COURT FILE NO.: CR-21-960

DATE: 2023 07 06

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

HERVOLIST SHAWDOVER

I. Horic, for the Crown

G. W. Orr, for H. Shawdover

HEARD: January 30 and May 17, 2023

reasons for sentencing

Shaw J.

1. Overview

1Following a four-day trial, a jury found Mr. Shawdover guilty of sexual assault contrary to s. 271 of the Criminal Code, R.S.C. 1985 c. C-46 (“Criminal Code”). I must now find the facts and determine the fit and appropriate sentence for Mr. Shawdover.

2In a two-day sentencing hearing, I heard evidence directly from Mr. Shawdover. His mother, Ms. Marsh, gave an oral statement in support of him. A Pre-Sentence Report (“PSR”) was also filed.

3The Crown seeks a sentence of four years, accompanied by the required ancillary orders, which are not in dispute. The defence seeks a sentence of six months followed by three years of probation.

4In considering the circumstances of the offence and the offender, I find that a sentence of 3 years is a fit and appropriate.

2. Circumstances of the Offence

5Section 724(2) of the Criminal Code sets out two important principles that must guide the sentencing judge in determining the relevant facts following a conviction by jury. According to s. 724(2)(a), the sentencing judge “shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty”. Section 724(2)(b) states that the judge “may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact”. As per s. 724(3)(e), should any such facts be an aggravating factor, it is the Crown’s burden to prove those facts beyond a reasonable doubt.

6In R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, the Supreme Court of Canada set out the two principles which govern the sentencing judge in this endeavour. At paras. 16-18, McLachlin C.J., writing for the unanimous Court, found that the sentencing judge must determine the facts necessary for sentencing and must not accept as fact any evidence consistent only with a verdict rejected by the jury. Second, when the factual implications of the jury’s verdict are ambiguous, the sentencing judge should come to their own determination of the relevant facts. To rely upon an aggravating factor or a previous conviction, the sentencing judge must be convinced of the existence of that fact or conviction beyond a reasonable doubt but to rely upon any other relevant fact, the sentencing judge must be persuaded on a balance of probabilities.

7Thus, I am not obliged to arrive at a complete theory of the facts but only those necessary for deciding the appropriate sentence.

8Applying these principles, the following are the essential facts to the jury’s verdict in this matter.

9The issue at trial was consent. While Mr. Shawdover did not testify, another witness called for the defence, AC, testified that the victim, KP, consented to having sexual intercourse with Mr. Shawdover. To find Mr. Shawdover guilty of sexual assault, the jury had to accept KP’s evidence, and reject the exculpatory evidence of AC and find Mr. Shawdover guilty of the elements of sexual assault beyond a reasonable doubt.

10KP was friends with Mr. Shawdover for two to three years prior to December 16, 2019; she would see him regularly at his home and considered him a good friend. She was 25 years of age at the time, and he was 54. On December 16, 2019, Mr. Shawdover called her and asked her to come to his home. When she arrived, AC was also present. They consumed alcohol. Approximately 30 minutes after her arrival, KP and AC began to kiss and remove their clothes while sitting on a couch in the living room. They engaged in consensual sexual activity. Mr. Shawdover was in his kitchen, which was open to the living room; he could see KP and AC. At some point Mr. Shawdover walked over to the couch. KP saw AC caressing his penis. KP said to Mr. Shawdover that she did not care what he did with AC, but she was not going to have sex with him. AC also performed oral sex on him. KP used her phone to take a picture of Mr. Shawdover’s penis when AC removed his penis from his pants.

11KP and AC continued to kiss and fondle each other; they were naked. AC then positioned KP so that she was standing, bent over AC who was sitting on the couch. Mr. Shawdover was standing behind KP. He tried to insert his penis in her vagina. KP grabbed his penis and sat down on the couch. She told Mr. Shawdover that she was not going to have sex with him.

12KP and AC resumed kissing and touching each other. AC again grabbed KP’s arms and put her in the same position so that KP was standing, bent over, in front of AC. Mr. Shawdover then inserted his penis inside KP’s vagina for less than two minutes; he did not say anything to her before doing so. She pushed him off.

13Mr. Shawdover did not ask AC and KP if he could join them; KP did not consent to having sexual intercourse with Mr. Shawdover. KP engaged in consensual sex with AC but not Mr. Shawdover and told him twice that she did not want to have to have sex with him.

14KP spent the night at Mr. Shawdover’s home; she was intoxicated. She initially slept on the couch and later in the bed with AC. Mr. Shawdover was in the bed initially and then left. He made her and AC breakfast the following morning and they had dinner together that day.

3. Circumstances of the Offender

15The PSR provided background information regarding Mr. Shawdover. In a rather unusual request, counsel requested that Mr. Shawdover testify. Upon reflection and consideration, I agreed that was permissible pursuant to s. 723(2) of the Criminal Code. He was also cross-examined by the Crown.

16Mr. Shawdover is now 57 years of age. He lives alone. He immigrated to Canada from Jamaica in 1974; he is a Canadian citizen. He is the eldest of three sons; his mother was a single parent. According to the PSR, his childhood was normal; he had a good relationship with his family. He continues to have a good relationship with his mother who lives in Toronto. He has three children and he has grandchildren. His oldest two children are 26 and 33 and his youngest is 13-years of age. He sees his youngest daughter once per week and pays court-ordered child support of $200 per month plus additional amounts; he did not know how much.

17Mr. Shawdover works in construction as a roofer and sheet metal worker. He lost his job as a roofer during the trial; he worked for that employer for 1.5 years. He has been working for the most recent employer for six months. Prior to the roofing company, he worked on and off but nothing long term.

18He was in a car accident in 2009 and injured his back. He still collects an Ontario Disability Security Pension. As a result, his work history is sporadic; he worked for an employment agency and worked at various factories.

19Mr. Shawdover uses medical marijuana since the car accident. He consumes alcohol occasionally.

20The PSR provided particulars of his criminal record which dates back to 1984. The convictions between 1984 and 1987 were for theft. In 1988, he was convicted of robbery and sentenced to 2 years. There were also drug-related convictions in 1987, 1991, 1993 and 2012. In 1997, he was convicted of aggravated assaulted and sentenced to four years. In 2004, he was convicted of assault with a weapon and uttering threats, and was sentenced to eight months and probation. His last conviction was in 2016 for failure to comply with a recognizance.

21Mr. Shawdover testified that this trial was very stressful. He felt humiliated, depressed, embarrassed, and confused. He testified that he was sorry that this happened to himself and the victim. He did not have an idea that he was doing anything wrong and the only thing he did wrong was exercise bad judgment. His evidence was that he, KP, and AC enjoyed each others’ company and had a fun night. He described it as a night of innocence; he now regrets the entire thing. He testified that the incident was blown out of proportion. He was sorry that KP felt hurt and that she had to go to court. He also testified that it was hard for him to be overly sympathetic as they had a great time together that night. He testified that he did not force KP to have sex, did not threaten her, or use a weapon. He had no intention to hurt anyone and is sorry that KP felt any kind of emotional burden.

22Mr. Shawdover was cross-examined about his criminal record. He robbed a gas station in 1988; he could not remember what kind of weapon he used. The aggravated assault conviction in 1997 was the result of him losing his temper and hitting someone with a shovel when he saw the person assaulting the mother of his daughter. The victim was hospitalized but he did not know the extent of his injuries. Mr. Shawdover viewed his actions as defending his family; he described it as an act of self-defence.

23He could not recall the specifics of the 2004 convictions for assault with a weapon.

24Ms. Marsh, Mr. Shawdover’s mother, indicated that she has several health issues; she requires a walker. Her son, Mr. Shawdover, helps her with such things as meals at times, and without him, she will not have anyone to provide that support.

4. Impact on the Victim

25While KP did not file a victim impact statement, at trial she testified about feeling defeated, gross, and disgusted when Mr. Shawdover penetrated her after she told him no, more than once. She also testified about feeling sad, confused, and alone. Mr. Shawdover had been a friend of hers and she felt like she could not trust anyone as a result of the sexual assault.

5. Analysis

(a) Principles of Sentencing

26The principles of sentencing are set out in ss. 718, 718.1, and 718.2 of the Criminal Code.

27According to s. 718 of the Criminal Code, the fundamental purpose of sentencing is to protect society, to contribute to respect for the law, and to maintain a just, peaceful, and safe society by imposing just sanctions that have one or more of the following objectives:

a) Denouncing unlawful conduct;

b) Deterring this offender and others from committing offences;

c) Imprisoning offenders where necessary to separate them from society;

d) Assisting in rehabilitating offenders and in appropriate circumstances encouraging their treatment;

e) Providing reparation for harm done to victims or the community;

f) Promoting in offenders a sense of responsibility for and acknowledgement of the harm they have done to victims or to the community.

28Pursuant to s. 718.1 of the Criminal Code, a sentence should be proportionate to the gravity of the offence, and the degree of responsibility of the offender.

29Section 718.2 of the Criminal Code sets out other sentencing principles. Those applicable to this case are as follows:

a) That a sentence may be increased or decreased depending upon the presence of any relevant aggravating or mitigating circumstances relating to the offence or to the offender;

b) That a sentence should be similar to those imposed on similar offenders for similar offences committed in similar circumstances;

c) An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and,

d) All available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

30The object of denunciation is a sentence that communicates society’s condemnation of the offender’s conduct. When determining the fit and appropriate sentence in this case, the court must impose a sentence that denounces criminal conduct that violates the personal integrity of a young woman.

31The objective of general deterrence is to impose a sanction that will discourage others from engaging in criminal conduct.

32Restraint is also an important principle in sentencing; the least intrusive sentence that is an appropriate and just should be imposed. That means that imprisonment is the sanction of last resort: R. v. Hamilton and Mason (2004), 168 C.C.C. (3d) 128.

(b) Parity - Review of Case Law

33A review of case law reveals that there is a range in sentences for those convicted of an offence under s. 271 of the Criminal Code. Ranges are guidelines. I have discretion in determining the appropriate sentence as it is a very individualized process which reflects the unique circumstances of each offender and the nature of the offence.

34Both defence and Crown counsel referred to several decisions that reflect that the sentence imposed is dependent on the unique facts of each case.

i) Crown Cases

35The Crown relies on R. v. Friesen, 2020 SCC 9, [2019] S.C.J. No. 100. While that was a case involving a child as a minor, the Court also spoke about sexual assault offences generally. Friesen marked a turning point in sexual assault sentencing. Not only did the Court address the need to increase sentences but also addressed the harms sexual assault causes, not only just to children but to victims in general.

36Nonetheless, the Court noted that there are times that departure from prior sentencing ranges are needed: para. 108.

37In R. v. A.J.K., [2022] ONCA 487, the victim was sexually assaulted and sustained physical injuries. The offender was convicted of sexual assault, assault, and breach of probation. The Crown asked for a six-year sentence and the offender for three. The Court found that all sexual assaults are serious acts of violence and that victims, whether strangers or intimate partners, suffer profound emotional and physical harm: para. 74. The Court found that absent some highly mitigating factor, the forced penetration of another will typically attract the range of three to five years but there will be circumstances where a departure above or below the range is appropriate: para. 75. The Court upheld a five-year sentence.

38In my view, the facts in A.J.K. are distinguishable and involved a far more violent offence. In A.J.K., the victim was choked and punched. She fled from a car and was then left on the side of the road. While all sexual assaults are inherently violent, sentencing nonetheless requires a more contextual and nuanced approach to ensure that an individualized approach is maintained to ensure a just and equitable sentence, taking into account the nature of the offence and the offender.

39In R. v. Garrett, 2014 ONCA 734, the offender and victim knew each other for many years. They went on a date and there was consensual kissing. There was sexual intercourse that the victim said was not consensual. Photographs showed that the victim had bruising on her tailbone and inner thighs. The offender was charged with sexual assault causing bodily harm and was convicted of sexual assault. The offender was sentenced to 90 days, to be served intermittently.

40On appeal, the Court found that the circumstances were not unique. The victim repeatedly told the offender to stop, and he did not. Furthermore, the victim’s consent to kissing did not render the non-consensual intercourse less serious: paras. 19-20. While an 18 -month sentence was imposed, the Court noted that this was not a sentence within the appropriate or unusual range but was constrained by the Crown’s position at trial; para. 23.

41The facts in Garrett are similar to what occurred in this matter, other than there was no evidence that KP consented to any sexual act with Mr. Shawdover. KP clearly consented to sexual activity with AC but specifically told Mr. Shawdover no when he attempted to engage in sexual activity with her. Garrett is clear; the fact that KP was engaging in consensual sexual activity with AC does not render her non-consensual sexual activity with Mr. Shawdover to be any less serious.

42In R. v. Cepic, 2018 ONSC 3346, the offender was a dancer at a male strip club. The victim was a customer who paid for two lap dances; she admitted being attracted to the offender. During the second dance, the offender put his penis in her mouth and then penetrated her briefly. The Crown sought 2 years less one day and the defence 12 to 15 months.

43Several letters were filed in support of the offender which described him as kind, compassionate and honest. He had a dated criminal record. The victim read her victim impact statement in which she spoke of the impact on her education, relationship with her boyfriend, changes to her personality and emotional struggles.

44Justice London-Weinstein sentenced the offender to two years less one day but noted that the facts could attract a penitentiary sentence in the range of three years.

45In R. v. M.M., 2017 ONSC 1829, following a conviction of sexual assault, the Crown sought a sentence of four years and the defence 18 to 22 months.

46After a night of partying and consuming alcohol, an antidepressant and sleeping pill, the victim called the offender, a friend, to come to her home as she was not feeling well. When he arrived, the offender made some sexual advances which the victim rebuffed. She then passed out and while unconscious, the offender inserted his penis in her vagina.

47The offender had a very lengthy criminal record – longer than Mr. Shawdover’s record, and it was not dated. He was still on probation for assaulting his former girlfriend when he sexually assaulted the victim. He had a history of violence against women. Mr. Shawdover has no such history.

48The Court found that while there was no gratuitous violence, this was not a mitigating factor but rather an absence of an aggravating factor.

49Justice Molloy found that the range was three to five years and that sentences fall below three years where there are exceptional circumstances: para. 41. She also commented that the trend in more recent years is towards longer sentences in cases of serious sexual assault.

50Justice Molloy sentenced the offender to four years.

51In R. v. McGraw, 2019 ONSC 3906, while passed out after consuming alcohol, the offender engaged in vaginal intercourse with the victim. Justice Spies found that the range for sexual assault involving unprotected vaginal intercourse was three to five years. She found that an appropriate sentence was 40 months.

52In R. v. M.B., 2008 ONCA 645, the offender engaged in anal intercourse with his developmentally delayed wife without her consent. He was sentenced by the trial judge to nine months followed by two years probation.

53The Court of Appeal found that the absence of gratuitous violence is not a mitigating factor. The Court of Appeal overturned the trial judge and sentenced the offender to two years less a day.

ii) Defence Cases

54In R. v. Stambuk, 2009 O.J. No. 4338, the offender was sentenced to 90 days in jail followed by 18 months of probation. After a night of drinking and consuming cocaine, the offender sexually assaulted the victim, who he knew, in his apartment by touching her breasts and digitally penetrating her. He also confined her to his apartment for a period of time.

55In my view, those same facts would likely now attract a longer sentence given how our understanding of the impact of sexual assault and its inherently violent nature has evolved.

56In R. v. Ignacio, 2019 ONSC 2382, the offender was convicted of one count of sexual assault. After meeting and exchanging “flirty” text messages, the offender invited the victim to a barbecue. When she arrived, he was heavily intoxicated. The victim drove him home. On the way, they stopped, kissed, and performed oral sex on each other. This was consensual. The offender said he wanted to have intercourse, but the victim said no. He then forcefully penetrated her.

57The Crown’s position was that the range for a youthful first-time offender was two to three years. Due to immigration consequences, the defence sought a sentence of 18 months.

58Justice Schreck noted that both the defence and Crown relied on Garrett which was factually similar as it involved parties who knew each other and engaged in consensual activity which the victim did not want to progress to intercourse.

59Justice Schreck did not agree with the Crown that the range was two to three years and referred to cases which suggest that the range might be on the lower end: R. v. Mckenzie, 2017 ONCA 128, 136 O.R. (3d) 614; R. v. Gordon, 2018 ONSC 6217; R. v. Diaz, 2017 ONSC 1883: para. 33.

60Justice Schreck also expressed concern with respect to ranges relying on R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 at para. 57: para. 34

61Justice Schreck found that the range must be adjusted when there are collateral immigration consequences to consider: para. 35. He imposed a sentence of 20 months, taking into account that it was a serious sexual assault, that the offender was a youthful first offender, and that there were immigration consequences.

62Mr. Shawdover is not a youthful first-time offender, nor are there any collateral consequences, such as a possible deportation once he serves his sentence.

63In R. v. Ghadhoni, 2020 ONCA 24, the offender initiated sexual intercourse with a sleeping woman; they had been at a bar and the victim left with the offender extremely intoxicated. The offender suffered a brain injury as a child and there was medical evidence that he had serious cognitive deficits. The trial judge concluded that a sentence of 36 months was appropriate but imposed a 30-month sentence due to the offender’s disabilities.

64The Court of Appeal found that the range in similar circumstances was between 18 months and three years. The Court reduced the sentence to two years less a day finding that the trial judge erred in finding that there was an aggravating factor that the offender methodically planned to commit the offence from the time he left the bar.

65In R. v. Hartman, 2019 ONCJ 148, while the victim was sleeping beside her boyfriend, the offender climbed onto the air mattress and anally penetrated the victim. The victim was intoxicated. The defence sought a conditional sentence. The offender had a dated criminal record for a drug offence. He was described as a pro-social member of society. He was diagnosed with Asperger’s Syndrome, OCD, and ADHD. Several letters of support were filed, and he had strong support from his family.

66After serving the equivalent of 50 days, he was sentenced to a period of 12 months further custody, followed by three years of probation.

67In R. v. McKenzie, 2015 ONSC 5671, the offender was convicted of one count of sexual assault. There were immigration consequences. The defence sought six months less a day. The Crown submitted that the range was two to four years and sought a three-year sentence.

68The sexual assault occurred in a washroom at a restaurant during a Christmas party. The offender and victim were employees of the restaurant and were causally acquainted. Both were drinking. There was dancing outside a washroom and the offender and victim were kissing; she was “winding and grinding” on the offender. They moved into a washroom and the offender lowered their pants and the tip of his penis penetrated her anus for 20 to 30 seconds. The victim said no. There was a knocking on the door and that assault ended. Justice Dawson found that it was the knocking that ended the incident.

69The offender did not have a criminal record. He was regularly employed and supported two children. He had a supportive partner. The PSR was positive.

70Justice Dawson found that this was a significant sexual assault and that the principles of denunciation and general and specific deterrence must be given significant weight. He found that, had there been a fully completed act of vaginal or anal intercourse with the victim saying no, a sentence of three years would be appropriate. He noted that what happened was a partial penetration of very short duration that ended when the complainant said no.

71A nine-month sentence followed by two-years of probation was imposed.

72In R. v. Micula, 2016 ONCJ 467, the offender and victim met at a bar; he was 46 and the victim was 21. She agreed to go to the offender’s apartment to share his cocaine. She passed out. She awoke two hours later to find her bra unclasped, her underwear removed and a strange sensation in her vaginal area. A rape kit confirmed that the offender performed oral sex on her.

73The offender had a dated minimal criminal record. He was on a disability pension.

74The Crown sought 12 to 14 months and the defence sought a conditional sentence. Justice Sparrow described the offence as callous, frightening and hugely intrusive, but noted there was no penetration. The offender was sentenced to 12 months followed by three years of probation.

75In R. v. M.G., 2019 ONCA 796, the victim did not consent to sexual intercourse with the offender, her roommate. While sleeping he penetrated her. The Court of Appeal upheld the 14-month sentence followed by three years of probation.

76In R. v. Crespo, 2016 ONCA 454, the offender was convicted of sexually assaulting a friend of a woman he was dating for one month. There were immigration consequences and the offender faced deportation. The offender and victim spent a night dancing and drinking and were heavily intoxicated. The victim fell asleep on a bed with her partner beside her. She woke to the feeling of the offender on her engaging in sexual intercourse. When she realized it was the offender and not her boyfriend, she pushed him off.

77The Court of Appeal upheld the sentence of 15 months followed by 18 months of probation.

(c) Aggravating and Mitigating factors

78When determining sentence, I must grapple with several competing factors including both aggravating and mitigating features.

79Section 718.2(a) of the Criminal Code mandates a consideration of aggravating or mitigating circumstances related to the offence or the offender.

80Mr. Shawdover’s criminal record is an aggravating factor. It is a lengthy record and involves serious offences including violence for which he was sentenced to penitentiary time. There are, however, no convictions for any similar offences as those now before the court. Furthermore, his record is now quite dated.

81Mr. Shawdover did not wear a condom and there was vaginal penetration; that is an aggravating factor.

82KP was 25 years of age and Mr. Shawdover was 54 at the time. This age difference is an aggravating factor.

83Mr. Shawdover works. He has a supportive family. He supports his teenage daughter. When he was incarcerated in the past, he took courses for anger management. These are mitigating factors.

84It is also a mitigating factor that Mr. Shawdover has been on bail for an extended period and has been compliant with his bail conditions.

85The defence argued that it was mitigating that there were no physical injuries and that there was no victim impact statement. I do not agree that either of those is mitigating. The lack of physical injuries means there is an absence of an aggravating factor; it is not mitigating.

86KP’s evidence at trial described the impact this sexual assault had on her. An absence of a victim impact statement is not a mitigating factor.

87While Mr. Shawdover expressed remorse, I do not consider this to be an expression of remorse that could be considered a mitigating factor. Rather, he was sorry about the embarrassment and that KP had to testify. He was not remorseful for what occurred and saw the evening as a positive interaction. To be clear, this is not an aggravating factor nor have I considered it as such.

(d) Sentence

88The defence urges me to consider the photo KP took of Mr. Shawdover’s penis as a very important relevant factor. KP admitted she took the photograph but that it was AC who was holding Mr. Shawdover’s penis. Counsel argues that the taking of this photograph should have a substantial impact on sentence arguing that KP was “leading him on” and then said no. He also urged me to consider that KP was engaged in consensual sexual activity, with another woman, in front of Mr. Shawdover as another factor to consider. Counsel argues that when looking at the degree of sexual assault, this should be considered relatively less egregious based on KP’s conduct. Defence counsel argued that KP was not as much as a victim due to her behaviour.

89I reject these submissions. The days of a victim being blameworthy based on her conduct have long passed. The jury clearly accepted that KP said no to engaging in sexual intercourse with Mr. Shawdover. Consent is required for each act. I do not consider what KP was doing, up to that point, to make Mr. Shawdover any less blameworthy. Justice London-Weinstein did not comment about the victim in Cepic paying for a lap dance as somehow militating against the moral blameworthiness of the offender in that case. When a person says no, regardless of what transpires leading up to that point, there is a lack of consent.

90Sexual assault is a crime of violence. The objective of general deterrence and denunciation must be given some prominence.

91I do not agree with the defence position that a six-month sentence followed by three years of probation is appropriate. Similarly, the Crown’s position of four years is excessive.

92Mr. Shawdover is, therefore, sentenced to three years, or 36 months for

93The following ancillary orders will be included:

• An order authorizing the taking of a DNA sample pursuant to s. 487.05(1)(a) of the Criminal Code.

• A firearms prohibition order for 10 years pursuant to s. 110 of the Criminal Code.

• An order prohibiting the offender from communicating directly or indirectly with KP while in custody pursuant to s. 743.21 of the Criminal Code.

• An order requiring Mr. Shawdowver to comply with the Sex Offender Information Registration Act for life pursuant to s. 490.013(2.1) of the Criminal Code.

L. Shaw J.