Court File and Parties
COURT FILE NO.: CR-18-542 DATE: April 14, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN T. James, Counsel for the Crown
- and -
G. T. Offender C. Peddle, Counsel for the Offender
HEARD: December 21, 2021
REASONS FOR SENTENCE
PUBLICATION RESTRICTION NOTICE
By court order made under subsection 486.4(1) of the Criminal Code, no information that might identify the person described in this judgment as the complainant shall be published, broadcast or transmitted in any manner. This judgment complies with this restriction so that it can be published.
JAMES, J.
Introduction
[1] On December 2, 2020 I found G.T. guilty on one count of sexual assault. The reasons for decision are reported at 2020 ONSC 7513.
[2] After conviction but before sentencing, G.T. and P.L. who was also convicted of one count of sexual assault in an unrelated matter and was awaiting sentencing, filed a Notice of Application and Constitutional Question on February 16, 2021. The applications were heard together on May 31, 2021 and a decision granting the applications was released on September 24, 2021.
[3] Sentencing submissions were heard on December 21, 2021 and the matter was adjourned to today for disposition.
Facts
i) Circumstances of the Offence
[4] G.T. and victim were summer students working at Algonquin Park. They lived in a staff house that had a common room and an adjacent kitchen with two wings of accommodation leading off the common room.
[5] G.T. was in his fifth summer of work at Algonquin Park. It was the victim’s third summer working there. They knew each other, but I would not describe them as friends.
[6] It was common to consume alcohol at the staff house after work. G.T. said it was like a university residence.
[7] G.T. said it was common for him to drink heavily, sometimes to the point of blacking out and he was very intoxicated on the night in question.
[8] Late in the evening of June 30th, 2017, the victim joined a group of co-workers around a campfire at the back of the staff house. G.T. was there dosing in a chair. Sometime later the victim’s co-workers left the area around the campfire leaving only G.T. and the victim present. G.T. moved his chair beside the victim’s and as she stood up to go, he pulled her onto his lap. They began kissing. The victim was somewhat impaired by alcohol. She estimated her degree of intoxication as 5 out of 10.
[9] G.T. made a vulgar comment to the victim about wanting to have sex with her. She said she didn’t want to and stood up to leave, but G.T. had a grip on her arm.
[10] As a ruse, she suggested that G.T. ought to get a condom and when he left to do so, she went to her room and locked the door.
[11] Later, when she left her room to go women’s washroom, she saw G.T. in the common room. On her way back to her room, he followed her and entered her room uninvited.
[12] After some coaxing by G.T., they had consensual, vaginal intercourse, which was followed by consensual, mutual oral sex. I accepted the victim’s evidence that she was trying to be strategic in dealing with G.T.’s advances. She was motivated more by fear than passion.
[13] The issue at trial involved anal contact. The facts as found were that G.T.’s penis came in contact with the victim’s anus during intercourse and the victim told him that she did not consent to that touching. Later, during oral sex, G.T. touched the victim’s anus with his finger, more than once. She said it hurt. She told him not to. He did it again after he was told not to the first time.
ii) Circumstances of the Offender
[14] G.T. was 23 years old at the time of the incident. He is single. He has no criminal record. He currently works at a call center.
[15] He testified that the aftermath of the incident contributed to the loss of an opportunity to obtain long-term employment with the Ministry of Natural Resources.
[16] While awaiting trial, he enrolled in Trent University, but he did not complete the program.
Parameters of the Offence of Sexual Assault
[17] When prosecuted by indictment, everyone who commits a sexual assault is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of 1 year.
[18] In response to the application to determine a constitutional question, I found that the prohibition against conditional sentence orders for a sexual assault conviction was of no force and effect because the prohibition violated Section 7 of the Charter. This decision is reported at 2021 ONSC 6291. As a result, a conditional sentence order, sometimes referred to a custodial sentence to be served in the community, is an available sentencing option.
Position of the Crown
[19] The sentencing position of Crown counsel is that an appropriate sentence would be a period of incarceration in the range of 18 to 24 months together with a period of probation of 12 to 18 months and various ancillary orders.
[20] Crown counsel requested an opportunity to make further submissions in the event that G.T. was sentenced to a conditional sentence to be served in the community.
Position of the Defence
[21] Defence counsel submits firstly that a conditional discharge would be appropriate, or alternatively that a conditional sentence in the range of 3 to 6 months followed by probation for 18 months would be a fit sentence and would adequately respond to the purpose and principles of sentencing offenders for their crimes.
Case Law
[22] I will now refer to a few of the numerous cases that counsel have referred to in support of their respective positions. A word of caution first. No two cases are exactly the same. Sentencing someone for the crime or crimes they have committed is a highly individualized exercise. The sentences imposed by judges in other cases can provide useful comparisons but ultimately, my task is to sentence this offender for this specific crime. Each case turns on its own particular circumstances.
[23] Crown counsel has tendered numerous cases in which a conditional sentence was found to be inadequate. See for example R. v. J.S., 2011 ONSC 1743 at para. 37; R. v. Bisson, 2010 ONCA 556 and R. v. R.J.J., 2010 ONSC 4494. A common theme is that a conditional sentence requires the presence of significant mitigating circumstances.
[24] The case of R. v. Garrett, 2014 ONCA 734 makes the point that initial consent to certain activities, in Garrett it was kissing, does not render less serious the subsequent non-consensual sexual activity. As a general proposition, the presence of consensual sexual activity is not a mitigating factor when sentencing an offender for sexual assault.
[25] On the defence side, Ms. Peddle referred to several cases where a conditional sentence was found to respond adequately to the need for a sentence to demonstrate the primacy of denunciation and deterrence. See for example R. v. Andrews, 2019 ONCJ 436 and R. v. Morgan, 2021 ONCJ 100.
[26] Defence counsel also provided cases where a conditional discharge was found to be appropriate. See for example R. v. Berseth, 2019 ONSC 700 which was essentially a groping incident that had a drastic effect on the victim. Berseth was a case of a youthful first offender who had a positive presentence report, pleaded guilty and was remorseful. He was granted a conditional discharge with 15 months’ probation.
[27] A feature of many of the conditional discharge cases is that the offender clearly expressed his remorse and showed insight into how the offending behavior affected the victim.
[28] Another common feature is that the offender often faced the prospect of losing long term employment if incarcerated.
Victim Impact Statement
[29] The impact of a crime on the victim is a relevant sentencing consideration.
[30] In this case, the victim provided a victim impact statement which was marked as Ex 1 at the sentencing hearing. The victim described in articulate and compelling terms how she was affected by the assault and that she is still experiencing some of the effects years later.
[31] In the first and last paragraphs of her statement the victim says in part as follows:
The experience I had in the summer of 2017 was so traumatic that I still cannot dive into my therapy notes to review my healing journey. Part of me would have liked to get into this, however, I decided that I am going to reclaim my power and leave this pain in the past. Instead, I will share the things that impact me the most and let them go. These things still haunt me today in the form of flashbacks and triggers.
What impacted me the most was that I learned G.T. started attending Trent University in Peterborough, ON. This is my hometown in which I was born and raised for 18 years. Sadly, I was too fearful to visit my friends and family for so long. I didn’t feel safe to go home. That was the toughest and most upsetting circumstances. I felt isolated and alone because I could not go home. I was terrified that I would see him.
Mitigating and Aggravating Circumstances
[32] A mitigating circumstance is one which tends to reduce an otherwise appropriate sentence.
[33] In this case, I find the following mitigating circumstances to be present:
a. G.T. who was 23 when the offence was committed and is now about 27 years old is a youthful offender; b. He does not have a criminal record; c. He pursued schooling and employment opportunities while awaiting trial and sentencing; d. He is approaching four years on bail without any reported incidents and this during a global pandemic; and e. His statement to the court indicated that he has matured and reduced his consumption of alcohol. He said that he knows he did something wrong. In his words, “I was not the most chivalrous person.”
[34] An aggravating circumstance is one which tends to increase an otherwise appropriate sentence.
[35] I find that G.T.’s behaviour on the night in question was single-minded and persistent, if not predatory. He followed the victim into her room when she was returning from the washroom. She had nowhere to retreat to.
Principles of Sentencing
[36] I agree with and adopt the summary of applicable principles provided by Justice Schreck in R. v. Holland, 2020 ONSC 846 where he stated at para 15:
Section 718 of the Criminal Code provides that the “fundamental purpose of sentencing is to protect society and to contribute … to respect for the law and the maintenance of a just, peaceful and safe society….” This is to be accomplished through the imposition of just sanctions that have one or more of several objectives enumerated in s. 718(a) to (f), including denunciation, general and specific deterrence and rehabilitation. As the Ontario Court of Appeal recently stated in R. v. Morris, 2021 ONCA 680, at para. 58, “[t]he individualization of the sentencing process requires sentencing judges to prioritize and blend the different objectives of sentencing so as to properly reflect the seriousness of the offence and the responsibility of the offender.” While there will rarely be only one possible fit sentence, s. 718.1 of the Code provides that any sentence that is ultimately imposed “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”
[37] Cases involving sexual assault require that primacy be given to the need to denounce the offender’s wrongful conduct and to deter the offender and others from committing similar crimes in the future.
Is a Conditional Discharge a Fit and Appropriate Disposition?
[38] Section 730 permits the court to discharge an accused either absolutely or conditionally, subject to the terms of a probation order, if it considers it to be in the best interests of the accused and not contrary to the public interest. The effect of a discharge is that, subject to certain conditions, the offender shall be deemed not to have been convicted of the offence.
[39] In his statement to the court, G.T. stated that he felt shame for his situation, such that he has not told some members of his family about his situation because he was concerned about how they would regard him. He said he used selfcare techniques and the counselling service at his university to curb his drinking habits which have been reduced to near abstinence. I took from his comments that he felt he had matured.
[40] In my view, however, there was a notable absence of a genuine expression of empathy for the victim and the consequences of his actions. At trial he said he wouldn’t have ordinarily been attracted to the victim absent his intoxication. No apology. Little insight into the concept of consent. No evidence from collaterals regarding how his behaviour has changed, no confirmatory information about the counselling beyond his self-reporting. No positive comments or any observations commonly found in a pre-sentence report, especially respecting a genuine sense of remorsefulness. His remorse seemed focused on himself. I thought it was notable that he hadn’t confronted his blameworthiness by revealing his situation to family members. He referred to his actions as lacking in chivalry, a gross understatement of his criminal conduct.
[41] In making these comments, I have reminded myself that while the presence of remorsefulness can be a mitigating factor, its absence is not an aggravating factor.
[42] Rehabilitation is an important consideration for any youthful first offender but it requires an offender to acknowledge the harm done, to confront his blameworthiness and to take responsibility for his actions. The full measure of these actions is not present here.
[43] My conclusion is that having considered the totality of the evidence, the purpose and principles of sentencing and in particular the circumstances of this offender and this offence, I find that a conditional discharge would not be in the public interest and would not be a fit and appropriate disposition.
The Pre-Requisites for a Conditional Sentence
[44] Section 742.1(a) of the Criminal Code sets out two pre-requisites. The first is that the sentence must not endanger the safety of the community.
[45] G.T. has been on bail for an extended period of time without incident.
[46] He does not have a criminal record and certainly no history of violence.
[47] Although I do not have the benefit of the observations typically included in a pre-sentence report regarding an offender’s suitability for supervision in the community, there is nothing in the evidentiary record that would suggest that G.T. poses as a safety risk if he was sentenced to a custodial sentence to be served in the community.
[48] The second pre-requisite is that a conditional sentence must be consistent with the fundamental purpose and principles of sentencing. Denunciation and deterrence are paramount sentencing objectives in sexual assault cases. However, a conditional sentence can have both a denunciatory and deterrent effect. (See R. v. Sharma at paragraph 110; R. v. Proulx, 2000 SCC 5 at paragraphs 41, 67).
[49] I acknowledge that there are numerous cases that hold that a conditional sentence for sexual assault requires exceptional circumstances, but these cases usually involve significant aggravating factors, such as a child victim, a victim who is incapable of consenting or the presence of gratuitous violence, all of which are absent in this case.
[50] In addition, I find that the lengthy period of time taken to complete this case, the protracted period of pretrial bail and the associated prolonged period of jeopardy and limitations on G.T.’s liberty interests are powerful mitigating factors. I acknowledge that part of the delay is attributable to the global pandemic. I acknowledge as well that several months were taken up by the successful defence decision to seek a constitutional determination regarding the availability of a conditional sentence. However, these considerations do not change the fact that G.T. has been caught up in the criminal justice system for an excessive period of time. His first trial date was in April, 2020 which was adjourned due to the pandemic. The matter was spoken to in July, 2020 and the trial proceeded at the end of September, 2020. Reasons for decision were provided on December 3, 2020. As I previously indicated, the Constitution Question was heard on May 31, 2021 and the decision was released on September 24, 2021. Sentencing submissions were heard on December 21, 2021 after having been postponed once. A fit and appropriate sentence must reflect this reality. The delay warrants not only adjusting a fit and appropriate sentence from incarceration to a custodial sentence to be served in the community but also a reduction in the duration of the conditional sentence.
[51] Having considered the aggravating and mitigating factors involved in this case, the principles of sentencing, as well as the impact of G.T.’s conduct on the victim, I conclude that a conditional sentence would not be inconsistent with the fundamental purpose and principles of sentencing.
Disposition
[52] I find that the appropriate sentence in this case would be a conditional sentence of 12 months.
[53] You must obey all of the conditions listed below (conditional sentence order):
a. Keep the peace and be of good behaviour; b. Appear before the Court when required to do so by the court; c. Report as the Court directs in person to a supervisor and thereafter report when required by the supervisor and in a manner directed by the supervisor; d. Remain in Ontario unless you have prior written permission from the court or the supervisor to leave the province; e. Notify the court or supervisor in advance of any change of name or address and promptly notify the court or supervisor of any change in employment or occupation; f. Report today by phone (613-735-6809) to a supervisor and after that, at all times and places as directed by the supervisor or any person authorized by a supervisor to assist in your supervision; g. Cooperate with your supervisor. You must sign any releases necessary to permit the supervisor to monitor your compliance and you must provide proof of compliance with any condition of this order to your supervisor on request; h. Live at a place approved by the supervisor and not change that address without obtaining the consent of the supervisor in advance; i. The home confinement condition will be in effect for the first 4 months of sentence. During the period of home confinement, you shall remain in your residence or on the property of your residence at all times except: i. Between 9:00 a.m. and 1:00 p.m. on Tuesdays and can be adjusted in consultation with your supervisor, in order to acquire the necessities of life; ii. For any medical emergencies involving you or any member of your immediate family (spouse, child, parent, sibling); iii. For going directly to and from or being at school, employment, court attendances, religious services and legal or medical or dental appointments; iv. For going directly to or from and being at assessment, treatment or counselling sessions; v. For carrying out any legal obligations regarding compliance with this Conditional Sentence Order; and j. You will provide your employment and/or school schedule in advance to your supervisor. k. During your period of home confinement: You must present yourself at your doorway upon the request of your supervisor or peace officer for the purpose of verifying your compliance with your home confinement condition; l. Do not contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means, with: E. L. or any members of her family; m. Do not be within 100 meters of any place you know any of the persons named above to live, work, go to school, frequent or any place you know the person to be, except for required court attendances; n. Do not buy, possess or consume alcohol, cannabis, or any other intoxicating substances. Do not possess or consume any unlawful drugs or substances. Refer to the Controlled Drugs and Substances Act except with a valid prescription in your name or those available over the counter; o. Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by your supervisor and complete them to the satisfaction of the supervisor for including, but not limited to: i. Substance abuse; and ii. Sexual behaviors. p. You shall sign any release of information forms as well enable your supervisor to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed.
[54] The probation order is in effect for 18 months. You must obey all of the conditions listed below (adult probation order):
a. Keep the peace and be of good behaviour; b. Appear before the Court when required to do so by the court; c. Notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change in employment or occupation; d. Report today by phone (613-735-6809) to a probation officer and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision; e. Cooperate with your probation officer. You must sign any releases necessary to permit the probation officer to monitor your compliance and you must provide proof of compliance with any condition of this order to your probation officer on request; f. Live at a place approved by the probation officer and not change that address without obtaining the consent of the probation officer in advance; g. Do not contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means, with: E. L. or any members of her family; h. Do not be within 100 meters of any place where you know any of the person(s) named above to live, work, go to school, frequent or any place you know the person(s) to be except for required court attendances; i. Do not possess or consume any unlawful drugs or substances (refer to the Controlled Drugs and Substances Act) except with a valid prescription in your name or those available over the counter; j. Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer including, but not limited to: i. Substance abuse; and ii. Sexual behaviors. k. You shall sign any release of information forms to enable your probation officer to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed.
Mr. Justice Martin James
DATE RELEASED: May 16, 2022
