R. v. Bisram, 2015 ONCJ 809

Information No. 3111-998-13-9716-00 CITATION: R. v. Bisram , 2015 ONCJ 809 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. JAINARINE BISRAM ********** R E A S O N S F O R S E N T E N C E BEFORE THE HONOURABLE JUSTICE J. STRIBOPOULOS on May 7, 2015, at BRAMPTON, Ontario INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO

SECTION 486.4 OF THE CRIMINAL CODE BY ORDER OF THE HONOURABLE J. STRIBOPOULOS, ONTARIO COURT JUSTICE APPEARANCES :

E. Norman K. Jalali Counsel for the Crown Counsel for Jainarine Bisram TUESDAY, MAY 7, 2015 R E A S O N S F O R S E N T E N C E STRIBOPOULOS J . (Orally): I. Introduction At the completion of a seven-day trial, I found Mr. Bisram guilty of sexually assaulting S.H.on July 23, 2013, and also thereby breaching a probation order to which he was subject at the time that required him to keep the peace and be of good behaviour. These are my reasons for sentence with respect to these two offences.

II. Circumstances of the Offences The circumstances surrounding the commission of these offences are set out in some detail in my reasons for judgment. See R. v. Bisram , 2014 ONCJ 644 . As a result, only the briefest of summaries is necessary for the purpose of these reasons. In the summer of 2013, Mr. Bisram and Ms. H. both frequented the park that is situated immediately behind the Westwood Mall in the City of Mississauga. There is a beer store close by and the park is where a fair number of people routinely gather, especially in the summer months, mainly to drink. It was at the park that Mr. Bisram and Ms.

H. met. Their shared interest in drinking in the park provided the impetus for a friendship. On the afternoon of July 23, 2013, Mr. Bisram and Ms. H. were both in the park, and at least for the period immediately preceding the offences, drinking together. Ms. H. had more to drink that afternoon than Mr. Bisram and she eventually passed out underneath a tree. She was so drunk that afternoon that she apparently failed to pull up her underwear and tights after urinating but before losing consciousness. Mr. Bisram, who was drunk and had an unrequited sexual interest in Ms. H., sexually assaulted Ms.

H. while she was unconscious by having intercourse with her. The assault was interrupted when a security guard from the mall happened past in his car and was so alarmed by what he saw that he dispatched two colleagues to investigate. On their approach, Mr. Bisram stopped having intercourse with Ms. H. and scrambled to pull up her underwear and tights so that his crime would go undetected. However, DNA evidence served to establish that the security guards were justified in their suspicions and that there was nothing innocent about the interaction they had observed between Mr. Bisram and Ms.H. In short, Mr.

Bisram had sex with Ms. H., without her consent, while she was passed out drunk and in an extremely vulnerable state. As a result, Mr. Bisram sexually assaulted Ms.H. At the time, Mr. Bisram was on a probation order for the offence of aggravated assault which was imposed following his conviction for that offence on May 6, 2013. The probation order included a condition that he “keep the peace and be of good behavior”. Quite obviously, by sexually assaulting Ms. H., Mr. Bisram breached that condition. Tragically, Ms. H. passed away in October 2013, apparently from an overdose.

Consequently, I do not have the benefit of a victim impact statement that would explain the effect these crimes had upon her. Despite this, I think I can fairly say that it is extremely sad that Ms. H.’s last few months of life would have been marred by the knowledge that she had been violated by Mr. Bisram, someone she considered to be a friend. III. Circumstances of the Offender Mr. Bisram is 41 years old. He is originally from Guyana, where he grew up the youngest of four children. He reports a normal childhood with the exception of the suicide of an older stepbrother. Mr.

Bisram immigrated to Canada at the age of 18 or 19. He came to Canada to marry his wife, who was Canadian. The marriage did not last and the couple was divorced after a year. Not long after his divorce, Mr. Bisram married again. He and his wife had one child, a son, who is now 12 years old. Unfortunately, after 14 years that marriage also came to an end.

I understand that Mr. Bisram continues to maintain a close relationship with his son. He sees his son at least once per week and speaks to him at least every day. Until 2010, Mr. Bisram was gainfully employed. Over the years he has held a variety of warehouse and factory jobs. However, a workplace accident resulted in nerve and muscle damage to his left arm and he has been receiving benefits ever since from the Workplace Safety and Insurance Board. Three years ago Mr. Bisram fell while at home and struck his head on the edge of a countertop. The resulting injury was severe. Mr. Bisram had to be flown to St.

Michael’s Hospital where he had brain surgery and remained in a coma for five days. Following his release from hospital, he spent a year at the Toronto Rehabilitative Hospital. It was during his stay in the rehabilitative hospital that he was also diagnosed with epilepsy, a condition that he manages with medication. Mr. Bisram has a criminal record which is as follows: May 5, 2000 – impaired driving for which he received a $600 fine and a one-year driving prohibition. February 2, 2012 – assault with a weapon for which he received a suspended sentence and was placed on probation for one year and was subject to a

section 110 weapons prohibition for 10 years. May 6, 2013 – aggravated assault and breach of probation for which he received a suspended sentence having been credited for 98 days of pre-trial custody and was placed on probation for 2 years and subject to a

section 109 order. A DNA order was also made. It is clear from the pre-sentence report filed as an exhibit at the sentencing hearing that Mr. Bisram is a severe alcoholic. Alcohol has played a significant and negative role in his life for a number of years. His alcoholism would appear to have played a major role in the breakdown of his marriage and in his past involvement with the criminal justice system. In my view, alcohol also played a contributing role in Mr. Bisram’s commission of the offences before the court. I have no doubt that in his drunken state, Mr.

Bisram was more uninhibited and therefore more inclined towards committing the offences to which I found him guilty. Unfortunately, Mr. Bisram has not yet succeeded in addressing his addiction and achieving lasting sobriety. Although he did participate in a residential treatment program some years ago, his struggles with alcohol persist. It is troubling that despite all of the misery and misfortune that alcohol has brought into Mr. Bisram’s life, he reported to the author of the pre-sentence report that he does not “consider his drinking problematic”.

That said, I take some comfort in the fact that at least to his defence lawyer, Ms. Jalali, Mr. Bisram acknowledged that he is an alcoholic. Quite obviously, acknowledging that there is a problem is an important and foundational step towards finally addressing it. Lastly, I note that as he did during his evidence at trial, Mr. Bisram continues to maintain his innocence with respect to the crime for which I found him guilty. IV. Positions of the Parties On behalf of the Crown, Ms.

Norman argues that the range of sentences established by the case law for sexual assault involving intercourse with an unconscious victim is between two and four years. In arguing in favour of the upper end of the range, Ms. Norman submits that there are plenty of aggravating features in this case and no apparent mitigating considerations. In that regard, Ms. Norman emphasizes that Mr. Bisram was friends with the victim and therefore the crime involved a breach of trust, at

least of sorts. That said, Ms. Norman admits that this is not a breach of trust of the kind recognized in the sentencing case law. Forexample, parent to child, doctor to patient, teacher to student, employee to employer, et cetera. Nevertheless, Mr. Bisram was friendswith Ms. H. which Ms. Norman submits is an aggravating consideration. Further, Ms. Norman points to Ms. H.’s extremely vulnerable condition, which Mr. Bisram exploited for his own sexual gratification, asa further aggravating factor. In addition, as a result of Mr. Bisram’s actions, Ms. Norman argues that Ms.

H. was seen in a state of partialnudity by a number of other men, an experience that must have been most humiliating. Given all of this, Ms. Norman argues that the primary sentencing objectives should be denunciation as well as both specific and generaldeterrence. With respect to general deterrence, Ms. Norman argues that those who might consider preying on young women who arevulnerable due to the consumption of intoxicants must be deterred from doing so. On behalf of Mr. Bisram, Ms. Jalali submitted time served was the appropriate disposition.

On March 30, 2015, when sentencingsubmissions were heard, by my calculation that was just shy of 12 months’ imprisonment. With enhanced credit at the rate of 1.5 to 1,that would equal a total sentence of 18 months’ imprisonment. In making her submissions, Ms. Jalali does not engage with either the aggravating or mitigating features of this case, or even the generalprinciples and objectives of sentencing. Rather, she goes directly to the case law. In her submission, when one peruses the precedents itis clear that a further period of incarceration is simply not warranted. In that regard, she implicitly relies upon

Section 718.2(

b) of theCriminal Code which provides, “A sentence should be similar to sentences imposed on similar offenders for similar offences committedin similar circumstances.” In short, the defence submits that Mr. Bisram has already served his sentence and that the only appropriate disposition at this stage is oneof time served. V. Law and Analysis The Criminal Code provides that the fundamental purpose of sentencing is to contribute to “respect for the law and the maintenance of ajust, peaceful and safe society”. See

section 718. This is accomplished by imposing “just sanctions” that reflect one or more of thetraditional sentencing objectives; denunciation, general and specific deterrence, separation of offenders, rehabilitation, reparation tovictims, and promoting a sense of responsibility in offenders and acknowledgement of the harm done to the victims and the community. See subsections 718(

a) through (f). The fundamental principle of sentencing is that the sentence imposed must be proportionate to the gravity of the offence and the degreeof responsibility of the offender. This long established tenet of the sentencing process is now expressly contained in the Criminal Code,see

section 718.1, and also recognized as a principle of fundamental justice constitutionally guaranteed by

section 7 of the Charter. SeeR. v. Ipeellee, 2012 SCC 13 at paras. 36-37, and R. v. Anderson 2014 SCC 41 at paras. 21-22. To satisfy this requirement, a sentencemust “fit” both the seriousness of the crime and the offender’s level of moral blameworthiness in its commission. See Hamilton andMason (2004), (ON CA), 186 C.C.C. (3d) 129 at para. 90 (Ont. C.A.). I am, of course, mindful of the governing sentencing principles and objectives. In that regard, in this case, bearing in mind thecircumstances of these offences, I agree with Ms.

Norman that denunciation and deterrence are especially important sentencingobjectives. In terms of denunciation, the sentence imposed must express the court’s disapprobation for the crimes committed by Mr. Bisram. At thetime, Mr. Bisram was already on probation and bound by a term that he keep the peace and be of good behaviour. That order had onlybeen in effect for little more than two months when Mr. Bisram exploited Ms. H.’s extreme vulnerability for his own sexualgratification. At the time, Mr. Bisram would have been under no delusions about how Ms. H. felt about him.

His sexual advances towards her hadbeen rebuffed in the past. He knew she was not sexually interested in him. Despite this, when the opportunity presented itself, he

violated her sexual autonomy and exploited her state of extreme vulnerability. Rather than assisting his drunken friend, he preyed uponher. In my view, this sort of conduct is extremely repugnant. The sentence imposed must send a clear message that women, especially whenintoxicated and vulnerable, cannot be exploited for an offender’s sexual gratification. The sexual autonomy and dignity of women mustbe protected and the sentences meted out by courts dealing with offences of this nature must make clear that this sort of behaviour isunacceptable and will not be tolerated.

Those who might contemplate such behaviour must recognize that it will attract severeconsequences that are commensurate with the gravity of the violation upon the victim occasioned by such predatory conduct. Of course to this point, I have been focused on the gravity of the offences involved in this case. I must also address the degree ofresponsibility of the offender with particular regard to the objective of rehabilitation. In terms of mitigating features in this case, I frankly struggle to find any. Thankfully, there was no gratuitous violence used in thecommission of this sexual assault.

However, I do not see that as a mitigating consideration, just the absence of a potential aggravatingfeature and quite obviously any violence beyond the sexual penetration itself was unnecessary as Ms. H. was unconscious. In addition, Ms. H. remained unconscious throughout and only learned what had happened afterwards. So she thankfully was spared theordeal of being conscious while she was being victimized, or awakening to Mr. Bisram sexually violating her. But again, I see this as theabsence of a potential aggravating feature rather than a mitigating factor.

For example, if the victim was to awaken and protest and the offender were to persist, I think this would be fairly treated as anaggravating consideration. The fact that Ms. H. remained unconscious simply does not lessen Mr. Bisram’s culpability. In fact, it couldvery well be the case that knowing that you had been victimized but not being cognizant of the exact circumstances could exacerbate thepsychological and traumatic effects of such an assault in its aftermath. The fact that Mr. Bisram was drunk, in my view, serves as both a mitigating and aggravating feature.

Mitigating because I accept that hisfaculties were impaired by alcohol which I think makes his actions less reprehensible than would be the case if they were the result of asober and more calculating mind. Aggravating, in Mr. Bisram’s case at least, because alcohol seems to have been the catalyst for muchof his past involvement with the criminal justice system and if not addressed, raises concerns about the ongoing threat he may pose topublic safety. In that regard, I believe that rehabilitation remains an important sentencing objective in Mr. Bisram’s case.

Unless and until he comes toterms with his alcoholism and stops drinking, his past pattern suggests he will continue to pose a threat of re-offending. Given this, Ithink it important to keep his alcohol abuse at the forefront as I consider his rehabilitation. Lastly, in terms of general principles I of course recognize and will adhere to the principle found in

section 718.2(

b) of the CriminalCode which provides, “A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similarcircumstances.” In that regard, I have carefully reviewed each of the cases that the parties brought to my attention as part of theirsubmissions. I do not intend to review each in detail in these reasons. As is often the case, the search for the perfectly analogous sentencing precedent is somewhat elusive. Nevertheless, I think there are acouple decisions that are at least close enough to the facts of this case that they warrant some mention. In R. v.

H.(H.), (ON CA), [2002] 158 O.A.C. 272 (C.A.), the Court of Appeal allowed a Crown sentence appealagainst a conditional sentence of two years less a day that had been imposed by the sentencing judge. In that case, H.H. was the 18-year-old victim’s employer. He was found guilty of sexual assault following trial. The facts, in short, were that he managed to get the victimto his home using a pretext where he plied her with alcohol. The young woman eventually lost consciousness. At that point therespondent carried her to his teenage daughter’s bed where he proceeded to have vaginal intercourse with her.

The victim awoke duringthe assault and tried to push him off, telling him to “get off”. She started to cry. He did not stop. The assault continued until therespondent was finished. For this offence, the Court of Appeal concluded that the conditional sentence imposed by the sentencing judge was “manifestly unfit”and indicated that in the circumstances “considering the nature of the crime and the personal circumstances of the offender, a custodial

sentence was clearly called for and in our view a penitentiary term would have been appropriate.” Ibid . at paragraph 5. Despite the fact that the respondent had already finished serving his two-year conditional sentence, the Court of Appeal substituted a sentence of 18 months’ imprisonment. There are of course features of the offence in H.H. that make the crime in that case far more reprehensible than those here. The offender in that case set upon a deliberate course of conduct and did so while exploiting a position of power over the young complainant.

In addition, the offender persisted in the assault even after the complainant awoke and pleaded with him to stop. In these respects, I think the sexual assault in H.H. was worse than the sexual assault here. Nevertheless, there are distinguishing features here with respect to Mr. Bisram. Namely, there is the fact that he was on probation at the time and that the order was just two months old when he committed these offences. Further, there is the fact that Mr.

Bisram has a rather serious criminal record that includes prior acts of violence of increasing seriousness: assault with a weapon followed by aggravated assault and now sexual assault. More analogous, in my view, in terms of both the circumstances of the offence and the offender, is R. v. Laz-Martinez ONCJ 115. In that case following a preliminary inquiry, the accused plead guilty to sexual assault. The accused was an acquaintance of the victim. The accused had previously made advances towards the victim which had been rejected.

On the night of the offence, the victim and the accused had been at a nightclub together. The victim invited a group of friends, along with the accused, back to her residence. The victim became rather drunk and was put to bed by some of her friends. The offender made his way to the victim’s bedroom where he had sex with her while she lay unconscious. One of the victim’s friends went to check on the victim and discovered the accused on top of her. Despite being interrupted, the accused refused to stop and continued the assault until he climaxed. Mr.

Laz-Martinez, who was 32 at the time of sentencing, had only a very minor criminal record for breaching a recognizance. After being charged, Mr. Laz-Martinez took a number of positive steps towards his rehabilitation. He finally acknowledged a drinking problem and significantly reduced his alcohol consumption. He changed his pattern of friendships and his circle of friends and he became involved in a serious romantic relationship. Emphasizing the fact that Mr.

Laz-Martinez was essentially a first offender who had committed a very serious offence involving violence, Justice Cole concluded that denunciation required a sentence of two years in the penitentiary. In my view, there are a number of factors that warrant an even longer sentence in the case of Mr. Bisram. First, Mr. Bisram is being sentenced for both breaching his probation order and for sexual assault. Subject to the principle of totality, I think the breach of probation warrants a consecutive sentence. Second, I note that Mr. Bisram has a prior criminal conviction for breaching a probation order.

So this is his second breach. A fact that warrants a lengthier sentence in my view for purposes of both specific and general deterrence. Third, unlike Mr. Laz-Martinez, Mr. Bisram has a prior criminal record that includes prior acts of violence. Fourth, unlike Mr. Laz-Martinez, Mr. Bisram did not plead guilty and hence an acceptance of responsibility and an expression of remorse do not weigh in his favour in terms of mitigation. Fifth, unlike Mr. Laz-Martinez, Mr. Bisram has only very recently acknowledged his problem with alcohol and has yet to take any proactive steps of his own doing to address it.

I think it is essential to Mr. Bisram’s rehabilitation that he finally come to terms with his alcoholism and do something meaningful about it.

In light of all of these considerations, as well as the principles and objectives of sentencing already noted, I have concluded that the appropriate sentence for the sexual assault is three years’ imprisonment. In addition, I believe that the breach of probation warrants a sentence of three months’ imprisonment consecutive to the sentence for the sexual assault. This represents a total sentence of 39 months’ imprisonment. I turn next to a consideration of the credit to be given to Mr. Bisram for his time spent in pre-trial detention. Mr. Bisram was arrested on the date of his offences, July 23, 2013.

He remained in custody until April 23, 2014 when I granted him bail. This is a period of nine months. Mr. Bisram was again arrested on June 25, 2014 and charged with breaching his recognizance and breaching the terms of his probation order. He remained in custody on those charges until August 18, 2014, when both charges were dismissed. This was a total additional period in custody of 83 days for which he is deserving of credit. Finally, on March 30, 2015, the date I heard submissions with respect to sentencing, the Crown applied for a revocation of Mr. Bisram’s bail. I granted that application.

As a result, he has remained in custody since that day, a period of 38 days. In total, by my calculation then, Mr. Bisram has spent 13 months in pre-trial custody. I am mindful of the fact that in Ontario the conditions in holding centres where pre-trial detainees are held are comparatively harsher than the conditions one finds following the imposition of sentence when an offender is transferred to a correctional facility.

I also recognize that an offender does not earn remission for periods spent in pre-trial detention, whereas remission and parole do ordinarily serve to reduce the amount of time an offender spends in actual custody serving a sentence. Therefore, in accordance with section 719(3.1), as it was interpreted by the Supreme Court of Canada in R. v. Summers, [2014] S.C.C. 26, I am of the view that Mr. Bisram is entitled to enhanced credit for his 13 months of pre-trial detention at the rate of 1.5 to 1. He will therefore receive credit of 19.5 months towards his sentence.

Given my conclusion that the total sentence appropriate for these two offences was one of 39 months’ imprisonment, giving Mr. Bisram’s 19.5 months of credit for his time spent in pre-trial custody, I impose a total sentence today of 19 months and 2 weeks of further imprisonment. I am making a specific recommendation that the sentence be served at the Ontario Correctional Institute so that Mr. Bisram can receive some much needed intensive treatment for his alcoholism. I will mark the warrant of committal to reflect that recommendation. In terms of ancillary orders, Mr. Bisram will be subject to a

section 109 order for the rest of his life, and I am going to read the language of the order to him. Mr. Bisram, for the remainder of your life you will be prohibited from possessing any firearm, restricted firearm, crossbow, restricted weapon, ammunition or explosive substance. In addition, pursuant to

section 487.051(4) a DNA order is mandatory as sexual assault is a primary designated offence. Therefore, I order that a sample of Mr. Bisram’s blood be taken today for inclusion of his DNA in the National DNA Databank. Finally, I order that Mr. Bisram be designated as a person convicted of a designated offence pursuant to

section 490.011(1) (

a) of the Criminal Code for a period of 20 years, and he will therefore be required to comply with the terms of the Sex Offender Information Registration Act for that period. Mr. Bisram, could you please stand up, sir? Do you understand the prohibition order that I have explained to you? You cannot have, for the rest of your life, firearms, crossbows, things of that nature. Do you understand?

JAINARINE BISRAM: Yes, sir. THE COURT: You will abide by that? JAINARINE BISRAM: Yes, sir. THE COURT: Okay. And failure to abide by that is a separate serious criminal offence, do you understand? JAINARINE BISRAM: Yes, sir. THE COURT: All right. I hope you finally get treatment for your alcoholism, sir, and you actually find sobriety for everyone’s benefit. Thank you, counsel, I appreciate your careful and considered submissions and assistance with respect to this lengthy matter. MS. JALALI: Thank you, Your Honour. MS. NORMAN: Thank you. THE COURT: The victim fine surcharge applies.

He will need, I guess, quite awhile to pay it. These are both indictable offences, the Crown proceeded by indictment. So what is it for each offence? Remind me, Madam Clerk, is it.... CLERK REGISTRAR: Oh, it’s — for indictable it’s $200. THE COURT: So it’s $400. I’m going to specify that he have three years to pay it, all right? MS. JALILI: Thank you. THE COURT: Thank you. ...END OF EXCERPT FORM 2 C ertificate of Transcript (Subsection 5(2))

Evidence Act I, Kim Fess , certify that this document is a true and accurate transcript of the recording of R. v. Bisram , in the Ontario Court of Justice held at 7755 Hurontario Street, Brampton, Ontario , taken from Recording No. 3111_302_20150507_125819__30_STRIBOJ.dcr , which has been certified in Form 1. ______________ _______________________________________ (Date) ( Signature of Authorized Person) Kim Fess ACT ID: 4454479014 1 -855-443-2748 kim@vptranscription.com