R. v. Harman, 2021 ONCJ 194

CITATION: R. v. Harman , 2021 ONCJ 194 COURT FILE No.: 0611-998-19-1313 DATE: March 31, 2021 ONTARIO COURT OF JUSTICE Central West Region BETWEEN: HER MAJESTY THE QUEEN — AND — BRENNEN HARMAN Before Mr. Justice Richard H.K. Schwarzl at Orangeville Sentencing Submissions Heard on March 4, 2021 Reasons released on March 31, 2021 Ms. Christina Lynch.............................................................................................. for the Crown Ms.

Leah Shafran............................................................................................ for the Defendant SCHWARZL, J.: 1.0: INTRODUCTION [ 1 .] Following a trial, I found Mr. Harman (“the offender”) guilty of two crimes: unlawfully in a dwelling house and sexual assault. A sentencing hearing was held. Both parties agree that a custodial sentence is necessary in the circumstances of this case and this offender.

The main issue is whether a conditional sentence order (CSO) is appropriate for both offences. [ 2 .] For reasons I will explain I find that while a CSO is partially appropriate in this case, real jail is also a necessary part of the overall sentence. 2.0: CIRCUMSTANCES OF THE OFFENCE [ 3 .] At the trial I found the following relevant facts regarding these crimes. [ 4 .] Between 2017 and 2019, the victim, C.T., was a tenant in a basement apartment of the house occupied by the offender, his mother and another person.

The offender was also the victim’s superintendent and had access to her apartment as part of those duties. During her tenancy, C.T. and the offender became friends: they smoked together, they discussed personal matters together, and the victim participated in activities with the offender and his family. The offender had expressed to C.T. that he was interested in her sexually, an interest that she made clear to him was not mutual. [ 5 .] In August 2018 the offender used a key to surreptitiously enter the victim’s apartment in the middle of the night.

She was asleep in one room while her three-year-old son slept in another room. The offender touched C.T. while she slept. She woke up to find the offender running one of his hands on the side of her body while he masturbated himself with the other hand. Alarmed, C.T. yelled at the offender to leave which he did but not before he asked, “You don’t want me here?”. The whole incident took place over a matter of seconds.

[ 6 .] Despite this event, C.T. remained a tenant for a further year in part because of promises by the offender and his family that he would get help for his personal issues including his inappropriate sexual conduct. In the fall of 2019, the offender sent a text the victim asking if he could watch her have sex with her boyfriend. This text was the final straw which led C.T. to call the police about the events of the year before. 3.0: CIRCUMSTANCES OF THE OFFENDER [ 7 .] Brennen Harman is 32 years old and is single. He is the youngest of four children.

He lives with his mother and he supports her financially. [ 8 .] He has no prior criminal record. [ 9 .] The offender is a high school graduate and a highly skilled arborist. He co-owns a successful tree care service that, besides him and his partner, employs additional full-time staff. He is the sole tree climber in the business. According to materials filed on his behalf, the offender enjoys an excellent business reputation. Without the offender, the business is likely to fail. [ 10 .] The offender’s late father was abusive to him and his family. That trauma caused him to be emotionally vulnerable.

He suffers from a speech impediment and a learning disability which has negatively impacted his self-esteem. He grew up in difficult and impoverished circumstances. [ 11 .] The offender enjoys considerable community support. He presented letters from family, work colleagues, and a retired RCMP officer. The letters were written with knowledge of the offender’s crimes and they emphasize the financial and personal hardships to the offender, his family, and co-workers should he be subject to a lengthy period of incarceration. [ 12 .] Beginning in the fall of 2019, Mr.

Harman engaged in counselling for life skills, communication, and boundary-setting. He has performed over 70 hours of volunteer work with a local church. He also did fund raising for a local food bank. [ 13 .] The offender has complied with his modest terms of bail without incident. 4.0: VICITM IMPACT [ 14 .] A victim impact statement was received from C.T. The crimes perpetrated by the offender have had a profound and devastating emotional impact on her.

She feels unsafe and fearful but continues to hope that the offender will get help for his issues. 5.0: POSITIONS OF THE PARTIES ON SENTENCE 5.1: Position of the Crown [ 15 .] The Crown submits that an appropriate global sentence is between 15 and 18 months in jail followed by probation for three years.

In addition, the prosecution seeks ancillary orders including a non-communication orders with the victim, DNA orders, a firearms prohibition order, and a SOIRA order. 5.2: Position of the Offender [ 16 .] The offender submits that a fit total sentence for both offences is a CSO of 12 months followed by probation for 18 months. He does not oppose any of the ancillary orders except the firearms prohibition. 6.0: MITIGATING AND AGGRAVATING FACTORS 6.1: Mitigating Factors [ 17 .] Relevant mitigating factors in this case include:

(

i) The offender is a first-time offender; (ii) The offender has considerable community support; (iii) He has rehabilitative prospects, having already taken some steps; (iv) The sexual assault was brief; (

v) The assault was superficial - on the victim’s side and hip - thereby involving a reduced interference with her sexual integrity; (vi) The offender has abided by his modest terms of bail; and (vii) The offender’s mother and co-workers rely on him financially. 6.2: Aggravating Factors [ 18 .] I have found the following aggravating factors: (

i) Although the offender was not found guilty of a predicate offence in

section 348.1 of the Criminal Code , these offences otherwise meet the definition of a home invasion because the offender entered a dwelling he knew was occupied and used violence against the victim; (ii) The offender exploited his position as superintendent to facilitate the commission of these offences; (iii) The offender abused the trust the victim had in him as a friend; (iv) The victim was vulnerable and defenceless because she was asleep at the time of the assault; (

v) The victim’s child was present, but sleeping, at the time; (vi) Although the physical intrusion of the victim was modest, the nature of the offence was aggravated by the offender masturbating and not leaving immediately when told to do so; (vii) The offender’s remark, “You don’t want me here?” revealed an utter lack of either insight or respect for the victim’s previously conveyed message that she was not interested in him; (viii) The offences were not spontaneous but required deliberation and forethought; and (ix) The psychological impact of the crimes upon the victim is significant. 7.0: APPROPRIATENESS OF A CSO [ 19 .] In sex crimes, particularly those in which there is a vulnerable victim such as a child or, as here, the victim is sleeping and defenceless, the principles of denunciation and deterrence are prioritized over other important notions such as rehabilitation. [ 20 .] In this case, the parties agree that the offender is eligible for a CSO because he meets the criteria set out in

section 742.1(

b) through (

f) of the Criminal Code . However, they do not agree on how I should assess and apply that part of

section 742.1(

a) which states that a CSO can only be imposed where: (

a) the court is satisfied that the service of the sentence in the community would be…consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2. [ 21 .] Both parties provided sentencing cases for me to consider. These cases demonstrate that there are no hard and fast rules where a CSO should, or should not, be imposed. In some cases a CSO was imposed where it was found that denunciation and deterrence were adequately addressed by this sentencing tool, whereas in others cases it was held that a CSO was insufficient to achieve these overarching sentencing principles.

In other words, depending on the circumstances a CSO may, or may not, be a fit sentence. [ 22 .] Sentences must be proportionate to the gravity of the offence and the degree of the responsibility of the offender. Judicial restraint must be exercised such that real jail should only be imposed where no other option, including a CSO where eligible, is reasonable.

As illustrated by the cases counsel relied on, determining what is reasonable will be unique in each case because in this country, sentencing is a highly individualized process that requires the Court to consider all of the circumstances of the offence and offender, the impact on the victim and/or community, and the range of sentence in similar situations while also focussing on the relevant principles.

[23.] In making their submissions, each counsel presented a stark choice for me; that is, the sentence should be either a term of jail ora CSO. These submissions conformed with what appears to be common in many courts as reflected in the precedents they supplied. Oncareful consideration, I believe a more flexible approach is called for to arrive at fair and just global sentence in the unique circumstancesof this case. [24.] I agree with the Crown that a CSO is not appropriate for the sexual assault.

The offender’s conduct involved a deliberate andsurreptitious decision to exploit both his professional and personal relationship with the victim. His crimes were the result of not onlycalculation, but full knowledge that the victim was not interested in him sexually. He sexually abused a sleeping woman by invading herhome.

When confronted by the victim he possessed neither insight nor care that his continued presence was unwanted in the extremebefore retreating. [25.] With respect to the offence of unlawfully in a dwelling house, I agree with the offender that, on balance, a CSO is reasonablebecause with respect to this offence it addresses the punitive aspects of sentencing while also recognizing that the offender can safelyserve his sentence in the community while subject to stringent conditions on his liberty. [26.] Where, such as here, there are two or more offences the combination of real jail and a CSO has received approval from appellatecourts in Ontario: R. v.

Ploumis, (ON CA), [2000] O.J. No. 4731 (C.A.), leave to appeal refused [2001] S.C.C.A.No. 69; R. v. T.A.P., 2014 ONCA 141 , [2014] O.J. No. 857 (C.A.) at paragraphs 14 to 17. In the Provincial Court case of R. v.Wong, [2018] O.J. No. 1064 (C.J.), the trial judge applied this approach where one of the offences was a sexual assault. [27.] In striking a balance between the circumstances of these offences and this offender against the relevant sentencing principles, Ifind that jail must be imposed as part of the sentence for the sex offence. I also find that a CSO is appropriate for the property offence.

Rehabilitation of the offender and protection of the victim are also important elements of the sentence orders I shall make. 8.0: THE SENTENCE 8.1: General [28.] In consideration of the foregoing and upon hearing the submissions of counsel, I conclude that a just and fit global sentence inthe unique circumstances of this offender and these offences is 13 months comprised of 90 days intermittent jail and a fine on the sexualassault followed by 10 months CSO on the unlawfully in a dwelling house plus probation and ancillary orders. [29.] In R. v. Middleton, 2009 SCC 21 , [2009] S.C.J.

No. 21 the Supreme Court held that a CSO is not a sentence ofimprisonment within the meaning of section 732(1) of the Criminal Code. Therefore, the combination of intermittent jail and a CSOdoes not collapse the intermittent sentence to straight time. 8.2: Count #2: Sexual Assault,

section 271 Criminal Code [30.] The offender will be sentenced on the sexual assault as follows. 8.2.1: Jail [31.] He will serve 90 days common jail to be served intermittently. Today will be his first day and thereafter he will appear at thejail on Fridays not later than 6:00 p.m. to be released not sooner than 9:00 p.m. on Sundays. His intermittent sentence will commence ona date to be discussed with counsel and he shall serve that sentence on consecutive weekends thereafter. [32.] While serving his sentence, he shall be bound by statutory terms of probation and he must appear at the jail on time and in a fitand sober condition. [33.] There will an order under

section 743.21 of the Criminal Code prohibiting him from communicating or associating with thevictim while he is serving the intermittent jail sentence. [34.] For clarity, given that I shall order a CSO on the offence of unlawfully in a dwelling house pursuant to s. 732(3) of the Criminal

Code , the intermittent sentence shall be served as directed herein and not on consecutive days. 8.2.2: Fine [ 35 .] The offender is a fully employed in a thriving business and as such he is able to pay a fine. Considering the aggravating factors of this case, the fine will be $3,500.00 together with a victim surcharge of $1,050.00 for a total of $4,050.00. The fine and surcharge shall be paid within one year.

Failure to pay the fine and surcharge will trigger enforcement which may involve jail. 8.2.3: Ancillary Orders [ 36 .] There will be a primary, in-custody DNA order to be executed today at this courthouse or at such other place of confinement where he may be found. [ 37 .] I make a ten-year SOIRA order. [ 38 .] Notwithstanding the submissions of counsel for the offender, I make a Firearms Prohibition pursuant to section 110(2) of the Criminal Code for 10 years. While discretionary, that discretion should be in favour of making the order absent exceptional circumstances.

No such circumstances exist in this case. 8.3: Count #1: Unlawfully in a Dwelling House,

section 349 Criminal Code [ 39 .] The offender will be sentenced for the offence of unlawfully in a dwelling house as follows. 8.3.1: CSO [ 40 .] There will be a CSO of 10 months to be served consecutively to the intermittent jail sentence for the sexual assault. The offender will be subject to house arrest for the entire CSO. I will hear submissions regarding what exceptions, if any, should be made for the house arrest. In addition, the offender will be subject to electronic monitoring via the Electronic Supervision Program (ESP) while serving the CSO. [ 41 .] In addition to statutory and house arrest conditions, the offender will: (

a) Report to a supervisor as directed; (

b) have no communication, directly or indirectly, with the victim nor shall he be within 100 metres of any place he knows her to be present or to be associated with; (

c) reside where approved; (

d) take counselling or treatment including, but not limited to, sexual offences and inter-personal relationships; and (

e) such other conditions as I may impose upon hearing submissions from counsel. 8.3.2: Probation [ 42 .] Following the CSO, the offender will be on probation for 30 months. In addition to the statutory conditions he will be under the supervision of a probation officer and report as required. He will be bound by conditions similar to those in the CSO, other than house arrest. I will hear submissions from counsel regarding discretionary conditions of probation. 8.3.3: Ancillary Orders [ 43 .] There will be a secondary, out-of-custody DNA Order to be executed at the office of the Caledon OPP on a date and time to be fixed in consultation with counsel.

[ 44 .] There will be a $100 victim surcharge payable within 30 days. _______________________________ Richard H.K. Schwarzl, Justice of the Ontario Court of Justice