) ) D.M.N. Plaintiff – v. –, 2013 ONSC 3291

CITATION : DMN v. Staples, 2013 ONSC 3291 PETERBOROUGH COURT FILE NO.: 16/11 DATE: 20130606 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) D.M.N. Plaintiff – and – Jason Staples Defendant ) ) ) ) ) ) ) ) ) Robert Besunder, for the Plaintiff Jason Staples noted in default and not present; ) ) ) HEARD: May 15, 16, 17, 21, 22, 27, 28, 29 and 30, 2013 in conjunction with related case, File No. 337/07 GUNSOLUS, j. [ 1 ] The plaintiff, D.M.N. was a resident of the City of Peterborough. She was 46 years of age at the time of the events that gave rise to this action. She was and is a cranial-sacral therapist.

The defendant, Jason Staples, was a store clerk in an independent health food store, located in what is popularly known as “East City” in Peterborough, Ontario. On November 7 th , 2005, D.M.N. decided that she needed to purchase rice milk and a “treat for mother’s tea”. [ 2 ] Jason Staples restrained her at knifepoint, bound her with duct tape, forcibly confined her and committed sexual assault and physical assault upon her. The attack was without warning and most brutal. D.M.N. continues to suffer in the result.

This innocent excursion to purchase items for her elderly mother’s comfort resulted in an unforgivable tragedy. [ 3 ] Jason Staples was noted in default in this action.

He pled guilty on December 20 th , 2007 to the following, amongst other, charges in relation to D.M.N.: kidnapping with intent to confine D.M.N. against her will; sexual assault; aggravated sexual assault; carrying a weapon for the purpose of committing a criminal offence; verbally and knowingly uttered a threat to the plaintiff to cause her death. [ 4 ] On February 28, 2008, Jason Staples was found guilty of those charges in the Ontario Superior Court of Justice by Mr. Justice Barry MacDougall. [ 5 ] On May 15 th , 2008, Mr.

Justice MacDougall designated Jason Staples a dangerous offender and sentenced him to an indeterminate sentence in penitentiary based upon these and other charges before him. Issues Before This Court [ 6 ] D.M.N.’s claim includes a request for general, punitive, exemplary and aggravated damages. D.M.N. [ 7 ] D.M.N. was born[…], 1959 and resides in the City of Peterborough. She has enjoyed a variety of careers, mostly within the medical field, and currently is a registered cranial-sacral therapist.

She described to the court the intimate nature of the treatment of patients as such a therapist and the effect that these awful events have had upon her ability to pursue her career. [ 8 ] It was clear from her evidence, and that provided by Lilli Swanson, Registered Cranial-Sacral Therapist, and Carlyle Smith, Professor Emeritus of psychology and Director of Trent University’s sleep lab, that she is an exceptionable woman who’s professional and personal life are intertwined. She possesses an intuitive ability to heal.

From the evidence, it was clear that she is indeed a person who has a large concern for others and pursues her abilities to heal others with much compassion and caring. [ 9 ] D.M.N.’s counsel described her as a hero who demonstrated her concern for others during this awful incident. As he pointed out, D.M.N. wanted to insure that her fellow captive was alive and wanted to assure her that she would do everything possible to get them

both out of the situation alive. She even, using her counselling abilities, engaged Jason Staples, the defendant in this case, and may well have been the catalyst who caused Jason Staples to give himself up and to not commit a more serious harm or even the death of herself and her fellow captive. [ 10 ] D.M.N. received her designation as a registered cranial-sacral therapist just prior to the events that occurred in November 2005.

She described herself as being very excited and optimistic about her new career, ongoing training, and was finally working with those whom she respected and truly enjoyed working with. [ 11 ] She had recently put her career on hold in order to provide full-time care for her mother who had then recently suffered a broken hip.

On November 7 th , 2005, upon realizing she needed to purchase rice milk and wanting to obtain a “treat for mom’s tea”, she undertook the five minute walk from her home to Kelcey’s Nutrition Centre where she encountered Jason Staples. [ 12 ] She described the life changing events when Jason Staples abducted her at knife point, forcing her into the walk-in cooler at Kelcey’s, threatening to kill her, raping her and physically assaulting her, all repeatedly.

Ultimately, she described his taping of her wrists and feet and his leaving her in the cold, walk-in unit for a considerable length of time. [ 13 ] D.M.N. advised the court that Jason Staples insured that she understood that he was “a murderer, rapist and that he had served time in prison” and that he threatened her with the admonishment that if she didn’t cooperate, he would indeed kill her. [ 14 ] The repeated sexual, physical and assault upon her emotions was of such a nature that she “prayed I would die quickly.” She believed that he would beat her to death. He told her “I am a monster.

I have always been this way” and continued rants that ranged from threatening to kill her and her fellow captive, continually assaulting her with his penis, slapping her breasts and causing her to believe that indeed, her life would soon be over. D.M.N. had the added sense that she was responsible not only for her own life but also for her co-captive’s life and described using her counselling powers in an attempt to try to engage Staples, hoping that then he would ultimately spare their lives.

Physical Injuries [ 15 ] As a result of this brutal, senseless attack, she required seven stitches in her anus; her hair had been hacked; she had severe bruises on her face, wrists, legs and suffered soreness all over her body. She lost bowel control for some time after the events and was sickened and suffered severe diarrhoea from the anti-HIV drugs she was required to take on a precautionary basis. [ 16 ] D.M.N. described the scar tissue on her anus which has continued to cause bleeding and may require surgical correction in the future.

She continues to suffer from loss of bowel control as a result of triggering events that cause her panic attacks. She has undergone extensive therapy using the funds that she received from the Criminal Injuries Compensation Board. Emotional Effects [ 17 ] D.M.N. described to the court the nightmares, sleep interruption and insomnia that she continues to suffer from. [ 18 ] She described how challenging intimacy has been with her husband and how she has required counselling in that regard.

She has never been able to shake off the fear that she may yet contact HIV or some other sexually transmitted disease. [ 19 ] In her new career as a cranial-sacral therapist, she has found that she is unable to treat her existing male patients or to take on new male patients. This has caused her to fear that she will never be able to establish a stable income in her chosen career.

As a result, she suffers from hopelessness, depression, and feels unsafe everywhere, including in her own home, where, as she said “my husband just installed the third lock on the front door”. [ 20 ] D.M.N. gave evidence that she tries to put on a happy face for her husband and others “so they don’t worry about me”, but admits that she continues to suffer from depression, flashbacks of the events and has even had suicidal thoughts. [ 21 ] She is no longer able to watch televised newscasts as it makes her think of “all the other victims out there”.

She trusts no strange man, as she sees them all as being “Jason Staples” and will even cross the road if she observes a man sitting in a parked car she encounters as she walks along the streets. [ 22 ] I would describe D.M.N.’s testimony as displaying a grief beyond anything I have ever encountered in my legal career, which has expanded over 30 years. D.M.N. described how she has had to allow job opportunities to go by the wayside as she feels unsafe and unable to function in a small, clinical setting.

Her despair is mirrored in the thought that she shared that “I am tied to him (Staples) the rest of my life”. [ 23 ] She described the day in question as being the first time that she realized that she had no control and that her life was in another’s hands. As she said “I couldn’t even have died if I had wanted to”. [ 24 ] In her evidence, D.M.N. said that she hopes Jason Staples would “never get out” and would “never be able to hurt anyone again”.

She also said that it tears her apart that Jason Staples’ ex-wife is profiting from a book that she authored about this event, the contents of which D.M.N. believes do not accurately reflect what she went through. [ 25 ] D.M.N. just wants to get on with her life, but it tears her apart to think that her mother’s last few years were spent worrying about her as a result of the assault by Jason Staples.

Dr. Charlie Menendez [ 26 ] Psychotherapy reports were submitted as authored by Dr. Charlie Menendez, Psychologist, dated February 27, 2007 and July 8, 2010. [ 27 ] Dr. Menendez confirmed that D.M.N. has experienced a variety of psychological and physical symptoms subsequent to the rape and assault that Jason Staples inflicted upon her. [ 28 ] To quote him, “As described above, D.M.N. was negatively affected in many profound ways by the assault, which was particularly horrific.

Despite her many resources, which allowed her to interact with her abuser in such a way as to persuade him not to kill her and the other victim, the experiences were such that they remain psychologically intrusive and make it difficult for her to interact with people in the manner she was accustomed to. Specific impacts include withdrawal from work, friends and family, a reduced scope of personal and professional activities, changed relationships with men and currently a total withdrawal from physical intimacy with men.” [ 29 ] In terms of prognosis, Dr.

Menendez advised that “D.M.N.’s treatment has been challenging because of the violent, demeaning, highly intrusive and life-threatening assault, the way in which the assault triggered past experience and its current manifestation in close relationships. However, she has made significant progress and the prognosis for even more marked reduction of trauma symptoms is good.

Specifically, with further therapy, it is anticipated that D.M.N.’s reactivity and re-experiencing will diminish considerably and she will re-establish a fully functioning pattern of intimate relationships.” [ 30 ] In his report of July 8 th , 2010, Dr.

Menendez confirmed that although D.M.N. continues to make progress, “she continues to experience significant formal symptoms of post-traumatic stress disorder, as well as other complex consequences of the trauma that substantially interferes with many aspects of her life, including her ability to practice her profession, free movement in the community, and committing herself fully to a happy, secure intimate relationship.

She is likely to experience symptoms in the long-term and while can be expected to have a rewarding life, will probably never fully put the experience of the assault behind her.” Liability of Jason Staples [ 31 ] Jason Staples committed the intentional tort of sexual assault on D.M.N., amongst other things. Such a tort is known as battery, which is the intentional infliction of unlawful force on another person.

It is actionable without proof of damage and the consequential liability is not limited to foreseeable damage. [1] [ 32 ] Staples is also liable as a result of the provisions of the Victim’s Bill of Rights [2] since he was convicted of the crime and is therefore liable in damages to D.M.N. for emotional distress, bodily harm resulting from the stress and arising from the actual commission of the crimes that he committed against D.M.N.. Further, by

section 3.2, as a victim of sexual assault, D.M.N. is presumed to have suffered emotional distress. [ 33 ] Jason Staples pled guilty to sexual assault amongst other crimes in relation to D.M.N. before Mr.

Justice Barry MacDougall on December 20 th , 2007 and he was found in the result to be a dangerous offender by Justice MacDougall on May 15 th , 2008. [ 34 ] Rules 19.02 and 19.06 of the Rules of Civil Procedure [3] apply such that Jason Staples, being a defendant noted in default, is deemed to admit the truth of all allegations of fact made in the statement of claim filed in this matter as against him. [ 35 ] Paragraphs 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, and 21of the Statement of Claim set out the facts upon which D.M.N. is entitled to judgment as against Jason Staples.

The evidence that the court heard also entitles her to judgment against Jason Staples. General and Aggravated Damages [ 36 ] Counsel for D.M.N. urged me to consider the nature of the events surrounding this assault by Jason Staples upon D.M.N.. As he pointed out, an individual such as D.M.N. expects basic security of her person. Walking into a retail store to purchase simple items such as rice milk and a “treat for mother’s tea” carry with it an expectation of security of that person.

To then be subjected to an unprovoked, random, heinous crime of the nature that D.M.N. experienced, should be taken into consideration when determining where, on the scale of appropriate general/aggravated damages. [ 37 ] Counsel referred me to M.B. v. 2014052 Ontario Ltd. (Deluxe Windows of Canada) [4] , Hockley v. Riley [5] , Hudson v. Youth Continuum Inc. [6] , and Doe v. Metropolitan Toronto (Municipality) Commissioners of Police [7] . He suggests that these cases set out a very wide range, from $25,000 to in excess of $300,000.

He also urged me to consider inclusion of aggravated damages, considering the constant threat of death that Jason Staples directed at D.M.N. during the assaults and his assurance that his past would indicate that he was capable of carrying out the threat. [ 38 ] He also urged me to consider the fact that Jason Staples’ ex-wife has apparently published a book, which D.M.N. believes does not accurately reflect the events, and which allowed the author to profit from the trauma the victims have suffered from. [ 39 ] I order that Jason Staples pay General/Aggravated damages in the amount of $225,000, which includes $75,000 representing Aggravated Damages, based upon the nature of the assault and the facts of this case and the effects that these events have had upon D.M.N..

Punitive Damages [ 40 ] Counsel referred me to an Ontario Court of Appeal case, Marcia Lorraine Hockley v. Robert Gordon Riley and Marjorie Leudy, formerly Marjorie Riley . [8] [ 41 ] He referred me in particular to Justice Binnie’s prerequisite of rationality for an award of punitive damages. To quote from paragraph 25: The Jury followed the “if, but only if” model, i.e., punitive damages should be awarded “if, but only if” the compensatory award is insufficient.

The form and order of the questions put to the jury required them first of all to deal with compensation for the loss of the plaintiff’s house (replacement or cash value), its contents, and any increase in her living and moving expenses. Only after those matters had been dealt with was the jury instructed to turn their minds to a final question on punitive damages.

They were clearly aware that compensatory damages might well be sufficient punishment to avoid a repetition of the offence and a deterrent to others . [Emphasis added] [ 42 ] While punitive damages are only ordered in exceptional cases, they are intended to go beyond compensatory damages with the intention to punish the wrongdoer. [ 43 ] Justice Binney, in Whitten v.

Pilot Insurance Company [9] describes punitive damages as designed to meet the objectives of punishment, deterrence and denunciation outside the realm of compensation. [ 44 ] Punitive damages are generally imposed only if there has been high-handed, malicious, arbitrary or highly reprehensible conduct that departs, from a marked degree, from the ordinary standards of behaviour.

A quantum of punitive damages should be awarded in an amount reasonably proportionate to such factors as the harm caused, the degree of misconduct, the relative vulnerability of the plaintiff and any advantage or profit gained by the defendant. Punitive damages should generally be given only where the misconduct would otherwise be unpunished, or other penalties are or are likely to be inadequate to achieve the objections of retribution, deterrence and denunciation.

While they are not intended to compensate the plaintiff, they are intended to defer the defendant or others from similar misconduct in the future and to reflect the community’s collective denunciation of such activity. [ 45 ] Considering these and in particular the eleven criteria set out by Justice Binney in Whitten at paragraph 94 [10] , I believe in this case, punitive damages should be ordered. Jason Staples’ behaviour was vicious, cruel and inflicted upon the plaintiff, who was a total stranger. The attack was unprovoked.

In the circumstances of a caregiving daughter/therapist innocently entering into a retail establishment in order to make two small purchases to comfort her mother, to be viciously physically and sexually assaulted, is conduct that markedly departs from ordinary standards of decent behaviour and that society, not only collectively condemns but expects to be responded to in such a way by our courts, to deter a defendant such as Jason Staples and others from similar conduct in the future. [ 46 ] Jason Staples’ actions were reprehensible.

D.M.N.’s person and self-worth reflect compensatory damages insufficient to accomplish the objective of punishment in this case. The sum of $75,000 shall be so ordered. Costs [ 47 ] In matters of this nature, I believe that the appropriate level of costs indemnification would be on a substantial indemnity basis. D.M.N. is the victim of the intentional acts of Jason Staples, the costs of the litigation should be borne by Jason Staples. I have reviewed the bill of costs presented to me and I am going to order substantial indemnity compensation in the amount of $40,000, plus HST, but inclusive of disbursements.

Summary [ 48 ] Jason Staples shall pay to the plaintiff damages for: (

a) Non-pecuniary, general and aggravated damages in the amount of $225,000; (

b) Punitive damages in the amount of $75,000; (

c) Costs, inclusive of disbursements, in the amount of $40,000, plus HST; [ 49 ] Pre-judgment interest shall be payable at a rate of 5% per annum on the general damages, commencing the 5 th November, 2007. Post-judgment interest will also be applicable. [ 50 ] It is to be hoped that this judgment will allow D.M.N. to move on with her life. I think it is important that D.M.N. understand that the court heard her and the suffering that she was subject to at the hands of Jason Staples. She presented to the court as a deeply compassionate individual who wishes only to share her healing abilities.

She demonstrated to the court a strength and resolve to get over this awful time in her life. She showed tremendous strength when she engaged Jason Staples on the 7 th of November, 2005, such that she may well have saved her own and her fellow captive’s life. The strength that D.M.N. showed the court during her testimony and the recounting of this terrible crime, would indicate to the court that, given time and professional intervention, D.M.N. will rise above this awful time in her life. She will, for the benefit of many, continue to share her compassion and exceptional ability to heal others.

[ 51 ] Counsel who undertake this type of action on behalf of victims, are to be commended. These matters are emotionally charged and, ultimately, may be undertaken without actual compensation. This matter initially involved other defendants; however, that aspect of this litigation was resolved either before the commencement of trial or mid-trial. The plaintiff in this case was indeed fortunate to have counsel who was prepared to pursue this matter on her behalf with much zeal, professionalism and compassion. “Mr. Justice D.S. Gunsolus” Released: June 6, 2013 CITATION : DMN v.

Staples, 2013 ONSC 3291 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: D.M.N. Plaintiff – and – Jason Staples Defendant judgment GUNSOLUS, J. Released: June 6 th , 2013 [2] See: Victim’s Bill of Rights , 1995, S.O. 1995 c.6 .

section 3.1