) ) HIS MAJESTY THE KING – v. –, 2023 ONSC 166

CITATION : R. v. Valley, 2023 ONSC 166 COURT FILE NO.: 15744/22 DATE: 20230106 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HIS MAJESTY THE KING – and – MATTHEW ALBERT VALLEY Defendant ) ) ) ) ) ) ) )) Jinwon Kim for the Crown Matthew Valley in person Alan Richter as Amicus Curiae ) ) HEARD: November 4, 2022 reasons on sentencing C. Boswell j. (O rally) [ 1 ] On September 16, 2022, following a number of judicial pre-trial conferences, Mr.

Valley entered guilty pleas to three offences: sexual assault, unlawful confinement, and fail to comply with a probation order. [ 2 ] Sentencing submissions were received on November 4, 2022 and I remanded Mr. Valley to today’s date for judgment on sentence. [ 3 ] The following reasons explain the sentence imposed today. T HE CIRCUMSTANCES The Offences [ 4 ] Mr. Valley committed a violent sexual assault on a young female who was working an overnight shift, alone, at a Subway restaurant in Ajax. Much of the attack was recorded on a security camera. [ 5 ] Mr.

Valley entered the restaurant at about 2:00 a.m. on April 28, 2021. At the time, he was subject to three overlapping probation orders, one of which prohibited him from attending at any Subway restaurant location in Ontario. [ 6 ] Mr. Valley ordered a sandwich, paid for it and left. Some five minutes later, he returned to the restaurant. He engaged in conversation with the attendant, asking her for her phone number and other social media information. She declined to provide it. Mr. Valley initially appeared to be headed out of the restaurant, but then circled back to the counter area.

He tried to unlock a gate that would grant him access behind the counter. The attendant latched the gate and ran to the back of the store, where she called 911. Mr. Valley managed to get through the gate and he pursued the attendant to the rear of the store. He grabbed her from behind and disconnected her 911 call. A violent struggle ensued. [ 7 ] During the struggle, Mr. Valley forced the attendant to the ground. He choked her around the neck with both hands until she could not speak or breathe. He pulled her pants and underwear down to her knees.

He pulled his own pants down, exposing his penis. [ 8 ] The attendant managed to break free and she attempted to run out the back door. Mr. Valley grabbed her by the shirt and pulled her back. Again, he choked her around the neck with both hands. He yelled, “strip bitch, just take it off bitch”. The attendant continued to struggle, scratching at both of Mr. Valley’s arms with her fingernails. She eventually managed to break free, running out of the front of the store to a nearby Burger King. Mr. Valley fled out the back of the store. The Offender [ 9 ] I have relatively little information about Mr. Valley.

He offered very few details about his life and circumstances during his sentencing submissions and only then after significant prodding by the court. [ 10 ] Mr. Valley is 21 years old. He advised the court that he has no family. He said his parents are deceased and he has no siblings. When released from custody, he anticipates that he will stay with a friend and will pursue employment as a cleaner.

[ 11 ] For someone so young, Mr. Valley has a remarkably lengthy criminal record. It includes the following convictions in Youth Court: (

i) September 22, 2014: Assault (x2) and fail to comply with a youth sentence, for which he was sentenced to 18 months probation; (ii) November 18, 2014: Assault, assault with a weapon, mischief under $5,000 and fail to comply with a recognizance (x2), for which he was sentenced to 12 months probation; (iii) April 8, 2016: Fail to comply with an undertaking and fail to attend court, for which he was sentenced to 12 months probation; (iv) April 13, 2016: Theft under $5,000 and fail to comply with a recognizance, for which he was sentenced to 12 months probation; (

v) January 1, 2016: Mischief under $5,000 (x3), fail to appear, assault, fail to comply with a recognizance (x3), break and enter (x2), fail to comply with a sentence (x2), and fraudulent use of a credit card, for which he was sentenced to 60 days in custody and 30 days community supervision, along with 12 months probation; (vi) February 7, 2017: Being unlawfully at large, for which he was sentenced to 1 day in secure custody and 1 day of supervision in the community, on top of 2 days pre-sentence custody; (vii) June 6, 2006: Theft under $5,000, failure to comply with a recognizance, and assaulting a police officer, for which he was sentenced to two years probation on top of 59 days of pre-sentence custody; (viii) July 27, 2017: Possession of a

Schedule II substance for the purpose of trafficking and fail to comply with a sentence for which he was sentenced to two days of secure custody and one day of community supervision; (ix) October 10, 2017: Possession of a

Schedule I substance, for which he received a sentence of 40 days in secure custody plus 20 days of community supervision, followed by 18 months probation; (

x) May 8, 2018: Break and enter, robbery, fail to comply with a sentence (x2) and fail to comply with a recognizance, for which he was sentenced to 206 days in secure custody plus 102 days of community supervision, together with 18 months probation; (xi) May 8, 2018: Theft under $5,000, fail to comply with a sentence, break and enter, possession of a

Schedule II substance, mischief under $5,000 and assault, for which he was sentenced to 18 months probation; and, (xii) April 17, 2019: Fail to comply with a sentence and obstructing a police officer, for which he received a sentence of time served, after credit for the equivalent of 74 days pre-sentence custody. [ 12 ] His record further includes the following convictions entered after Mr. Valley reached the age of majority: (

i) October 4, 2019: Possession of a weapon, theft under $5,000 and fail to comply with a recognizance, for which he received a suspended sentence on top of 30 days pre-sentence custody, plus probation of 18 months; (ii) November 21, 2019: Robbery with violence or threats of violence, for which he received a sentence of 73 days, to be served intermittently, on top of 107 days of pre-sentence custody, plus probation for 18 months. A $70 restitution order was also imposed; (iii) December 30, 2019: Possession of a

Schedule I substance for the purpose of trafficking, for which he was sentenced to 60 days, on top of 27 days pre-sentence custody; (iv) July 14, 2020: Possession of a weapon, fail to comply with a court order, theft of a motor vehicle and mischief, for which he received a suspended sentence and three years probation on top of 129 days of pre-sentence custody; and, (

v) January 18, 2021: Theft under $5,000 (x4), fail to comply with a probation order, break and enter, possession of property obtained by crime and assault with a weapon, for which he received a sentence of 45 days in custody on top of 225 days pre-sentence custody, plus 2 years probation. [ 13 ] Mr. Richter advised, in his role as amicus , that Mr. Valley suffers from substance abuse issues. Indeed, he appears to have been under the influence of some form of intoxicating substance at the time the index offences were committed. [ 14 ] Mr. Valley was arrested on these charges on April 29, 2021.

He has been in custody since that date. To today’s date he has served 618 days of pre-sentence custody. The Impact of the Offences [ 15 ] The victim of the offence, S.G., suffered temporary physical injuries, including swelling and soreness behind her ears, red marks and abrasions on her neck and chest, bruising to her back, a scratch on her right forearm, and a scrape on her right elbow. [ 16 ] She suffered more significant psychological injuries, as one might expect. She provided the court with a Victim Impact Statement. She detailed the emotional suffering she has endured since the attack.

For a number of months she felt too unsafe to even venture out of her home. She no longer feels safe working overnight shifts and has had to give those up, even though they pay more. [ 17 ] She continues to have lingering fear for her safety and is terrified when alone. She views other people differently now – with suspicion and fear. It took her a considerable period of time to feel comfortable physically with her partner.

[ 18 ] The attack remains imprinted in S.G.’s mind and she thinks of it often. T HE LAW The Legal Parameters [ 19 ] Pursuant to s. 271 of the Criminal Code , the maximum penalty on conviction of sexual assault is imprisonment for ten years. [ 20 ] Pursuant to s. 279(2) (

a) of the Criminal Code , the maximum penalty for unlawful confinement is imprisonment for ten years. [ 21 ] Pursuant to s. 733.1(1) of the Criminal Code , the maximum penalty on conviction for breach of probation is imprisonment for four years.

The Principles and Purposes of Sentencing [ 22 ] The objectives of sentencing are codified in s. 718 of the Criminal Code and include: the denunciation of unlawful conduct; general and specific deterrence; the separation of the offender from society where necessary; rehabilitation; reparation for harm done to the victims and the community; and the promotion of a sense of responsibility in offenders and acknowledgment of the harm done. [ 23 ] The importance of these individual objectives, and how they interact, varies from case to case.

There is little debate that the objectives of denunciation and deterrence are the most prominent given the nature of the offences here. That said, Mr. Valley is just 21 years old. Despite his unenviable criminal record to date, the prospect of rehabilitation must not be lost sight of. It remains a pressing objective. [ 24 ] In pursuit of the recognized objectives, the court is guided by the overarching principle of proportionality.

Indeed, the starting point for any sentencing is the requirement that the sentence imposed be proportionate to the gravity of the offence and the degree of responsibility of the offender: s. 718.1 Cr. C . [ 25 ] Proportionality engages two concepts: censure and restraint. As Lebel J. explained in R. v. Ipeelee , 2012 SCC 13 , at para. 37 : Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation.

It promotes justice for victims and ensures public confidence in the justice system…Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender.

In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other. [ 26 ] The concept of proportionality compels courts to treat like cases alike and to recognize where there are material differences between different offenders and different offences. Section 718(2)(

b) Cr. C. specifically provides that “ a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”. [ 27 ] Having said that, proportionality, as a guiding sentencing principle, must be considered through an individualized lens. As former Chief Justice McLachlin described it in R. v.

Nur , as above, at para. 43, …[I]mposing a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime… [ 28 ] It is necessary that the court carefully consider the particular circumstances of the offence and of the offender and take account of any aggravating and mitigating circumstances. T HE PARTIES’ POSITIONS [ 29 ] The Crown seeks a global sentence of five years imprisonment, together with a number of ancillary orders including: (

i) A DNA order on counts 1 and 2; (ii) A s. 109 weapons prohibition for life; (iii) An order under s. 743.21 of the Criminal Code prohibiting Mr. Valley from communicating directly or indirectly with the complainant during the period of time he is in custody; and (iv) An order, pursuant to s. 490.012(1) of the Criminal Code that Mr. Valley comply with the Sex Offender Information Registration Act for a period of 20 years. I note that the Supreme Court of Canada recently declared s. 490.012 of the Criminal Code to be unconstitutional.

They suspended the declaration, however, for one year, in order to give Parliament sufficient time to amend the provision in order to bring it into constitutional compliance. See R. v. Ndhlovu , 2022 SCC 38 , released February 8, 2022. [ 30 ] The Crown acknowledges that Mr. Valley has considerable credit for pre-sentence custody and concedes that Mr. Valley’s sentence should be subject to additional mitigation, in the range of six months, to reflect the particularly harsh conditions under which Mr. Valley has served his pre-sentence custody.

Specifically, he has been subjected to ongoing lockdowns, some Covid-related, others related to chronic staff shortages at the Central East Correctional Centre. [ 31 ] The Crown asks, should the court impose a net sentence of two years or less on Mr. Valley, that a three-year probation term be imposed as well, with a term that Mr. Valley be prohibited from contacting the complainant during that term. [ 32 ] Mr. Valley made limited submissions on sentence. His proposal was for a time-served sentence. He expressed some measure

of remorse for having committed the offence, saying he did not mean to do it and was on drugs at the time. [ 33 ] Mr. Richter, in his role as amicus , urged the court to consider three matters. First, Mr. Valley’s youth. While this is undoubtedly a serious offence, any sentence imposed should not be crushing and undermine any realistic possibility of rehabilitation. Second, the fact that Mr. Valley has a substance abuse problem and was on drugs at the time of the offence. And third, the possible benefit of drug rehabilitation as part of the sentence imposed.

D ISCUSSION [ 34 ] The circumstances of offending in this case are rife with aggravating factors. [ 35 ] The sexual assault committed by Mr. Valley was nothing short of egregious. It was the type of offence that is the worst nightmare for a young woman working alone at nighttime. It was brazen, shocking and horrifically violent. Physical violence was used as a means to dominate and control the complainant.

The young victim will undoubtedly be impacted by the offence for the rest of her life. [ 36 ] Crown counsel noted that there is a strong public interest in protecting workers in the vulnerable circumstances of the complainant here and I agree. [ 37 ] Further aggravating the circumstances of the offending is that Mr. Valley was subject to multiple probation orders at the time of the assault. Each included the standard requirement that he keep the peace and be of good behaviour. One specifically prohibited him from entering any Subway restaurant. [ 38 ] Finally, of course, there is Mr.

Valley’s extensive criminal record. The sheer volume of entries tends to suggest that Mr. Valley’s prospects for rehabilitation are dubious. But more significantly, there are numerous offences of violence on his record. The index offences, viewed in the context of his history of violent criminality, strongly suggest that Mr. Valley is a serious danger to the community. [ 39 ] At the same time, there are a number of mitigating circumstances to factor into the sentencing process. Mr. Valley is a youthful offender. He was just 20 years old at the time of the index offences.

Through my interactions with him, it has been patently obvious that he has some developmental challenges, though I am not in a position on the record before me to reach any conclusion about what specifically those challenges are, or how they might best be addressed. [ 40 ] As I noted a moment ago, the Crown concedes that Mr.

Valley is entitled to a certain amount of mitigation of his sentence on account of the particularly harsh circumstances in which he has spent his time in remand awaiting the conclusion of this case. [ 41 ] Accused persons who are detained prior to trial are generally entitled to a credit for their time served in remand facilities at a rate of 1.5 days for each day actually served. See R. v. Summers , 2014 SCC 575 . Mr. Valley has served 618 days, so his credit is valued at 927 days, which I round off at 31 months.

The Summers credit takes account of the fact that detention in remand facilities is generally difficult and that time in a remand centre does not count for the purposes of eligibility for parole, earned remission or statutory release. [ 42 ] In certain instances, accused persons who have been detained prior to trial are entitled to some additional mitigation against sentence if the circumstances of their detention have been particularly punitive. See R. v. Duncan , 2016 ONCA 754 and R. v. Marshall , 2021 ONCA 344 . [ 43 ] Mr.

Valley did not tender any evidence regarding his lived experience at the Central East Correction Centre. That said, Crown counsel concedes that no such evidence is necessary. This court is well familiar with the conditions at CECC during Covid, as well as the routine use of lockdowns both during and beyond the period of the pandemic as a means of dealing with chronic staff shortages. Mr. Valley indicated that he has been on lockdown – either full or half-days – for most of his time in remand detention.

In addition to spending inordinate amounts of time in his small cell, he has been prevented from using the telephone or to have visitors. He has been unable to access the yard for fresh air. [ 44 ] Crown counsel submits that a reduction in the range of six months is an appropriate reflection of the particularly punitive conditions of Mr. Valley’s pre-sentence custody. I agree. [ 45 ] By way of a starting point, my view is that the five-year term sought by the Crown is eminently reasonable in all the circumstances.

It is consistent with sentences imposed on other offenders for similarly violent sexual assaults on strangers, involving additional aggravating circumstances, such as forcible confinement. [ 46 ] In R. v. A.J.K ., 2022 ONCA 487 , for instance, the Court of Appeal confirmed a sentence of five years imprisonment for an offender who violently assaulted a woman he had met on Tinder. He drove her, against her will, to an industrial area of Vaughan where he sexually assaulted her while choking her.

As she tried to escape from the car, he punched her in the head. [ 47 ] In upholding the sentence imposed by the trial judge, Fairburn, A.C.J.O., confirmed, as other appellate courts repeatedly have, the graveness of offences of sexual violence, saying, at paras. 74-75: [74] All sexual assaults are serious acts of violence. They reflect the wrongful exploitation of the victim whose personal autonomy, sexual integrity, and dignity is harmfully impacted while being treated as nothing more than an object.

Whether intimate partners or strangers, victims of sexual violence suffer profound emotional and physical harm and their lives can be forever altered. So too can the lives of their loved ones. [75] As the years pass, enlightenment on the implications of sexual violence continues to permeate our conscious minds. In Friesen , [2020 SCC 9] the court noted, at para. 118, that “our understanding of the profound physical and psychological harm that all victims of

sexual assault experience has deepened” and, I would add, is continuing to deepen: see also R. v. Goldfinch , 2019 SCC 38 , [2019] 3 S.C.R. 3, at para. 37 . As Moldaver J. stated in R. v. Barton , 2019 SCC 33 , [2019] 2 S.C.R. 579, at para. 1 : “Without a doubt, eliminating … sexual violence against women is one of the more pressing challenges we face as a society” and “we can – and must – do better.” [ 48 ] R. v. A.J.K. involved forced penetration. I am not clear on the basis of the facts read in and accepted, whether Mr. Valley achieved actual penetration of the complainant. In my view, it matters very little.

He attempted penetration. If he failed to achieve it, the offence was no less violent and traumatizing. [ 49 ] In R. v. Kane , 2021 ONSC 3946 , the offender was convicted of sexual assault causing bodily harm, unlawful confinement and uttering a death threat following a guilty plea. He had grabbed a woman walking alone at night. He pulled her into a dark area between two buildings. Brandishing a knife and threatening her with death, he forced her to perform oral sex on him, he performed oral sex on her and he unsuccessfully attempted penetration.

The use of a weapon and the accompanying death threats are more aggravating than the circumstances here. But what is particularly significant is that the trial judge, in sentencing the offender to seven years in prison, noted that “violent attacks by a stranger on another person in a public space requires a significant degree of denunciation in the form of a lengthy penitentiary sentence.” (Para. 37). [ 50 ] R. v. Kavanagh, 2009 ONCA 759 is an example of a brutal sexual assault on a vulnerable woman working alone at night in a convenience store.

The offender came into the store and waited until there were no customers. He locked the door and threatened to kill the complainant with a knife he claimed to have in his back pocket. He forced her into a back room where he sexually assaulted her, including oral sex and vaginal penetration. A ten-year prison sentence was imposed by the trial judge and upheld by the Court of Appeal. [ 51 ] Again, the facts here do not include the use of a weapon, nor the making of any death threats. Nevertheless, the attack perpetrated by Mr. Valley was a violent one, late at night, on a vulnerable woman working alone in a shop.

It cries out for significant denunciation, particularly in light of Mr. Valley’s lengthy criminal record. [ 52 ] In my view, the five-year sentence suggested by the Crown is certainly in the appropriate range and it is the sentence I impose. [ 53 ] I reduce that five years by the six months suggested by the Crown as Duncan/Marshall mitigation. I then credit Mr. Valley with 31 months as a Summers credit. The net sentence left to be served is 23 months.

It will be expressed as 23 months on count one, 12 months concurrent on count two and 6 months concurrent on count six. [ 54 ] The ancillary orders sought by the Crown are, in my view, largely unremarkable and I impose the following: (

i) DNA orders on both counts 1 and 2; (ii) A s. 109 weapons prohibition for life in relation to count 1; (iii) An order, pursuant to s. 743.21 of the Criminal Code , restraining Mr. Valley from having any direct or indirect communication with the complainant, G.S., during the custodial term of his sentence; and, (iv) A SOIRA order for 20 years. [ 55 ] I am also of the view that a three-year term of probation, following Mr. Valley’s release from custody, is appropriate. Both the community and Mr. Valley will benefit by his continued supervision.

Moreover, it will hopefully facilitate the arrangement of any necessary counselling services and it will enable the court to provide additional protection to the complainant. [ 56 ] I therefore impose a period of probation of three years, with the following conditions: (

i) keep the peace and be of good behaviour; (ii) appear before the court as and when required to do so by the court; (iii) notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation; (iv) report to a probation officer within 2 working days of his release from custody and thereafter when required to do so by the probation officer and in the manner directed by the probation officer; (

v) reside at a location approved by the probation officer; (vi) be amendable to assessment and counselling as recommended by the probation officer; and (vii) abstain from communicating, directly or indirectly, with the complainant, G.S., and to remain 200 metres away from any known place of residence, education, work, or worship of G.S., or any other location she is known by him to be. [ 57 ] Finally, in light of Mr. Valley’s substance abuse challenges, I recommend that his sentence be served at the Ontario Correctional Institute.

C. Boswell J. Released: January 6, 2023.