“Public Safety Cannot be Sacrificed on the Altar of COVID-19.”

– Justice Joseph De Filippis, R. v. Ilunga, 2020 ONCJ 270

On May 5, 2019, Dalien Ilunga, a 37-year-old immigrant from Congo, forced a young woman into his bedroom and raped her.

Ilunga, who has a prior conviction for sexual assault, was already on probation for another assault, the probation terms of which were to “keep the peace and be of good behaviour.”

In any normal person’s mind, dragging a young woman into his bedroom and raping her falls well outside the scope of “good behaviour.”

The Rape

The young woman and a friend went to a party at Dalien Ilunga’s apartment. Many other people attended and most smoked marijuana and drank a lot of alcohol. According to the transcript, the victim did not participate in these activities.

At one point she left the livingroom and stepped into the hallway to answer a phone call from her boyfriend.  Ilunga followed her.

While she was on the phone with her boyfriend, Ilunga put his fingers down her pants and attempted to fondle her vagina.

The young woman pulled away while she continued speaking to her boyfriend.  She said there was “nonsense going on” and she felt “uncomfortable” at the apartment, but she didn’t elaborate for fear her boyfriend would be angry.

After she hung up the phone, Ilunga placed one hand over her mouth and the other around her waist and dragged her into his bedroom and kicked the door shut.

Ilunga threw her onto the bed, climbed on top of her and removed one leg of her pants. She tried to resist but was overpowered by her rapist. He penetrated her and tried to kiss her while she struggled to free her self, albeit unsuccessfully. He did not wear a condom.

During the rape, the victim heard her friend calling for her from somewhere in the apartment.  Each time her friend called the victim’s name, Ilunga put his hand over her mouth to prevent her from responding.

The entire sexual assault lasted less than five minutes before the victim’s friend knocked on the bedroom door and asked if she was there.  Ilunga lied and said she wasn’t.  Her friend opened the door and saw Ilunga on the bed with her half-naked friend, who looked terrified. Ilunga jumped off the bed and slammed the door in her face, but that ended the sexual assault.

Both Ilunga and the victim got dressed and left the bedroom.  The victim and her friend left Ilunga’s apartment shortly after.

Once in the safety of her friend’s car, the young woman broke down in tears and told her friend she’d been raped.  They called the police and the young woman was taken to a hospital to be examined by a nurse.

Dalien Illunga’s Prior Criminal Record

In 2004 Dalien Ilunga was convicted of sexual assault, assault, and failure to comply with an undertaking. He received 12 months’ jail, 18 months’ probation, a s. 109 prohibition order and was placed on Canada’s sex offender registry.

In 2015 Dalien Ilunga was removed from the registry in 2015.

After nine years of staying out of trouble, Dalien Ilunga was convicted of being unlawfully in a dwelling house of a former domestic partner and sentenced to a period of probation.

In 2014, Dalien Ilunga was convicted of assault and failure to comply with a probation order, for which he received a short jail term and another period of probation.

In 2018 Dalien Ilunga was convicted of another assault and was again placed on probation, the terms of which he violated by raping this young woman on May 5, 2019.

The Trial

At trial, defence counsel didn’t challenge the assertion intercourse occurred, but argued the sex was consensual.

Justice Joseph De Filippis concluded the prosecution evidence, including the victim’s testimony, was credible, reliable and wasn’t undermined during cross-examination.

“The defendant and victim had never met before this crime was committed. What is clear is that he [Dalien Ilunga] had no qualm about forcing a stranger into his bedroom to have unprotected sexual intercourse, without her consent,” Justice De Filippis said.

He convicted Dalien Ilunga and sentenced him to four years in prison. Were it not for the current COVID-19 pandemic Justice De Filippis would have sentenced him to five years, as Crown counsel requested.

With credit for time served before trial, Ilunga will serve an additional two years, four months, and twenty-seven days.

Dalien Ilunga will also be prohibited from possessing firearms or other weapons for life, and must register as a sex offender pursuant to the Sex Offender Information Registration Act (SOIRA) and remain a registered sex offender for the rest of his life.

His four-months sentence for breach of probation will be served concurrently.

Sentencing

As part of arguing for a sentence of 18 months in prison and a two-year probation term, defence counsel relied on the Affidavit of Dr. Aaron Orkin, a physical, epidemiologist, and assistant Professor in the Department of Family and Community Medicine at the University of Toronto, which states, in part, the following:

• There is a greater risk of contracting COVID-19 in correctional facilities.
• The health status of people in correctional settings is worse than the rest of the population, including medical comorbidities. As a result, this population is at a greater risk of intensive-care admission or death if they contract COVID-19.
• The best mechanism to address the COVID-19 risks in correctional settings is through reducing the population density.
• As of May 11, 2020, the prevalence of confirmed active COVID-19 cases in correctional facilities was 74.5 times higher than in the rest of the Ontario population. Excluding the Ontario Correctional Institute, the prevalence of active cases in correctional facilities was 7.2 times higher.
• [E]very admission prevented, and every resident discharged or released, is an opportunity to flatten the curve and improve health for the individual involved, other inmates in the facility in question, staff at the facility in question, and the public. Stated otherwise, unnecessary admissions to and continued residence at [such facilities] are a health hazard for all in the context of the COVID-19 pandemic.

Victim Impact Statement

The young woman reports she experiences ongoing mental anguish since the rape, including depression, paranoia, and nightmares.

She feels “dead inside”, has attempted suicide, and has “ongoing suicidal thoughts”.

The victim reports she has a “low sex drive” and her ability to maintain an intimate relationship is “adversely affected.”

Sexual assault is one of the most heinous crimes a man can commit against a woman. While the sex offender’s prison term will end, the victim of sexual assault often suffers mental anguish and suicidal thoughts for the rest of her life.

This is the unseen and often unreported issue victims of sexual assault must endure.

Considering the trauma this young woman will likely suffer for the rest of her life, four years in prison seems like far too light a sentence for destroying a human being.

Thankfully, Justice Joseph De Filippis sides with common sense instead of pandering to a sex offender’s desire for a shorter sentence due to COVID-19.

In R v Morgan, 2020 ONCA 279, the Ontario Court of Appeal ruled the impact of the COVID-19 pandemic may be considered at sentencing, although not to the point of reducing a sentence beyond what would otherwise be fit in the circumstances.

“The Court’s primary duty in sentencing is protection of the public.  This duty is fulfilled by a consideration of statutory and common law principles.  If jail can be avoided or minimized, it should be, because of what the medical experts have told us about the pandemic.  However, at the end of the day, public safety cannot be sacrificed on the altar of COVID-19.”

Justice Joseph De Filippis used the common sense God gave him. I wish we had more judges like him.