COURT FILE NO.: CR-22-10000460-0000 DATE: 20240628 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – EDWIN CAPEHART Defendant
Counsel: K. Bunting, for the Crown J. Drexler, for Mr. Capehart
HEARD: May 7, 2024
Pursuant to s. 486.4 (1) of the Criminal Code there is an order that any information that could identify the complainant shall not be published in any document or broadcast or transmitted in any way.
Reasons for Sentence
Introduction
1Edwin Capehart was found guilty by a jury of sexual assault and choking to facilitate a sexual assault against the complainant, S.H.
2The Crown argues that given the need to emphasize the sentencing objectives of denunciation and deterrence, a sentence of five to six years in custody is warranted. Defence counsel counters that since Mr. Capehart is a youthful first offender with good rehabilitative potential, a sentence of four years is fit and proportionate. Given that Mr. Capehart has spent the equivalent of two years in pre-sentence custody, defence counsel urges me to impose a further sentence of two years less a day, plus probation.
Circumstances of the Offence
3On New Year’s Eve, S.H. went to Toronto for a party with friends. At the end of the party, she and her friends were invited to an Airbnb by a young man who was dating one of her friends. S.H. went to sleep on a futon with another of her friends. At some point, Mr. Capehart woke her up, took her by her arm and told her to come to the bed with him.
4S.H. lay down in the bed beside Mr. Capehart and tried to sleep. However, Mr. Capehart began to try to kiss and touch her. S.H. repeatedly said “no” to Mr. Capehart. She told Mr. Capehart that she was tired and just wanted to sleep. But he did not listen, removed her underwear, and penetrated her vaginally against her will. He choked her, such that she could barely breathe and could not speak. She continued to resist and tried to scratch him with her sharp nails. She then went limp as if she had no choice but to sit there and take it. After what was likely about three minutes, but that felt longer to S.H., Mr. Capehart finished, rolled off her and fell asleep.
Impact on the Victim
5S.H. wrote a powerful victim impact statement that eloquently set out the profound harm she has suffered from the sexual assault.
6The sexual assault took place a day before she was to relocate to Toronto for her second semester of freshman year of college. What was already a daunting transition became more challenging as S.H. had to deal with the aftermath of the sexual assault.
7S.H. felt consumed by shame and fear, feeling that no one would understand what she had endured. She had overwhelming feelings of anxiety and depression and persistent nightmares and flashbacks. The impact of the sexual assault has reverberated through every aspect of her life. Her trust in people has been shattered, and the specter of trauma haunts her, making relationships difficult.
8In addition to the emotional toll, the assault had a negative impact on her financially. S.H. bore the expense of extensive therapy and counselling, which strained her limited resources. She also had missed time at work because of the emotional distress related to the assault, further challenging her finances.
9Despite the trauma S.H. has faced, she wrote that she clings to a glimmer of hope that she can reclaim a sense of security and peace of mind. S.H. wrote a moving poem in her statement that speaks to her healing. I will not set out the entire poem, but highlight her final two stanzas:
PTSD’s grip, a relentless foe. Traps me in memories’ cruel throes. Yet through the darkness, I endure A phoenix rising, strong, secure.
For though you wrought despair and woe. I rise, I fight, I onward go. In defiance of your callous hand I reclaim my power, my strength, my stand.
10S.H. is clearly an articulate and strong young woman. I was impressed by the way she presented herself when she testified and in her comments in the victim impact statement. I truly hope that she continues to heal and move forward from this traumatic event.
Circumstances of Mr. Capehart
11Mr. Capehart is 25 years old. The offence took place hours on January 1, 2020, hours after his 21st birthday.
12Mr. Capehart was born in a refugee camp in Ghana. His mother fled Liberia when she was pregnant with him, after his father was killed in the civil war. Mr. Capehart spent the first seven years of his life in the refugee camp, where death and murder were common occurrences. His schooling was sporadic.
13Mr. Capehart, his mother, and his older brother immigrated to Canada in 2005, when he was in grade two. He has three sisters who remained in Ghana. He grew up in what was described as a “lower-income area.”
14Because of the lack of schooling in the refugee camp, Mr. Capehart was behind his peers in Canada. He spoke Patois and was in the English as a Second Language (ESL) program. He was also diagnosed with a learning disability. He required additional educational supports, such as an individual educational plan and supports to help him with his reading and language. He eventually joined several sports, including wrestling, rugby, and football.
15I was told that he suffered a football related concussion. While his mother said she noticed an increased level of impulsivity after he suffered the concussion, there was no medical evidence presented speaking to the impact of this concussion on Mr. Capehart. I thus place no weight on his mother’s belief that she saw a change in Mr. Capehart post-concussion.
16Mr. Capehart was also involved in his church, volunteering there as a young person. Mr. Capehart’s youth Pastor has provided ongoing support for Mr. Capehart and his family since he came to Canada.
17Mr. Capehart reported feeling different from his peers growing up. He struggled with discrimination and prejudice. His mother recalled how he would often come home crying, telling her how the other children would call him “black or negro” and point out that he was different. He often did not want to go to school. While the racism he faced was not always overt, there were small things that highlighted that he was different. He felt ignored by his teachers. He eventually joined a negative peer group focused on the Rap culture, which glorified getting intoxicated. He began to drink a lot, including during school hours and before football practices and games. Mr. Capehart reported that he used alcohol as a maladaptive way to cope with unpleasant emotions, in particular loneliness.
18Despite his alcohol use, Mr. Capehart managed to graduate from high school and held down a part-time job while in school. Following graduation, Mr. Capehart started a masonry apprenticeship program. When he worked, he sent money to his sisters in Ghana to assist them with food and schooling. Unfortunately, his apprenticeship was halted because he was in custody on the present charges and other charges detailed below.
19Mr. Capehart’s educational goals include completing an Advanced English course and enrolling in a business program in college. In terms of work, he plans to return to the masonry and/or construction work. He hopes to complete his masonry apprenticeship and ultimately own and operate his own business.
20Mr. Capehart has strong family support. He has an excellent relationship with his mother and step-father. He is welcome to live with them upon his release. His mother showed her support by regularly attending his trial and his sentencing. She also provided significant information about Mr. Capehart’s difficulties in the refugee camp and how that experience impacted on him once they came to Canada. Mr. Capehart also has a girlfriend who has stood by him and continues to support him.
21Mr. Capehart has been in custody on these charges for some time. Some background is required to calculate his available pre-sentence custody and to properly understand the defence argument with respect to the principle of totality. S.H. delayed going to the police, which meant that Mr. Capehart was not charged with the offences he is to be sentenced on until November 2020. But in April 2020, he was charged with possession of cocaine for the purpose of trafficking (“PFP”) in Kitchener. Then in September 2021 he was arrested in Kitchener for failing to comply with his bail for not abiding by a curfew condition. He has been in custody since that date. On January 9, 2023, he was convicted of the PFP and the fail to comply and received a sentence of 78 days on top of credit for the equivalent of 651 days of pre-sentence custody. That sentence finished on March 3, 2023, and he has remained in custody on the present charges. Thus, as of today’s date, Mr. Capehart has been in custody on these charges for 484 real days. That should be credited on 1:1.5 basis for the equivalent of 726 days in custody.
22Mr. Capehart had two minor misconducts while in custody. First, he received a seven-day loss of canteen privileges for a commit’s/threatens assault in November 2021. No criminal charges were laid in relation to this incident. Second, he lost two weeks of canteen use in September 2022 for having contraband. I understand that this related to Mr. Capehart keeping a can from the canteen so that he could use it as a water bottle.
23Mr. Capehart has been actively involved in numerous programs and counselling while in custody. He attended and completed several single-session educational programs, including Substance Abuse, Anger Management, Gambling, Looking for Work, Maintaining Employment, Managing Stress, Problem Solving, Supportive Relationships, Recognizing Healthy Relationships, Being an Effective Father, Thoughts to Action, Understanding Feelings, Use of Leisure Time, Budgeting, Goal Setting, and Discharge Planning. He also completed five sessions with a psychoeducational group called Change is a Choice- Connections. He attended AA meetings, one-to-one court support sessions, one-to-one sessions for substances use, dog therapy, and bible study. He also met with the teacher and watched black speaker series videos and Ted Talks. He is currently meeting with the prison Chaplain and is going to reconnect with his church upon his release from custody.
24Mr. Capehart was also involved in various institution work programs during most of his time in custody, although he was removed from the kitchen for a brief period. The chef at the institution wrote a letter on Mr. Capehart’s behalf. He expressed that Mr. Capehart was organized, reliable and always followed through. He said that Mr. Capehart was always ready to lend a hand, had a steady approach to solving problems and a calm demeanour.
25Mr. Capehart expressed his remorse for his actions to the author of the PSR. Mr. Capehart also took the opportunity to address the court at the end of his sentencing hearing and expressed his remorse. He noted how he has taken all the programming offered to him in an effort to better himself. He is also open to other counselling and programming to assist him continue to make himself a better person. He noted he is determined to make positive changes. He highlighted how he understands that alcohol was a problem for him and that he is committed to leading a sober lifestyle. While he linked his alcohol use to his actions with S.H., he nonetheless accepted full responsibility for his crime and said he understands the seriousness of his conduct.
26Having had the opportunity to see and hear Mr. Capehart, I accept that he is genuinely remorseful for his actions.
Sentencing Principles and Objectives
27As noted in R. v. Lacasse, 2015 SCC 64, at para. 58, the “determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision.”
28Section 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 ss. 718 (a) to (f), including denunciation, general and specific deterrence, and rehabilitation.
29Section 718.1 sets out the fundamental principle of sentencing, which is that any sentence imposed “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”
30The Criminal Code lists several other principles to guide sentencing judges. The parity principle is set out in s. 718.2 (b) and provides that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.” Given the highly individualized sentencing process, however, the sentencing principle of parity remains secondary to proportionality: R. v. Parranto, 2021 SCC 46, at para. 38. Sentences imposed for offences of the same type will not always be identical: R. v. Mann, 2010 ONCA 342, at para. 17; Lacasse, at paras. 53-58.
31The totality principle is set out at 718.2(c) of the Criminal Code and provides that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. The principle of totality ordinarily operates where an offender is sentenced at the same time for offences occurring at different times, or when an offender is being sentenced while still serving a sentence imposed for other offences: R. v. Claros, 2019 ONCA 626, at para. 40. That said, the principle of totality also applies in a situation such as the one in Mr. Capehart’s case, where his pre-sentence custody on the sexual assault charges began when his sentence ended on the Kitchener charges. The two sentences are consecutive sentences as outlined in s. 718.2(c), and engage the principle of totality, to ensure that the aggregate sentence is “just and appropriate” and that the effect of the combined sentence is not crushing: R. v. M.(C.A.), [1996] 1 S.C.R. 500, at para. 42. Given that Mr. Capehart served his sentence on the Kitchener charges before the pre-sentence custody started on the present charges, I must ensure that the combined sentences, calculated individually and sentenced consecutively, are not longer than required to serve the principles of sentencing, or whether the combined sentence would be apt to crush the offender by undermining the hope for rehabilitation: Claros, at para. 42.
32The restraint principle is reflected in s. 718.2(d) and provides that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances. Subsection 718.2(e) requires that “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…” The principle of restraint is of particular importance when sentencing a first offender such as Mr. Capehart: R. v. Priest, [1996] O.J. No. 3369 (C.A.), at pp. 543-44; R. v. Nassri, 2015 ONCA 316, at paras. 30-31.
33The various sentencing objectives and principles can often compete with one another, in that maximizing the denunciatory or deterrent effect of the sentence may be contrary to the rehabilitation of the offender and the principle of restraint, and vice versa. When this competition takes place in the context of crimes of sexual violence, the sentencing objectives of denunciation and deterrence must be given primacy.
34That said, the competing objectives and principles must be balanced in a way that respects the principle of proportionality. Even when denunciation and deterrence are the paramount sentencing objectives, the sentencing judge retains the discretion to assign significant weight to other factors, such as rehabilitation, in giving effect to the fundamental principle of proportionality: R. v. Friesen, 2020 SCC 9, at para. 104; R. v. Rayo, 2018 QCCA 824, at paras. 103, 107-108.
35Since sentencing is highly individualized, the determination of a just and appropriate sentence requires the court to assess the aggravating and mitigating factors related to both the offence and the offender. Such an assessment is also mandated by s. 718.2 (a) of the Criminal Code, which states that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. I turn now to the aggravating and mitigating factors in the present case.
Aggravating and Mitigating Factors
Aggravating Factors
36There are two factors that the Crown submits are aggravating that I am unable to accept.
37First, the Crown argues that Mr. Capehart did not use a condom, thereby exposing S.H. to the risk of pregnancy and sexually transmitted disease. S.H. testified before the jury that she did not know if Mr. Capehart used a condom. When S.H. gave her statement to the police, she said that she thought or believed that he wore a condom. When she testified at the preliminary hearing, she said she thought he wore a condom, but was uncertain if he did so. In my view, the evidence does not establish beyond a reasonable doubt that Mr. Capehart failed to use a condom. As a result, I cannot rely on this as aggravating.
38Second, the Crown argues that Mr. Capehart targeted S.H. in a predatory manner when she was still at the club. The Crown asks me to accept S.H.’s evidence that Mr. Capehart approached her five to six times at the club despite being rebuffed by S.H. each time. But this evidence was contradicted by the evidence of S.H.’s friend J.B. J.B. testified that she has no memory of Mr. Capehart approaching S.H. But given the allegations that were made that morning, she believes that she would have recalled it if Mr. Capehart had acted that way. Other witnesses have no memory of Mr. Capehart approaching S.H. Given the totality of the evidence, I am not satisfied beyond a reasonable doubt that Mr. Capehart approached S.H. repeatedly at the club. As a result, I cannot rely on that as an aggravating factor.
39That said, Mr. Capehart did go to the futon where S.H was sleeping, wake her up, and then lead her into the bedroom where he was sleeping. That shows that the sexual offence was not purely opportunistic and that there was some premeditation on Mr. Capehart’s part.
40There was a significant size difference between Mr. Capehart and S.H. S.H. attempted to fight back, and Mr. Capehart overpowered her with his much larger size.
41Mr. Capehart choked S.H. to achieve his goal of sexually assaulting her.
42The victim S.H. has suffered significant psychological harm. Mr. Capehart violated her bodily autonomy, sexual integrity, and dignity. She also suffered some bruising around her neck.
43Although Mr. Capehart was a first offender at the time of the offence, he has since been convicted of possession of cocaine for the purpose of trafficking and failing to comply with bail. He also had two minor conduct issues while in custody. Thus, apart from the charges he is being sentenced on, Mr. Capehart has also chosen to engage in criminal conduct, which impacts on an assessment of Mr. Capehart’s rehabilitative potential.
Mitigating Factors
44Mr. Capehart is to be sentenced as a first offender. He was only 21 at the time of the offence, which took place the day after his birthday.
45Mr. Capehart has strong family support. His mother attended every day of trial and his sentencing hearing. He also has the support of his step-father and girlfriend. These family and personal relationships will assist him as he moves forward from the incident.
46The first seven years of Mr. Capehart’s life were extremely difficult. He was born in a refugee camp and stayed there until grade 2. Upon arriving in Canada, he had to learn English and was behind his peers in school. He had to take special programing to assist him in catching up. He experienced feelings of isolation and of being different from his peers.
47Despite Mr. Capehart’s difficulties in his early years, he managed to graduate from high school and started an apprenticeship. This bodes well for Mr. Capehart’s rehabilitative potential and ability to move forward in a pro-social manner upon his release from custody.
48Mr. Capehart has used his time in custody productively. While he did have two misconducts while in custody, they were minor and dated. He worked in the kitchen and received a glowing evaluation from the chef. He has taken all the programming available to him. He has attended AA and one-to-one counselling for his alcohol use. Mr. Capehart now sees that he used alcohol as a way to deal with negative emotions, and he is now committed to leading a sober life. The commitment Mr. Capehart has shown to programming and bettering himself while in custody supports that he has good prospects for rehabilitation.
49Mr. Capehart is also open to taking further counselling, specifically to address sexual violence. He wants to continue counselling to assist him with alcohol issues. The author of the PSR suggested that he might benefit from counselling for trauma related to his early years in the refugee camp and his struggles when he arrived in Canada. Mr. Capehart is highly receptive to taking additional counselling and programs.
50Mr. Capehart seems to have shown true insight into his crime and the harm he caused to S.H. He expressed remorse, which I accept as genuine. That said, the mitigating impact of his expression of remorse is lessened somewhat in that it only came after the jury found him guilty.
51I turn now to my analysis as to what would be a fit and proportionate sentence in this case.
Analysis
52There is no dispute that the range for sexual assault involving forced penetration is three to five years in the penitentiary: R. v. R.S., 2023 ONCA 608, at paras. 4 and 22; see also R. v. A.J.K., 2022 ONCA 487, at para. 77. When the sexual assault is accompanied by choking to facilitate the assault, counsel both agree that the range will necessarily be higher.
53The Crown argues that the aggravating factors in this case push it towards the high end of the range and asserts that five to six years is warranted. Defence counsel argues that an effective sentence of four years is appropriate. Given Mr. Capehart’s pre-sentence custody of approximately two years he argues that a further sentence of two years less a day, plus probation, should be imposed.
54Both sides submitted authorities in support of their positions: see A.J.K., R. v. A.S.H., 2015 ONSC 3316; R. v. Simas-Mamani, 2018 ONSC 4558, R. v. Blake, 2020 ONSC 5658, R. v. Hoggard, 2022 ONSC 5919, R. v. Patten and James, 2024 ONSC 1737. I have taken all the authorities presented into consideration. Of course, since sentencing is highly individualized, cases can always be distinguished on their specific facts.
55That said, the authorities all support that denunciation and deterrence must be the paramount sentencing considerations in this case. Mr. Capehart sexually violated S.H and choked her to further his sexual violence. He took advantage of the significant size difference between them. He profoundly impacted her sense of personal dignity and autonomy. She suffered and continues to suffer psychological and financial harm because of his criminal actions. The sentence imposed must clearly condemn Mr. Capehart’s actions and send a message to others that sexual violence will be met with exemplary sentences. Mr. Capehart must also receive the message.
56On the other hand, Mr. Capehart is a youthful first offender. He has strong family support. He was born in a refugee camp and spent the first seven years of his life in a dangerous and traumatic environment. His schooling was disrupted. As a result, he had educational challenges as he struggled to learn English and catch up with his peers. He encountered racism, felt like an outsider, and began to use alcohol to cope with negative emotions. Despite these challenges, he graduated from high school and began an apprenticeship program. He has engaged in numerous programs in custody and been actively involved in AA and other substance abuse counselling. He is open to additional counselling. He has shown insight and remorse. He has realistic goals for what he wants to do with his life when he is released from custody. Mr. Capehart has substantial rehabilitative potential.
57In my view, balancing the mitigating and aggravating features and the relevant sentencing objectives and principles, the appropriate sentence is four years. Given the pre-sentence custody, which amounts to two years, I am sentencing Mr. Capehart to an additional two years less a day, plus probation. This sentence gives primacy to the sentencing objectives of denunciation and deterrence, while still recognizing Mr. Capehart’s rehabilitative potential and the principle of restraint.
58Moreover, pursuant to s. 738(1)(b), a court is empowered to order restitution to those who have suffered “psychological harm” from an offence, in an amount “not exceeding all pecuniary damages incurred as a result of the harm, including any loss of income or support, if the amount is readily ascertainable.” While S.H. did not file a formal application, her victim impact statement made it clear that she required therapy and counselling, which put a financial strain on her. I am making an order pursuant to s. 738(1) (b) of the Criminal Code, that Mr. Capehart pay restitution to S.H., in an amount of $125 a month, for the 24 months that he is on probation, for a total of $3,000. Costs for therapy are fairly standard and are thus ascertainable. This represents a reasonable amount. Requiring Mr. Capehart to pay restitution to S.H. to cover her therapy costs will assist in advancing the sentencing objectives of providing reparations for the harm done to the victim and promoting a sense of responsibility in Mr. Capehart and an acknowledgment of the harm done to the victim.
59The sentence should be structured as follows. Mr. Capehart has 484 days of real custody. This should be calculated at the enhanced rate of 1:1.5 for the equivalent of 726 days in custody. That should be noted on Count 2, the sexual assault by choking. Mr. Capehart will receive a further sentence of two years less a day. This should be on the sexual assault by choking count. On Count 1, sexual assault, he should also receive a sentence of two years less a day, concurrent to count 2.
60I recommend that Mr. Capehart serve his sentence at either the Ontario Correctional Institute or the St. Lawrence Valley Correctional and Treatment Centre. The author of the PSR highlighted that these institutions both offer programs specific to sexual offending, which would be of benefit to Mr. Capehart.
61This sentence will be followed by two years of probation. The terms of probation are attached to these reasons as Appendix “A”.
Ancillary Orders
DNA Order
62Sexual assault is a primary designated offence. As a result, pursuant to s. 487.051(1) of the Criminal Code, I make an order authorizing the taking of samples from Mr. Capehart for the purpose of DNA testing.
Weapons Prohibition Order
63A weapons prohibition pursuant to s. 109 of the Criminal Code also applies. Pursuant to s. 109(2) (b) of the Criminal Code, Mr. Capehart is prohibited from possessing any firearm, other than a prohibited firearm or restricted firearm, and any cross-bow, restricted weapon, ammunition and explosive substance, any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life.
SOIRA Order
64Pursuant to ss. 490.012(1) and 490.013(2) (b) of the Criminal Code, Mr. Capehart is required to comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10, for 20 years.
Victim Surcharge
65Defence counsel asks me to waive the victim surcharge, arguing that it poses a hardship. He notes that his client has been in custody for almost three years and that he will remain in custody because of this sentence. I also keep in mind that I am ordering Mr. Capehart to pay restitution directly to S.H., to be paid once he is on probation. Mr. Capehart will be required to start paying restitution to S.H. starting on the first month of his probation, and for every month thereafter. Given the circumstances, I am prepared to waive the surcharge in this case as I have determined it would be an undue hardship.
Justice Heather McArthur
Released: June 28, 2024
Appendix “A” - Probation Terms for Edwin Capehart
Statutory conditions:
- Keep the peace and be of good behaviour.
- Appear before the court when required to do so by the court.
- Notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or supervisor of any change in employment or occupation.
Additional Terms
- Report to the probation officer within two working days of your release from custody, and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision.
- Do not contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means, with: S.H.
- Do not be within 100 meters of any place where you know S.H. to live, work, go to school, frequent or any place you know S.H. to be EXCEPT for required court attendances.
- Do not possess any weapon(s) as defined by the Criminal Code (for example: a BB gun, pellet gun, firearm, imitation firearm, cross-bow, prohibited or restricted weapon or device, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person).
- Make restitution of $3000 to S.H., in installments of not less than $125 per month, starting on the 15th of your first month of probation, and thereafter on the 15th day of each month of your probation, as required pursuant to the order made under s. 738(1) (b) of the Criminal Code.
- All restitution payments are to be made by cash or a certified cheque or money order payable to the Minister of Finance through any criminal court office for payment to the victim.
- If you are unable to make any restitution payment for any reason, you must tell your probation officer in advance.
- Participate in programs and counselling deemed appropriate by probation for sexual violence, sexual boundaries, alcohol abuse, life skills, vocational training, and to address any trauma/struggles from your youth experiences.
Released: June 28, 2024