COURT FILE NO.: CR-21-70000013-0000
DATE: 20220802
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JOSEPH THOMSON
Mark Friedman, for the Crown
Toomas Ounapuu, for Mr. Thomson
HEARD: June 28, 2022
R.F. GOLDSTEIN J.
1. Overview
[1] Mr. Thompson broke into a Ryerson female residence and raped a young woman in her bed. He was found guilty of sexual assault by a jury. He now comes before the Court for sentencing.
2. The Facts
(a) Circumstances of the offence
[2] On January 25, 2019, Mr. Thomson broke into Ebbis Hall at 180 Sherbourne Street in Toronto. Ebbis Hall was a residence for female students attending Ryerson University. A.M., the victim, lived in Room 103 with her roommate, Grace. At 5:29 am Mr. Thomson climbed up the fire escape, tested a door, could not get in, and went up the stairs. He entered the building through the kitchen and took some food. He was homeless at the time. Mr. Thomson entered Unit 103 at approximately 6:15:57 am and exited at approximately 6:17:46 am.
[3] A.M. was sleeping at the time. She was lying in her bed and when she woke up Mr. Thomson was staring down at her. His hands were grasping her biceps. She started to say something, but he muffled her face. Her shorts and underwear were down. His penis was inside her vagina. She had a bad stomach pain. She was a virgin at the time. She did not consent to any sexual activity. Mr. Thomson then ran away and tripped over the laundry basket. She bled the next day.
[4] A.M. woke up her roommate. Her roommate did not initially believe that a man had been in the room. They woke the residence hall monitor. The police arrived to investigate. A.M. did not disclose the sexual assault to Grace, any of the people in her residence, or to the police. She was scared and did not know what to do. About 18 months later A.M. told her boyfriend what had occurred. Her boyfriend urged her to tell the police. A.M. called the police on July 2, 2020 to report the sexual assault. She went to a police station and gave a statement to the police that same day.
[5] In the meantime, the police investigated and identified Mr. Thomson as the person who broke into the residence. He had been on bail for a break-in at an apartment building on June 9, 2018. Mr. Thomson entered a family apartment but fled with property when confronted by the residents. He was arrested a short distance away. Mr. Thomson was, astonishingly, released on bail, as he had a truly remarkable criminal record that included well over 20 break-and-enter convictions. Mr. Thomson then committed the second break and enter on January 25, 2019, initially reported by A.M. and captured by the surveillance cameras in the residence. Mr. Thomson was arrested after another break-in at the same residence – Ebbis Hall – on March 21, 2019.
[6] Mr. Thomson pleaded guilty to the three break-and-enters before Justice Borenstein of the Ontario Court of Justice on October 11, 2021. Justice Borenstein sentenced Mr. Thomson on January 6, 2022. Although much emphasis has been placed on the fact that Mr. Thomson has not committed sexual offences in the past – and his supporters believe he is innocent of this one as well – I note that Justice Borenstein, in an exchange with the Crown during the sentencing hearing said this:
THE COURT: And how about the facts of the case? I mean, he’s – women are waking up in their bedrooms, finding him standing over them.
[7] Indeed, that is exactly what happened in two of the three break-and-enters that Mr. Thomson pleaded guilty to. Justice Borenstein said this when passing sentence:
You pled guilty to three break-ins into residences; all of them are exceptional. All of them happened late at night. All of them happened when people were home. All of them happened when people woke up to find you in their home. You were released on bail after the first one, despite the fact that you have 24 prior break and enters, and while on bail, you climbed into a women’s single residence at Ryerson and were stealing her laptop, right next to her bed as you were rummaging through, and she opened her eyes and saw you standing next to her. Then, you did it again. So, those are the three break and enters. The nature of the offence cannot be overstated. They are break-ins which are all a violation of somebody’s privacy, and then there are these kinds of break-ins. I cannot imagine when I found out you had three daughters, how you could do that to other young women, but you did and now you are being sentenced.
[8] Justice Borenstein found that Mr. Thomson easily could have received a sentence of five or six years. He was understandably skeptical that Mr. Thomson would not re-offend. He accepted the joint submission of three years. He did something creative, however: he sentenced Mr. Thomson to three years on the first two break-and-enters but suspended the passing of sentence and put him on probation for two years. He then warned Mr. Thomson that if he reoffended he would find himself back before Justice Borenstein to be sentenced on the third break and enter.
(b) Circumstances of the offender
[9] A pre-sentence report was filed for Mr. Thomson. He is currently 58 years old. He was born and raised in Toronto. As a Black man, he experienced racism as one of the few Black people in his Catholic high school. As a young man, he unfortunately fell into a life of crime, violence, and drug addiction. Indeed, the most salient feature of Mr. Thomson’s adult life has been unceasing criminality. His record takes up around half of his 13-page pre-sentence report. It is mostly for property crimes including break and enters, but there are also some violent crimes on his record including robberies and assaults. He has experienced years of homelessness and life on the streets. He has a dispiriting pattern of cleaning himself up and getting free of drugs, and then relapsing.
[10] Mr. Thomson has been in an on-and-off relationship with Anne Wilson for many years. Ms. Wilson has taken him in, helped him through periods of relapse and recovery, and then had enough. He currently resides with Ms. Wilson. Ms. Wilson and her daughters have described Thomson in very positive terms – as a gentle, kind man who has demons and problems including a drug addiction and involvement in the criminal justice system. Ms. Wilson testified briefly at the sentencing hearing. She clearly cares deeply for Mr. Thomson and wants him to succeed. I don’t think she is under any illusions about the difficulties he faces but she is prepared to support him. Ms. Wilson filed a letter with the court that I found very helpful. She described how Mr. Thomson descended into a life of drugs and petty crime. She would try to rescue him from time to time. She also described how she would become frustrated with him when she would help him make efforts to clean himself up and then he would relapse. She did not, however, stop caring about Mr. Thomson. He moved in with Ms. Wilson in May 2020 and it appears he has remained drug-free and not relapsed into his old ways. Mr. Thomson is very lucky indeed to have her in his corner.
[11] Mr. Thomson told the probation officer that he has an aboriginal grandparent. While I accept that he has, over time, been affected by anti-Black racism in our society, there is little information about his aboriginal ancestry. That was not stressed by Mr. Ounapuu in his submissions. A Gladue report was prepared for the sentencing before Justice Borenstein. It was not filed in these proceedings.
[12] Mr. Ounapuu also filed letters written on behalf of Mr. Thomson. One letter was the letter from Ms. Wilson. Each of her three daughters also wrote a letter. Each described how Mr. Thomson has treated them and their own children with decency and respect. He has been a father-figure to them. Each described him as kind and gentle, although they are obviously aware of his criminal past. None has ever felt unsafe around him. Two other letters written by friends, Hilary Dixon and Jamie Irvine, also described Mr. Thomson as a good man who could not have committed this crime.
[13] Frankly, and despite Dr. Pallandi’s letter, and despite the protestations of those who believe Mr. Thomson is innocent, I do not find it all surprising that he finds himself in the position he is in. I say that with all due respect to those who love him and believe that he could not have raped a young woman in her bed in her residence: Mr. Thomson has consistently shown nothing but disrespect for the safety and security of others. This crime is another, albeit more serious example.
(c) Impact on the victim
[14] A.M. was studying engineering at Ryerson University in January 2019. She was 18 years old. She was born in Pakistan but grew up in Saudi Arabia. She came to Canada to go to university. She was living in the private girl’s residence at Ebbis Hall as her parents thought it was a safer option for her than a regular university residence.
[15] A.M. explained in her testimony that she wanted to tell her hall monitor what had happened on the day of the assault, but she was afraid. A.M. was very new in Canada. She is from Saudi Arabia. In Saudi Arabia it is not common to call the police. A.M.’s credibility was vigorously, and in some ways unfairly attacked. The jury found her to be a credible and truthful witness. So did I.
[16] A.M. described some of the trauma she has gone through as a result of being raped in her bed in her room in her residence. She read her victim impact statement to the court. In essence, she deteriorated. She began to smoke marijuana and drink alcohol. She felt degraded. She began to cut herself and tried to commit suicide. She has been diagnosed with bi-polar disorder and post-traumatic stress disorder.
[17] A.M. described in her victim impact statement how she had been looking forward to living in Canada, free from the restraints imposed on her because of her gender. She wrote in her victim impact statement that she had been taught that if something bad happens to a girl, she loses everything, becomes worthless, and is generally unworthy of love and human companionship. She felt afterwards that she had lost her value as a person. I hope that A.M. understands that what happened to her is most definitely not her fault. What happened to her was a crime perpetrated by another person. This Court recognizes that A.M. is a valuable human being. She has in no way been diminished or devalued as a result of this crime. In fact, it is exactly the opposite. A.M. showed real bravery by coming forward, disclosing the sexual assault, and testifying. It is well known that Saudi Arabia is probably the world’s most repressive society for women. I can only imagine how challenging it was for a person with her background and in her situation disclose what happened. If anything can be said to have the ring of truth, it is A.M.’s explanation for not reporting the sexual assault initially to the police.
3. Positions of the Crown and Defense
[18] Crown counsel, Mr. Friedman, submitted that an appropriate sentence for a home invasion sexual assault is ten years. He acknowledges that Mr. Thomson pleaded guilty to three break-and-enters, including the one on January 2, 2019, and received a sentence of 3 years. He agrees that Mr. Thomson should be credited with those three years.
[19] Mr. Ounapuu submitted that an appropriate sentence was 5 ½ years with a credit for 3 years. Thus, Mr. Thomson would receive a sentence of another 2 ½ years.
4. Case Law
[20] In R. v. Rading, 2017 ONSC 7020 the offender pleaded guilty to break and enter to commit sexual assault, sexual assault, robbery, and uttering threats. The 84 year old victim awoke at around 4 am to find the accused – who was her neighbour – standing over her demanding oral sex. He forced fellatio on her, demanded money and her bank card, and then took the sheets off the bed to destroy the evidence. The police later recovered the sheets. The offender had a significant criminal record and a significant substance abuse problem. Ratushny J. of this court canvassed the authorities involving a home invasion sexual assault. She sentenced the offender to a global sentence of 9 years.
[21] In R. v. Corbiere, 2012 ONSC 2405 the offender pleaded guilty to breaking into the home of the 62-year old victim, stealing money, and forcing fellatio and vaginal intercourse on her. The offender was Aboriginal. He had a very lengthy criminal record, including convictions for uttering threats, robbery, break and enter, and assault. This was his first sexual offence. He had been heavily addicted to crack cocaine. Pomerance J. sentenced him to 9 years in the penitentiary.
[22] The defence relies on several cases with a lower range of sentence. In R. v. Boyle, 2014 ONCA 705. The accused met the victim in a club. He sexually assaulted her in a park, choked her, and threatened her. He had an extensive criminal record. The Court of Appeal upheld a sentence of 4 ½ years in the penitentiary.
[23] The defence also relies on R. v. Carrie, 2016 ONSC 3721. The offender was found guilty of sexual assault, sexual assault with a weapon, and assault causing bodily harm. The offender had a very lengthy criminal record. The Crown applied for a dangerous offender designation, which the court dismissed. The court also did not designate him a long term offender. Gareau J. sentenced him to a global sentence of 10.5 years, broken down to 6 years for the sexual assault, 2 years consecutive for the assault with a weapon, 1 year consecutive for the assault causing bodily harm, and then three consecutive six months sentences for breach of probation.
[24] In R. v. McManus, 2016 OSNC 2274, the accused pleaded guilty to unlawful confinement, sexual assault, and simple assault. He did not plead guilty to break and enter, but the facts were read in. The victim had been in a relationship with the accused. He broke into her house and she awoke to find him standing over her. He forced her to perform oral sex and videotaped it. He also choked her. The judge sentenced him to a global sentence of 5 ½ years, which he described as lenient.
[25] The defence further relies on R. v. L. (D.), 2016 ONSC 733. The victim was 53 and due to various medical conditions lived in an assisted living facility. The offender approached her outside the facility and forced oral and vaginal sex on her. He also attempted to penetrate her anally. He was sniffing glue the whole time. He was found guilty after a judge-alone trial. The offender had amassed a record of 23 convictions, including two for violent offences. He had abstained from substance abuse for the two years prior to the sentencing hearing. The judge found that it was a prolonged assault on a vulnerable victim. The offender was sentenced to a five year global sentence.
[26] In R. v. Herbert, 2016 ONSC 3665 Smith J. succinctly described the facts:
Mr. Herbert grabbed the complainant by the throat in the elevator of her apartment building; pushed her against the wall; threatened to kill her dog; and then walked down the hall and forced his way into her apartment, where he consumed some crack cocaine, and later that evening he sexually assaulted the complainant in her own apartment.
[27] The offender was 44 with a lengthy criminal record. The trial judge sentenced the offender to a global sentence of five years imprisonment.
[28] The Court of Appeal in R. v. Wright (2006), 2006 CanLII 40975 (ON CA), 83 O.R. (3d) 427 (C.A.) set out the sentencing range for home invasions at 4-13 years, with home invasions involving violence or sexual assault at the high end of the range.
[29] Although not cited directly to me, I found R. v. Hejazi, 2018 ONCA 435 to be useful in terms of the range of sentence for a home invasion with a sexual assault. The accused conducted a home invasion robbery and sexually assaulted two women. He also robbed them of valuables. The Court of Appeal upheld a global sentence of 9 years.
5. Mitigating and Aggravating Factors
[30] The obvious aggravating factor here is that Mr. Thomson raped a vulnerable young woman in her own room in a place she thought was safe and secure. It is one of the worst kind of stranger-on-stranger sexual assaults. I agree with the Crown that this was a home invasion sexual assault. I do not think that Mr. Thomson broke into the residence with the intention of sexually assaulting someone. In my view, this was a crime of opportunity but no less heinous for that reason.
[31] The other aggravating factor is Mr. Thomson’s long and unceasing criminal record. Not to put too fine a point on it, but Mr. Thomson is a career criminal. He’s done little with his life except accumulate a lengthy criminal record.
[32] There are mitigating factors, of course, although they are few. I find it mitigating that Mr. Thomson enjoys the support of Ms. Wilson, her daughters, and their wider circle of friends. I find it mitigating that Mr. Thomson seems to have finally cleaned himself up and is no longer using drugs or alcohol. I accept Ms. Wilson’s evidence that he has not used drugs and alcohol during the time that he has been with her. Ms. Wilson struck me as an honest person and I don’t think she would have tolerated or covered up another relapse.
6. Principles of Sentencing
[33] The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. In this case, the offence was very grave indeed: a rape of a young woman in her own bed in a dorm that was supposed to be safe and secure. The moral blameworthiness of the offender is obviously extremely high: Mr. Thomson, a very large man, held down the very small victim, muffled her face, pulled down her shorts and underwear, and penetrated her. The principle of denunciation must also play a major role in a crime of this nature, as must general deterrence. The principle of rehabilitation plays a role as well, although a secondary role, as the court must recognize that Mr. Thomson has made strides to clean himself up and live a more pro-social life.
7. Ancillary Orders
[34] Mr. Thomson will be required to provide a DNA sample. He will be subject to a weapons prohibition order pursuant to s. 109 of the Criminal Code for life. He will be on the sex offender registry for 20 years pursuant to s. 490.013(2)(b) of the Criminal Code. There will be a non-communication order with the victim, A.M., for the period of incarceration pursuant to s. 743.31 of the Criminal Code.
8. Sentence Imposed
[35] Mr. Thomson conducted a home invasion and then raped a young woman in her bed. I agree with Detective Wallace, who told the probation officer that it was likely a crime of opportunity rather than a pre-meditated offence. I also don’t think that matters. It was horrific, traumatizing, and has caused severe emotional damage to a young woman who only wanted to come to a new, safe country and take up new opportunities. I think it is fair to say that Mr. Thomson destroyed her dreams with a callous, selfish act.
[36] I also respectfully disagree with Dr. Pallandi’s assessment that this offence was out of character for Mr. Thomson and that he is at little risk for re-offending in this matter going forward. Dr. Pallandi wrote:
… it is self-evident that Mr. Thomson has a significant and well-established pattern of property offending. There is a complete absence of sexual offending on record.
Given Mr. Thomson’s age and years of opportunity, if he had any proclivity to offending sexually, I would expect that there would be other evidence to support this.
Specifically, if Mr. Thomson was, in fact, an “opportunistic” sexual offender, given the number of times he would have had opportunity to offend (by being within the dwellings of others on numerous occasions while breaking and entering) it would be almost inexplicable why he would not have exercised this opportunity previously, to sexually offend.
[37] With all due respect to Dr. Pallandi, this is an astonishing statement. There is no evidence that Dr. Pallandi looked at any documents other than the pre-sentence report and the criminal record. Mr. Thomson has over 70 entries on his criminal record. Without examining the transcripts or occurrences there is no way Dr. Pallandi – or this Court – could know how many of these break-ins involved residences. And for those that did involve residences, there it is unknown how many involved lone, vulnerable females. But we do know that, as Justice Borenstein said, at least two (including the case before the court) involved women waking up to see Mr. Thomson standing there, looking at them. As well, at least four of Mr. Thomson’s convictions involve crimes of violence: two convictions for robbery, a conviction for assault police, and a conviction for assault. Moreover, even if I accept Dr. Pallandi’s point that Mr. Thomson is at a low risk of sexual re-offending (which I do not) it is obvious that he is at a high risk for re-offending in other ways. At the end of the day, I give Dr. Pallandi’s letter very little weight.
[38] Indeed, Mr. Thomson’s life and record predict exactly the opposite conclusion. Mr. Thomson is obviously a major risk to re-offend. I accept that he has been clean for the last while, that he has made great strides, that he has a supportive partner, and that these are important factors in mitigation. We cannot just lock him away and forget about him, but at the same time specific deterrence must also play an important role.
[39] When I review the cases, I find that the cases involving a home invasion and a sexual assault are far more relevant than those cases that involve a sexual assault alone. In my view, the appropriate range of sentence for this case and this offender is 9-10 years. However, given the fact that Mr. Thomson has already served a three year sentence for break and enter, he must be credited for that time. Accordingly, a sentence in the range of 6-7 years would be appropriate. Although the imperatives of denunciation and deterrence suggest that this sentence should be at the higher end of the range, Mr. Thomson’s strides towards leading a more pro-social life and staying clean over the last two years must be recognized. Thus, rehabilitation can play a role in the sentencing process. I find, therefore, that a sentence of 6 years is appropriate. Mr. Thomson is sentenced to six years in the penitentiary on the count of sexual assault.
Released: August 2, 2022
COURT FILE NO.: CR-21-70000013-0000
DATE: 20220802
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JOSEPH THOMSON
REASONS FOR SENTENCE
R.F. Goldstein J.