Professional Documents
Culture Documents
BETWEEN:
HER MAJESTY THE QUEEN
AND
MUSTAFA URURYAR
ZUKER J.:
THE CRIME (See Reasons for Judgment dated July 21, 2016)
Mandi Gray has been a student at York University, a graduate student.
[1]
She began her masters degree in the Fall of 2013 and then in the Fall 2014
started her PhD. She was teaching in the Department of Social Science, a
Criminology class, but is a graduate student in sociology. She first knew the
accused or first met him in mid-January, on or about January 16, 2015. Mr.
Ururyar was also a graduate student from a different department, but also a first
year PhD student. His area was the Department of Political Science, also at York
University.
Some friends, also from York University, were going out to Victory Caf
[2]
and so she decided to meet up with them there. It is a small bar/caf near
Bathurst and Bloor in Toronto. There was some people from CUPE. They had
won the strike vote that day that would allow them to go on to strike. It was kind
of a mixture between a union get-together but also people just from class
socializing. She went to the Victory Caf and had a couple drinks with her
colleagues. And then she texted and asked Mr. Ururyar if he wanted to come
2
out. She did not provide those texts, but she knew she asked him to come out.
He was sick but eventually, he did show up at the Victory Caf, along with
everybody else that was there, probably 10 15 people. The meeting time was
probably around 8:00 or 8:30 p.m. A lot of mutual friends were present at Victory
that evening.
-
They left and were going to get something to eat but nothing was open.
[3]
They continued walking up to Bathurst and Bloor, outside of Honest Eds. Mr.
Ururyar kept asking Lacey to come home with them. He kept pushing her to
keep drinking. He was adamant that she come back and drink. This was
strange because he wasnt drinking all night, he was sick, he wasnt feeling well.
She thought she must have done something terrible. She was conflicted
[4]
and confused. There wasnt a lot of dialogue. It was mostly him talking to her.
She was confused and mostly quiet. She does not believe she challenged any of
it. He kept going. It just kept getting harsher both in terms of his tone of voice but
also the things he was saying about her. They didnt have a conversation about
it, yet it was like an expectation that wasnt being communicated, with her or
Lacey. No conversation. She didnt talk to him the entire night, so she wasnt
sure where this person who was needy was coming from and it was all very
confusing to her.
I go inwards, right and I dont
Im a person that once
express when Im feeling hurt or sad or angry. Im more of an
introvert in that way, so I just internalized it all and I just took it.
I dont remember responding.
It was just like, oh, youre just like all the other women, in
reference to another. particular women (sic) that he had a
sexual relationship with. Youre just a slut, youre just like, all
these derogatory terms.
3
real threat of potential physical violence in that moment and I
remember being scared and I remember just completely like,
just sitting there and taking it because I was like, I just hated
myself so much in that moment. Like, he had destroyed any
self-esteem I had, I was like, I dont care, I just want to die right
now because this hurts so bad.
I thought that was a friend or like a decent human would say
all these horrible things about me and they must be true and I, I
he just continued and he
just, I hated myself, so I just
continued the verbal aggression and that, yeah.
-
But no, it was just yeah, it was just a continuation of what was
happening on our walk, in terms of youre a drunk slut, I dont
like you, I dont want anything to do with you, youre needy.
Yeah, my girlfriends going to find out, you are
yeah, just
continuing the same few lines about me.
4--A. It just continued and you know at that moment, Im like first
of all, I hate myself. I just, Im intoxicated, I have no ability to
fight back and I, like I said, that threat of physical violence was
very present and I was like, I would rather take this than the
risk of physical violence because I dont know what this person
is capable of.
And I know if I comply with this, I know how this is going to go
or I thought I knew how it would go. It was just like, I just like, I
just stopped caring and I just let it go the way whatever, I was
just, I just didnt care anymore.
,1
5I just like was in the fetal position, like crying so much. And
like, I dont cry often, like I dont cry very often so when I cry
like, you know you did something really bad.
And he just like totally blew it off and just like went to sleep, no
big deal. Like, it was yeah. And I
6
dont like I didnt know like why he would do that. I didnt
know like I didnt have a good time, like I didnt enjoy that. I, I
went to sleep crying, like why. And then he noticed that I was
awake, and then he looked at me, and then he took my hand
and pushed me unto the penis and I just and thats when I
said no, Im not doing this. Urn, I felt like I had like when I was
really drunk like before, I felt like I had no control over my body.
Like I just like felt like, like I would just like I couldnt urn
dont even know the right word is. Like I just I felt like I had
no power like to move. Like I could just lie there and thats all I
could do within that moment. And Im like no, Im sober, I can
get up and I can leave now because .1 its daylight, I can go
home. So I just said now Im, Im leave Im ready to leave
there. I was leaving and I talk 0 I didnt say anything to him.
He didnt say anything to me, which like I dont I dont know. I
and just got up and I left and I, I took the TTC home.
(Pages 17 & 18, Statement of Mandi Gray, February 2, 2015)
There is a context for Ms. Grays behaviour. The myths of rape should be
[8]
dispelled once and for all. We cannot perpetuate the belief that niceness cannot
coexist with violence, evil or deviance, and consequently the nice guy must not
be guilty of the alleged offense. Nice people supposedly dont rape. This is not
societys image. The accused knew Ms. Gray. And if you dont remember and
when you know you dont remember, he, Mr. Ururyar, is going to get to write the
script. Ms. Gray did remember. Everything, of course not. What happened to
her, yes.
The Crown has proven its case beyond a reasonable doubt. See R. v.
[9]
Ururyar, 2016 ONCJ 448 (CanLIl).
From the above excerpts from written reasons dated July 21, 2016, the
[10]
rape occurred in the offenders home, in the offenders bedroom. There was
violence and vulnerability. There was degradation and humiliation. This was the
offending behaviour, in summary.
[11]
This was a rape committed in a place where Mandi Gray would expect to
be safe in the offenders home. In cases of rape there is little room in the
sentencing process for mercy. Rapes and sex assaults are pitiless wicked
crimes.
7
PART ITHE LAW
[14]
The Supreme Court has affirmed the legitimacy, if not utility of a starting
point sentencing for consistency of reasoning and approach. See R. v.
McDonnell, [1997] 1 S.C.R. 948 at para. 61 and R. v. Stone, [1999] 2 S.C.R. 290.
Provided that the impugned conduct relates to the individual offender and
[15]
the circumstances of his or her offence, the sentencing process includes
consideration of societys collective interest in ensuring that law enforcement
agents respect the rule of law and the shared values of our society. Justice
Lebel. See R. v. Nasogaluak, 2010 S.C.C. 6, at para. 49.
[16]
[T]he collateral consequences of a sentence are any consequences as to
the impact of the sentence on the particular offender. See Angelilo, below, at
para. 18.
They may be taken into account in sentencing as personal
circumstances of the offender.
However, they are not, strictly speaking,
aggravating or mitigating factors, since such factors are by definition related only
to the gravity of the offence or to the degree of responsibility of the offender
Their relevance flows from the application of the principles of individualization
and parity. Justice Wagner, R. v. Pham, 2013 S.C.C. 15 at para. 11.
[17]
It is no surprise, in view of the constraints on sentencing that imposing 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
Chief Justice McLachlin in R. V. Nur, 2015 S.C.C. 15.
...
[18]
Sentencing again, to be repeated, is part of a fact finding, decisionmaking process of the criminal law. See R. v. Gardiner, [1982] 2 S.C.R. 368 at
p. 413. It is an individualized process. See R. v. Angelillo, [2006] 2 S.C.R. 728,
atpara. 18.
Judges enjoy a broad discretion to craft a sentence tailored to the nature
[19]
of the offence and the circumstances of the offender. See R. v. Nasogaluak,
8
supra, [2010] 1 S.C.R. 206, at para. 43 and R. v. Wust, [2000] 1 S.C.R. 455, at
para 44.
Every offender [has] his or her own unique history. See R. v. McDonnell,
[20]
supra [1997] 1 S.C.R. 948, at para. 61 and accordingly:
the objectives of sentencing cannot be fully achieved unless
the information needed to assess the circumstances, character
and reputation of the accused is before the court. See
Angelillo, supra, at para. 22.
The importance of proportionality as a guiding principle for just and
[21]
appropriate sentencing has both a long history and a constitutional dimension
reflected in section 12 of the Charter. The principle of proportionality has two
functions. First, it has a limiting or restraining dimension that the offender is
punished no more than is necessary. Second, it has a balancing dimension that
is concerned with judicial and social censure. Attentiveness to proportionality
means that judges will craft sentences that adequately reflect and condemn
offenders role in the offence and the harm they caused. See R. v. Nasogaluak,
supra, [2010] S.C.J. No. 6, [2010] 1 S.C.R. 266 (S.C.C.) at para. 42.
Sentencing is, at its heart, an individualized process. The question is
[22]
always what is fit and appropriate. What is a proportionate sentence, given the
particular circumstances of the offence and the offender. Those individualized
circumstances are what guide a judge in selecting sentencing objectives. See R.
v. Ipeelee, [2012] S.C.R. 433 (S.C.C.) at para. 37.
Sentencing, is about communicating societys legitimate shared values
[23]
and concerns. Id. at para.49.
The crime I have described is one of gratuitous violence, and, and,
[24]
committed in the very home of the offender.
The measurement of a just sanction is a highly individualized process.
[25]
See Ipeelee, supra, at para. 38 in the context of a Glaude report. See also R. v.
Gladue, [1999] 1 S.C.R. 688 at paras. 33-44, 66-75, 81-84 and R. v. Ladue
(2012), 280 C.C.C. 265 (S.C.C.) at paras. 56-87.
Section 718.2(a) of the Criminal Code entrenches the common law by
[26]
requiring judges to increase or reduce a sentence by taking into account
aggravating or mitigating circumstances. The Criminal Code includes a nonexhaustive list of aggravating circumstances. It does not set out mitigating
factors. The common law has recognized many factors which may have a
mitigating or aggravating effect.
[27]
A mitigating factor recognized in the common law, would be, e.g. a first
time offender or that no prior criminal record has been advanced.
[28]
The absence of an aggravating factor is not equal to a mitigating factor
(e.g. the absence of physical injuries caused by a sexual assault is not a
mitigating factor).
The absence of a mitigating factor is not equal to an aggravating factor
[29]
(e.g. the absence of a guilty plea is not an aggravating factor.)
[30]
To treat the absence of gratuitous violence (for example) as a mitigating
constitutes an error in principle. See R. v. M.(B.) 2008 ONCA 645,
factor
paras. 5-7.
...
10
Even if no victim impact statement is prepared and filed, the Court may
[37]
consider any other evidence concerning the victim in determining the sentence to
be imposed, Section 722(9).
The Court must consider community impact statement in determining the
[38]
sentence to be imposed or whether to discharge the offender, Sections 722.2(1)
and 722.2(2).
Arguably jail is a last resort. An offender should not be deprived of
[39]
liberty, if less restrictive sanctions may be appropriate in the circumstances. See
Section 718.2(d)) and all available sanctions, other than imprisonment, that are
reasonable in the circumstances and consistent with the harm done to victims or
to the community should be considered for all offenders, with particular attention
to the circumstances of Aboriginal offenders, Section 718.2(e).
Other dispositions under the Criminal Code include absolute and
[40]
conditional discharges, see Section 730, Probation, inter alia, Suspended
sentence, see Section 731(1)(a), a Probation order combined with a fine or
imprisonment of 2 years or less, see Section 731(1)(b), a Probation order
combined with a discharge, see Section 731(2), an Intermittent sentence, see
Section 732; Compulsory conditions of probation order, see Section 732.1(2);
Fines and
Optional conditions of probation order, Section 732.1(3).
forfeiture/Victim surcharge, see Sections 734-736 and 737; Restitution, see
741.2, a conditional sentence, see Sections 742-742.7;
Sections 737.1
Imprisonment 743-743.5.
There is also of course, possible the credit for pre-sentence custody (1:1
[41]
or 1.5:1), see Sections 719(3)-(3.4).
The fundamental purpose of sentencing is to protect society and to
[42]
contribute, along with crime prevention initiatives, 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) denounce unlawful conduct and
the harm done to victims or to the community that is caused by unlawful conduct;
(b) deter the offender and other persons from committing offences; (c) separate
offenders from society, where necessary; (d) assist in rehabilitating offenders; (e)
provide reparations for harm done to victims or to the community; and (f) promote
a sense of responsibility in offenders, and acknowledgment of the harm done to
victims or to the community. See Section 718.
Again the absence of an aggravating factor does not constitute a
[43]
mitigating factor, and that the absence of a mitigating factor does not constitute
an aggravating factor. See Section 718.2(a).
11
[45]
Discretionary orders:
Firearms
communication order, see Section 743.21.
order,
see
Section
110;
Non-
[46]
The Court must confirm receipt and accuracy of a pre-sentence report
and file same as an exhibit. The Court should also confirm receipt of the victim
impact statement also to be filed as an exhibit and also inquire whether the victim
or someone acting on the victims behalf wishes to read it. See Sections 722722.1.
V
[47]
The Court must further confirm receipt of community impact statement to
be filed as an exhibit at the sentencing hearing. See Section 722.2
[48]
The Court may accept as proved any information disclosed at trial or at
sentencing proceedings, as well as any facts agreed by the Crown and the
defence. See Sections 724(1).
[49]
The Court may find any other relevant fact disclosed by evidence at trial
to be proved or hear evidence presented by either party with respect to that fact.
See Section 724(2).
V
[50]
The Crown must prove aggravating factors beyond a reasonable doubt,
the defence must prove mitigating factors on a balance of probabilities. See
SectiOn 724(3).
[51]
If the offender is present, the Court must inquire whether they have
anything to say before determining the sentence to be imposed, the offenders
allocution right. See Section 726.
[52]
In this case the accused was found guilty after trial.
proceeded by way of summary conviction.
The Crown
[53]
Amendments to s. 722 (Bill C-32, An Act to enact the Canadian Victims
Bill of Rights and to amend certain Acts, SC 2015, c. 13) came into force on July
23, 2015.
V
[54]
Section 722 of the Criminal Code allows a victim of a crime to present a
victim impact statement to the court describing the physical or emotional harm,
property damage or economic loss suffered by the victim as a result of the
12
commission of the offence and the impact of the offence on the victim. A victims
perspective of the impact of the crime is not expressly contemplated in s. 721(3)
of the Code. See R. V. Revet, 2010 SKCA71, at para.8.
The applicable definition of victim in s.2 now extends to any person
[55]
against whom an offence is alleged to have been committed, who is alleged to
have suffered physical or emotional harm, property damage or economic loss as
the result of the alleged commission of the offence, and includes for the purposes
of s. 722 a person who has suffered physical or emotional harm, property
damage or economic loss as the result of the commission of an offence against
any other person. Further, s. 2.2 of the Criminal Code allows various individuals
to act on behalf of a deceased or incapable victim.
S. 722(8) provides that the court shall take into account portions of the
[56].
statement it considers relevant and disregard any other portion. Further, the new
form allows the victim, with the courts approval, to express an opinion or
recommendation about the sentence. Section 722(6) provides that victims may
present photographs of themselves taken before the offence if, in the opinion of
the court, it would not disrupt the proceedings.
The victim may ask the court to consider making a restitution order
[57]
against the offender, and the court is required to consider making such an order
to ensure that victims are provided the opportunity to seek restitution (Canadian
Wctims Bill of Rights, ss. 16 and 17, Criminal Code, s. 737.1).
Conditional Sentence
A conditional sentence is not imprisonment as that word is used in all
[58]
sections of the Criminal Code, R.S.C. 1985, c. C-46 and Corrections and
Conditional Release Act, S.C. 1992, c. 20. See R. v. Middleton, [2009] 1 S.C.R.
674, at para. 14(S.C.C.):
imprisonment in the phrases sentence of imprisonment
and term of imprisonment does not bear a uniform meaning
for all purposes of the Criminal Code. In several instances,
these terms necessarily contemplate incarceration. Section
718.2(e), mentioned by the parties, is hardly the sole example.
Section 732(1) must itself be taken as another since, as we
have already seen, s. 732(1) refers explicitly to confinement
during the period the sentence is being served and release
from prison after completing the intermittent sentence.
In five cases released simultaneously in 2000, the Supreme Court defined
[59]
the basic principles underlying conditional sentences and the process through
13
which they are to be considered and determined. See R. v. Prnulx, [2000] S.C.J.
No. 6, 140 C.C.C. (3d) 449 (S.C.C.); R. v. Bunn, [2000] S.C.J. No. 10, 140 C.C.C.
(3d) 505 (S.C.C.); R. v. R.(R.A.), [2000] S.C.J. No. 9, 140 C.C.C. (3d) 523
(S.C.C.); R. V. W(L.F), [2000] S.C.J. No. 7, 140 C.C.C. (3d) 539 (S.C.C.); R. v.
S.(R.N), [2000]S.C.J. No. 8, 140 C.C.C. (3d) 553 (S.C.C.).
[60]
14
material
The key changes eliminated the serious personal injury offence criteria
[61]
as well as the addition of numerous categories of offences for which conditional
sentences are no longer available.
The efficacy of such a sentence depends in part on the offenders
[62]
amenability to supervision, and the court must be satisfied that the offender will
be amenable to supervision.
In Proulx, supra, [2000] S.C.J. No. 6, 140 C.C.C. (3d) 449, at pp. 484-88
[63]
(S.C.C.), the Supreme Court recognized that serious consideration should be
given to the imposition of a conditional sentence in all cases where the statutory
preconditions have been met and it would be an error in principle not to consider
the possibility of a conditional sentence in those circumstances.
Judges must consider the individual circumstances of each case and give
[64]
serious consideration to conditional sentences as mandated by Proulx, supra. I
have done so.
A wide range of conditions may be imposed in a conditional sentence
[65]
order. Section 742.3 enumerates both compulsory and optional conditions:
15
16
Those who commit the crime of rape must understand they do so at their
[71]
peril. It must be equally clear, both to those who are apprehended and to those
who might be tempted to behave in this way that the court will have no hesitation
in marking the seriousness of what has occurred and it will act in such a way as
in the present case to send out a clear and unambiguous message as to the
consequences to the offender.
The desire for, revenge is a very personal one, much more so than the
[72]
desire for retribution or punishment. Vengefulness is a retaliatory instinct
triggered when one feels wrongfully harmed and further seeks to restore balance
through returning injury for injury.
17
18
each of these principles are to be given precedence when sentencing any given
offender. Rather, they affirmed the case-by-case approach:
In a rational system of sentencing, the respective importance
of prevention, deterrence, retribution and rehabHitation will vary
according to the nature of the crime and the circumstances of
the offence (R. V. Lyons, supra, at para. 329).
R. v. Preston (1990), 79 C.R. (3d) 61 (BCCA) is one of the earliest
[78]
decisions to address in detail the deterrence/rehabilitation paradox. Citing as
crucial the finding that incarceration is both costly and demonstrably ineffective in
deterring certain type of criminal activity, Preston concluded that sentencing
judges must seriously consider a non-custodial form of disposition anytime the
successful rehabilitation of an offender remains a likely possibility.
Could a conditional sentence order fulfill the principles of deterrence and
[79]
denunciation as effectively as a period of incarceration? Would the public
sentencing process itself deter individuals just as much, if not more, than the
threat of incarceration, and thus the general public be deterred simply through
witnessing the arrests and convictions of those convicted of rape? Denunciation
could also be assumed to have been met through the same means. Is
incarceration necessary in those cases where the accused is a relatively young,
first time offender? By convicting Mr. Ururyar, has society already stigmatized
him as a person who has committed a serious crime, and therefore denounced
his offence? The Supreme Court has expressed the importance of stigma as a
consequence of criminal proceedings. A public charge, trial and conviction for a
serious offence brands a person for life, constitutes serious punishment, and is
an important part of the way society brings offenders to account for their
misconduct.
The reality of the permanent effects of a virtual jail are exacerbated by
[80]
the advent of portable devices that allow one to take photos and/or record video
footage.
[81]
19
The complainant suffered, and continues to suffer, serious and
lasting emotional harm as a result of the assaults. In her victim
impact statement, she indicates she feels she has been
irrefutably changed and expresses profound despair. She
states she has trouble sleeping, suffers from nightmares, has
no appetite and feels unwell much of the time.
The
complainants mother states the complainant has changed from
the effervescent, happy pre-teen to a withdrawn individual who
trusts no one.
Suicide is a pressing concern and the
complainants parents have taken turns watching over her to
ensure she does not harm herself.
We are of the view the sentence is demonstrably unfit. The
assaults committed by Kemper warranted a term of
incarceration in gaol. The conditional sentence appears to
have been based on incorrect assumptions about the
availability and effect of treatment. As well, the sentencing
judge misapprehended evidence about Kempers acceptance
of responsibility for the crime and the impact the assaults had
on the complainant.
R. v. Proux, supra, [2000] 1 S.C.R. 61, 2000 SCC 5 sets out a
template for imposing conditional sentence orders.
In a
preliminary determination, a sentencing judge must consider
the fundamental purpose and principles of sentencing to
narrow the range of sentence for the offender: at paras. 58-59.
The Crown argues a conditional sentence would not meet the
paramount sentencing objectives and asked for a two-to threeyear gaol term. The sentence range may have led the
sentencing judge into bypassing the preliminary determination
mandated by Proulx, supra. Instead, she focused on two
specific sentencing objectives: rehabilitation and providing
reparations for harm done to victims. She stated that the main
way to achieve both was to take steps to order the offender
into treatment so that this offender never victimizes another
young woman or girl. That powers is only available to me in a
conditional sentence order: S .A. B. 35/33-37.
Ordering Kemper into treatment was the primary motivation for
the conditional sentence. It is true that when counseling or
psychological therapy are administered in prison or as part of a
probation order, the offender consent is required, whereas an
offender can be ordered to undergo treatment without his
20
21
[83]
22
23
24
Such an
must be proved beyond a reasonable doubt.
approach is confirmed by Parliament in s. 724(3)(e) of the
Criminal Code (as amended by S.C. 1995, c. 22, s. 6). If
pychological harm may be presumed, the burden of proving
harm as an aggravating factor is improperly lifted from the
Crown and shifted to the accused to disprove harm.
In the present case, a presumption of harm is unnecessary.
The sentencing.judge found as a fact that each complainant in
the present case was traumatized.
Victim Impact Statements
[85]
25
See e.g. R. v. Gabriel (1999), 137 C.C.C. (3d) 1 at 11-12 (SCJ) per Hill J. and R.
v. Roberts, 2001 ABQB 520 at [49].
[86]
The impact on the victim is just one factor, and must be considered
alongside the principles and purposes of sentencing. Sentences should not be
increased or decreased depending on whether a victim impact statement has
been filed. But these additional facts may influence the calculation of a fit
sentence.
[87]
Section 722(1) of the Criminal Code provides that a sentencing judge
shall consider any statement prepared by a victim of the offence. Victim is
defined in s. 722(4)(a) as a person to whom harm was done or who suffered
physical or emotional loss a s a result of the commission of the offence. This
definition includes the victim or victims directly or closely affected by the
commission of the offence.
[88]
The impact on the community may be admissible under s. 724(1) as local
concerns about particular types of offences are an appropriate consideration for
a sentencing judge. See R. v. Bell, 2013 BCCA 463 at paras. 31-36.
[89]
Section 722(1) simply states that the victim impact statement should
describe the harm done to, or. loss suffered by, the victim arising from the
commission of the offence; subsection (4) describes a victim as a person who
suffered physical and emotional loss as a result of the commission of the
offence.
[90]
A victim impact statement should not recommend a particular length or
kind of sentence, and certainly not suggest retribution for the crime that was
committed.
[91]
Once a written victim impact statement is admitted, s. 722(2.1) states that
the court shall, on the request of the victim, permit the victim to read the
statement in court, or to present the statement in any other appropriate manner.
[92]
Section 722(3) states that whether or not a statement has been prepared
and filed in accordance with s. 722(2), the court may consider any other evidence
concerning any victim of the offence for the purpose of determining a fit
sentence. This provision has been interpreted to permit sentencing judges to
admit victim impact statements, even when they are not in accordance with the
form and procedures contemplated by s. 722(2).
The court has the discretion under s. 722(3) of the Criminal Code to allow
[93]
the victim to present photographs or videos. However, this type of evidence may
be unacceptable where it amounts to a tribute to the victim, or where it creates
the risk that the sentence will be based on the value of the victim. In R. v. Berner,
2013 BCCA 188, the B.C. Court of Appeal held:
26
[94]. If the Crown seeks to rely on facts asserted in the victim impact statement
as an aggravating factor at sentencing, as already indicated, it must prove those
facts beyond a reasonable doubt: See R. v. Gardiner, supra, 1982 CanLil 30
(SCC), [1982] 2 S.C.R. 368.
Victim impact legislation was introduced into the Criminal Code in 1989
[95]
and was initially included with the provisions dealing with pre-sentence report by
th
4
(
Supp.), s.7. In 1996, the
a probation officer. See R.S.C. 1985, c.23
provisions were given their own section number (s.722) and the court was
required to consider a statement that had been prepared in compliance with the
legislation. See S.C. 1995, c.22, s.6. In 1999, several substantive amendments
were made.
Section 722
[96]
27
28
Inquiry by court
Pre-Sentence Report
Subsections 721(1) and (2) of the Criminal Code confer authority upon a
[97]
sentencing court to order a pre-sentence report (PSR) in criminal proceedings
against an adult:
721. REPORT BY PROBATION OFFICER (1) Subject to
regulations made under subsection (2), where an accused,
other than an organization, pleads guilty to or is found guilty of
an offence, a probation officer shall if required to do so by a
court, prepare and file with the court a report in writing relating
to the accused for the purpose of assisting the court in
imposing a sentence or in determining whether the accused
should be discharged under section 730.
(2) PROVINCIAL REGULATIONS The lieutenant governor in
council of a province may make regulations respecting he types
of offences for which a court may require a report, and
respecting the content and form of the report.
The PSR is to assist the court in imposing a sentence (s. 721(1) and just
[98]
and individualized to the circumstances of a particular offender. It is intended to
29
30
[103] In R. v. Donovan (2004), 188 C.C.C. (3d) 193 (N.B.C.A.), at para. 31, the
court stated:
31
32
33
34
10. Must not be alone with any female person while she is
intoxicated or under any substance influence.
[109]
[110] At issue in M.(K.) V. M.(H.), [1992] 3 S.C.R. 6 was (1) whether incest is a
separate distinct tort not subject to any limitation period; (2) whether incest
constitutes a breach of fiduciary duty by a parent not subject to any limitation
period; and (3) if a limitation period applies, whether it is postponed by the
reasonable discoverability principle. The Supreme Court focussed on the victims
feelings of guilt, helplessness, isolation and betrayal are reinforced when her
attempts at disclosure to persons in authority are met with scepticism, incredulity
and anger; see Summit, supra, at p. 178, and Finkeihor and Browne, supra, at p.
532. With respect to the long-term damages that can normally be expected, the
most commonly observed effects are thus summarized by Handler in Civil
Claims of Adults Molested as Children: Maturation of Harm and the Statute of
Limitations Hurdle (1987), 15 Fordham Urb. L.J. 709, at pp. 716-17:
The most commonly. reported long-term effects suffered by
adult victims of incest abuse include depression, self-mutilation
and suicidal behavior, eating disorders and sleep disturbances,
drug or alcohol abuse, sexual dysfunction, inability to form
intimate relationships, tendencies towards promiscuity and
prostitution and a vulnerability towards revictimization.
Dr. Langevin, the psychiatrist called by the respondent,
conceded that the appellants clinical pathology might be
attributable to incestuous abuse. Her symptoms included
anxiety,
disturbance,
family
hysterical
depression,
other
from
people. In
suspiciousness, confusion and withdrawal
short, there is ample evidence that the psychological sequelae
from incestuous abuse can be, and in the present case have
See DeRose, Adult Incest
been, extremely debilitating.
of
Limitations: The Delayed
Survivors and the Statute
35
[113] Mr. Ururyar made Mandi Gray a victim. More importantly he has also
made Mandi Gray a survivor. With respect, a victim impact statement may be,
may be a misnomer and may do a disservice. It is a survivor impact statement.
[114] Any attempt to dilute this rape is repugnant. It is about deterring other
perpetrators of sexual violence and maybe, maybe more victims will be more
willing to report their attacks. It is about the seriousness of the offence.
[115] Given Mr. Ururyars complete, complete lack of credibility and self-serving
continue to be of danger to
version of events, I would not assume that he will
management
of
risk. There must be no
the
future
others. I have considered
repetitions. There is a canyon of difference between bad decisions and rape,
between evidence of goodness or, perhaps redemption.
36
Probation Orders
[116] This Court has the jurisdiction to make a probation order in addition to a
fine or imprisonment, but not in addition to both, where no minimum punishment
is prescribed (s. 731). See R. V. Blaquiere (1975), 24 C.C.C. (2d) 168 (OntCA)
and R. v. Kelly (1995), 104 C.C.C. (3d) 95 (Nfld CA).
[117] Probation conditions should be rationally connected to the offence and
the offender. A probation condition attached as a purely or primarily punitive
measure in unreasonable.
[118] Optional conditions in probation orders are intended in part to facilitate an
offenders successful reintegration into the community (s.732.1(3)(h)).
Conditions of conditional sentences may not focus principally on the rehabilitation
and reintegration of the offender and therefore the court may impose punitive
conditions such as house arrest electronic supervision and strict curfews (s.
742.3(2)(f)). The punishment for breaching a condition of a conditional sentence
range from the court taking no action to the offender being required to serve the
remainder of his or her sentence in custody. Breach of a probation order is made
Breaches of
its own offence, with imprisonment a possible punishment.
conditional sentence orders need to be proved only on balance of probabilities
while breaches of probation orders, since they may constitute a new offence,
must be proved beyond a reasonable doubt.
Weapons Prohibition
[119] Under s. 109, a court sentencing an offender for certain offences is
required to make an order prohibiting the person from possessing any firearm
and other enumerated weapons.
[120] Under 5. 110, the court has discretion to impose a prohibition order where
the offender was convicted of certain other offences. Section 111 permits a court
to make a prohibition order even where the person was not convicted of an
offencewhere, following a hearing, a judge is satisfied that it is not desirable in
the interests of safety for the person to have possession of firearms.
DNA Order
[121] Under s. 487.051 of the Code, there are four categories of offences in
mandatory primary (no discretion);
relation to DNA databank orders:
presumptive primary (offender must convince the Court not to make the order);
listed secondary. Primary and secondary offences designated in s. 487.04
37
PART Il-OBSERVATIONS
[126] We are all planks in a bridge. It is not like running a race. We dont take
a baton and pass it off with the victim. We must all work together to get the
victim from where they are to where they need to be.
[127] Everybody has a basic human right to live a life free of violence and
abuse. Violence impairs some of the most fundament liberties of our life.
[128] The perfect victim is a deceptive myth that while perpetuated by the
media and society at large serves no use in the real world for helping victims and
holding offenders accountable. We must treat victims the way we would want to
be treated. We are all human. So the bottom line is that we should want the
best for each other.
[129] The unfortunate reality is that sometimes we do fail and sometimes the
victim disengages, because it is not safe for her to face her abuser in court, or
because the justice process can feel as traumatic as the violence itself, or for
other reasons. For victims of sexual assault the notion of justice is far more
complex than who goes to jail and for how long. For victims their idea of justice
may well be different from what ours is.
38
[130] We must no longer say We dont have enough to move forward with your
case, and hand up the phone.
[131] Sexual assault is a complex crime that affects every sector of our society.
Children, girls and boys, are molested by family members, college students are
date raped, and the elderly are attacked in their homes. Sexual assault knows
no gender, geographic location, race, ethnicity, or sexual orientation. None of us
is immune, but all of us are responsible to end it.
[132] Myths and misconceptions abound, not the least of which is that real rape
is committed by strangers wielding weapons in dark alleys. To the contrary, as
we have seen here, most victims know their attackers, no weapons are used,
and alcohol and, or drugs are involved.
[133] Our terminology is confusing. Sometime we talk about rape, sometime
sexual assault, other times sexual violence. The subject of sex is talked about a
lot, but the concept of sexual violence is not discussed. People have a hard time
understanding the nature of sexual violence, and we have a tendency when we
talk about it to blame the victim for having caused it.
[1341 We tend to look at victims and hold them responsible. We do not look at
what the perpetrator did.
[135] Rape is a heinous crime, perhaps second only to murder in severity in
terms of moral depravity, severity, and irrevocability. We must all be advocates
for anyone who has been impacted by this kind of violence.
[1361 Less than 10 years ago the Supreme Court of the U.S. held that the
Eighth Amendment forbade the death penalty for rape. Justice Alitos dissent
Kennedy v. Louisiana, 554 U.S. 407 (2008), (U.S. Supreme Court splitting 5-4),
supported the continuation of the death penalty for the rape of a child.
[137] The entire system and, indeed, the entire culture in which our system
operates will take rape less seriously when sentences do not reflect the true
gravity of the offence. Anything less would be profoundly disturbing.
[138] We need to look at the neurobiology of trauma. More focus must be on
offender data, not solely on the characteristics and behaviours of the victim which
takes scrutiny off the offenders.
[139] Think of visiting a funeral home upon the death of a friend or family
member. Some guests will cry; other will laugh and tell jokes. Remember the
good times. Others will simply smile and embrace friends in a gesture of
support? Others will shut their eyes and hold their feeling close. Despite how
vastly different these reactions are, no one leaves the funeral home doubting that
someone died.
39
[142]
[1431
[144] Rape is the ultimate violation of self, short of murder except it can be
murder of the soul.
[145] Rape is a violent act because it involves force or the threat of force or
intimidation with the intention to overcome the will and capacity of the victim to
resist. The rape was not violent, it may be suggested. Mr. Ururyar did not cause
any bodily harm to Ms. Gray. Any such suggestion is reprehensible.
[146] Rape undermines our sense of security and because of this with rape I
would suggest there is a public injury as well each and every time a rape takes
place.
[147] Rape is the desecration of the victims person, a vital part of her sanity
and dignity as a human being. See Reference Assisted Human Reproduction
Act, 2010 S.C.C. 61 at paras 55-56, [2016] 3 S.C.R. 459. There seems to be a
basic lack of understanding of what rape is about. Rape involves such a
horrendous invasion not only of the victims privacy but of their body and their
mind, that even rape without any other physical violence (because let us not
40
forget that rape itself is a violent act) is a heinous crime and worthy of a severe
sentence. We should never lose sight of the basic point, simply that rape is a
rape is a rape.
[148] There is a clear, very clear, a iender dimension to the crime of rape and
sexual assault. Statistics are not biased. See Statistics Canada, Criminal
Wctirnization in Canada, 2014, Samuel Perreault, Catalogue No. 85-002-X
(Ottawa: Statistics Canada) at 33, victims of sexual assault are virtually seven
times more likely to be female.
We view our job functions through the lens of our experiences,
and all of us are impacted by biases and stereotypes and other
cognitive functions that enable us to take shortcuts in what we.
do. Bias is a natural human tendency and useful because we
need shortcuts in dealing with so much in life; unconscious
biases often are in conflict with our egalitarian values; and yet
they predict and determine our actions and decisions more
th
6
U.S. Circuit Court of Appeals
than our explicit values.
Judge Bernice B. Donald. See also Committee for Justice and
Liberty v. Canada (National Energy Board), [1978] 1 S.C.R.
369.
41
42
[153]
[154] Sexual assault is a crime. Our government has said so. It is because of
the harm it causes our society, but perhaps more importantly to the individual
complainant.
[155] The historical characteristics of crime are: conduct, circumstances and
consequences. Conduct goes to the unlawful act over which the offender has
control Circumstances go to the context in which the unlawful act is perpetrated.
Consequences go to the result of the unlawful act. Courts have used all three
bases, whether individually or in combination, for classification purposes.
[156] Lacasse at para. 5, supra, describes starting points and sentencing
ranges as two similar sentencing tools used to ensure that offenders who have
committed similar crimes in similar circumstances are given similar sentences:
43
57.
Ultimately, whatever mechanism or terminology is
used, the principle on which it is based remains the same.
Where sentencing ranges are concerned, although they are
used mainly to ensure the parity of sentences, they reflect all
the principles and objectives of sentencing. Sentencing ranges
are nothing more than summaries of the minimum and
maximum sentences imposed in the past, which serve in any
given case as guides for the application of all the relevant
principles and objectives. However, they should not be
considered averages, let alone straitjackets, but should
instead be seen as historical portraits for the use of sentencing
judges, who must still exercise their discretion in each case...
.
[157] Section 718.1 of the Criminal Code states that any sentence imposed
must be proportionate to the gravity of the offences and the degree of
responsibility of the offender. In R. v. Nasogaluak, supra, 2010 1 S.C.R. 206, at
paragraphs 40 to 42, the Court considered section 718.1 of the Criminal Code
and indicated that the principle of proportionality is central to the sentencing
process. In R. v. Ipeelee, supra, 2012 SCC 13, the Supreme Court of Canada
indicated that the Criminal Code lists a number of principles to guide sentencing
judges and that the fundamental principle of sentencing is that the sentence
must be proportionate to both the gravity of the offence and the degree of
responsibility of the offender. The Court further indicated in Ipeelee that the
sentencing principle of proportionality is ultimately tied to the fundamental
purpose of sentencing the maintenance of a just, peaceful and safe society
through the imposition of just sanctions.
44
temper, much less trump, proportionality: see Lacasse, supra at paras 53-54.
Even with its elevated stature as the paramount principle of sentencing (which
Parliament was entitled to designate), proportionality is not a principle of
fundamental justice: See R. v. Safarzadeh-Markhali, 2016 S.C.C. 14 at paras 6773. The Supreme Court specifically noted at para 71 that: The principles and
purposes for determining a fit sentence, enumerated in s. 718 of the Criminal
including the fundamental principle of
Code and provisions that follow
proportionality in S. 718.1 do not have constitutional status. Seen in that light,
individualization is not atop a hierarchy of principles. Rather, it and other
principles are to be considered in the reasoning path towards a proportional
sentence.
45
Authors Cited:
Adler, Zsuzsanna. The Relevance of Sexual History Evidence in Rape:
Problems of Subjective Interpretation, [1985] Crim. L.R. 769.
Backhouse, Constance and Lorna Schoenroth, A Comparative Survey of
Canadian and American Rape Law (1983), 6 Can.-U.S. L.J. 48.
Berger, Vivian. Mans Trial, Womans Tribulation: Rape Cases in the
Courtroom (1977), 77 Colum. L. Rev. 1.
Borgida, Eugene and Phyllis White. Social Perception of Rape
Victims: The Impact of Legal Reform (1978), 2 Law and Hum. Behav.
339.
Boyle, Christine. Section 142 of the Criminal Code: A Trojan Horse?
(1981), 23 Crim. L.Q. 253.
Boyle, Christine, L. M. SexualAssault. Toronto: Carswells, 1984.
Brickman, Julie and John Briere, Incidence of Rape and Sexual Assault
in an Urban Canadian Population (1985), 7 Intl J. of Womens Stud. 195.
Canada. Committee on Sexual Offences Against Children and
Youths. Sexual Offences Against Children. Ottawa: Ministry of Supply
and Services, 1984.
Canada. House of Commons. Standing Committee on Justice and Legal
Affairs. Minutes of Proceedings and Evidence, Issue No. 77, April 22,
1982.
Canada. Law Reform Commission. Corroboration: A Study Paper
Prepared by the Law of Evidence Project. Ottawa, 1975.
Canada.
Solicitor
General.
Canadian
Survey: Female Victims of Crime, 1985.
Urban
Victimization
Canada.
Solicitor
General.
Canadian
Survey: Reported and Unreported Crimes, 1984.
Urban
Victimization
46
Dawson, T. Brettel. Sexual Assault Law and Past Sexual Conduct of the
Primary Witness: The Construction of Relevance (1988), 2 C.J. WL. 310.
Doherty, David H. Sparing the Complainant Spoils the Trial (1984),
40 C.R. (3d) 55.
Elliott, D. W. Rape Complainants Sexual Experience with Third Parties,
[1984] Crim. L. Rev. 4.
Federal/Provincial Task Force on Uniform Rules of Evidence. Report of
the Federal Provincial Task Force on the Uniform Rules of
Evidence. Toronto: Carswells, 1982.
Feild, Hubert S. and Leigh B. Bienen. Jurors and Rape. Lexington,
Mass.: Lexington Books,1980.
Galvin, Harriett R. Shielding Rape Victims in the State and Federal
Courts: A Proposal for the Second Decade (1986), 70 Minn. L. Rev. 763.
Gordon, Margaret T. and Stephanie Riger.
York: The Free Press, 1989.
47
Howard, Cohn. Criminal Law, 3rd ed. Sydney: The Law Book Co., 1977.
Informa Inc. Sexual Assault: Measuring the Impact of the Launch
Campaign. Report prepared for the Ontario Womens Directorate,
August 1988.
La Free, Gary D. Variables Affecting Guilty Pleas and Convictions in
Rape Cases: Toward a Social Theory of Rape Processing (1980), 58
Soc. Forces 833.
La Free, Gary D., Barbara F. Reskin and Christy A. Visher. Jurors
Responses to Victims Behavior and Legal Issues in Sexual Assault
Trials (1985), 32 Soc. Prob. 389.
LeGrand, Camille E. Rape and Rape Laws: Sexism in Society and Law
(1973), 61 Calif L. Rev. 919.
MacKinnon, Catharine A.
Toward a Feminist Theo,y
State. Cambridge, Mass.: Harvard University Press, 1989.
of the
By
48
49
50
--
--
51
dimension of fear..
Particularly relevant in understanding
womens fear is an appreciation of the kinds of violence
women are most vulnerable to, especially the experience
and the impact of domestic and sexual violence. Some
women live with the imminent threat of assault from
someone in their own households, and many women live
with the more general fear of sexual assault, concerns
which rarely intrude into the lives of men.
.
&
52
[165] Rape is a violation of a victims body, a violation of sexual integrity. You
harm the complainant, you harm society.
[166] Rape legitimizes the appropriation of a womans body for individual
gratification. Rape is about humanity. It is about what we are capable of doing to
one another. It is about everyone.
[167] A conditional sentence is also inappropriate in this case because the
precondition that the offender not endanger the safety of the community has not
been satisfied. The PSR is of no help.
[168] In assessing whether an offender is a danger to the community, the court
must consider such factors: (1) the risk of the offender re-offending; and (2) the
gravity of the damage that could ensue in the event of re-offence. Even if I were
to accept that the risk to re-offend is minimal, the gravity of the potential harm
that would ensue if Mr. Ururyar was to re-offend precludes a conditional sentence
in and of itself.
V
[173]
53
Curfew:
1. Obey a curfew as set by your probation officer. Except
for any medical emergency involving you or any member
of your immediate family.
2. You must provide written justification to the probation
officer within 72 hours of any such absence during
curfew hours for any hospital visit or funeral attendance.
t4
54
No contact/communication/attendance:
Do not contact or communicate in any way, directly or indirectly,
by any physical, electronic or other means, with Mandi Gray.
Weapons and Permits:
1. Do not possess any weapon(s) as defined by the Criminal
Code.
2. All licences and registration certificates pertaining to these
things referred to above, shall be surrendered and do not
apply for any such licences and registration certificates.
Alcohol, Drugs, Other: (PSR recommendations as determined)
Counselling and Treatment: (PRS recommendations as determined)
1. Attend and actively participate in all assessment,
counselling or rehabilitative programs as directed by the
probation officer and complete them to the satisfaction of
the probation officer.
2. You shall sign any release of information forms as will
enable your probation officer to monitor your attendance
and completion of any assessments, counselling or
rehabilitative programs as directed.
3. You shall provide proof of your attendance and
completion of any assessments, counselling or
rehabilitative programs as directed.
55
Community Service:
Perform 240 hours of community service work on a rate and
schedule to be directed by the probation officer but must
completed within 18 months of the start date to this Order.
Released: September 14, 2016
Sign