HER MAJESTY THE QUEEN — v. —, 2012 ONCJ 699

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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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. COURT FILE No.: Halton 10-2921 DATE: 2012·11·09 Citation: R v JJP , 2012 ONCJ 699 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — J.J.P. Before Justice Lesley M. Baldwin Heard on November 14, 2011; November 15, 2011; March 6, 22, 23 and 29, 2012; April 2, 2012 Submissions on Sentence heard September 4, 2012 and September 17, 2012 Reasons for Judgment released on June 29, 2012

Reasons for Sentencing released on November 9, 2012 M. Mackenzie ............................................................................................................ for the Crown J. Seib ............................................................................................................ for the accused J.J.P.

BALDWIN, J.: [ 1 ] On June 29, 2012, I released written reasons finding J.J.P. (aka M.) guilty of assaulting his employee, J.S., between April 1 st and June 30 th , 2010, at their B[…], Ontario work place. [ 2 ] I also found J.J.P. guilty of sexually assaulting J.S. in the B[…] Ontario workplace on August 26, 2010. [ 3 ] My written reasons for the findings of guilt are to be considered part of these reasons for sentence. [ 4 ] Those reasons followed a seven day trial which began on November 14, 2011 and concluded on April 2, 2012. [ 5 ] The Crown proceeded summarily.

Background: [ 6 ] The offender’s wife was the owner of a franchise business called the “A[…]” store, located in the M[…] Mall in B[…]. [ 7 ] The franchise store was purchased in 1999 and sold in January of 2011. [ 8 ] The offender worked as the store manager six days of the week. His wife rarely attended the store. [ 9 ] J.S. was hired by the offender and employed as a sales clerk from August 2, 2009 through to September 2, 2010, when she “abandoned her job” due to the offences that had been perpetrated against her. [ 10 ] J.S. was the only full-time employee during the time in question. Mr.

J.J.P. was her supervisor. [ 11 ] Her hours were Monday to Friday, 10 a.m. to 6 p.m., and every other Saturday. [ 12 ] Most of the time, Ms. S. worked at the store alone with the offender. [ 13 ] When J.S. testified at trial she was 31 years of age. When the offender testified at trial, he was 48 years of age. [ 14 ] Ms. S. has three children she had access to every second weekend and she contributed to their financial support. [ 15 ] Mr. J.J.P. has been married to his wife, J.P.1, for 23 years. Mrs. J.P.1 has 2 adult sons from a previous marriage. Mr. and Mrs. P. have no children together.

Assault: [ 16 ] The two of them were working alone in the store. [ 17 ] They were both sitting on display beach chairs inside the store. [ 18 ] Mr. J.J.P. got up off of his chair and grabbed her arm and then dragged her 10 to 12 feet toward the back stockroom. [ 19 ] She asked him what he was doing. [ 20 ] He told her that he wanted to kiss her and for her to come to the back. [ 21 ] She told him that it was inappropriate. She was uncomfortable as a result. [ 22 ] When Mr. J.J.P. grabbed her left wrist and dragged her, her watch dug into her wrist and left a visible mark for several hours. [ 23 ] Ms.

S. took a picture of the mark on her wrist and that was filed as one of the trial Exhibits. Sexual Assault: [ 24 ] The offender had been drinking alcohol throughout that workday and was either “buzzed or drunk”. [ 25 ] The two of them were in the store alone. [ 26 ] At the end of her shift, Ms. S. went to the back stockroom to get her purse. She heard the door close behind her and lock.

[27] She turned around and the offender was facing her. [28] He put his arms underneath her sides as her arms were up above his shoulders. [29] He grabbed her pants and tried to put his hands down her pants. Her pants were held tightly by a belt and his thumb gotstuck. [30] She tried to push him back and he tried to put his other hand down her pants.

His hand went into her pants just above herunderwear. [31] She pushed him back and said ‘what are you doing?’ He said he was “going for it”. [32] She pushed him away again, got around him, and unlocked the door. [33] She left the store and immediately went home and disclosed the sexual assault to her mother. Exhibits on Sentence: [34] Exhibits 1 and 2 are good character Letters filed by the defence authored by Mr. G.S. and Mr. V.K.. [35] Exhibit 3 is the PSR. [36] The ESP Report ordered last day will now be marked as Exhibit 4.

Position of the Parties: Ancilliary Orders: [37] Crown and Defence counsel agree that the following orders should be made in this case: DNA Order; SOIRA Order for10 years; s. 110 Weapons Prohibition for 10 years; Probation Order. Custodial Sentence: Crown: [38] The Crown submits that the sentencing range for the 2 offences combined is 3 to 6 months of real jail.

The sentencesshould be served consecutively. [39] The Crown submits that although a conditional sentence is available on these matters, given that the Crown hasproceeded summarily on the sexual assault, this form of sentencing is inappropriate given all of the applicable sentencing principles andthe aggravating factors present in this case.

Defence: [40] The Defence submits that a conditional sentence is appropriate and can address all relevant sentencing factors. [41] Alternatively, the Defence submits that if real jail is required, the length should not exceed 60 days and it should beserved intermittently and concurrently on both counts. Cases submitted by Crown and considered in this sentencing: [42] R. v. Perry Barnes, (S.C.J.), Justice Bruce Durno, unreported

summary conviction appeal decision, Justice Bruce Durno(S.C.J.) released November 8, 2010; R. v. Brent Budarick, OCA 858, released 2009/12/04 (O.C.A.); R. v. R.A.R. 2000 SCC 8 ,[2000] 1 S.C.R. 163; R. v. Rae, unreported April 19, 2006, Justice F.L. Forsyth (O.C.J.); R. v. Rae, unreported

summary convictionappeal decision released May 10, 2007, Justice O’Connor (S.C.J.); R. v. Thiara [2004] O.J. No. 730 (S.C.J.); R. v. Boudreau [1996]N.W.T. J. No. 107 (N. T. S. C.); R. v. Racco, unreported April 13, 2012, Justice R. Zisman (O.C.J.); R. v. O.Q. [1997] O.J. No. 5770(O.C.J.). Cases submitted by Defence and considered in this sentencing: [43] R. v. Thompson [2010] O.J. No. 3818, Justice June Maresca (O.C.J.); R. v. J.L.K. [1997] O.J. No. 3192 Justice Caswell(O.C.J.); R. v. R.N.M. (NL SC), [2001] N.J. No. 58, O’Regan J. (Newfoundland S.C.); R. v. G.T. 2005 NUCA 3, [2005] N.J. No. 29, A.C.

Seaborn J., (Newfoundland and Labrador S.C.); R. v. Gavrilko [2007] B.C. No. 2153, Tysoe J.(B.C.S.C.); R. v. J.G.C. [2004] N.J. No. 144, Halley J., (Newfoundland and Labrador S.C.). [44] General Sentencing Principles as set out in

section 718, 718.1 and 718.2 of the Criminal Code have been considered onthis sentencing. [45] The

section dealing with conditional sentences (742.1) has been considered on this sentencing Circumstances of the Offender: (Note to reader: The PSR should be read in its entirety. I have included only the highlights below)

[ 46 ] The offender is 48 years of age and has no prior criminal record [ 47 ] According to the history in the PSR, the offender had the benefit of a stable, loving and supportive family . [ 48 ] He has a B.A. from the University of W[…]and has been gainfully employed all of his adult life. [ 49 ] Everyone describes him as a hard worker. [ 50 ] Since the closing of the A[…] store in January of 2011, the offender has been employed on a commission basis for L[…] as the D[…]. [ 51 ] He works mainly from home. The job involves selling these speakers at fairs and other events.

He does not supervise any employees at this time. [ 52 ] The offender met his spouse when he interviewed her for a position at a restaurant he managed. She was recently separated at the time. Within a few months they were dating, and have been married 23 years. The offender told the author of the PSR that his marriage is “great” as “we’re best friends”. [ 53 ] According to Mrs. J.P.1, and the psychotherapist that they were seeing for marriage counselling between March 2010 and November 2011, the marriage was not great. [ 54 ] Mrs. J.P.1 described her feelings of being deceived by her husband. [ 55 ] Mrs.

J.P.1 described her concerns about her husband’s inter-actions with other female employees and with Ms. S.. “She admitted it peeved her when her husband favoured female employees, and allowed them privileges she, as his wife, did not have. She described her husband as being too familiar and too friendly with female employees. She said female employees could take more frequent and longer breaks, use the internet, play cards, sit down – things her husband would criticize her and admonish her, and male employees, for doing the same. He also drove female employees home, and she found this odd. Mrs.

J.P.1 said her husband would ‘brush off’ her concerns.” (PSR p. 5) “Mr. Dolson (psychotherapist) said Mrs. J.P.1 also discussed her frustrations the offender would favour female employees, behaviour she described as ‘flirtatious’, especially towards the victim…He believes counselling will be crucial, particularly for Mrs. J.P.1 given all that has transpired…” (PSR p. 6) The offender denied any excessive use of alcohol. He admitted he drank beer on the work site, “after hours when the store was closed, before going home…I’ve never had any interest in drinking at a bar” hence his habit to drink on the work site.

Since his arrest in these matters he has abstained from alcohol. (PSR p. 4) [ 56 ] As he did at trial, the offender has maintained his delusional fantasy that he was engaged in a consensual affair with the victim. “The offender said he had an affair with the victim. He said they ‘didn’t date, she didn’t come to my home and I didn’t go to her home’. He denied having sexual intercourse with the victim. He said their only sexual activity involved oral sex. He said the affair lasted five months. The offender said he worked closely with the victim, spending at least eight hours per day with her.

The offender said his marriage was unstable, and he never saw his spouse as she was employed elsewhere. He does not understand why the victim told the police she was sexually harassed and sexually assaulted. The offender said he had to temporarily lay off the victim with the promise she would be re-hired for the Christmas season.

He questioned why if she felt that was a lie, that he intended to terminate her employment instead, and this motivated her to contact the police and fabricate the charges against him.” (PSR pp. 4,5) The offender was asked to explain why he would involve himself with the victim, knowing his stepson was also romantically linked to her. The offender said that he and the victim “hid” their relationship from others… “I didn’t mind if she saw J.P.2.” (PSR p. 5) [ 57 ] Victim Impact in PSR: “J.S. disclosed (that) the offender made sexual advances and sexual comments to her shortly after she was hired.

She dated (stepson) J.P.2 for approximately three weeks, during which time she disclosed his stepfather’s behaviour toward her. She said J.P.2 was angry and wanted his mother to leave the marriage. When Ms. S. was informed of the offender’s claim they had an affair, she became extremely upset, and began crying. Ms. S. expressed her incredulousness the offender would suggest they had an affair, and she said to allege they engaged in any consensual sexual activity (i.e. oral sex) ‘makes me sick’. She described her experience as traumatic, repulsive, and ‘a living nightmare’.

She fears retribution by the offender or his spouse, and fears encountering him again. Her distress level was such that she indicated she could not continue the conversation with this writer.” (PSR p. 6) Aggravating Factors:

(1) Breach of Trust: [ 58 ] Both the assault and sexual assault involved the abuse of a position of authority by an employer against his employee at the workplace. (see 718.2(a)(iii) of the Criminal Code ).

[ 59 ] The power imbalance given the nature of the working relationship between Ms. S. and the offender, as her boss, put her in a vulnerable position. She needed this job to support herself and her 3 children. [ 60 ] She was economically vulnerable due to her prior financial difficulties, and limited prior working experience. The offender knew all of this and he preyed upon her vulnerabilities. [ 61 ] After ‘abandoning’ her job due to the offender’s behaviour, it was 5 months before she became employed again.

(2) The offending behaviour started at the outset of her employment and continued throughout: [reader: see Reasons for Judgment] [ 62 ] Mr. J.J.P. would talk about his marriage problems with Ms.

S.; he would invite her over to his house for family celebrations; he would invite her out to hockey games and other outings. [ 63 ] The offender would make comments to her at work about how beautiful she was, how she had beautiful eyes, how he likes the shape of her body. [ 64 ] He sent her text messages when she was not at work telling her that he loved her; he wanted to meet up with her; he wanted her to come into work early. [ 65 ] He sent flowers to her home with a card that said ‘WOW’. [ 66 ] He wrote a sex story about her that he entitled “Candle Picture Couch”.

It was filed as trial Exhibit #2 and it is clear and compelling evidence of the offender’s obsessive sexual fantasy about Ms. S..

The content is crude and disturbing. [ 67 ] After the sexual assault he texted her stating “Miss u xxoo”. [ 68 ] In another text he referred to himself as her “other boyfriend”. [ 69 ] In another text he stated “U hate me.” [ 70 ] After she quit her job the offender manipulated her Record of Employment knowing that it would delay her ability to receive Unemployment Insurance Benefits, and it did. [ 71 ] This was his way of punishing her for reporting these matters to the police. [ 72 ] During the course of her employment, the offender hacked into her personal E-mail account and stole personal photographs with E-mail attachments from her computer. [ 73 ] This serious violation of her privacy was not known to Ms.

S., the police, nor the Crown Attorney, before the trial.

(3) The violation of the victim’s sexual integrity continued during the course of the Trial itself: [ 74 ] In cross-examination at trial, Ms.

S. was shown a string of photographs and E-mail messages that were in the possession of the offender. [ 75 ] She was adamant that she did not give these photographs or the E-mail attachments to the offender and she became visibly upset/distressed as the photographs were shown to Crown counsel and passed around the courtroom, before I as the trial Judge, was even shown them. [ 76 ] Six of the photographs show the complainant in states of undress in provocative poses. [ 77 ] I found as a fact that the offender accessed Ms.

S.’ personal photographs when the lap top at the workplace was opened up in June of 2010 for the purpose of Mr. J.J.P. helping Ms. S. with her resume. [ 78 ] Without her knowledge or consent, Mr. J.J.P. forwarded this material to his E-mail account, then later stashed them in a Gmail account he created so that he could view this material whenever he wanted. [ 79 ] Being subjected to this new degradation during the trial horrified the victim and I speak to that in my reasons for judgment.

The photograph Exhibits were sealed from public view to protect her privacy during the trial and beyond. [ 80 ] It is reasonable to infer that the offender is still sexually obsessed with Ms. S..

(4) Victim Impact: [ 81 ] Ms. S. has suffered humiliation and degradation from the beginning of her employment by the offender through to this day. She has suffered physical, emotional and financial consequences as a direct result of the offender’s behaviour.

(5) No Insight/Remorse: [ 82 ] The offender has no insight into his behaviour and continues to totally deny all wrong doing. He continues to blame the victim for these proceedings and he does not accept the findings of the Court. [ 83 ] There has been no rehabilitative counselling.

There has been no assessment with respect to his risk to re-offend. [ 84 ] I find that this offender is at risk of repeating this behaviour if he is in a position of power and control over another vulnerable female employee. [ 85 ] Acting inappropriately toward female employees is not out of his character given the contents of the PSR. [ 86 ] The need for specific deterrents is high in this case. Paramount Sentencing Principles: [ 87 ] As stated by the Supreme Court of Canada in R. v.

R.A.R. (supra) at paragraph 33: “The respondent’s abuse of his position of authority, combined with the demeaning and violent nature of the assaults, make the punitive objectives of denunciation and deterrence particularly pressing in this case. The Court of Appeal therefore erred in imposing a conditional sentence, where a sentence of incarceration was the preferable sanction.

Decision: [ 88 ] I conclude that a conditional sentence is not appropriate in this case as it will not reflect the sustained aggravating factors. [ 89 ] To house arrest this offender, where he conducts his work, would do little to deter Mr.

J.J.P. as it would have a minor impact on his current day to day routine. [ 90 ] Incarceration in the traditional setting is called for in this case. [ 91 ] The assault was separate in time from the sexual assault and they require consecutive sentences. [ 92 ] The jail portion of the sentence is as follows: 30 days on the assault. 90 days consecutive on the sexual assault. [ 93 ] This will be followed by a two year probation order (concurrent on both counts) with the following terms: - Report to a probation officer as directed; - To have no contact or communication, directly or indirectly, with J.S.; - Not to be within 500 metres of her residence, place of employment, education, worship or any other place where she may reasonably be expected to be; - To attend and participate in all assessments, counselling and treatment, including treatment for sexual offenders, as directed, and sign consents to enable your participation and progress to be monitored; - Keep the Peace and be of Good Behaviour. [ 94 ] DNA sample is ordered and applies to the sexual assault conviction. [ 95 ] SOIRA is ordered for 10 years and applies to the sexual assault conviction. [ 96 ]

Section 110 weapons prohibition is ordered for 5 years and applies to both counts. [ 97 ] The victim fine surcharges are waived given that jail terms have been imposed. Released: November 9, 2012 Signed: “Justice Lesley M. Baldwin”