) ) HER MAJESTY THE QUEEN – v. –, 2017 ONSC 2998

CITATION : R. v. J.S., 2017 ONSC 2998 COURT FILE NO.: 1/16 DATE: 2017/05/15 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – and – J.S. ) ) ) ) ) ) ) ) Lisa Defoe, for the Crown Lisa Gunn, for the Defendant ) ) K.A. GORMAN [ 1 ] On January 25, 2017, Mr. J.S. pled guilty to three counts as follows: COUNT # 1 […] that he between the 30 th day of August 2015 and the 2 nd day of September, 2015 at the city of St. Thomas in the said region did commit a sexual assault on J. F., contrary to

Section 271 of the Criminal Code of Canada . COUNT # 4 […] that he between the 30 th day of August 2015 and the 2 nd day of September, 2015 at the city of St. Thomas in the said region did in committing an assault upon J. F. cause bodily harm to J. F., contrary to

Section 267 (

b) of the Criminal Code of Canada . COUNT # 5 […] that he between the 30 th day of August 2015 and the 2 nd day of September, 2015 at the city of St. Thomas in the said region did without lawful authority confine J. F., contrary to Section 279(2) of the Criminal Code of Canada . The Agreed Statement of Facts (Exhibit #1) J.S. and J. F. were in a relationship as of August 2015. They met through a mutual friend. On August 31 st , 2015 Mr. J.S. was at the residence of J. F. at unit […], G[…] Avenue in the City of St. Thomas. J. F. left her residence, however, J.S. remained in her apartment.

She returned home at approximately 7pm the same day. Mr. J.S. had personal possessions at that residence including his cat. Within approximately fifteen minutes of Ms. F.’s arrival home, Mr. J.S. transitioned from being nice to distant to yelling at her. He was accusing her of cheating on him and asking her where she had been. J.S. told her that he looked at her Facebook account which was open on computer and told her he was going to kill her. He kept on hitting her and bashing her head off the floor. J.S. also pulled her hair.

He dragged her from the living room to the bedroom by her hair and told her to show him her Facebook account. She kept saying no and yelling and told him to get out. J.S. got more angry in response. J.S. was hitting J. F. on her body and then he took her hair and started hitting her head really hard and then bashing her head off the floor. She does not recall the number of times that he did that but he did it for a very, very long time. After Mr. J.S. dragged J. F. into the bedroom by her hair he tried using string to tie her ankles.

He was afraid he was going to break the string and kept yelling at her asking where the “fucking duct tape was”. He told her he was going to kill her if she didn’t tell him where the string was. He found the duct tape and used it to duct tape her legs and arms together. The duct tape was pink and was located throughout the apartment, along with string and was seized by the police.

J.S. also wrapped the pink duct tape around the head and mouth of J. F.. The duct tape was in her apartment because she used it for taping boxes at rental apartments. Prior to J.S. using the duct tape on J. F., he had pushed her on her stomach, held her back by her neck and pulled her shirt off that way while she was on the bed. Mr. J.S. also took Ms. F.’s pants off. Once J. F. was duct taped by her hands, ankles and around her head, Mr. J.S. penetrated J. F. vaginally with his penis and then anally with his penis. J. F. was yelling and screaming throughout and scratched J.S. during this incident.

Photographs were taken by Constable James Fast of scratch marks on the chest of J.S.. Mr. J.S. did not use a condom but did ejaculate during the vaginal penetration. J. F. was duct taped for approximately two hours of the seven to eight hour long incident while the sexual assault was occurring. During the incident J.S. told J. F. that if she moved he was going to kill her. At one point during the assault, J. F. was in a corner and J.S. was watching every move she made. She could not go to the bathroom or smoke or leave the apartment. Once Mr. J.S. was finished sexually assaulting J.

F., they were in the living room. Mr. J.S. hit her head off the floor a number of times and kept saying “you want to die, you fucking bitch. You want to die. He then went into the bedroom and while he was in the bedroom, she started blacking out and she knew she had to get out of there. She ran out of the apartment with no socks or shoes on and fled to the shelter. The police attended the shelter and J. F. ultimately provided a video statement, photographs were taken of her injuries and she was transported to St.

Joseph’s Hospital to the Sexual Assault Unit where biological samples were taken from her by nurse, Ali Rankin-Nash. These biological samples were then provided to Constable James Fast of the St. Thomas Police Service who then sent them to the Centre of Forensic Science. The probability that a randomly selected person was the source of the DNA located from the sample of J.S. is 1 in 1.3 quadrillion. In addition, the clumps of hair located at the apartment of J. F. that were seized by the St. Thomas Police Service were also sent to the Centre of Forensic Science.

The clumps of hair were located on the kitchen floor and in the bed. Analysis was conducted of the clumps of hair and it was concluded that the hair samples were forcibly removed from the head of J. F.. J. F. had bruises on her wrist from the duct tape, her head hurt, her neck, her whole spine, her buttocks and the inside of her legs hurt from J.S. pulling them apart. She had a sprained ankle from when he dragged her. Her mouth was black and blue from being hit and she had clumps of hair missing. J. F. had two of her upper teeth damaged.

Her upper right molar was cracked in half and her upper left molar was partially broken off. Ms. F. had some prior issues with her teeth prior to this incident, however, as a result of this incident there was damage to her teeth. Mr. J.S. consumed approximately twelve beers that evening and was intoxicated, however, he was still able to form the requisite intent to commit these offences. THE OFFENDER [ 2 ] Mr. J.S. is a 42 year old repeat offender.

He has a lengthy criminal record including a single conviction for assault simpliciter. [ 3 ] A Pre-Sentence report was prepared for the assistance of the court. [ 4 ] As a child Mr. J.S. suffered an aneurism and blood clot in his brain. He reported to the author that since then he struggled with paying attention and memory deficits while in public school. [ 5 ] Mr. J.S. quit school in the 10 th grade, and began using alcohol and marijuana at about the age of fourteen. He confirmed that alcohol use has been an ongoing problem for him since then.

It has negatively impacted his ability to obtain and maintain gainful employment. [ 6 ] The author reported that: “the subject presents with limited insight as on the one hand he blames his alcohol abuse for his criminal behaviour, but has yet to address the problem”. [1] THE VICTIM [ 7 ] J.F. prepared a Victim Impact Statement. [ 8 ] As a result of the incident she reports that she has been diagnosed with a permanent brain injury, resulting in short-term memory loss and migraines. [ 9 ] In addition to the physical pain, scarring and bruising that she suffered as a result of this incident, her long term issues are largely psychological. [ 10 ] J.F. suffers from extreme anxiety for which she is medicated.

She continues to experience nightmares and sleep-walking. She reports as feeling sad, useless, and having no self-esteem or self-worth. She no longer feels that she can trust anyone, and feels paranoid and scared. [ 11 ] Clearly, the actions of the offender have had, and likely will continue to have long-lasting effects.

POSITIONS OF THE PARTIES [12] The Crown seeks as global sentence of 8 – 10 years as well as a number of ancillary orders. [13] Counsel for Mr. J.S. asks the court to impose a period of incarceration in the range of 3 – 5 years, less pre-trial custody of 19months @ 1:1.5 for credit of 28.5 months. PRINCIPLES OF SENTENCING [14] The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and themaintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) To denounce unlawful conduct; (

b) To deter the offender and other persons from committing offences; (

c) To separate offenders from society, where necessary; (

d) To assist in rehabilitating offenders; (

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

f) To promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.[2] [15] Denunciation is important to reflect society's condemnation of certain conduct by punishing those who disobey society's basicvalues. Deterrence is important to deter the offender in question and to deter others who commit such offences. Denunciation andgeneral deterrence are the over-riding principles of sentencing to be applied in cases of sexual assault, assault causing bodily harm andforcible confinement. [16] However, as Chief Justice Lamer stated in R. v.

M. (C.A.), (SCC), [1996] 1 S.C.R. 500, (1996), 105 C.C.C.(3d) 327, at paragraph 92: Sentencing is an individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime willfrequently be a fruitless exercise or academic abstraction.

As well, sentences for a particular offence should be expected to vary to somedegree across various communities and regions in this country, as the “just and appropriate” mix of accepted sentencing goals willdepend on the just needs and current conditions of and in the particular community where the crime occurred. [17] In most criminal cases there are both mitigating and aggravating factors for the court to consider. This case is no exception. [18] By way of mitigation, Mr. J.S. pled guilty, thereby sparing J.F. the stress of testifying.

However, a preliminary hearing washeld wherein J.F. was required to give evidence. None-the-less, a guilty plea is a sign of remorse and is a mitigating factor for the courtto consider. [19] The aggravating factors in this case are many: 1. The incident was exceptionally violent; 2. The incident occurred within the sanctity of the victim’s home; 3. Given the relationship between the offender and the victim the offences committed were clear breaches of trust[3]; 4. The unlawful confinement lasted several hours; 5. Mr. J.S. has lengthy criminal record.

LAW AND ANALYSIS [20] As the Manitoba Court of Appeal stated in R. v. Cook [2014] M.J. No. 77 at para.27: Sentencing an offender for separate serious offences in one inter-related incident, such as this case, is a difficult challenge. The sentenceimposed must be proportionate taking into account the moral blameworthiness of the offender, the gravity of the offence(

s) and society'scensure for the criminal conduct and the harm caused (R. v. Nasogaluak, 2010 SCC 6 (S.C.C.) at para. 42, [2010] 1 S.C.R. 206 (S.C.C.)). [21] In the present case, Mr. J.S. has pled guilty to three counts on the indictment that stem from a continuing offence: unlawfulconfinement. The unlawful confinement did not conclude until after the assaults and sexual assault concluded and she managed toescape. [22] In Cook (supra) at. Para 36 the court concluded: In

summary, the judge was correct to see the sentence for kidnapping being longer than for the offences committed during thekidnapping. The Vu decision makes it clear that the kidnapping began with the victim's forcible taking, it continued during her captivity

while other serious crimes occurred, and it only ended upon her successful escape. The assessment of proportionality for the purposes ofs. 718.1 of the Code, therefore, had to take into account two features of this case. The maximum punishment for the principal offence atthe core of the inter-related criminal event was life imprisonment.

As well, any sentence imposed for kidnapping should be moresignificant due to the fact that the offences of sexual assault and overcoming resistance to commit an offence by choking occurred duringthe kidnapping and concurrent sentences for those offences were imposed. [23] The Crown and Defence agree that the starting point for a single major sexual assault perpetrated by an adult accused on anadult victim, with no prior criminal record, and prior good character is three years’ imprisonment. [24] The court in R. v.

Sandercock (1985), 1985 ABCA 218 , 62 A.R. 382 at paras 15 and 16 described a “major sexualassault” as: 15 The key, then, to a major sexual assault is the evident blameworthiness of the offender, which was described by Laycraft J.A. (ashe then was) in F. v. R. (1982), 1982 ABCA 148 , 20 Alta. L.R. (2d) 90 (C.A.), as "... contemptuous disregard for the feelingsand personal integrity of the victim". It is sometimes said that we live in a sexually permissive era, the age of the liberated libido. Manybelieve that gratification of sexual desire by almost any means is not only normal but "healthy".

This attitude, unsurprisingly, has led tosome confusion, and the belief by some that society also permits the use of others as objects for sexual gratification. It does not, anddenunciatory sentences are needed to reinforce the point. 16 The other aspect which creates a major sexual assault is the effect on the victim. Notwithstanding statements in some authorities tothe contrary, the tradition is to assume, in the case of a rape for example, that the victim has suffered notable psychological or emotionalharm aside entirely from any physical injury.

Of course, once this assumption is brought into question, the Crown must prove it.Nevertheless, harm generally is inferred from the very nature of the assault. This harm includes not just the haunting fear of anotherattack, the painful struggle with a feeling that somehow the victim is to blame, and the sense of violation or outrage, but also a lingeringsense of powerlessness.

What we mean by this last is that, while we all are aware in an intellectual way about the fragility of normalexistence, to experience a sudden and real threat to one's well-being, a threat so intense that one must beg to be spared, tends to destroythat sense of personal security which modern society strives to offer and humanity so obviously wants. It matters little in this respectwhether that threat comes from a robber, a rapist, or any swaggering bully. [25] It cannot be said that Mr. J.S. has no prior record, nor can it be said that he is of prior good character.

The PSR is at best,neutral, and as previously indicated he has an extensive criminal record. Accordingly three years is not the starting point for hissentencing on this major sexual assault. [26] Having regard to the heinous nature and length of the forcible confinement and ensuing sexual assault and assault causingbodily harm, and mindful of the principles of sentencing, the sentence is as follow: COUNT # 5 – Forcible Confinement [27] There will be a sentence of 8 years less pre-trial custody, credited at 28 months and 15 days for a sentence of 5 years 7 monthsand 15 days.

COUNT #1 - Sexual Assault [28] There will be a sentence of 5 years, concurrent to Count # 5. SOIRA order for 20 years.

Section 109 order for 10 years. DNA order as it is a primary designated offence. COUNT #4 –Assault Causing Bodily Harm [29] There will be a sentence of 2 years, concurrent to Count #1 and count #5. Additionally there will be a

section 743.21 order prohibiting the offender from having any contact with the victim during the custodialportion of his sentence. There is a victim fine surcharge of $600 ($200 per count). The offender will have 3 years to pay. Justice K. A. Gorman Justice K. A. Gorman Released: May 15, 2017 R. v. J.S., 2017 ONSC 2998

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – J.S. REASONS FOR JUDGMENT Justice K. A. Gorman Released: May 15, 2017