R. v. H., H.

R. v. H., H. Collection Decisions of the Court of Appeal Date 1999-09-23 Docket numbers C31266 Judges Finlayson, George Duncan; Weiler, Karen Merle Magnuson; Moldaver, Michael James Subject Criminal Decision Content DATE: 19990923 DOCKET: C31266 COURT OF APPEAL FOR ONTARIO FINLAYSON, WEILER and MOLDAVER JJ.A. BETWEEN: HER MAJESTY THE QUEEN ) Ms. Michal Fairburn, ) for the appellant (Applicant/Appellant) ) ) –and– ) ) H. H. ) Mr. Richard Addelman, ) for the respondent (Respondent) ) ) Heard: September 8, 1999 On appeal from the sentence imposed by Binks J. dated December 9, 1998. BY THE COURT: [1] This is a Crown appeal from the decision of Binks J. of the Ontario Court (General Division) in which he imposed a sentence for sexual assault of 21 months and ordered it to be served conditionally. In addition, he ordered two years probation. [2] The appeal proceeded in this court on the basis of an agreed statement of facts. The facts leading up to the assault are instructive as to the relationship between the complainant and the respondent. At the time of the assault, the respondent was 37 years of age. The complainant was 18 years old. The respondent was the manager of an Ottawa bowling alley known as Aladdin Lanes. The complainant worked at the bowling alley, doing general jobs, including cleaning, emptying ashtrays, cooking, serving and bartending. The respondent was the complainant’s direct supervisor. At the time of the offence, the complaint was 6 months pregnant and living with her ill father. She worked part-time to earn money, while also attending school on a part-time basis. [3] The respondent and the complainant’s family had known each other for about five or six years. The complainant’s family had bowled at Aladdin Lanes for some years. The complainant had started bowling there when she was around twelve years old. The complainant and her father trusted the respondent to give her rides home after work. On his own evidence, he had driven her home 100 or 200 times. [4] On January 12, 1997, both the complainant and the respondent had worked the late shift. He was to drive her home. After the last bowlers left the alley, the respondent went outside, started his car, came back inside and locked the door to the building. It was just after midnight. Due to the stage of her pregnancy, the complainant had been experiencing back pain. When the respondent came back inside, he offered to give her a backrub, which she accepted. The respondent had previously given her massages on two or three occasions, to alleviate the back pain caused by her pregnancy. He asked her to remove her coat, which she did. The complainant was sitting in front of the respondent with her back facing him. He slid his hands under her shirt. He then wrapped them around her and began feeling her stomach and breasts, while kissing her neck. He told the complainant he was “horny”, that she was “hot”, and that she was turning him on. [5] Without dealing with the specifics of the sexual assault itself, the respondent’s conduct continued and resulted in a full act of forced sexual intercourse against the resisting complainant. [6] We are all of the opinion that both the term of the sentence and the fact of its being served conditionally are totally out of proportion to the seriousness of the offence committed. This should have been a custodial sentence and should have been for a penitentiary term. [7] Adopting the suggestion in R. v. Melvyn MacLaren, unreported judgment of this court dated June 30, 1999, at paras. 18 and 19, we would impose a custodial term commencing as of today’s date. In doing so, we take into account the fact that the respondent has served 9 months of a conditional sentence that was imposed at trial. In these circumstances, an appropriate custodial term is 18 months to be served commencing on this date. [8] Accordingly, leave to appeal is granted, the appeal is allowed and the sentence below is set aside to be replaced by a sentence of 18 months, said sentence to commence as of this date. Released: SEP 23 1999 Signed: “G.D. Finlayson J.A.” “K.M. Weiler J.A.” “M.J. Moldaver J.A.”