Her Majesty the Queen v. Andrew Szymanski, 2021 ONSC 5482

ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-20-190 AP

DATE: 20210810

BETWEEN:

HER MAJESTY THE QUEEN

C. Agatiello, for the Crown

Respondent

• and -

ANDREW SZYMANSKI

A. De Marco for the Appellant

Appellant

HEARD: July 30, 2021

REASONS FOR JUDGMENT

BALTMAN J.

1This is an appeal by the offender from the sentence imposed by Mackay J. following his conviction for sexual assault. Instead of the conditional discharge that he sought, the trial judge imposed a suspended sentence and a probationary period of 12 months.

2Although the appellant set out numerous grounds in his factum, his counsel’s oral submissions were focussed primarily on three grounds:

1. The trial judge erred in describing the nature and extent of the sexual assault;

2. The trial judge erred by discounting the degree of mitigation accorded to the appellant’s remorse because it was made late in the proceeding;

3. The trial judge failed to give proper weight to the various mitigating features.

3For the following reasons I would dismiss this appeal.

Factual Background

4The complainant was employed as a Senior Financial Advisor at a bank. The appellant had been her customer for several years before this incident. On the day in question the appellant attended a pre-scheduled meeting with the complainant to discuss transferring some of his funds from another bank.

5The complainant testified that during the meeting the appellant made explicit sexual comments to her, including “I want to fuck you hard” and “You will love my cock”. He brushed his hand from the right side of her chest over to the left side, over her clothing. The complainant immediately told him “no”. Minutes later, he reached across the desk, grabbed the front of her shirt and pulled her towards himself.

6In her Reasons for Sentence, the trial judge described the attack as follows (at paragraphs 1 and 33, respectively):

During the meeting the defendant used very graphic language and expressed his desire to have intercourse with her. At one point he used his hand to brush across her breast over her clothing. [The complainant] immediately told him no. Within five minutes of this assault he grabbed her shirt at her cleavage and pulled her towards himself.

[Emphasis added]

Some sexual assaults fall at the much more serious end of the spectrum and this would include forced intercourse with gratuitous violence. The offence before me involved a touching of the complainant’s breast over her clothing and a grab at the complainant’s shirt in the area of her cleavage while the defendant told her he wanted to have intercourse with her. Objectively this offence falls towards the lower end of the range of sexual assaults. However, it has had a significant impact on the complainant’s life.

[Emphasis added]

7The appellant pleaded not guilty and following a trial was convicted of sexual assault. At the sentencing hearing the appellant apologized to the complainant and expressed remorse to the court. The Crown sought a 90-day jail sentence with a period of probation for 19 months; the defence requested a conditional discharge with a period of probation.

The Legal Framework

8Sentencing is a highly discretionary, individualized process. As appellate courts have repeatedly stated, trial judges are given wide latitude to fashion a sentence they consider to be just and appropriate.

9As a summary conviction appeal court hearing a sentence appeal, I am not to treat the appeal like a new sentencing hearing. Rather, I may only intervene if the trial judge made an error in principle, failed to consider or overemphasized an aggravating or mitigating factor, or imposed a demonstrably unfit sentence: R. v. Lacasse, 2015 SCC 64 at paras. 11, 39-44, 51-52; R. v. Proulx, 2000 SCC 5 at para. 123.

Submissions and Analysis

1. Did the trial judge err by exaggerating the nature and extent of the sexual assault?

10The appellant identified several alleged errors in this regard. First, he complains that the trial judge erred by describing the assault as a touching of the complainant’s “breast”, when in fact it merely involved her “chest” area. Moreover, he says, the complainant never used the word “cleavage” in her testimony.

11In this case, that objection is merely an exercise in semantics. The complainant testified that on the day in question she was wearing a shirt with a rounded neck approximately four inches below the bottom of her neck. It follows that when the appellant grabbed onto her shirt, he was either touching her breast area and cleavage, or very close to it. The trial judge may have used slightly different terminology, but she accurately described the evidence.

12The appellant’s second complaint is that the trial judge described the assault as more prolonged than it was by indicating that the second part occurred “within five minutes” of the first. He asserts that the gestures themselves lasted mere seconds and were separated by only a “few” minutes.

13It is undisputed there were two parts to the assault. The first part occurred when the appellant brushed his hand across the complainant’s chest. The second part took place just minutes later, when he grabbed her shirt and pulled her towards him. The complainant estimated that the second part occurred “maybe five minutes” after the appellant touched her chest. The trial judge accurately described both the nature of the gestures and their respective timing.

14The appellant’s third complaint is that amongst the aggravating factors, the trial judge wrongly described the case as coming “close to a breach of trust” situation. I accept this was not a trust relationship in any traditional sense. However, the appellant was a long-term client of the complainant with whom she had developed a cordial relationship. The assault took place when the parties were alone in the complainant’s office cubicle in the midst of a workday. Consequently, I do not think the trial judge erred when she described it as “close” to a breach of trust situation. Alternatively, if she did so err, I nonetheless agree with her that an assault in the workplace by a longstanding client is an aggravating factor: R. v. P.G., 2020 ONSC 4438, at para. 89; R. v. Mustafa, 2021 ONSC 3088 at para. 18.

2. Did the trial judge err by discounting the degree of mitigation accorded to the appellant’s remorse because it was made late in the proceeding?

15In her reasons for sentence, under the heading “Mitigating Factors”, the trial judge stated the following:

The appellant has shown remorse albeit very late in the proceedings. He is not entitled to the same degree of mitigation for a guilty plea and early remorse, but I do appreciate and consider his remorse.

16The appellant argues that the trial judge erred by giving less weight to his expression of remorse because it was not made until the sentencing hearing. He asserts that if, as here, the expression of remorse is genuine, it should not matter when it is made. By identifying the late timing of the remorse expressed here, the trial judge wrongly diminished its value and effectively treated it as an aggravating factor.

17I disagree. In the same way that an early guilty plea is more mitigating than a late one, so too is an early, sincere expression of remorse. In both cases the accused is acknowledging his wrongdoing and taking responsibility for it early in the proceeding, thereby sparing the complainant from having to testify and saving limited court resources.

18The trial judge was entitled to take the appellant’s late expression of remorse into account when assessing how much credit it should be given. This does not equate to treating late remorse as an aggravating factor. As our Court of Appeal noted in R. v. Thuraurajah, 2008 ONCA 91, at para. 45, “the mitigating value of remorse is lessened by its appearance only after conviction and before sentence”.

19There is therefore no basis to interfere.

3. Did the trial judge err by failing to properly consider the mitigating features?

20The appellant complains that the trial judge merely paid “lip service” to various mitigating factors. In particular, she gave insufficient value to his various medical ailments, his supportive family, and his long productive work history.

21Again, I disagree. The trial judge considered all the significant mitigating factors raised by the appellant’s counsel during the sentencing hearing. She identified that he suffers from diabetes and high blood pressure. She observed that he was separated from his wife prior to the trial but they had reconciled. She noted that he does not have a criminal record, has worked as a bus driver for most of his adult years, and has led a productive life. Importantly, she acknowledged that if convicted of this offence the appellant stood to lose his job, both as a bus driver and as a driving instructor. She observed that he has raised three children who are productive members of society. Finally, as noted above, she acknowledged his show of remorse during the sentencing hearing.

22The trial judge’s analysis demonstrates she was cognizant of these relevant factors:

The appellant has had to deal with being charged, arrested, and the stigma of being compelled to appear in court. His wife is aware of what he has done. She was present at his sentencing hearing. I am satisfied [the appellant], as he stated, has learned his lesson. It is also possible that he will lose his job as a result of this offence.

23The trial judge clearly understood that the issue was whether a discharge was appropriate in the circumstances of this case. She correctly set out the test for granting a discharge under s. 730 of the Criminal Code in her reasons, and rightly noted that conditional discharges are not commonly imposed for sexual assault cases. She then explained, in some detail, why it would be contrary to the public interest to grant him a discharge. This included the “need to deter others who may think that little is at stake for sexually accosting a person at their workplace”.

24A suspended sentence has been upheld on appeal in another case with similar circumstances. In R. v. A.Z., 2019 ONSC 6256, the appellant touched the victim’s breast without her consent and repeatedly tried to kiss her. He also made sexually explicit comments to the victim. The appeal judge, Copeland J., upheld the suspended sentence and probation imposed by the trial judge.

25There are also other cases where courts have declined to grant a discharge for relatively minor sexual assaults. In R. v. Mohammadi, 2007 ABPC 43, the appellant grabbed the breast of a nurse at a hospital, kissed her on the neck and tried to kiss her on the lips. Like the appellant here, he had no criminal record and the trial judge found that the sexual assault was an isolated event. The trial judge nonetheless imposed a one-day sentence followed by 12 months probation, noting two significant aggravating features: first, the sexual assault occurred at the victim’s place of employment and second, it had a major impact upon her.

26Similarly, while the assault in this case may have been relatively minor, it was not trivial. It involved an aggressive physical intrusion in the workplace. After he was initially rebuffed, the appellant persisted with the assault with an even more forceful manoeuvre. The impact upon the complainant was significant, including ongoing discomfort at her longstanding workplace, disruption to her marital relationship, migraines and sleep disturbance.

27Here, having weighed the relevant mitigating and aggravating factors and applying the germane principles of sentencing, the trial judge concluded a suspended sentence with probation was the just and proportionate sentence. I see no error in her analysis. The sentence imposed was within the range of appropriate sentences in this case and was not demonstrably unfit.

Conclusion

28For the reasons set out above, the sentence appeal is dismissed.

Baltman J.