2013 ONCJ 475, 2013 ONCJ 475

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs ( a )(

i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order. . . . 486.6 Offence. —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction.

Court File No.: 126036 at St. Thomas, ON August 28, 2013 Citation: R. v. U.(B.) , 2013 ONCJ 475 ONTARIO COURT OF JUSTICE B E T W E E N:

HER MAJESTY THE QUEEN -and- B.U. REASONS FOR SENTENCE S. Venne for Crown K. Mersereau for B.U. GEORGE J.: [ 1 ] B.U. pleaded guilty to two offences under the Criminal Code of Canada ; one count under

section 266 , and a sexual assault contrary to

section 271 . Sentencing submissions were made previously with the matter being adjourned to today’s date for decision and reasons. They are as follows. [ 2 ] The Crown, having initially proceeded by Indictment, amended their election, apparently to enable the defence to specifically seek a conditional sentence. All agree jail is inevitable and a necessary outcome, but the Crown opposes its service in the community on a conditional basis. It seeks the maximum jail sentence allowable for a so-called 'super

summary' offence, that being 18 months incarceration. The defence advocates that an 18 month conditional sentence is appropriate; alternatively seeking a true jail sentence in the range of 9 to 12 months. [ 3 ] In matters like this, in addition to the sentencing principles a court must always consider, I am to have regard to

section 742.1 of the Criminal Code which sets out the statutory requirements that must be met for a court to even contemplate such an order. That is not to suggest, absent a statutory bar, that a conditional sentence must flow. Rather, if there is no restriction on its imposition, it should be given serious consideration. [ 4 ] At the date of this offence,

section 742.1 of the Criminal Code provided that: If a person is convicted of an offence, other than a serious personal injury offence as defined in

section 752, a terrorism offence or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more or an offence punishable by a minimum term of imprisonment, and the court imposes a sentence of imprisonment of less than two years and is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the offender's compliance with the conditions imposed under

section 742.3. [ 5 ] Had the Crown proceeded by indictment, this issue would be moot. A conditional sentence would not be available.

[ 6 ] Given the facts and circumstances surrounding the commission of these offences, denunciation and deterrence are paramount considerations. They are serious and mandate that a strong message be sent to B.U. and those of like-mind. On January 6, 2012 people gathered at T.L.C.'s residence in the Town of A. Those in attendance included T.L.C, E.B., and S.B. Alcohol was being consumed by most everyone. B.U. was invited by E.B. and joined the group at a local licensed establishment, with everyone returning to T.L.C.’s residence in the early morning hours of January 7th.

Upon their arrival the drinking continued, sadly to the point that some passed out. [ 7 ] While lying on a futon couch with both E.B. and S.B., B.U. began touching E.B. on her stomach under her shirt. He proceeded to put his hands on her inner thighs and attempted to pull them down inside of her pants. E.B. pushed his hands away. At some point B.U.moved over to get closer to S.B. placing his arms around her waist. He attempted to put his hands down her pants but only got as far as the belt buckle. This went no further. [ 8 ] T.L.C., who was fully clothed, was passed out on a couch.

Later in the morning she awoke with B.U.on top of her. Her pants and underwear had been removed and he was inside her. She told him to get off at which point B.U. said "I want to keep going", “let me finish”, or something to that effect. She then pushed him off, grabbed a blanket and ran to the bathroom crying. [ 9 ] Several documents were filed at the sentencing hearing, including B.U.’s criminal record, T.L.C.'s victim impact statement, correspondence from St.

Leonard's Community Services, a pre-sentence report, and a document brief containing a psychological assessment and correspondence confirming B.U.’s involvement with the CMHA, Westover Treatment Center and Centre of Hope. I received from counsel books of authority with cases setting out a wide range of sentencing options. [ 10 ] B.U.'s personal circumstances and background are clearly relevant to sentence.

There is obviously a rehabilitative component to this case, the tension being it is somewhat, although not entirely at odds with the legitimate steps of separating B.U. from society as a way to ensure this doesn't happen again (what we sometimes call specific deterrence) and to send the appropriate message to the public and to victims like T.L.C. that such behaviour will attract significant consequences. The impact on T.L.C. is extremely important as well, and that is reflected in the victim impact statement I have reviewed. [ 11 ] As a youngster B.U.'s family life was chaotic.

His father was an abusive man who hit his children and exhibited a general inability to provide for them. This led to B.U. being removed from his home and placed in several different foster homes. He was raised apart from his siblings and went several years with only limited contact with his father. Throughout the years he was able to maintain a, relatively speaking, good relationship with his mother; one he describes as being close. This is debatable but is clearly B.U.'s perception. [ 12 ] As an older teen and young adult, B.U. had become entirely reliant on services provided by the CAS.

The transition away from that has proven to be most difficult. That, in addition to his special needs and assortment of difficulties, has resulted in no meaningful employment and a limited ability to ever gain such employment. The bright light is his current recognition that significant intervention and structure is required for him to live and function independently.

Substance abuse problems have been prevalent and ongoing, which is likely symptomatic of other issues, including a moderate intellectual disability, an extremely low range of functioning and significant mental health issues. [ 13 ] Canadian Mental Health representatives hold out hope for B.U. indicating in correspondence found at Tab 1 of the document brief, that "….if B wants to achieve well-being in his life in regards to his mental health, developmental disabilities, and be substance free, services are available to assist him at this time.

B has shown good progress in doing such throughout the duration of the court support program. Following the completion of his charges St. Leonard's has advised they will continue to support B as needed, as well as Regional Support Associates (RSA)". Notwithstanding the commitment by St. Leonard's and RSA, it appears the CMHA (in either Elgin or London) will be able to continue its support of B.U. [ 14 ] If the psychological assessment prepared by RSA is accurate, the prognosis is not good.

It characterizes B.U. as someone who will always be dependent on others, including the state, to provide for him and assist in his care. The report, found at Tab 2 of the brief, indicates the following at page 6: B is not a good candidate for competitive, sustainable employment. He would encounter extreme difficulties with: multi-tasking, organizational skills, problem solving, following instructions (verbal or written), dealing with the public in a mature and responsible fashion, and tasks requiring some mechanical aptitudes (e.g. - assembly, repair).

B's battle with drug addiction and his history of aggressive behaviour would need to be managed before placing B in any type of employment setting. If able, B would require a supervised employment position with little production or time demands. He will be at a competitive disadvantage and seriously

marginalized in the open labour market.

Taken as a whole, given Ben's intellectual disability, combined with poor skills in regards to adaptive behaviour skills, as well as a very limited work history to date, it is our view that B is not competitively employable………… The defects mentioned above would also create some challenges for him in attempting to live independently and without special supports to assist him with various areas of everyday living skills. [ 15 ] The assessment suggests that B.U. is in need of a residential placement, an adult protective worker, employment supports, day program supports, and independent living supports. [ 16 ] With these clearly identified needs in mind, the defence filed materials from St.

Leonard's Community Services describing its Supervised Independent Living program, which focuses on adult, high risk men with developmental disabilities, mental health issues or other special needs.

B.U. certainly fits that profile and if involved would be entitled to engage in various services and supports including: -one to one counselling focusing on relapse prevention and living skills; -community participation (encouraging a positive support network); -accessing community activities within the relapse prevention goals; -educational/vocational training; and -medical/psychological and/or social work treatment. [ 17 ] Funding has apparently been confirmed which will enable B.U.‘s involvement in the program.

I was advised that this will come into effect upon sentence being completed and, obviously, dependent on the outcome. [ 18 ] To the addictions piece, by all accounts B.U. has been abstinent for some time now. The materials disclose one unsuccessful attempt at Westover's treatment program, and completion of a withdrawal management program. A psychiatric treatment plan is being followed as he is engaged with a psychiatrist and taking his medication as prescribed.

The pre-sentence report's author describes B.U.'s symptoms as having improved since commencing the most recent medication regime. [ 19 ] The bottom line is B.U. has special needs which are multi-faceted. A plan has been formulated, and in some respects has commenced, which is important and is to be considered in mitigation.

In highlighting all of this, the defence position is essentially that B.U. is vulnerable, with limited skills, and that the public would be better served by a conditional sentence order which can simultaneously be punitive and rehabilitative. [ 20 ] The point is made that although B.U. has a record, only once before has he been before the court as an adult (for an unrelated offence), and that he is only marginally different from a first time offender. [ 21 ] The Crown highlights the significant violation of, in particular T.L.C..

It describes the offence as a violent one, arguing it is so in light of the profound interference with her physical integrity. I agree with that characterization. [ 22 ] It downplays the impact of B.U.’s cognitive difficulties, and asks that I carefully consider the course of conduct which included the movement from one victim to another, ultimately settling on the one who was most vulnerable. It points to the continuation of the offence even after T.L.C. gained consciousness and told B.U. to stop. [ 23 ] One aspect of the Crown’s position does trouble me.

On the date submissions were made I was told, in no uncertain terms, that the Crown specifically adjusted their election to allow the defence to make the pitch for a conditional sentence. I appreciate it was never to be a joint submission, but the use of its discretion opened the door. I was further told that a Crown, other than who was before me, had made that decision. The very clear impression given was that the attending Crown did not agree.

I was advised that notwithstanding the re-election, the appropriate sentence was three years in a penitentiary, and given the current election, I should impose the maximum sentence allowable. [ 24 ] The Crown is an entity that must speak with one voice. I will not draw any distinctions or be nuanced in my assessment of the

Crowns position. It cannot on one hand say, in light of its decision to limit a sentence to 18 months incarceration (which was essentially the performance of a quasi-judicial function), advance the idea that a three year sentence is appropriate, and then in turn advocate that it is not open for a sentence to be modified in accordance with the present mitigating factors, as sufficient accommodation has already been made. The effect of this would be to limit the court from showing any leniency whatsoever.

It may very well be that the mitigating features of this case do not warrant a reduction in the typical punishment for this type of offence; but it won’t be on account of the Crown’s decision in this respect. [ 25 ] The cases provided display a wide range of sentencing options. Those referred to by the defence are illustrative of courts allowing the service of jail sentences within the community. Both parties provide Appeal Court decisions which fall on both sides of the ledger, the only distinction I note being the Crown’s submitted authorities are more current.

The point being it is clear the trend is swiftly moving towards the imposition of true jail sentences in circumstances like these, which is, in a very pronounced way, reflected in Parliament’s decision to limit the use of conditional sentences. [ 26 ] I accept that the appropriate sentencing range, which is of course variable and dependent upon many factors, for this offence and on these facts, is anywhere from fourteen months to three years jail.

The difference here is the Crown proceeded summarily, and must accept all that that entails; including it representing a significant distinction from the cases it relies upon. That decision and that decision alone, set the ceiling at 18 months. [ 27 ] Having determined that a sentence range of between 14 and 18 months is called for, should the court permit its service on a conditional basis? I have already referenced the applicable regime which commences at

section 742 of the Criminal Code . In applying those provisions I must at all times be guided by the purpose and principles of sentencing. I have turned my mind to and applied them all. [ 28 ] In doing so, I can’t help but feel the tension between them. On the one hand I am being directed to conclude that general deterrence and denunciation are paramount considerations, which on its own would almost always dictate a true jail sentence.

On the other I am asked to assist in B.U.‘s rehabilitation and to consider all alternatives to custody that are reasonable in the circumstances. [ 29 ] If I were to make a conditional sentence order, I am mindful of the message that that could send to the public, and in particular young, vulnerable females who are all potential victims of such crimes. They deserve to feel safe and protected and are right to expect that anyone who violates them will be punished accordingly.

This is again an example of a consideration which seems to cry out for the imposition of a jail sentence. [ 30 ] The Supreme Court of Canada in R. v. Proulx [2000] S.C.R. 61 is clear in that, unlike probation which is primarily a rehabilitative sentencing tool, a conditional sentence is not only capable of being punitive and a form of deterrence, but it Is to be its main focus. That is, with an appropriate restriction on B.U.’s liberty this goal can be achieved.

A conditional sentence can have a deterrent effect and at the same time assist in rehabilitation and in instilling a sense of responsibility. [ 31 ] I would say that having regard to the paramount importance of denunciation and deterrence; in being mindful of the need to send an appropriate message; and in light of the trend away from conditional sentences, that it should only be imposed, for this type of offence, in exceptional circumstances. [ 32 ] Having considered all the facts, information and materials before me, and having balanced all competing interests, I conclude that this is such a case and that a conditional sentence would not be inconsistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code .

What tips the balance, in my view, is not just B.U.’s extreme limitations and cognitive difficulties, but that such a detailed plan has been formulated and put in place. [ 33 ] In the result I make a concurrent 18 month conditional sentence order which will be followed by a concurrent 30 month probation order. [ 34 ] The terms of the 18 month conditional sentence order are as follows: 1.

Statutory terms that will require B.U. to keep the peace and be of good behaviour; appear before the court when required to do so; report in person to a conditional sentence supervisor today and thereafter as required and in a manner directed by the supervisor; to

remain within the province of Ontario unless written permission to go outside the province is obtained from the court or the supervisor; and to notify the supervisor in advance of any change of name or address, and to promptly notify the supervisor of any change in employment or occupation. 2. Abstain from the purchase/possession/consumption of alcohol. 3. Abstain from the purchase/possession/consumption of drugs except in accordance with a medical prescription. 4. Attend and actively participate in such rehabilitative, treatment or counselling programs as recommended by the supervisor. 5.

Not associate or communicate either directly or indirectly with anyone named in writing by the supervisor in addition to any of E.B., S.B. or T.L.C. 6. Not attend at any place indicated in writing by the supervisor in addition to any known place of residence, education or occupation of E.B., S.B. or T.L.C. 7. Shall engage and maintain involvement with the St. Leonard’s Community Services Supervised Independent Living Program and not withdraw from it so long as there is funding and it is available to him.

Shall sign all consents and authorizations necessary to enable the supervisor to confirm this and make any related inquiries. 8. If not involved with the SIL program, shall reside at an address approved of by the supervisor. 9.

For the first 15 months of this order B.U. will be confined to his residence subject only to the following exceptions: -Attending appointments with his health care providers and dentist, or with his supervisor. -Attending any court ordered assessments, treatment or counselling sessions. -Attending any residential treatment programs that are approved by the supervisor. -Searching for employment, but only in accordance with a

schedule approved of in advance by the supervisor. -Attending for employment during scheduled work hours or prescheduled job interviews. -Attending school or alternate educational facility that shall be approved by the supervisor. -He must provide the supervisor with work or school schedules from time to time and as may be requested by the supervisor. -For two hours per week on a day and at times approved of in advance by the supervisor to purchase personal necessities. -Travelling directly to and from the locations just noted.

-At such other times as may be approved, in writing, in advance by the supervisor. 10. For the remaining three months, B.U. will maintain a curfew and remain within his residence from 9pm to 6am subject only to the following exceptions: -For employment, and travelling directly to and from his place of employment. -Medical emergencies. -While in attendance at a residential treatment facility. -As may be permitted in advance, in writing, by the supervisor. [ 35 ] B.U. is required to present himself at his residence or by telephone as and when required by a peace officer, probation officer or supervisor.

As well, he must carry a copy of the conditional sentence order (as well as any written authorizations to be away from his residence) on his person at all times that he is absent from the home. [ 36 ] The terms of the 30 month probation order are as follows: 1. Statutory terms. 2. Report to probation within two working days after the conditional sentence order expires and thereafter as required. 3. Reside as directed by probation. 4. Not associate or communicate, directly or indirectly, with any of E.B., S.B. or T.L.C. 5.

Not attend at any known place of residence, education or occupation of E.B., S.B. or T.L.C. 6. Not consume, possess or ingest any drugs except in accordance with a medical prescription. 7. Engage in such counselling, treatment or therapy that is recommended by probation, in particular as it relates to substance abuse, alcohol abuse, sex offending and mental health issues.

He’ll not discontinue any directed counselling without first obtaining the permission of his probation officer and will sign whatever consents or authorizations are necessary in order that his progress in counselling can be monitored. [ 37 ] I make an order which requires B.U. to provide a sample of his DNA suitable for analysis and banking. It is made only on the primary designated

section 271 offence. [ 38 ] A ten year order is made which compels B.U. to comply with the reporting provisions of the Sex Offender Information Registration Act.

[ 39 ] I make a ten year order under

section 110 of the Criminal Code of Canada . [ 40 ] The victim fine surcharge is waived. August 28, 2013 ____________________ Date Justice Jonathon George