ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-18-53
DATE: 2020/12/11
B E T W E E N:
HER MAJESTY THE QUEEN
M. Mazursky, for the Crown
Crown
- and -
JAMES LARRY BOUCHER
G. Clark, for the Accused
Accused
HEARD: November 4, 2019 and November 30, 2020
PUBLICATION RESTRICTION NOTICE
Pursuant to s. 486.4 of the Criminal Code, no information that could identify a victim or witness in this case shall be published in any document or broadcast or transmitted in any way.
ellies R.S.j.
REASONS FOR DECISION ON SENTENCE
INTRODUCTION
[1] In November 2019, Mr. Boucher pleaded guilty to trafficking drugs to, threatening, assaulting, and sexually assaulting six young women.
[2] Sentencing was adjourned following Mr. Boucher’s pleas to allow for the preparation of both a Gladue and a pre-sentence report. Unfortunately, sentencing was significantly delayed because of a shortage of institutional resources and because of the COVID-19 pandemic. The reports were finally completed and sentencing submissions have now been made.
[3] Mr. Boucher has been in custody since June 2017, with the exception of a period of eight days during which he was released on bail before being re-arrested for breaching the terms of his release.
[4] The Crown seeks a penitentiary term of six to eight years, less pre-sentence custody, for a net further sentence of at least 12 to 36 months. The defence seeks a further sentence of no more than 12 more months in custody and submits that Mr. Boucher has already served enough time in jail.
[5] For the following reasons, I conclude that a further period of time in custody of 10 months, to be followed by 12 months probation, is a fit and proper sentence.
THE OFFENCES
[6] The offences all took place between February 2016 and June 2017. During that period of time, Mr. Boucher lived with his mother at two different addresses in North Bay. Their home became a gathering point for young people, particularly young women, who spent time there smoking marijuana and socializing, when they should have been in school, learning.
[7] Mr. Boucher provided the marijuana they smoked, sometimes selling it, sometimes simply sharing it. He also helped the victims obtain alcohol by phoning local delivery companies.
[8] The offences began as minor ones. The first involved B.P-H, who was 15 years old at the time. While Ms. P-H and Mr. Boucher were watching television one day, Mr. Boucher grabbed her by the wrists and forced her onto the bed. Before she managed to leave, he succeeded in grabbing her pants, as well.
[9] The severity of the offences increased dramatically from there. Towards the end of March 2016, K.S. was at Mr. Boucher’s house after arranging to get some marijuana from him. She was 18 years old at the time. She and Mr. Boucher smoked some marijuana, which Ms. S. says made her feel “frozen”. While the two of them were laying on a bed, Mr. Boucher began to kiss her. He forced her to masturbate him before pulling her pants off and forcing her to have intercourse with him. This happened not once, but three times that day.
[10] In July 2016, C.Z. was 16 years old. She went to the beach with Mr. Boucher and some friends after buying some drugs from him. At the beach, she drank a lot of alcohol and was feeling the effects of the alcohol and the drugs when she went back to Mr. Boucher’s house with him. While the two of them were sitting on Mr. Boucher’s bed, he began to penetrate her using his finger, and then proceeded to have intercourse with her despite her efforts to stop him. The sexual assault ended when a friend of Ms. Z.’s showed up at Mr. Boucher’s house.
[11] The threatening conviction involves a victim who was better known to Mr. Boucher than the others. D.D. was 15 in the fall of 2016. She had been involved in an “on again, off again” relationship with Mr. Boucher. In October or November of that year, the two of them got into an argument in public. During that argument, Mr. Boucher threatened to kill her.
[12] The remaining charges all involve further sexual assaults. In or about the month of March 2017, B.P. was smoking marijuana with Mr. Boucher at his place. He had made sexual advances to her before, but had never succeeded in making the feeling mutual. On this particular occasion, Ms. P. lost consciousness and later woke up beside Mr. Boucher to find herself wearing his sweater, and nothing else. Her abdominal area was very sore. She later discovered that her tampon had been shoved up into her vaginal cavity and was pressing on her cervix. Embarrassed, she left the residence and did not seek any medical attention. Nor did she report the incident to the police. Ms. P. was 16 at the time.
[13] A similar fate befell T. H.-S. (now H.) a few months later, in June 2017. She was 19 years old at the time, old enough to drink legally. She and some friends went out to a local bar, where she met and began to talk to Mr. Boucher. She got drunk and the two of them ended up taking a cab to his place. She recalls that Mr. Boucher forced her to touch his penis and that she explained to him that she was having her period and did not want to have sex. She does not recall anything more before waking up at what she believes was 4 or 5 in the morning to find Mr. Boucher trying to have intercourse with her. Again, she lost consciousness. Her recollection revives later that morning, when she went to the washroom to discover that her tampon, like that of Ms. P., had been shoved up inside of her. Unlike Ms. P., however, Ms. H. later sought medical attention and called the police, although, for a day or two after she called, she was also too embarrassed to tell them what happened to her.
[14] Ms. H.’s call put an end to Mr. Boucher’s string of sexual assaults.
THE OFFENDER
[15] Like his victims, Mr. Boucher was young at the time these offences occurred. He was only 20 years old at the time of his arrest.
[16] Mr. Boucher’s young life has not been an easy one. His mother and father separated when he was very young. He was their only child. Although Mr. Boucher has warm memories of him, Mr. Boucher’s father did not have much to do with him. He was just one of a long line of men who passed through Mr. Boucher’s childhood and adolescence while they were involved in brief, abusive relationships with his mother. Many of these men were involved in the drug trade.
[17] Mr. Boucher’s mother was a mother in title only. While the evidence is that she has cleaned up her act, for most of Mr. Boucher’s life she was a dysfunctional drug addict who required more parenting from her young son than she ever gave him. When he was 8 to 10 years old, Mr. Boucher watched her overdose on drugs. It is no surprise then that Mr. Boucher began to use drugs and alcohol himself at an early age. He started smoking marijuana at age 13. He and his mother were co-accused on drug trafficking charges by the time he was 14. By the time he was 15, he was using cocaine and fentanyl. The entire time that the young female victims of these offences were doing drugs and hanging out with Mr. Boucher, he was living with his mother. All of these offences happened under her watch.
[18] The Children’s Aid Society had to intervene to protect Mr. Boucher a number of times as he was growing up. On those occasions, he would go to live with his paternal grandparents who, while they loved and cared for Mr. Boucher, did not always have the room in their home to provide him with his own living space. During one such period, Mr. Boucher had to sleep in a reclining chair for months because his grandmother did not have a bed or a bedroom for him.
[19] Mr. Boucher and his mother moved frequently within the City of North Bay, making it hard for Mr. Boucher to develop any network of friends his age. By the time he was old enough to start high school, he had been to at least four different elementary schools. As well, it seems that Mr. Boucher suffered from Attention Deficit Hyper-Activity Disorder that was never properly identified or accommodated. Small wonder, then, that Mr. Boucher stopped going to high school after one semester and never went back while he was out of custody.
[20] Instead of having friends his own age, Mr. Boucher began to associate with young men in their late teens, many of whom sold and consumed drugs. By the time these offences began to occur, he himself was selling drugs to make a living.
[21] Mr. Boucher’s upbringing, if one can call it that, was hardly a springboard for model citizenry.
THE FUNDAMENT PURPOSE AND PRINCIPLE OF SENTENCING
[22] I turn now to a brief discussion of the purpose and principles of sentencing before applying those principles to the case at hand.
[23] Section 718 of the Criminal Code provides that the fundamental purpose of sentencing in every case is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful, and safe society. The Code lists a number of ways in which this goal can be achieved. The ones relevant to this case are the denunciation of criminal behaviour, the deterrence of convicted and would-be offenders, and the separation of offenders from society: s. 718(a), (b), and (c); R. v. Woodward, 2011 ONCA 610, at para. 72.
[24] The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and to the degree of responsibility of the offender: s. 718.1. This principle requires the court to consider not only the consequences of a crime, but also the moral blameworthiness of the criminal.
GRAVITY OF THE OFFENCES
[25] It is not necessary in this case to determine the appropriate range of sentence based on other cases. Given the number of offences and the long overall sentence that could be imposed, the question is not whether a sentence of time served or a further three years is outside of the appropriate range. Rather, the issue is one of determining where within this range the sentence should actually fall. This depends, in part, on the gravity of the offences.
[26] The most serious offences committed by Mr. Boucher in the circumstances of this case are the sexual assaults. For those offences, the Criminal Code provides a maximum penalty of 14 years imprisonment and a minimum penalty of 1 year where the victim is under the age of 16, as two of the victims were in this case.[^1]
[27] In July 2016, C.Z. was 16 years old. She went to the beach with Mr. Boucher and some friends after buying some drugs from him. At the beach, she drank a lot of alcohol and was feeling the effects of the alcohol and the drugs when she went back to Mr. Boucher’s house with him. While the two of them were sitting on Mr. Boucher’s bed, he began to penetrate her using his finger, and then proceeded to have intercourse with her despite her efforts to stop him. The sexual assault ended when a friend of Ms. Z.’s showed up at Mr. Boucher’s house.
[27] The incidents of forced sexual intercourse are more serious than the others because they involved physical, as well as emotional and psychological damage. However, as the Court of Appeal held not long ago in R. v. Stuckless, 2019 ONCA 504, at para. 122:
[W]hile penetration is certainly an aggravating factor and must be considered when sentencing an offender, the seriousness of the offence does not turn on the presence or absence of penetration. The court must look beyond the nature of the physical acts themselves to the interests protected by the criminalization of sexual offences, and the circumstances in which the offences were committed.
[28] It is now well accepted that any violation of a person’s sexual integrity can, and often does, result in serious, and sometimes severe, emotional and psychological harm. As I will deal with in more detail in a moment, that is true in this case.
AGGRAVATING AND MITIGATING CIRCUMSTANCES
[29] The Criminal Code provides that the severity of a sentence should reflect the aggravating and mitigating circumstances relating to the offender and the offence: s. 718.2(a). As far as possible, similar sentences should be imposed upon similar offenders in similar circumstances: s. 718.2(b).
[30] I have considered the following aggravating and mitigating circumstances here.
Aggravating Circumstances
[31] I begin with the aggravating circumstances.
Youth Record
[32] This is not Mr. Boucher’s first time in court facing a criminal conviction. He has a youth record, which is relevant because of its recency. He has no previous convictions of assault, threatening, or sexual assault. However, he does have a conviction for possessing drugs for the purpose of trafficking. This is an aggravating circumstance with respect to the trafficking offences to which he has pleaded guilty before me.
Breach of Probation
[33] In July 2015, Mr. Boucher was placed on probation for one year with respect to the trafficking conviction, and two others. Every probation order requires that the offender not commit further offences while the order is in effect. Some of these offences took place while Mr. Boucher was subject to that probation order.
[34] To make matters worse, one of the offences for which he was placed on probation was a conviction for failing to comply with the terms of a youth sentence.
Young Age of the Victims
[35] Section 718.2(ii.1) requires the court to consider the fact that the offender “abused” a person under the age of 18 years. Three of the five victims of sexual assault fall into this category.
The Impact on the Victims
[36] A similar number of victims provided the court with Victim Impact Statements under s. 722(4) of the Criminal Code. They provide proof that any violation of our sexual integrity can have devastating consequences. Even Ms. P.-H.’s life has been changed for the worse. Ms. H. puts it this way:
I would sit in the dark at work, or in some room quietly tearing up, I always tried to hide my feelings about it to my family or some friends. Even in counselling, I felt so embarrassed to tell her my story, or anyone for that matter…
I used to be so carefree and happy until this happened[. B]ecause of you, I was ashamed of my life. Because of you, I will always have a slight trust issue in males and [be] uncomfortable with human touch…
Mitigating Circumstances
[37] Against these aggravating circumstances must be balanced a number of mitigating ones.
Young Age
[38] As I said earlier, Mr. Boucher was himself a young man at the time of these offences. In the case of Ms. Hester, he was only a year older. This is a mitigating factor because it provides hope that he can be rehabilitated.
Impairment
[39] Just as the victims of the sexual assaults were impaired by drugs or alcohol at the time of these offences, so too was Mr. Boucher. This is a mitigating factor because it is well accepted that the consumption of alcohol and drugs impairs our judgment. We do things when we are under the influence of these substances that we might not do when we are sober. In the case of the victims of sexual assault, however, the fact that they were impaired required that Mr. Boucher take greater precautions to ensure that they were consenting. He did not do that.
No Premeditation
[40] Both the Crown and the author of the updated pre-sentence report suggest that there was a planned link in Mr. Boucher’s mind between the drugs he was giving the victims and the assaults he perpetrated upon them after those drugs were consumed. Mr. Boucher denies that. Where the Crown wishes to prove an aggravating circumstance such as this, it must prove the allegation beyond a reasonable doubt: s. 724(3)(e). That has not been done here. Therefore, I do not accept the suggestion that these assaults were planned by Mr. Boucher when he provided the drugs to the victims.
Gladue Factors
[41] Section 718.2(e) of the Code requires the court to consider all available sanctions other than imprisonment that are reasonable in the circumstances, particularly with respect to Aboriginal offenders. Mr. Boucher is Aboriginal. He is a registered member of the Lac Des Mille Lacs First Nation in Northwestern Ontario and is of Ojibway ancestry.
[42] In R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, and later in R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, the Supreme Court of Canada made it clear that an offender’s status as Indigenous is a factor going to moral blameworthiness and does not create a “race-based discount on sentencing”: Ipeelee, at para. 75. Because it affects moral blameworthiness, it might be considered elsewhere in my analysis. However, I prefer to address it in this part of my reasons as a mitigating factor because, in many cases, it has the effect of mitigating against what might otherwise be a harsher penalty.
[43] Gladue and Ipeelee require the court to apply a different method of analysis in determining a fit sentence for Indigenous offenders: R. v. Brown, 2020 ONCA 657, at para. 45. When sentencing an Indigenous offender, the court must consider:
(1) the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and
(2) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection (: Gladue, at para. 66)
[44] The court must take judicial notice of such things as the history of colonialism, displacement, and residential schools and the continuing effect that these efforts at eradicating Aboriginal culture have on Indigenous people in our country: Ipeelee, at para. 60. However, while courts are obliged to take judicial notice of those factors, they do not “necessarily justify a different sentence for Aboriginal offenders. Rather they provide the necessary context for understanding and evaluating the case-specific information presented by counsel”: Ipeelee, at para. 60 (emphasis in original). For an offender’s background to influence his or her ultimate sentence, the court must find that the systemic and background factors affecting Aboriginal people in Canadian society have impacted the offender’s life in a way that (1) bears on moral blameworthiness, or (2) indicates which types of sentencing objectives should be prioritized in the offender’s case: R. v. F.H.L., 2018 ONCA 83, at para. 40.
[45] I find that the Gladue factors in this case impact sentencing in both ways.
[46] Mr. Boucher’s maternal grandfather attended residential school. As an adult, he ended up suffering from alcoholism. He died at age 50. While he was alive, however, he was violent and abusive to his family. His wife, Mr. Boucher’s grandmother, fled the matrimonial home with her daughter, Mr. Boucher’s mother, when she was still a baby after the grandfather had held the child up by the hair.
[47] At some point that is not clear from the reports, Mr. Boucher’s mother settled in North Bay. She went to high school here, but it is also not clear how far she went in her education. What is clear is that she developed a drug problem serious enough to overdose when Mr. Boucher was a child. During the Crown’s submissions, and with the tacit consent of the defence, counsel advised the court that Mr. Boucher’s mother is well known in the criminal courts in North Bay. According to Mr. Boucher, his mother has now stopped using drugs. However, it would seem that her negative influence on him is not over. I am told that she attempted on two occasions to bring drugs to her son while he was in custody.
[48] Mr. Boucher has suffered the effects of racism against Indigenous people both directly and indirectly. Directly, he was teased and bullied by his school mates. Indirectly, he suffered as he watched his mother being abused and felt the effects of the senseless, racist violence that was responsible for the death of his aunt in Thunder Bay, Barbera Kentner, who was killed when someone threw a trailer hitch at her as she walked beside a roadway. As the author of the thoughtful and thorough Gladue report points out, studies show that adults who have experienced exposure to childhood trauma such as this are 4 to 12 times more likely to experience alcoholism, drug abuse, and mental health issues than are other adults.
Pleas of Guilt
[49] By pleading guilty, Mr. Boucher has spared the victims the ordeal of a trial.
[50] The value of a guilty plea varies from case to case. In cases where a conviction was anything but a foregone conclusion, its value as a mitigating circumstance is high. It has less value where conviction is all but inevitable: F.H.L., at para. 22.
[51] In this case, I believe that the guilty plea should weigh substantially in mitigation of sentence. It is true that all of the victims had to testify at the preliminary inquiry. However, it is also true that the Crown’s case suffered a substantial blow at some point before the pleas were entered. The indictment names at least eight alleged victims with respect to which the Crown decided not to proceed. I am told that the Crown’s decision had something to do with the contamination of the evidence by social media contact amongst the victims, but it is not clear whether that contact extended to the victims involved in these offences.
[52] Even if the social media contact did not affect the strength of the Crown’s case with respect to the victims involved in this sentencing, I would still give Mr. Boucher significant credit for pleading guilty. It is one thing to testify at a preliminary inquiry. It is entirely another thing to testify at trial. The objective of the defence at a preliminary inquiry is to discover the Crown’s case and to tie it down. The objective at trial is usually to destroy it.
Remorse
[53] A plea of guilt is also a sign of remorse. In addition to offering his plea, Mr. Boucher has written three letters expressing remorse, according to the updated pre-sentence report, two of which are found at tab 8 of defence exhibit 9. In a letter dated February 20, 2020, Mr. Boucher writes:
In the past 32 months I’ve come to realize that my actions affected more than just the people directly involved. I affected their families and even my family as well.
[54] And further:
I would like to apologize to the women I hurt, their families and my mother for what I’ve done. It was wrong, unjust, and immoral…
[55] In a letter dated April 29, 2020, Mr. Boucher talks about the self-destructive path he was on before being arrested and writes:
So to the people I’ve hurt, yes I sincerely and truly am sorry. But I’d also like to thank you. Thank you for being strong and having the courage to do the right thing. Because if you hadn’t, I’d probably still be the same guy I used to be or probably even dead.
[56] I accept the content of these letters as a genuine expression of remorse.
Prospects for Rehabilitation
[57] I also accept the content of the letters as a sign that Mr. Boucher can be rehabilitated. In one of them, he writes that actions speak louder than words. He has spoken by his actions.
[58] While in custody, Mr. Boucher has finished high school. He has participated in church and Native Inmate Liaison programming. He has attended Alcoholics Anonymous and Narcotics Anonymous meetings. He has also completed at least seven self-improvement courses.
[59] In his letter of February 20, Mr. Boucher writes that, even if the Crown agreed to release him at that time, he would have preferred to attend the Ontario Correctional Institute so that he could “get to the root of [his] decisions”.
Supportive Grandparents
[60] Finally, I view as a mitigating circumstance the fact that Mr. Boucher has supportive and capable paternal grandparents who have expressed their willingness to have Mr. Boucher live with them whenever he is released from custody.
A FIT SENTENCE
[61] Taking all of these things into account, I find that a fit sentence in the circumstances of this case is a global sentence at the bottom end of the range suggested by the Crown, less time spent in pre-sentence custody. Because of the amount of time Mr. Boucher has spent in pre-sentence custody, counsel agree that it is also open to me to impose a period of probation under s. 731 of the Code if the remaining time in custody is less than two years: see R. v. Mathieu, 2008 SCC 21, [2008] 1 S.C.R. 723. I would do so in this case because I believe that Mr. Boucher requires it for the purpose of continuing his rehabilitation.
[62] I turn now to the issue of credit for time served.
PRE-SENTENCE CUSTODY
[63] Mr. Boucher was arrested on June 24, 2017. He was released following a bail review on January 17, 2018. However, he was arrested again on January 25, 2018 for breaching the terms of his release order and has remained in custody since then. He was sentenced on September 25, 2018 to 15 days in custody for the breach.
[64] Subtracting those fifteen days, Mr. Boucher has spent 1260 days in custody on these offences. He recently celebrated a fourth birthday in jail awaiting sentence. He was 20 years old when he went into jail. He is 24 years old today.
[65] Counsel for Mr. Boucher has provided me with material showing that Mr. Boucher’s time in pre-sentence custody was difficult. There were many lockdowns and days without visitation. Mr. Boucher was assaulted by other inmates and suffered from pneumonia. Of course, he also suffered from the fears associated with the COVID-19 pandemic.
[66] Mr. Clark submits that the harshness of the time Mr. Boucher spent in pre-sentence custody could justify giving him enhanced credit beyond the 1.5 to 1 contemplated in R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575. However, I do not believe that is warranted in the circumstances of this case for several reasons.
[67] For one, I accept the Crown’s submission that Mr. Boucher has only himself to blame for the time he spent in custody after he breached the terms of his release. The materials provided by the defence show that more than half of the lockdown days occurred after Mr. Boucher was re-arrested. So, too, did all of the assaults, the pneumonia and, of course, COVID-19. There is also no evidence linking the pneumonia to the fact that Mr. Boucher was incarcerated.
[68] Moreover, based on the contents of his April letter, Mr. Boucher appears to have appreciated that the time he spent in pre-sentence custody helped him understand his shortcomings and he has demonstrated that it did not prevent him from taking steps to remedy those shortcomings.
[69] For these reasons, I would not give Mr. Boucher credit for pre-sentence custody at any rate greater than 1.5 to 1. Using that rate, he has spent the equivalent of 1890 days, or roughly 62 months in pre-sentence custody.
CONCLUSION
[70] Mr. Boucher, for these reasons, I sentence you to 72 months in custody, less 62 months pre-sentence custody, for a net further sentence of 10 months in custody, to be followed by probation. The sentence is broken down as follows:
(1) On count #4, involving Ms. P.-H.: 3 months in custody, consecutive to the following further sentences;
(2) On count #7, involving Ms. S.: 60 months in custody, concurrent;
(3) On count #10, the trafficking count: 3 months in custody, consecutive;
(4) On count #21, involving Ms. Z.: 60 months in custody, concurrent;
(5) On count #23, involving possession of cocaine for the purpose of trafficking: 6 months in custody, consecutive;
(6) On count #28, involving the threat to Ms. D.: 12 months probation;
(7) On count #40, involving Ms. P.: 60 months in custody, concurrent;
(8) On count #50, involving Ms. H.: 60 months in custody, concurrent.
[71] I am recommending that you serve your sentence at the Ontario Correctional Institute, which I am told is presently being operated out of Maplehurst Correctional Complex, in Milton.
[72] In addition to the standard statutory terms, which will include a term that you not communicate with Ms. D., your probation order will include terms:
(1) That you report to and be under the supervision of a probation officer;
(2) That you not communicate with any of the other victims who have been referred to in these reasons nor any of the other alleged victims referred to in the indictment, whose names shall be listed in or attached to the probation order;
(3) That you undergo such treatment as is recommended by your probation officer, with special consideration being given to the programs set out in the Gladue report; and
(4) That you abstain from possessing or consuming any substance referred to in the Controlled Drugs and Substances Act without also possessing a valid prescription for that substance.
ANCILLARY ORDERS
[73] In addition, the following ancillary orders are made:
(1) You shall provide a sample of your DNA with respect to the primary and secondary designated offences of which you have been convicted;
(2) You shall be registered under the Sex Offender Information Registration Act for life; and
(3) You shall not communicate while in custody with any of the victims or alleged victims referred to in the indictment.
[74] It is my hope, Mr. Boucher, that you meant what you wrote in your letters about wanting to improve yourself and that you will continue the efforts you have made to do so.
M.G. Ellies R.S.J.
Released: December 11, 2020
COURT FILE NO.: CR-18-53
DATE: 2020/12/11
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
JAMES BOUCHER
REASONS FOR decision on sentence
Ellies R.S.J.
Released: December 11, 2020
[^1]: While the minimum mandatory penalty has been struck down as unconstitutional in some provinces, it has not yet been struck down in Ontario: R. v. John, 2020 ONSC 5171, at para. 2.