R. v. E.S., 2019 NLSC 199

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. E.S. , 2019 NLSC 199 Date : November 5, 2019 Docket : 201501G1394 Her Majesty The Queen v. E.S. Restriction on Publication: By court order made under subsection 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Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way. Before: Justice Vikas Khaladkar Reasons for Judgment Given Orally Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: April 23, May 7, October 22 & 31, 2019 Date of Oral Judgment: November 5, 2019

Summary:

The offender was convicted of a single count of sexual assault pursuant to

section 271(

a) of the Criminal Code. The offender and thevictim were married, but separated, at the time of the offence. The offender undressed the victim and had sexual intercourse with herwhile she slept and was unable to consent. The abuse of trust inherent in a spousal relationship is an aggravating factor in sentencing. Appearances: Jennifer M. Colford Appearing on behalf of the Crown Philip G. Warren Appearing on behalf of the Offender Authorities Cited: CASES CONSIDERED: R. v. A. (K.J.) (1988), (NL CA), 211 A.P.R. 99, 69 Nfld. & P.E.I.R. 99 (Nfld.

C.A.); R. v.Noseworthy (1982), 115 A.P.R. 193, 40 Nfld. & P.E.I.R. 193 (Nfld. C.A.); R. v. Barrett, 2011 NLCA 5; R. v. P.(E.D.) (1983), (NL SC), 331 A.P.R. 213, 105 Nfld. & P.E.I.R. 213 (Nfld. S.C.(T.D.)); R. v. Bonnar, 2004 NLSCTD 216; R. v. H. (J.),2012 NLTD(G) 174; R. v. Squires, 2012 NLCA 20; R. v. Sandercock, 1985 ABCA 218; R. v. Kasokeo, 2009 SKCA 48; R. v. Denny(1992), 17 W.C.B. (2d) 320, 30 W.A.C. 264 (Man. C.A.); R. v. G. (T.V.) (1994), (NS SC), 380 A.P.R. 299, 133N.S.R. (2d) 299 (N.S.S.C.); R. v. M. (J.E.), 1997 CarswellNWT 76; R. v. C. (P.D.), 2005 NWTSC 69; R. v. Thwaites, 2010 NWTSC 11; R. v.

S. (D.), 2012 SKQB118; R. v. Healy, 1994 ABCA 21 , [1994] A.W.L.D. 243, 149 A.R. 230 (Atla. C.A.); R. v. H. (P.G.) (1994), (NL CA), 370 A.P.R. 298, 119 Nfld. & P.E.I.R. 298 (Nfld. C.A.); R. v. Gladue, (SCC), [1999] 1 SCR 688; R. v. G.(R.), 2003 NLTD 44 , 2003 NLSCTD 44; R. v. P. (G.W.), 2006 NLTD 136; R. v. M. (B.), 2008 ONCA 645; R. v. C. (S.L.), 2009 NLTD 66; R. v. Smith, 2011 ONCA 564; R. v. W. (J.J.), 2012 NSCA 96; R. v. R.(W.), 2017 NLTD(G) 14; R. v. Nasogaluak, 2010 SCC 6; R. v. Ipeelee, 2012 SCC 13 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c.

C-46; Sex Offender Information Registration Act, S.C. 2004, c. 10 REASONS FOR JUDGMENT Khaladkar, J.: INTRODUCTION [1] The offender was found guilty of sexual assault by Peddle, J. pursuant to

section 271(

a) of the Criminal Code, R.S.C. 1985, c.C-46 after a trial. Because of Justice Peddle’s retirement, the case was assigned to me for continuation pursuant to

section 669.2(2) ofthe Criminal Code. What follows is my decision with respect to the appropriate sentence. [2] On June 11, 2013 the parties were living in Admiral’s Beach, Newfoundland and Labrador. They had ceased conjugalrelations in May of that year. A day earlier they were in the process of discussing their separation. The offender brought home a bottleof liquor and, after their children were put to bed, they each had a couple of drinks. [3] Midway through her second drink, the victim began to feel nauseous and light headed. She threw up.

As a result, she retiredto her bedroom, put on a nightdress and a pair of shorts and went to sleep. [4] When the victim awoke, she was completely naked and the offender was having sexual intercourse with her. The offender wasnot wearing any clothing. She screamed and told him to get off and pushed at him until he stopped. The offender attempted, on twofurther occasions, to resume sexual intercourse but the victim rebuffed him and told him to leave. The offender eventually left the house. [5] After the offender’s departure, the victim called her mother and told her what had happened.

She also telephoned the police. A charge was subsequently laid, a trial conducted and the offender was convicted.

crown’s position on sentencing [6] Ms. Colford, on behalf of the Crown, provided me with a number of precedents relating to sentence. The Crown’s sentencingauthorities are summarized as follows: R. v. A. (K.J.) (1988), (NLCA), 211 A.P.R. 99, 69 Nfld. & P.E.I.R. 99(Nfld. C.A.) The offender was charged with 8 charges ofindecent assault and a sexual assault. He wassentenced to 2 years and 9 months in custody.R. v. Noseworthy (1982), 115 A.P.R. 193, 40Nfld. & P.E.I.R. 193 (Nfld. C.A.) A 15-year old victim was sexually assaulted bythe three offenders over a 2 hour period.

TheCourt of Appeal substituted a 3-year sentencefor the 4- year sentence imposed by the trialjudge.R. v. Barrett, 2011 NLCA 5 The offender was convicted of three counts ofsexual assault against 3 victims. A 5-yearsentence imposed by the trial judge was reducedto 3 years by the Court of Appeal.R. v. P.(E.D.) (1983), (NLSC), 331 A.P.R. 213, 105 Nfld. & P.E.I.R. 213(Nfld. S.C.(T.D.)) The offender sexually assaulted his wife byinserting a flashlight into her vagina on twooccasions. The offender had a lengthy record. He was imprisoned for 3 ½ years. R. v.

Bonnar, 2004 NLSCTD 216 The 26-year old offender inserted sex toys intohis 15-year old victim and attempted analintercourse with her. The offender had aprevious record. He was sentenced to 5 years’imprisonment.R. v. H. (J.), 2012 NLTD(G) 174 The offender was convicted of forcibleconfinement, sexual assault and assault causingbodily harm. The victim was the offender’sgirlfriend, but they had just ended theirrelationship. The offender had no criminalrecord and was not in a position of trust orauthority in relation to the victim. He wassentenced to 33 months for the sexual assault.R. v.

Squires, 2012 NLCA 20 The offender was in an intimate relationshipwith the victim. He was convicted of 2 countsof sexual assault and assault causing bodilyharm. The Trial Judge’s sentence of 4 years’imprisonment was reduced, on appeal. Theoffender was sentenced to 30 monthsimprisonment for the sexual assaults.R. v. Sandercock, 1985 ABCA 218 The offender was 26 years of age. The victimwas not known to the offender. The AlbertaCourt of Appeal sentenced the offender to 4 ½years imprisonment.R. v. Kasokeo, 2009 SKCA 48 The victim felt intoxicated and fell asleep.

Sheawoke to find her clothing at her ankles and theoffender engaged in a sexual act with her. TheTrial Judge imposed a sentence of 15 months. On appeal, the Saskatchewan Court of Appealincreased the sentence to 30 monthsimprisonment.R. v. Denny (1992), 17 W.C.B. (2d) 320, 30W.A.C. 264 (Man. C.A.) The offender and the victim had lived togetherfor some time. The offender was restrainedfrom contacting the victim by Court order. Heentered her home to remove his belongings. They argued, he struck her, removed herclothing and sexually assaulted her.

TheManitoba Court of Appeal imposed a sentenceof 2 years less a day plus probation.R. v. G. (T.V.) (1994), (NSSC), 380 A.P.R. 299, 133 N.S.R. (2d) 299(N.S.S.C.) The offender forced himself on the victim, hisseparated spouse, and sexually assaulted her. The offender was sentenced to 32 monthsimprisonment.R. v. M. (J.E.), 1997 CarswellNWT 76 The victim passed out after drinking with theoffender. The offender sexually assaulted thevictim while she was passed out. The offenderwas sentenced to 3 years’ imprisonment.

R. v. C. (P.D.), 2005 NWTSC 69 The offender assaulted his wife after he hadbeen drinking. He compelled her to performoral sex. After a plea of guilty, the offender wassentenced to 2 ½ years’ imprisonment.R. v. Thwaites, 2010 NWTSC 11 Victim passed out on bed alone and woke up tooffender turning her over and had sexualintercourse with her. A 4-year sentence wasimposed.R. v. S. (D.), 2012 SKQB 118 The offender was sentenced to 30 months afterforcing sexual intercourse on his spouse aftertheir separation. The offender was 33 years ofage. [7] Ms. Colford submitted the offender’s record of previous convictions.

She acknowledged that it is dated and unrelated to thecharges before the Court. All of the offender’s previous convictions were recorded in 1995. There have been no criminal convictionssince that time, save the matter before the Court. [8] Ms. Colford brought to the Court’s attention the fact that, in the pre-sentence report, the offender did not accept responsibilityfor the offence and maintained that it did not happen. In fairness to the offender, the pre-sentence report was prepared in January, 2018at a time soon after the conclusion of the trial.

The offender had maintained his innocence throughout the trial and his position at thattime was consistent with his position at trial. [9] However, almost 22 months later, his counsel advises me that he has accepted responsibility for his actions and is prepared toengage in any counseling that may be of benefit to him. Although this is a belated remorse, I accept the fact that the offender has notsought any communication with the victim since the incident and has not attempted to intercede in her life - although they share twochildren together.

These actions have spared the victim of the necessity of having to interact with the offender – for which she isundoubtedly grateful. [10] Ms. Colford emphasized the following factors for me to consider: a. The sexual assault was complete with the undressing of the victim while she slept and sexual intercourse with full vaginalpenetration. b. While the victim did not submit a victim impact statement, the Court can assume that the sexual assault had a major impact uponher. c. The parties were spouses and, as such, there was a high degree of trust involved in their relationship. [I believe that Ms.

Colfordwas referring to

section 718.2(ii) of the Criminal Code and the inherent trust that exists as a result of the spousal relationship. I do notbelieve that Ms. Colford was referring to

section 718.2(iii) of the Criminal Code which deals with the abuse of a relationship by a personin authority – such as a priest or teacher]. d. While the offender was entitled to a trial, and to have his day in Court, the absence of a guilty plea equates to a loss of a mitigatingfactor in sentencing. It is not an aggravating factor. e.

There is a need for general and specific deterrence in this case since it is necessary that the offender, and others, understand that amarital relationship does not grant an untrammeled ability to demand sex whenever it is convenient for one party oblivious of the wishesof the other. f. Rehabilitation, according to Ms. Colford, is less of a concern since the offender denies the incident. g. Ms. Colford acknowledged that the offender’s criminal record is dated and unrelated. h.

The offender has been in custody on this matter since October 14, 2019 and she left it to the Court’s discretion as to the extent ofcredit that ought to be awarded to the offender under the circumstances. i. Ms. Colford canvassed the cases that she and defence counsel had submitted to the Court. She stated that the sentencing range forsexual assault is very wide because of the range of behaviours that can make up sexual assault.

However, in her submission she felt thata sentence of 3 to 4 years and, preferably at the top end of that range, would be appropriate under all the circumstances. defence’s position on sentencing [11] Mr. Warren, on behalf of the offender, also provided me with a number of precedents relating to sentence. The defencesentencing authorities are summarized as follows: R. v. Healy, 1994 ABCA 21 , [1994]A.W.L.D. 243, 149 A.R. 230 (Atla. C.A.) The offender and his victim married after he hadcommitted a sexual assault upon her.

An 18-month sentence imposed by the trial judge wasreduced to 15 months by the Alberta Court ofAppeal.

R. v. H. (P.G.) (1994), (NLCA), 370 A.P.R. 298, 119 Nfld. & P.E.I.R. 298(Nfld. C.A.) The offender pleaded guilty. He had climbedonto his sleeping victim and sexually assaultedher for about 15 minutes. The offender had nocriminal record, but was an Aboriginal person. Since this case was decided before R. v.Gladue, (SCC), [1999] 1 SCR688, no Gladue factors were considered by theCourt. The Trial Judge’s sentence of 20 months’incarceration was stated to be at the very lowend of the range for this type of offence, but theCourt of Appeal said it was not so inordinatelylow that a variance was justified.R. v.

G. (R.), 2003 NLTD 44 , 2003NLSCTD 44 The offender and victim were married. Whilethey were living together, they slept in separaterooms. The offender demanded sexual relationsand, despite the victim’s lack of consent, heforced himself upon her for about 20 minutes. The parties continued living together after thesexual assault. The offender was sentenced attrial to 6 months’ incarceration and the Court ofAppeal did not see fit to vary the sentencebecause, at the time of the appeal, it had alreadybeen served.R. v. P. (G.W.), 2006 NLTD 136 The offender and victim were spouses.

Theoffender pushed the victim on a bed, pulleddown her clothing and attempted sexualintercourse. He was sentenced to 24 monthsincarceration and 3 years’ probation.R. v. M. (B.), 2008 ONCA 645 The offender engaged in anal intercourse withhis developmentally delayed wife. The TrialJudge’s sentence of 9 months’ incarceration wasincreased, by the Court of Appeal, to 2 yearsless a day.R. v. C. (S.L.), 2009 NLTD 66 The offender was the common law spouse of thevictim’s mother. The victim wasdevelopmentally delayed. The offender was 40years of age, the victim less than 16 years ofage.

The improper touching of the victim for asexual purpose continued for a long period oftime. The offender was sentenced to 2 yearsless a day.R. v. Smith, 2011 ONCA 564 The offender and victim were earlier involved ina relationship. The offender called the victimover to his house to help him, but wouldn’t lether leave until they had sex. The offender wassentenced to 2 years’ imprisonment.R. v. W. (J.J.), 2012 NSCA 96 The offender was sentenced to 5 months for thesexual assault of his wife.

While the Court ofAppeal said that a fit sentence for the sexualassault would have been 2 ½ years, it did notsubstitute a higher sentence because re-incarceration was not in the interests of justice.R. v. R. (W.), 2017 NLTD(G) 14 For a sexual assault against his common lawpartner who was in the process of terminatingthe relationship, the offender was sentenced to30 months’ incarceration. In this case theoffender had forced his way into the victim’shouse, pulled down her clothing and was aboutto have sexual intercourse with her – but wasinterrupted by the arrival of the victim’s mother.

The victim was awake and there was nopenetration. [12] Mr. Warren stated that his client should receive credit for time spent at the rate of 1.5/1.0. He voluntarily turned himself intothe police when contacted concerning his outstanding warrant of arrest. [13] Mr. Warren outlined that the offender had a normal upbringing with parents who were gainfully employed. The offender is ongood terms with most of his family members, and will have their support and encouragement once he is released from prison. [14] The offender has no drug or alcohol problem.

He has developed Type II diabetes and, as a result, is unable to consume muchalcohol because it interferes with his diabetes.

[ 15 ] The offender has mostly been gainfully employed here in the Province as well as in Western Canada. He suffered a workplace injury that resulted in a category 3 concussion. He has suffered from blackouts and seizures – probably as a result of the injury. He has also suffered from several strokes. [ 16 ] The offender’s work history includes a job as a production manager at a fish plant and various construction related occupations. He feels that he will be able to do some upgrading of his educational qualifications in a federal institution. [ 17 ] Mr.

Warren indicated that the offender accepts the disposition of the Court. He has reasonable prospects for rehabilitation and can make a meaningful contribution to society upon his release. [ 18 ] Since the incident forming the subject matter of these proceedings, the offender became involved in another relationship and has a 4-year old son as a result. While he and the boy’s mother are no longer in a relationship, they still live together and the offender is involved in co-parenting his son. [ 19 ] Mr. Warren indicated that this is not a case where specific deterrence is a significant factor.

The offender has moved on with his life and is no longer involved with the victim. His relationship with his son’s mother appears to be respectful and is indicative of the fact that his prospects for rehabilitation are high. He is not likely to be before the Court again. [ 20 ] Mr. Warren submitted that a sentence of 2 to 3 years would be appropriate in the circumstances. analysis [ 21 ] In reaching my decision on the appropriate sentence in this case, I have been guided by the objectives and principles of sentencing as set out in sections 718 , 718.1 and 718.2 of the Criminal Code . [ 22 ]

Section 718 of the Criminal Code outlines that the fundamental purpose of sentencing is to foster respect for the law and the maintenance of a just, peaceful society. In order to reach this goal the Court must impose a sentence that meets one or more of the following objectives: a. Denunciation; b. Deterrence of the offender and other persons; c. Separation of offenders from society, where necessary; d. Rehabilitation; e. Reparations for harm done to victims or to the community; and f.

The promotion of a sense of responsibility in offenders and an acknowledgment of the harm done to victims and to the community. [ 23 ] The Supreme Court of Canada has instructed, in R. v. Nasogaluak , 2010 SCC 6 , that none of the sentencing objectives take priority over any of the others. Weight must be accorded to each of the objectives with a view to the unique circumstances of the case before the Court. [ 24 ] In R. v.

Ipeelee , 2012 SCC 13 , the Supreme Court of Canada stated that the fundamental principle of sentencing is that the sentence must be proportionate to both the gravity of the offence and the degree of responsibility of the offender. The sentence must be fit. In this sense, the sentence is both a sword and a shield. On the one hand, the Public must be satisfied that the offender received the punishment he deserved. On the other hand, the sentence cannot exceed what is appropriate.

A just sentence strikes a balance between these two, sometimes competing, interests. [ 25 ] Courts are mandated to consider the sentencing principles outlined in

section 718.2 of the Criminal Code . As a result the Court must: a. Take into account any relevant aggravating or mitigating circumstances; b. Be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; c. Refrain from depriving liberty if less restrictive sanctions may be appropriate; and

d. Consider all available sanctions other than imprisonment if those sanctions are reasonable. [ 26 ] Societal mores have evolved considerably in the past half century, and the law has evolved with them. At one time, it was not possible to charge a husband with the rape of his wife because the law assumed that consent to sexual intercourse existed as a matter of course within the matrimonial relationship. That is no longer the law.

Now it is incumbent upon the spouse desirous of engaging in a sexual encounter to ensure that an informed consent is obtained in advance. [ 27 ] In this case, there could be no consent because the victim was asleep. The undressing and sexual intercourse that took place while she slept was entirely without her consent. Upon awakening, she told the offender, through words and gestures, that she was not interested.

For some time after the sexual assault the offender continued his advances, but then he relented and left the house. [ 28 ] Every person is entitled to have her/his personal and sexual integrity remain intact. There is no excuse for the violation of that integrity without the victim’s consent. [ 29 ] I agree with Mr. Warren that specific deterrence is a less important factor in this case because the offence took place over 6 years ago, both parties have moved on and there is no contact between them. The offender was involved in another relationship that, also, ended.

However, he is cohabiting with the other partner and, together, they have been co-parenting their son. I agree that it is unlikely that the offender will reoffend. Specific deterrence, therefore, does not loom so large. [ 30 ] Despite that, however, general deterrence is of prime importance in this case. It is necessary that this Court condemn the behaviour that gave rise to the charge against the offender. It is not permissible to obtain sexual gratification in the absence of the affected party’s consent.

The act of having sex with a sleeping or unconscious woman will invariably result in a conviction for sexual assault. [ 31 ] There is no doubt that the sentencing authorities all require me to consider a significant term of incarceration in this case. The range in this jurisdiction is 3 years and up.

While it is permissible to depart from the range under certain circumstances, I am not convinced that there are sufficient mitigating factors to allow me to depart from the range in any meaningful way. [ 32 ] Aggravating circumstances in this case include the fact that the victim was asleep when the sexual assault commenced. They include the fact that the parties had been in a spousal relationship. While the initial lack of remorse on the part of the offender might have been aggravating, I accept his counsel’s submission that he has accepted the consequences of his actions.

I view his position regarding remorse, now, as neutral. [ 33 ] I am mindful that the sentence for this offender should, in accordance with

section 718.2 (

b) of the Criminal Code be similar to sentences imposed on similar offenders for similar offences. [ 34 ] I am mindful that, for most of his working life, the offender has been a working and productive member of society. While he had a setback as a result of a workplace injury, I don’t doubt that upon his release from prison he will seek to be gainfully employed. The offender has a vested interest in earning a wage because he is involved, and wishes to remain involved, in the co-parenting of his four year old son.

Rehabilitation is, therefore, a significant factor in arriving at an appropriate sentence in this case. The offender has prospects for the future and any sentence that I arrive at ought not to have the effect of unduly dimming those prospects. [ 35 ] Mr. E.S., please rise. Before I pass sentence, do you wish to say anything to the Court? sentence [ 36 ] Under all of the circumstances a sentence of 36 months is appropriate in this case.

It will have the effect of underscoring, for those who may engage in non-consensual sexual intercourse with their sleeping spouses, that there are significant consequences for their actions. The sentence is in keeping with sentencing precedents in this and other jurisdictions. [ 37 ] I sentence you to serve 36 months in a penitentiary. [ 38 ] I give you credit, at the rate of 1.5 days to 1.0 for the 22 days you have spent in custody since October 14, 2019 – for a total of 33 days.

That time will be deducted from the 36 month sentence I have just imposed. [ 39 ] I must impose, as well, some ancillary orders. ancillary orders DNA Order [ 40 ]

Section 271 (

a) of the Criminal Code is a primary designated offence. Pursuant to

section 487.05(1) there shall be a DNA Order requiring the offender to submit such samples of his bodily substances as may be required for the purpose of forensic DNA analysis. SOIRA Order [ 41 ]

Section 271(

a) is a designated offence within the meaning of

section 490.011(1) of the Criminal Code . Since the maximum term of imprisonment for a

section 271 (

a) offence is 10 years when prosecuted by indictment, then the duration of the SOIRA registration is 20 years after it is made. I make, therefore, an Order in Form 52 requiring the offender to comply with the Sex Offender Information Registration Act , S.C. 2004, c. 10 for a period of 20 years. Non-Contact Order [ 42 ] I order that the offender have no contact or communication with the victim, CS, now CK, while he is serving his sentence except through legal counsel or the agency of Family Justice Services. Should CK attempt to contact the offender, he is to direct her

inquiry to Family Justice Services. Under no circumstances is the offender to initiate contact with CK except through the agency of counsel and/or Family Justice Services as earlier noted. _____________________________ Vikas Khaladkar Justice