COURT FILE NO.: CR-18-103 (Kingston)
DATE: 20211130
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
C.H.
Defendant
Counsel:
Natalie Thompson, for the Crown
J. David Crowe, for the Defendant
HEARD at Kingston: 5 November 2021
THE PUBLICATION, BROADCAST OR TRANSMISSION OF ANY INFORMATION THAT COULD IDENTIFY THE COMPLAINANTS OR A WITNESS IN THIS PROCEEDING IS RESTRICTED PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE OF CANADA.
Reasons for Sentence
MEW J. (ORALLY):
[1] C.H., you were convicted, following a trial, on a single global count of assault, a single global account of sexual assault, a charge of uttering threats and a charge of mischief. The victim of your violence and threats was your then domestic partner, J.E.
[2] You and J.E. are the parents of a daughter who was born on [redacted]. Your relationship with J.E. began in the spring of 2016 and ended abruptly on 6 November 2017, which is the day that the mischief and uttering threat incidents occurred. Your relationship with J.E. appears to have been harmonious at first, but started to deteriorate after J.E. became pregnant.
[3] The assault charge arose from four separate incidents, described in my Reasons for Decision following trial, delivered on 28 January 2021, as “The Dresser Incident”, “The Woodpile Incident”, “The Door Incident”, and “The Door Handle” respectively.
[4] The Dresser Incident involved a tussle following an argument, during the course of which you physically shoved J.E. into a dresser. She was generally sore after the incident but not otherwise injured.
[5] The Woodpile Incident occurred during the course of an argument when you pushed J.E. into a woodpile, which then collapsed. J.E. was not injured.
[6] The Door Incident occurred when, having pushed J.E. out of her bedroom, in which your daughter was present in her bassinet, you then tried to prevent J.E. from re-entering the room, trying to force the door shut on her arm, shoulder and chest. J.E. had a scrape on her arm as a result of this incident but was not otherwise injured. There was, however, some damage to the door frame.
[7] The Door Handle incident occurred on 6 November 2017. You went after J.E. following an argument. She tried to lock a garage door behind her, but you kicked it open, smashing into J.E.’s hand and breaking off a fingernail which started to bleed.
[8] With respect to the conviction for sexual assault, J.E.’s evidence at trial was that there were multiple occasions of unwanted sexual activity. The finding of guilt on this charge was derived from three occasions, described in my Reasons for Decision under the headings “Hunt Camp”, “Necktie”, and “Mothers’ Day Weekend”. On each of these occasions there was sexual activity which was initially consensual, but which did not end when J.E. withdrew her consent.
[9] The Mothers’ Day incident occurred shortly after the birth of your daughter by Caesarean section. J.E. expressed reservations about having vaginal intercourse because of her Caesarean section scar, which had not by that time fully healed. You reasoned that you and J.E. could have anal intercourse. J.E. agreed to this because she felt it was best to go along with it. You said that you would go slow and see how it went. However, when J.E. said “no, it doesn’t feel right” and “it hurts”, you did not stop.
[10] At the hunting camp, although J.E. initially decided to go along with your request for sex while being tied up, she withdrew her consent to sex when you attempted to switch from vaginal sex to anal sex. You continued nonetheless.
[11] The Necktie Incident did not involve anal sex, but also involved a scenario where, having agreed that you could tie J.E. up, she asked you to stop having vaginal intercourse with her because it hurt. You refused to stop because you said it felt good and did not want to ruin it for yourself. You told J.E. that if she did not squirm, it would not hurt.
[12] The uttering threats charge was part of the chain of events that occurred on 6 November 2017, following an unsuccessful hunting outing, which led to an argument. The “Door Handle” incident which occurred that day has already been mentioned. After that, J.E. had got into her car (it was actually her father’s car). You told her that if she did not get out of the car, you were going to smash every window and that if she left, you and your father would follow her to her parents’ house, where you would shoot her and her parents and take your child.
[13] The mischief charge arose from you striking the hood of J.E.’s car, leaving a dent.
[14] When tried by indictment, a conviction for assault carries a maximum prison term of five years. A person found guilty of sexual assault is liable to a term of imprisonment of not more than ten years and, in addition, the imposition of a mandatory firearms/weapons prohibition order pursuant to s. 109(1) (a) of the Criminal Code, a mandatory DNA order and a mandatory sex offender registration order on application by the Crown. The uttering threats charge carries a maximum prison term of five years. The mischief charge, which involved property of $5,000.00 or less, also carries a maximum sentence of five years.
[15] The Crown seeks a four year penitentiary sentence, broken down on the basis of four years for the sexual assault conviction, 90 days concurrent for the assault (after credit for restrictive bail conditions), 60 days’ imprisonment on the utter threats charge (concurrent), and one day of imprisonment (concurrent) on the mischief charge. The Crown also seeks a ten year weapons prohibition order, a DNA order, a SOIRA order for twenty years, and a non-communication order, pursuant to s. 743.21 of the Criminal Code, prohibiting you from communicating, while in custody, with J.E. or her parents.
[16] Should the court be minded to impose a sentence of two years or less, the Crown also requests that you be placed on probation for three years.
[17] The defence, on your behalf, acknowledges that there should be a custodial sentence, but that it should be a provincial sentence, which would be a sentence of less than two years’ imprisonment.
[18] You experienced approximately two days of pre trial custody. From January 2018 to 12 August 2018, you were under house arrest, but with exceptions for work and school. Thereafter, you were subject to a 12:00 a.m. to 6:00 a.m. curfew, with an exception for employment. On 25 September 2020, the curfew condition was removed. As a result, while on bail, you have not been prevented from working. However, for at least some of the time leading up to your trial and continuing, you have elected not to work because the income you would earn would disqualify you from certain Legal Aid funding.
[19] The general principles of sentencing are set out in s. 718 of the Criminal Code. Judges passing sentence are required by law to impose just sanctions that have one or more of the following six objectives:
a. to denounce unlawful conduct and the harm done to victims or to the community that is caused by 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;
e. to provide reparations for harm done to victims or to the community; and
f. to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
[20] Sentences must be proportionate to the gravity to the offence and the degree of responsibility of the offender. The sentence must also be similar to those imposed on similar offenders, for similar offences, committed in similar circumstances. Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh (this is often referred to as to the totality principle). Offenders should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances. Particular attention should be paid to the circumstances of indigenous offenders when considering available sanctions other than imprisonment.
[21] Counsel for the Crown and for the defence both made reference to aggravating and mitigating factors that I should take into account when considering a just sentence.
[22] I will deal first with the aggravating factors in this case.
[23] Domestic violence is a statutory aggravating factor pursuant to s. 718(2) (a)(ii) of the Criminal Code.
[24] The sexual assaults were serious in nature. They involved intercourse including, on two occasions, while the complainant was tied up. During the hunting camp incident, your desire to complete anal intercourse was for your gratification alone. You ignored J.E.’s request for you to stop. The anal intercourse caused J.E. to have rectal bleeding.
[25] During the Necktie Incident, there was extraneous violence as you smacked her breasts and backside and would not let J.E. change position.
[26] The Mothers’ Day incident involved anal intercourse while J.E. was recovering from a Caesarean section.
[27] These incidents of sexual assault, as well as the other offences that you committed, showed a serious lack of respect and concern for J.E. and demonstrated a level of control that you felt you had over her. The presence of your child during some of these incidents is also an aggravating factor.
[28] The principles of denunciation and deterrence are of particular importance in cases involving domestic violence. Even where, as here, the accused person has not previously been sentenced to a custodial sentence, for serious crimes of personal violence and sexual assault in particular, while rehabilitation and other sentencing objectives remain important, denunciation and general deterrence gained prominence: R. v. P.M., 2020 ONSC 3325, at paras. 44-46.
[29] The act of sexual assault strips the victim of her dignity and the ability to make choices about acts of intimacy and what happens to her body: R. v. E.M., 2018 ONSC 6951, at para. 17. A repeated failure to stop, in itself, constitutes demeaning behaviour and contemptuous disregard for the personal integrity of the complainant. Your conduct is not rendered less serious because J.E. initially consented to intercourse: R. v. Garrett, 2014 ONCA 734, at paras. 18-19.
[30] Evidence that the offences had a significant impact on the victim, considering their age and other personal circumstances, is also deemed to be an aggravating circumstance: s. 728.2(a)(iii.1) of the Criminal Code.
[31] The pre-sentence report records that J.E. has had to engage in therapy. Her nerves are “shot”, she is fearful and does not trust and fears commitment. She attributes physical difficulties to the anal intercourse, including deep fissures that she says have not healed.
[32] The probation officer who completed the pre-sentence report, while noting that you maintain your innocence of the charges and that you continue to have the support of family and friends, concluded that you have limited insight into your situation and your actions.
[33] You have had issues with alcohol. During the course of your relationship with J.E., you drank heavily, particularly at weekends. Your drinking continued after J.E. became pregnant, and after both she and others had suggested that you reduce your alcohol consumption.
[34] I turn now to the mitigating factors.
[35] You have not previously been in trouble. You have no criminal record.
[36] You have been compliant with the terms of your bail, including a prohibition on the consumption of alcohol.
[37] There are some other aspects of your life experience to date which I am asked to, and have, taken account of.
[38] Before you met J.E., you had been previously married. Tragically, your wife and the child she was carrying died during childbirth. This is said to have contributed towards your high alcohol consumption. More recently, you have formed a new relationship. You and your new partner have parented two children. Both your new partner and her parents have written letters of support that speak very positively about you as both a partner and a parent. Your own parents and your grandmother have also provided supportive letters, as have a number of your friends. They all describe behaviours that are difficult, if not impossible, to reconcile with the behaviour that gave rise to these charges.
[39] The fact that you maintain your innocence is not, of course, an aggravating factor. According to your counsel, you feel that you did not mislead the court and you stand by the evidence that you gave.
[40] From your mother’s side of the family, you have indigenous heritage. She had family members who were of the Shabot Obaadjiwan people. Although family members of your mother’s generation no longer held indigenous status, there was an awareness of the family’s indigenous heritage. However, as relatives passed away, those connections diminished.
[41] A Gladue report, prepared to assist the court at sentencing, records that a disconnect from indigenous identity, heritage, history and culture is a common experience as a result of colonial policies. This disconnection can often lead to a loss of self and identity, a greater likelihood for involvement in the criminal justice system, and higher rates of addiction, mental health issues and family violence.
[42] Your participation in the process of preparing the Gladue report has raised your level of interest about your indigenous heritage and in learning more about your culture. The report suggests a number of restorative justice options that could be considered in connection with any custodial sentence that you receive and through an after-care programme.
[43] Your current partner says that you and she have a wonderful relationship. She feels loved and appreciated, and says she would not want to be starting a family with anyone else. She was present during your sentencing hearing and is fully aware of this court’s findings.
[44] However, the Gladue report also reflects pervasive and strongly felt negative feelings towards J.E. among your family members. These “blame the victim” sentiments necessarily detract from the weight that might otherwise be attributed to the positive comments that your family members make about you.
[45] You are currently 29 years old. You had an essentially happy and unremarkable childhood. You excelled at sport and other physical activities.
[46] You are now the father of three children. You are estranged from the daughter that you had with J.E. While you would like to have some contact with your daughter, you are concerned that trying to do so will simply provoke further legal problems with J.E.
[47] Since leaving high school, you have been employed most of the time, working in roofing and construction. As mentioned earlier, you have not been working recently, because of legal aid funding concerns.
[48] You have been living at home with your parents while on bail.
[49] I must also take into account the impact of these crimes on J.E.
[50] In her victim impact statement, J.E. describes herself as living in constant survival mode, fearing repercussions and experiencing flashbacks. Her pursuit of a nursing degree has been interrupted. The experience of having to relive and recount what she describes as the horror and humiliation of your brutality was excruciating. She says that she continues to live in fear. Knowing that you and your family do not recognize the seriousness of the offences and have continued to show no consideration or empathy or awareness of the consequences of these offences on J.E., her daughter or her family is, to use her word, terrifying. J.E.’s mother also filed a statement which, in addition to the effects of these events on J.E., as she sees them, also describes the effect on her and her family. She started taking antidepressants and nighttime sedation after months of sleepless nights caused by her fears and concerns about what happened to J.E.
[51] In R. v. N.H., 2020 ONCA 694, the appellant, who, like you, was 28 years old at the time of his trial and had no previous criminal record, was sentenced to four years in prison for sexually assaulting his wife by forcing her to participate in oral sex and intercourse on three occasions, and for assaulting her by punching a wall and threatening her. As in this case, the appellant had testified at trial and denied the offences, although he acknowledged having sexual relations with the complainant on the occasions in question. Like you, he maintains that the complainant consented. After acknowledging that the appellant had been a productive member of society and had a supportive family, the Court of Appeal said this (at para. 56):
However, the offences for which he was sentenced were extremely serious. They consisted of three serious sexual assaults, all involving oral sex and intercourse, committed in the context of a domestic relationship. Such offences demand a significant penitentiary sentence to properly reflect proportionality as well as the principles of denunciation and both general and specific deterrence.
[52] Referring to the decision of the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, at para. 12, the Court of Appeal in N.H. concluded that the four year penitentiary sentence handed down by the trial judge was “entirely fit in the circumstances”.
[53] In R. v. Smith, 2011 ONCA 564, the appellant had been convicted of ten offences – five counts of assault, two counts of assault causing bodily harm, two counts of sexual assault, and one count of uttering a threat. He was sentenced to three years’ imprisonment on each count, with each sentence running concurrently. On appeal, his conviction on a number of these charges was set aside. However, his conviction on a charge of uttering a death threat, a charge of common assault and a charge of sexual assault were upheld.
[54] Epstein J.A. concluded that the sentencing range for uttering a threat in the context of domestic relationships was from the imposition of a suspended sentence to six months’ imprisonment. On conviction for common assault involving the assault of a spouse or domestic partner in the context of a lengthy pattern of domestic abuse, a sentencing range of one to two years’ imprisonment was generally appropriate. And, at para. 87, the Court of Appeal held that in cases of sexual assault involving forced intercourse with a spouse or former spouse, the sentences generally range from 21 months to four years. In that case, the court decided that the appellant should receive two months for uttering a death threat, ten months for assault and two years for sexual assault. However, as the uttering a death threat charge involved a different partner to the other two charges, and because of the length of time between the assault and sexual assault offences, the Court of Appeal concluded that the sentences should be served consecutively rather than concurrently, with the result that the total period of incarceration remained at two years.
[55] In R. v. E.M., 2018 ONSC 4781, the defendant was convicted on two counts of sexual assault, one count of unlawful confinement, and one count of voyeurism. The victim was his domestic partner. The charges all arose from the events that occurred on a single evening when consensual sexual relations developed into non-consensual sexual relations including anal sexual intercourse and confinement by tying “the complainant” up. Photographs were also taken of the complainant in various sexual positions while the defendant and the complainant were engaging in sexual relations. The defendant made a statement to the court expressing remorse for his actions and conduct towards the complainant. The sentencing judge accepted the defendant’s remorse as sincere and genuine, and that he understood and accepted the consequences of his actions. A global sentence of four years was imposed.
[56] In R. v. Chief Body, 2017 ABCA 201, the appellant had been convicted of sexually assaulting a complete stranger, attacking her from behind, forcing her to the ground, putting his hand over her mouth, and then having vaginal intercourse from behind before running away, leaving the victim in the freezing cold. The trial judge imposed a sentence of three and a half years’ imprisonment, after taking into account approximately two months of pre-sentence custody. In reaching this decision, the Alberta Court of Appeal noted that the trial judge had taken into account the appellant’s aboriginal heritage and its effect on a potential sentence. There was a Gladue report which chronicled a challenging childhood growing up on a reserve, as well as a concern about ongoing alcohol abuse on the part of the appellant. The trial judge had considered the objective of restorative justice embodied in s. 718.2 (e) of the Criminal Code and, in particular, the principles of sentencing of indigenous offenders set out by the Supreme Court in its decision in R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, but had concluded that denunciation and deterrence should be the primary sentencing factors, notwithstanding the appellant’s aboriginal background.
[57] It is important to record that there does not have to be a direct link between an individual’s aboriginal heritage and the offences for which an individual has been convicted. This was made clear by the Supreme Court of Canada in R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 83. However, LeBel J., for the majority, also observed that:
Systematic and background factors do not operate as an excuse or justification for the criminal conduct. Rather, they provide the necessary context to enable a judge to determine an appropriate sentence. This is not to say that those factors need not be tied in some way to the particular offender and offence. Unless the unique circumstances of the particular offender bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized, they will not influence the ultimate sentence.
[58] Within the last ten years, there has been a greater recognition of the seriousness of sexual assault offences. The Court of Appeal’s 2020 decision in N.H. reflects that trend. While you now appear to be in a permanent relationship that is not abusive, that is not, in and of itself, a mitigating factor: R. v. Young, 2003 CanLII 50102 (ON CA).
[59] In deciding what a fit sentence should be, I have taken into account your indigenous heritage and the possibility that the effects of colonialism have deprived you of the exposure to and connection with, that heritage that you might otherwise have experienced. Nonetheless, the circumstances of this case are such that the elements of denunciation and deterrence should be paramount.
[60] Your new relationship and the recent birth of two children will hopefully provide you with all of the incentive that you need to avoid a repetition of what has happened in the past, and in particular the sort of irreparable harm that you have inflicted on J.E. I hope that the faith that your new partner and your family members and friends have expressed in you will turn out to be well founded, and that you will continue to benefit from their support.
[61] Mr. H., please stand.
[62] On the charge of sexual assault, I am sentencing you to a term of imprisonment of three years and six months. On the charge of assault, you will serve 90 days’ imprisonment. This term recognises an enhanced credit for the restrictions on your liberty that you experienced while on bail, and will be served concurrently with the three and a half year sentence. On the utter threat conviction, you will serve a term of imprisonment of 60 days, concurrent. And on the mischief charge, you will serve a term of imprisonment of one day, concurrent.
[63] In addition, I make the following ancillary orders:
a. A mandatory DNA order pursuant to s. 487.051(1) of the Criminal Code, authorising the taking of a DNA sample from you;
b. A mandatory weapons prohibition for ten years, pursuant to s. 109(1) (a) of the Criminal Code, subject to an exception, pursuant to s. 113(1) of the Criminal Code, authorising a chief firearms officer or the Registrar to issue to you an authorisation, a licence or a registration certificate, as the case may be, permitting you to possess and use a firearm and ammunition appropriate for hunting for the purpose of enabling you to hunt in order to sustain yourself or your family, including by supplementing the food supply when economically necessary, while on your parents’ property, and while in the direct company and supervision of an immediate family member who is an adult;
c. An order that your name be added to the Sex Offender Registry and that you comply with the Sex Offender Information Registration Act for twenty years;
d. You will have no communication directly or indirectly with J.E., her mother, J.X.E., or her father, D.E., during your period of custody, pursuant to s. 743.21 of the Criminal Code, save as is reasonably necessary or required for the purpose of conducting or defending Family Court proceedings, or required by virtue of any order of the Family Court;
e. There will also be a forfeiture order pursuant to s. 491 of the Criminal Code in relation to the two rifles and two scopes seized by the Ontario Provincial Police incident to arrest on 6 November 2017.
[64] Because this is a federal sentence, I remind you that, as set out in the Gladue report, and depending on the security level assessment that you receive, you may be able to access aboriginal programs, including the pathways initiatives. I also remind you of the after-care programme which is referred to in the Gladue report.
Mew J.
Handed down: 30 November 2021
COURT FILE NO.: CR-18-103 (Kingston)
DATE: 20211130
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
C.H.
Defendant
REASONS FOR Sentence
Mew J.
Handed down (orally): 30 November 2021