COURT FILE NO.: CR 19-11-00, CR 19-36-00, CR 20-183-00 DATE: 2021-05-31
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen
- and -
James Joseph O’Kane, Accused
Counsel: R. Kozak for the Crown M. Hargadon for the Accused
HEARD: December 1, 2020 by ZOOM, at Thunder Bay, Ontario
BEFORE: Mr. Justice F. Bruce Fitzpatrick
WARNING
AN ORDER RESTRICTING PUBLICATION OF ANY INFORMATION THAT COULD “IDENTIFY” THE COMPLAINANT OR WITNESS HAS BEEN MADE IN THIS PROCEEDING UNDER SECTION 486.4 OF THE CRIMINAL CODE OF CANADA
Reasons On Sentence
1Sentencing in this matter has been delayed as the result of the pandemic. Originally this judgment was to be delivered in January 2021. Pandemic events in Thunder Bay intervened. The matter was adjourned various times on consent of the parties.
2James O’Kane has pleaded guilty to four charges. Three relate to a vicious sexual assault Mr. O’Kane committed against T.O., a female person, early in the morning of October 23, 2016. The attack was random. It was violent. It was done in a public place. Mr. O’Kane and T.O. were not known to each other. Counsel agree Mr. O’Kane should be incarcerated in the penitentiary as the result of this horrific act. Counsel agree as to the amount of credit Mr. O’Kane should be given for time he has spent on strict bail conditions prior to entering his pleas. The parties agree a global sentence should be imposed. The parties disagree as to the length of the sentence. The Crown argues for a sentence in the eight to ten year range. The Defence argues for a four year sentence.
3The fourth charge related to a recent breach of bail conditions. The Crown and defence made a joint submission as to penalty. Mr. O’Kane served 30 days in custody prior to being released on bail. The parties agreed he should be given 45 days credit for this time and the sentence for the breach should be time served plus a day. I agreed that was a just and appropriate sentence for that recent breach. I did not take this conviction into account in crafting a just and appropriate sentence for Mr. O’Kane in respect of the three offences related to the sexual assault of October 2016.
The Facts
4During the early morning hours of October 23, 2016, shortly after 3 a.m., T.O. was walking home along a well-travelled street in the north ward of Thunder Bay. Video surveillance from a business along this route shows T.O. passing the camera shortly after 3:25 a.m., closely followed by a male.
5T.O. was grabbed from behind and taken to a dark area between two buildings by Mr. O’Kane. He pushed her to the ground and forced her to perform oral sex. He said he was going to kill her. He had a knife. He choked her. He digitally penetrated her vagina and anus. He performed oral sex on her. He continually tried to insert his penis in her vagina and anus, but was not successful.
6T.O. asked his name in an attempt to reason with him, and he replied “James”. She began calling him by name, telling him that he did not have to do this. Every time she called him by name, he choked her harder.
7The sexual attack was prolonged. Eventually, at approximately 4:40 a.m, T.O. broke free and ran to the roadway when she heard a passing vehicle.
8She was taken by EMS for medical treatment at the Thunder Bay Regional Health Sciences Centre. A Sexual Assault Examination Kit was completed.
9Police investigation revealed a suspect on video surveillance at a convenience store on the same street where the attack occurred at 3:08 a.m., wearing a wristband from a specific nightclub in the same area as T.O. had been between 2:00 and 2:30 a.m.. Subsequent investigation led to Mr. O’Kane becoming a person of interest.
10Police conducted active surveillance on Mr. O’Kane and obtained a DNA cast-off from a used Tim Horton’s paper cup that was disposed of by the accused. This matched DNA found on the victim’s body. Subsequently, a blood sample was obtained from Mr. O’Kane pursuant to a warrant. DNA forensic analysis confirmed DNA from Mr. O’Kane was found on the genital area of T.O..
11Mr. O’Kane agreed these facts were substantially correct. On the basis of these facts, I found Mr. O’Kane guilty of the offences of sexual assault causing bodily harm contrary to s. 272(1)(c), uttering a death threat to T.O. contrary to s. 264.1(1)(a) and unlawfully confining T.O. contrary to s. 279(2) of the Criminal Code. A count relating to choking to enable sexual assault contrary to s. 246(a) of the Code was withdrawn at the request of the Crown.
Personal Circumstances of Mr. O’Kane
12A presentence report was prepared for the Court. It outlines Mr. O’Kane’s background as well as his circumstances in the Fall of 2016. I was also provided with personal information from the submissions of counsel.
13Mr. O’Kane is now 29 years old. He was 26 at the time of the offence. He is Indigenous. His paternal family has roots in Couchiching First Nation. He is single. He has no dependents. He has a grade nine education. He has a spotty work history. He has a significant history of abuse of alcohol and illegal drugs. He did not have a positive relationship with his father, who is Indigenous as well. Clearly the impact of intergenerational trauma brought on by violence, substance abuse and a lack of appropriate parenting role models has come in to full play with respect to Mr. O’Kane’s upbringing.
14Mr. O’Kane began experimenting with illegal substances at age 14. When he was 16, he and his girlfriend burned through a $180,000.00 inheritance his girlfriend had received. In a few short months, the money was spent on rent, drugs and alcohol. Mr. O’Kane is aware that his anti-social criminal behaviour has been fueled by drugs and alcohol. He attributes his father’s poor choices and criminal conduct as partially responsible for his drug and alcohol abuse. Mr. O’Kane has abused cocaine, opioids and intravenously administered drugs. This has adversely affected his health.
15On a more positive note, Mr. O’Kane claims he has been sober since the date of the offence. He has enrolled in and is continuing to attend an opioid treatment therapy program. Mr. O’Kane is currently taking methadone. He hopes to have his addictions under control to the point he can cease the treatment in the near future.
16Mr. O’Kane received a psychiatric consultation at the Thunder Bay Regional Health Sciences Centre in November 2016. The result was not particularly positive. It noted Mr. O’Kane presented with past suicidal ideation without any plan or intention. He reports having an ordinary childhood in Thunder Bay. However, his father’s extended absences and general unreliable nature has negatively impacted his own sense of self-esteem. This has led to occasions of anxiousness, anxiety and anger.
17Mr. O’Kane did not report being a subject of sexual abuse either as a child or as an adult. Generally, he has had positive relationships with women and has not exhibited any previous acts of violence or hostility towards women. He has definitely exhibited physical violence towards men. He has a criminal record that involves both youth and adult offences of assault, and assault causing bodily harm, though his record is dated.
18Mr. O’Kane is genuinely remorseful about the occasion of this offence.
Impact on the Victims and the Community
19There were no victim impact statements filed in this matter. However, in my view of the facts of this matter, I am not prepared to accept there was no ongoing impact on the victim of this offence as well as the community. Sexual assault is a very serious offence. Sexual assault of a person in a public place by a stranger is “everyone’s worst nightmare”. I take it as a notorious fact that offences of such a nature are demeaning, degrading, hurtful, traumatic and have short-term and long-term impacts for the victims. These types of offences also have a significant community impact. Persons should feel safe to walk the street at any time of day or night in a community such as Thunder Bay. Sadly, this is not always the case. However, acts such as the one at issue here lessen the overall confidence in community safety, particularly when they are publicly reported, as was the case for this matter. Counsel for the accused made the submission that the Crown has not proven an adverse impact on the victim. I do not accept that submission for reasons I will address below. This Court takes it as a notorious fact that an act of sexual assault causing bodily harm committed in a public place by a stranger on a victim walking home at whatever time of day will have a negative impact on the community and the victim at issue.
Legal Parameters on sentence
20The charge under s. 272(1)(c) is subject to a maximum sentence of 14 years. The unlawful confinement charge under s. 279(2) is subject to a maximum sentence of 10 years. The utter death threat charge under s. 264.1(1)(a) is subject to a maximum sentence of five years. There are no minimum sentences for any of the offences before the Court.
Position of the Crown
21The Crown seeks a penitentiary sentence in the range of eight to ten years. The Crown acknowledges the Court is to take the factors related to Mr. O’Kane’s Indigenous heritage as required by s. 718 of the Criminal Code, and discussed in the decision of the Supreme Court of Canada in R. v. Gladue, [1999] 1 S.C.R. 688 and revisited by the Supreme Court of Canada’s decision in R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433. Nevertheless, the violent nature of the offence calls for an upper range penitentiary sentence
22The Crown argues that the sentence it is seeking will highlight the principle of denunciation and deterrence, as well as promote a sense of responsibility on the part of Mr. O’Kane. Rehabilitation is not as significant in this matter given the degree of violence and shocking nature of the event at issue. The Crown relies on three authorities where it argues that similar facts led courts to impose sentences in the range proposed. Primarily the Crown points to the decision of the Ontario Court of Appeal in R. v. Kavanagh, 2009 ONCA 759, 255 O.A.C. 285. The case involved a brutal sexual assault on a vulnerable woman working at night at a convenience store. In Kavanagh, the accused forced the victim to perform oral sex and then penetrated her vaginally without using a condom. The trial judge had found this was a premeditated event. On appeal of an 11 year sentence, the Court of Appeal imposed 10 years less time served. The Crown argues Mr. O’Kane’s case is factually similar to Kavanagh. The attack was brutal. It happened at night in a public place to a vulnerable woman. The accused penetrated the victim in her vagina and anus with his fingers. He forced her to perform oral sex. These are serious acts requiring a serious denunciation.
23The Crown also relied on a nine year sentence less pre-sentence custody given in the decision of this court in R. v. Assing, [2008] O.J. 4527 (Ont. Sup. Ct.). Assing also involved a violent “stranger” sexual assault where a weapon was used and the victim was vaginally penetrated. The Crown also directed the court to a more recent decision of the Ontario Court of Justice in R. v. Wyatt, 2017 ONCJ 390. Wyatt involved a violent stranger assault in a public place. In that decision, Ghosh J. provided a useful summary of a number of authorities involving fact situations similar to the one at bar. Ghosh J. imposed a sentence of eight years less time served.
Position of the Defence
24Counsel for Mr. O’Kane concedes the gravity of the offence. He argues, however, the proven impact on all the victims in the authorities cited by the Crown, which were aggravating features pushing the sentences to the higher end of the range, have not been clearly proven for the victim in this matter. Mr. O’Kane was a youthful offender. As this will be the first penitentiary sentence for him, it is incumbent on the court to exercise restraint and impose the least onerous sentence, balancing the gravity of the offence with Mr. O’Kane’s circumstances.
25The defence relies on the decision of the Ontario Court of Appeal in R v. Borde (2003), 63 O.R. (3d) 417 (C.A.). The case did not involve a sexual assault. It involved aggravated assault and use of a firearm in the commission of an indictable offence. However, it set out the principle that a first penitentiary sentence for a youthful offender should be as short as possible. Mr. Borde was 18 at the time he committed the offences at issue.
26The defence argues Mr. O’Kane has demonstrated genuine remorse. I agree with that submission. While it is no excuse for the behaviour, Mr. O’Kane recognizes his abuse of substances contributed to his actions that night and, indeed, have played a part in all his past brushes with the law. While his offence was violent, he did not place T.O. in fear of impregnation or being the recipient of a sexually transmitted disease. The defence concedes the negative impact this matter had on the community, as the attack was widely publicized at the time. Nevertheless, Mr. O’Kane’s personal circumstances militate in favour of a sentence at the low end of the range for offences of this nature. The defence put some authorities from other provinces where lower sentences were imposed for sexual assaults of the type that is before the court. A sentence in the range proposed by the Crown would “crush” Mr. O’Kane and is therefore manifestly unjust.
Mitigating and Aggravating Factors
27Section 718.2 of the Criminal Code requires the sentencing judge to increase or decrease the sentence imposed by any aggravating or mitigating factors in this case. In my view, Mr. O’Kane’s expression of remorse is a mitigating factor. I am very alive to his personal circumstances and the difficulties he has had growing up.
28I see Mr. O’Kane’s record as an aggravating factor. He has a record for violence. I take judicial notice of a heightened sense of fear in the community that arose around the time of this attack as an aggravating factor. Despite the fact that there was no victim impact statement, I simply cannot dismiss the possibility that T.O. was and is greatly impacted by what Mr. O’Kane did to her that night.
Principles of Sentencing
29In this case, I am mindful of the sentencing principles contained in s. 718 of the Criminal Code.
30Section 718 provides:
- The fundamental purpose of sentencing is 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;
(d) to provide reparations for harm done to victims or to the community; and
(e) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
31Section 718.1 provides that it is a fundamental principle of sentencing that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender.
32Section 718.2 requires the Court to impose a sentence that is similar to sentences imposed on other similar offenders for similar offences committed in similar circumstances. Where consecutive sentences are imposed, the cumulative effect must not be unduly long.
33I am mindful of my obligations to consider Mr. O’Kane’s Indigenous background in crafting a just and appropriate sentence.
Reasons for Sentence
34I am persuaded that a sentence that comes closer to the position the Crown put before this court represents the most just, fit and appropriate sentence for Mr. O’Kane. I do not accept that Mr. O’Kane was a “youthful” offender at the time this occurred. He was not 18. He was 26. Many men in this society have families, have finished one or two degrees, or are working well into their careers by age 26. I appreciate Mr. O’Kane’s background was not leading him down a “normal” path as of October 2016. He did not have the benefit of an upbringing that allowed him to take steps that the vast majority of men in this society can take while moving from teen years to adulthood. Nevertheless, as 26 year old he was well into adulthood in my view.
35I recognize Mr. O’Kane had a serious drug problem at the time. He has managed to get that under control. This is no small feat. He is to be congratulated for this turnaround. As noted, I accept he is genuinely remorseful for what he has done. This is an important step in his rehabilitation.
36Defence counsel has made thoughtful and responsible submissions in this matter. No doubt this reflects Mr. O’Kane’s recognition of the serious harm he has perpetrated with his actions. Mr. O’Kane has acknowledged a penitentiary sentence is appropriate. There is no question about that in my mind. However, four years is not fit or just given what happened here.
37Violent sexual attacks by a stranger on another person in a public place requires a significant degree of denunciation in the form of a lengthy penitentiary sentence. The range proposed by the Crown was not unreasonable given the vicious nature of the attack. However, I am mindful of the Gladue principles and the very delicate balancing act that is always undertaken when serious crimes are committed. Gladue is not a “get out of jail free card”. It calls on the court to promote reconciliation and responsibility in the face of a history we cannot ignore and which has had lasting effects on Indigenous persons. Mr. O’Kane’s background was impactful on my decision concerning the length of sentence.
38I am directed by the Criminal Code to also respect a principle of proportionality in sentencing. Like offences attract like sentences. It is a cornerstone of our justice system and our democracy which strives to create similar conditions for all citizens regardless of their personal circumstances. The sentences in the authorities cited by the Crown reflect my appreciation of society’s concern that violence against women of any kind is a matter that should never be taken lightly. The event at issue here was in the nature of the most serious type of breach of the social contract. A random sexual attack on a stranger in a public place is something that requires a serious response in the form of a significant period of incarceration.
39In my view, a just, fit and appropriate global sentence in all the circumstances is seven years less time served, as agreed by the parties. The parties agree time served is to be credited as 408 days (1635 days on house arrest calculated at the rate of 4 to 1). This sentence is at the lower end of a range of what is appropriate given the facts. Nevertheless, it is of a length that I believe demonstrates an appropriate degree of denunciation while balancing the other principles that come in to play as the result of Mr. O’Kane’s personal circumstances. I do see it as an appropriate length such that Mr. O’Kane can continue his treatment to control his drug addictions. He will need to also avail himself of treatment to deal with his history and difficulties with violence.
40Stand up please, MR. O’KANE.
41I hereby sentence you as follows:
On Count 1, for sexual assault cause bodily harm contrary to section 272(1)(c) of the Code, you are sentenced to a period of incarceration of seven years less time served on 408 days;
On Count 2, for knowingly uttering a death threat contrary to section 264.1(1)(a), you are sentenced to a period of incarceration of two years and six months. This sentence shall run concurrently to the sentence on count 1 and count 4;
On Count 4, for unlawfully confining the victim T.O. contrary to section 279(2) of the Code, you are sentenced to a period of incarceration of five years. This sentence shall run concurrently to the sentences on count 1 and count 2;
You shall provide a sample of your DNA pursuant to s. 487;
You shall comply with the registration requirements of the Sex Offender Information Registration Act pursuant to s. 490.012 and the relevant subsections for life;
You shall be subject to a weapons prohibition of 10 years pursuant to section 109 of the Code subject to the right to possess weapons in respect of constitutionally protected right of Mr. O’Kane to hunt and fish.
42A victim impact surcharge is waived.
“original signed by” The Hon. Mr. Justice F.B. Fitzpatrick
Released: May 31, 2021
COURT FILE NO.: CR 19-11-00, CR 19-36-00, CR 20-183-00 DATE: 2021-05-31
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen
- and -
James Joseph O’Kane, Accused
REASONS ON SENTENCE
WARNING
AN ORDER RESTRICTING PUBLICATION OF ANY INFORMATION THAT COULD “IDENTIFY” THE COMPLAINANT OR WITNESS HAS BEEN MADE IN THIS PROCEEDING UNDER SECTION 486.4 OF THE CRIMINAL CODE OF CANADA
Fitzpatrick J.
Released: May 31, 2021
/lvp
