R. v. Zacarov, 2011 ONCJ 25

Citation: R. v. Zacarov , 2011 ONCJ 25 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — Nicholas Zacarov Before Justice D.M. Nicholas Reasons for Judgment released on January 20, 2011 J. L’Oignon .............................................................................. for the Crown R. Conway .................................................................. for the accused Zacarov Nicholas [ 1 ] Nicholas Zacarov, age 29, was convicted of sexual assault after trial. Defence ran a defence of “prank” which was rejected.

The complainant is a government employee working in policy and international relations. She attended Babylon, a bar and concert hall, with a few colleagues to hear a brass band. She had one drink. At some point she and her two friends went out and stood at the front of the establishment. There was an intoxicated man attempting to engage her in conversation, she was ignoring him. It turns out this was a drinking companion of Zacarov. As she stood facing her friends, Zacarov came up behind her, slipped his hands up the back of her wool coat which was open to the hip.

She felt something pressing against her back including her bum and then his hands grabbed and squeezed her breasts. She describes a firm pressure applied to each breast for six or seven seconds. She was stunned. One of her colleagues removed the hands and ran after Zacarov when he took off. The complainant describes herself as being in shock. There is no doubt, based on the Crown witnesses, that Zacarov and his friends were intoxicated. The manager had noticed them outside before this incident even occurred.

This assault occurred on Bank, which is a main street that runs through downtown Ottawa. [ 2 ]Counsel have different views of what an appropriate sentence would be in this case. Defence counsel suggests a conditional discharge, in large part to avoid the SOIRA determination, and Crown seeks a short period of custody. It is clear that alcohol has played a role in Zacarov’s previous involvement with the criminal system.

He was convicted in 2002 of failing or refusing to provide a breath sample, and in 2007 of impaired driving, taking a vehicle without the owner’s consent, dangerous operation of a motor vehicle and breach of undertaking. He received a 30 day intermittent sentence for that second set of offences. This would appear to be the third time that his abuse of alcohol has resulted in convictions. [ 3 ] Zacarov is Russian born. His parents were problem drinkers and his father was abusive. His sister passed away last year, at age 27, of cirrhosis of the liver, as well as an eating dissorder..

Zacarov lives with his mother who requires assistance. There is obviously a strong family history of alcoholism. Zacarov has now started attending AA meetings at a Russian language group. A friend describes him as a stand up guy but adds that ““when he drinks he does stupid shit”. Other friends commented that “he needs to make better choices”. The defence theory was along those lines. Of course whether he and his buddies thought, in their drunken state, that this was funny is not the point. This complainant, in the company of colleagues, was attending a musical performance.

When they stepped outside for one of them to smoke, her physical integrity was compromised in a public way by a few drunks who thought it was funny. It was not. This is

an act of sexual assault pure and simple. Zacarov has expressed remorse. He regrets hurting her feelings and that she had to be part of his “drunken, crazy state”. According to the Pre Sentence report, “alcohol has clearly been a continuing problem for him”. His 2007 driving convictions resulted in about $35,000.00 in damages to parked cars. [ 4 ]The Pre- Sentence Report confirms a history of employment which has been verified. Presently he works as a door installer. He fears that a custodial sentence will cause him to lose his employment. He has not notified his mother or girlfriend of these offences.

This is worrisome, as it does not indicate to me a commitment to facing up to and dealing with his alcoholism. The complainant in this matter has chosen not to submit a Victim Impact Statement. A previous pre-sentence report, prepared in 2007, raised the same concerns that I have now. Zacarov admitted even then that his drinking was extreme. In that report, the author concluded that “continued use of alcohol would put the subject at risk of re-offending in the future”. This conviction is proof of that. [ 5 ]His previous response to probation was good and he did complete addictions educational sessions.

However he declined the assistance of a staff psychologist. Probation concludes that all of his offending behaviour is influenced by alcohol, and that he would benefit from therapy for his emotional struggles. He is deemed to be a suitable candidate for supervision.

[ 6 ] A Sexual Behaviours Assessment was completed. Dr. Federoff notes that Zacarov “denies ever part of the alleged offence, while admitting he does not recall anything from the time in question”. This differs from the statement made to the probation officer. Zacarov advised that he no longer drinks and admitted that others have been very concerned about his drinking. Dr. Federoff concluded that his knowledge of general sexual information is above average and his sex drive is above average. His attitudes “to sexual behaviours are less liberal than the men against which the test is standardized”.

His scores on the Buss-Perry Aggressions Questionnaire reveal that, his problems are not related to aggression. His scores on the MAST test, which screens for drug and alcohol abuse, are high and compatible with his alcoholism. His score on the Paulhus deception test indicates that he tends to present himself in a favourable light but less so when it comes to “admitting his personal shortcomings”. The Phallometric testing was conducted on him while sober and also after having consumed alcohol.

The difference in arousal patterns was of interest “as alcohol was a significant factor for him during the commission of the index offence”. With respect to the Risk Assessment, known as 99R, he fell into the high risk category. The test shows that his primary interest is in legal heterosexual consenting adult sex. He is diagnosed with Axis 1 alcoholism, and Axiss11 narcissistic traits. The report concludes that his risk is related primarily to his use of alcohol.

Participation in the Sexual Behaviour Clinic was not deemed to be required. [ 7 ] Defence submissions focused mainly on the consequences of a conviction being registered in this matter, namely having his name placed on the Sex Offender registry if he is not granted a discharge. Defence argued that the Crown has proceeded summarily, that there is some evidence of remorse and the fact that the act lasted less than 10 seconds. Crown suggests that short sharp jail is required, and that the range is between a suspended sentence and jail. I agree.

Zacarov already has a criminal record; he is no stranger to the fact that alcohol was a factor in his previous convictions. He has failed to adequately address that problem and his risk testing scores place him at a high risk to re-offend when he has consumed alcohol. Crown describes him as spiralling out of control in recent years due to his alcoholism. Crown argues that the nature of this offence, a public groping of a woman’s breasts while drunk, requires a sentence focused on deterrence. I agree.

She concedes, however, that he has coped throughout his life with a number of painful family issues such as the alcoholism of his parents, the death of his sister and his difficult relationship with his father. Crown’s concern is that when his life stressors are mixed in with his alcoholism he is at great risk of re-offending. [ 8 ] I have concluded that a period of custody is required to denounce his conduct, in degrading this woman in public in front of her friends, and also to specifically deter him from committing further alcohol related offences. Defence has provided me with two cases namely R. v.

J.J. [2004] O.J. No. 3137 , and R. v. Troutlake 56 W.C.B. (2d) 100 . In the first case, the reasoning appears to have been that Christopher’s Law was meant to protect society from sexual predators, and because that accused was deemed not to be a sexual predator, such an order was not necessary (par. 8 p.2). A conditional discharge was granted so that he would not have a criminal record and would be spared the mandatory imposition of Christopher’s Law. The Troutlake decision also involved a s. 271 offence for which a discharge was granted.

The trial judge stated that Christopher’s Law was not “punitive legislation” and this should be considered in determining whether or not to permit a discharge for that s. 271 offence. In Troutlake it was agreed between the parties that deterrence for that accused was not “an overwhelming consideration which could not be properly addressed” by a probation order. The Court then addressed the “repercussions” of Christopher’s Law, namely having to register as a Sex Offender.

The Court pondered whether “for two minor sexual assaults” the accused should be “caught up by Christopher’s Law” and wondered whether the consequences of making that order might exceed what the public would expect for the acts committed (par. 22). [ 9 ] I have concluded that a conditional discharge is not appropriate in this case. I am persuaded by Crown counsel that to impose that sentence as a method of avoiding the mandatory provisions of Christopher’s Law would be to engage in prohibited reasoning.

The sentence to be imposed should relate to the offence and the aggravating and mitigating factors, and not the repercussions of a Christopher’s Law order. Parliament has taken that discretion away from judges and has clearly stated that every offender who is a resident of Ontario and has been convicted of a sexual offence shall be subjected to the provisions of that law. [ 10 ] Zacarov has a record related to alcohol abuse, he sexual assaulted this complainant in public while drunk, and whether it was a prank to him or his friends matters not one iota.

The complainant‘s physical integrity was compromised and she immediately wanted police called. She was sexually assaulted in public by a stranger. The appropriate sentence, given the absence of any significant mitigating factors, and the alcohol related record, will be one of 30 days which will be served intermittently given his well documented work record. I will impose a weapons prohibition pursuant to s. 110 for a period of 3 years. I order Zacarov to furnish a sample of his blood for analysis and inclusion in the DNA data bank. The sentence will be followed by an 18 month period of probation.

Given the prison sentence imposed, I do make the Christopher’s Law order pursuant to

section 3 of that statute. I decline to make the SOIRA order, given the conclusions drawn by both the Probation Office and Dr. Federoff, to the effect that the risk of re-offending is totally related to his alcoholism. This will be addressed in the probation conditions which will include a ban on consumption, as well as a recommendation for treatment. Dr. Federoff concluded that this accused did not require any sexual behaviour treatment or counselling.

Those findings impact my decision not to make the order pursuant to s. 490.012 (4) as the restrictions on his privacy and liberty, in this case, would be grossly disproportionate to the public interest in protecting society. Dated at Ottawa this January 20, 2011 Signed: “Justice D. M. Nicholas”