His Majesty the King v. R.B., 2022 ONSC 5619

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 8425/21

DATE: 2022-11-03

ONTARIO

B E T W E E N:

HIS MAJESTY THE KING

T. Wilson, Counsel for the Crown

• and -

R.B.

K. Scullion, Counsel for the Defendant

Defendant

HEARD: September 23, 2022

GAREAU J.

REASONS FOR SENTENCE

1On June 30, 2022, the accused was convicted of 14 counts in an indictment dated August 4, 2021, as amended May 12, 2022.

2A sentencing hearing took place on September 23, 2022, with counsel and the accused all being present in person before the court. The court received submissions from counsel with respect to sentencing on September 23, 2022, with the court’s decision to be delivered on November 3, 2022.

SALIENT FACTS

3The facts surrounding the offences committed by the offender are serious, disturbing, and quite frankly, shocking. The seriousness of the facts were acknowledged by defence counsel in her submissions to the court. Ms. Scullion described the facts as “horrible”, and as she put it, “there is no way to give it a hug and make it nicer”.

4The findings of fact made by this court are set out in my reasons for judgment, cited at R. v. R.B., 2022 ONSC 3810. The accused and the complainant were childhood sweethearts who began residing together in a domestic relationship. This occurred at a very young age for both the offender and the complainant. The complainant was only 16 years of age when she became pregnant with her first child who was born on March 9, 2016. Another child followed on March 30, 2018.

5The relationship between the offender and the complainant can be described as tumultuous. During the course of her relationship with the offender, the complainant was physically assaulted by the offender; she was sexually assaulted by the offender; and she was confined in a closet. The actions of the offender were ones of dominance over the complainant who was forced to be subservient to the offender. It is not an exaggeration to suggest that the offender thought of the complainant as his possession, a person who he could control and dominate. The climax of this possessory attitude of the offender was reached when he branded the buttocks of the complainant with his initials “R.B.” using a hot coat hanger.

6In my view, this act of branding the complainant committed by the offender is tantamount to an act of torture.

7The offences committed by the offender toward the complainant include acts of confining her, assaulting her with a knife, including slashing her arm and leg, tying her up and placing a bag over her head and essentially water-boarding her, on two occasions sexually assaulting the complainant, assaulting her with a broomstick, threatening her with death, maiming her by branding her, striking her with a metal pole, and assaulting her with a BB gun.

8These offences are extremely violent, serious and involve acts of dominance and control. The acts committed by the offender against the complainant are made more serious in that they were committed in a domestic relationship between the parties. In that relationship the offender was to protect the complainant and provide her with security and nurturing. The offender did the exact opposite.

SENTENCING PRINCIPLES

9There is no disagreement between counsel that a substantial custodial sentence must be imposed on the offender. Counsel disagree on the length of the custodial sentence. The Crown is asking for a global sentence of between seven to nine years. Counsel for the offender suggests a global custodial sentence of five years. As of the date the court received sentencing submissions (September 23, 2022) the offender has been in pre-sentence custody for 623 days, which with the 1.5 enhancement equates to 935 days.

10With respect to the offender’s time in pre-sentence custody, in addition to the period of enhancement, the court can consider Duncan factors, taking into account that the accused has been in custody since January 8, 2021, in Covid times, with undoubtedly restrictions being placed on his movement throughout the facility and the programs available to him. As noted in R. v. Marshall, 2021 ONCA 344, [2021] O.J. No. 2757 at paragraph 52, “The Duncan credit is not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken into account in determining the appropriate sentence.” It acts as a factor to be taken into account by the court. As stated by the Ontario Court of Appeal in R. v. Bristol¸ 2021 ONCA 599, “It is not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken in determining the appropriate sentence”.

11In addition to the jurisprudence, the court is guided by the statutory principles set out in the Criminal Code of Canada to assist it in determining a fit and just sentence for the offender. Section 718 of the Criminal Code of Canada sets out a list of principles and objectives that the court must consider when determining an appropriate sentence to be imposed.

12Section 718 reads as follows,

The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following 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 acknowledgement of the harm done to victims or to the community.

13As indicated in section 718.1 of the Criminal Code, “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

14Section 718.2 of the Criminal Code lists aggravating factors which should specifically be taken into account in sentencing an offender. Several aggravating factors that are listed are applicable in the case at bar, including the fact that the offender abused his intimate partner and the offence has had a significant impact on the victim.

15The court is cognizant of the provisions in section 718.2(c) which states as a principle that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh.

16The fundamental duty of the court is to impose a sentence that is just and fit for the offender and for the offence. As this court has observed on numerous occasions, the sentencing of an offender is not a science but rather an art. By its very nature, it is an individualized process to find the appropriate sentence for the offence to reflect the moral culpability of the offender.

17Given the fact that the offences for which the offender is being sentenced and the facts as found by this court, denunciation and deterrence are the primary objectives for the court to consider in sentencing this offender.

ANALYSIS/DISCUSSION

18The offender, R.B., is not a young offender but he is a youthful offender. He was born on June 23, 1999. He is only 23 years of age. He was young when these offences were committed. The offender’s criminal record indicates a youth record in 2015 for property offences and assault with a weapon, contrary to section 267(a) of the Criminal Code of Canada. There are various other offences for violence, including an assault conviction in 2018 and an additional assault with a weapon charge in 2019. Although the offender has been convicted for acts of violence in the past, he has spent a limited time in custody, having served an equivalent of 90 days including pre-sentence custody for the 2019 assault with a weapon offence. The current offences attract a significant amount of incarceration which the offender has not yet experienced, a fact that is not lost on this court, especially given the young age of the offender.

19The court has had the benefit of a pre-sentence report (Exhibit S-1). The pre-sentence report has been extremely helpful to the court. As an aside, I would be remiss if I did not point out that the pre-sentence report is the most thorough and insightful report that I have seen in almost 14 years on the bench and 24 years in practice as a lawyer prior to that. The report gives the reader a real understanding of the life experiences that the offender has endured and the challenges that he has faced.

20The pre-sentence report paints a tragic and troubling past for the offender. In some respects it is fair to say that the offender did not have a chance to succeed. His background does not excuse his conduct, but it certainly explains why he is before the court.

21The offender’s parents were not positive influences on him. As noted in the pre-sentence report, the relationship between his parents was “marred with violence and substance misuse”. The offender’s father “began displaying controlling behaviours which spiralled into extreme bouts of violence”. The offender is described by his mother as “an angry and discontent child”. From an early age, the offender displayed aggressive tantrums that only escalated when he entered school. The offender’s mother described that “he had trouble controlling his impulsive behaviours and would act aggressively towards his siblings”. As early as eight years of age, the offender was admitted to a child psychiatric unit at Oakville Trafalgar Hospital. When he was not institutionalized, the offender’s parents were incapable of coping or managing his challenging behaviour. His mother would try to control him by tying him up. The offender’s parents separated when he was nine years of age.

22The offender’s paternal aunt, S.F., was interviewed for the pre-sentence report. The following information is noted at page 5 of the report,

S.F., the subject’s paternal aunt stated that C.D. [mother of the offender] left Christmas Day, while the subject’s paternal family was present. It is of S.F.’s understanding that she left in fear of the subject’s father and although she was unable to effectively manage the subject, she believes C.D. was truly fearful of K.B. [father of the offender] and noted that she did have good reason to fear her brother.

S.F. described both her brother and the subject’s mother to be deficient in parenting skills and felt that they were not able to provide the level of support required to promote developmental growth with their children. She furthered that her brother treated his children very poorly and portrayed him to be cruel and abusive. She stated he had no business being a father and did not have the emotional capability required to be an effective parent. S.F. advised that she and her brother grew up in a home also devoid of love and affection and related that the subject is a product of generational trauma.

23On page 6 of the pre-sentence report, the author notes that,

Sources reveal the subject’s father resorted to corporal punishment towards his sons and that he would use weapons on them such as sledgehammers and that he was never charged criminally for his violent behaviour. It is S.F.’s opinion that family and associates were too fearful of the subject’s father to report the abuse.

While residing in Welland, ON with his father, the subject was witness to and victim of significant violence. The subject recalled having to assist with cleaning up blood after a female was stabbed by his now stepmother in their home. S.F. acknowledged this to be true and furthered that there were always many women in and out of her brother’s home under the influence of drugs and alcohol. According to collaterals the subject’s now stepmother became very jealous of another female at the house and stabbed the woman.

24The relationship between the offender and the complainant is discussed on page 7 of the pre-sentence report where the following is noted,

The subject and E.A. have in [sic] a tumultuous relationship since the age of sixteen. Both parties agree that much of the relationship as dysfunctional. The [sic] admits that he was the primary aggressor in their relationship and accepts that he played a significant role in the toxicity. He takes ownership for exposing the complainant to domestic violence and suggests that she became desensitized to his outbursts. He proposed that domestic violence was somewhat normalized throughout his childhood and it permeated into his new family. He indicated that over the years the complainant became increasingly violent towards him as well.

Despite the turmoil between the couple, the subject shared that the complainant is a very good mother, she is loving towards both children and provides adequate care.

25The report goes on to indicate that the offender “does not want to jeopardize his children’s future and will disengage absolutely, if it means that they will be able to have a better life with their mother.”

26The offender has only a grade 8 education. He displayed concerning behaviours at school and was described as “unpredictable and uncooperative”, prone to “explosive outbursts.” This behaviour limited the offender’s progress at school. It also resulted in the offender receiving treatment and undergoing various psychological assessments in an attempt to deal with his troubling behaviour. This is described on pages 8, 11, and 12 of the pre-sentence report. As noted on page 12 of the report, a court ordered assessment was completed by psychologist, Dr. Valliant. The assessment suggested “clinical syndromes” include Conduct Disorder also Oppositional Defiant Disorder or Adolescent Anti-Social Behaviour. The report also suggested by the results of the MACI (Millon Adolescent Clinical Inventory) that the subject possesses “Antisocial Personality Traits with Aggressive/Sadistic Features”.

27The results of the Hare Psychopathy Checklist indicated that the offender’s “significant psychopathic orientation suggests that he is at high risk for future violence.” As noted by Dr. Valliant, “the subject requires intensive treatment to amend his attachment issues and resultant personality disorders.”

28It is clear to the court from reading the pre-sentence report that the offender has had a tragic upbringing. It is obvious that he has in many ways become his father and has adopted the violent behaviour that he observed from his father.

29Although he tries to place some of the blame on the complainant and at times attempts to minimize his own actions, overall the pre-sentence report indicates that the offender is not without insight. He recognizes that he introduced the complainant to domestic violence, and that he was the primary aggressor accepting that he played a significant role in the toxicity that existed in their relationship. It also shows insight that the offender is able to recognize and acknowledge the complainant as a good mother to his children and that unless he reforms and rehabilitates his behaviour, that his children are better off without him.

30Overall the contents of the pre-sentence report assists the court in the delicate balancing act that must be done in arriving at an appropriate sentence for the offender. The background of the offender is a mitigating factor that is recognized by the court.

31The youthful age is also a mitigating factor that the court has considered, as is the insight that the offender has expressed in the pre-sentence report. There is hope for the rehabilitation and reformation of the offender. Although in his comments to the court the offender did not express remorse, he did express regret. As indicated to the court, he was sorry and that he did love the complainant and his children but he did not know how to love them.

32Balanced against the mitigating factors are aggravating factors. The acts for which the offender is being sentenced are acts of extreme violence. He controlled, dominated, injured, and even tortured the complainant all within a domestic relationship. These are extremely aggravating factors. The offender has a predisposition for violence as is indicated in his criminal record. As is indicated in the psychological testing performed on the offender in the past, “his significant psychopathic orientation suggests that he is at high risk for violence in the future”. This assessment is not something that the court can ignore and, quite frankly, it causes the court great concern.

33The court is satisfied that the acts committed on the complainant by the offender have had a detrimental effect on her and the effect will likely be lifelong. This is evidenced from the victim impact statement prepared by the complainant (Exhibit S-2) and was obvious to the court when observing the complainant while she gave evidence at this trial of this matter. As provided for in section 718.2 of the Criminal Code of Canada, this significant negative impact on the complainant is an aggravating factor which must be considered by the court in sentencing the offender. The offender is a youthful person but so is the complainant. She was very young and with young children when she was abused by the offender. Although I am not satisfied that the offender breached a position of trust, I am satisfied that he took advantage of a youthful, naïve person who was vulnerable at the time.

SENTENCE TO BE IMPOSED

34I have considered all the factors in mitigation and aggravation and the individual background of the offender. I have also considered the fact that the offender has been in pre-sentence custody during Covid times and have considered the “Duncan” factor as a mitigating factor in determining the proper sentence to be imposed. I have also considered the statutory provisions of the Criminal Code outlining the principles I must apply and the jurisprudence provided to me by counsel and referred to by them during their submissions. I have paid close attention to the comments in the pre-sentence report, which again I found most helpful and insightful.

35The Crown has asked for a global sentence of seven to nine years. The defence has asked for a global sentence of five years. Quite frankly, prior to reading the pre-sentence report and hearing submissions from counsel, I was contemplating a global sentence of 12 years. I have been persuaded to do otherwise.

36My view is that considering all the factors in this case as set out in my reasons that a fit and just sentence is a global sentence of nine years less a credit for pre-sentence custody served. As to the breakdown of the sentence, the offender will be sentenced to four years imprisonment on count 15; two years imprisonment on count 5 consecutive; two years imprisonment on count 18 consecutive; and one year imprisonment on count 23 consecutive. As to the other counts, the offender is sentenced to one year imprisonment on each count to be severed concurrently to the sentenced imposed on counts 15, 5, 18, and 23.

37With respect to the specifics of the net sentence to be served by the offender, he receives a credit of 664 days to today’s date, which is enhanced to 996 days using the 1.5 “Summers” credit. That leaves a net sentence to be served by the offender of 2,289 days.

38The Crown has requested, and I am imposing the following ancillary orders:

(a) a DNA order;

(b) a SOIRA order for life;

(c) a mandatory firearms prohibition pursuant to section 109 of the Criminal Code of Canada for a period of 20 years;

(d) an order pursuant to section 743.2(1) of the Criminal Code of Canada that the offender not have any contact with the complainant while he is serving his custodial sentence.

39In addition to the sentence that I have imposed, it is my strong recommendation that the offender receive therapy, counselling and programs in the institution where he will be housed to assist in his rehabilitation and reformation.

Gareau J.