentence in the maximum reformatory range.

THE GRAVITY OF THE OFFENCE

5In its intent and violation of the autonomy, dignity, self-identity and sexual integrity of the victim, this was a very serious sexual offence: see R v Friesen, 2020 SCC 9, [2019] S,C.J. No. 100 (S.C.C.) at paras. 50-51. The evidence is fully summarized in the Gardiner hearing reasons. The complainant and accused were good friends They bonded over the tragic death of a mutual friend and became close. Ms. B.H. would go over to the accused’s apartment to talk about the tragedy and to play video games. Her mother did not like the offender and did not want her daughter associating with him. Ms. B.H. would lie to her mother about where she was going when she visited Mr. R.G.

6The two had been friends for about a year. On June 2, 2017, the complainant went over to the offender’s apartment. He had said that he had something to show her from their deceased friend. Once she got there, it turned out that the offender had two items that Ms. B.H. had not only seen before but had previously been in her possession.

7After playing videogames, Mr. R.G. turned off the light in the bedroom and started kissing Ms. B.H.’s neck. She told him not to touch her. He then started laughing and pinned her down. He said that he knew that she loved him. The accused then removed her pants and underwear. He removed his shorts but left his shirt on.

8He then inserted his penis into her vagina. She was on her left side and he was behind her. He was wearing a condom. After about five minutes of intercourse, he removed his penis and took off the condom. He put his penis back into her. Intercourse continued for about 15 minutes. He ejaculated. During the rape, she told him to stop on several occasions. Mr. R.G. said that she did not know who she was dealing with.

9He had a shower. She told him that she needed to catch her bus but he told her that she was not going anywhere. He shut the door. Eventually she was able to convince him to leave with her. When they were at the bus stop, he said that if anyone found out, he was going to come and “put a cap in everyone’s ass.” This frightened Ms. B.H.

10They took the bus to Bramalea City Centre and spent some time there. Ms. B.H. tried to walk away from him but he kept following her. She ignored him. He took her phone from her but she was able to get it back. She called Damian, a friend of her sisters, who was nearby the mall at a skatepark in Chinguacousy Park. Damian walked her home.

11Damian testified that when he saw Ms. B.H. at the skate park, she was uneasy and "physically distraught." When they arrived at Ms. B.H.'s house at about 11:30 p.m., her mother, J.H., testified that her daughter appeared quiet, scared, and crying. Normally, Ms. B.H. would argue about being late for curfew but she did not this time.

12There are prominent aggravating features from this sexual interference offence against Ms. B.H. There was full intercourse for a prolonged period of time, much of it unprotected, and then the ejaculating inside of her, there was evidence that she developed chlamydia, but it could not be proven definitively that the offender was the cause of it. The effect on Ms. B.H. is evident from her distraught condition in the aftermath of the offence. In terms of the physical invasion of her autonomy and right to control her own body, this sexual violation was towards the most serious level: Friesen at paras. 138-139.

The Relationship Between the Offender and the Complainant

13The prior relationship is another major aggravating feature. In my view there was a trust relationship within Section 718.2(a)(iii) of the Criminal Code. This is based on the difference in ages between the two, the closeness of their relationship and the fact that Ms. B.H. looked up to Mr. R.G.. In Friesen, the Chief Justice said,

125 We also wish to offer some comments on the factor of the abuse of a position of trust (Criminal Code, s. 718.2(a)(iii)). Trust relationships arise in varied circumstances and should not all be treated alike (see R. v. Aird, 2013 ONCA 447, 307 O.A.C. 183, at para. 27). Instead, it makes sense to refer to a "spectrum" of positions of trust (see R. v. R.B., 2017 ONCA 74, at para. 21)…

126 Any breach of trust is likely to increase the harm to the victim and thus the gravity of the offence. As Saunders J.A. reasoned in D.R.W., the focus in such cases should be on "the extent to which [the] relationship [of trust] was violated" (para. 41). The spectrum of relationships of trust is relevant to determining the degree of harm. A child will likely suffer more harm from sexual violence where there is a closer relationship and a higher degree of trust between the child and the offender (see R. v. J.R. (1997), 1997 CanLII 14665 (NL CA), 157 Nfld. & P.E.I.R. 246 (N.L.C.A.), at paras. 14 and 18). This is likely to be the case in what might be described as classic breach of trust situations, such as those involving family members, caregivers, teachers, and doctors, to mention a few.

14This approach is supported by R. v. Woodward, 2011 ONCA 610, [2011] O.J. No. 4216. (Ont. C.A.) where Moldaver J.A. (as he then was), in responding to a submission that the trial judge had erred in finding a trust relationship where the young complainant had been groomed and then sexually assaulted by the adult accused, said,

41 … In using the term "trust" to describe the relationship in this case, I do not agree that trial judge had in mind the traditional trust relationship as described in D.D. The trial judge fully understood that the relationship between the appellant and the complainant was not the classic "position of trust" situation.

15The case here was also not a classic or traditional breach of trust situation. In my view, it was nonetheless a breach of trust, albeit towards the lower end of the spectrum. The treatment of the provision in Friesen and the spectrum of breach of trust it describes demonstrates that a purposive interpretation of the provision is appropriate: R. v. Stipo, 2019 ONCA 3, 144 O.R. (3d) 145 (Ont. C.A.) at paras. 175-177. It ought to be construed broadly and not confined to traditional breach of trust situations. Interpreting the provision in this way avoids the necessity for a judge to determine whether a relatively low-level trust relationship falls inside or outside the Criminal Code provision. Better to have the provision govern all breaches of trust and leave it to the trial judge to situate it on the spectrum. That appears to be the approach the Court took in Friesen.

16Based on this understanding, there was a trust relationship here too. These two were friends. She was much younger than he was. She was 14, he was 19. That she was under 18 years old is also a statutory aggravating factor: Section 718.2(a)(ii.1). There was a stark imbalance of power between them. It was his apartment. He falsely lured her there by saying he had something to show her from their deceased friend. It was a ruse. She looked up to him. He is a large powerful man; she is a relatively small person, far overshadowed. In the circumstances, there was an element of trust present.

17Rather than her friend, as he portrayed himself, he exploited her for his own nefarious purposes. The exploitation of their friendship aggravated this crime. It aggravated the wrongfulness of the sexual interference, taking advantage of and victimizing a friend. At the same time, it significantly increased the pernicious impact on Ms, B.H. It is much more difficult to comprehend and heal from harm caused by a friend than caused by a stranger.

The Motivation for the Crime

18There is no obvious reason why Mr. R.G., a friend of some standing, all of a sudden decided that he would force sexual intercourse upon Ms. B.H. There did not appear to be any precursor for this act of aggression in the trial evidence. Of course, a trial judge does not hear all the background behind this kind of criminal offence. In trying to determine why it happened, there are some clues provided by the threats made to Ms. B.H. During the forced intercourse, when told to stop, he told Ms. B.H. that she did not know who she was dealing with. The laughing implies a sadistic aspect. There was a threatening, menacing tone throughout. Afterwards he threatened to kill “everyone” if Ms. B.H. told anyone.

19A sexual crime of this nature is an act of domination first and foremost. The forced sexual intercourse was the ultimate act of subjugation. The threats were part and parcel of it. This was a violent, deplorable act for the purposes of domination and sexual self-gratification. What she felt, who she was, was quite irrelevant to Mr. R.G. Sexual objectification strikes at the heart of individual identity and feelings of self-worth. In this case, a prolonged remorseless act of forced intercourse, it was an emphatic denial of her very being. Judicial experience and basic logic demonstrate that a sexual offence like this leaves profound and long-lasting scars on a 14-year-old victim: Friesen at para. 89.

20This offence also demonstrates the “ripple effect” referred to in Friesen at para. 61. A sexual crime on a young person can harm their other social relationships. A 14-year-old girl in the midst of adolescence is trying to find her way in the world and preparing to begin the long and difficult transition to adulthood. A sexual assault ruptures their self-confidence and sense of self-worth at a formative stage in their lives.

The Harm to Ms. B.H. and Her Family

21The Supreme Court in Friesen at paras. 79-86 recognized the importance of harm, long a major circumstance in the sentencing for sexual crimes. Parliament has made it a serious offence punishable by a maximum of 14 year in jail to have sexual contact with a person under 16 years of age whether they ostensibly consent or not. The intention is to protect children and adolescents.

22The actual harm caused is a “key determinant” of the gravity of the crime: Friesen at para. 85. My perception of Ms. B.H. was that she was a fragile person despite the admirable strength and resilience she displayed on the witness stand. This attack at such a young age in light of her vulnerabilities had major repercussions for her.

23Both Ms. B.H. and her mother filed victim impact statements which depicted the harm caused by Mr. R.G.’s sexual offence. Ms. B.H. said that the offender was at the heart of the group mourning their deceased friend. She trusted him and thought he was looking out for her. The offence has led to trust issues outside her immediate family. She has an individual learning plan at school. There were negative social consequences as well and a feeling that people only identified her as the woman who claimed that she had been raped. In my experience, this is a part of the damage to self-identity often brought about by sexual offences. “Victimhood” is a label that complainants carry around for some time and, in their eyes, it may risk coming to define them.

24Ms. B.H. felt stigmatized at school by the offender’s family and friends. There was considerable harassment from the offender in the aftermath of the offence as evidenced by the breach of recognizance allegations dating from August, 2017. Ms. B.H. changed her phone numbers and for a time stopped going to school. Both she and her mother felt that there were cars watching their house. Their accounts may well be accurate, although of course it is not something I can find the offender is responsible for. If there are people who are engaged in that sort of activity, it is a most serious matter. Criminal harassment is a criminal offence under Section 264 of the Criminal Code which would lead to very stern sanctions in this instance.

25Ms. B.H.’s mother, J.H., in her victim impact statement, expressed sorrow and hurt for all her daughter has gone through. There were sleepless nights of worry. The ordeal has caused her stress and the inability to work. She describes her daughter’s panic attacks of which there was some evidence at trial. Ms. J.H. had prohibited her daughter from seeing Mr. R.G. but she had gone ahead despite this. One has to feel for Ms. H. when she says that she tried everything in her power to protect her but ultimately could not do so. When her daughter was friendly with the offender, Ms. H. says that the fear that she would lose her and Mr. R.G. would take her away to Montreal made life a “living hell.” She did not feel safe until his bail order prohibited him from living in Peel Region. The fear of him still haunts her.

The Degree of the Offender’s Responsibility

26I believe that Mr. R.G. must have known to some substantial degree the harm he was inflicting on Ms. B.H. when he raped her. He knew her quite well. He knew she was 14 years old, he knew that she was wrestling with various emotions in the aftermath of the sudden death of their mutual friend. I believe that the fragility I saw on the Section 715.1 video and then a few years later on the witness stand would have been obvious on some level to Mr. R.G. on that day in June, 2017. It may very well have been that a sense of her very vulnerability is what led Mr. R.G. to his cowardly attack on her. These are aggravating factors: Friesen at para. 88.

27To sum up with respect to the gravity of the offence and the responsibility of the offender, great harm was caused by this attack on Ms. B.H. It was a betrayal of the trust she had in him. He knew that she was fragile, vulnerable and either knew or ought to have known that the psychological injury from the forced sexual intercourse would be severe and long-lasting.

28The principal feature of this crime was its cruelty. It was cold and sadistic. It may have been that the entire friendship he cultivated with her was false and that he always intended this type of attack. That made it all the more difficult for Ms. B.H. to contend with.

THE OFFENDER

29Mr. R.G. is now 23 years old. He has no prior criminal record. His presentence report was positive. His childhood was not easy. His mother and father were married for 12 years but they divorced when Mr. R.G. was three years old. His father abused his mother and drank to excess. He physically disciplined his children. Mr. R.G. lived between his mother and father’s homes while growing up. He and his brother were not well-treated by his stepmother while at his father’s home. They were locked out of the home several times.

30Mr. R.G. finished high school in 2017. He had difficulty in school and was in a class that allowed him to learn at a slower pace. Since high school, he has worked periodically as a landscaper, labourer and in a warehouse. He is very focussed on his future and wants to become a carpenter. The pre-sentence author felt that Mr. R.G. had matured since the time of the offences.

31Mr. R.G. said that he smokes marijuana regularly to relax and destress. He said that he smokes one ounce of marijuana a week. On any scale, this is a very large amount. It demonstrates a significant substance abuse problem. If he was smoking this amount at the time of the offence, upon which there was no evidence, this might have led to boundary issues which could well have contributed to the sexual interference offence.

32Mr. R.G. has had some counselling with respect to the offence and his life in general. There were four one on one sessions soon after the offence and the breaches in September of 2017, and two in September of 2018. There have been about four more sessions this past summer although those have been more about his plans for the future than the offence itself.

33Mr. R.G. pled guilty to the sexual interference count and the two breach of recognizance offences. The law gives him some credit for those guilty pleas. He also expressed remorse to the pre-sentence report author and in his elocution at the end of the sentencing submissions. In his elocution, he said he took full responsibility for his actions and apologized to Ms. B.H. and her family.

34Mr. R.G. is close to his mother and feels well-supported by her. Positive letters were filed from his mother, sister and the woman with whom he parents their young baby. Since the time of the breaches in August of 2017, Mr. R.G. has been living with his sister, who acts as surety for him, in Fort McMurray Alberta.

35It is often difficult for a trial judge to evaluate remorse with any degree of certainty after a trial. Despite apologies and a guilty plea, even one with limited effect as was the case here, the strong incentive to apologize to a judge who is eventually going to impose sentence, the frequent immersion in self-pity and the non-evidentiary nature of the expressions of remorse makes illusive what is genuine and what is not. In this case, I do not get the feeling that Mr. R.G. has fully taken responsibility for the crime. There remains some defiance, resentment and blame against the complainant. However, at the same time, in light of the pre-sentence report and the expressions of remorse, I do believe that there is some degree of remorse and understanding of the pain and damage he has caused. With respect to rehabilitation, again, I believe the prospects are reasonably good. It is my impression that this type of offence will not re-occur, although it is notoriously difficult to predict future behavior. These matters are particularly difficult to evaluate in a case like this where it is unclear what in his psychological make-up led to Mr. R.G.’s commission of the offence.

36Mr. R.G.’s intense focus and planning for his future is heartening. A critical factor on sentence is that Mr. R.G. is a youthful first offender and that deterrence and denunciation are consequently of diminished weight: see R. v. Priest (1996), 1996 CanLII 1381 (ON CA), 30 O.R. (3d) 538 (C.A.), at paras. 17-22; R. v. Borde (2003), 2003 CanLII 4187 (ON CA), 63 O.R. (3d) 417 (C.A.), at para. 36; R. v. Brown, 2015 ONCA 361, [2015] O.J. No. 2655 at para. 2-5; R. v. Thurairajah, 2008 ONCA 91, [2008] O.J. No. 460, at paras. 41-44; R. v. Randhawa, 2020 ONCA 668 (Ont. C.A.) at para. 30.

CONCLUSION

37Nonetheless, with an offence of this nature and seriousness, denunciation and deterrence are the key sentencing principles. In the context of a youthful first offender, Justice Doherty wrote in Thurairajah,

42 The emphasis to be placed on denunciation and to a lesser extent general deterrence, grows with the seriousness of the particular circumstances surrounding the sexual assault for which an accused, even a young accused, is being sentenced

38Both counsel relied on sentences in other cases which they say supported their positions. Ms. Prihar pointed to R. v. R.V., 2019 ONCA 834, [2019] O.J. No. 5293 (Ont.C.A.) where the court said the range articulated by the trial judge of three to five years was appropriate. They upheld a 4 year sentence for contact “akin to sexual intercourse.” The complainant became pregnant, a highly aggravating feature absent from our case. The offender was 20 years old and the complainant, his cousin, was 15 years old.

39The other case Ms. Prihar relied on is R. v. Audet, 2020 ONSC 5039, [2020] O.J. No. 3554 (Ont.S.C.). Mr. Audet was 25 years old and the complainant was 15. He had a criminal record. Unlike our case, he used a condom. In a particularly helpful part of the judgment, Justice Smith canvassed other cases in the sexual interference area (see paras. 24-33). He cited R. v. M.M., 2017 ONSC 1829, [2017] O.J. No. 1523 (Ont.S.C.J.) where Justice Molloy stated that the general range was three to five years. Mr. Audet was sentenced to four years. I have also taken into account the facts and sentence imposed in R. v. J.M., 2018 ONSC 2829 (Ont. S.C.J.).

40Mr. Edgar relied on R. v. Lamure, 2019 ONSC 2144, [2019] O.J. No. 1693 (Ont.S.C.) in which the offender was sentenced to 2 years. The offender was 20 years old at the time of the offence and the complainant was 17 years old. The trial judge articulated a range of between two and three years. That does not agree with the range articulated in either R.V. or Audet. The victim in that case was 17, not 14 like Ms. B.H. That three years from 14 to 17 demark quite a different stage in the life of a young woman. Mr. Edgar also referred to a case of mine that resulted in an effective total sentence of 19 months: R v. H.L. 2018 CarswellOnt 2217, 2018 ONSC 1026, 145 W.C.B. (2d) 398 (Ont.S.C.), aff’d 2018 ONCA 823 (Ont. C.A.). That was a unique case and in my view has no precedential value in relation to the current sentencing problem.

41I do not intend to go deeply into comparing the decisions to which I was referred to here. The factual variations are simply too diverse to permit a useful comparison although a study of the cases is helpful in gaining a general sense of the correct range. As a very general concept, I agree that three to five years is the best one can do in terms of articulating a general range.

42In formulating a fit and appropriate sentence, I take into account the three years plus that it has taken to get this matter to resolution. I also consider that Mr. R.G. has been on bail for this entire time and most of the time, has been living with his sister in Fort McMurray, a substantial hardship. But it should be pointed out that this only became necessary after Mr. R.G. breached his bail by having contact with Ms. B.H. and was required to live outside of Peel. I also incorporate the general observation that there is likely more hardship serving jail time in the time of COVID then there was heretofore. I also have considered totality between the sexual interference offence and the bail breaches

43The two year less one day position of defence counsel in my view would be an unreasonable sentence given the gravity of this crime and the heavy responsibility of the offender. On the other hand, the Crown’s position of a total of four and a half years would be appropriate for an adult but fails to give proper weight to Mr. R.G. as a youthful first offender who has expressed some degree of remorse and has reasonable rehabilitative potential.

44Standing back, the main driver of this sentence is the cruelty and highly invasive and exploitative nature of the forced sexual intercourse together with the major harm caused to the 14-year-old complainant and her family. This is harm that Mr. R.G. ought to have anticipated being caused by his sexual aggression. In my view, taking everything into account, the appropriate sentence is three and a half years in the penitentiary. I would also sentence Mr. R.G. to four months on each of the breaches, concurrent to each other and count 7 concurrent with the sexual interference count but count 6 being consecutive to the sexual interference. In context, particularly the August 15 incident in which Mr. R.G. accosted Ms. B.H. in the park, this was a serious breach and was very frightening to her and her family. Her mother and Ms. Hogarth’s descriptions of Ms. B.H.’s panic attacks that day, when she was having difficulty breathing, is harrowing. The breaches led the family to feel that they were being stalked by the offender, accentuating the harm caused by the sexual interference.

45The total sentence then is 46 months. Mr. R.G. served 32 days in pre-trial custody. With credit, I will consider it to be 60 days, rounding it up. These two months will be subtracted from the 46 months to arrive at a final sentence of 44 months or 3 years and 8 months.

46In terms of ancillary orders, there will be a DNA databank order, a Section 109 weapons prohibition for 10 years and a SOIRA order for 20 years. While in custody, Mr. R.G. will be prohibited from contacting the complainant or her family under Section 743.21 of the Criminal Code. With the agreement of both counsel, the victim surcharge is waived.

47The indictment will be endorsed accordingly.

D.E.Harris J.