Court File and Parties

Court File No.: CR-22-68 Date: 2023-11-22 Ontario Superior Court of Justice

Between: His Majesty The King And: D.G.B., Defendant

Counsel: Gurinder Gill, for the Crown Bevan Earhart, for the Defendant

Heard: November 15, 2023

Reasons for Sentence

M. McKelvey J.:

[1] The defendant in this case was found guilty at a trial by jury of sexual assault. He was also found guilty on two counts of assault and uttering a death threat.

[2] The defendant now comes before this Court for a sentencing on those offences.

Background Facts Relating to the Above-Noted Convictions

[3] The events in question took place between February and August of 2020. All of the offences occurred when the defendant and the complainant were living together.

[4] With respect to the first assault charge, the complainant testified that the defendant would hit her over the head and the face, stomach and back. He would pin her on the floor. On occasion he would knock her feet out from under her and would then get on her stomach holding her hands above her head with one hand and punching her in the stomach with the other hand. The complainant stated that the accused would use a knife two to three times a week. The complainant testified that the defendant had a knife and would use the knife to draw pin pricks of blood. The jury convicted the defendant of assault but acquitted him of the charge of assault with a weapon.

[5] On the second charge of assault, the complainant testified that in the middle of July the defendant hit her on the stomach with a curtain rod while she was pregnant. She stated that her stomach started to bleed right across from her belly button on the right side. She asked to go to the hospital but the defendant told her that she didn’t need to do so. The jury convicted the defendant of assault, but acquitted him of the charge of assault with a weapon.

[6] With respect to the assault allegations, the complainant testified that following a couple of the assaults, the police were called to their home. The defendant told the complainant that if he got arrested she and her family would no longer be living. She would then tell the police that nothing happened because she was concerned about her daughter.

[7] The jury rendered a verdict of guilty on the charge of threatening death.

[8] With respect to the sexual assault charge, the complainant testified that this occurred on Canada Day, July 1st. In the evening of that day, the defendant demanded sex. She told him no because they had been up a long time during the day. The defendant then told the complainant that she couldn’t say no. She continued to tell him no and the accused then whipped the cover off the bed. He then went into the bedroom and got a length of rope which he cut into sections. He then applied the rope and tied both her wrists and feet to the bed. The complainant asked the accused what he was doing and he responded that he was going to get what he wanted. He then proceeded to have sexual intercourse with her. The complainant testified that the defendant penetrated her vagina and she screamed at him to stop and let her go. He then screamed back at her to shut up. He had his hands on her wrists further keeping her arms above her head in case the ropes came undone. After he ejaculated inside her, the accused untied her and told her to clean herself up.

Applicable Legal Principles

[9] The principles of sentencing are set out in s. 718 of the Criminal Code which provides 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 the 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 acknowledgment of the harm done to victims or to the community.

[10] Section 718.1 of the Criminal Code provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[11] Section 718.2(a) of the Criminal Code provides that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.

[12] Under s. 718.2(a)(ii) of the Criminal Code, evidence that the offender, in committing the offence, abused his intimate partner is a statutory aggravating factor. Another statutory aggravating factor under s. 718.2(a)(iii.1) of the Criminal Code is where the offence has had a significant impact on the victim, considering her age and other personal circumstances.

Circumstances of the Offender

[13] The defendant is 24 years old. A pre-sentence report dated September 14, 2023 has been obtained.

[14] The pre-sentence report documents a lengthy criminal record for the defendant. It starts in 2018 and runs until 2022. During this time the defendant has committed over 20 criminal offences. His offences range from mischief, theft, breaking and entering, uttering threats, assault and forcible confinement. There are also numerous convictions for failing to comply with probation orders.

[15] At least one of his convictions is for intimate partner violence. This related to an assault against the same complainant in 2019.

[16] The defendant had a difficult upbringing. He reported that there was weapon use as well as verbal and physical violence between his parents. He described the family relationship as a “ticking time bomb”. He stated that his father would hit him and tie him to his bed and further reported that his mother would prostitute herself to support her drug addiction and would offer him to her customers in receipt of further payment. At the age of five the defendant was removed from his parents’ care and was placed in a foster home. He described supportive relationships within his foster family. In an earlier pre-sentence report which the defendant introduced at the sentencing hearing, however, he stated that about a month prior to his eighteenth birthday, he moved back into his mother’s home in Barrie, Ontario. Within a week, however, he was kicked out for not following rules and returned to his foster placement. He also described being homeless from approximately April 2017 to August 2017 and accessed a local shelter where he was provided with a tent.

[17] The defendant also described in the earlier pre-sentence report one incident with a foster family where he was subject to corporal punishment if he got into trouble. He also remarked that the family never celebrated his birthday.

[18] In the current pre-sentence report, the defendant denied any substance abuse issues including alcohol. This information is at odds with information received from the complainant and an earlier girlfriend. The complainant has commented that the defendant’s difficulty with alcohol makes his violence and anger worse and she knew the defendant abused various forms of opioids through their relationship. Further, in the earlier pre-sentence report, the defendant admitted his alcohol consumption varies between a few beers to several 40 ounce bottles of hard liquor. He admitted that he drank too much and “ends up in trouble which has often led to new criminal charges”. The defendant also acknowledged that alcohol has negatively affected his employment and caused him some medical issues.

[19] The defendant successfully completed high school in St. Thomas, Ontario. He later graduated with a Master of Culinary Studies and an Advanced Associate Degree from Fanshawe College as well as an online Bachelor of Arts for Black White Artistry through Norkat.

[20] In the current pre-sentence report, the defendant advised that his goal for the future is to further his tattooing and artistry skills. He currently has a relationship with a new girlfriend who resides in Toronto. The new girlfriend confirmed their relationship of approximately three years. However, it is noted that the defendant has been incarcerated for a large portion of this relationship. She advised that they share a young child together and she has full custody of the child at this time.

[21] In the earlier pre-sentence report it is noted that the defendant was under the care of a psychiatrist in attempts to manage his issues pertaining to conduct, mood and trauma. It further states that when he relocated to Barrie at 18 years of age, he was referred to a local psychiatrist. However, he was asked to leave due to his behaviour and the file was closed. It further states that the defendant did not accept culpability for his actions but rather boasted about his ability to commit offences. In addition, he claimed he was motivated by financial gain. He stated to the author of the earlier pre-sentence report that if he found himself in a similar situation he would most likely act out violently.

[22] The current pre-sentence report indicates that the defendant has two younger children aged three and two. His older child is in custody of the mother as he is in constant care for cerebral palsy, epilepsy and selective vocabulary disorder. The defendant advised that this child’s mother signed over custody to his mother and he has not been involved in the child’s life for approximately 18 months. The other child is currently with his girlfriend and due to his incarceration, the defendant has not been able to establish any form of relationship up to this point in time. The defendant intends on resuming residence with his girlfriend in Toronto upon his release.

[23] The defendant denied all of the charges that were before the court. He believed the complainant fabricated all of the evidence in search of money to feed her addictions. While an expression of remorse or acceptance of responsibility can be a mitigating factor, I do not consider the defendant’s expression of innocence to be in any way a negative or aggravating factor in this case.

Indigenous Status

[24] The defendant claims that he is Indigenous. As a result, a Gladue Report was requested by the defence. In a letter dated October 17, 2023, Aboriginal Legal Services advised that they were not able to prepare a Gladue Report for the defendant at this time. The report from Aboriginal Services indicated that the defendant learned of his Indigenous ancestry in 2016 while having a conversation with his paternal grandmother. The defendant did not know much about his Indigenous background except that he believed that his mother was a registered band member with Oneida First Nation and his father was a registered band member with Rama First Nation.

[25] Inquiries by the Aboriginal Legal Services indicated that the defendant’s mother was not a member of Oneida First Nation and his father was not a member of Rama First Nation. Additional searches were carried out regarding possible ancestry for the defendant’s father, mother and grandmother. However, no results were found.

[26] The letter from Aboriginal Legal Services concludes that they are not in a position to draw a conclusion that the defendant is not an Indigenous person. However, they are not able to address how being an Indigenous person has affected the defendant’s life circumstances.

[27] Based on the report of Aboriginal Legal Services, there is good reason to doubt whether the defendant is an Indigenous person. In any event, there is no evidence before me as to how the defendant’s Indigenous ancestry, if any, has affected the defendant’s life and the defendant’s Indigenous status is therefore a very minor consideration for purposes of sentencing.

[28] This is further reflected in the fact that the courts have treated sexual assault as offences where denunciation and deterrence are key principles for consideration. (See for example: R. v. Thurairajah, 2008 ONCA 91, at para. 41).

Effect on the Victim

[29] No victim impact statement was introduced at the sentencing hearing. However, in the pre-sentence report the author interviewed the complainant. It is apparent that the conduct of the offender had a major impact on the complainant’s life. The author reports that the complainant,

is considerably terrified of the subject and what he may be capable of. He has threatened to harm and/or kill her, and her family, should she or anyone else come forward and be responsible for any incarceration. She wants no further contact with him in the future and is hopeful that she may never see him again.

Ancillary Orders

[30] The Crown seeks the following ancillary orders with respect to the defendant’s convictions in this case:

(a) As the sexual assault offence is a primary designated offence under s. 487.051 of the Criminal Code, the Crown seeks an order authorizing the taking of DNA samples;

(b) The Crown seeks an order under s. 743.21 of the Criminal Code prohibiting the defendant from communicating directly or indirectly, with the complainant and members of her immediate family during the custodial period of his sentence;

(c) The Crown seeks an order under s. 109 of the Criminal Code prohibiting the defendant from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substances. The duration of this prohibition order is for life; and

(d) The Crown asks for an order that the defendant comply with the Sex Offender Information Registry Act for a period of twenty years in accordance with s. 490.012(1) and s. 490.013(2) of the Criminal Code.

[31] The defendant does not take issue with the above-noted ancillary orders and they will, therefore, form part of the defendant’s sentence.

Credit for Pre-Trial Custody

[32] The defendant was arrested on April 26, 2022 and has been in custody since that time. His pre-trial custody therefore totals 574 days. Based on a 1.5 day credit for each day in custody, he is entitled to a total pre-trial credit for pre-sentence custody of 861 days.

Sentence for Counts 2, 3 and 4

[33] With respect to Counts 2 and 3 which are the assault convictions, the Crown proposes a 90 day concurrent sentence for each of those convictions. With respect to Count 4 which is the threatening death conviction, the Crown proposed a 30 day concurrent sentence. The defence has agreed to those proposed sentences. They will, therefore, form part of the defendant’s sentence.

Position of Parties with Respect to the Sexual Assault Conviction

[34] On the sexual assault conviction the Crown seeks a sentence of 6 years less pre-trial custody. The defence position is that the sentence should be in the range of 2 to 3 years.

Analysis

[35] There are a number of significant aggravating and mitigating factors in this case. With respect to aggravating factors, I have previously referred to the statutory aggravating factors that this offence was one of intimate partner violence. A further statutory aggravating factor is the significant impact the offence had on the victim. While I acknowledge that some of the impact to the complainant was as a result of the other offences that the defendant has been convicted of, the sexual assault here is clearly the most serious offence and I conclude that it has contributed in a significant way to the fact that the complainant is now terrified of the defendant, “and what he may be capable of”.

[36] The circumstances of the sexual assault are very serious. It involved vaginal penetration and ejaculation. It also involved the use of ropes to tie the complainant’s hands and feet as well as physical violence with the defendant holding the complainant’s arms as he sexually assaulted her. All of these factors reflect the demeaning behaviour of the defendant and his contemptuous disregard for the personal integrity of the complainant.

[37] A further aggravating factor is the defendant’s criminal record. Although this is the first instance of a sexual assault, his record includes a number of assault offences. The number of his offences within a short period of time between 2018 to 2022 strongly suggest that the defendant is unwilling to abide by a reasonable code of behaviour. The prospects for rehabilitation, despite his young age, appear extremely poor.

[38] There is at least one mitigating factor. This relates to his upbringing which I accept has been very difficult and which involved his removal from the family home and placement with a foster family or families.

[39] A further mitigating factor relates to the defendant’s previous conviction for assault in St. Thomas. The defendant points out that had this matter been tried jointly with the current case, the totality principle would have come into play and reduced the period of incarceration for the defendant. While there is some merit to this position, I do note that the St. Thomas conviction resulted in a sentence of 33 days and probation for two years. The defendant was given credit for the equivalent of 50 days custody which meant other than pre-trial custody, he was not subject to any continued custody on that charge. In addition, I note that the charges for assault pale in comparison to the sexual assault.

[40] In support of its position, the Crown referred to a number of decisions. However, most of these decisions involved multiple incidents of sexual assault. For example, in R. v. C.H., 2021 ONSC 8146, there were three incidents of sexual assault which resulted in a sentence of 3 ½ years. Another example is the case of R. v. Inshanally, 2021 ONSC 3432. In that case the defendant was convicted of three sexual assaults. He was sentenced for 7 years based on a sentence of 2 years each for sexual assault, together with additional period of incarceration for other offences. It is interesting to note that the trial judge in that case accepted that a higher sentence of 3 years for each of the sexual assaults would have been justified, but he reduced the sentence to 2 years to give effect to the principle of totality.

[41] In proposing a sentence of 2 to 3 years, the defendant not only relied on the fact that the other cases relied on by counsel contained multiple offences for sexual assault. He also argued that the range of 2 to 3 years was consistent with other sentences for sexual assault. This appeared to be a reference to the decision of the Ontario Court of Appeal in R. v. Smith, 2011 ONCA 564, which stated the following:

Finally, in cases of sexual assault involving forced intercourse with a spouse or former spouse, sentences generally range from 21 months to four years.

[42] It is interesting to note that neither counsel referred to the Ontario Court of Appeal decision in R. v. A.J.K., 2022 ONCA 487. This appeal also dealt with the sentencing range for sexual assault as well as the earlier appellate decision in R. v. Smith. In that case, the trial judge imposed a global sentence of 5 years for the sexual assault. The court agreed that the time had come to abandon the “Smith range”. The court stated:

The respondent maintains that the time has come to abandon what has come to be known as the “Smith range”. It is not clear to me that Smith was ever intended to set a clear sentencing range for a particular type of sexual assault. Even so, to the extent that it has come to be understood in this way, I agree that the time has come to set it aside.

[43] The court in the A.J.K. decision noted that in some cases appellate courts are called upon to chart a new course and bring sentencing ranges into harmony with new societal understandings of the gravity of certain offences or the degree of responsibility of certain offenders. It notes that an act of sexual violence perpetrated on a stranger to the accused is not necessarily worse than a similar act of sexual violence perpetrated on an intimate or former partner. Any suggestion to the contrary could only rest on unacceptable myths and stereotypes, ones that a fair justice system must continually confront and eradicate. The decision also notes that all sexual assaults are serious acts of violence. They reflect the wrongful exploitation of the victim whose personal autonomy, sexual integrity and dignity is harmfully impacted while being treated as nothing more than an object.

[44] The court goes on to find that there is no justifiable reason for why sexually assaulting an intimate or former intimate partner is less serious than sexually assaulting a stranger. The fact is that a pre-existing relationship between the accused and complainant places them in a position of trust that only can be seen as an aggravating factor on sentencing.

[45] The court makes reference to the Ontario Court of Appeal’s decision in R. v. Bradley, 2008 ONCA 179, which indicated the appropriate range of sentence for sexual assault was 3 to 5 years.

[46] In the A.J.K. decision, the trial judge stated that for the offences the accused had been found guilty of, sentences in the 4 to 7 year range had been given. In the A.J.K. decision, the appeal court states that they saw no error in that comment or in how the trial judge approached the sentencing exercise. With respect to the circumstances of the assault in that case, the court noted that the complainant begged to be released while the appellant took the complainant to a secluded area, choked her, penetrated her vaginally from behind, pinned her down, punched her, beat her, and then left her alone in the dark. This resulted in the complainant having a concussion, bruising and swelling. In that case, the court upheld a sentence of 5 years.

[47] Taking into account the comments of the Court of Appeal in the recent decision in R. v. A.J.K., I have concluded that the appropriate sentence for sexual assault in this case is 4 ½ years.

[48] Would the defendant please stand. I have concluded that your sentence in this case should be as follows:

1. On the charge under Count 7 of sexual assault, you are sentenced to 4½ years imprisonment;
2. On the charge under Count 2 of assault, you are sentenced to 90 days concurrent;
3. On the charge under Count 3 of assault, you are sentenced to 90 days concurrent;
4. On the charge Under Count 4 of threatening death, you are sentenced to 30 days concurrent.

[49] Pre-trial custody credit is to be given to you in accordance with these Reasons. In addition, the sentences are to include the ancillary orders as described in these Reasons.

Justice M. McKelvey

Released: November 22, 2023