R v Pryce, 2023 NBPC 10

Citation: R v Pryce , 2023 NBPC10 Docket: 35270601 IN THE PROVINCIAL COURT OF NEW BRUNSWICK JUDICIAL DISTRICT OF MONCTON BETWEEN: HIS MAJESTY THE KING - and – OTHNEIL PRYCE Charge pursuant to

section 271 (

b) of the Criminal Code of Canada Pursuant to Criminal Code s. 486.4 , it is ordered that the identity of the complainant is not to be published. SENTENCING DECISION Before: The Honourable Anne M Richard Date of Hearing: January 18, 2023 Date of Decision: May 23, 2023 Appearances: Sylvie Godin-Blanchard for His Majesty the King A lex Pate for the Accused, Othneil Pryce

Orally I have my decision on sentencing. I am going to deliver my reasons orally, and that will take some time. Mr. Pryce can remain seated. I have cited a few cases, all of which I believe were cited by counsel. I will give the court stenographer the spellings and citations, as well as the spellings of the various names that come up in this case. I will begin by giving an overview of the case and then I will set out some legal principles before I turn to my analysis of the issues related to Mr.

Pryce and finally, I will proceed with the imposition of the appropriate sentence given all the circumstances of this matter. I turn now to the overview. The accused, Othneil Pryce, is 40 years of age. On January 18, 2023, he changed his plea to guilty at the outset of the trial. The charge is sexual assault on D.N. between October 26, 2020, and October 29, 2020, in Moncton, NB. The offence is one by

summary conviction contrary to

section 271 (

b) of the Criminal Code of Canada (« Code »). THE OFFENCE Mr. Pryce and D.N were work colleagues. During the height of the global COVID 19 pandemic, both were employed at a special care home for the elderly. Mr. Pryce was a personal service worker (or PSW) while the victim, D.N. was in the nursing field working in that same facility. This was her first job of her nursing career. She was then a young adult of 19 years old at the relevant time. Both Mr. Pryce and D.N. worked often together, in stressful situations, during long hours because of the pandemic and its effects such as lockdowns.

They often worked extended evening shifts with minimal days off. The offence occurred on the evening of October 27, 2020, while both were working a 7h00pm to 7h00am shift. At around midnight, D.N. was attending to a resident for her medication when Mr. Pryce entered the room asking if she needed help. He then walked up to her from behind and pressed himself against her body placing one hand on her neck and kissing her there while he proceeded to turn to lights off with the other. D.N. started by this protested by saying « no ». Mr. Pryce still then put his hands on D.N. breasts.

She was able to extricate herself from him and ran to turn the lights back on. She pushed him backwards with her elbows since he was hugging her. She then continues to attend to the resident. Later that same shift at approximately 4h30 am in the staff washroom, D.N. was brushing her teeth when Mr. Pryce entered the room locked the door behind him and again turned the lights off. He approached her from behind and groped both her breasts and other parts of her body this time in a more forceful manner than earlier. D.N. was able to remove his hands and unlock the door and run away.

She later reported this sexual assault to her employer and provided a KGB statement to police. MR PRYCE’S PERSONAL CIRCUMSTANCES At the relevant time, Mr. Pryce was 38 years old. It is uncontested that Mr. Pryce who resides habitually in Ontario with his spouse and children relocated to New Brunswick for better employment opportunities. It is not clear however when the relocation occurred and whether it was temporary or permanent. In any event, he was away from his family and friends during the widespread occurrence of COVID 19. Not unlike others, he was working excessive hours.

In addition, he was having trouble sleeping and was not eating properly. He began consuming alcohol in excess daily. He felt lonely and isolated. THE IMPACT OF THIS CRIME ON D.N. Unsurprisingly, the victim has been traumatized by this crime committed against her. As evidenced by her victim impact statement, D.N now suffers from extreme anxiety and lives in fear of being alone with any man. She experiences nightmares and seriously questions her choice of career because of what she has suffered at the workplace. As a result of the offence, she had to a take leave of absence fearing her co-worker.

She eventually resigned from her position since she did not feel safe. She has undergone psychological counselling to deal with the impact of this crime. From a financial point of view, D.N. has suffered loss of income because she had to take time of work and had expenses for therapy related services. POSITION OF THE PARTIES The parties do not agree on the sentence recommendation in the present instance. The Crown seeks a 4-month conditional sentence order ( CSO ) pursuant to s. 742.1 of the Code . Essentially as I understand the Crown’s position, it advances that a fit and proper sentence for Mr.

Pryce should be a sentence of incarceration which is permitted to be served in the community under strict conditions. The risk of re-offending is low. A CSO would not endanger the safety of the community. Such a sentence would be consistent with the purpose and principles of sentencing set out in ss.718 to 718.2 of the Code . Those conditions would be to serve the first 2 months on house arrest with the balance remaining under curfew with a 12-month supervised probation term.

Some of the conditions of the probation suggested are assessments for mental health, addiction and counselling as well as taking, if recommended by probation, the sex offender treatment program. Sexual assault is a designated offence as per

section 490.011(1) of the Code . DNA and SOIRA orders are mandatory in the case of a CSO . The SOIRA order is for a duration of 10 years as set out in

section 490.013(2)(

a) given that Mr. Pryce is a first offender, and the offence was prosecuted summarily.

It must be noted that no jurisprudence was submitted in support of the Crown recommendation. Defense, for its part, argues that Mr. Pryce should rather receive a conditional discharge as is permissible under

section 730 of the Code. To that end, it was stressed that Mr. Pryce has no previous criminal record, has expressed remorse, and regrets the mistake that he made. He pled guilty thus sparing the victim from testifying which are all mitigating factors in sentencing. He was educated at the postsecondary level in Jamaica – obtaining an associate degree in mass communications. Once in Canada, he furthered his education bystudying to be a PSW. Currently, he is studying renewable energy and agriculture. Few details of this were not provided however in thepre-sentence report. Defense counsel emphasized Mr.

Pryce’s continued desire to work in the health-related field with vulnerable clients. Counsel highlightedthe challenges Mr. Pryce faces as a Black man including disadvantages he has suffered caused by racism. On this latter aspect, the Court did not have the benefit of evidence of what is commonly referred to in Nova Scotia as Impact of Raceand Culture Assessments (IRCAs) or in Ontario as an Enhanced Pre-Sentence Report (EPSR). However, in the pre-sentence report, thewriter does discuss anti-black racism that Mr. Pryce has suffered from since he immigrated to Canada from Jamaica. Mr.

Pryce’sbackground and social context are set out at page 3 of the pre-sentence report. The narrative appears to be connected to his lifeexperience. This information can be relevant (see R v Orestil, 2022 ONCJ 135). The pertinent passages of the PSR are worthreproducing here: Mr. Pryce immigrated to Canada in 2014 with his current partner, … and their two children and holds Canadian citizenship. …. Mr.Pryce spoke of his transition to Canada being challenging at times. First, he describes it as a step backwards economically, withstruggles in securing housing and employment upon arrival.

Canadian culture was very different from what he had previouslyknown. Racism was a different experience for him. Mr. Pryce relayed stories of being followed at Walmart. After a similar incidentat Shopper’s Drug Mart, Mr. Pryce contacted the store to complain, only to be offered a coupon as compensation. Mr. Pryceindicated his experiences with racism in Canada have sometimes been overt, while other times it is more subtle, but nonetheless, ithas had an impact on him and his family. I will speak to that argument further in my decision.

LEGAL PRINCIPLES Courts have reiterated on numerous occasions the guiding principles and purposes of sentencing along with the factors to be considered. They are set out in sections 718, 718.1 and 718.2 of the Code (see R v Pond, 2020 NBCA 54 at paras. 31-33). Those principles considerdenunciation, deterrence and safety of the victim and the community along with rehabilitation and restorative objectives. With respect to CSOs, the leading case of R v Proulx 2000 SCC 5 , [2000] 1 SCR 61 reiterates that their purpose is to reduce thereliance on incarceration as a sanction and focus more on restorative justice goals.

And more recently, in R v Sharma 2022 SCC 39 atparagraph 9 per Brown and Rowe JJ: the restorative objectives of rehabilitation, reparations to the victim and the community, and promotion of a sense of responsibility inthe offender and acknowledgment of the harm done to the victim and the community. Proulx reminds us that CSOs displaces the presumption of incarceration. I pause to mention that the Supreme Court of Canada in acompanion case to Proulx being R v R.A.R 2000 SCC 8 , [2000] 1 SCR 163 also dealt with a sexual assault conviction and twofor common assault committed at the workplace.

While in R.A.R, the employer was the accused and an employee in her early twentiesthe victim, L’Heureux-Dube, J. and five other judges allowed the appeal restoring a one-year term of imprisonment initially ordered bythe trial judge prior to legislative amendments allowing CSOs to be available. In dissent however, Lamer, C.J.C. would have maintainedthe nine-month CSO although he remarked that a lengthier conditional sentence would have been preferable. I am alerted to the fact thatthere is a breach of trust component that underscores the R.A.R. case that is not present in the matter before me.

As previously mentioned, Defense contends that a fit and proper sentence for Mr. Pryce is a conditional discharge. Reliance on the two-prong test set out in the seminal case of R v Fallofield, (1973), (BC CA), 13 CCC (2d) 450 from the British ColumbiaCourt of Appeal was advanced. Various cases were cited were such a disposition was ordered in factual situations like the type of sexual assault involved here. I havereviewed all those cases.

They are: • R v B.L., 2011 BCPC 254 • R v Burton, 2012 ONSC 5920 • R v Henry, 2019 ONSC 4978 • R v Berseth, 2019 ONSC 888 The second element to determine is whether it is not contrary to the public interest as dictated by section 730(1) of the Code. It is worth nothing that the Fallofield case was discussed in the context of the offense of sexual assault by the New Brunswick Court ofAppeal in R v Peterson 2012 NBCA 67. There are some similarities to the present case where both the accused and victim were workcolleagues. The accused was a youthful 22-year-old first offender and the victim a teenager.

While the nature of the sexual assault

differs in that case from the present crime as it pertained to consent, Justice B. Green for the majority cautioned at paragraph 19 the following regarding conditional discharges: Given the facts of this case, a conditional discharge was not a reasonable or fit sentence. There is little in the way of denunciation and general deterrence to be found in such a sentence. That said, I do not foreclose the possibility that such a disposition is available in cases of sexual assault involving a victim who is under 16 years of age, but I will state categorically that such instances will be rare, and entirely fact specific . Paragraph 718.2 (

b) of the Code provides that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances ’’. This is known as the parity principle of sentencing. I am satisfied that it is clearly in the interest of Mr. Pryce to be given a conditional discharge if his intention is to remain employed in a health-related context thus avoiding a SOIRA order which could have the effect of restricting his ability to be employed in that area (see G. v. Ontario (Attorney General) 2019 ONCA 264 ).

However, that does not put an end to the analysis that is required in this case. Some of the caselaw cited by defense predates R v Friesen, 2020 SCC 9 which reviewed the link between parity and the sentencing principle of proportionality. In that recent judgment, the SCC remarks that an upward departure from prior precedents sentencing ranges for sexual offences – especially those involving children - may be required to achieve the legislative intent of the sentencing regime set out in sections 718 , 718.1 and 718.2 of the Code .

In R v Houle , 2023 QCCA 99 , the Quebec Court of Appeal recently reversed the sentencing judge disposition of a conditional discharge for a sexual assault and substituted it for a term of incarceration of 12 months. That Court concluded that without neglecting the accused’s rehabilitation potential (he was an engineer with important career prospects and a first offender), the sentence must denounce his unlawful conduct and the harm done to the victim. Finally, defence counsel invites the Court to consider the evidence of the existence and effect of anti-Black racism on Mr.

Pryce, his community, and the impact of that racism on his personal circumstances and life choices. As was stated at paragraph 111 of R v Anderson , 2021 NSCA 62 , a sentencing decision of an African Nova Scotian charged with a firearm offence, Like racial prejudice, acknowledged by the Supreme Court of Canada in R. v.

Spence as “notorious and indisputable”, the existence of anti-Black racism can be admitted on the basis of judicial notice without the need for evidence In R v Morris , 2021 ONCA 680 , the Ontario Court of Appeal recently noted at paragraph 1 that: It is beyond doubt that anti-Black racism, including both overt and systemic anti-Black racism, has been, and continues to be, a reality in Canadian society... most notably [in] the criminal justice system. It is equally clear that anti-Black racism can have a profound and insidious impact on those who must endure it on a daily basis.

I take judicial notice of the fact that anti-Black racism exists here, as it does throughout Canada. Both the Morris and Anderson cases affirm that evidence of anti-Black racism is relevant to the offender's moral blameworthiness. Paragraphs 96 and 97 of Morris are determinative of that point. [T]he concept of causation, as it is used in the substantive criminal law, plays no role when considering the impact of an offender’s background or circumstances on sentencing.

There must, however, be some connection between the overt and systemic racism identified in the community and the circumstances or events that are said to explain or mitigate the criminal conduct in issue. […] Absent some connection, mitigation of sentence based simply on the existence of overt or institutional racism in the community becomes a discount based on the offender’s colour. Everyone agrees there can be no such discount. See also the recent appellate decision from the British Columbia Court of Appeal in R. v.

Ellis , 2022 BCCA 278 The pre-sentence report speaks of employment conditions, social isolation and loneliness from family and friends, excessive alcohol consumption all because of the unusual context caused by the global COVID 19 pandemic. In reviewing all of what is before the Court including the pre-sentence report, I cannot conclude that there is evidence before me that allows me to conclude that the anti-Black racism suffered by Mr. Pryce was connected to the sexual assault or that it played a role in the offence. Furthermore,

section 718.2(iii.2) of the Code sets as a n aggravating factor evidence that the offence was committed against a person who, in the performance of their duties and functions, was providing health services, including personal care services. Given all the circumstances of this case and the legal principles that I must apply including Mr. Pryce’s morale blameworthiness and the mitigating and aggravating factors I have already addressed in these reasons, I determine that a conditional discharge pursuant to

section 730 of the Code would be contrary to the public interest. To be clear, Mr. Pryce assaulted D.N. for his sexual pleasure, against her will, without her consent. The victim was able to free herself from his constraints. She has suffered significant psychological and emotional harm.

As stated by Justice Major in R. v. Ewanchuk, (SCC), [1999] 1 S.C.R. 330 at paragraph 28 “Having control over whotouches one’s body, and how, lies at the core of human dignity and autonomy”. This is certainly a basic right to expect for any womanincluding when she is at work. She should not dread having to go to work because she might get assaulted. I conclude that a 4-month CSO is the fit and appropriate sentence to be imposed as was recommended by the Crown. Mr. Pryce you aretherefore sentenced to 2 months house arrest followed by 2 months to abide by a curfew requiring that you reside at [ ] London,Ontario.

A 12-month supervised probation term with the following conditions is ordered with the compulsory conditions which are: • Keep the peace and be of good behavior • Appear before the Court when required to do so by the Court • Notify your supervisor 48 hours in advance of any change in your name, address, employment or occupation • Report to your probation supervisor immediately and afterwards, as required and in the manner directed by your supervisor In addition, the following conditions are also ordered: • Remain, within the jurisdiction of the court unless written permission to outside the jurisdiction is obtained from the Court or yoursupervisor • To reside at [ ] Or at an address approved by your supervisor and remain in your place of residence at all times (24 hours a day)for the first 2 months and for the remaining 2 months, to obey a curfew and remain in your place of residence between the hours of9h00pm and 6h00am, except for the purpose of:

i) Travel to a place of employment by the shortest available route, to remain there during usual working hours and to return toyour place of residence by the shortest available route; ii) Attend medical or dental services for yourself or your children; iii) Attend meetings with your Supervisor; iv) Attend any treatment or counselling program approved by your Supervisor;

v) Attend to other personal matters between the hours of [ ] and [ ], each [ ] or such other weekly four-hour period as may beallowed by your Supervisor. • Prove compliance with the house arrest and curfew conditions by answering the telephone or presenting yourself at the entrance ofyour residence should any authorized person call you or attend your residence to check on your compliance. • Take and complete the Sex Offender Treatment Program, if deemed necessary after assessment, and as directed by your Supervisor • To have no contact, directly or indirectly with D.N. or got to her residence of place of employment • Abstain from owing, possessing, or carrying a firearm or imitation of a firearm, crossbow, prohibited and restricted weapon,prohibited device, ammunition and explosive substance • Attend and complete all treatment and / or counselling programs recommended and approved by your Supervisor • Attend at Addiction Services to undergo assessment for alcohol, drug and / or gambling and follow treatment as directed by yourSupervisor • Abstain from the consumption and / or possession of non-prescribed drugs, alcohol, cannabis or any other intoxicating substances • To attend at Mental Health to undergo assessment and complete recommended therapy In terms of ancillary orders, the mandatory SOIRA for a period of 10 years and DNA order will issue.

The victim fine surcharge willalso issue and should be paid no later than May 23, 2024, at 9h30. This is the sentence of the Court.

A. M. Richard, P.C.J.