COURT FILE NO.: CR-19-0022-00
DATE: 2022-05-31
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
T. Boisvert, for the Crown
- and -
J.B.
K. Matthews, for the Accused
Accused
HEARD: May 30, 2022, at Thunder Bay, Ontario
Mr. Justice F.B. 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
Oral Reasons on Sentence
[1] On February 28, 2022, following a trial, I found J.B. guilty of one count of sexual assault contrary to section 271 of the Criminal Code. I also found that the Crown had not proven beyond a reasonable doubt the elements of another charge before the Court related to utter threats. I had found J.B. not guilty of that offence.
[2] The complainant in this case is J.B.’s cousin. I have identified her as C.B.. A detailed description of the events of the one occasion when J.B. sexually assaulted C.B. in September 2017, are found in my reasons for decision reported as R. v. J.B. 2022 ONSC 1324. I found J.B. had provided C.B. with a substance she thought was crack cocaine. She passed out but came to in time to find J.B. on top of her. Both people were naked. I found J.B. placed his penis in the vagina of C.B. on that occasion and she did not consent.
[3] C.B. was 24 years old at the time of the assault. J.B. was 31.
[4] The provisions of the Code applicable for the offence for which J.B. has been found guilty provides for a maximum sentence of 10 years.
[5] The range of sentence contained in the parties’ submissions are relatively close. The Crown advocates for a sentence of 3 years. The defence argues for a sentence in the range of eighteen months to two years.
[6] I have considered the pre-sentence report prepared in this matter. I also have a very thorough and insightful Gladue report. The Crown read in C.B.’s victim impact statement.
[7] In my view a just, fit and appropriate sentence for an offence of this nature is one which would be one served in a penitentiary. The range of sentence would be towards the lower end. This is honourably reflected in the 3 year sentence proposed by the Crown. Taking into account all aspects of the submissions of the parties, I impose a penitentiary sentence of two years plus one day on J.B. for the crime for which he has been convicted.
[8] This sentence will be served consecutively to the penitentiary sentence J.B. is currently serving for matters completely unrelated to the matters at issue.
[9] I impose this sentence for the following reasons.
[10] I am cognizant of the fact that this matter involved sexual exploitation of family member. The evidence at trial and the relevant portions of the victim impact statement I reviewed demonstrate the devastating impact on C.B. and her family. No doubt, this entire matter represents a huge tragedy on so many levels. To the extent, J.B. has no recollection of the events at issue, today, and while assisting in the preparation of the PSR he has expressed remorse for the impact these events have had on C.B.. The sentence being imposed today, will hopefully in some way, promote the ongoing healing process these family members must undergo as the result of reprehensible actions of J.B..
[11] There is no question an offence of this nature calls for a period of incarceration. This serves to both deter these kinds of repugnant acts but more importantly act as a sign of denunciation for the impact this has had on C.B. and the community.
[12] There are aggravating factors. J.B. committed an offence against a person related to him. It clearly has had a tremendous negative impact on C.B..
[13] On the other hand, at the time of the offence, J.B. did not have a criminal record.
[14] To his credit, J.B. has been taking positive steps towards change while he has been incarcerated on the unrelated charges. J.B. has exhibited a degree of responsibility for his criminal actions. He has said he is sorry for what he has happened to C.B..
[15] Clearly this incident was precipitated by drug abuse. J.B. has been sober since November 2019. This is an incredibly positive turn around for him. He is proud of this accomplishment. Rightfully so. The court was impressed by the actions he has taken to try and better himself while he has been incarcerated. He has taken college courses that will assist him in reintegrating into the community. J.B. indicates he has no intention of returning to Thunder Bay once he is released from prison. While this cannot and would not be ordered by the Court, this may have a long term intangible impact in a positive way on C.B.’s personal path to recovery from the horrible impact this event has had on her.
[16] Of significant importance to the length of the penitentiary sentence I am imposing was J.B.’s Indigenous background and the difficulties J.B. had growing up, particularly his experiences with his father who is Indigenous. This experience was not positive at all times. I am confident that various aspects of J.B.’s life have been highlighted in the Gladue and presentence reports. I appreciate the emphasis counsel have placed on these matters in allowing me to craft a just and appropriate sentence as is required by section 718 of the Criminal Code of Canada, and discussed in the decision of the Supreme Court of Canada in R. v. Gladue 1999 CanLII 679 (SCC), [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.
[17] I note the Crown position as well in coming to this decision. In my view, the low-end penitentiary sentence proposed well and fully encapsulates the Crown’s honour and duty to assist in the process of justice and reconciliation and to observe the direction regarding sentence made by Parliament and the courts.
[18] This sentence will be served in the time of a pandemic. The pandemic is not a “get out of jail free card”. However, it has and likely will create circumstances that will make the time to be served hard time. J.B. is his mid thirties. He needs to use this time to take what programs are offered so that he can emerge from this experience ready to ensure he never again becomes involved in the criminal justice system.
[19] For these reasons J.B. will be sentenced as follows:
For the offence of sexual assault contrary to section 271 of the Criminal Code on C.B. he is sentenced to a period of two years plus one day. The sentence will be served consecutive to the sentence he is presently serving. He will not be given credit for any presentence custody.
He is to be prohibited from possessing non restricted firearms and weapons for a period of ten years pursuant to section 109.1(a) of the Code. He will be granted an exemption to this prohibition for the purposes of exercising his constitutionally protected right to hunt and fish.
He is also to provide a DNA sample forthwith.
J.B. shall comply with the registration requirements of the Sex Offender Information Registration Act pursuant to s. 490.012 and the relevant subsections for a period of twenty years.
Victim impact surcharge is waived.
“original signed by” The Hon. Mr. Justice F.B. Fitzpatrick
Released: May 31, 2022
COURT FILE NO.: CR-19-0022-00
DATE: 2022-05-31
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
J.B.
Accused
ORAL REASONS ON SENTENCE
Fitzpatrick J.
Released: May 31, 2022
/cjj