COURT FILE NO.: CR-23-50000254-0000 DATE: 20240607

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – ALLICK WELCOME

Counsel: B. Donohue, for the Crown D. Bygrave, for Mr. Welcome

Heard: 29 April 2024

S.A.Q. AKHTAR J.

RULING ON SENTENCING

Factual Background and Overview

Introduction

[1] Allick Welcome was convicted after a trial by jury of sexual assault. He now stands to be sentenced.

Background Facts

[2] In the early hours of the morning of 19 December 2021, the victim, hereinafter referred to as H, met Mr. Welcome in a nightclub. Both found themselves attracted to each other. At some point, they decided to go to an after-hours party along with another group. When they arrived at their destination, they found the after-hours club to be closed so they decided to leave.

[3] Eventually H and Mr. Welcome ended up at his apartment. They agreed to have sex but H made it clear that she would only consent to sex if Mr. Welcome used a condom. He left the apartment to purchase condoms. When he returned H again told him that she was only willing to engage in sex if Mr. Welcome wore protection.

[4] Mr. Welcome acknowledged this and put on the condom. They began having sex and Mr. Welcome inserted his penis into H’s vagina. However, during the course of having sex, H realised that Mr. Welcome had removed the condom without telling her. When she challenged him he told her that he had removed it because it felt uncomfortable.

[5] H left the apartment in shock and anger. She later went to hospital to be examined. Later that day, she attended the police station and whilst she was being interviewed she received a WhatsApp message from Mr. Welcome telling her that he was sorry.

[6] At trial, Mr. Welcome denied telling H that he had removed the condom and testified that he did not realise that it had come off during sex. He said that he would not have had unprotected sex and had asked H whether the condom had broken.

[7] A jury rejected Mr. Welcome’s account and found him guilty of sexual assault.

Personal Circumstances

[8] Mr. Welcome is 38 years old and was born in St. Vincent emigrating to Canada in December 1999.

[9] He has two older sisters and was the youngest child of the family. His pre-sentence report indicates that he experienced many challenges in childhood. His mother left the household to come to Canada when he was 8 years old and his father died when he was 12. He dropped out of school when aged 13 to help his family financially.

[10] After coming to Toronto, he and his sisters lived with their mother but she was deported a few months later. He was placed in foster care at the age of 14. He is in communication with his mother who still lives in St. Vincent.

[11] He graduated from high school and completed a Co-op programme beginning work as an electrical apprentice. He has worked for various electrical companies but is now self-employed, owning his own company which sub contracts for home improvement projects.

[12] Mr. Welcome is married with 3 children aged 14, 12 and 6. He separated from his wife in 2021 and was estranged from her at the time of the offence but they have since reconciled.

[13] Despite the length of his residency, Mr. Welcome is not a Canadian citizen. He is a citizen of St. Vincent and the Grenadines. If given a prison sentence that exceeds six months he will be deported and has no right of appeal.

Victim Impact Statement

[14] H read out her victim impact statement in court. It is clear that this offence significantly impacted her mental well-being and she continues to suffer emotional distress in its aftermath.

Aggravating and Mitigating Features

[15] The impact on H in this case is one of the most aggravating features in this case. Her victim impact statement shows that she has suffered emotionally and financially as a result of the offences. There is also the fact that H trusted Mr. Welcome and he acted surreptitiously in removing the condom.

[16] In mitigation, Mr. Welcome did appear to express remorse the day after the offence when H attended the police station although he continued to deny the offences at trial. He has a dated unrelated criminal record and, as the Crown concedes, he is at a low risk to re-offend.

The Sentence Ranges

[17] It is clear that all penetrative sexual assaults are considered to be an egregious act irrespective of whether the perpetrators are strangers or those known to the victim. In R. v. A.J.K., 2022 ONCA 487, 82 C.R. (7th) 116, at para. 74, the court observed:

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. Whether intimate partners or strangers, victims of sexual violence suffer profound emotional and physical harm and their lives can be forever altered. So too can the lives of their loved ones.

[18] Both parties agree that this is an unusual case with little in the way of precedents.

[19] The closest case is that of R. v. Lupi, 2019 ONSC 3713. There, the offender met the victim on a dating site and both agreed to have sex. The victim insisted that the offender wear a condom. The trial judge found that the offender had removed the condom during sex and therefore the victim had not consented. The offender had no criminal record and, at the sentencing hearing argued that the fact of the conviction would make him subject to deportation. The offender was sentenced to 15 months’ imprisonment which was upheld on appeal to the Summary Conviction Appeal court.

[20] In R. v. Cummings, 2022 ABPC 191, [2022] A.W.L.D. 3887, the offender agreed to have sex with a condom with the victim. Instead, he held her hands down and had unprotected sex with her. He was a first time offender who showed remorse. He received two years imprisonment.

[21] There are cases of sexual assault where a conditional sentence order (CSO) was imposed.

[22] In R. v. Holland, 2022 ONSC 1540, the offender who was a nightclub promoter lured the victim to the VIP area of the club and inserted his finger into her vagina. He had no criminal record and was given an 8 month conditional sentence order.

[23] In R. v. Simkins, 2023 ABPC 30, the offender engaged in consensual kissing with the victim when the offender removed the victim’s underwear by consent but performed fellatio on him without seeking his permission. He received a conditional sentence order of two years less one day.

What Is the Appropriate Sentence?

[24] Sentencing is an individualised process.

[25] Section 718 of the Criminal Code of Canada, R.S.C. 1985, c. C-46, sets out the factors that a judge must consider when imposing a sentence. These principles emphasise balancing denunciation and deterrence with rehabilitation and promoting a sense of responsibility.

[26] The fundamental principle of sentencing is contained in s. 718.1 of the Criminal Code. This principle mandates that any sentence must be proportionate to the gravity of the offence and degree of the responsibility of the offender.

[27] Here, the Crown agrees that there is a low risk to re-offend and that even though Mr. Welcome denied the allegations at trial, he expressed remorse in an apologetic message to the victim the day after the offence.

[28] Mr. Welcome’s individual circumstances are made more complicated by his immigration status and the consequences of conviction on his right to stay in Canada. As noted, he is a permanent resident and retains citizenship of St. Vincent and the Grenadines.

[29] The defence provided information from an immigration lawyer that his conviction for this offence (which is one that falls within the definition of “serious criminality” within the Immigration and Refugee Protection Act) means that Mr. Welcome is likely to lose his permanent residence status and become removable from Canada. This remains the case even if he receives a CSO instead of a term of imprisonment. However, there is a difference between receiving a jail term and being the subject of a conditional sentence order.

[30] If Mr. Welcome receives a prison sentence he will be referred to the Immigration Division where he will become subject to a removal order. He will not be able to appeal this decision to the Immigration Appeal Division (IAD). However, if given a conditional sentence, he would still be ordered removed but would be able to appeal that order to the IAD.

[31] I also take into account Mr. Welcome’s family circumstances. He has three young children who are at an age where they need their father in their lives. Sending him to prison would deprive them of a much needed presence and influence.

[32] In the individualised circumstances of this case I am prepared to accede to the defence request and impose a conditional sentence order of two years less one day. Mr. Welcome will be subject to house arrest with the exception of leaving his residence for work purposes, medical visits, and religious purposes. He will also be permitted to leave his residence for two hours every Saturday to fulfil any shopping duties. He must carry a copy of this order with him every time he leaves the house.

[33] I will also make the following ancillary orders:

• Mr. Welcome will provide a sample of his DNA under the primary ground pursuant to s. 487.051(2) of the Criminal Code; and
• He will be subject to a SOIRA order for a period of 20 years pursuant to the Sex Offender Information Registration Act.

S.A.Q. Akhtar J. Released: 7 June 2024