SUPREME COURT OF Nova Scotia
Citation: R v. S. L., 2020 NSSC 381
Date: 20200925
Docket: CRH 476672
Registry: Halifax
Between:
Her Majesty the Queen
v.
S. L.
Defendant
Restriction on Publication: 486.4; 486.5; 539
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Judge: |
The Honourable Justice Patrick J. Murray |
|
Heard: |
June 24, 25, 26, 27, 2019 in Halifax, Nova Scotia |
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Oral Sentencing Decision: |
September 25, 2020; |
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Counsel: |
Alicia Kennedy and Stacey Gerrard for the Crown Tom Singleton and Leora Lawson for the Defendant, S. L. |
Section 486.4 - Order restricting publication — sexual offences
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
Mandatory order on application
(2) 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.
Child pornography
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
Limitation
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community.
Order restricting publication — victims and witnesses
486.5 (1) Unless an order is made under section 486.4, on
application of the prosecutor in respect of a victim or a witness, or on
application of a victim or a witness, a judge or justice may make an order
directing that any information that could identify the victim or witness shall
not be published in any document or broadcast or transmitted in any way if the
judge or justice is of the opinion that the order is in the interest of the
proper administration of justice.
Justice system participants
(2) On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.
Offences
(2.1) The offences for the purposes of subsection (2) are
(a) an offence under section 423.1, 467.11, 467.111, 467.12 or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;
(b) a terrorism offence;
(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or
(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).
Limitation
(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
Application and notice
(4) An applicant for an order shall
(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and
(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.
Grounds
(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.
Hearing may be held
(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.
Factors to be considered
(7) In determining whether to make an order, the judge or justice shall consider
(a) the right to a fair and public hearing;
(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed;
(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;
(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;
(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;
(f) the salutary and deleterious effects of the proposed order;
(g) the impact of the proposed order on the freedom of expression of those affected by it; and
(h) any other factor that the judge or justice considers relevant.
Conditions
(8) An order may be subject to any conditions that the judge or justice thinks fit.
Publication prohibited
(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way
(a) the contents of an application;
(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or
(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings.
Order restricting publication of evidence taken at preliminary inquiry
539 (1) Prior to the commencement of the taking of
evidence at a preliminary inquiry, the justice holding the inquiry
(a) may, if application therefor is made by the prosecutor, and
(b) shall, if application therefor is made by any of the accused,
make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,
(c) he or she is discharged, or
(d) if he or she is ordered to stand trial, the trial is ended.
Accused to be informed of right to
apply for order
(2) Where an accused is not represented by counsel at a preliminary inquiry, the justice holding the inquiry shall, prior to the commencement of the taking of evidence at the inquiry, inform the accused of his right to make application under subsection (1).
Failure to comply with order
(3) Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.
(4) [Repealed, 2005, c. 32, s. 18]
Introduction
[1] S. L. was charged that he committed a sexual assault on P. C. between October 31 and December 1, 2015, contrary to s. 271 of the Criminal Code. Mr. L. pleaded not guilty to this single count indictment on February 20, 2018. Following a trial, I found S. L. guilty of the offence charged by decision given January 29, 2020.
Background
[2] The Complainant, P. C., and S. L. were married in 2008. In 2011 they moved to Canada, with their daughter. P. C testified he handled the whole move, including the passport and immigration issues. They have another daughter who was born in Canada.
[3] S. L. had been an IT manager for a company. P. C. had various interests, including music and writing. She did not work from 2011 to 2014. She began employment in 2014, working in seniors’ care. She later started her own company. The couple moved several times in Nova Scotia before purchasing a home, where they resided at the time of the offence in 2015.
[4] Unfortunately, things did not go well with the marriage. The parties separated in November 2014 but were not divorced. They stayed together in the home. P. C. said they did not wish to disrupt the children’s lives.
[5] S. L. filed for divorce in October 2017, almost two years after the offence. He moved out in November 2017.
Circumstances of the Offence
[6] The circumstances of the offence are summarized in the decision at trial which is reported as R v. S. L., 2020 NSSC 95. The seriousness of the offence is shown by the maximum penalty under the Criminal Code, which is 10 years.
[7] At the time of the offence in 2015, the Accused and the Complainant, P. C., were residing in the same residence, but otherwise were separated and not intimate during this time. Their children currently ages 7 and 10, were residing with them. The Complainant arrived home from work at 8:00 p.m. They were entertaining friends of Mr. L.’s from […]. The Complainant drank wine throughout the evening. She needed assistance to get up the stairs to retire. S. L. helped her.
[8] At trial, I found that two incidents of sexual assault occurred thereafter: first, oral sex which occurred in the bathroom while the Complainant was on the toilet. This was the last memory she had. The second incident occurred in the bedroom. It involved anal penetration while the Complainant’s ability to consent was compromised by her condition. I found that P. C. did not consent to the first incident and could not consent to the second incident.
[9] When she woke the next morning, the Complainant did not feel right. She was confused and experienced some physical symptoms in her private area. Although she and S. L. discussed it, she did not seek medical treatment.
[10] S. L. provided a statement to the police about the events of that evening. My findings at trial reflect that I had difficulty accepting his evidence in the statement.
The Crown Position
[11] It is the Crown’s position that a period of incarceration of three years is an appropriate sentence. The Crown identifies the following aggravating factors: (1) multiple acts of sexual violence; (2) a breach of trust; (3) this was an unprotected sexual assault; and (4) the victim was unconscious during the second incident. The Crown submits these factors add to the seriousness of the offence. The Crown submits they were living under the same roof and the complainant should have been safe in that environment.
[12] The Crown says there was a disregard for the bodily integrity of the Complainant, and that the caselaw submitted by the Crown supports its recommendation of three years incarceration as well as the ancillary orders sought by the Crown. The Crown says this recommendation addresses the principles of denunciation and general and specific deterrence. Further, it says, a term of 3 years is not so “crushing” as to eliminate the possibility of rehabilitation for Mr. L.
The Defence Position
[13] The Defence concurs with the Crown that the circumstances of the offence are, in themselves aggravating. The Defence submits that the behaviour of Mr. L. in committing this assault is an “aberration” in what is otherwise a lifetime of exemplary behaviour. The Defence submits that sentencing for sexual assault is an inherently individualized process. Mr. L. is a man of good character. His incarceration will mean a loss of employment and the ability to financially support the victim and his children.
[14] In addition, considering the issues of denunciation and deterrence, the Defence submits that a lengthy period of custody is not required to satisfy those principles. The Defence is recommending a 2-year federal custodial sentence.
Sentencing Principles – from KMD
[15] The following sentencing principles were set out in R v. F.H., 2015 NSSC 43:
[60] The underlying consideration for the Court is set out in section 718.1 of the Criminal Code which is referred to as the fundamental principle of sentencing. A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. In plain words, it must be a fit and proper sentence. In determining that, I must look at and consider the fundamental purpose of sentencing and the objectives which are also set out in the Criminal Code. There are six of them. Section 718 of the Code reads:
718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance 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.
…
[62] There are additional considerations and those considerations involve aggravating and mitigating factors. A sentence should be increased or reduced to account for aggravating or mitigating circumstances relating to the offence or to the offender. Also, a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. There are others which I will not refer to verbatim, but one of those reflects a consideration that incarceration and deprivation of liberty would be a last resort.
[63] … Denunciation requires that a sentence should communicate society’s condemnation of the offender’s conduct. Deterrence is another objective and it refers to a sentence that will specifically deter the offender from committing further offences as well as deter other like-minded individuals from offending.
[64] These objectives are particularly relevant here.
[65] These, however, are not the only objectives. For example, rehabilitation is an important factor in establishing any sentence and is of particular importance when dealing with young people and first offenders. …
[66] There is, as well, the need to account for individual circumstances. I am not intending to this as an exhaustive list but have referred to those which may apply here.
[16] I have considered the relevant sentencing provisions of the Criminal Code as contained in ss. 718, 718.1, 718.2, 718.201, and 718.3, and in particular 718.2(a)(ii) and (iii).
[17] Further, Chief Justice McKinnon cautioned against an inflexible approach in R. v. Grady, (1971), 5 N.S.R. (2d) 264, at page 266:
It would be a grave mistake, it appears to me, to follow rigid rules for determining the type and length of sentence in order to secure a measure of uniformity, for almost invariably different circumstances are present in the case of each offender. There is not only the offence committed but the method and manner of committing; the presence or absence of remorse, the age and circumstances of the offender, and many other related factors. For these reasons, it may appear at times that lesser sentences are given for more serious offences and vice versa, but the court must consider each individual case, on its own merits, even if the different factors involved are not apparent to those who know only of the offence charged and the penalty imposed.
Circumstances of the Offender
[18] S. L. attended […] College and received a certificate in that vocation in internet technology.
[19] S. L. and the complainant met and married in […], in the […]. As stated they were living in the same residence, but not as a couple, at the time of the offence.
The Pre-Sentence Report
[20] Mr. L. is 41 years of age and was born in […], […] to a close-knit family. He is currently employed in the construction industry having worked his way up to the position of foreman. He has debts but is financially stable.
[21] In terms of his health, Mr. L. stressed the need for him to maintain employment in order to maintain good health overall. He says the offence in question was not alcohol related. In the past he has volunteered with CUSO international, promoting remote education in […] where he resided for some time. His main pastime is playing with and entertaining his two children.
[22] A close friend and associate, Ms. […], was interviewed for the report. She has difficulty accepting the position that Mr. L. finds himself before the Court. She is of the view there is no treatment or program that would assist or benefit S. L. in his life going forward. None is needed, she said.
[23] In terms his profile in the report, Mr. L. is described as polite, pleasant and cooperative. S. L. took a serious approach to its preparation and to answering questions in relation to it.
[24] The report notes that S. L. was successful in completing 35 hours of community service. He does not accept responsibility for the offence and that is his right.
Analysis - Aggravating and Mitigating Factors
[25] The Crown submits as an aggravating factor that the assault took place while the Complainant was lying unconscious in her own bed. In his statement S. L. maintained he stopped when the Complainant passed out. I agree with the Defence that no specific finding was made as to when the Complainant fell asleep or passed out. Whether or not he stopped when she passed out, I found the Complainant was unconscious and incapable of consenting to the activity in the bedroom. The Complainant was therefore in a highly vulnerable state.
[26] The Defence submits that the range of sentences outlined in the caselaw submitted by the Crown are at the high end of the range for an assault committed by a first-time offender. I have reviewed all of the cases submitted by the Crown and note that a number of them refer to accused persons with a prior criminal record.
[27] There is no question that the predominant objectives in sentencing for this type of offence are denunciation and general deterrence. (R v. J.R.M., 2012 NSSC 108).
[28] The Crown refers to R v. Kasokeo, 2009 SKCA 48, where the court spoke of a range 30 to 36 months as being appropriate to properly address the violation of sexual and personal integrity as well as the lasting, serious harm to the victim. We have seen from the caselaw, that this can include psychological harm in such cases. The Crown also cites R v. WHA, 2011 NSSC 246, where Rosinski J. said:
[75] In summary, it is very difficult to set out the “range of sentences” that would be appropriate in a case of similar offences and a similar offender, due to the great differences that make up the facts of each case. Determining a fit sentence is a “complicated calculus” and should not be seen as a simple numbers game. Nevertheless, in the category of sexual assault, previously known as a “rape”, it does appear to be the case that, in the absence of exceptional circumstances, an offender with no significant criminal record, who has committed a non-premeditated rape, will receive a sentence around three years in jail.
[29] In W.H.A., Justice Rosinski described the sentencing process as a “complicated calculus”. This is fitting in the present case. There are for example, in excess of a dozen letters from persons across continents describing the accused as an exemplary person and expressing to a person, shock and dismay at his involvement in this offence.
[30] On the other hand, in the balancing, the primary factors remain. In R v. J.J.W., 2012 NSCA 96, the Nova Scotia Court of Appeal stated at paras 32 and 43:
[32] I agree with the Crown that a five month sentence for this sexual assault, forcible anal intercourse, is demonstrably unfit. In doing so, I recognize that sentencing judges are entitled to considerable deference from the appellate courts, and that ranges as established by case law are only guidelines intended to assist sentencing judges. However, the discrepancy between the sentence here imposed for a grave sexual assault, one committed by the appellant to dominate and control his wife, namely five months imprisonment, and the next lowest sentences found in the case law for similar major sexual assaults in comparable circumstances, namely two years less a day, is simply too large to ignore. The sentence contravenes the principle of parity. Persons convicted of serious sexual assaults must appreciate that the principles of sentencing include specific and general deterrence and denunciation, and such offences will attract serious consequences. The five month sentence of imprisonment for sexual assault on a spouse does not send that message. In my view, considering the principles of sentencing as set out in the Criminal Code, it is clearly unreasonable.
[43] In my view, the sentence itself and the judge’s three reasons for reducing sentence show error in principle. It appears that the judge gave the respondent’s personal circumstances excessive importance. Although he took specific deterrence into account, he failed to consider appropriately general deterrence and denunciation.
[31] In essence the court warned sentencing judges against placing too much emphasis on personal circumstances and failing to send a clear message that such offences will attract serious consequences.
[32] In terms of mitigating factors S. L. at 41 is still a young man, relatively speaking. He had no criminal record up to the point of this offence in 2015. He is described as an exceptional father with stable employment. He is relied upon for family and financial support. Even though separated, he continues to be an integral part of his children’s lives and accordingly that of victim.
[33] The presentence report is positive, identifying him as a good worker and provider, and a devoted father. He has had custody of the children every other week in a week on week off arrangement between he and the victim P. C.
[34] A key issue in determining a fit and proper sentence is thus, to what extent, if any, should the principle of rehabilitation be elevated to achieve a proper balance in relation to the principles which must be emphasized and given primary consideration. Sentencing is very much an individual process. I think it is significant that the Nova Scotia Court of Appeal has not set a starting point, instead emphasizing that the court’s obligation is to apply the sentencing principles fairly to achieve a just result in view of all of the circumstances of the offence and the offender.
[35] This approach is consistent with the recent case of R v Friesen, 2020 SCC 9, where the Supreme Court of Canada stated at paragraph 104:
104 Section 718.01 thus qualifies this Court's previous direction that it is for the sentencing judge to determine which sentencing objective or objectives are to be prioritized. Where Parliament has indicated which sentencing objectives are to receive priority in certain cases, the sentencing judge's discretion is thereby limited, such that it is no longer open to the judge to elevate other sentencing objectives to an equal or higher priority (Rayo, at paras. 103 and 107-8). However, while s. 718.01 requires that deterrence and denunciation have priority, nonetheless, the sentencing judge retains discretion to accord significant weight to other factors (including rehabilitation and .Gladue factors) in exercising discretion in arriving at a fit sentence, in accordance with the overall principle of proportionality (see R. c. Bergeron, 2013 QCCA 7 (C.A. Que.), at para. 37). (Emphasis Added)
[36] We are not here dealing with a s.718.01, but by analogy, this statement from this country’s highest Court, is an example of the discretion a sentencing judge retains in according weight to other factors, in arriving at a fit sentence.
[37] In some cases, restraint is called for when the sentencing objectives are considered in their entirety. Courts must at times exercise flexibility in order to achieve the right balance, to achieve a fit and proper sentence. R v. Burton, 2017 NSSC 181, illustrates this flexibility, and the sentencing judge’s discretion in imposing just sanctions. In Burton, Arnold, J said:
[23] Vulnerable people need to be protected from sexual predators. R.P. could not have been more vulnerable than she was when Burton violated her.
[24] Mr. Burton comes before this court with no prior criminal record. He committed a major sexual assault on R.P. who has suffered severe psychological consequences as a result.
[25] Burton has community support from family and friends who say this is out of character for him. He has successfully battled his addiction issues, runs a successful business, has now admitted guilt and is remorseful, and is the sole caregiver for twin toddlers. ..
[28] If Burton is sentenced to two years in prison in a federal penitentiary, I can order up to three years probation, thereby giving the criminal justice system control over him for five years. Burton would be removed from society for two years, serving his time in a federal penitentiary, but would be allowed to contribute to society and look after his children for the following three years, while receiving proper treatment. I believe that in these circumstances a two-year federal penitentiary sentence would satisfy the need for general and specific deterrence, and would satisfy the need for denunciation, while still allowing for reformation and rehabilitation.
[29] I therefore sentence Robert Burton to two years in a federal penitentiary.
[38] In the present case Mr. L. has undergone a sexual behaviour assessment and is of low risk to re-offend. He is highly unlikely to present a risk in the community. In R v. B. M., 2008 ONCA 645, the court said:
[12] We also agree with the Crown that the length of sentence was not within an acceptable range. We appreciate that ranges are merely guidelines designed to assist trial judges. The overall message, however, must be clear. Individuals such as the respondent, who victimize their partners within the context of the marital relationship, in this case a spouse with particular vulnerabilities, must know that serious consequences will follow. In these circumstances of this case a fit sentence, in our view, is two years less a day.
Disposition
[39] In R v. Priest (1996), 110 C.C.C. (3d) 289, 1996 CarswellOnt 3588 (Ont. C.A.), Rosenberg J.A. remarked that a sentence of imprisonment for a first offender should be “tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence” (para. 23).
[40] There is no question that the principles of denunciation and deterrence must be emphasized. In that respect the caselaw submitted by the Crown supports its recommendation of 3 years. Our Court of Appeal in JJM cautioned against overemphasizing personal factors, so that the sentence is no longer proportionate to the gravity of the offence and the responsibility of the offender.
[41] In the present case, although they may be of secondary importance, the circumstances of the offender must not be ignored, and are very relevant in determining a just sentence for Mr. L. It would be wrong, in my view, to ignore the positive presentence report and many letters of reference describing him as an exceptional father, his vital role in parenting his children, and his overseas community work.
[42] The Crown submits that a three-year sentence is not so crushing as to eliminate the possibility of rehabilitation. The Crown agrees that rehabilitation merits consideration in this sentencing hearing.
[43] While I accept the Crown’s point, it is my view, that the imposition of a three-year sentence is crushing to a degree. The Accused’s children (ages 7 and 10) are at a critical age and place great reliance on him, in the shared parenting relationship with the victim.
[44] Further, Mr. L. is aware of the importance of employment. He has advanced himself and recognizes the need to support his family financially.
[45] It has been previously held that a federal period of incarceration for a person who has never before faced difficulties with the law, is a significant sentence, and sends a clear message to society, as to the gravity of the offence and the responsibility of the offender. (R v. Rancourt, 2017 NSSC 158)
[46] In conclusion, I find that a two-year period of incarceration is the fit and appropriate sentence in these circumstances. It will still be a significant hurdle for S.L. at this stage in his life, but it is one I believe will allow him to complete his sentence with his family intact.
[47] Finally, I do not believe it overemphasizes the offender’s circumstances to the detriment of the seriousness of the offence. For the reasons I have indicated, I conclude that such a sentence recognizes the harm done to the victim, and the need to denounce a serious offence.
[48] The ancillary orders sought by the Crown are granted.
Murray, J.