R. v. B.B., 2022 NLSC 18

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. B.B. , 2022 NLSC 18 Date : February 8, 202 2 Docket : 201904G0063 Her Majesty The Queen v. B.B. Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any document or broadcast or transmitted in any way. Before: Justice Peter N. Browne Place of Hearing: Corner Brook, Newfoundland and Labrador Dates of Hearing: January 25, 2021; May 4, 2021; September 8, 2021; December 13, 2021; and January 28, 2022

Summary: B.B. pleaded guilty to one count of sexual assault involving intercourse with the complainant while she slept. There was an Agreed Statement of Facts, but the Crown and the Defence differed as to the appropriate range of custodial sentence to be imposed. The Crown requested a range between 36 - 42 months whereas the Defence requested a range between 18 - 24 months. After having weighed and given regard to the relevant aggravating and mitigating circumstances, the Court determined that an appropriate and fit sentence was 30 months incarceration together with a number of ancillary orders.

Appearances: Trina D. Simms Appearing on behalf of Her Majesty The Queen Jamie M. Luscombe Appearing on behalf of B.B. Authorities Cited: CASES CONSIDERED: R. v. McCaw, 2019 ONSC 3906; R. v. E.S., 2019 NLSC 199; R. v. Kennedy, 2021 NLCA 42; R. v. Snelgrove,2021 NLSC 149; R. v. J.A.M., 2018 NSSC 285; R. v. Diep, 2020 ONSC 6278; R. v. DeYoung, 2020 NSSC 242; R. v. Kennedy, 2018ONCJ 600; R. v. Nasogaluak, 2010 SCC 6; R. v. Ipeelee, 2012 SCC 13; R. v. Lacasse, 2015 SCC 64 , [2015] 3 S.C.R. 1089; R.v. Kennedy, 2021 NLCA 42; R. v. Bennett, 2021 NLSC 26; R. v. Parranto, 2021 SCC 46; R. v.

Wyvill, 2021 ONCJ 548; and R. v.Shalley, 2005 MBCA 150 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46; and Sex Offender Information Registration Act, S.C. 2004, c. 10 REASONS FOR JUDGMENT Browne, J.: INTRODUCTION [1] On January 26, 2021, B.B. pleaded guilty to one count of sexual assault against EM-K pursuant to

section 271(

a) of theCriminal Code, R.S.C. 1985, c. C-46 before Faour, J. [2] Prior to entering his plea, the Crown and the Defence filed an Agreed Statement of Facts on January 25, 2021. The key factualelements of the offence were as follows: 1. On 7 April 2018 [EM-K] reported to the RNC in Corner Brook that she had been sexually assaulted by [B.B.] the previousevening; 2. [M-K] reported that she had been out at the Backlot (Grenfell campus bar) and had ben drinking and intoxicated. She stated thatshe was sad due to a recent break-up so she had been drinking.

She ran into [B.B.] at the Backlot, whom she knew through mutualfriends, though not well. She and [B.B.] were dancing and eventually started kissing at the Backlot. At the end of the evening [B.] askedher to go home with him but she declined and said she planned to leave with friends. [B.] told her that he felt rejected and [M-K]subsequently agreed to leave with him. She told her friends where she was going and she and [B.] walked to his residence on WestValley Road, Corner Brook, NL. [B.] was also intoxicated; 3. The two engaged in some consensual touching to the point where they were naked together in bed.

Before they engaged inintercourse [M-K] withdrew her consent, saying that she didn’t want to have sex. She said to him she “just can’t” (due to being upsetabout the recent break up). [B.] said it was ok, and [M-K] further apologized to him. He told her she didn’t need to apologize. She fellasleep in his bed with him. She was naked and laying on her stomach; 4. She woke up with [B.] on her back having sexual intercourse with her.

She did not say anything to him when she woke. [B.] thenmoved her to several different positons and continued having sexual intercourse with her. [B.], due to intoxication, has no memory of thesexual intercourse occurring or how it began, but he does not dispute that [M-K] is truthful in her account;

5. The next morning [M-K] left with very little contact or conversation with [B]; . . . 7. [M-K] did not consent to sexual intercourse. [ 3 ] The matter was set over to May 4, 2021 as B.B. had travelled to Alberta pre-pandemic and was unable to afford a return flight to Newfoundland and Labrador along with the cost of having to quarantine. On May 4, 2021, Defence counsel asked for the matter to be set over again as he wished to discuss with the Crown the possibility of having the file transferred to Alberta where B.B. was permanently residing.

The matter was set over to September 8, 2021. [ 4 ] On September 8, 2021, Crown counsel informed the Court it was not prepared to transfer the file to Alberta and requested a Warrant of Arrest be issued. Defence counsel once again confirmed that B.B. was not able to return to Newfoundland and Labrador from Alberta due to his financial circumstances. Following the submissions, the Court issued a Warrant of Arrest. [ 5 ] B.B. was arrested and taken into custody in Alberta on December 8, 2021 and appeared before this Court on December 13, 2021.

He was remanded in custody pending his sentencing hearing set for January 28, 2022. CROWN’S POSITION ON SENTENCING [ 6 ] Ms. Simms, on behalf of the Crown, provided the Court with four decisions regarding the appropriate range of custodial sentence for B.B. based on the Agreed Statement of Facts. These were as follows: a. R. v. McCaw , 2019 ONSC 3906 - An imposition of a custodial sentence of 40 months following trial and conviction. The offender took advantage of the complainant who was inebriated and passed out on the couch of her boyfriend’s apartment.

Her boyfriend, who was also inebriated, was upstairs asleep. The offender undressed the complainant and had sexual intercourse with her. b. R. v. E.S. , 2019 NLSC 199 - An imposition of a custodial sentence of 36 months following trial and conviction. The complainant and the offender were in a spousal relationship but were separated at the time of the offence. The offender undressed the complainant and had sexual intercourse while she slept and was unable to consent. Consideration was given to the aggravating factor of the abuse of trust inherent in a spousal relationship. c. R. v.

Kennedy , 2021 NLCA 42 - On appeal from Provincial Court on conviction following trial and the sentence where the offender committed sexual assault by vaginal intercourse and oral sex on a 24-year-old intoxicated complainant. The offender’s sentence of 42 months was upheld on appeal. d. R. v. Snelgrove , 2021 NLSC 149 - An imposition of a custodial sentence of 48 months following jury trial and conviction. The offender was an on duty police officer who committed sexual assault consisting of fellatio, vaginal sex and anal sex on an intoxicated young woman under his care. [ 7 ] During her oral argument, Ms.

Simms indicated that the range of sentence for sexual assault involving intercourse in this province is between 36 - 60 months. In instances where the complainant was asleep when the intercourse was initiated, it is in the range of 36 - 48 months. DEFENCE’S POSITION ON SENTENCING [ 8 ] Mr. Luscombe, of behalf of B.B., also provided the Court with four decisions regarding the appropriate range of custodial sentence based on the Agreed Statement of Facts. These were as follows: a. R. v. J.A.M . , 2018 NSSC 285 - An imposition of a custodial sentence of 24 months following trial and conviction.

The offender was unknown to the complainant. She passed out in his cabin from severe intoxication and awoke the next morning disoriented and unclear how she got there. DNA evidence linked her to the offender. The offender had a positive pre-sentence report, ran his own business and had the support of his family. b. R. v. Diep , 2020 ONSC 6278 - An imposition of a custodial sentence of 24 months following a trial and conviction where the offender had forced vaginal intercourse with the complainant.

The court emphasized that he was a first-time offender and that his sentence should be seen through a lens of leniency. c. R. v. DeYoung , 2020 NSSC 242 - An imposition of a custodial sentence of 24 months following trial and conviction. The offender and the complainant were sleeping over at the home of a common acquaintance when he made his way into the complainant’s bedroom as she was sleeping. The complainant awoke to find the offender trying to penetrate her anus with his penis. Counsel were joined in their recommendation as to the sentence to be imposed. d. R. v.

Kennedy , 2018 ONCJ 600 - An imposition of a conditional sentence of 18 months following trial and conviction. The offender had been sleeping over at the home of the complainant’s brother. The complainant awoke in pain during the early morning hours to find the offender on top of her with his penis inside her vagina. The case proceeded by way of

summary conviction and the offender was suffering from stage IV T-cell lymphoma. [ 9 ] In his oral argument, Mr. Luscombe noted that his client lacked any memory of the events and wholly adopted the

complainant’s version of what occurred. He entered a guilty plea and, as confirmed in the Pre-Sentence Report, has expressed significant remorse as he is genuinely concerned about the effect of his actions on the complainant. Since the incident, he has voluntarily engaged in mental health counselling and has ceased the consumption of alcohol. [ 10 ] Because of the significance of his client’s guilty plea, his expression of remorse and an extremely positive Pre-Sentence Report, Mr. Luscombe submitted that this Court should consider an appropriate and fit sentence to be in the range of 18 - 24 months.

He argued that the jurisprudence relied upon by the Crown involved instances where the offender did not plead guilty but was convicted following a trial. As such, these decisions fail to consider the mitigating factor that a guilty plea saves the complainant from the trauma of having to relive the sexual assault through providing testimony in a trial. THE LAW [ 11 ] When considering an appropriate sentence in the circumstances of this case, I have to be guided by the objectives and principles of sentencing as set out in sections 718 , 718.1 and 718.2 of the Criminal Code . [ 12 ]

Section 718 of the Criminal Code states that the fundamental purpose of sentencing is to foster respect for the law and the maintenance of a just, peaceful society.

In order to attain this goal, a court must impose a sentence that meets one or more of the following objectives: a. denunciation; b. deterrence of the offender and other persons; c. separation of offenders from society, where necessary; d. rehabilitation; e. reparations for harm done to victims or to the community; and f. the promotion of a sense of responsibility in offenders and an acknowledgment of the harm done to victims and to the community. [ 13 ] In the decision R. v.

Nasogaluak , 2010 SCC 6 , the Supreme Court of Canada (“the Supreme Court”) held that none of the sentencing objectives take priority over any of the others. Weight must be accorded to each of the objectives with a view to the unique circumstances of the case before a court. [ 14 ] Later in R. v. Ipeelee , 2012 SCC 13 , the Supreme Court stated that the fundamental principle of sentencing is that the sentence must be proportionate to both the gravity of the offence and the degree of responsibility of the offender. The sentence must be fit. To this degree, the sentence is both a sword and a shield.

On the one hand, the public must be satisfied that the offender received the punishment she/he/they deserved. On the other hand, the sentence cannot exceed what is appropriate. Consequently, a just sentence strikes a balance between these two, sometimes competing, interests. [ 15 ] The sentencing principles courts are mandated to consider are codified in

section 718.2 of the Criminal Code . As a result the Court must: a. take into account any relevant aggravating or mitigating circumstances; b. ensure that similar sentences are imposed on similar offenders for similar offences committed in similar circumstances; c. refrain from depriving liberty if less restrictive sanctions may be appropriate; and d. consider all available sanctions other than imprisonment if those sanctions are reasonable.

ANALYSIS Evidence [ 16 ] Pursuant to section 724(1) of the Criminal Code , I accept the Agreed Statement of Facts submitted by the parties as proof of the offence having occurred in the manner described therein. [ 17 ] In this case, B.B. could not claim there was consent because EM-K was asleep when the sexual intercourse began. Previous to this, EM-K withdrew her consent by indicating to B.B. that she did not want to have sexual intercourse with him because she was still upset over the recent breakup with her boyfriend.

Both then fell asleep. [ 18 ] When EM-K woke up she was lying on her stomach with B.B. on her back having sexual intercourse with her. She did not say anything as B.B. moved her to several different positions as he continued to have sexual intercourse. EM-K left the next morning with little or no conversation with B.B. [ 19 ] As noted by my colleague, Justice Khaladkar in R. v. E.S. at paras. 28 and 30 : 28 Every person is entitled to have her/his personal and sexual integrity remain intact. There is no excuse for the violation of that integrity without the victim’s consent.

30 . . . general deterrence is of prime importance . . . It is necessary that this Court condemn the behavior that gave rise to the charge . . . .It is not permissible to obtain sexual gratification in the absence of the affected party’s consent. The act of having sex with a sleeping orunconscious woman will invariably result in a conviction for sexual assault.

Section 718.2(a) - aggravating/mitigating circumstances [20] In the Supreme Court decision in R. v. Lacasse, 2015 SCC 64 , [2015] 3 S.C.R. 1089 at paras. 78 - 79, Wagner J.,speaking for the majority, explained that assigning weight to both aggravating and mitigating factors falls within the trial judge'sdiscretion as contemplated by the principles espoused in

section 718.2(

a) of the Criminal Code. Aggravating [21] The aggravating circumstance in this case is the fact that the victim was asleep when the sexual assault commenced. Thecomplainant’s Victim Impact Statement describes someone who has been seriously affected by this offence both emotionally andphysically. She recounts episodes of night terrors, increased stress and anxiety and is afraid to be alone. The after effects of the offencewill remain with her for the rest of her life.

Mitigating [22] Important factors in considering mitigation include remorse, the absence of a criminal record, a favourable Pre-SentenceReport and the relatively young age of the offender. [23] B.B. pleaded guilty to the offence early in the prosecutorial process. I accept his counsel’s submission that he recognizes theconsequences of his actions. I view his guilty plea and his expression of remorse as positive factors to be considered when determiningthe appropriate sentence [24] The Pre-Sentence Report describes a person who has had no prior contact with the criminal justice system as an adult.

Sincethe date of the offence, B.B. moved to Calgary, Alberta and enrolled in a practicum at the Banff Centre of Arts and Creativity. B.B.recently accepted his gender identity as bi-pansexual and has become involved in the local LGBTQ community. He is a recoveringalcoholic and is being treated for anxiety and depression. The Report identifies B.B. as a low risk to reoffend noting that on the LS/CMIAssessment scale he has a one percent chance of recidivating.

Section 718.2(b) - similar sentences [25] I am mindful that the sentence for this offender should, in accordance with

section 718.2(

b) of the Criminal Code, be similar tosentences imposed on similar offenders for similar offences. A review of the relevant sentencing authorities based on this particular factpattern all direct me to consider a significant term of incarceration in this case. [26] The range in this jurisdiction is three years and up (see R. v. Kennedy, 2021 NLCA 42 at paras. 45 – 47; R. v. E.S. at para. 31;and R. v. Bennett, 2021 NLSC 26 at para. 36).

While it is permissible to depart from the range under certain circumstances, I have to beconvinced that there are sufficient mitigating factors to allow me to depart from the range in a meaningful way. This approach was statedvery concisely by Knickle, J. (as she then was) in Bennett at para. 36: 36 The maximum available sanction for sexual assault under the Criminal Code is 10 years incarceration.

For offences involving fullintercourse, it is often stated that the starting point for such sentences is three years incarceration which is then adjusted according to theaggravating or mitigating factors. [27] In the recent decision of R. v. Parranto, 2021 SCC 46, the Supreme Court addressed the approach of using starting points whenconsidering sentencing principles. In effect, the majority accepted that sentencing judges have the discretion over which objectives toprioritize and may choose to weigh rehabilitation and other objectives more heavily than denunciation and deterrence.

A sentencingjudge can factor in mitigating aspects of a particular offender as part of the global assessment of a fit and appropriate sentence. I shouldnot fetter my discretion by restricting myself strictly to offence-based considerations. [28] In the present case, I am mindful of the competing factors of denunciation and deterrence versus the promotion of a sense ofresponsibility of an offender to acknowledge the harm done to the victim and their willingness to rehabilitate themselves.

After carefulconsideration of all the aggravating and mitigating circumstances, I find the range suggested by the Crown too high and the rangesuggested by the Defence too low. [29] As stated by the Supreme Court in Parranto, I have the discretion to give more weight to rehabilitation and remorse overdenunciation and deterrence. In exercising my discretion, I am not diminishing the gravity of the sexual assault B.B. committed uponEM-K.

As noted by EM-K in the poem which accompanied her Victim Impact Statement, the incident has made her feel that she is“serving a lifetime in the prison that is your body, a scar, a permanent indent. . . .” [30] However, on the other side, B.B. has faced up to his responsibility for the commission of this offence by pleading guilty anddemonstrating remorse and a willingness to rehabilitate himself. [31] While the starting point in this jurisdiction for sexual assault involving intercourse may be 36 months, it is a starting pointwhere the Court can adjust up or down depending on the particular aggravating and mitigating circumstances in each particular case. [32] In the recent decision of R. v.

Wyvill, 2021 ONCJ 548, the Ontario Court of Justice cited, with support, the following statementfrom Twaddle J.A. in the Manitoba Court of Appeal decision in R. v. Shalley, 2005 MBCA 150 at para. 15, when it imposed a custodialsentence of 30 months: 18 . . . The range of sentence for an offence of sexual assault involving non-consensual intercourse with a woman asleep or unconscious,

assuming an offender of previous good character who pleads guilty and expresses remorse, is two to three years imprisonment per Vertes, J. in R. v. B.A.M. , [2004] N.W.T.J. No. 72 (QL) , 2004 NWTSC 74 at paragraph 18 . [ 33 ] A guilty plea is worthy of recognition on sentencing as it is a primary indicator of acceptance of responsibility. Consideration must be given to the timing of the guilty plea and the mitigating effect that it has on a complainant by avoiding having her prepare and go through a trial in her home community.

COnclusion Sentence [ 34 ] Having considered the weight that should be given to the mitigating factors of the offender’s demonstration of responsibility and remorse, I find an appropriate and fit sentence to be 30 months. I will give credit at the rate of 1.5 days to 1.0 for the days B.B. has spent in custody since his arrest on December 8th, 2021. That time will be deducted from the sentence I have imposed. [ 35 ] In view of my reasons under the category of similar sentences, I do not see the application of sections 718.2 (

c) and (d). Ancillary orders [ 36 ] As well, I am obligated to impose some ancillary orders. The Crown and the Defence were in general agreement with regard to the types of orders to be imposed. They are as follows: DNA Order [ 37 ] Sexual assault under

section 271 (

a) of the Criminal Code is a primary designated offence. Pursuant to

section 487.05(1) there shall be a DNA Order requiring B.B. to submit such samples of his bodily substances as may be required for the purpose of forensic DNA analysis. Sexual Offender Information Registration Act (SOIRA) Order [ 38 ]

Section 271(

a) is a designated offence within the meaning of

section 490.011(1) of the Criminal Code . Since the maximum term of imprisonment for a

section 271 (

a) offence is 10 years when prosecuted by indictment, then the duration of the SOIRA registration is 20 years after it is made. I make, therefore, an Order in Form 52 requiring B.B. to comply with the Sex Offender Information Registration Act , S.C. 2004, c. 10 for a period of 20 years. Non-contact order [ 39 ] Under 743.21(1), I order that B.B. have no contact or communication with the complainant, EM-K, while he is serving his sentence. Should EM-K attempt to contact B.B., he is to direct her inquiry to his legal counsel. Under no circumstances is B.B. to initiate contact with EM-K except through the agency of counsel. Weapons prohibition [ 40 ] Pursuant to

section 109 of the Criminal Code , it is ordered that B.B. is prohibited from possessing any firearm, crossbow, restricted weapon, ammunition and explosive substance for a period of 10 years and any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. _____________________________ Peter N. Browne Justice