COURT FILE NO.: CR-20-115
DATE: 2021 05 10
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
S. Yu, for the Crown
– and –
OMAR INSHANALLY
C. Maciel, for Mr. Inshanally
HEARD: April 15, 2021
REASONS FOR SENTENCE
J.M. Woollcombe J.
Overview
[1] After a four-day trial, on February 12, 2021, I found Omar Inshanally guilty of four counts of sexual assault, one count of assault and one count of forcible confinement. All of the charges were in relation to the same complainant, D.H. This matter is before me for the imposition of sentence.
Facts
[2] In terms of the facts, I will address the circumstances of both the offence and the offender.
a) Circumstances of the offence
[3] In my reasons for judgment, I explained in detail my factual findings, which I will not repeat. That decision is reported at 2021 ONSC 1130.
[4] The complainant and Mr. Inshanally met on October 27, 2018 and became involved in an intimate relationship. All of the offences took place between November 1 and November 7, 2018:
I found that on November 1, 2018, after engaging in some consensual sexual activity at Loafer’s Lake, the complainant made clear to Mr. Inshanally that she was not consenting to an act of sexual intercourse. While she told him to stop, he persisted, and engaged in sexual intercourse with her, knowing that she was not consenting.
I found that on November 4, 2018, Mr. Inshanally, who was angry at the complainant, assaulted her by grabbing her face and biting her lip in the car after they had been at Tropical Nights nightclub. I further found that when they returned to her home, he used the ruse of needing to go to the washroom in order to gain entry to her home. Inside, while she consented to some kissing, she did not consent to having sexual intercourse with him. He had sexual intercourse with her, in her bedroom, knowing that she was not consenting.
I found that on November 7, 2018, Mr. Inshanally had sexual intercourse with the complainant in her home, twice, knowing that she was not consenting and that her children were downstairs in the home. He then manipulated her into getting into his car with him, and, once she was there, persuaded her to drive with him to a gas station. He forcibly confined her in the car, driving her around as he berated her and instilled fear in her. Once they returned to her home, I found that he was unwilling to accept that she did not want to be with him and that he sexually assaulted her by touching her vaginal area with his hand, over her clothes, without her consent.
b) Circumstances of the offender
[5] The Pre-Sentence Report, marked as Exhibit 1 on sentence, sets out important details about Mr. Inshanally.
[6] Mr. Inshanally is a 32-year-old Canadian citizen, born in Toronto. He was raised in a supportive and caring family by parents who had emigrated from Guyana. He continues to live with his parents, although he lived with an aunt while on bail from November 16, 2018 until March 25, 2021. He describes having a loving and caring relationship with both his parents and his sister. His family was interviewed and was genuinely and appropriately upset and concerned about the convictions.
[7] Both Mr. Inshanally’s mother and his sister have provided information as to his intellectual deficiency. His mother reported that the family doctor had told her that Mr. Inshanally’s brain is not developed. His sister characterized it is a learning disability. This information appears to be supported by the pattern that his life has taken since he was young.
[8] While Mr. Inshanally completed high school, he experienced academic challenges in school. He was placed in a special educational program in primary school and in a special school in high school. He and his sister both reported that he was bullied at school. Mr. Inshanally reports having no friends. This is confirmed by others. He had some vocational training and worked for a period as a general labourer. He is not now working and his bail conditions prevented him from doing so.
[9] Mr. Inshanally has no alcohol or substance abuse issues.
[10] Mr. Inshanally has never been married and has no children. He appears to have had a number of relatively short relationships. He acknowledged having had significant issues in these relationships with insecurity, jealousy and obsessive and controlling behaviour.
[11] Mr. Inshanally’s paternal aunt, with whom he has lived while on bail on these charges, describes the family as a close one. She finds Mr. Inshanally polite and respectful. She expressed shock about this case and says that he would benefit from having medication to keep him calm. She suggests that he needs “structure and routine” in his life. She says that while he has lived with her on bail, he really does nothing during the days.
[12] Mr. Inshanally has a criminal record, set out in Exhibit 2 on sentence. The Crown has filed transcripts of some of the proceedings respecting these prior convictions. The record consists of the following:
On April 23, 2010 Mr. Inshanally pleaded guilty to charges of assault, assault with a weapon, utter threats, fail to comply with a recognizance and forcible confinement in relation to the same complainant. He received a suspended sentence and probation on each charge, concurrent, in addition to 51 days pre-sentence custody. These convictions relate to a complainant named A.D., with whom Mr. Inshanally was in a relationship for about three months before the first offence in February 2009. The facts admitted on that plea were set out in detail at paragraph 17 of my Ruling on the Crown’s Similar Fact application, released to the parties on February 18, 2021.
On April 15, 2013, Mr. Inshanally pleaded guilty to offences involving a 23-year-old complainant with whom he was in a relationship for about five months. He was convicted of two acts of sexual assault, forcible confinement and assault, as well as of failing to comply with a recognizance. The agreed facts stated that there had been physical abuse throughout their relationship. On the sexual assault with threats to a third party, he received 545 days, in addition to 410 days pre-sentence custody. For the assault, he received 6 months concurrent. For the forcible confinement and sexual assault he received 545 days on each charge, concurrent, after 410 days of pre-sentence custody.
On September 12, 2017, Mr. Inshanally was sentenced to offences that he pleaded guilty to on July 19, 2017. There are two sets of charges in relation to two other complainants with whom he had been in relationships. The facts supporting those pleas were summarized at paragraphs 19-22 of my Ruling on the Crown’s Similar Fact application. In relation to the first complainant, he pleaded guilty to break and enter with intent for which he received 21 days in addition to 462 days pre-sentence custody, assault, utter threats and forcible confinement, for which he received 21 days on each charge, concurrent, and 3 years probation. In relation to the second complainant, he pleaded guilty to forcible confinement and fail to comply with a recognizance, for which he received 5 months on each charge, concurrent, and assault, for which he received 5 months consecutive.
[13] As a result of the September 13, 2017 sentencing, Mr. Inshanally was ordered to complete a Partner Assault Response (PAR) Program. Exhibit 3 on sentence documents that he began that program on April 14, 2018 and completed the 12 sessions on July 7, 2018. The Report says that Mr. Inshanally took full advantage of the program and that he recognized that his past actions had landed him in trouble and not benefitted him. He acknowledged that his behaviour resulted from insecurity and that he needed to make lifestyle changes and focus on himself. He was commended for taking responsibility for his actions and engaging in a process of self-discovery.
[14] The offences in this case occurred less than six months after he completed the PAR Program.
[15] The PSR indicates that in 2018, Mr. Inshanally received his first mental health diagnosis from the Centre of Addition and Mental Health (CAMH). He was diagnosed with obsessive compulsive disorder and with a learning and analytical disorder. He was prescribed fluoxetine.
[16] Counsel for Mr. Inshanally provided a one-page letter from psychiatrist Dr. Joel Jeffries, dated August 21, 2019, marked as Exhibit 3 on sentence. He diagnosed Mr. Inshanally with obsessive compulsive disorder (OCD), intermittent explosive disorder and mild mental retardation. He recommended that he discontinue fluoxetine and begin clomipramine for his OCD. He also suggested that after house arrest, he begin a medication for anger control.
c) Impact on the Victim
[17] The complainant in this case, D.H., prepared a Victim Impact Statement which was read during sentencing and is contained in Exhibit 2 on sentence.
[18] In her Victim Impact Statement, D.H. describes the devastating effect of Mr. Inshanally’s conduct on her. She describes the fear she has felt since the offences and her concerns that Mr. Inshanally would come to her home or follow through on his threats against her. For her safety and that of her children, she sold her home and re-located.
[19] D.H. continues to suffer emotional pain. She hears Mr. Inshanally’s ridicule and abuse in her mind. She has needed counseling to talk about her thoughts and feelings, including the shame, guilt and betrayal she feels. After the offences, D.H. lacked the energy or motivation for other relationships and was been slow to let herself trust others. More positively, she is in a new relationship and is engaged. Despite, this, she continues to struggle with fear and shame.
Positions of the Parties
[20] The Crown seeks a global sentence of nine years.
[21] The Crown also seeks a variety of ancillary orders to which the defence raises no objection.
[22] The defence position is that nine years is excessive. Counsel initially suggested that Mr. Inshanally should be sentenced to 20 months, concurrent, for the sexual assaults and to 12 months consecutive for the forcible confinement, resulting in a total sentence of 32 months. Pressed as to what jurisprudence might support the proposed 20 months for three similar sexual assaults committed by an offender with such a significant, related criminal record, counsel acknowledged that 36 months for the sexual assaults, concurrent, might be more appropriate, resulting in a sentence of 48 months, less credit for pre-sentence custody and harsh bail conditions.
[23] One of the disagreements between counsel is whether the sentences for the three sexual assaults ought to be consecutive or concurrent. While the offences all took place over a relatively short period of time, they occurred on separate days. Regardless of whether consecutive or concurrent sentences are imposed, s. 718.2(c) of the Criminal Code requires that if sentences are consecutive, effect must be given to the principal of totality.
Applicable Legal Principles
[24] Sections 718, 718.1 and 718.2 of the Criminal Code set out the purposes and objectives of sentencing.
[25] Both counsel filed a significant number of cases that set out the appropriate range of sentence and prepared helpful sentencing charts. Counsel both acknowledge that this case has some unusual features, making it difficult to identify any case that is very similar to this one.
[26] The sentence imposed must take account of the particular circumstances of Mr. Inshanally and the offences for which he has been found guilty, bearing in mind the principles of sentencing and the range of appropriate sentence as set out in the case law.
[27] The most important sentencing principles in this type of case are general and specific deterrence, as well as denunciation. While rehabilitation is to be considered, it takes a secondary role here.
[28] While I have reviewed all of the cases provided by counsel, the following are of the most assistance in determining the ranges of sentence for the sexual assault counts:
R. v. Diabis, 2020 ONCA 283 in which the Court of Appeal upheld the seven year sentence imposed for four incidents of abuse by the offender on a sexual partner: a sexual assault and assault in which the offender forced anal intercourse on the complainant and then hit her in the face, for which he received three years; an assault in which he urinated on her, for which he received six months consecutive; a non consensual incident of anal intercourse for which he received three years and five months consecutive; and a count of criminal harassment for which he received one month consecutive.
R. v. Quesnelle, 2014 ONCA 634 in which the Court of Appeal upheld a total sentence of six and one half years for an offender convicted of two counts of sexual assault and two counts of assault arising from two different occasions with two different complainants. In respect of the first complainant, he punched her in the face and forced anal intercourse. In respect of the second, he punched her in the face and forced her to have oral and anal sex. The accused was a cocaine addict at the time of the offences and had since taken steps to address his addiction. He had a dated criminal record for non-violent offences. The Court of Appeal noted that the sentence was at the low end.
R v. Richards, 2010 ONCA 728 in which the Court of Appeal reduced from seven and one half years to five years the sentence imposed for a series of related offences committed by an offender over the period of a week after the complainant told him that she wished to end their relationship. These included a sexual assault, two assaults, assault with a weapon, forcible confinement and two counts of failing to comply with a recognizance. The Court held that a fit sentence was 4 years for the sexual assault, 12 months consecutive for the forcible confinement and that the other sentences should all be concurrent so as to respect the totality principle.
R. v. Bradley, 2008 ONCA 995, in which the Court of Appeal, reduced an offender’s sentence for one count of sexual assault from four years to three years. The accused was a police officer who anally and vaginally raped a woman for whom he was a friend and mentor. The Court accepted, at paragraph 18, the Crown’s submission that the appropriate range of sentence for these circumstances was three to five years. In concluding that the sentence should be at the low end of that range, the Court noted that the offence was dated by the time of trial and that there was much evidence of the accused’s otherwise long-standing unblemished character.
R. v. Gadam, 2016 ONSC 4664 in which the 40-year-old accused, a first offender, was sentenced to three years following his conviction for one count of sexual assault. The accused engaged in several sexual assaults over four months including attempted intercourse, threats of harm and forced intercourse eight times. The accused supported a wife and child, was an active and involved member of his community and had a reputation as a kind, gentle and respectful man. He faced deportation because he was not a Canadian citizen.
R. v. Stankovic, 2015 ONSC 6246 in which the trial judge imposed a three-year sentence. On the day that they first met, the accused and complainant engaged in consensual sexual activity on his couch, including kissing and touching. They then engaged in vaginal and anal intercourse to which the jury, by their verdict, found that the complainant had not consented.
R. v. Garrett, 2014 ONCA 734 in which the Court of Appeal considered a Crown appeal from the imposition of a 90-day intermittent sentence for one count of sexual assault. The accused and complainant were friends and went on a date involving drinks and then consensual kissing. She invited him into her apartment and after consensual kissing, he became aggressive, ultimately engaging in non-consensual sexual intercourse with her while she told him to stop. The trial Crown sought a sentence of only 18 months. The Court of Appeal concluded that the sentence imposed was “manifestly unfit” and imposed the 18-month sentence that the Crown had sought at trial. It noted at paragraph 23 that this sentence “should not be taken as a sentence within the appropriate or usual range” observing that the Court was constrained by the Crown’s position at trial.
[29] These cases underscore the significant range of appropriate sentence for non-consensual sexual intercourse with an intimate partner.
Aggravating and Mitigating Circumstances
[30] I find the following aggravating factors to be present:
a. Mr. Inshanally committed multiple offences of sexual violence on a woman with whom he was in the early stages of a relationship. There was forced sexual intercourse on each of the three days, with two such acts one day. Mr. Inshanally used manipulation and threats, including inveigling his way into her home on two of the three days, to enable him to sexually assault her.
b. It is a statutorily aggravating factor under s. 718.2 that Mr. Inshanally abused his “intimate partner”, as that term is defined in s. 2 of the Code, which applied because the complainant was his “dating partner”.
c. Mr. Inshanally did not use a condom for any of the acts of forced sexual intercourse, thus increasing the potential risks to the complainant’s health from sexually transmitted diseases.
d. In addition to the sexual violence, Mr. Inshanally used some gratuitous physical violence and demeaning language to degrade, manipulate and punish her. For instance, after the Tropical Nights trip, he bit her, before manipulating her to let him into her home.
e. In relation to the forcible confinement, Mr. Inshanally threatened the complainant in the car and spoke to her about crashing the car with her in it, further instilling fear in her.
f. Mr. Inshanally has a significant criminal record for offences of sexual and physical violence on intimate partners. He says he has had only about five intimate partners in his life. He has been convicted of criminal offences involving physical and/or sexual violence in relation to each of them.
g. Mr. Inshanally was on probation at the time of these offences after having been convicted of violence respecting a previous intimate partner.
h. The Victim Impact Statement reveals, as did the complainant’s evidence, that these offences have had a significant and prolonged effect on her emotional and psychological well-being.
[31] There are also important mitigating factors to consider:
a. Mr. Inshanally has some intellectual deficiency. He struggled with school and has a diagnosed learning disability. Where an offender’s cognitive impairment affected his behaviour that resulted in criminal conviction, it may reduce or attenuate the moral blameworthiness of that behaviour: R. v. Ghadghoni, 2020 ONCA 24, at paras. 45-46. While there is no evidence before me connecting his diagnosis and the offences, Mr. Inshanally clearly lacks insight about the magnitude of the harm that his conduct towards intimate partners causes, and lacks the ability to put into action what he has learned about relationships.
b. Mr. Inshanally has some insight into his pattern of jealousy and control over intimate partners. This is a positive step towards rehabilitation.
c. While Mr. Inshanally has a pattern of abuse towards intimate partners, it does not appear that his conduct is worsening over time. I accept the defence position that the most serious offences seem to have been in 2013. That said, the pattern that he has shown is one of abuse, disrespect and a serious violation of the physical and emotional integrity of his partners. Thus, I find the significance of this factor to be negligible.
d. Mr. Inshanally expressed to me, when given his right of allocution, that he wishes to obtain the help he needs to rehabilitate himself and become a better person or, as he put it “a normal person”. This willingness to seek help is a further indication that there is some hope for rehabilitation.
e. Mr. Inshanally has a loving, caring and supportive family. There is no question that his parents, aunt and sister will support him in whatever ways they are able to and that this will be a positive influence on his rehabilitation.
Pre-sentence custody
[32] Mr. Inshanally served four days of custody before being released on bail. He is entitled to six days of credit for this.
[33] In addition, the defence seeks credit for the period Mr. Inshanally was released on restrictive bail conditions, between November 16, 2018 and March 25, 2021, pursuant to R. v. Downes, 2006 CanLII 3957 (ON CA), [2006] O.J. No. 555 (C.A.). No credit is sought after March 25, 2021 as Mr. Inshanally has been detained on unrelated charges. The period of pre-sentence custody is 860 days.
[34] There is no mathematical way to calculate Downes “credit”, which is properly understood as a mitigating factor on sentence because stringent bail conditions are punitive and thus akin to custody. In assessing the appropriate weight of the mitigation to be given, factors to be considered include the amount of time spent on the bail conditions, the stringency of the conditions, their impact on the offender’s liberty and the ability of the offender to carry on normal relationships, employment and activity: R. v. Joseph, 2020 ONCA 733 at para. 108; R. v. Place, 2020 ONCA 546 at para. 20.
[35] There is no question that Mr. Inshanally has been on a relatively strict house arrest bail for two years and just over four months. He lived with his aunt, rather than his own family, with whom he usually resides. He has not been allowed to leave the home except with his surety. There have been no exemptions for work or educational advancement. While he had a job offer, the Crown declined to consent to a variation so that he could work. No bail variation application was pursued by him. For the last year of this bail, the pandemic has made it difficult for him to see his parents. I accept that this restrictive bail has had a real impact on Mr. Inshanally. Given his OCD diagnosis, it would have been particularly difficult on him to have to live somewhere other than his own home, especially during the last year of the pandemic, and to have been under such restrictive conditions.
[36] Mr. Inshanally seeks credit at a rate of 1/3 for each day on bail, which would lead to a reduction of sentence of 286 days. The Crown submits that he should be given credit of ¼ for each day on bail, or 215 days.
[37] In my view, given the length of the bail, the stringency of the conditions and the impact that it has had on Mr. Inshanally, he should be credited for 215 days. In addition to the 6-day credit for pre-sentencing custody in jail, a total of 221 days will be reduced from the sentence imposed.
Impact of the pandemic
[38] Counsel for Mr. Inshanally has provided a number of cases in which courts have considered the impact of the COVID-19 pandemic on sentence, and whether the effect of the pandemic on those serving sentences warrants reducing the quantum of jail time imposed for a sentence yet to be served. I have carefully reviewed these decisions, including R. v. Hearns, 2020 ONSC 2365 at paras. 20-23; R. v. Audet, 2020 ONSC 5039 at paras. 36-42; and R. v. T.N., 2021 ONCJ 154 at para. 7. A number of courts have recognized that serving a sentence in custody during the pandemic may add harshness to the sentence that was not there before, including, for example as a result of mandatory quarantining upon commencement of a sentence, additional isolation and lockdowns and heightened risk of contracting the virus.
[39] Ontario is now in the midst of a third wave of the pandemic. At the same time, the province is conducting a massive vaccination campaign. It is impossible to predict what additional hardship will be caused to Mr. Inshanally as a result of the fact that the sentence imposed on him will mean that he serves his sentence commencing in May 2021, which is before the end of the pandemic. I think any reduction in sentence on the basis of possible effects on him would be speculative and decline to do so.
Sentence to be imposed and ancillary orders
[40] As I have indicated, the sentence imposed must give effect to the paramount principles of deterrence and denunciation. These offences represent a very troubling pattern of Mr. Inshanally physically and sexually abusing and emotionally scarring intimate partners.
[41] While I have serious doubts, on the basis of the evidence before me, about Mr. Inshanally’s prospects for rehabilitation, I accept the defence submission that there is some hope for him and that the sentence imposed should not be crushing. One of the challenges of sentencing Mr. Inshanally is that it is very difficult to assess how his intellectual deficiency will affect his rehabilitation. His track record to date is dismal. It is imperative that he obtain the help he clearly needs so that he does not find himself before the court again when he is released and becomes involved in another relationship. I accept that he is willing to do so and that his family will continue to support him after his release from custody. There remains some hope for him.
[42] I conclude that a fit sentence for Mr. Inshanally is 7 years, as follows:
2 years for the sexual assault on November 1, 2018 at Loafer’s Lake;
2 years consecutive for the sexual assault on November 4, 2018 at the complainant’s home;
2 months concurrent for the lip biting assault on November 4, 2018;
2 years consecutive for the sexual assault on November 7, 2018 in the complainant’s home;
12 months consecutive for the forcible confinement in the car on November 7, 2018;
2 months concurrent for the sexual assault consisting of touching the complainant’s vaginal area over her clothes in the car on November 7, 2018.
[43] While I accept that a higher sentence of three years would have been reasonable for each of the sexual assault counts, I have reduced the sentence to give effect to the principal of totality, as I think a total sentence over seven years would be excessive in all of the circumstances and that seven years is fit. From the 7 years, I deduct 221 days for presentence custody and time on restrictive bail conditions, leaving a sentence of 6 years and 144 days.
[44] In addition, I make the following ancillary orders:
a. a s. 743.21 non-communication order with the complainant or her immediate family while Mr. Inshanally is in custody;
b. a firearms and weapons prohibition under s. 109 order under 2(b) for life and under 3 for life;
c. a primary DNA order under s. 487.051 of the Criminal Code;
d. a SOIRA order under s. 490.013(2.1) and 490.013(4) for life.
Woollcombe J.
Released: May 10, 2021