R. v. J.A., 2021 NLSC 19

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. J.A. , 2021 NLSC 19 Date : February 5, 2021 Docket : 201904G0081 Her Majesty The Queen v. J.A. Restriction on Publication: By court order made under

section 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Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.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 George L. Murphy Reasons for Judgment Given Orally Place of Hearing: Corner Brook, Newfoundland and Labrador Dates of Hearing: October 19, 2020 - October 26, 2020; and January 12, 2021 Date of Oral Judgment: February 5, 2021

Summary: The Court determined the factual basis upon which the Offender should be sentenced after being found guilty by a jury of one charge under

section 271 of the Criminal Code . Based on the facts for sentencing purposes, as determined by the Court, the Court decided that the appropriate sentence was a term of nine months’ imprisonment, a period of probation for one year, and certain other ancillary orders.

Appearances: Trina D. Simms Appearing on behalf of the Crown Julia A. A. Smart Appearing on behalf of the Offender Authorities Cited: CASES CONSIDERED: R. v. Ferguson, 2008 SCC 6; R. v. Brown, [1991] S.C.R. 518, ; R. v. Gardiner, [1982] 2S.C.R. 368, ; R. v. McKenzie, 2000 ABQB 238; R. v. H. (L.), 2011 NLCA 4; R. v. P.K., 2016 NLTD(G) 33; R. v. M.(D.C.), 2010 NLTD(G) 178; R. v. R.C.M., 2007 NLTD 29; R. v. E.N.W., 2010 NLTD(G) 143; R. v. S.L.C., 2009 NLTD 66; R. v.Sweeney, 2019 NLSC 199; R. v. E.P.B., 2003 NLSC (T.D.) 26; and R. v. A. (K.J.) (1988), (NL CA), 69 Nfld. &P.E.I.R. 99, 4 W.C.B. (2d) 348 (Nfld.

C.A.) STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT Murphy, J.: INTRODUCTION [1] J.A. was convicted by a jury of one count of sexual assault on R.M. covering the period from January 1, 2001 to December 31,2017. While the Indictment was for a single count, the Crown relied on evidence from R.M. respecting multiple incidents over a periodof many years. The incidents described by R.M. in her evidence ranged from fondling of her breasts and touching of her vagina to theperforming of oral sex by R.M. on J.A. and by J.A. on R.M.

There was evidence from R.M. that she consented to certain sexual acts thatoccurred between her and J.A. [2] Because of the secrecy of jury deliberations, it is impossible to know which one or more of the incidents described by R.M. thejury relied on to arrive at its verdict. In circumstances where the offence upon which an offender has been convicted by a jury couldinvolve a broad spectrum of underlying facts, the sentencing judge has the task of determining the facts necessary for sentencing. It isimportant to note that this does not mean that the sentencing judge must resolve every disputed factual issue.

In this regard, McLachlin,C.J. in R. v. Ferguson, 2008 SCC 6 in discussing the issue of factual determinations for sentencing purposes after a jury trial said atparagraph 16: 16 This poses a difficulty in a case such as this, since, unlike a judge sitting alone, who has a duty to give reasons, the jury gives only itsultimate verdict. The sentencing judge therefore must do his or her best to determine the facts necessary for sentencing from the issuesbefore the jury and from the jury's verdict.

This may not require the sentencing judge to arrive at a complete theory of the facts; thesentencing judge is required to make only those factual determinations necessary for deciding the appropriate sentence in the case athand. [3] Therefore, I need only make the factual determinations necessary for deciding the appropriate sentence to be imposed in thiscase. [4] In making these factual determinations there are two guiding principles which are applicable and which originate from thedecision of the Supreme Court of Canada in R. v. Brown, [1991] S.C.R. 518, .

First, a sentencing judge is bound by theexpress and implied factual implications of the jury’s verdict. This principle is codified in section 724(2)(

a) of the Criminal Code, R.S.C.1985, c. C-46 which provides: 724(2)(

a) Where the court is composed of a judge and jury, the court (

a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty; [5] The second of these guiding principles is that where the factual implications of the jury’s verdict are ambiguous, thesentencing judge should not attempt to decipher the precise facts upon which the jury concluded the offender was guilty. Instead, the

sentencing judge should arrive at his or her own independent determination of the relevant facts. In this regard, section 724(2)(

b) isapplicable and it provides: 724(2) Where the court is composed of a judge and jury, the court . . . (

b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either partywith respect to that fact. [6] Where there is a dispute as to any fact that is relevant to the determination of a sentence, the Supreme Court of Canada in R. v.Gardiner, [1982] 2 S.C.R. 368, confirmed that in order to rely on a disputed fact, the sentencing judge must be satisfiedof the existence of such fact beyond a reasonable doubt. This principle is also codified in section 724(3)(

e) of the Criminal Code whichprovides: 724(3) Where there is a dispute with respect to any fact that is relevant to the determination of a sentence, . . . (

e) the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous convictionby the offender. [7] In R. v. McKenzie, 2000 ABQB 238, Perras, J. stated quite succinctly the correct approach to making factual determinations forsentencing purposes after a jury trial.

At paragraph 13, he said: 13 In short, then, as I understand it, the trial judge on sentencing, where a conviction has been rendered by a jury, is entitled to make uphis or her own mind about disputed facts relevant to sentencing provided such findings are not inconsistent with the express or implicitfactual implications of the jury verdict; and provided he or she is satisfied, as to those facts, beyond a reasonable doubt. findings of fact [8] In terms of the first of the guiding principles I set forth earlier, an analysis of the express and implied factual implications ofthe jury’s verdict is not particularly helpful in this case.

All I can conclude from the jury’s verdict is that the jury found that on at leastone occasion during the 17 year time period covered by the charge J.A. touched or applied force of some degree to R.M. for a sexualpurpose without the consent of R.M. [9] As for the second of the guiding principles, the Crown put forward a draft version of facts which it submitted ought to be reliedon by the Court in sentencing J.A. In

summary, the version of facts put forward included the following incidents, all of which wereallegedly non-consensual: a. J.A. fondling the breasts of R.M. inside her shirt and the touching of her vagina inside her clothing; b. J.A. grabbing the arm of R.M. and pulling it toward himself and placing it on his penis. R.M. attempted to pull her arm away fromJ.A. but he continued to pull her arm and placed it on his penis; and c.

J.A. performing oral sex on R.M. and R.M. performing oral sex on J.A. [10] Counsel for J.A. took no issue with the facts as alleged by the Crown except with respect to the incidents of oral sex betweenJ.A. and R.M.

On this issue, counsel for J.A. argued that R.M. testified that all incidents of oral sex between her and J.A. wereconsensual and that R.M. also testified that she could say no if she did not want to engage in oral sex with J.A. and that she did in fact sayno on occasion. [11] In terms of the evidence of R.M. regarding incidents of oral sex between her and J.A., R.M. did initially on direct examinationtestify that she would try and stop J.A. from performing oral sex on her and that J.A. would grab her hands and force his head down intoher vagina.

Later on direct examination when asked if she wanted to perform oral sex on J.A., she answered yes. Later still on directexamination she was asked if she wanted J.A. to perform oral sex on her and she again answered yes. R.M. did subsequently testify ondirect examination that she would just give in to J.A.’s requests for oral sex to get him to stop asking; however, on cross-examinationR.M. agreed that the only time sex acts occurred between her and J.A. was when she said yes.

In addition, she also agreed on cross-examination that she could choose whether she said yes or no in response to J.A. asking her to engage in sexual acts and further agreedthere were times she said no and J.A. would walk away. [12] In my view, the evidence presented at trial did not establish to the requisite standard, namely proof beyond a reasonable doubt,that the incidents of oral sex between R.M. and J.A. constituted acts of sexual assault.

Accordingly, I shall determine an appropriatesentence for J.A. on the basis that the acts of sexual assault committed by J.A. consisted of J.A. fondling the breasts of R.M. andtouching her vagina inside her clothing and J.A. grabbing the arm of R.M. and using force to make her touch his penis. I am satisfied asto these facts to the requisite standard.

appropriate sentence [ 13 ] There is no doubt that there is an extremely wide sentencing range for sexual assault in this Province. This is not at all surprising given that the offence of sexual assault covers an extremely wide range of conduct. [ 14 ] A Pre-Sentence Report regarding J.A. and a Victim Impact Statement of R.M. were filed with the Court. A Victim Services worker read the statement of R.M. into the record. [ 15 ] J.A. is 65 years of age and divorced with two adult children. He has not worked for many years because of health issues, including Parkinson’s.

The Pre-Sentence Report does not provide any independent information as to the impact of Parkinson’s on J.A. It does note that J.A. reports symptoms of fatigue, chronic pain, and mobility issues. [ 16 ] The victim, R.M., is the daughter of an ex-wife of J.A. R.M. moved in with J.A. and her mother in 2000 or 2001 when she was 20 or 21 and lived with them until 2018 when her mother and J.A. separated. The sexual assaults occurred during that period.

There is little doubt from the Victim Impact Statement of R.M. that she has been negatively impacted in a serious manner as a result of the sexual assaults. submissions on sentence Crown [ 17 ] The Crown submitted that the sexual assaults were serious and while J.A. was not the step-father of R.M. and was not in a position of trust, the assaults did occur within a familial relationship which is aggravating. The Crown put forward a range of sentence of 12 to 24 months and asked the Court to impose a custodial term within that range.

The Crown’s submissions were based on the incidents of oral sex between J.A. and R.M. being included as part of the sexual assaults that had occurred. [ 18 ] The Crown relied on the following cases: a. R. v. H. (L.) , 2011 NLCA 4 ; b. R. v. P.K. , 2016 NLTD(G) 33; c. R. v. M. (D.C.) , 2010 NLTD(G) 178; and d. R. v. R.C.M. , 2007 NLTD 29 . Defence [ 19 ] The Defence submissions were based on the incidents of oral sex not forming part of the sexual assaults that had occurred.

The Defence argued that while any sexual assault was a serious matter, the acts here which constituted the sexual assault were at the lower end of the range. The Defence also relied on the fact that there was no abuse of a position of trust and that R.M. was not a minor when the assaults occurred but an adult. The Defence submitted that an appropriate sentence was a custodial term in the range of 90 days to be served intermittently to 6 months. [ 20 ] The Defence relied on the following cases: a. R. v. E.N.W. , 2010 NLTD(G) 143; b. R. v. S.L.C. , 2009 NLTD 66 ; c. R. v. Sweeney , 2019 NLSC 199 ; and d. R. v.

E.P.B. , 2003 NLSC (T.D.) 26. law and analysis [ 21 ] The following provisions of the Criminal Code are relevant to the determination of an appropriate sentence: Purpose 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences;

(

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. . . . Fundamental Principle 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Other Sentencing Principles 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, (

v) evidence that the offence was a terrorism offence, or (vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under

section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. [22] The decision of Goodrige, C.J.N. in R. v. A. (K.J.) (1988), (NL CA), 69 Nfld. & P.E.I.R. 99, 4 W.C.B. (2d)348 (Nfld. C.A.), which must be one of the most frequently cited cases from this jurisdiction, sets out the factors to be considered onsentencing for sexual assault offences.

At paragraphs 32 and 33, he said: 32 There are many factors to be considered in imposing sentence in any case.

In cases of sexual assault these factors include the extent ofthe assault (for sexual assault encompasses a very wide range of human misbehaviour), the degree of violence or force used, the impactof the crime upon the victim, the family of the victim and the offender, the degree of trust involved, public abhorrence to the type ofcrime involved, the attitude of the offender to what he has done, his plea, the biological and psychiatric factors that lead to thecommission of the offence, the need for specific and general deterrence, the prospect of successful rehabilitation, the antecedents and ageof the offender, the time spent in custody prior to trial and sentences imposed by other courts in Newfoundland and elsewhere in Canada. 33 Vengeance is not a factor.

A sentence is designed to protect the public, not to abate its anger at a particular crime. As has frequentlybeen said, protection is attained through a balance of deterrence and rehabilitation. Neither should overwhelm or negate the other. Theproper balance will vary from case to case. [23] I will now consider these factors in relation to the facts of this case. The extent of the assaults [24] The evidence was such that it is impossible to determine the exact number of assaults but there is no doubt they werenumerous.

The most serious of these was J.A. touching the vagina of R.M. insider her clothing and him forcing her to touch his penis. The degree of violence or force used [25] There was no evidence of aggressive violence on the part of J.A. There was obviously some force used in that J.A. forced thehand of R.M. onto his penis when she attempted to pull it away. The impact of the crime on the victim [26] I referred to the Victim Impact Statement of R.M. earlier. There is no doubt from a review of same that the assaults have had asignificant impact on R.M.

The degree of trust involved [27] While this was not a stepfather-child relationship, the assault did occur within a familial relationship in that J.A. was married tothe mother of R.M. Public abhorrence to the type of crime involved [28] The public generally views sexual assaults as serious criminal offences. The attitude of the offender [29] The Pre-Sentence Report indicates that J.A. diminished responsibility for his behaviour when discussing the matter with theauthor of the Pre-Sentence Report.

On the date of sentencing submissions, the Court asked J.A. if he had anything he wished to say onhis own behalf and he declined to say anything as was his right. It means, however, that the Court has no apology or recognition ofwrongdoing by J.A. The biological and psychological factors that led to the commission of the offence [30] There is no evidence that any biological or psychological factors contributed in any way to the commission of the offence.

The need for specific and general deterrence [31] One of the main goals of the imposition of penalties for criminal offences is to send a message to an offender and others whomay be inclined to commit the same type of offence that there will be consequences and thereby hopefully deter the commission offurther offences. The prospect for a successful rehabilitation [32] While not accepting responsibly for the offence, J.A. has indicated a willingness to abide by any court imposed conditions

which may form part of his sentence. Given this stated willingness and his age, together with the fact he now suffers from a debilitating disease, J.A. should be a suitable candidate for rehabilitation. The antecedents and age of the offender [ 33 ] J.A. is 65 years of age with no prior criminal record. His other antecedents are generally positive. The time spent in custody prior to trial [ 34 ] J.A. has not spent any time in custody in respect of this offence.

Sentences imposed by other courts in Newfoundland and Labrador and the rest of Canada [ 35 ] As noted earlier, counsel for the Crown and the Defence differ on what the appropriate range of sentencing for this offence is and relied on the cases referred to earlier. Aggravating factors [ 36 ] In terms of aggravating factors, I would note that this was not an isolated incident but involved multiple incidents over a number of years. A further aggravating factor is that there is no remorse or acceptance of responsibility by J.A.

Mitigating factors [ 37 ] The mitigating factors are that J.A. has no prior criminal record and he has the support of his family. In addition, he has expressed a willingness to abide by any conditions the Court may impose as part of a sentence. sentence [ 38 ] Any sentence I impose must be appropriate to denounce the unacceptable conduct of J.A. and recognize his moral culpability.

In addition, it must be such to deter J.A. and to act as a deterrent generally. [ 39 ] Given the foregoing and the other principles and objectives of sentencing and the particular circumstances of this case, I have decided that a sentence of imprisonment for a period of nine months is appropriate. [ 40 ] In addition to the sentence of nine months’ imprisonment, J.A. will be on probation for a period of one year upon his release. The probation shall be subject to the following conditions: a. Keep the peace and be of good behaviour; b. Appear before the court when required to do so; c.

Notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or probation officer of any change of employment or occupation; d. Report to a probation officer within one week of release and thereafter when required by the probation officer and in the manner directed by the probation officer; e. To comply with the requirements of the probation officer with respect to counselling; and f.

To abstain absolutely from having any contact or communication whatsoever, directly or indirectly, with R.M. [ 41 ] I direct the Court Officer to ensure that there is compliance with

section 732.1(5) of the Criminal Code . [ 42 ] I further order pursuant to

section 743.21(1) that J.A. shall be prohibited from communicating, directly or indirectly, with R.M. during the custodial portion of his sentence. Ancillary orders DNA Order [ 43 ] Pursuant to

section 487.051(1) of the Criminal Code , I authorize the taking of the number of samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis. These shall be taken in accordance with the provisions set forth in the Criminal Code . Sex Offender Information Registration Order [ 44 ] Pursuant to

section 490.012(1) of the Criminal Code , J.A. shall be required to comply with the Sex Offender Information Registration Act . The applicable period of compliance in this case is provided for in

section 490.013(2)(

b) and is 20 years. Victim Fine Surcharge [ 45 ] J.A.’s only sources of income are under the Old Age Security program and a small monthly subsidy from the Provincial Department of Immigration, Skills, and Labour. As such, I believe this an appropriate case to order that no victim surcharge be paid pursuant to section 737(2.1) of the Criminal Code .

_____________________________ George L. Murphy Justice