Harm without Physical Contact

Walters was designated a dangerous offender and given a determinate sentence of 5 years (3year presentence custody) and a 10 year long term supervision order. Walters appealed both the designation and the custodial sentence. The appeal failed: R v Walters, 2018 ONCA 391.

The predicate offence was a single count of criminal harassment. Walters emerged “from the bushes in the dark, on a lonely street. He was close enough that the complainant could feel his breath. He was masturbating as he followed her.” @6

On appeal Walters first disputed that the criminal harassment conviction qualified as a serious personal injury offence. And, second argued that the sentencing judge erred in concluding that the necessary statutory pattern had been established for the purposes of the dangerous offender designation.

With respect to the offence of criminal harassment as a serious personal injury offence [SPIO] the sentencing judge found that:

the offence was not “violent in the usual way”, because there was no physical touching, she concluded that it was “physically and psychologically violent in all other circumstances”. @5

This finding was predicated on the trial judge’s factual finding that the complainant sustained severe psychological damage. This finding was based on the judge’s acceptance of the victim’s evidence including the fact that:

she panicked, was scared and terrified, could no longer go out without fear, and now hears footsteps when she is outside. As she said, her “life flashed before [her] eyes … not knowing if [she] would be seriously harmed or killed”. She maintained in her victim impact statement that the crime had changed her. @6

The Court of Appeal found the record to amply support these findings.

With respect to the requisite statutory pattern Walters argued that “the nature of his prior conduct [fell] largely at the lower end of seriousness for sexual and other violent misconduct” @8. Walters maintained that his prior criminal history was more along the lines of indecent exposure types of offences and that there was no evidence of severe psychological harm from prior victims.

The Court of Appeal held that the sentencing judge properly considered a variety of factors including:

  1. The expert evidence including the assessment as to the future likelihood of severe psychological damage; and
  2. The appellant’s prior record of 15 sexual offences and 19 prior non-sexual offences and 21 breaches of court orders

Moreover, the Court concluded that:

trial judge properly approached her task of sentencing the appellant, after he had been found a dangerous offender, in a manner that emphasized the least intrusive sentence required to achieve the primary purpose of the statutory scheme: R. v. Boutilier, 2017 SCC  64, [2017] 2 S.C.R. 936, at para. 60. In particular, the trial judge had regard to the need for the appellant to be in a penitentiary setting in order to access necessary “high intensity sexual assault programs”. The trial judge determined this to be necessary treatment to address the significant threat posed by the appellant to the community. @13

The decision of the ONCA in Walters, particularly with respect to the SPIO is in line with recent jurisprudence from that Court.

In 2016 the ONCA found that a sexual assault was made out where an accused broke into a young woman’s home and forced her to watch him masturbate. The victim, fearing for her safety, fled her home by leaping from her balcony some 12 feet from the ground: R v Edgar, 2016 ONCA 120.

The decision in Walters is consistent with Edgar in that the violation of someone’s sexual integrity can occur even in the absence of physical contact. Although Walters was charged with criminal harassment the findings made by the sentencing judge and the Appellate Court clearly demonstrated it was considered as part of a pattern of sexual offences which had a profound impact on the victim.