R. v. L.H., 2024 ONCJ 103

WARNING The court hearing this matter directs that the following notice 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

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

(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. ONTARIO COURT OF JUSTICE CITATION: R. v. L.H., 2024 ONCJ 103 DATE: 2024 02 15 COURT FILE No.: Hamilton Information No. 21-9248 BETWEEN: HIS MAJESTY THE KING — AND — L.H. Before Justice J.P.P. Fiorucci Heard on September 18 and November 30, 2023 Reasons for Sentence released on February 15, 2024

J. McKenzie.......................................................................................... counsel for the Crown K. Hepburn.......................................................................... counsel for the Defendant, L.H. FIORUCCI J.: INTRODUCTION [ 1 ] In December of 2021, L.H. was charged with the offence of sexual assault of C.W., contrary to s. 271 of the Criminal Code . The offence was alleged to have occurred on or about November 1, 2020 .

The Crown elected to proceed summarily on the charge, with the defence agreeing to waive the 12-month limitation period contained in s. 786(2) of the Criminal Code . L.H. entered a guilty plea to the charge. [ 2 ] On November 30, 2023, Crown and Defence counsel made their sentencing submissions. I reserved my decision on sentence. These are my reasons for sentence. CIRCUMSTANCES OF THE OFFENCE [ 3 ] On October 31, 2020, C.W. attended a Halloween party in Dundas, Ontario. L.H. was also at the party. C.W. had planned to sleep over at the residence.

On November 1, 2020, at approximately 3:00 a.m., C.W. went to sleep on a couch in the living room. Other people who attended the party also went to sleep in the living room. T.V. and J.S. slept together on an air mattress in the living room. L.H. went to sleep on the same couch beside C.W. [ 4 ] At some point, C.W. awoke and felt L.H. touching her body, including her breasts, buttocks, and legs. L.H. put his hand down C.W.’s pants and attempted to digitally penetrate her. C.W. pushed L.H. off multiple times, but he persisted. L.H. took C.W.’s hand and placed it down his pants.

Throughout this time there was no conversation between L.H. and C.W. T.V. and J.S. both confirmed that neither of them heard any conversation between L.H. and C.W. L.H. then pulled C.W.’s pants down and began to engage in non- consensual vaginal intercourse with her. C.W. eventually stopped resisting because L.H. would not stop. [ 5 ] Once he did stop, L.H. moved to the opposite side of the couch. L.H. and C.W. messaged briefly over Snapchat in relation to what just occurred and eventually L.H. got dressed and left the residence. One of the Snapchat conversations that was recovered was an apology from L.H.

He said, “I apologize for anything I did. I really didn’t mean to hurt you in any way. Have a good night”. CIRCUMSTANCES OF THE OFFENDER [ 6 ] L.H. is 25 years old. He has no prior criminal record. A pre-sentence report (PSR) was prepared to assist with the sentencing. L.H. reported to the author of the PSR that his biological father was abusive, consumed alcohol regularly, and was in and out of jail. L.H. also reported that he first moved out of the home following the involvement of Ottawa child protective services.

He lived with his grandparents when he was 3 to 7 years old, which he described as a negative experience. L.H. indicated that his biological mother and father separated when he was 2 years old, and that he moved to Hamilton with his mother and stepfather after he was 7. [ 7 ] L.H. has two older brothers who live in Ottawa and one older sister, M.H., in Hamilton. L.H. is close with his siblings, none of whom consume alcohol. L.H. described his sister, who is seven years older than him, as a significant support in his childhood during the turbulent circumstances.

He attributed his survival to his older sister, who he says raised him. [ 8 ] M.H. provided a letter of support which has been filed as Exhibit 3 on these proceedings. In her letter, M.H. describes her brother as a mature and compassionate brother, even as the two of them experienced hardships in their upbringing. M.H. states that her brother is an honest, hard-working and kind man who takes responsibility for his actions. It is clear from this letter that L.H. and M.H. share a special bond and that L.H. is a role model for M.H.’s young children. [ 9 ] L.H. also has a good relationship with his stepfather.

L.H. states that, although his mother does not drink every day and has maintained full-time employment, alcohol continues to be a barrier in their relationship. L.H. moved out of his mother’s home to live with his sister when he was 18 and ultimately moved out on his own in March of 2020. [ 10 ] L.H. has completed grade 11 in high school. He was a couple of credits short of completing grade 12. Although he excelled in school, he chose to leave school and focus on his career. L.H. has expressed an interest in completing adult courses to finish his GED. L.H. entered the trades and has consistently worked full time.

He is currently a subcontractor working full time with eavestroughs. He has a positive relationship with his supervisor, with whom he has worked for three years. L.H. reports that he is motivated in his career. His goal is to eventually open his own business. [ 11 ] L.H. does not have any issues with alcohol or drugs. He identified his childhood as having had a significant impact on his personal relationship with alcohol.

He states that he rarely drinks, although he has experimented with marijuana. [ 12 ] In his discussions with the author of the PSR, L.H. stated that he had invested in learning more about consent. The probation and parole officer stated the following: He (L.H.) said he does not wish to blame ignorance for the offence, and stated it was his responsibility to know about consent and educate himself. He did not provide an excuse for the offence or minimize his actions during the interview for this report.

[ 13 ] L.H. has stated that he is open and willing to complete counselling and other rehabilitative programming. He has been forthcoming about his offence with his support group, including his mother and his sister. L.H. and his mother identified L.H.’s role as an uncle to his sister’s children as a strength to avoid future recidivism. [ 14 ] Currently, L.H. is in a dating relationship with T.R., whom he describes as very positive and supportive. L.H. says that he was honest and upfront with her about the sexual assault offence that has brought him before the court.

He told the author of the PSR that he also has a positive relationship with T.R.’s parents. T.R. provided a letter of support which has been filed as Exhibit 4. In her letter, T.R. describes L.H. as a loving and caring partner, who is hard-working and eager to learn from his mistakes. [ 15 ] Throughout these proceedings, L.H.’s support group has been present in court with him. L.H.’s family and current partner speak of a desire that he be given a chance to move forward and learn from the situation that has brought him before the court.

To their credit, no one in L.H.’s support group has minimized the seriousness of his criminal behaviour. L.H. reported to the author of the PSR that he had thoughts of self-harm immediately after his arrest for this offence. He noted that the support of his loved ones deterred him from acting on any of these thoughts. [ 16 ] Although L.H. has no criminal record, in 2019, he received a conditional discharge for a finding of guilt related to an assault on an adult male. L.H. served a period of probation. I wish to make it clear that I have not considered the finding of guilt or discharge as an aggravating factor.

Instead, I mention it only to note that the author of the PSR states that there are no indications regarding unsuitability for community supervision for L.H. POSITIONS OF THE PARTIES [ 17 ] Crown counsel asks me to impose an 18-month custodial sentence followed by a 2-year probation order, and ancillary orders including DNA, a s. 110 Criminal Code order for 10 years, and a Sex Offender Information Registration Act order for 10 years.

The Crown says that a conditional sentence of imprisonment would not adequately address the principles of denunciation and deterrence that are paramount in this case. [ 18 ] Defence counsel submits that the principles of sentencing, including denunciation and deterrence, can be achieved by an 18- month conditional sentence of imprisonment to be served in the community under stringent conditions. Ms. Hepburn did not take issue with the Crown’s request for a 2-year probation order, nor any of the other ancillary orders sought by the Crown. LEGAL PRINCIPLES [ 19 ]

Section 718 of the Criminal Code instructs that the fundamental purpose of sentencing is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful, and safe society. Sentencing judges strive to achieve this goal by imposing just sanctions that have one or more of the following objectives: (

a) denunciation of the unlawful conduct and the harm done to victims or to the community that is caused by the unlawful conduct; (

b) specific deterrence of the offender and general deterrence of other persons who might commit similar offences; (

c) separation of offenders from society, where necessary; (

d) assistance in rehabilitating offenders; (

e) reparations for harm done to victims or to the community; and (

f) promoting a sense of responsibility in offenders, and acknowledgment of the harm they have caused to victims or to the community. [ 20 ] Ultimately, the fundamental principle of sentencing, set out in s. 718.1 of the Criminal Code , is to impose a sanction that is proportionate to the gravity of the offence committed and the degree of responsibility of the offender. [ 21 ] The principle of restraint is contained in ss. 718.2 (

d) and (

e) of the Criminal Code mandating that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances; and all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [ 22 ]

Section 718.2 (

a) of the Criminal Code states that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. AGGRAVATING AND MITIGATING FACTORS [ 23 ] I find the following to be aggravating factors in L.H.’s case:

(1) The circumstances surrounding the commission of the offence on November 1, 2020 amounted to a significant violation of the sexual and physical integrity of the victim, C.W. C.W. was sleeping and awoke to L.H. touching her body including her breasts, buttocks, and legs. L.H. also put his hand down her pants and attempted to digitally penetrate her. Notwithstanding that C.W. pushed L.H. off multiple times, he persisted and took her hand and placed it down his pants. It is an admitted fact that L.H. then pulled C.W.’s pants down and began to engage in non-consensual vaginal intercourse with her and that she eventually stopped resisting because it was clear that L.H. would not stop.

(2) C.W. provided a brief but poignant victim impact statement which shows that the sexual assault has, understandably, had a lasting impact upon her. [ 24 ] The following are mitigating factors in L.H.’s case:

(1) L.H. is 25 years old and has no prior criminal record. He is a young first offender.

(2) He entered a guilty plea to the offence which is indicative of remorse and acceptance of responsibility. I accept as genuine that L.H. is extremely remorseful for his actions. He expressed immediate remorse to C.W. in messages they exchanged the morning of the offence. The information contained in the PSR and letters of support demonstrate his remorse and insight.

(3) By entering a guilty plea, L.H. has spared the victim from having to testify at a trial. The guilty plea has also spared the valuable judicial resources that would have been required for a trial.

(4) Despite a difficult upbringing, L.H. has managed to maintain full-time employment and the PSR and letters of support outline the many pro-social aspects of his life, including that he is a valued and hard-working employee, a caring and loving son, brother, uncle, and partner.

(5) L.H. has the support of his family including his siblings, mother, and stepfather who are all aware of the details of the offence he committed. His close relationship with his family and partner bodes well for his prospects of rehabilitation, as does the insight he has demonstrated and his willingness to participate in counselling to address the root causes of his behaviour.

(6) All collateral sources indicate that the offence L.H. committed is out of character and L.H.’s consumption of alcohol on the date of the offence may have been a contributing factor to commission of the offence. Intoxication is not an excuse for the crime, but it is a circumstance that must be considered in assessing the moral blameworthiness of the offender. By all accounts, L.H. does not struggle with substance use and rarely drinks.

THE SENTENCE [ 25 ] The Crown’s position that a custodial sentence is required to address primarily the principle of denunciation in this case, but also deterrence, is understandable. Those principles are always at the forefront when sentencing for sexual offences. [ 26 ] The Crown proceeded summarily on the sexual assault charge. In her submissions, Crown counsel, Ms. McKenzie, noted that this election had been made by another Crown in her office and that she was bound by it. The clear suggestion arising from this submission was that the

summary conviction election made by the Crown was made without due consideration of the circumstances surrounding the commission of the offence. [ 27 ] The maximum sentence for sexual assault when the Crown proceeds summarily is 18 months. The Crown seeks the maximum sentence in this case. In R. v. Solowan , 2008 SCC 62 , at paras. 15-16 , the Supreme Court of Canada said the following: 15 A fit sentence for a hybrid offence is neither a function nor a fraction of the sentence that might have been imposed had the Crown elected to proceed otherwise than it did. More particularly, the sentence for a hybrid offence prosecuted summarily should not be “scaled down” from the maximum on

summary conviction simply because the defendant would likely have received less than the maximum had he or she been prosecuted by indictment. Likewise, upon indictment, the sentence should not be “scaled up” from the sentence that the accused might well have received if prosecuted by

summary conviction. 16 In short, the sentencing principles set out in

Part XXIII of the Criminal Code apply to both indictable and

summary conviction offences. Parliament has made that clear in the definition of “court” at s. 716 of the Code. And when the Crown elects to prosecute a “hybrid” offence by way of

summary conviction, the sentencing court is bound by the Crown’s election to determine the appropriate punishment within the limits established by Parliament for that mode of procedure.

Absent an error of principle, failure to consider a relevant factor, or overemphasis of the appropriate factors, any sentence within that range — including the maximum — should not be varied on appeal unless it is demonstrably inadequate or excessive. [ 28 ] The caselaw submitted by the Crown demonstrates that the sentencing objectives of deterrence and denunciation will normally require penitentiary sentences in the 3 to 5 year range for violent sexual assault cases: R. v. A.J.K. , 2022 ONCA 487 and R. v.

R.S. , 2023 ONCA 608 . [ 29 ] L.H.’s case does not involve the level of physical violence seen in the case of R.S . However, the admitted facts are that L.H. began the sexual assault when C.W. was asleep, and although C.W. was persistent in her attempts to push L.H. off her, he continued and escalated the assault to the point of non-consensual vaginal intercourse. This was not a case like R. v.

Morgan , 2021 ONCJ 100 provided by the Defence, wherein the accused asked an intoxicated victim, who did not have the capacity to consent to sexual activity, whether she wanted to have sex and received an affirmative response, placing the accused’s mental fault at recklessness concerning her capacity to consent.

On the admitted facts, L.H. was aware of C.W.’s lack of consent to his sexual touching by her conduct in trying to push him away and persisted to the point of non-consensual vaginal intercourse. [ 30 ] Some of the cases submitted by the Crown speak to the factual scenario of an offender who engages in sexual intercourse with a victim who was asleep: R. v. Hughes , 2017 ONCA 814 ; R. v. Sanderson , 2016 ONCA 866 ; R. v. Crespo , 2016 ONCA 454 ; and R. v. J.F. , 2015 ONSC 5763 .

Each of these cases involve findings of guilt after trial and suggest a range of between 15 months and 30 months jail in cases involving a sleeping victim. In these cases, there is an absence of the mitigating factor of a guilty plea that is present in L.H.’s case. However, there is also the absence of the aggravating feature of continuation of the assault after the victim made it known that the sexual activity was unwanted. [ 31 ] Notwithstanding the strongly mitigating factors in L.H.’s case, I find that a sentence of 18 months jail is a fit sentence. I have considered ss. 718.2 (

d) and (

e) of the Criminal Code , and whether a conditional sentence of imprisonment is appropriate. L.H. is a first offender. There is no identifiable risk that the community would be endangered by L.H. serving his sentence in the community. [ 32 ] However, a conditional sentence of imprisonment must also be consistent with the fundamental principles of sentencing set out in the Criminal Code . I find that, in this case, a conditional sentence of imprisonment would not be proportionate to the gravity of the offence nor adequately fulfill the principles of denunciation and deterrence.

The seriousness of the offence, the significant violation of the victim’s sexual and physical integrity and the impact on the victim requires a custodial sentence. [ 33 ] As the Supreme Court of Canada said in R. v. Proulx, 2000 SCC 5 , at para. 114 : Where punitive objectives such as denunciation and deterrence are particularly pressing, such as cases in which there are aggravating circumstances, incarceration will generally be the preferable sanction. This may be so notwithstanding the fact that restorative goals

might be achieved by a conditional sentence. [ 34 ] I find L.H.’s case to be one where the aggravating factors make the punitive objectives of denunciation and deterrence pressing enough to require a custodial sentence. [ 35 ] The 18-month jail sentence will be followed by a period of probation of two years. In addition to the statutory conditions of probation, L.H. will have the following conditions of probation:

(1) Report in person or by telephone to a probation officer within two working days of your release from custody and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision;

(2) Do not contact or communicate in any way, directly or indirectly, by any physical, electronic or other means with C.W.;

(3) Do not be within 50 metres of any place where you know C.W. to live, work, go to school, frequent or any place you know her to be except for required court attendances;

(4) Do not possess any weapons as defined in the Criminal Code ;

(5) Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer, including but not limited to sexual offending behaviour. You shall sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed.

You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed. [ 36 ] Pursuant to s. 487.051 of the Criminal Code , I order L.H. to provide samples of bodily substances reasonably required for the purpose of forensic DNA analysis to be used in accordance with the DNA Identification Act . [ 37 ] Pursuant to s. 110 of the Criminal Code , I order that L.H. is prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance for a period of 10 years. [ 38 ] Pursuant to sections 490.011(1) (

a) and 490.013(2) of the Criminal Code , I make an Order in Form 52 of the Criminal Code requiring L.H. to comply with the Sex Offender Information Registration Act . This Order applies for 10 years. Released: February 15, 2024 Signed: Justice J.P.P. Fiorucci