R. v. Sayers, 2020 ONCJ 644

WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: 2020-02-02

Elliot Lake Information No. 29590

Between:

Her Majesty the Queen

— and —

Adam Sayers

Before: Justice John Kukurin

Heard on: December 12, 2019

Reasons for Judgment released: February 2, 2020

Counsel:

• Ms. H. Mitchell — counsel for the Crown
• Mr. A-R. Fabris — counsel for the defendant Adam Sayers

Reasons for Judgment

KUKURIN J.

Introduction

1This is a decision on sentencing. On September 12, 2019, after a five day trial, I found the offender, Adam Sayers, guilty of sexual assault on count 1 of Information 29590, and not guilty on count 2 of the same information. My Reasons are found at [2019] O.J. No. 5333. This sentencing follows the finding of guilt. The crown elected to proceed at trial by way of summary conviction.

2The offence of sexual assault is a hybrid offence. The Criminal Code provisions for this offence and for sentencing are set out below:

S. 271 Everyone who commits a sexual assault is guilty of

(a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or

(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.

Sentencing Positions of the Parties and Materials Filed

4The Crown sought a sentence of imprisonment (incarceration) for 18 months, followed by probation for 3 years, as well as ancillary orders for DNA, a s.110 weapons prohibition for five years, a SOIRA order for ten years, and an order under s.743.21(1) prohibiting the offender, during his period of incarceration from having any contact or communication with the victim of the offence.

5The Defence sought a conditional sentence for 18 months, that is, a sentence of imprisonment, but to be served in the community, subject to conditions, followed by probation for an unspecified term. No submissions were made with respect to the ancillary sentence orders requested by the crown.

6A Pre-sentence Report (PSR) had been ordered by the court and it was filed as Sentencing Exhibit 1.

7A Victim Impact Statement (VIS) of the victim was also made available to the court and to the parties. It was not read by the victim, nor by anyone on her behalf. It was filed as Sentencing Exhibit 2.

8A copy of the Undertaking of the Accused (given to an Officer in Charge) entered into when he was charged, was also provided to the court. It was filed as Sentencing Exhibit 3.

The Law on Sentencing

9Section 718 of the Criminal Code sets out the overarching purpose of sentencing, namely"to protect society" and "to contribute ... to respect for the law and the maintenance of a just, peaceful and safe society". This is to be achieved by sentences which have one or more of the following objectives:

• separating offenders from society, where necessary;
• denouncing unlawful conduct;
• deterrence of the offender and others;
• rehabilitation of the offender;
• providing reparation for the harm done to the victim and the community; and
• promoting a sense of responsibility in offenders, and acknowledgement of the harm done to victims and the community.

10In seeking to achieve these objectives, the sentencing judge must keep at the forefront the fundamental principle of sentencing: that the sentence imposed be "proportionate to the gravity of the offence and the degree of responsibility of the offender". The Supreme Court of Canada, in referring to this "proportionality principle", found in s.718.1 stated:

"It is a well-established tenet of our criminal law that the quantum of sentence imposed should be broadly commensurate with the gravity of the offence committed and the moral blameworthiness of the offender"

In other words, proportionality requires, inter alia"that those causing harm intentionally be punished more severely than those causing harm unintentionally".

11The court is also mandated to take into account the principles set out in s.718.2. The first among these is that a sentence is to be increased or reduced to account for any aggravating or mitigating circumstance relating to the offence or the offender. Section 718.2 then provides a non-exhaustive list of things that are statutorily deemed to be "aggravating" circumstances.

12Increasing or reducing the quantum of a sentence because of aggravating or mitigating circumstances does not represent the totality of what s.718.2 includes. It also refers to the principle of 'parity' and provides that a court that imposes a sentence should impose one that is similar to other sentences imposed in similar circumstances. Section 718.2 also provides a principle of restraint, that the least restrictive sanctions should be identified, and that available sanctions other than imprisonment should be considered.

13Other considerations, not specifically set out in the provisions of the Criminal Code, also come into play in the sentencing process. Many of these considerations may sometimes be considered as aggravating or mitigating factors, but, in the sentencing jurisprudence, are often viewed and applied as standalone factors. Among those most commonly mentioned are the following, although how they apply, if at all, is not always uniformly:

• Whether the offender is youthful person, or an older, mature person
• Whether the offender is a first time offender or a recidivist
• Whether there was a significant age disparity between offender and victim
• Whether the offender pleaded guilty or underwent a trial
• Whether the offence was planned or was it an impulsive act
• Whether physical injury was occasioned to the victim in the offence
• Whether the victim suffered emotional harm as a result of the offence
• Whether the offender demonstrated any remorse for the offence
• What is the range of length of sentence for offences of this type
• What conditions or prohibitions applied to the offender prior to sentence
• How did the offender comply with conditions from time of charge to sentence
• For sexual offences, was there sexual intercourse, and was penetration effected and did it involve unprotected sex

14Sentencing is necessarily an individualized process because "the court must take into account not only the circumstances of the offence, but also the specific circumstances of the offender". The Ontario Court of Appeal, in R. v. Thurairajah, stating that, in imposing sentences, trial judges must apply the objectives and principles of sentencing set out in the Criminal Code to "the specifics of each case and, in the exercise of their discretion, fashion a sentence that is tailored to the circumstances of the offence and the circumstances of the offender."

15All of the sentencing principles in the Criminal Code, to the extent that they are relevant to a specific sentencing, must be applied by the court. However, certain principles will receive more emphasis than others, depending on the nature of the offence. For the more serious and more reprehensible offences of sexual assault, for example, denunciation and general deterrence normally assume greater importance in the sentencing process.

16Judges must also be conscious of prevailing social values and seek to bring sentences into harmony with them. This is particularly so when the principle of denunciation comes to the fore. The Supreme Court of Canada has stated: "It is incumbent on the judiciary to bring the law into harmony with prevailing social values. This is also true with regard to sentencing." The court referred to Justice Lamer's explanation in R. v. C.A.M. for the role of denunciation in sentencing:

"The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particular offender's conduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law ... Our criminal law is also a system of values. A sentence which expresses denunciation is simply the means by which these values are communicated"

17The Supreme Court's jurisprudence also indicates that the law must evolve to reflect changing social values regarding the status between men and women. This is particularly so in this new millennium when such changes are not only the subjects of increasing attention in the media and in society, but are also more frequently and more prominently the focus of the attention of our law courts.

18In summary, sentencing is an individualized judicial function. Firstly, it must look to, and apply the Criminal Code provisions that relate to the offence. It must apply all of the statutory sentencing principles set out in the Criminal Code, where they are relevant, and in particular, the principle of proportionality. A sentence should be sensitive to current social values. A sentencing judge has to be guided by the jurisprudence that has been created, especially by higher courts. Ultimately, a sentencing judge has to decide what objectives he or she has to aim for, or what the sentence is intended to accomplish in the case before him or her. A sentence is often viewed as less a matter between an offender and a victim and more a matter that involves an offender and society. I am guided in this sentencing by appellate direction and pronouncements such as that of Justice Iacobucci, in R. v. Shropshire as to a sentencing court's function:

"My view is premised on the reality that sentencing is not an exact science; it is anything but. It is the exercise of judgment taking into consideration relevant legal principles, the circumstances of the offence and the offender. The most that can be expected of a sentencing judge is to arrive at a sentence that is within an acceptable range. In my opinion, that is the true basis upon which Courts of Appeal review sentences when the only issue is whether the sentence is inadequate or excessive."

"Unreasonableness in the sentencing process involves the sentencing order falling outside the 'acceptable range' of orders."

Range of Sentence

19"Range of sentence" has a statutory foundation in the Criminal Code. Although this is not the terminology used in the statute, it is unambiguously there in terms of maximum and minimum sentences specified for a particular offence. It is, therefore, not only appropriate, but essential that this be the starting point of the sentencing process. What "temporal" punitive exposure does the offender have in the sentence for the offence of which he was found guilty?

20In this case, the offence was one of sexual assault. The maximum punishment for this offence depends on whether the crown proceeded by indictment, or by way of summary conviction procedure. There is considerable difference between the two as can be seen from paragraph [2] above. By indictment, the maximum term of imprisonment is ten years; by summary conviction, it is 18 months. As stated earlier, the crown elected to proceed summarily. This set the maximum term of imprisonment for the offender in this case at 18 months. There is no minimum term of imprisonment set out in the Criminal Code for this offence. Therefore, the statutory "range of sentence" in this case is from zero to 18 months.

21This is of some importance, particularly in light of the case law submitted by counsel for the crown. Of the five cases submitted, three were appeal decisions, two were trial decisions, and all five were proceeded with at trial by indictment. Accordingly, the range of sentence in those cases bears some, but only little relationship to the range of sentence which governs the present sentencing case. While these cases may not have been submitted on the issue of sentencing "range", the arguments that the crown argued that relied on these decisions have to be viewed by this court through a filter that keeps this disparity of ranges in mind.

22"Range of sentence" has another connotation. Another manner of considering the "range of sentence" for an offence is to consider the time of imprisonment "within" the statutory range set by the Code. In other words, within the range of zero to eighteen months, what is the statutory range for an offence of the type committed in this case, for an offender such as the offender in this case, in the circumstances in which it was committed in this case? This other way of looking at sentencing lends itself well to the application of the principle of proportionality in the sentencing process.

23However, this is not necessarily the appropriate way to consider the range of sentence. On a strict application of the proportionality principle, 18 months of imprisonment would be reserved for the worst offender committing the worst version of this offence in the worst of circumstances. Anything less than "worst" would work to reduce the quantum (ie length) of the imprisonment. This might lead to a sentence that might ostensibly be seen as no more than a slap on the wrist, and clearly, in the view of any reasonable person, an unfit sentence. In other words, it can reasonably be argued that the same sexual assault should not have such significantly different consequences simply because of an election by the crown as to the manner in which it chose to proceed with the charge.

24Many jurists have referred to "range of sentence" for the offence of sexual assault. One of the difficulties is that the offence of sexual assault itself has a range in terms of what it may comprise. It can be very minimal or very intrusive. Clearly the former is very different from the latter, yet both may fit within the parameters of a sexual assault. This is not a 'one size fits all" offence, nor can a sentence for sexual assault be a "one size fits all" sentence.

25"Ranges of sentence" are a legally created concept. As one appellate judge described it:

"What also has to be kept in mind is what ranges are and what ranges are not. They are nothing more than summaries of the minimum and maximum sentences imposed in the past, serving as guides for the application of all the relevant principles and objectives. They are primarily guidelines, neither averages, straitjackets, nor hard and fast rules. Instead, they should be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case. Determining a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation"

26For sexual assaults proceeded summarily, the range would be from an absolute discharge to 18 months in jail. The case law shows sentences throughout that range. For example, in R. v. J.J.W.L.L., [2004] O.J. No. 3137 (O.C.J.), a conditional discharge was imposed on a guilty plea. In R. v. Sears, [1992] O.J. No. 3059 (Gen.Div), R. v. P.R., [2013] O.J. No. 1330 (S.C.J.) and R. v. J.B., [1996] O.J. No. 4011 (Gen.Div.) suspended sentences and probation were imposed. In R. v. W.S., 2005 ONCJ 278 15 months imprisonment was imposed. And in R. v. J.M., [2003] O.J. No. 3494 (C.J.), 18 months imprisonment was imposed. That is a relatively large range. And appropriately so, given the wide range of conduct within sexual assaults.

27What cannot be challenged is that any sentence of imprisonment that can be imposed in this case must be less than 18 months in length. This is the upper limit that this court can legally impose. The question then, is whether it should impose this upper limit, as the crown argues it should, or whether a different quantum of imprisonment is the more proper sentence in this case.

Crown Election – Summary Conviction

28Because the upper limit of range of sentence is statutorily determined by the crown's election to proceed summarily, the logical question is what inference can, or should, the court draw, if any, from this election, and more importantly, what consequences flow thereby in the overall scheme of sentence to be imposed. Unfortunately, there was nothing in the submissions of either counsel as to why the crown elected to proceed summarily. The end result is that the crown election resulted for this court in an imprisonment range whose extreme ends were zero months and 18 months.

29Admittedly, there is some judicial disagreement with what inference a sentencing court may draw from the crown's elected mode of procedure. In R. v. Sanatkar, an Ontario Court of Appeal decision, the court stated:

"The election to proceed summarily represents a prosecutorial choice of procedure reflecting the less serious nature of the offence and obviously affecting the permissible range of appropriate sentences."

30While the foregoing statement was made in 1981, the same court made the following statement in June 2019 in R. v. Stuckless:

"However, as noted by this court in R. v. Sanatkar (1981), 64 C.C.C. (2d) 325 (Ont. C.A.), at p. 327, the maximum penalty provided for an offence is an important indicator of the gravity of an offence."

31In the R. v. Lequiere decision, Justice Dillon embarks on a historical review of summary conviction procedure election, and its meaning, and eventually concludes:

"[the court] rejects the worst offence/worst offender principle but recognises that the maximum sentence should be reserved for those cases that fall within the worst category of summary conviction offences."

32The end result is that the Sanatkar decision has never been clearly overruled, it is an Ontario decision, and it is a decision of our Court of Appeal. I adopt what it says about crown elections to proceed summarily in hybrid offence charges. It does not make any sense that so fundamental a principle as the proportionality principle of sentencing would be inapplicable to sentencing on hybrid offences prosecuted by summary conviction procedure.

33Even if I am wrong in this belief, the crown's decision to proceed summarily on a hybrid offence has significance from the vantage point of 'parity' in s.718.2 (b) of the Criminal Code:

S.718.2 (b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

34The crown's mode of procedure decision is clearly relevant and has implications for the court in its sentencing of an offender who was prosecuted by summary conviction. As concluded in Lequiere, supra:

"the decision to proceed summarily is a significant one and is a relevant factor for the sentencing judge to consider when determining the appropriate range of sentence for the purpose of minimizing disparity in accordance with section 718.2 (b) of the Criminal Code. Consideration of this factor requires the sentencing judge to consider sentences that have been given to other offenders in similar circumstances for the same offence that has proceeded summarily. A failure to consider other summary conviction cases, being a relevant factor, is a reviewable error."

35My inference, for purposes of sentencing, from the crown's election to proceed summarily is that the crown's assessment of the offence was that it was not the worst offence, committed by the worst offender, in the worst set of circumstances. I acknowledge that it is unknown whether the crown felt which one or more of, the offence, or the offender, or the circumstances was or were less than the "worst" and to what degree they were less than the worst. That determination is a judicial function that flows from the facts of the case and the findings made with respect to those facts.

The Plea of Not Guilty – The Trial – Remorse

36A longstanding and universally accepted tenet of our criminal justice system is that an accused person is presumed to be innocent until he or she is found guilty. Everyone has the right to have the charges laid against him or her proved in a court of law, and to have them proved beyond a reasonable doubt. There is not, nor should there be, any adverse sentencing consequence for pleading not guilty and thereby requiring the crown to prove its case at a trial.

37A guilty plea, however, may have sentencing consequences that are positive for an offender. The guilty plea is often seen and equated to a sign of remorse by the offender for the offence. It avoids the need for the victim to testify and so, perhaps being re-victimized in the process. It is often referred to as a mitigating factor in sentencing, and mitigating factors are statutorily considered by sentencing courts to militate in favour of a reduction of the quantum of a sentence.

38There was no guilty plea in the case before me. The case involved a two count information, involving two sexual assaults on two different days. The trial result was an acquittal on one count and a finding of guilt on the other. The accused can hardly be faulted for pleading "not guilty" when he was successful on one of the two counts. It may be argued that he could have pleaded not guilty on one and guilty on the other. However, that was not a reasonable possibility as there was some question, certainly in the court, and even among counsel, as to what were the facts relied upon to support the two counts. In fact, the crown, at trial, sought to, and did amend one count to refer to a completely different day of occurrence for one offence.

39Realistically, given the way the trial proceeded, a plea on one count was not feasible. It would not have avoided the trial and, in any event, it would not likely have made much difference in the sentencing positions of the crown and the defence. The sentencing court can, at most, deprive an offender of the mitigating effect of a guilty plea. It cannot treat a not guilty plea as an aggravating factor, nor use a not guilty plea to increase quantum of a sentence it would otherwise impose.

40The only other aspect of a plea is the that the deemed remorse that is considered by courts to be inherent in a guilty plea is not a factor in the sentencing process if the plea is "not guilty". Remorse is almost universally considered to be a mitigating factor in sentencing. The crown, in its submissions, argued that absence of remorse on the part of the accused was an aggravating factor that should be considered in sentencing. If absence of remorse is an inference from a not guilty plea, I disagree, as the case law is clear that a sentencing court cannot use this route to reach that conclusion and an increase in quantum of sentence.

41However, if absence of remorse is established by evidence of facts other than the plea, then it may be a legitimate factor to consider on sentencing. The defense submission was that the offender was remorseful. The crown submission is that there was a lack of remorse. This raises the question of what evidence the crown relies upon for this lack of remorse and what evidence the offender relies on to establish that he was remorseful. There is none either way other than counsel saying so.

42"Remorse" is not mentioned in the PSR. The closest references in the PSR are to the offender's responses to questions about the day that the offence was committed. He shared that he thought the night, and the incident, and the relations he had with the victim were consensual. If the crown equates these comments to lack of remorse, I am clearly not on the same page as the crown. I take these responses as simply answers to questions about what he believed at the time of the offences. While I do not consider them as a sign of remorse, I equally do not consider them as a sign of lack of remorse. They are neutral and do not factor into this sentencing. There was no other evidence that I recall that dealt with remorse or lack of it.

The Offender's Conduct While Awaiting Trial

43The offender was released on an undertaking given to an officer in charge. This 'release' document was dated August 14, 2017. The trial started in July 2018 and evidence was completed September 12, 2019. Sentencing has not yet taken place and we are in February 2020. The offender was during this 2 ½ years subject to the conditions of his undertaking. His counsel's submissions were that the accused complied scrupulously with the conditions and that some credit should be given to him for doing so. He points out that the offender was not charged with any offences during this period, that he continued with his normal pro-social life. The court record show that he attended or was represented at all of his court dates.

44I agree that an accused's good performance while awaiting trial has been considered by a number of courts as mitigating on sentence. However, the conditions in his undertaking were hardly much of a burden. He was required to report to the police any changes in his address, employment or occupation. He was also to abstain from communicating with the victim or attending at her specified place of residence or place of employment. I note that these were in a different town than that in which the accused resided. I cannot find that these were even close to onerous or burdensome conditions, although they may very marginally have impinged on his liberty.

45Compliance by the offender with his release conditions, or for the length of time that he has done so, does not factor into this sentencing as mitigating except in a very marginal way. There was nothing out of the ordinary in the expectations inherent in the conditions of release. There was no evidence that complying with the release document impacted on the offender in any significant way.

Harm or Injury to the Victim – The Victim Impact Statement

46The Victim Impact Statement (the VIS) is a creation of statute. It is intended to be a statement of a victim describing the physical harm, the emotional harm, the property damage or economic loss suffered by the victim as a result of the commission of the offence. It is also meant to describe the impact of the offence on the victim. Section 722(1) requires the court, when determining the sentence to be imposed on an offender, to consider any victim impact statement prepared in accordance with this section and filed with the court. It also permits the court, in s.722(7), to "take into account" any portions of it that it considers relevant to its determination of sentence, and to disregard any other portions.

47The court is not limited to the victim impact statement for the above noted determination. It may also consider "any other evidence" concerning any victim of the offence. I take this to mean that the court can also take into account any trial evidence it heard with respect to the victim, not only from the victim, but also from the offender – or for that matter, from any other source.

48It is statutorily permissible to admit and act on hearsay evidence at a sentencing hearing. The victim impact statement is precisely that. It is not sworn. It is not subject to cross examination. It is an out of court statement and it is introduced and admitted as 'evidence' in the sentencing hearing for the truth of the contents of the statement. It is, and is clearly intended to be, a very subjective description of the effects on the victim as recounted by the victim.

49One of the problems with the victim impact statement is the lack of statutory direction on how it is to be used in the sentencing process. The only provision that refers to the contents of a victim impact statement is section 718.2 (a) (iii.1). In absence of any submission from counsel, I consider the victim impact statement from the perspective of this subsection, which permits the court to treat the contents of such statement as an aggravating factor in the sentencing process, one that militates in favour of increasing the sentence to be imposed.

50Based on my findings at trial, especially credibility findings, the victim impact statement of the victim causes me some concern. I made no finding at trial that the victim had suffered any observable physical harm or injuries. She did not mention any physical harm in her victim impact statement when the very first pre-printed line of the VIS invited her to do so. However, I am satisfied that she suffered emotional, psychological and, to some extent, financial harm as a result of the offender's conduct in the sexual assault offence. I also acknowledge that the victim subjectively experienced a fear of the offender, not only for herself, but also for her mother, which fear persisted at least to the date of the VIS. However, there is nothing in the evidence of the offence itself, or in the offender's post offence behaviour, that objectively can be seen as a threat to the victim, or to any member of her family.

51Judges are subject to emotion, just as are the litigants before them. A VIS is a means for a victim to open up his or her emotions to the court. This is almost always bound to stir up the sympathies of judges for the victim, and perhaps rightly so. However, judges are, unlike others, also required to act with deliberation, to act on evidence, and when sentencing, to be dispassionate and even handed.

52What does a judge do when he or she has some misgivings about a victim impact statement? I have difficulty accepting that all of the effects that the victim says she suffered was the result of the offence committed by the offender. Ultimately, I do accept the VIS as an aggravating factor in sentencing, but I must discount it somewhat for the reasons stated above.

Parity Principle in Sentencing

53The 'parity' principle is a mandatory consideration for a court that imposes a sentence. While it is secondary to the 'proportionality' principle, it is nonetheless important to apply. The precise wording in s. 718.2 (b) of the Criminal Code:

S. 718.2 A court that imposes a sentence shall also take into consideration the following principles:

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

54Essentially, what this means is that a sentencing court has to consider other sentences imposed by other courts in circumstances that have similarities to the those in the case before it. The only way to do this is to review other cases and try to find the ones that are closest in their facts to the case on which sentence is being imposed. Optimally, counsel for the crown and the defence will provide such case law. And in fact, I did receive case authorities from each. They were of some assistance, but not of great assistance from the point of view of 'parity'. As mentioned, the crown's cases all involved charges proceeded with by indictment. Comparison of sentences in those cases with the case before me was akin to comparing apples and, if not oranges, at least pears. Conversely, the cases provided by the defence were mostly concerned with whether, and in what circumstances, sexual assault offences warranted conditional sentences.

55Parity requires comparisons. In dealing with the parity principle, the court has to compare the offence, the offender, and its circumstances, to other cases, with the same or similar elements in the case it has for sentencing. Then it has to look at what sentence was imposed in the comparator case, presumably to give some basis for parity in the sentence it intends to impose. The problem is that every case is somewhat different in its facts. Almost never are the facts in a comparator case on all fours with the case before the court. However, this does not mean the parity principle has to be discarded. The court has to look for the best comparators.

56As stated above, the jurisprudence seems to support the proposition that a consideration of parity more or less demands that the court look to sentences that were imposed in other cases that proceeded in the same way. Accordingly, the comparators I have considered are not just those that were provided by counsel, but others I have found to be closer to the facts in the case before me, including the fact that they were proceeded with summarily. I have considered the following summary conviction cases, many of which are Ontario court decisions, which I list chronologically below:

(a) In R. v. H.V., [1998] O.J. No. 4694 (Ct. J. Prov. Div.) the offender was sentenced to six months in jail with two months credit for time already served followed by a one year period of probation. He sexually assaulting his wife. The assault included intercourse.

(b) R. v. Michelin, [1998] O.J. No. 5783 (Ont Ct. J. Prov. Div.), was a case where the offender committed the sexual assault upon a victim who was unconscious at the time. The judge noted that there was violence of "biting, kissing and bruising" and that the assault included penetration. The offender, who was young and had good job prospects for the future, was sentenced to 14 months in jail followed by two years of probation.

(c) In R. v. C.S., [2000] O.J. No. 5227 (Ct. J.), a 29 year old aboriginal was convicted of sexually assaulting his 12 year old second cousin. The assault included intercourse. The Court sentenced him to one year imprisonment and 18 months probation. C.S. had a previous criminal record for assault causing bodily harm and other minor offences. Both the accused and the complainant were aboriginal.

(d) In R. v. J.D.F., [2001] O.J. No. 102 (Ct. J.), the judge declined to give a conditional sentence and sentenced the offender to 15 months in jail. The offender had intercourse with the complainant while she was asleep on the evening after he first met her. The offender had no previous criminal record and provided the court with favourable character references.

(e) R. v. M.P., 2002 BCPC 537, the court sentenced the offender to a total of 18 months imprisonment followed by two years probation, on his conviction of three sexual assaults against his daughter and a simple assault against another daughter. During the first assault, he drugged his 17 year old daughter and touched her in a sexual manner. On the second occasion, he again touched her in a sexual manner, and on the third occasion he took her to a motel room and attempted, unsuccessfully, to have intercourse with her. The sentencing judge considered the breach of trust and premeditated nature of the third occasion when passing sentence. The offender had no previous criminal record.

(f) In R. v. Tony (2002), 220 Sask.R. 135, 2002 SKQB 226, The Crown appealed a nine month conditional sentence order handed down to an aboriginal offender. The summary conviction appeal judge allowed the appeal and varied the sentence by imposing an 18 month conditional sentence order with strict conditions. The victim had been driven home by the offender after a party where both had been drinking. She awoke to find her shorts off and the offender was penetrating her. She told him to stop at which time he did.

(g) In R. v. Rahmani, 2003 BCPC, the accused was convicted of a "date rape" sexual assault that included intercourse. The accused had no previous record and he was sentenced to an 18 month conditional sentence followed by a 12 month period of probation.

(h) In R. v. J.W.M. [2004] O.J. No. 1295, the maximum sentence of 18 months imprisonment followed by 2 years probation was confirmed on appeal. The circumstances were much worse than the present case. The appellant raped an extremely intoxicated 20-year-old at a time when she was in his charge because she could not look after herself. This was a gross abuse of trust. The accused not a first offender, had already been the beneficiary of a conditional sentence, and fared poorly under community supervision. His reaction to the complainant had been cavalier and dismissive. The complainant has been "profoundly affected" by the sexual assault. The court found that the offences involved surreptitious behaviour, that when the offender thinks no one is looking, and he thinks he can get away with something, he is a different person. "Once caught, he is resentful about his guilt. He will lie about his innocence if that will work to his advantage."

(i) R. v. Lequiere, 2006 BCSC 668 , [2006] B.C.J. No. 937, the appeal court confirmed the sentence of 18 months imprisonment and 2 years probation. However, here too, there were much worse circumstances involved. The accused engaged in sexual intercourse with a sex trade worker, had no intention to pay her, used threatening and intimidating behaviour in the offence, minimized what he did at trial, gave a false name when arrested, had outstanding arrest warrants at the time, had a prior criminal record, tried to mislead the court at sentencing, failed to re-attend court, and had committed other offences before he was apprehended.

(j) R. v. San Salvador [2007] O.J. No. 3352, was a trial decision where the court considered the alternatives of 10 months imprisonment and 1 year probation or 90 days intermittent imprisonment and 1 year probation with strict home confinement for the first six months. The sexual assault involved sexual intercourse with a friend while the victim was too intoxicated to resist or even speak. The accused, age 48, had expressed no remorse for his crime and had acknowledged no responsibility. The victim was vulnerable and had suffered greatly from the assault. The accused was intelligent, had no previous criminal record, was unlikely to re-offend and was not considered a threat to the community. There was no planning or violence involved in the offence. He was otherwise considered to be of good character. He was responsible for the care of his young son who would become a ward of the Crown if he was incarcerated.

(k) R. v. Dahouky, [2008] O.J. No. 1665 involved a sentence at trial that was later confirmed on appeal (at 2009 ONCA 453 , [2009] O.J. No. 2190). The accused was sentenced to 9 months imprisonment and three years of probation. The offender took advantage of the complainant's generosity in letting him remain in her home on condition that he remain on the couch. She went to her bedroom, closed the door and went to sleep. She was awakened with the offender on top of her trying to penetrate her with his penis while she was lying on her stomach. He had a criminal record for a prior assault. He committed this offence while on probation for a prior mischief and assault. Both had been drinking before this incident. There was some indication that they had earlier in the evening engaged in "quasi-sexual consensual activity". The victim suffered no injuries. The offender was a recent graduate of a community college and had secured a job as a personal trainer with ambitions to become a chiropractor.

(l) In R. v. Wahid, [2008] O.J. No. 2213, the trial sentence of a $1,000 fine on each of three counts, including a sexual assault was found manifestly unfit and set aside. The appeal court substituted 90 days on the sexual assault, 30 days on the assault and one day on the mischief, all concurrent. The sexual assault attack was prolonged and violent. The appellant took advantage of the complainant while she was intoxicated. She was forced to flee the house in order to escape his attack. He then pursued her across the street and dragged her away from the neighbour. He tore off her shirt and prevented her from calling 911 by taking her cell phone and breaking it. He then fled the scene. The complainant was bruised and badly shaken.

(m) R. v. Bisson 2010 ONCA 556 , [2010] O.J. No. 3475 involved a sentence of 9 months imprisonment and 18 months probation imposed at trial and left unchanged by a summary appeals conviction court and the Ontario Court of Appeal. The accused and the complainant, his former girlfriend, met at the accused's apartment for drinks prior to their graduation from university. The complainant alleged, and the court found, that the accused raped her twice, and that she did not consent to any interaction of a sexual nature. She returned to her residence in disarray and contacted her boyfriend who called police. There was no issue that sexual activity occurred. At issue was whether the sexual conduct was consensual and whether sexual intercourse took place. The accused denied that intercourse occurred.

(n) In R. v. W.A.R. [2013] B.C.J. No. 2119, the sentence imposed was 18 months imprisonment followed by 2 years probation for one count of sexual assault. The accused engaged in sexual intercourse with the complainant. The complainant was unconscious and vulnerable. The appellant took advantage of her condition and carried out a serious sexual assault. Both were intoxicated as they and others had been binge drinking for days. The judge found the offender to be a significant danger to society. On appeal, the appellate court felt that the sentence imposed was at the high end of the range for a summary conviction for sexual assault where there was intercourse. However, it could not conclude that the sentence of 18 months and the period of probation and curfew was unfit.

57These comparator cases are informative from a parity perspective. Overall, they confirm that when the crown elects to proceed by summary conviction on a sexual assault, the sentences, on the whole, are less than the maximum of 18 months, although for some of these offences, that maximum was imposed. Where it was imposed, there is almost invariably one or more considerations that were pivotal in bringing the sentence to the maximum. That may have been that the victim was heavily intoxicated, unconscious or asleep. It may have been the prior record of the offender. It may have been the extraordinary impact of the offence on the victim. It almost always involves sexual intercourse and penetration. It may have been that the offender was in a position of trust or position of authority. It may have been an offence that was planned deliberately by a sexual predator. Whatever it may involve, the case law tendency is to reject the worst offence/worst offender principle but still recognise that the maximum sentence should be reserved for those cases that fall within the worst category of summary conviction offences. The facts in the present case do not strike me as being in the worst category of summary conviction offences. The parity principle militates against imposing the maximum time of imprisonment (18 months) when one looks at the sentences in the cases cited above.

58As the crown cited cases that proceeded by indictment, I have also looked at some of the case law in this area. I provided counsel with citations of these cases. It is not inappropriate to consider, for parity purposes, sexual assault sentences in cases that were proceeded with by indictment. In R. v. Lequiere, supra, Justice Dillon says:

"Section 718.2 (b) of the Criminal Code provides that 'a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances'. Section 271 of the Criminal Code creates two offences for sexual assault, one a summary conviction offence, and the other an indictable offence, both with identical elements. The offences are, therefore, similar within the meaning of section 718.2 (b). Thus, it is not an error to consider sentences handed down for indictable offences when sentencing an individual convicted summarily."

59While for the most part, sexual assault offences proceeded with by indictment generally result in sentences in a higher range (from 12 months to 2 years at the lower end, to 4 to 8 years at upper end) than those in summary conviction matters, there are some cases that do not. Among these are the following, all proceeded with by indictment:

(a) In R. v. McKenzie [2015] O.J. No. 4917, 2015 ONSC 5671, the trial court imposed a sentence of 9 months imprisonment with 2 years probation on a 33 year old offender who engaged in anal intercourse with a 19 year old co-worker at a Christmas staff party where alcohol was flowing freely and there had been some prior sexual contact between them. The complainant said "no, no" after partial penetration had taken place. The offender was gainfully employed, was in a stable relationship and supported two children. His PSR was positive and he had no criminal record. No violence was involved. The sentencing judge did not accede to the argument that immigration difficulties should be a factor to reduce the sentence. The crown appeal ([2017] O.J. No. 751 (ONT CA) was dismissed as the appeal court found that the sentence was not manifestly unfit.

(b) In R. v. D.D. [2015] O.J. No. 2178, 2015 ONSC 1312 the court imposed a sentence of 12 months imprisonment and two years probation on the offender who, with others university students, attended a party at the complainant's new residence. They were all drinking and smoking marijuana. The complainant woke to find the offender positioned behind her on the futon, penetrating her with his penis. The complainant testified that she did not consent to any sexual contact with the offender. The VIS indicated that the complainant had a number of mental disorders prior to the assault (bipolar, anxiety and borderline personality disorders) and was diagnosed with PTSD following the incident. She dropped out of school, started drinking and spiralled downward and went back to her family home where she ended up in a hospital E.R. due to a suicide attempt. The offender was age 26, a good student at university, single and had no prior record. He showed great remorse.

60In fact, some sexual assaults resulted in sentences that were perhaps, surprisingly lenient.

(a) In R. v. Burton, [2012] O.J. No. 5187, while on a bus, the complainant felt the offender brush up against her leg. Initially she believed it was accidental. Then she felt his hand travel under her skirt along her right leg. She screamed for him to get away, stood up and ran to the front of the bus. The bus driver pulled the bus over and waited for the police. The offender pled guilty to a charge of sexual assault. The trial judge granted an absolute discharge. The crown appealed the sentence. The appeal court dismissed the appeal stating that it could not say that the sentence was manifestly unfit or clearly unreasonable.

(b) In R. v. J.H., [2014] O.J. No. 1786, admittedly involving a much different issue, but was a charge of sexual assault. The offender suspected he was infected with genital herpes despite no firm diagnoses. He had unprotected sexual intercourse and transmitted the virus to the victim, causing dramatic physical and emotional consequences. The offender, age 36, had no prior convictions. He pled guilty. At sentencing, the Crown characterized the matter as a test case. The Crown sought a six-month conditional sentence or 90-day intermittent sentence. Defence counsel sought a conditional discharge. The offender received a conditional discharge and was placed on probation for 12 months. The Crown appealed on the basis the sentence was manifestly unfit. The appeal was dismissed as it found that there was no error in the sentencing judge's approach.

(c) In R. v. Berseth, [2019] O.J. No. 2732, the trial judge imposed a conditional discharge with 15 months' probation, and if the probation officer deemed it necessary, assessment and counseling. While the victim was dancing with her boyfriend she was approached from the front by the offender, who was a stranger to her at the time. As the offender passed by the victim, he reached out and groped her vagina through her clothing. The offender did not touch her skin, but the victim could feel his fingers pull in an upward direction through her clothing. The victim and her boyfriend saw the offender laugh and gesture with his hands to a friend immediately following. The victim was not physically injured as a result of the assault. The victim was blindsided by what the offender did. The effect on her had been devastating. The offender was intoxicated at the time of the offence. He had no record, he had just turned 22 and it was an isolated incident. He made a choice to accept responsibility for what he had done. He had lived a pro-social life except for the "momentary incident." By all accounts he was a very caring, kind and helpful person. The Crown appealed contending the trial judge erred in principle, and that the sentence was demonstrably unfit. The appeal court stated "While it is a close call, in all the circumstances, I am not persuaded the sentence is demonstrably unfit" and dismissed the crown's appeal on sentence.

(d) In R. v. Henry [2019] O.J. No. 4343, 2019 ONSC 4978, the sentence imposed was an absolute discharge. The victim and the accused took an Uber to Mr. Henry's residence and proceeded to his bedroom where they engaged in consensual foreplay. The victim withdrew her consent to intercourse when she learned that Mr. Henry did not have a condom. At Mr. Henry's suggestion, the two walked to a nearby gas station, where Mr. Henry purchased condoms. While walking along a path Mr. Henry came behind the victim and embraced her. He kissed her neck and cheek while holding her throat and touching her genitals over her clothing. Mr. Henry applied pressure to her throat and sensed her body tense. When he tightened his grip she said "stop". Mr. Henry released her and stepped back. She was frightened and upset. Mr. Henry apologized. She was inconsolable. She followed Mr. Henry out of the ravine then quickly walked away from him. The appeal court stated "…discharges are rare in cases of sexual assault. They are, however, an available disposition that is appropriate in some cases" and dismissed the crown appeal from sentence.

61Admittedly, the factual description of the sexual assaults that resulted in discharges were at the lower end of the sexual assault spectrum. However, what is of interest, from a parity perspective, is that many such cases were upheld on the sentence imposed on appeal. What is to be gleaned from such cases is that it is important for a sentencing judge to consider the constellation of all of the factual circumstances as they apply to the offence, the offender, the victim and the situation involved in the sexual assault on which sentence is being imposed.

The Pre-Sentence Report

62The pre-sentence report portrays the offender as a first time offender who was raised, with two sisters, mainly by his mother, and by his stepfather, with whom the offender has a close relationship and several hobbies in common. The offender was described as being very respectful of his mother, of girls in general, and has never had any prior inappropriate relationships with any females. He is currently dating a co-worker with whom he has a romantic relationship, which includes sexual aspects that both he and his girlfriend describe as normal, consensual, and mutually agreeable. The offender always worked, maintained his grades at high school, was on the honour roll, and received several academic awards.

63The offender completed an apprenticeship as an auto mechanic through a community college and is working on certification as a heavy equipment mechanic. He also has an underground certificate for mining and has been, and is currently employed at a mining company in Northwest Ontario where his counsel explained he is two weeks in and two weeks out. Overall the PSR contains comments from collaterals that describe the offender as a committed, hard working young person, who has no drug or alcohol addiction issues, who is an active family member, solicitous of others, and respectful to them. The assessment of the author of the PSR is that the offender presents as engaging in pro social activities, did not present as criminally minded, and that there were no factors that would suggest he is a risk for further criminal involvement. A female childhood friend described the offender as "an all round good guy". In summary, the PSR is very favourable.

64The offender stated during his interview with the author of the PSR that he believed that the sexual contact he had with the victim was consensual. I do not view this as tantamount to a "lack of remorse". I take such statement as simply an answer to what he believed to have been the case at the time of the offence.

65The PSR is also a creation of the Criminal Code. Section 721 (1) directs that a probation officer shall prepare and file a report relating to the accused for the purpose of assisting the court in imposing a sentence. It, too, is primarily hearsay in nature and the court should always remain cognizant of this fact. However, a PSR is intended statutorily, to be an accurate, independent and balanced assessment of the offender, his background and prospects for the future. It is meant to supply a picture of the offender in society. To that extent, it is of significant value to a sentencing court mainly because this information comes from a probation officer who presumably has the qualifications and experience to assemble this information for the court.

66In the case of the offender before the court, it is clear to me, at least, that the offence seems out of character for him, and that he is not likely to re-offend. I do not see any great value of overemphasizing a rehabilitative purpose to any sentence that I would impose. At most, in terms of rehabilitation, I would try to fashion a sentence that would help educate the offender on aspects of sexual relationships that are applicable in today's world, and in particular, the law of consent as it applies in sexual relationships.

Conditional Sentence Considerations

67The Criminal Code permits, in s.742.1, the imposition of a sentence of imprisonment and ordering that the sentence be served in the community subject to a number of conditions. This "conditional sentence" order has some pre-requisites.

(a) the term of the imprisonment must be less than 2 years;

(b) the sentence must have no minimum term of imprisonment;

(c) the court must be satisfied that the conditional sentence would not endanger the safety of the community; and

(d) the court must be satisfied that the conditional sentence would be consistent with the fundamental purposes and principles of sentencing set out in s.718 to s.718.2, and also,

(e) in the case of an offence of sexual assault, it is not prosecuted by way of indictment.

68In the present case, the fact that the prosecution elected to proceed summarily meets the precondition (e) above. The maximum punishment of 18 months imprisonment when proceeded with summarily satisfies precondition (a). The lack of any minimum sentence satisfies condition (b) above. This leaves only the satisfaction of the court as to the matters in (c) and (d) above.

69With respect to pre-requisite (c), I am satisfied that the safety of the community would not be endangered or compromised by the imposition of a conditional sentence on this offender. Firstly, this is quite apparent from any fair reading of the pre-sentence report. The offender is not criminally minded. The consensus of the persons consulted by the author of the PSR is that he is an "all round good guy", respectful, pro-social, responsible and hardworking. Secondly, he has no prior criminal record. He complied faithfully with his release conditions while awaiting trial for well over two years and is likely to abide by any court imposed conditions of his sentence. Thirdly, he is currently in a relationship with a woman who affirms, in the PSR, that it has always been a problem free relationship. Fourthly, he has had the experience of being charged, of undergoing a lengthy trial, and of being found guilty of sexual assault, all experiences which, if he has any sense at all, would steer him well clear of anything remotely similar in the future. Fifthly, he is clearly intelligent, which is apparent from his academic performance in the past, and his current vocational and other pursuits. Sixthly, he has no drug problems, no alcohol problems, no mental health problems, no sexual fetishes, and is not promiscuous. Finally, he has family and support of friends and he does not seem to have a negative peer group. In short, if he were to say this is the last the court would ever see of him, I'd be inclined to believe him.

70This leaves paragraph (d) above which requires the satisfaction of the court that a conditional sentence of imprisonment would be consistent with the purposes and principles of sentencing set out in s.718 to s.718.2. This is a lengthier analysis as there are several purposes and principles involved.

71The conditional sentence was not always an option for the court. Its availability as a sentencing option started only in 1996, less than 25 years ago. The leading case authority on conditional sentences is R. v. Proulx, a 2000 Supreme Court of Canada decision that sets out a number of principles about the conditional sentence. These, for the most part, still apply today, although there have been some recent statutory changes which have made conditional sentences unavailable for some offences. The same court in R. v. Gladue stated:

"The 1996 sentencing reforms embodied in Part XXIII, and s. 718.2(e) in particular, must be understood as a reaction to the overuse of prison as a sanction, and must accordingly be given appropriate force as remedial provisions."

Two of Parliament's principal objectives in enacting this new legislation were:

(i) reducing the use of prison as a sanction, and

(ii) expanding the use of restorative justice

72Once the pre-requisite criteria for imposing a conditional sentence have been met, the principles that can be distilled from the Proulx decision, and subsequent decisions, are often cited as principles upon which the courts have relied to choose between conditional sentences and sentences of incarceration. Among these are:

• A conditional sentence, unlike probation, which is primarily a rehabilitative sentencing tool, is intended to address both punitive and rehabilitative objectives. Accordingly, conditional sentences should generally include punitive conditions that restrict an offender's liberty. House arrest and curfews are generally the norm in such sentences.

• A conditional sentence can provide significant denunciation and deterrence. As a general matter, the more serious the offence, the longer and more onerous the conditional sentence should be.

• There is no presumption that conditional sentences are inappropriate for specific offences. Nevertheless, the gravity of the offence is clearly relevant to whether a conditional sentence is appropriate under the circumstances.

• In making the determination of whether a conditional sentence is appropriate, the judge should consider the risk posed by the specific offender, not the broader risk of whether the imposition of a conditional sentence would endanger the safety of the community by providing insufficient general deterrence or undermining respect for the law.

• Generally, a conditional sentence will be better than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and the community, and promotion of a sense of responsibility in the offender and acknowledgment of the harm done to the victim and the community.

• A conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of lesser importance, depending on the nature of the conditions imposed, the duration of the sentence, and the circumstances of both the offender and the community in which the conditional sentence is to be served.

• A conditional sentence may be imposed even where there are aggravating circumstances, although the need for denunciation and deterrence will increase in these circumstances.

• No party is under a burden of proof to establish that a conditional sentence is either appropriate or inappropriate in the circumstances. The judge should consider all relevant evidence, no matter by whom it is adduced.

• A conditional sentence need not be of equivalent duration to the sentence of incarceration that would otherwise have been imposed. A judge may properly conclude that the term of the conditional sentence should be longer than it would have been if the offender were sentenced to immediate incarceration. The sole requirement is that the duration and conditions of a conditional sentence make for a just and appropriate sentence.

73In considering s.718 in the context of pre-requisite (d) above, namely consistency with the purposes and principles of sentencing, I conclude that a conditional sentence in this case is more appropriate than a sentence that involves incarceration. Considering the purposes in s.718:

(a) To denounce the unlawful conduct, the harm done to the victim and to the community is clearly a primary objective in sexual assault offences. However, denunciation has elastic boundaries. The need for denunciation may be much stronger for a sexual offence involving unconscious victims, threats, intimidation, violence, positions of trust, large age disparities, and other aggravating qualities, than for sexual offences that do not have these features. I do not perceive that the need for denunciation in the present case is elevated by any such factors. It is a fact that the offence involved sexual intercourse with penetration and oral sex. However, there were few to none of the aggravating features that would make denunciation so necessary an objective that it could only be realized by a sentence of incarceration. The emotional impact on the victim as described in the VIS was significant, but I have already said that I feel compelled to discount that VIS somewhat. The physical roughness, physical restraint, harm or injury that the victims says she underwent during the incident were not findings of fact that I made. The evidence, in fact was contradictory on these points. While the jurisprudence is clear that denunciation remains a primary objective in sexual assault offences, the case law also concedes that denunciation can also be effected by a conditional sentence of imprisonment, particularly one which significantly limits or deprives the offender of his liberty. The sentence I propose will have that consequence.

(b) To deter the offender and other persons from committing offences is an objective that is twofold. The deterrence of the offender is one; the deterrence of others is another. Deterring the offender (ie specific deterrence) is clearly a direct consequence of the sentence imposed. It will be punitive, and it will hurt. I am confident that a conditional sentence of sufficient length and with teeth will get the message across to the offender not to commit any offences, and particularly not a sexual assault offence, in the future. The deterrence of others (ie general deterrence) is a more difficult objective to achieve and to measure through sentencing. There are increasing doubts among penologists that prison sentences have the deterrent effect on which this objective relies. The very fact that our prisons and reformatories are almost always filled to overflowing belies the premise that sentences of incarceration have a deterrent effect on future criminals. Whether rightly or wrongly, however, there still remains a consensus that imprisonment is the most effective general deterrent in the arsenal of a sentencing court, but the law is also clear that deterrence of others can be effectively achieved by an appropriate conditional sentence.

(c) To separate individuals (ie offenders) from society, where necessary, is a laudable objective, but here it is not necessary to do so by imprisonment. A conditional sentence also separates offenders from the community to some extent, through house arrest and curfew conditions, although admittedly not as thoroughly as does a prison sentence. Moreover, it seems to be contrary, at least in spirit, to the principle in s.718.2 (d) that offenders should not be deprived of liberty, if less restrictive sanctions are appropriate in the circumstances. In the present case, a conditional sentence is not only available but, in my view, more appropriate than separation by incarceration.

(d) To assist in rehabilitating offenders is usually seen as directed more to recidivist criminals than to first offenders. However, even first offenders require rehabilitation. Rehabilitation, especially in appellate jurisprudence, is considered as an objective of sentencing in priority to the objectives of denunciation and general deterrence for first time offenders, especially those that are relatively young. There is an absence of any other criminal wrongdoing in almost three decades of this offender's lifetime. I would be inclined to include some measures to ensure that this offender is educated about, and is sensitive to, sexual interactions between men and women with an emphasis on gender sensitivity, the need for honest and open communication prior to, during and following sexual activity, and in particular, in what the law says about consent relating to sexual activity. This can be done effectively with a condition of a conditional sentence and/or of probation, that he attend counselling or complete a program that will meet these rehabilitative needs.

(e) To provide reparations for harm done to victims or the community is often treated as a minor, almost secondary objective or purpose of criminal law sentencing. All sexual assault offences have specific victims. The community, or more accurately, society, is impacted in a more indirect way mainly because its laws relating to sexual matters are contravened. The victim suffers harm directly. How does the criminal law, particularly the law respecting sentencing, redress what the victim has suffered. Rather poorly, in my view, both in terms of the provisions for reparations and in the practicalities of implementing reparations. I believe that the criminal law can do better and sentencing judges, in particular, can do better by tailoring the sentences they impose to provide reparations for victims directly especially where the victim is a readily identifiable person. The VIS may give the victim in this case some satisfaction in the sense that her voice was heard in the sentencing process. However, this is not really "reparation" from the offender or from the criminal justice system. It does not begin to compensate her from the losses or the negative consequences she claims to have suffered as a result of the offence.

(f) To promote a sense of responsibility in the offender and acknowledgement of the harm done to the victim or the community is a laudable objective. However, it is difficult to measure how effectively these two goals have been accomplished after the sentence is served. Moreover, as a sentencing judge, I find I have few answers on how I would go about doing so in any sentence I might impose. Nevertheless, this is a statutory objective and requires some judicial imagination and innovation. Clearly, it is intended to refashion the mind and the attitude of the offender to a more law abiding and socially acceptable one. I do not believe for one moment that relegating this offender to a reformatory institution will achieve this objective. It would incarcerate him with totally the wrong kinds of individuals who would more likely instill in him the wrong kinds of, and opposite attitudes.

74Denunciation and deterrence are associated with the "punitive" aspects of sentencing. In considering these objectives of sentencing set out in s.718, I conclude that, while denunciation and deterrence remain primary objectives for offences of sexual assault, the gravity of the sexual assault in this case, the circumstances surrounding its commission, the information about the offender and of the victim presented to the court, convince me that these two objectives can be met with a conditional sentence of imprisonment rather than a sentence of incarceration. The other objectives of sentencing are more associated with the "restorative justice" aspects of sentencing. Moreover, a proper conditional sentence that addresses these "restorative justice" aspects is more desirable than a prison sentence that does not.

75Sections 718.01, 718.02 and 718.03 do not apply in this sentencing.

76Section 718.1 sets out the proportionality principle. The heading of this section reads "Fundamental Principle" and it is often referred to as such in the jurisprudence. As can be surmised from comments and quotes in paragraph [31] above, there are some judicially conflicting views of the applicability of the worst offence/worst offender convention when a judge is sentencing for a summary conviction offence. However, even the most dogmatic proponent of this view will concede that the court cannot simply jettison this 'fundamental' principle, and in fact, it has not been, not even by our Supreme Court.

77The sentence the court imposes has to be proportionate to the gravity of the offence and to the degree of responsibility of the offender. The gravity of the offence was far from the least, but also far from the worst, in comparison with what falls within the parameters of sexual assaults. The degree of responsibility of the offender was even less in the circumstances of this sexual assault.

78Accordingly, from the proportionality perspective set out in s.718.1, this sexual assault was not such that only a sentence of incarceration could be commensurate with the two elements that comprise this principle. A conditional sentence is equally so if it is crafted properly and, perhaps is better able to meet the desired effect of reducing the use of prisons as a sanction and in increasing restorative justice, the two principal reasons underlying Parliament's 1996 sentencing reforms.

79Section 718.2 codifies several principles. The first is that courts must look to both aggravating and mitigating circumstances as factors that increase or reduce a sentence. In the list of aggravating circumstances, there is a non exhaustive list of what are deemed to be so. None of these were present in this case except evidence of the significant impact on the victim including the victim's health and financial circumstances. I find the following were aggravating:

• The offender drank to excess and was intoxicated
• The offender provided the victim with alcohol so that she too was intoxicated
• The offender failed to listen or failed to hear when the victim said "no"
• The victim suffered some long lasting emotional and economic problems
• The offence involved vaginal penetration as well as oral genital contact

80There are no 'deemed' mitigating circumstances listed in s.718.2 and so, if there are any, they must be found in evidence, either from the trial or in the sentencing hearing. In this case, there was evidence of several:

• This was a first offence and the offender was a relatively young man
• The offender did not engage in threats to, or gratuitous violence with the victim
• The victim did not suffer any observable physical injury in the offence
• The offence was not pre-meditated or pre-planned
• The offender did use a condom, albeit at the request of the victim
• The offender's PSR is favourable and describes him as not having criminogenic features and not likely to re-offend
• The offender is a hard worker, has employment, and is seeking to improve his work qualifications
• The offender has a supportive family, and he is in a new and supportive relationship

I do not accept the submission that the economic fallout from a possible, or probable, loss of his job if he is incarcerated, is a mitigating factor in this case.

81On balance, I find that the mitigating factors operate to reduce the sentence more than the aggravating factors tend to increase it.

82The parity principle set out in s.718.2 (b) has already been discussed above. My inference from the cases cited is that the offence in this case has few, if any, of the egregious features that are recited in the summaries of reported cases that are the comparators I have considered. Where the sentences imposed in such comparator cases are the maximums, there are invariably at least one, and usually more than one, of such circumstances that warrant the maximum. The application of the parity principle in this case warrants a prison sentence term more in the 9 month to 12 month range.

83The principle of restraint found in s.718.2(d) has also been cited above and is in line with Parliament's stated intention to reduce incarceration, with the now more or less acknowledged general failure of incarceration to deter re-offending, and with using other, less restrictive sanctions if they are appropriate in the circumstances. Clearly, a conditional sentence is not only available but appropriate in the circumstances of this case. Moreover, from the point of view of the offender, it may allow him to keep his employment, to pursue his vocational upgrading, to remain a productive and contributing member of society and of his community, and, on a personal level to foster his ties with his family, and his present personal relationship. Incarceration would most likely interrupt most of the foregoing.

84The final principle is found in s.718(2)(e) and this is statutory imperative to the courts to consider all available sanctions that are reasonable in the circumstances, and consistent with the harm done to the victim in this case, or to the community. This is yet another principle that echoes Parliament's intention to reduce incarceration and basically places incarceration at the end of the list of options for sentences. As stated by Clayton Ruby: "Imprisonment should be the penal sanction of last resort"

85For youthful first time offenders, the law usually stresses the objectives of individual deterrence and rehabilitation. Moreover, sentences for such persons prefer non-incarcerative sentences. The caveat is always, however"where appropriate" and/or where the purposes and principles of sentencing are not compromised. In the present case, the offender is a first time offender. He was relatively youthful at the time of the offence. In addition, any sentence of imprisonment of the court for a first time offender should strive to have the shortest term possible that is consistent with such purposes and principles.

86All of these statutory directives by Parliament, and the appellate court admonitions based on these directives, persuade me, in the circumstances of this case to impose a conditional sentence of imprisonment rather than a sentence of incarceration. Having reached this conclusion, what remains is what specific sentence and what specific conditions?

Formulation of the Sentence

87Optimally, my sentence would be a purposive one, namely, one that has as its purposes some attainable goals that will serve the offender, the victim and the community. The reality is that the offence has already been committed. A sentence cannot uncommit it. A sentence can only deal with consequences of the offence.

88My understanding from the pre-sentence report and from defence counsel's submissions on sentence, as well as from the trial, is that the offender is employed in Red Lake, Ontario, at Gold Corp, a mining company with whom he has been for five years, on a rotating work schedule that has him at work for 14 days and off for 14 days. According to his submissions at sentencing, he drives to and from work from his home in Elliot Lake. He has a home in Elliot Lake where I gather he lives alone. I do not know where he lives while in Red Lake but I presume he has a residence address there. He is dating his present girlfriend who, I gather, lives in Red Lake.

89With these facts, I would be inclined to impose a conditional sentence of about 18 months duration. This sentence would involve 'house arrest' for approximately the first 9 months. That is enough time, in my view, to satisfy the punitive objectives of sentencing, namely denunciation and general and specific deterrence. The conditional sentence order would include the statutory conditions and as well, would include the following additional conditions that apply primarily to the "house arrest" aspect of this conditional sentence: The remaining term of the conditional sentence would involve periods with curfews. The terms and conditions I would be inclined to impose on each of the foregoing portions of the overall sentence are set out below.

Conditions of Conditional Sentence

1. Home Confinement (First 270 Days)

The home confinement condition will be in effect for the first 270 days of the conditional sentence term and be subject to the following:

(a) Remain in your residence or on the property of your residence at all times, except

(i) for four hours to be set by your conditional sentence supervisor in order to acquire the necessities of life

(ii) for any medical emergencies involving you or any member of your immediate family (spouse, child, parent, sibling)

(iii) for going directly to and from or being at school, employment, court attendances, religious services and legal or medical or dental appointments

(iv) for going directly to or from and being at assessment, treatment or counselling sessions

(v) you will confirm your schedule in advance with the supervisor setting out the times for these activities

(vi) with the prior written approval of the supervisor. The written approval is to be carried with you during these times

(vii) for carrying out any legal obligations regarding compliance with this Conditional Sentence Order.

(b) During your period of home confinement:

(i) Do not change your place of residence without first obtaining the written permission of your supervisor, and

(ii) You must present yourself at your doorway upon the request of your supervisor or a peace officer for the purpose of verifying your compliance with your home confinement condition.

90For the next following approximately three months, I would replace the house arrest with a tight curfew, which would still be punitive in the sense that it would restrict the offender's freedom, but would allow a lesser degree of restriction and be a transition to a greater degree of autonomy. This tight curfew condition would have the following provisions:

2. Tight Curfew (Following 90 Days)

Following your home confinement, and for the next following 90 days of this Order,

(a) remain in your residence or on the property of your residence daily between the hours of 6:00 p.m. and 6:00 a.m., except

(i) for any medical emergency involving you, or any member of your immediate family (spouse, child, parent, sibling). You must provide written justification to the supervisor within 72 hours of any such absence during your curfew hours.

(ii) for any hospital visit or funeral attendance. You must provide written justification to the supervisor prior to any such absence during your curfew hours.

(iii) travelling directly to, from and while at work or school

(iv) travelling directly to, from and while attending any assessment, treatment or counselling directed by your supervisor

(v) with the prior written approval of the supervisor. The written approval is to be carried with you during these times

91For the final, approximately six months of the conditional sentence, I would continue a curfew condition that would provide greater freedom but would still maintain restrictions on the offender's liberty. The curfew would be from 11:00 p.m. to 6 a.m. daily and would be structured as follows:

3. Relaxed Curfew (Final 180 Days)

For the next following 180 days of this conditional sentence order,

(a) remain in your residence or on the property of your residence daily between the hours of 11:00 p.m. and 6:00 a.m., except

(i) for any medical emergency involving you, or any member of your immediate family (spouse, child, parent, sibling). You must provide written justification to the supervisor within 72 hours of any such absence during your curfew hours.

(ii) for any hospital visit or funeral attendance. You must provide written justification to the supervisor prior to any such absence during your curfew hours

(iii) travelling directly to, from and while at work or school

(iv) travelling directly to, from and while attending any assessment, treatment or counselling directed by your supervisor

(v) with the prior written approval of the supervisor. The written approval is to be carried with you during these times.

92With respect to the principal of reparation for the victim, she has, and has taken advantage of, the VIS provisions in the Criminal Code to set out the impacts on her of this offence. To the extent that it provides an outlet for her to voice these as a direct victim of the offence, it serves to indirectly address the principle of reparation. The VIS is a direct statement to the offender setting out for him the results and consequences that the offence and the offender has had on her life. In addition, evidence of the significant impact on the victim is an aggravating consideration in the sentencing process. To some extent, this may be seen in a 'reparation' sense as it serves to validate for the victim that she was wronged.

93From the point of view of society or of the community, I would also prefer that a sentence be more direct in its effects than indirect. Frankly, I see two issues that were major contributions to the commission of this sexual assault offence. They are ignorance and communication. The first was the ignorance of this offender as to what the law of Canada is with respect to sexual offences. By this, I mean not only what punishment is prescribed for the such offences, but what is the law with respect to consent. In short, the legal ramifications for anyone who participates in a sexual offence, and particularly, the potential impacts on their personal lives. Not only the offender, but the Canadian public needs to be better informed and better educated.

94As for the communication, or more correctly, inadequate communication, between those involved in sexual activities, this was a major factor in the offence before this court. Communication pre, during, and post sexual activity is something that could benefit from exploration and discussion, and education. In today's world, sex is just as prevalent as it ever was from the beginning of time, but the taboos about discussing sex have virtually disappeared. Consequently, the sentence I plan to impose will include an 'educational' component in terms of programing that is appropriate for this offender and for this offence and will attempt to dispel ignorance and to promote better and healthier communication.

95With respect to other conditional sentence conditions, I would add provisions for no contact or communication, either direct or indirect, with the victim or her family for the full term of the conditional sentence.

96I would also require the offender to register for and complete the Sexual Offender Relapse Prevention-I (SORP-1) program in whatever location(s) it can be provided. Counsel for the crown advocated a program of this kind over a Partner Assault Response (PAR) program as being more appropriate for this offender, although she advocated it as a term of probation. I have reviewed a description of the curriculum of the SORP-1 with Probation Services and agree with the crown that it targets the aims of this sentence more directly, and more to the point, than would a PAR program.

97With respect to probation, I am unconvinced that a three year probation period is either necessary or desirable. The exceptions are, firstly to provide for completion of the SORP-1 program in the event it cannot be completed during the conditional sentence portion of this sentence. The second is to continue the "no contact, no communication" prohibition between the offender and the victim and her family. For these reasons only, I would be inclined to order probation to follow the conditional sentence term for a further 18 months, to extend these as probation conditions, with no reporting (after completion of SORP-1) or other conditions except the non communication condition and mandatory statutory probation conditions. The sentence term is effectively for about 36 months, one half under a conditional sentence, and the other half under probation. By the end of probation, approximately 4 ½ years would have elapsed since the date of the offence. That is surely sufficient to allay the concerns of the victim and to satisfy the demands of the community.

98As this offence under s.271 is a primary designated offence under s.487.04, the court is required under s.487.051(1) to make an order in Form 5.03 authorizing the taking of a bodily sample from the offenders for DNA purposes. Accordingly, an order will necessarily have to be made.

99The crown is seeking a weapons probation under s.110 for 5 years. Section 110 is a discretionary provision. In this case, no weapon was used in the offence and there is no evidence of any threat made by the offender to the victim. I made no factual finding of any actual violence having been used. The crown submitted that there is "inherent violence" that is inextricably tied to the offence of sexual assault, even if no actual violence is used. While other jurist have suggested that this is true, it seems to me that this argument is less than persuasive if it is intended to support an imposition of a weapons prohibition. However, I am inclined to make as a condition of the conditional sentencing order, what is tantamount to a weapons prohibition for the duration of the conditional sentence order.

100The SOIRA provisions are mandatory of a period of 10 years. I have an obligation to impose these. I agree that they serve both a denunciatory function as well as a deterrent one. In this, they also serve to satisfy the objectives of denunciation and deterrence that are recognized by the Criminal Code as appropriate for offences of this kind.

101The crown also seeks a s.743.21(1) order that prohibits the offender from contact or communication with the victim while he is imprisoned. However, under a conditional sentence, the offender will not be incarcerated. This order is somewhat meaningless and redundant, particularly as the conditional sentence order and probation order will both have these provisions.

Released: February 2, 2020

Justice John Kukurin