Calgary

Judge didn't take account of sexual assault victim's psychological harm, appeal court rules

Alberta's Court of Appeal has ruled a man convicted of a sexual assault committed as a teenager must serve jail time, after he was initially sentenced to just probation.

Court says convicted man should have been sent to jail, not just probation

A woman sits with her head in her arms in this stock photo. A Court of Appeal panel has ruled that a man who sexually assaulted his high school classmate should have been handed a more serious sentence due to the psychological damage he caused her. (Shutterstock / panitanphoto)

Warning: This article contains graphic details of sexual assault that could be upsetting to some readers. 

Alberta's Court of Appeal has ruled a man convicted of a sexual assault committed as a teenager must serve jail time, after he was initially sentenced to just probation.

The Crown appealed a provincial family and youth court judge's decision to sentence the then youth to just two years probation, a decision the Court of Appeal panel said Tuesday didn't take into account the fact the victim suffered serious psychological damage that had long-term impacts on her life.

As a result of the decision, a man now living in Saskatchewan has 72 hours to turn himself in to Calgary police.

The case concerns a 17-year-old who was charged with assaulting a 15-year-old high school classmate in 2016. Both the victim and offender's names are protected under a publication ban as they were minors at the time.

The judgment states that on Oct. 3, 2016, the then 17-year-old asked his younger classmate to come to his house for lunch.

The two had spoken once on Facebook but were otherwise strangers.

Once they got to his house, the six foot three inch teen sexually assaulted his five foot eight inch classmate as she resisted and said no about 40 times. He penetrated her and subsequently ejaculated on her thigh.

While the [offender] has been able to put this event behind him and move on with his life, the [victim] has not.- Court of Appeal panel

She was found by a doctor to have bruising on her back and knee, and interior tearing and swollen tissue in her vagina. She was a virgin at the time.

The doctor said the finding was one of the most significant he has seen, "because those tissues can accommodate a lot of force without showing any injuries."

In late 2018, the man was found guilty of the sexual assault. He was sentenced in April 2019 to two years probation, with Judge Richard J. O'Gorman saying he was reluctant to sentence the now 20-year-old to serve time in an adult prison.

At sentencing, despite the fact that a psychologist noted the offender still refused to accept responsibility for the assault and claimed his classmate had consented, others described him favourably, saying he was now in a committed relationship and about to start his own company.

"While the [offender] has been able to put this event behind him and move on with his life, the [victim] has not," the judgment reads.

The Crown appealed the sentence, saying that an appropriate sentence should have been more serious for someone who caused or attempted to cause serious bodily harm to someone who was in effect a stranger and a guest in his home. 

His defence lawyer submitted that it wasn't proven beyond a reasonable doubt that the victim was seriously harmed. 

Significance of psychological harm

But the Court of Appeal panel found that the victim's impact statement did prove the serious harm she suffered — and it wasn't challenged.

Her victim impact statement said she wasn't able to attend school for a year, suffered panic attacks and debilitating depression and has continuing paranoia and suicidal thoughts. 

"No one can touch me. If I'm not fully aware, I will jump from the slightest graze, or I will fully break down and cry. I have been homebound now for the majority of my recent years. I am mentally and physically still hurting," she said. 

Her parents also confirmed their daughter was suffering, and said they also felt helpless and agonized by what had happened to her. 

"The reasons for the sentence do not indicate the trial judge appreciated the significance of the psychological harm suffered or that he considered it an aggravating factor in determining a fit sentence, as was required," the ruling states.

"The sentence failed to hold the respondent accountable and failed to impose a meaningful consequence for an offence of such seriousness."

The panel ruled the offender should have been sentenced to 15 months in closed and open custody (which is a mix of jail and probation time), but as he's already served nine months of probation, he will have to serve the final six months in jail.