COURT FILE NO.: CR-1013/18
DATE: 2021-02-04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
David Case and Celine Loyer
Accused
S. Baker, for the Crown
N. Xynnis, for David Case
M. Haraschuk, for Celine Loyer
HEARD: February 1, 2021
DECISION ON SENTENCING
HENNESSY, J. (orally):
[1] The two defendants were convicted of sexual assault on Ms. T: R. v. Case, 2020 ONSC 1186. The pandemic and shut down issues caused the delay between conviction and the sentencing hearing.
[2] While I will discuss the circumstances of the offence for both offenders, I will consider the participation and the personal circumstances of each def separately.
Circumstances of the Offence
[3] The offence occurred at the home of Mr. Case, where the complainant had gone for dinner at the invitation of Mr. Case. Ms. Loyer was also present.
[4] Mr. Case and Ms. Loyer met the complainant a few months earlier in the deli restaurant where she worked. The offenders were regular and known customers and the complainant worked behind the counter. She was 19 years of age and new to Sudbury. Mr. Case initiated the conversations between himself and the complainant. The complainant was impressed by Mr. Case’s reputation as a track coach of track athletes. Mr. Case invited the complainant for coffee on one occasion to try to sell her high-risk securities, I will address this issue later. Then came the dinner invitation. Mr. Case initiated all exchanges and contacts, including the dinner invitation. Some of this communication took place via his Hushmail account.
[5] In his communications with the complainant, Mr. Case used an encrypted Hushmail account, an email account where his emails to the complainant disappeared shortly after they were read. Mr. Case had earlier provided a password to Ms. Loyer to permit her to access his emails to her and to respond to them. This Hushmail account allowed Mr. Case to maintain or store emails received from the complainant and indeed, the def produced one of the complainant’s emails at trial. The complainant on the other hand was not able to store or produce the emails to her from Mr. Case.
[6] Mr. Case picked up the complainant and drove her to his Case apartment. Mr. Case poured two drinks for the complainant, a beer before dinner and a shot after dinner. Immediately following the shot, the complainant felt drowsy and unable to stay awake or control her body. Hours later, after she had been dropped at home, she had flashbacks to a sexual assault on her. In these flashbacks, Ms. Loyer was on top of her while the complainant lay on her back on the floor with her jeans pulled down. Ms. Loyer was digitally penetrating her while Mr. Case was near-by and encouraged Ms. Loyer in crude terms.
[7] The complainant felt very ill the next day but nonetheless worked her early morning shift at the diner. Mr. Case and Ms. Loyer attended for breakfast as per their usual practice and Mr. Case spoke to the complainant about their wild night of drinking the night before. He then began to try to manipulate her memory. Mr. Case told the complainant that she had been intoxicated, loud, profane and out of control. For a number of logical reasons, the complainant found all of this hard to believe. Mr. Case continued over the next few days to push this alternative narrative in conversations and via the Hushmail account. He also tried to minimize the complainant’s reports of feeling unwell and tried to discourage her from going to the hospital.
[8] Notwithstanding these efforts by Case, the complainant attended at the hospital in the days following and nurses photographed the finger like bruises on her inner thighs. The location and the shape of the bruises corresponded to the complainant’s memory of how Ms. Loyer physically touched her.
[9] Ms. Loyer also reported the incident to the police who did not investigate the complaint. Years later, the police contacted Ms. T and began an investigation into her allegations.
[10] The finding at trial was that the complainant had reliably recounted an experience of sexual assault at the Case apartment, with the full participation of both defendants. I found that Ms. Loyer digitally penetrated Ms. T while Mr. Case encouraged her to continue with the assault. Mr. Case was found a party to the assault on the basis of his extensive involvement before, during and after the dinner including: inviting Ms. T to dinner at his place, picking up the complainant and bringing her to dinner, controlling the conversation, pouring the drinks and sitting at her head while encouraging Ms. Loyer to continue the assault, dropping Ms. T off at her residence at the end of the evening, trying to manipulate Ms. T’s recollection of the incident and minimizing her feelings of illness the following day. I found on the facts that Mr. Case’s actions leading up to the assault were for the purpose of facilitating, encouraging and assisting Ms. Loyer in committing the assault and afterward for the purpose of manipulating the complainant’s memory to exculpate him and Ms. Loyer.
Pre-Sentence Reports
David Case
[11] Mr. Case is now 58 years old. He has been a resident of Sudbury for most of his life. Mr. Case came from a loving, stable two parent home. He reports that he suffered from racist taunts and bullying in early years at school but that things improved in secondary school. He received an athletic scholarship to an American college which he attended for three years.
[12] Mr. Case has a good relationship with an older sister who lives in California and with an uncle. Both of these family members do not believe that Mr. Case is capable of the offence as described.
[13] Mr. Case would not provide contact information to the report writer for two of his former intimate partners. The third intimate partner has passed away. Consequently, there was very limited information on these relationships.
[14] With respect to his employment history, the writer of the pre-sentence report traces a number of different jobs that Mr. Case reported that he held for 2, 3 and 4-year periods since he left college in 1984 (approx.). These jobs were described as: public relations, junior executive with a media outlet, representative for a company specializing in tax, accounting law, HR, financial planning, special representative for management consulting firm, senior management position at call centre, operating his own call centre, and forming his own music company in 2011. Mr Case indicated that he had success on the production of a song in 2017/2018 and that currently he has songs playing on international radio.
[15] It appears that the report writer was only able to obtain very limited information or corroboration of Mr. Case’s reported employment or work activities over 30 years. The job titles of “junior executive or representative” provide no information and no employers were identified or confirmed any of the positions or experience. I note in particular that there is no mention of any accreditation or experience or involvement in “high risk commodity sales”, which is how Mr. Case described his work to the complainant in 2011.
[16] Mr. Case reported that he formed his own music company in 2011 and had achieved many professional accomplishments over the years. A colleague in the music industry confirmed that the two had worked together in 2017 and had known one another for approximately 10 years. Since his arrest in 2017 and the subsequent publicity Mr. Case reported that his business has imploded, and he has very little income. He is now in receipt of social welfare benefits.
[17] Mr. Case reported that he coached track athletes, sometimes for remuneration, sometimes gratis since he was a young man. A representative Athletics Ontario coach, John Stevenson, vouched that Mr. Case had been a member of the coaches’ association in good standing for over three decades. Mr. Stevenson indicated that he had worked with Mr. Case at one meet in 2010 and that have “been in contact for the last three years on this case”. However, I note the subject line of this letter of reference reads: “RE: K. Pentney Johnson Legal Matter. This subject line does not refer to the charge before this court. I cannot tell if Mr. Stevenson knew about the charges before the court. I note that there were no other contacts made by the report writer with others involved in track either as athletes or coaches.
[18] For the most part, the report writer indicated that Mr. Case maintained his innocence and advised that he would provide only limited information as per the legal advice he had received.
[19] Mr. Case reports that he has suffered from racist taunts since his arrest and a physical assault in 2019 which resulted injuries that continue to cause him physical suffering. He attributes at least part of this to what he calls disproportionate media coverage of his matters. He also suffers from mental health issues as a result of the court process.
Celine Loyer
[20] Ms. Loyer has been a lifelong Sudbury resident and was brought up in a stable and happy two-parent home. She was 22 years old at the time of the offence. She is now 31 years old.
[21] In high school Ms. Loyer was a strong student and an accomplished track athlete. It was her association with track that brought her into the world of the co-accused, David Case. Ms. Loyer continued to complete in track during her years at college. Her track career ended in 2014 as a result of cumulative injuries.
[22] In 2011, Ms. Loyer became a registered massage therapist and began to develop a professional practice. However, since her arrest, and with the additional stress of the pandemic shutdowns, her client base has diminished to the point where she made the decision to resign from her professional college. Former massage therapy clients gave very positive accounts of Ms. Loyer as a professional massage therapist. As her practice diminished, Ms. Loyer has spent time with Mr. Case in his music business. At this time, the business is not generating much income. There was no detail provided about Ms. Loyer’s role or her skill set in that business.
[23] Ms. Loyer continues to live with her parents and enjoys a supportive relationship with them and with her sister.
Mitigating Factors
[24] Ms. Loyer appears before the court as a first offender. She was quite young at the time of the offence.
[25] I am aware that Mr. Case has very recently been convicted on charges arising from historical incidents. The Crown asked that Mr. Case be considered a first offender for the purpose of this sentencing and I will do so.
[26] Both parties maintain their innocence of the charge and thus have not expressed remorse. I consider this only for the purpose of noting that there is no mitigation flowing from any expressions by either of Ms. Loyer or Mr. Case.
[27] Ms. Loyer has very supportive family and friends. She had completed the necessary education and training to become a registered massage therapist and had started a small professional practice.
[28] Mr. Case has some family support but distant and or elderly. Although Mr. Case reported a long history of pro-social activity, his refusal to permit the report writer to contact his past partners does not provide any reassurance that these self-reported activities could be corroborated. I am also reminded of the complainant’s unchallenged evidence at trial that Mr. Case attempted to persuade the complainant and her partner provide him with cash so that he could invest in “high risk commodities” for them. As I indicated, this interest or activity in investing did not appear anywhere in Mr. Case’s long list of employment or self-employment activities. On the basis of the pre-sentence report before me, Mr. Case has a much higher view of his contribution to the community or pro-social activity than is borne out in the pre-sentence report.
Aggravating Factors
[29] The aggravating factors under consideration include:
• The victim was 19 years old at the time of the assault, new to the city, on her own, young and impressionable.
• The victim was unconscious at the time of the assault, completely vulnerable.
• The sexual assault included digital penetration, a serious violation of the human dignity and sexual integrity of the victim.
• Both Mr. Case and Ms. Loyer were involved in the incident, this was a two-on-one assault.
• For Mr. Case, it is an aggravating factor that he tried to manipulate the victim’s memory by telling her more than once that she had been wild and drunk and sexually inappropriate the night of the incident.
• For Mr. Case, his callous disregard for the victim’s welfare when he dropped the victim off outside her apartment, when she was barely capable of navigating the steps to her apartment and was clearly unwell is also an aggravating factor.
[30] The first four of these aggravating factors increase the moral blameworthiness of both Mr. Case and Ms. Loyer. As I have noted, the last two factors pertain to Mr. Case alone.
Objectives of Sentencing
[31] The primary objectives of sentencing first offenders, personal deterrence and rehabilitation must be read against the very serious offence of sexual assault: R. v. Priest, 1996 CanLII 1381 (ON CA), [1996] O.J. No. 3369, 110 C.C.C. (3d) 289 (Ont. C.A.). There is no dispute that deterrence and denunciation the primary objectives of sentencing in this matter.
General principles in sentencing of sexual assaults
[32] The fundamental principle of sentencing is set out in s. 718.1 of the Code: a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[33] The Supreme Court has recently commented on the community’s heightened understanding and recognition of the profound physical and psychological harm caused by sexual assault: R. v. Goldfinch, 2019 SCC 38, [2019] S.C.J. No. 38, at para. 3; R. v. Friesen, 2020 SCC 9, 391 C.C.C. (3d) 309, at para. 118.
[34] “All forms of sexual violence, including sexual violence against adults, are morally blameworthy precisely because they involve the wrongful exploitation of the victim by the offender — the offender is treating the victim as an object and disregarding the victim’s human dignity...” Courts must give proper weight in sentencing to the offender’s underlying attitudes because they are highly relevant to assessing the offender’s moral blameworthiness and to the sentencing objective of denunciation: R. v. Friesen, 2020 SCC 9, 391 C.C.C. (3d) 309, at para. 89.
Impact on the Complainant
[35] The complainant, who no longer lives in Sudbury, declined to provide a victim witness statement. I recall her testimony during the trial, which took place nine years after the event, long after she had left Sudbury. She had to travel back here to give evidence. The complainant was shown an article from the Sudbury Star 2017 in which she was interviewed and spoke about the impact the assault had on her. The complainant said that she still felt the haunting impact of the assault after the passage of several years, that it had hampered her interactions with others. In particular, she said that she felt preyed upon, isolated and victimized, and was left very untrusting of others. She noted that the assault affected her in relationships, particularly sexual ones.
[36] I do not underestimate the trauma to a young woman resulting from her dealings with the hospital or the police and the impact these had on her. She was still a teenager and she had no family in Sudbury. She testified about her reluctance to seek help from either the police or the hospital. She testified about her reluctance to allow the ER nurse to photograph her body and how she had to return for a second visit to have the photos taken. She testified about the intrusiveness of the “rape kit” physical and forensic examination. She testified about talking to the police officer in his cruiser and having the officer tell her that he knew David Case and could go and speak with him if she wanted. She did not want that.
Position of the parties
Defence Position
[37] Counsel for Ms. Loyer and Mr. Case submit that the range for this offence, (digital penetration on unconscious victim) by first time offenders is from 6-15 months.
[38] Defence counsel submits that an appropriate sentence for their clients would be 6 months jail followed by 12 months’ probation with the condition to attend any counselling that might be recommended by the probation officer.
[39] Counsel for both Mr. Case and Ms. Loyer focus on the minimal and short duration of the actual assault, that as first-time offenders they come before the court with a pro-social past and low risk of re-offending. Counsel for Ms. Loyer underscores that she is a prime candidate for rehabilitation. Counsel for Mr. Case submits that he had minimal participation in the offense, that it was limited to a few words.
[40] Both Mr. Case and Ms. Loyer report mental health issues arising from the prolonged stress of the criminal charges and process. Mr. Case has suffered racist attacks, verbal and physical, which in part was blamed on the “notorious publicity” surrounding this trial.
[41] Counsel underlines the COVID-19 pandemic, its affect in congregational settings, i.e. jails and Mr. Case’s underlying health issues and age. Counsel submit that the defendants should be sentenced to the shortest sentence possible in light of the risks presented to them in jail.
[42] Defense counsel referred to the following cases including: R. v. D.(D.), 2015 ONSC 5865, [2015] O.J. No. 4888; R. v. M.D., 2018 ONSC 2792; R v. M.R., 2018 ONSC 583, 2019 ONSC 583, [2018] O.J. No. 476; R. v. Studd, 2020 ONSC 2810, [2020] O.J. No. 2035; R. v. McKenzie, 2017 ONCA 128, 346 C.C.C. (3d) 477. They also relied upon three COVID-19 cases: R. v. Hearns, 2020 ONSC 2365, [2020] O.J. No. 1648; R. v. Studd, 2020 ONSC 2810, [2020] O.J. No. 2035; R. v. Vaughan, 2020 ONSC 3765.
[43] Counsel also distinguished R. v. John, 2020 ONSC 5171 and R. v. Smith, 2015 ONSC 4304, [2015] O.J. No. 3513, both relied upon by the Crown, as those cases involve penile penetration.
Crown Position
[44] Crown counsel submitted that the range of sentence for this offence is from high reformatory to low penitentiary. She asked this court to impose a sentence of either 2 to 3 years in the penitentiary or 2 years less a day plus 2 years’ probation.
[45] Crown counsel relied on Friesen and Goldfinch for the proposition that all offences of sexual violence cause profound harm and that it is a mistake to narrow the focus to levels physical interference as the defining feature of the offence. She also relied on recent Ontario cases: R. v. John, 2020 ONSC 5171, R. v. M.R., 2018 ONSC 583, [2018] O.J. No. 476, R. v. Smith, 2015 ONSC 4304, [2015] O.J. No. 3513 and R. v. Laz-Martinez, 2011 ONCJ 115, [2011] O.J. No. 1190, which set out the range of sentence that is appropriate for the circumstances.
COVID-19 Considerations
[46] Although I must also take into consideration the issues arising from the pandemic and the risk of being incarcerated, I have learned indirectly that provisions have been made to release the offenders on bail today, pending the appeal of their convictions. Counsel has now confirmed that this information is correct.
[47] None of us can predict what conditions will exist by the time this appeal is heard. At the same time, I have no reason to believe that this appeal would be heard outside of the usual time periods. I will assume that an appeal could not be scheduled within the next 12 months. What the risk of contracting an infectious disease in jail will be 12 months from now, none of us can know. However, I also note the high level of optimism that a vaccine will be available for those living in congregate settings sometime before the year is out. For these reasons, none of which is objectively ascertainable, I will not take into account the COVID-19 risk factor.
Discussion of a fit and appropriate sentence
[48] A fit sentence in this matter must properly condemn the callus use of a woman’s body for the personal gratification. A fit sentence must acknowledge the harm done to the victim.
[49] I do not subscribe to the theory that there is a hierarchy of physical interference, which suggests that some types of physical interference are, by definition, more or less harmful than others. Context matters. Modifying slightly the language of the SCC in Friesen, it is my view that it would be an error to downgrade the wrongfulness of the offence in this matter or the harm to this victim because the physical interference does not involve penile penetration: R. v. Friesen, 2020 SCC 9, 391 C.C.C. (3d) 309, at para. 144.
[50] Ms. Loyer and Mr. Case committed and were both involved in the assault, involving the digital penetration of the young, naïve, unconscious victim, isolated in the home of the perpetrator. This offence attracts a high degree of moral blameworthiness. The crude and encouraging words of Mr. Case, his initiatives to bring the complainant to his home and his later repeated efforts to manipulate the memory of the victim are strong markers of his significant involvement. The events in this case do not suggest that the assault was a momentary aberration of character for either of the offenders. However, Crown counsel did not argue, and I did not find that the assault was planned out in advance. At the least, they were responsible for creating the conditions under which a vulnerable person was alone with them and they took advantage of her when she was utterly defenseless. As the court said in R. v. Smith, the offenders “opportunistically victimized the complainant as their inert sexual playmate”: R. v. Smith, 2015 ONSC 4304, [2015] O.J. No. 3513, at para. 39.
[51] The complainant testified that in her dealings with the two offenders she could not recall Ms. Loyer speaking on her own initiative. Mr. Case did the talking, the planning and the organizing. His emails to the complainant were often signed in both names but the complainant understood that it was Mr. Case who was doing the talking.
[52] I do not accept the defence description that this was an assault of short duration, nor do I accept that Mr. Case’s involvement amounted to a few words. The victim was in and out of a state of unconsciousness for hours from the time she accepted a shot poured by Mr. Case to the time when she saw, felt and heard the assault on her body to the time when she was dropped off at her residence. The assault involved more than the digital penetration. The complainant’s clothes were partially removed and were put back on. She was moved from the couch to the floor to the car. Her body was manipulated and undressed and dressed and loaded into a car. None of those actions did she do herself.
[53] It has been said many times that sentencing is an individualized process. Each case has its own particular facts and mitigating and aggravating circumstances. In R. v. M.R., 2018 ONSC 583, [2018] O.J. No. 476, at para. 32, Boswell J. of this court reviewed a number of cases involving sexual assault on unconscious or sleeping victims. He accepted and adopted the finding in R. v. Smith, 2015 ONSC 4304, [2015] O.J. No. 3513 at para. 32, where Campbell J. found that the usual range of sentence for an offender who has committed an invasive sexual assault on a sleeping or unconscious victim is between an upper reformatory and a penitentiary term of imprisonment, that is 18 months to 3 years. In MR, the court imposed a sentence of 14 months in custody.
[54] In MR, the offender was a 64 years of age first offender with a significant history of positive community involvement. The court also noted in MR that the penetration was minimally invasive and not sustained intercourse. This decision pre-dates the SCC decision in Friesen.
[55] In Smith, Campbell J. found that the 16 months conditional sentence imposed by the trial judge failed to appropriately balance all of the relevant sentencing considerations. The court imposed a sentence of 9 months custody plus 3 years’ probation but noted that it was also lenient. However, the court also noted that the Crown had not asked for more than 9 months, and 2 years had passed since the original sentencing.
[56] The facts in Smith involve an unconscious homeless young woman who was sexually assaulted by a young man in his apartment. The assault involved sexual intercourse. The young man was a first-time offender with a high degree of rehabilitation potential. The trial judge found him to be a good person who did a bad thing.
[57] Neither of these cases have facts which fit squarely with the facts in this case. However, they are important for the review of the caselaw and the conclusion reached on the range of sentence for sexual assaults on unconscious victims.
[58] Defence counsel submits that both MR and John are distinguishable because they involve penile intercourse. But for the body part that penetrated the complainant’s body, there is no great difference in the actual physical interference. Digital penetration is still highly invasive not only of the human dignity of a person but also of their sexual integrity. What distinguishes the facts of this case more than the body part that penetrated the complainant is the fact that two people were involved, the complainant was unconscious, wholly vulnerable and taken advantage of by those who took the opportunity to victimize her.
[59] I accept the Crown’s submission based on these findings by this court that the range of sentence for first time offenders convicted of sexual assault on unconscious victims is a high reformatory to low penitentiary custodial term. The Crown submits that a sentence that would be fit for one of them would be fit for the other. The defence counsel did not disagree with this last submission.
[60] In my view a custodial sentence at the low end of the range is a fit sentence in this matter. I am somewhat hampered in my ability to assess the extent of harm to the complainant in the absence of a current statement from her. Both offenders have a high degree of moral blameworthiness for how events unfolded that night. Before their eyes was a vulnerable and unconscious young woman with very few ties or connections to the community. I find on the facts of this case that each of Ms. Loyer and Mr. Case participated in this egregious violation of the complainant and each of them played a role that helped the other.
Conclusion
[61] I conclude that a sentence of 16 months in custody is appropriate for both Mr. Case and Ms. Loyer. This sentence will be consecutive to any sentence that Mr. Case must otherwise serve. A period of incarceration will be a very difficult experience for both of them, but it is necessary to achieve the denunciation and deterrence that is called for in the circumstances. In addition to the custodial sentence, I further impose 2 years’ probation.
[62] Counsel for both defendants asked that I not impose a term that the offenders remain apart from one another and noted that they have been permitted to associate with one another as an amended term of their pre-trial release. I am of the view that their continued association is not in the public interest.
[63] Ms. Loyer and Mr. Case acted together to commit this assault, with Mr. Case providing the opportunity and the encouragement. The exact nature of their relationship is not clear to me; however, it began when Mr. Case was a track coach and Ms. Loyer was one of his athletes. There is a more than 25-year age difference. Mr. Case reported that he has long had an interest in music, has started a promotion and production company and has had some success in the industry. There is nothing in Ms. Loyer’s background to even hint at an interest or background or ties to the music industry, although she now says this is where she wants to invest her time with Mr. Case. She lost her profession as a result of the charges in this case. Her association with Mr. Case post-track has not been positive. She is young and still has an opportunity to take her skills and education and make a productive change.
[64] It is in the interest of society that the terms of probation provide the best opportunity for the rehabilitation of the offenders. I am of the view that successful rehabilitation of these offenders has its best potential if they each go their own separate ways. The author of the pre-sentence report sought to impose limits on Ms. Loyer’s ability to associate with Mr. Case. She suggested that Ms. Loyer’s association to Mr. Case be limited to employment. However, Mr. Case admitted that his business imploded after these charges. He is living on social assistance. He is in no position to employ Ms. Loyer nor will he be for some time, if this sentence is served.
[65] A non-association, non-communication term between Mr. Case and Ms. Loyer will be a term of the probation.
[66] I see no reason why it should not be a term of release pending appeal, especially given the non-existent employment opportunities with Mr. Case’s music business.
Additional terms of probation:
Reporting to probation officer;
Participating in any counselling or assessment process recommended by the
probation officer;
Abstain from communicating with the complainant;
Appearing before the court when required; and
Notify the court or probation officer in advance of any change of name or
address or employment or occupation.
Ancillary Orders:
SOIRA 20 years; and
s. 109 weapons prohibition.
The Honourable Madam Justice Patricia C. Hennessy
Released: February 4, 2021
COURT FILE NO.: CR-1013/18
DATE: 2021-02-04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
David Case and Celine Loyer
Accused
DECISION ON SENTENCING (orally)
Hennessy, J.
Released: February 4, 2021