) ) HER MAJESTY THE QUEEN – v. –, 2013 ONSC 158

CITATION : R. v. Ryan, 2013 ONSC 158 COURT FILE NO.: 187/11 DATE: 20130114 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – and – JHADIEL MICHAEL RYAN ) ) ) ) ) ) ) ) ) ) ) ) M. Mackenzie, for the Crown J. Budgell, for Jhadiel Michael Ryan ) ) A NON-PUBLICATION AND NON-BROADCAST ORDER HAS BEEN MADE IN THIS PROCEEDING UNDER THE CRIMINAL CODE OF CANADA REASONS FOR SENTENCE HOURIGAN J. [ 1 ] Jhadiel Michael Ryan pleaded guilty to one count of sexual assault and one count of failure to comply with a probation order.

Circumstances of the Offences [ 2 ] A synopsis of the circumstances of the offences was filed on consent and reads follows: The victim and the accused were dating between November 2009 and April 2010. The victim ended the relationship however they would occasionally communicate through computer and telephone contact. On May 19 th , 2010 while communicating over telephone text messages, the accused arranged to meet with the victim. The accused picked the victim up in his vehicle at approximately 7:15 p.m. and the pair drove around for a short time.

The accused took the victim to his residence at C[…] Way in the City of Milton. The victim and the accused went to his bedroom and closed the bedroom door. The accused told the victim to stand up from his bed. He began to caress the victim’s arms and legs. The victim told him to stop and pushed him away. The accused pushed the victim on to his bed, turned her onto her stomach and handcuffed her hands behind her back. The accused removed the victim’s pants and pushed her tops aside. He began to kiss her body. The victim told the accused to stop.

The victim began to cry and the accused told her to stop, or his mother (who was present in the home) would hear and he’d get into trouble. The accused placed a pillow over the victim’s face.

The accused held a camera and the victim could hear a click as though a picture was being taken, however she did not see a flash. The accused released her from the handcuffs and kept her on the bed. The accused told the victim that if she gave him oral sex she could leave. The victim refused and kept her head turned away from the accused. The accused pushed the victim to her knees, and removed her underwear. The accused knelt beside the victim and penetrated the victim’s vagina with his penis. The accused forced sexual intercourse on the victim. The accused did not use a condom and it is unknown if he ejaculated.

The accused stopped the assault and told the victim to re-dress. The accused insisted on driving the victim home. The victim refused and the accused walked the victim partial way home. The accused insisted the victim give him a hug and then “high fived” the victim. The victim called her mother and continued on her way home. At approximately 9:30 p.m. the police were contacted and the victim attended the hospital and had a Sexual Assault Evidence Kit collected. The victim provided a voluntary statement to police outlining the above incident. The accused was subsequently arrested by Halton Regional Police.

The accused was provided his Rights to Counsel and Cautions and was afforded the opportunity to speak with Counsel in private. The accused declined to provide a statement to police. A search warrant was executed on the accused’s bedroom. Police seized the handcuffs used in the assault, along with the keys and case. In addition, several cameras, computers and cellular phones were seized as well as the accused’s bedding. A forensic examination was done on the electronics seized from the accused’s bedroom which initially did not reveal any images related to the sexual assault of the victim.

Immediately after the preliminary hearing, one of the camera memory cards was forensically examined a second time, using newly acquired, more up to date hardware suitable for high capacity cards. This search revealed a video of the initial part of the offences, depicting the victim handcuffed, crying and begging to be let go. In addition, samples from the SAEK done at the hospital were sent to CFS for testing. Forensic DNA testing resulted in confirming the presence of semen in the vaginal swab taken from the complainant. Comparison revealed that this was the accused’s DNA.

On March 2 nd , 2009 the accused, Jahdiel Ryan, was placed on a valid probation order for the offence of Sexual Assault. This Probation order was signed by Justice R.J. LeDressay of the Ontario Court of Justice in the City of Burlington and included several conditions including: Keep the Peace and be of Good behaviour. On May 19 th , 2010, while bound by said order, the accused failed to comply with this Probation Order when he sexually assaulted this victim and confined her to his room. The accused was subsequently charged with Fail to Comply Probation Order,

section 733.1(1). [ 3 ] A description of the content of the videotape was also filed on consent and reads as follows: The video is 1 minute and 2 seconds in length. The victim V.T. is on the accused’s bed is wearing only a bra and underwear. VT: “Why are you doing this to me?” Accused: “This is what you wanted from me.” VT: “No, it’s not, honestly I only wanted to talk. I didn’t want anything else.” Video then pans to her face and it appeared her eyes were closed, she then turned her head sideways. Upset and crying. Accused: (inaudible) “You look good, turn and look at me.” VT: Turns her head and says “no”.

In obvious distress. Accused: “Look at me, baby.” VT: “No, I can’t do this. Why are you doing this to me?” Accused: “Shhh, this is what you wanted.” VT: “No it’s...inaudible...” Accused: “Shhh, don’t scream, don’t scream.” VT: “Just let me go please, Ryan please, just let me go!”

Accused: “Shhh, baby, shhh.” VT: “Let me go. I will never speak to you again.” Accused: “Shh, don’t worry, turn around.” VT: “No, don’t do this to me.” She is now crying loudly. Accused: “I love you so much, you have no idea.” VT: “If you did you wouldn’t be doing this.” You can now see the victim’s back and her hands are handcuffed. “Please don’t. I don’t want this.” Video ends. Circumstances of the Offender [ 4 ] Mr. Ryan was born in North York, Ontario, in 1983. According to his presentence report, Mr.

Ryan had a stable childhood and continued in school to grade 11 when he left school due to a lack of interest in academics. From the time of leaving school Mr. Ryan has been in the work force, however, he has not had any long-term viable employment. [ 5 ] According to the presentence report, since his arrest on the charges herein, Mr. Ryan has continued to reside with his mother and worked at casual employment with the Rogers Centre in Toronto as an event usher. In this position, he works a few days per month and earns between one hundred and two hundred dollars per month.

He is also attempting to start his own Internet-based music business. [ 6 ] Mr. Ryan’s mother stated that she had encouraged Mr. Ryan to return to college for training, but that he has been unwilling to do so. Mr. Ryan did attend a six-month employment preparation program through Ontario Works which was completed in November 2011. [ 7 ] There is no indication of any alcohol abuse on behalf of Mr. Ryan. Similarly, although Mr.

Ryan admits to occasional use of marihuana in the past, there is no concern regarding drug use by any of the collateral sources contacted during the preparation of the presentence report. [ 8 ] Mr. Ryan was convicted on March 2, 2009 of sexual assault against an adolescent female. He received a 90-day jail term followed by two years probation. Mr. Ryan continued throughout the probation period to deny any offending behaviour. The probation period expired on April 29, 2011. [ 9 ] During the course of his probation, Mr. Ryan was referred for a risk assessment test conducted by Bruce Cook, a clinical psychologist.

He was diagnosed as afflicted with adjustment disorder and anti-social and paranoid personality traits. According to the presentence report, counselling was recommended to him to address stressors in his life and the denial of anti-social behaviour, but he was not assessed as a suitable candidate for specific sex offence counselling because of his extreme state of denial. At the time he was assessed as a moderate high risk to re-offend. According to the presentence report, Mr.

Ryan did attend counselling sessions, but was not enthusiastic about participating and did not develop significant insight into his behaviour. [ 10 ] The author of the presentence report noted that during his interview for the report Mr. Ryan did acknowledge responsibility for the current offences and displayed insight into underlying anger and control issues. The author of the report concluded: While the Offender has expressed some insight into his pattern of offending, he has done little in life to address his personality deficits.

He has not sought any further counselling and has done little to address his employment or lack of independence. In addition to his sexual deviancy and power and control issues, these personality deficits leave the Offender at high risk to re-offend. Impact on Victim [ 11 ] A victim impact statement was filed at the sentencing hearing. The victim reported that the sexual assault has caused her emotional harm, including stress, trust issues and has adversely impacted her relationship with her boyfriend.

She is now seeing a therapist and was placed on medication to control her anger. [ 12 ] The victim also reports that she received a sexually transmitted disease, Trichomoniasis, as result of the assault. [ 13 ] The victim states that as result of the assault she has moved back in with her mother because her mother’s residence is more secure. She also eventually dropped out of school because she was missing classes due to a lack of sleep. Finally, she was forced to purchase a car so that she would not have to walk anywhere at night.

Position of the Crown [ 14 ] The Crown submits that a period of incarceration of between five and five-and-a-half years is appropriate in the circumstances. The Crown also seeks a

section 109 order, a Sexual Offender Information Registry Act order and a forfeiture order.

[ 15 ] The Crown acknowledges Mr. Ryan’s guilty plea as a mitigating factor. However, the Crown submits that there are a series of aggravating factors that should be taken into account. First, is the fact that the victim was handcuffed and a pillow was placed over her head so that Mr. Ryan’s mother would not be alerted. Second, is that during the initial part of the offence Mr. Ryan videotaped the victim. Third, the accused had a prior conviction for sexual assault and was still on probation for that offence at the time of this offence.

Fourth, the Crown submits that this was a breach of trust as the victim was formerly involved in an intimate relationship with Mr. Ryan and that is why he had the ability to commit the offence. Finally, the Crown notes that the accused did not use a condom during the offence. [ 16 ] The Crown acknowledges that the case law relied upon is not on all fours with the situation in this case. She submits that normally the conduct in this case would warrant a sentence of three to four years incarceration, relying upon the following authorities: R v. M.K., [2005] O.J. No. 127 (Ont. C.A.) , R. v. J.S., [2011] O.J.

No. 4684 (Ont. S.C.J.) , R v. Parker , [2012] Q.J. No. 5739 (Court of Que.) , R v. Barton , [2002] O.J. No. 4105 (Ont. C.A.) and R v. R.D.C., [2005] O.J. No. 2922 (Ont. C.A.) . However, she submits that the sentence should be increased because of the aggravating circumstances referred to above. Position of the Defence [ 17 ] The defence submits that an appropriate sentence is in the range of three years incarceration. [ 18 ] Defence counsel submits that Mr. Ryan is in the early stages of acknowledging that he has a problem.

Counsel notes that her client attended follow-up sessions with Bruce Cook, but stopped taking counselling after his probation ended. [ 19 ] Defence counsel points to Mr. Ryan’s guilty plea as a mitigating factor. She also notes there was no prior abuse in the relationship and that Mr. Ryan was fully compliant with the terms of his bail. [ 20 ] With respect to case law relied upon by the defence, counsel concedes that there is nothing directly on point, but she submits that a sentence of incarceration of three years is within the appropriate range. She relies on the decision of Justice Croll in R. v.

J.R. [2005] O.J. No. 4825 (Ont. S.C.) wherein the accused pleaded guilty to sexual assault and uttering a death threat. He was sentenced to a two-year penitentiary term concurrent on both counts. [ 21 ] The defence also relies on R. v. Bridgemohan, 2009 ONCA 577 . In that case, the appellant appealed his conviction by a jury of sexual assault and his sentence of four-and-a-half years in custody. On appeal, the court reduced the sentence to three years. The defence notes that in that case there was previous convictions for sexual assault and forcible confinement. [ 22 ] The defence relies on R. v. Quesnelle .

In that case, the accused was sentenced following a conviction on two counts of sexual assault and two counts of assault. Both victims who were sexually assaulted were punched in the face or on the jaw and then forced to engage in anal intercourse. The accused was sentenced to three years on the first sexual assault and three-and-a-half years on the second sexual assault, to be served consecutively. [ 23 ] Finally, the defence relies on R. v. Thomas , 2011 ONSC 4050 . In that case, Justice Spies sentenced the accused for two counts of sexual assault, attempt to obstruct justice and breach of recognizance.

The accused was sentenced to 22 months. [ 24 ] Defence counsel submits that every sexual assault case has aggravating factors and that a sentence in the range of three years is well within the range. She submitted that she has no issue with the ancillary orders sought, but submits that the camera and media card in the camera should not be subject to a forfeiture order. Analysis [ 25 ] The general principles of sentencing were summarized by Justice Trafford in R. v.

Palantzas (2009), unreported: Under s. 718 of the Code , the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing a just sanction.

Any such sanction must, looking at the case as a whole, be the result of a fair and balanced consideration of the need to: • denounce the unlawful conduct; • deter the offender, and others, from committing such an offence; • separate the offender from society, where necessary; • assist in the rehabilitation of the offender; • provide reparation for harm done to "victims", or the community; and • provide a sense of responsibility in the offender, while acknowledging the harm done to the "victims" and the community.

Section 718.1 of the Code requires the sentence to be proportionate to the offence and the degree of the offender's responsibility. An offender is not to be deprived of his liberty if less restrictive sanctions may be appropriate in the circumstances of the case. All available sanctions other than imprisonment that are reasonable in the circumstances must be considered for all offenders. It is to be emphasized that these principles of sentencing do not include a principle of revenge.

Offenders are not incarcerated for the purpose of establishing an equivalence between the loss of the victim, or victims, and the sanction imposed by the Court. Rather, the Court is required to recognize the inherent worth and dignity of the offender and, having balanced the principles provided by the Code , determine a fit sentence in the circumstances of the case. This is the Canadian tradition, a tradition that enjoys a long and respected history in Canada and other free and democratic societies like it throughout the world.

[ 26 ] Given Mr. Ryan’s relatively young age, any sentence cannot stymie his ability to be rehabilitated, but I note that Mr. Ryan has failed in the past to make use of opportunities for rehabilitation. [ 27 ] In my view, a sentence in the range of approximately three to four years incarceration is appropriate in circumstances where the offender has a previous conviction for sexual assault, has pleaded guilty and has expressed remorse for his actions. However, regard must be had to the aggravating factors in this case.

I disagree with the assertion made by defence counsel that all sexual assaults by their nature contain aggravating factors and thus those factors should not be considered in fashioning an appropriate sentence. [ 28 ] In this case at bar, the most significant aggravating factors are the videotaping of the initial stages of the offence and the fact that the victim was handcuffed.

Both of these actions were undertaken as a means of asserting control over the victim and as part of an effort to degrade and humiliate her. [ 29 ] Turning first to the videotaping, neither counsel was able to provide me with any authority where the impact of the videotaping of a sexual assault was considered by our courts.

It is a reasonable inference that the videotaping was done for the purpose of later use for the offender’s sexual gratification and/or for subsequent distribution. [ 30 ] We live in a digital age where information may be uploaded to the Internet in a matter of seconds and thereafter its use and distribution will be beyond the control of any party. In the case of a sexual assault, the potential for such a video to be uploaded means that a victim may be revictimized countless times as the video is downloaded in the future.

I acknowledge that in the case at bar that there is no evidence that the video has been disturbed, but the potential for distribution certainly was there at the time the video was made. The possible future use of the video for the offender’s sexual gratification also leads to a potential of revictimization. [ 31 ] The handcuffing of the victim during the assault is also a significant aggravating factor. This action demonstrates a need on the part of the offender to exercise control over the victim and to humiliate her.

Disposition [ 32 ] I conclude that a fit sentence in all of the circumstances is 54 months of incarceration on the count of sexual assault. I conclude that a fit sentence for the count of fail to comply with a probation order is 6 months incarceration. These sentences shall be served concurrently. [ 33 ] Sexual assault is a primary designated offence and a DNA order is mandatory unless the offender has brought himself within the exception. Mr.

Ryan did not do so and, accordingly, a DNA order will go. [ 34 ] Similarly, an order for compliance with the Sex Offender Information Registration Act for a period of twenty years is mandatory unless the offender bring himself within the exception. Mr. Ryan did not do so. That order will go for a period of twenty years. I make this order because Mr. Ryan has committed a very serious sexual offence and I do not conclude that the order will have a disproportionate impact on his privacy or liberty interests. [ 35 ] The forfeiture order sought by the Crown will also go.

This order was not opposed by the defence, with the exception of the camera and the media card. Those items were integrally involved in the commission of the sexual assault and I am satisfied beyond a reasonable doubt that they are offence-related property. I order that those items are subject to my forfeiture order. [ 36 ] A

section 109 weapons prohibition order for life will also issue. HOURIGAN J. Released: January 14, 2013

CITATION : R. v. Ryan, 2013 ONSC 158 COURT FILE NO.: 187/11 DATE: 20130114 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN – and – JHADIEL MICHAEL RYAN REASONS FOR SENTENCE HOURIGAN J. Released: January 14, 2013