COURT FILE NO.: CR39700-21-95 DATE: 20231023
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – L.A.M. Defendant
COUNSEL: I. Blanchard, for the Crown J. Gilbert, for the Defendant
SUBMISSIONS HEARD: September 8, 2023
REASONS ON SENTENCE
Justice H. Desormeau
Overview
[1] On February 24, 2023, the accused was found guilty of sexual assault and breach of probation. Submissions on sentence were heard September 8, 2023, and my decision was reserved until today.
[2] At trial, I was convinced beyond a reasonable doubt that the Crown had proven that the accused knew, or was reckless and/or willfully blind, that the complainant was not consenting to the sexual activity in question. Thus, I found as a fact that the accused had sexually assaulted R.C. which included vaginally penetrating with her tongue and finger, kissing her, and tying her hands.
[3] I also found that the accused failed to comply with the probation order condition to keep the peace and be of good behaviour.
[4] The defence submitted that an appropriate sentence for this accused would be a conditional sentence of 18 months to two years less a day, with house arrest for a considerable portion of the sentence, and conditions including counselling and programming.
[5] The Crown’s position was that that accused ought to be sentenced to two years less a day and three years probation, with conditions to include to keep the peace and be of good behaviour, report, reside at a place approved of by the probation officer, notify of any change of address, name, no contact with the victim and their immediate family, not to be within 100 metres of any place the victim may be, and no weapons. The Crown was also seeking a SOIRA order for 20 years, DNA, a s.109 weapons prohibition for 10 years.
[6] The victim provided a victim impact statement which was read on record by the Crown. The Crown also filed as an exhibit the accused’s criminal record.
[7] The Court also received the s.21 Mental Health Assessment which was completed by Dr. Gojer on August 10, 2023, as well as the pre-sentence report dated April 24, 2023, by Ms. Danaher.
Mental Health Assessment
[8] Dr. Gojer’s assessment noted that the accused was diagnosed with bipolar illness in 2004, suffers from antisocial personality disorder and has had a history of alcohol use disorder and stimulant use disorder. Dr. Gojer opined that the accused is “at that phase in life where the frequency of an adult offending sexually after reaching 60 years is low.” He went on to state that it is his clinical estimate, she is a low to moderate risk reoffend generally and a low risk to reoffend sexually. Dr. Gojer provided five recommendations to be included should the accused receive a period of probation:
a. That she should be under the care of a psychiatrist and receive ongoing treatment for her bipolar illness. b. That she should participate in a substance use program. c. That she should not have any contact with the victim of the offence. d. That she should participate in a program for sex offenders which can be done individually or in a group. e. That a referral could be made to the sexual behaviour’s clinic at the Royal Ottawa Hospital as one of their social workers may be able to assist with counselling by video or telephone contact or assist a probation officer with management techniques.
[9] As pointed out by the Crown, the criminal record upon which Dr. Gojer relied was not up to date, as it ended in 2019, whereas the accused has convictions for several offences in 2021 and 2022.
PSR
[10] The pre-sentence report dated April 24, 2023, indicated that in March 2023, the accused was the primary caregiver for children unrelated to her, aged one to fifteen, prompting child welfare concerns to be reported to the local CAS.
[11] The accused has her grade 12 diploma. She was reportedly exposed to verbal, emotional, and physical abuse while attending private school for her secondary studies. The accused nevertheless went on to obtain post secondary education such as computer programming. The accused has had what appears to be a continuous work history, including owning and operating an internet café and more recently being the manager of her family’s lawn care and snow removal company.
[12] The accused has suffered from addictions issues, starting in the 1980’s but really becoming problematic for her in the 2000’s, which included the need to traffick drugs to support her habit. She has also experienced lengthy terms of sobriety. She relapsed in about 2019 and used until being incarcerated in October 2020. She shared with the author of the PSR that her drug use has contributed to her conflict with the law. Her criminal record includes drug related offences.
[13] As noted in the PSR, the accused presents as “an active client with the Ministry of the Solicitor General”, and at the time of the report was being supervised on a 24-month probation order. Ms. Danaher commented that the accused’s reporting habits appear sporadic, but she does follow up to inquire if an appointment was missed or calls to reschedule.
[14] The accused seemed to have a chaotic life which include frequent changes or issues regarding her health, vehicle issues, police contact, family, or employee issues. While she presented with disjointed conversations, she was polite and respectful. The accused recently suffered the loss of her mother and apparently does not have contact with her aunt, thus her positive support system appears to be at a loss.
[15] As noted in the PSR, the accused was diagnosed with a bipolar disorder in 2006 and depression in 2020. She is not presently followed by a psychiatrist and has not been since 2019. I was noted that the accused’s criminal record dates back to 2007, which includes an array of offences including assault with a weapon, possession of property obtained by crime, trafficking, obstruction, possession of a weapon and criminal harassment. She also has “copious amounts of fail to comply with court order convictions”.
[16] The author went on to indicate that during the accused’s time on community supervision, she has been supervised as an Intensive Supervision Offender, which is of greater risk within the community and requires more supervision. The history shows that for prior periods of community supervision the accused’s reporting habits were described as inconsistent, though she has been considered suitable for future community supervision.
[17] Ms. Danaher also spoke to victim, R.C. while completing the PSR. R.C. described her relationship with the accused as a nightmare, explaining the result of the offences and the relationship altered her life in very negative terms, affecting her physically, mentally, emotionally and touching all parts of her life.
[18] The author noted that the accused presented with a poor attitude toward the recent convictions and does not accept any responsibility for the sexual assault charge – thus is not demonstrating any level of remorse.
[19] The author stated that the accused would be considered questionable as a suitable candidate for community supervision and only if she is willing to engage and participate in counselling and/or programming that would address mental health, substance abuse and domestic violence/ healthy relationships. She went on to indicate “of great concern is the seriousness of the offence, that the subject does not accept any responsibility for the offence therefore is presenting with no remorse, the victim’s safety concerns, that the [accused] has an extensive criminal record and aplenty non-compliance convictions on record.”
Victim Impact Statement
[20] R.C. provided a detailed victim impact statement denoting how her life drastically changed following the incident, such that she no longer feels safe going outside her home or even going to work, eventually leading to her necessarily going on sick leave. She indicated she suffers from PTSD from the incident, which effectively led to the demise of her marriage. She indicated she would never benefit from a normal relationship due to her triggers, anxiety, and distrust for everyone. She also suffered physical injuries to her right shoulder and arm due to the trauma, leading to light duties and a requirement to attend physiotherapy. That injury is now permanent and painful. This has all had significant financial consequences on R.C.’s life, particularly due to receiving less income on sick leave or from employment insurance.
[21] R.C. expressed she would be fearful of the accused for the rest of her life for herself, her children, and her whole family. R.C. has moved four times due to not feeling safe, and purchased several different vehicles so that the accused would not know what she drives. She parks her vehicle in other people’s driveways so that the accused would not know where she resides. She has a resounding unanswered question, “how does someone who says I love you do such horrible things to someone that ruins that person and changes their life forever?”
[22] R.C. requested that the accused not be permitted any contact with herself and members of her immediate and extended family.
Jurisprudence
Defence
[23] Defence counsel provided several cases which they summarize as standing for the proposition that a conditional sentence pursuant to s. 742.1 of the Criminal Code is an available and appropriate sentence in light of the accused not previously having been convicted for a sexual assault.
[24] Defence argued that the accused should have the benefit of as short a sentence as possible given this is her first conviction for a crime of a sexual nature. In making this argument, defence relied on R. v. Dickson, 2023 ONSC 2776 where the court articulated the principle that that the first sentence of imprisonment should be as short as possible as found in R. v. Priest (J.), 903 O.A.C. 163 (C.A.).
[25] It was argued that the accused’s substance misuse would likely have exacerbated her mental health issues. In support of their position that the court ought to impose a conditional sentence, defence relied on the following submissions:
a. The accused is 60 years old, and she can be managed on a conditional sentence and the likelihood of recidivism is very low as she is a first-time offender in the context of sexual assault. b. In light of the accused’s mental health and addictions issues, counselling and treatment are desirable, and these can be better accomplished on a conditional sentence. There is very little counselling or treatment available in a custodial setting. c. The specific deterrence can be achieved with a conditional sentence.
Crown
[26] The Crown relied on several authorities to support their position that the accused ought to receive a custodial sentence of two years less a day plus three years probation.
[27] The Crown argued all sexual assaults are serious acts of violence. Here, there the parties were intimate partners. There was forced digital penetration. They argued that eliminating sexual violence against women is one of the more pressing challenges society must face: R. v. Barton, 2019 SCC 22.
[28] In relying on R. v. Friesen, 2020 SCC 9, the Crown submitted how sexual violence has a disproportionate affect on girls and young women. Sexual assault can have a profound physical and psychological harm to a victim.
[29] It is an aggravating feature in this type of situation if there is an intimate partner relationship. Further, should the court find that the relationship to have been one of trust or authority, then an abuse of same is also aggravating feature: see R. v. P.M., 2020 ONSC 3325. The court went on to indicate that the principles of denunciation and deterrence are of particular importance in cases involving domestic violence.
[30] The Crown also argued in support of their position:
a. The accused’s criminal record started in 2007, by which time she had already been diagnosed with her mental health issues and was assisted by professionals to address her concerns. b. A conditional sentence order is not appropriate as the accused has demonstrated an inability to follow conditions. Strict conditions are necessary to have meaningful consequences in the context of a conditional sentence. Here, the accused’s criminal record is replete with breached of court orders. c. The accused’s first sentence was a conditional sentence, and this has not deterred or denounced her behaviour. d. The pre-sentence report noted the accused’s occasionally sporadic reporting habit and the chaos in her life.
Principles of Sentencing
[31] As summarized by Justice Shreck in R v. Holland, 2022 ONSC 1540 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": R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37; R. v. Friesen, 2020 SCC 9, 391 C.C.C. (3d) 309, at para. 30; R. v. Parranto, 2021 SCC 46, at para. 10: See R v Holland, 2022 ONSC 1540 at para 15.
[32] A sentence imposed by the court should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. The accused should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances; and 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.
Aggravating and Mitigating Circumstances
[33] In this case, the aggravating circumstances include:
a. The accused and the victim were intimate partners. b. The accused abused a position of trust in relation to the victim. c. The offence had a significant impact on the victim.
[34] The court notes that the fact that the accused has not accepted responsibility for the offence and has expressed no remorse is not an aggravating factor: R. v. Shah, 2017 ONCA 872, at para. 8; R. v. Valentini (1999), 132 C.C.C. (3d) 262 (Ont. C.A.), at p. 296: See R v. Holland, 2022 ONSC 1540.
[35] The mitigating circumstances include that the accused has no prior record for offences of a sexual nature.
Analysis
[36] As set out in R. v. Cacdac, at para 32:
In its recent decision in R. v. Parranto 2021 SCC 46, the Supreme Court of Canada recently reaffirmed the importance of the principle of proportionality in sentencing. The majority stated at paragraphs 10 and 12:
The goal in every case is a fair, fit, and principled sanction. Proportionality is the organizing principle in reaching this goal. Unlike other principles of sentencing set out in the Criminal Code, proportionality stands alone following the heading "Fundamental principle" (s. 718.1). Accordingly, "[a]ll sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender" (R. v. Friesen, 2020 SCC 9, at para. 30). The principles of parity and individualization, while important, are secondary principles.
As to the relationship of individualization to proportionality and parity, this Court in Lacasse aptly observed:
Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances. [para. 53]'
Individualization is central to the proportionality assessment. Whereas the gravity of a particular offence may be relatively constant, each offence is "committed in unique circumstances by an offender with a unique profile" (para. 58). This is why proportionality sometimes demands a sentence that has never been imposed in the past for a similar offence. The question is always whether the sentence reflects the gravity of the offence, the offender's degree of responsibility and the unique circumstances of each case (para. 58)." R. v. Cacdac, 2022 ONCJ 492 at para 32.
[37] The court in Cacdac went on to reference the case of R. v. Browne, 2021 ONSC 6097:
In imposing the conditional sentence in R. v. Browne, McArthur, J. noted the importance of the paramount sentencing objectives of deterrence and denunciation in sentencing in sexual assault cases. She stated at paragraph 103:
"But what emerges again and again from the authorities presented is that the paramount sentencing objectives in cases involving sexual assault must be deterrence and denunciation. Further, it is clear that the objective of rehabilitation of the offender should not be given precedence over or even equal weight to denunciation or deterrence. On the other hand, rehabilitation of the offender is still relevant. Restraint also cannot be ignored as to do so would lead to sentences that offend the fundamental principle of proportionality. Finally, the cases make clear that conditional sentences for offences of sexual assault prosecuted by indictment, while uncommon, may in certain circumstances be consistent with the fundamental purpose and principles of sentencing".
[38] I am aware that sentencing ranges are not straightjackets.
[39] The Crown is seeking a custodial sentence of two years less a day.
[40] I accept that a conditional sentence is statutorily available in this case. I must therefore consider whether it would be appropriate.
[41] Section 742.1(a) of the Criminal Code sets out two prerequisites for such a sentence. The first is that service of the sentence must not endanger the safety of the community. The second prerequisite in s. 742.1(a) is that a conditional sentence must be "consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2." Denunciation and deterrence are paramount sentencing objectives in sexual assault cases. However, conditional sentences have both a denunciatory and deterrent effect, even where those objectives are paramount: Sharma, at para. 110, R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at paras. 41, 67; R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, at para. 35. Also see R. v. Holland, 2022 ONSC 1540 at para.
[42] The offence of sexual assault is a very serious offence. It strikes at the core of a person's integrity and sense of personal safety. It can cause significant emotional damage.
[43] The principle of denunciation is an expression of society’s attitude towards the offence committed. It focuses on the aspect of conduct, not on the personal characteristics of the offender. In R. v. M. (C.A.), 1996 SCC 230 Justice Lamer of the Supreme Court of Canada wrote that: “In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law.”
[44] The principle of deterrence is set out in s. 718 (b) of the Criminal Code. Deterrence seeks to provide a threat or example to the offender (specific deterrence), or to others (general deterrence), in order to discourage crime by making it clear that criminal behaviour of this nature will result in the imposition of severe punishment.
[45] In any given case, there may be one or several sentencing principles at play. Sometimes they conflict with each other. The Court must attempt to balance all relevant sentencing principles with the aggravating and mitigating circumstances and personal background and history particular to each accused.
[46] The paramount sentencing principles are denunciation and general deterrence. Rehabilitation remains an important consideration.
[47] The court notes that a proper sentence must consider the circumstances of the offender and the circumstances of the offence. I first look at the circumstances of the offender and consider the accused’s background.
[48] The court notes that this is the first conviction of a sexual nature for the accused, who is 60 years old.
[49] The non-consensual sexual intercourse has had a profound effect on R.C.
[50] The court is concerned with the numerous breaches on the accused’s criminal record. As noted by the author of the PSR, the accused has been supervised as an Intensive Supervision Offender as she is a greater risk within the community and thus requires more supervision. The PSR also noted that the accused was not consistent in reporting – which is relevant when being asked to impose a conditional sentence. The accused has previously benefited from three prior conditional sentence orders.
[51] After considering the evidence and governing sentencing objectives and principles and taking into consideration the relevant aggravating and mitigating factors, I am of the view that the defence position of a conditional jail sentence fails to meet the public demands in relation to denunciation and deterrence. It is disproportionately low in relation to the gravity of the offence and the consequences to R.C.
Sentence
[52] In my opinion, having regard to the circumstances of this case, the aggravating and mitigating circumstances referred to above, a sentence which is proportionate to the gravity of the offence, the degree of responsibility of the accused, and is the least restrictive sentence which can be imposed in the circumstances is a 12 month custodial sentence for the sexual assault and 1 month concurrent sentence for the breach of probation. The accused will also be sentenced to three years probation.
[53] The terms of probation shall include:
a. Keep the peace and be of good behaviour. b. Report to probation within 72 hours of release. c. Reside at a place approved of by the probation officer. d. Notify probation of any change of address, and/or name. e. Not to contact or communicate with, directly or indirectly, R.C. or with anyone who is identified as her immediate and/or extended family member. f. Not to be within 150 metres of where you know R.C. to live, work, got to school or frequent, and any accidental contact is to be reported to Police and to the probation officer. g. Attend and actively participate in any counselling or rehabilitative programs as instructed by the probation officer, including but not limited to meeting with a recognised psychiatrist, substance abuse, the changing directions program and a program for sexual offenders. h. Sign any releases necessary to monitor your attendance and completion of programs to the satisfaction of the probation officer. i. Do not possess any weapons.
[54] Pursuant to s.743.21, the accused is prohibited from communicating with R.C. during her custodial sentence.
[55] There will be a DNA order, primary designated offence.
[56] A SOIRA Order for 20 years.
[57] A section 109 firearms prohibition of 10 years. All prohibited items will be surrendered within 24 hours of release.
Justice H. Desormeau Released: October 23, 2023