R. v. Hales, 2013 ONCJ 343

WARNING The court hearing this matter directs that the following notice should be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs ( a )(

i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order. . . . 486.6 Offence. —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. Information No. 12-295 Citation: R. v. Hales , 2013 ONCJ 343 ONTARIO COURT OF JUSTICE (at Cayuga, Ontario) B E T W E E N: HER MAJESTY THE QUEEN - and - BRADLEY HALES

Mr. G. J. Smith and Mr. D. King for the Crown Mr. J. Venn for Bradley Hales Reasons for Sentence An order has been made under s. 486.4 directing that any information that could identify the complainant, Y.C., shall not be published in any document or broadcast or transmitted in any way.

NADEL, J.: Introduction [ 1 ] On March 6, 2013, Bradley Hales pleaded guilty, by indictment to: • sexually interfering with Y.C. between October 28, 2010 and March 1, 2012, (by engaging in sexual intercourse with her;) • assaulting Y.C. on June 15, 2012; • assaulting T.S., Y.C.’s new boyfriend, on June 15, 2012; and, • threatening to kill T.S. by shooting him on June 15, 2012. Mr. G. J. Smith appeared for the Crown on these guilty pleas and read in the following facts. The Facts [ 2 ] On June 15, 2017, T.S. was 17 years old.

He was assaulted by Hales at the Hagersville Auction Centre, which T.S. attended with his 15-year-old girlfriend, Y.C.. The couple were dealing with an auction centre employee when Hales, who was 23 years of age on that date, confronted them in the presence of other members of the public. Hales had been in a relationship with Y.C. which had ended earlier in June. [ 3 ] Fearful of Hales’ temper, Y.C. identified T.S. as her cousin but Hales doubted her and suspected that T.S. was her new boyfriend.

Hales threatened to beat up her “cousin” unless she told him the truth and emphasized his threat by telling her that he had pepper spray close to hand. Hales made good on this threat by “sucker-punching” T.S. in the face and chasing him away from the auction centre. Hales also threatened to shoot T.S. with a 9 mm handgun and told him he was a “dead man”. T.S. suffered some redness from the punch but he did not require any medical attention. [ 4 ] An employee of the auction centre told Hales to leave and he did so but not before spitting in Y.C.’s face.

Seeing that, a member of the public also told Hales to leave and he then did. [ 5 ] Hales had dated Y.C. from late September of 2010 to early June of 2012. During that period Hales was between 20 and 22 years of age while Y.C. was between 13 and 15 years old. However, they did not begin to engage in sexual intercourse until Y.C. turned 14 on October 28, 2010. [ 6 ] Y.C. was unable to tell the police the number of times that they engaged in sexual intercourse. Their final act of sexual intercourse took place in March of 2012. During the recitation of the facts entered on this guilty plea Mr.

Smith advised that the acts of sexual intercourse only occurred at Hales’ home in Hamilton and described the frequency of these acts of intercourse as having occurred “on occasion”.

No further or other information about the frequency or nature of their acts of intimacy, other than kissing, was provided. [ 7 ] Later on in the day on June 15, 2012, before he was arrested, Hales sent several sexually explicit text messages to Y.C. in which he said, among other things, that Y.C. was a virgin when they had first had sex and that she would soon learn that only he and not her new boyfriend could provide her sexual pleasure and that she would come back to him upon making that discovery. [ 8 ] Mr. Venn stressed that these acts of sexual interference were consensual.

Moreover, as he put it, a little knowledge can be a dangerous thing because Hales waited until Y.C. had turned 14 before they began to engage in sexual intercourse. Mr. Venn further noted that the relationship, including the sexual relationship, was known about and tacitly approved of by Y.C.’s mother. Mr. Venn submitted that when the police interviewed the mother she made it clear that she knew of the relationship and had not intervened in it. By way of anticipation, the defence urged that these are significant facts that ought to mitigate the penalty for the s. 151 offence.

[9] I ordered a pre-sentence report and Mr. King appeared for the Crown on the return date. The Prior Record [10] Mr. Hales’ prior criminal record consists of only one conviction for the offence of assault with a weapon, which was imposed inHamilton on September 10, 2009. He received a suspended sentence and was placed on probation for two years. In addition, a 10-years. 110 order was also imposed. Mr. Venn advised that this conviction arose out of a bar fight. The PSR and Reference Letters [11] Hales was born on September 28, 1988 and is currently 24.

Although his parents divorced early in his life so that he was raisedby his mother and maternal grandparents, his life was otherwise normal and comfortable. He described himself to the pre-sentencereporter as disobedient and lazy in school and his mother reported that he experienced difficulties with attention and irritability so that hewas subject to outbursts and had difficulty managing his moods and interacting with others.

He was prescribed medication for attentiondeficits but he disliked it and discontinued using it. [12] Hales described himself as immature in the pre-sentence report and acknowledged that he did not advert to or, in any event, didnot focus upon and largely ignored the age differences that made his relationship a crime. Rather, he reported his “assumption” that theywould eventually marry.

Inconsistently, in my view, he also told the pre-sentence reporter that he did consider Y.C.’s age when theybecame sexually intimate but that he rationalized his behaviour by convincing himself that his actions were acceptable if they stayedtogether. His mother believes that he matured more slowly than others and that he tended to “identify” (sic) with younger friends. [13] Hales has a grade 11 education and a further large number of credits towards a secondary school diploma obtained through adulteducation.

He is currently employed as a “line cook” for a health food company and hopes to commence a chef’s training programmewhen he is able to. [14] Hales successfully completed the earlier period of probation imposed upon him, including taking an anger management course,as well as taking other counselling for emotional issues that his family physician had arranged for him. His current employmentsupervisor, a family friend and his mother provided reference letters in support of him. The Crown’s Submissions [15] Relying upon the sentencing decision of Hill J. in R. v. D.E., [2010] O.J.

No. 5489 (S.C.J.), (where Justice Hill imposed asentence of 12 months’ imprisonment,) Mr. King submitted that an appropriate range of sentence for these crimes would be a sentencetotalling six to nine months imprisonment together with probation and other ancillary orders. D.E. was a sentence imposed after a trial inwhich a then 33-year-old accused had been found guilty of the non-violent sexual exploitation of his 14-year-old cousin, contrary to s.153(1)(a). Mr. King acknowledged that the sexual circumstances of that case were more aggravating than those involving Mr. Hales.

The accused in D.E. was much older than Hales and there was a breach of trust component that is not present here. As a result he urgedthe more modest total sentence range of six to nine months’ incarceration for the offences under consideration in this case. The Defence’s Submissions [16] Mr. Venn submitted that the analysis of the Ontario Court of Appeal in R. v. Belanger (1979), (ON CA), 46C.C.C. (2d) 266 should be applied to Mr. Hales.

Belanger was a 17-year-old who, apparently, pleaded guilty to having carnal knowledgeof a girl of 12 who became pregnant as a result of one of the three acts of intercourse that they had engaged in. He appealed the three-year penitentiary sentence that was imposed upon him.

Belanger had no prior criminal record and a positive pre-sentence report in whichhe was described by the reporter, inter alia, as an immature, naïve and a somewhat credulous youth. [17] The Court of Appeal approved of the observation that there is a wide spectrum of guilt covered by the offence: “At one end of that spectrum is the youth … maybe 16, 17 or 18, who has had what started off as a virtuous friendship with a girl underthe age of 16. That virtuous friendship has ended with their having sexual intercourse with one another.

At the other end of the spectrumis the man in a supervisory capacity … who set out deliberately to seduce a girl under the age of 16 who is in his charge.” [18] The Court found Belanger’s crime to be at the low end of the spectrum and felt the trial judge ought to have suspendedBelanger’s sentence and placed him on probation. In the result Belanger had his sentence reduced to time served and probation. Mr.Venn urges that a similar analysis be applied to Hales. [19] Mr. Venn submitted that Hales’ culpability fell at the lowest end of the spectrum and that Hales was more like an immature teenthan a predator.

This must clearly be the case, he submitted, when one considers that Hales’ mother thought he was immature for his ageand that Y.C.’s mother did not apparently object to his relationship with her daughter. Mr. Venn says it is reasonable to infer that Y.C.’smother did not object because Hales was immature and so the actual age gap was not significant; i.e., his immaturity matched hermaturity.

In any event, he should not be characterized as a predator as he contemplated marrying Y.C. when he thought about thedifference in their ages. [20] In addition, the defence contends Hales is maturing, has taken positive steps to become successful, and done all that he should bymaking reasonable plans to solidify the steps he has taken to date. Mr. Venn submits that a substantial period of incarceration will undoall of that and leave him upon release with no reasonable prospects of rehabilitation.

Taking all of that into account, together with the factthat this will be his first period of incarceration, that his prior record is essentially unrelated and the product of a “bar fight” and that theCrown filed no victim impact statement, the defence submitted that the appropriate sentence in totality ought to be the minimumallowable by law; namely, 45 days plus probation.

Ancillary Orders Made To Date [21] At the conclusion of the sentencing submissions I made two orders; viz a DNA order as sexual interference is a primarydesignated offence and a s. 109 order with respect to the death threat and assault counts as the Crown proceeded by indictmentthroughout. At the conclusion of these reasons I shall make the required S.O.I.R.A. order for 20 years and add a period of probation thatwill provide a safety circle for the victims and assist Mr. Hales with counselling for, inter alia, his anger management issues.

Reasons for Sentence [22] In my view the two main mitigating features on these facts are, first, that Mr. Hales pleaded guilty and, second, that having notyet turned 25 he has good prospects for rehabilitation as his prior record is limited and he has good family and social supports as well asreasonable prospects for a productive and contributing future. Moreover, as I noted in my colloquy with counsel during their sentencingsubmissions, the Crown’s submission is, in my view, a very modest one.

While it is not binding on me, it is a factor that I must take intoconsideration. [23] The aggravating features of these crimes include the fact that the offender, in committing the offence, abused a person under theage of 18 years, which is statutorily aggravating by virtue of s. 718.2(a)(ii.1). Second, Mr. Hales has a prior record for assault. [24] In R. v. P.M., (ON CA), [2002] O.J. No. 644 (C.A.) Feldman J.A. observed: “Young women entering their teenage years face a myriad of confusing feelings regarding their bodies, their emotions, and theirsexuality.

It is difficult enough to deal with these issues with a judgmental and often cruel peer group. To exploit a young teenager asthis man did reveals a level of amorality that is of great concern.” [25] This inappropriate relationship persisted from October 28, 2010 through and to some point in March of 2012, a period somewhatin excess of 16 months. It is clear that Mr. Hales adverted to the inappropriateness of this relationship but chose to rationalize or ignoreits inappropriateness. [26] Mr. Hales is not a first offender and while still relatively young he is not a youthful offender.

Having been rejected by thecomplainant he reacted with violent jealousy when he encountered her with her new boyfriend. Worse, the presence of other members ofthe public was insufficient to cause him to maintain control over his anger and his behaviour. Moreover, I disagree with the defencesubmission that the failure of Y.C.’s mother to intervene and protect her daughter is a mitigating circumstance. I do not accept that theappropriate “inference” to draw from that failure is that it was the product of a reasoned assessment that Hales was immature and thedaughter was precociously mature.

Such a conclusion is merely a speculation, at best, given the facts read in on these guilty pleas.Further, I am of the view that a prior record for assault with a weapon is an aggravating feature given the two further assaults and deaththreat that Hales committed. [27] On the other hand, the Crown or the police have had more than a year to obtain a victim impact statement should Y.C. havewished to provide one but none was produced.

Additionally, the facts are bereft of the identification of any other acts of sexualinterference committed by Hales with Y.C., other than kissing, and the frequency of the acts of sexual intercourse have not beenidentified with any precision whatsoever, (other than it happened more than once starting when Y.C. turned 14 and ending in at thebeginning of March of 2012.) Finally, while Mr.

Smith submitted that Y.C. did not know what the word “intercourse” meant when shewas interviewed by the police and that, as a result, I ought to infer that she was particularly vulnerable, I reject drawing that inferencebased solely on a lack of breadth to her vocabulary. I invited the Crown to support its submission that Y.C. was particularly vulnerablewith further evidence but none was produced. That said, I can clearly take notice of the usual level of maturity of a young teen-agedfemale. Indeed, as noted above, Madam Justice Feldman of our Court of Appeal has made that point.

The same point is made in someof the cases reviewed later in these reasons. [28] In my view the major principles that propel this sentence are the principles of denunciation and general deterrence, moderated byMr. Hales’ prospects for rehabilitation and the very modest position taken by the Crown. While it ought to go without saying so, out ofan abundance of caution I charge myself that any sentences must be proportionate to the gravity of the offences and the degree ofresponsibility of the offender.

Likewise, I note that the principle of restraint in the imposition of incarceration must be honoured andimplemented in sentencing. Related Case Law [29] In R. v. Amuta, [2006] O.J. No. 809 (C.A.) the Court dismissed Amuta’s appeal of his sentence of two years less a day imposedfor abusing his position of trust, as a child protection worker, by having intercourse with a CAS ward who was 16 at the time.

In R. v.R.D., an unreported decision of Coroza J., (Niagara Region 2111–998–10–S1311) the 48-year-old offender who had a lengthy priorrecord of over 60 convictions took advantage of an emotionally vulnerable 14-year-old girl and engaged in three acts of intercourse withher. Coroza J. sentenced that offender to the equivalent of 30 months (including 1:1 credit for his pre-sentence custody.) In R. v.Dragos, 2012 ONCA 538 , [2012] O.J. No. 3790 (C.A.) a total sentence of 23 months’ imprisonment, including a componentfor sexual interference, was upheld by the Court.

Dragos was 24 but claimed to be 18 while talking to the victim in an on-line chatroom. She was 13 but said she was 14. They eventually met at a hotel and engaged in sexual acts other than intercourse before beinginterrupted by the police. Despite living under strict bail conditions for almost four years the 23 month total sentence was upheld, with18 months being ascribed to an internet luring offence. [30] In R. v. Cerda, [2008] O.J.

No. 2151 (C.A.) the Court allowed the Crown’s appeal of an 18-month conditional sentence, followedby probation, imposed after a trial that proved Cerda had groomed three young boys between 10 and 12 years of age. He had them fellatehim and he them. The events occurred over a period of one to one-and-a-half years. Cerda was 18 and 19 at the time of the offences and23 at the time of the trial.

While the Court accepted that it was open to the trial judge to consider a sentence of less than two years, itheld that a conditional sentence was unfit and given the time that Cerda had already spent subject to a conditional sentence varied the

custodial portion of the sentence to imprisonment for 14 months. [31] In R. v. S.L., 2013 ONCA 176 , [2013] O.J. No. 1311 (C.A.) after an eight-day jury trial the accused was convicted ofsexual interference and acquitted of sexual assault and invitation to sexual touching. The 15-year-old complainant said, inter alia, thatthe accused had intercourse with her without her explicit consent. The accused was 33 and a friend of the victim’s mother. He appealedthe verdict in light of the other acquittals.

The sentence is relevant although somewhat opaque given that the accused’s prior record isnot disclosed in the report. He received three years in jail in addition to a credit for 10 months of pre-sentence custody. [32] Much more to the point are some precedents from Alberta, which are useful and instructive, despite that Province’s use of astarting point paradigm and a “major” sexual assault classification approach to sentencing. In R. v. Sam, [2012] A.J. No. 1168 (Alta.Prov. Ct.) an 18-year-old male met and ultimately engaged in some fondling and one act of sexual intercourse with a 13-year-old girl.

Hewas charged with sexual assault. He pleaded guilty and had no prior record. The Crown sought an upper reformatory sentence and thedefence urged no more than six months. LeGrandeur J., exercising the principle of restraint and noting the principles that apply to a firstperiod of immediate incarceration, imposed a sentence, inter alia, of five months. [33] In R. v. B.B., [2011] A.J. No. 1129 (Alta. Prov. Ct.) the accused was 22 and the complainant 15. They had engaged in intimatesexual relations including five acts of sexual intercourse over a span of a few days. As here, the Crown proceeded by indictment.

Thedefence had sought the minimum mandatory sentence of 45 days and the Crown sought no less than 42 months’ imprisonment. Krinke J.noted that the complainant was a willing participant and her de facto consent was a factor in determining the gravity of the offence aswas the respective maturity levels of both actors. There was no evidence of the impact of the events on the complainant but Krinke J.found some psychological and emotional trauma could be inferred. Unlike Hales, this accused had no prior record but like Hales he wasgainfully employed.

Krinke J. suggested that the appropriate sentence range was 45 days to 18 months’ imprisonment. He imposed asentence of six months’ imprisonment together with probation and a S.O.I.R.A. order. [34] The Crown appealed this sentence and in R. v. Bjornson, 2012 ABCA 230 , [2012] A.J. No. 781 (C.A.) the Court by amajority two to one decision allowed the Crown’s appeal and increased the sentence from six months to 17 months.

Given the trial andappeal records the Court ruled that it was not in a position to determine whether the behaviour at issue amounted to a “major sexualassault” but was able to finesse the issue and deal with the sentence appeal on its merits, notwithstanding. [35] The majority ruled that Krinke J. failed to follow R. v. Feng, 2011 ABCA 172 and that the victim’s factual consent was not amitigating factor as he was an adult of 22 and he knew his victim was only 15.

As the adult, he had the responsibility to ensure that hisactions did not cross the line from legal friendship into illegal sexual intercourse no matter how willing she was to engage in that activity.(see Bjornson at [11]) Further, the majority rejected the range identified by Krinke J. as being appropriate given the number of offencesand their seriousness.

In the result they increased the sentence to 17 months’ imprisonment. [36] In dissent O’Brien J.A. ruled that appellate interference with the sentence under appeal was unwarranted, noting that Krinke J.did not find that the victim’s factual consent was a mitigating factor.

Significantly, O’Brien J.A. found Krinke J. had identified thesematerial differences between Bjornson and Feng: • the length of the illicit relationship was much greater in Feng than in Bjornson; nine months versus three days; • the age difference was greater; 11 years rather than seven; • the victim was a year younger; 14 versus 15; and • Feng did not plead guilty but Bjornson did. [37] Taking all of the circumstances of Mr.

Hales’ crimes into account, together with his personal circumstances as outlinedpreviously and considering the cases reviewed and the very modest position taken by the Crown, I find that a fit sentence that isproportionate to the gravity of these offences and Mr. Hales’ responsibility for them is as follows: (

i) on the count of sexual interference Mr. Hales is sentenced to a period in the reformatory of eight months’ imprisonment; (ii) on the count of assault against Y.C. for spitting in her face, I impose a sentence of 10 days consecutive; (iii) on the count of assault against T.S. for punching him, I impose a sentence of 10 days consecutive; and, (iv) on the count of conveying a death threat against T.S., I impose a sentence of 10 days consecutive. [38] The victim fine surcharges are waived throughout given that Mr.

Hales will be incarcerated and unable to earn an income forseveral months. [39] Upon being released from custody Mr. Hales shall be placed on probation for a period of 15 months on terms to be pronouncedon the record momentarily. In addition I order that, pursuant to s. 743.21(1), Mr. Hales shall be prohibited from communicating directlyor indirectly with Y.C. or T.S. until the expiry of his warrant of committal to custody. [40] No evidence was called to explain or describe how Hales and Y.C. came to meet and develop their relationship.

Given the factscalled before me, I am of the view that a s. 161 Order is not required in this case. Dated at Cayuga this 19th day of June 2013

__________________________ J. S. Nadel (O.C.J.)