ONTARIO COURT OF JUSTICE

Date: 2021 02 19 Court File No.: London 19-5253

Between:

HER MAJESTY THE QUEEN

— AND —

PATRICK MORGAN

Before: Justice Mark T. Poland Heard on: January 6, 2021 Reasons for Judgment released on: February 19, 2021

Counsel: Meredith Gardiner and Lerren Ducharme, for the Crown Danielle Robitaille, for the defendant Patrick Morgan

POLAND J.:

Introduction

1In the recent case of R v. Friesen [1], the Supreme Court of Canada described the role of sentencing as one of the most important and most delicate aspects of the criminal justice process. Few cases would illustrate that point better than this one.

The Facts

2On October 27, 2018, Patrick Morgan was a 19-year-old student at Fanshawe College. His mother dropped him off at a party, along with two of his friends who attended Western University.

3Mr. Morgan was not an experienced drinker. He became intoxicated, and his friends recommended that he leave the party. He took them up on their suggestion. As he was leaving the party, he saw a young woman named K.L. outside. She was obviously intoxicated, throwing up, and in some distress.

4He didn’t know K.L., but he offered to help her out. He called an Uber, and with some difficulty managed to get her into the front seat. She told him she lived at 122 Adelaide Street in London. When the Uber arrived at that address, he asked the driver to stay, as he intended simply to drop her off, and then return to the party.

5He got K.L. out of the vehicle, and attended to the residence. She had no keys, so he knocked on the door. No one answered. The Uber left, and Mr. Morgan found himself stranded at the residence. He was concerned about K.L., particularly considering her advanced state of intoxication. He called 911 and asked the police dispatcher to send an officer to assist. He was told that an officer was on the way, but no officer arrived. He called 911 again nine minutes later, and again 14 minutes after that. Mr. Morgan’s told the dispatcher that the girl with him was “super drunk” and that he wanted to make sure that she was safe.

6After the third call to 911, Mr. Morgan arranged for another Uber. The car showed up just before 12:30 am. The police did arrive at the Adelaide street address, but not until 12:58 am. In the meantime, Mr. Morgan had taken K.L. to his parent’s house.

7They arrived at the house just before 12:40 am. The Uber driver observed K.L. to be very drunk and “not responding right”. Mr. Morgan helped K.L. out of the car, and leaned her against a tree. From there, he helped her into the house, and then into the basement where they laid on a pull-out couch and went to sleep.

8They awoke at some later point, and Mr. Morgan asked K.L. if she wanted to have sex. She said “yes”. Mr. Morgan and K.L. engaged in kissing, oral sex, and unprotected intercourse.

9K.L. had no memory of the events described. She awoke at 4:30 am. She had no idea where she was, and no idea who Mr. Morgan was. She was scared and upset. She had lost her phone. Mr. Morgan let her use his cell phone to call her mother. He then dropped her off at her student residence sometime between 5 to 5:30 am.

10K.L.’s mother came to London to pick her up, and they returned to Oshawa. On the evening of October 28, 2018, K.L. attended a local hospital. A sexual assault examination was conducted.

11K.L. began sending text messages to Mr. Morgan’s phone. She had his cellphone number because she had used his phone to contact her mother earlier that morning. She engaged in a text messaging conversation with Mr. Morgan. Mr. Morgan was forthcoming. He told her they had unprotected sexual intercourse. Mr. Morgan’s identity was confirmed.

12K.L. reported this sexual assault to the Durham Regional Police. The London Police were involved. Mr. Morgan attended for an interview. During the interview, Mr. Morgan was remorseful for his actions, and stated his desire to be honest and open with the police about what had happened.

13The majority of the facts indicated herein arose from an agreed statement of facts. The parties also agreed that Mr. Morgan’s statement to the London Police should form a part of the factual foundation for the sentencing. In his statement, Mr. Morgan told the police that he had inquired about K.L.’s consent to sexual activity three times during their interactions. The Crown concedes that the Defence has proven this factual component to the balance of probabilities standard that is required for the consideration of Defence evidence in the context of a sentencing proceeding. [2] The parties also agree that in addition to being an inexperienced drinker, Mr. Morgan was also sexually inexperienced.

14Notwithstanding that there was some communication between Mr. Morgan and K.L. on the subject of consent, in the context of the knowledge that Mr. Morgan had about her very significant intoxication, Mr. Morgan specifically acknowledged that K.L. did not have the capacity to consent to sexual activity, and that his actions in engaging in sexual activity with her arose from recklessness concerning her capacity to consent and that he failed to take reasonable steps to ascertain her capacity to consent to the sexual activity.

Position of the Parties

15The parties present sentencing submissions that are widely divergent. Ms. Robitaille, for Mr. Morgan, submits that the mental fault component present in this case represents the least aggravated form of moral culpability that can be attached to legal liability in the context of a sexual assault. As a result of that factor, the influence of Mr. Morgan’s own intoxication and sexual inexperience on his decision making, and other mitigating circumstances present in Mr. Morgan’s background, the Defence argues in favour of a conditional discharge.

16The Crown, on the other hand, downplays the significance of the mental fault component associated with this sexual assault, and points to the impact on the victim that was caused by Mr. Morgan’s actions. In so doing, the Crown rests strongly on the fact that this sexual assault, consisting of unprotected intercourse, represents a highly aggravated invasion of K.L.’s sexual integrity that demands a sentence of institutional incarceration, in the range of 12 to 18 months.

Victim Input

17K.L. attended the sentencing proceeding, and produced a well written and helpful Victim Impact Statement. In her statement, K.L. described that she was 18 years old, and living away from her home in Oshawa. She was at Western University studying psychology, and was in her first year at the time of this offence. To the point of this offence, her university studies were going well, and she was enjoying life as a student. She came from a supportive family, and had been a positive and forward-looking young woman prior to being sexually assaulted.

18Since the time of this assault, however, K.L.’s life has taken a dramatic turn for the worse. She has experienced an eating disorder, mental health challenges, and physical ailments that she associates with the trauma and stress arising after she was sexually assaulted.

19She dropped out of Western after the sexual assault. She could not bear living in London and being confronted with the reality of what had happened to her. She returned home. She lost significant weight, and her health declined. She remains plagued by the effects of this sexual assault. In her VIS, she wrote:

“I still suffer from flashbacks and nightmares and many night I pull all-nighters because I am afraid to have a bad dream. I suffer from confusion and sadness still because I still don’t have all the answers I am looking for…Every minute of every day is filled with a wave of different emotions. I am no longer angry, but I am still not the woman I once was and want to be.”

20In the circumstances of this case, it is clear that the provisions of s. 718(a)(iii.1) of the Criminal Code apply. This section requires that the sentence be increased in order to account for the significant impact on the victim of this crime.

Circumstances of the Offender

21Mr. Morgan was, at the time of the offence, 19 years old. He has no criminal record. As indicated, he was an inexperienced drinker, and was intoxicated. He was also sexually naive.

22Mr. Morgan was one of two children brought up by his parents in London. His father, Murray was a Professor in the business school at Fanshawe College. Tragically, just over 6 months after Mr. Morgan was charged with sexual assault, his father was diagnosed with terminal cancer. He died four months later. This blow has no doubt been devastating for Mr. Morgan, and for his entire family. His mother Carole wrote a letter of support that has been filed as an exhibit. In her letter, she said:

“Murray was so hurt about this situation, as am I, given how completely out of character it was for Patrick to have made this serious misjudgment. Watching Murray endure unimaginable physical pain and face his own mortality in the midst of his worry for Patrick’s future, was heartbreaking”

23Mr. Morgan remains as a support to his mother, as she and other family members clearly are to him. Mr. Morgan has also been supportive of his sister who has been seriously challenged by the onset of what is described as a “serious and complex mental illness”.

24Mr. Morgan had been a very good student and athlete. He has demonstrated commitment to his community through a wide variety of community service work. Although he, too, discontinued his studies after this sexual assault, he returned to them following his father’s death in September 2019. He is not currently enrolled in post-secondary education but plans to return in September 2021. In the meantime, he is employed at a local orthodontist’s office where he assists with reception duties.

25The defence filed a number of letters of support from family members and friends of Mr. Morgan. These letters, including two written by the young women that Mr. Morgan attended the October 2018 party with, demonstrate that Mr. Morgan is highly regarded, and that he has lived a positive and pro-social life, and that the events that brought him before the court are very clearly out of character.

26All of the letters filed with the court also contain indications of Mr. Morgan’s remorse. That is, frankly, unsurprising. Mr. Morgan’s remorse was evident in his post-offence interactions with K.L., and in his statement to the London Police. Mr. Morgan also addressed the court and K.L. personally during his allocution. In so doing, he made no excuses for his behaviour, and fully accepted responsibility for the harm that he caused. It was apparent from that address that Mr. Morgan understands that his actions caused K.L., significant suffering and that he is deeply sorry for his actions. The concept of remorse as a sentencing factor was analyzed in R v. Friesen [3]:

[R]emorse gains added significance when it is paired with insight and signs that the offender has "come to realize the gravity of the conduct, and as a result has achieved a change in attitude or imposed some self-discipline which significantly reduces the likelihood of further offending" (R. v. Anderson (1992) , 74 C.C.C. (3d) 523 (B.C. C.A.), at p. 536 (emphasis in original))

27In this case, Mr. Morgan expresses full, insightful and change-motivating remorse of the type referred to in Friesen . As a result, I find that the likelihood of Mr. Morgan reoffending is minimal.

Circumstances of the Offence

A Serious Sexual Assault

28The circumstances of the offence analysis in this case pulls strongly in two very different directions. On one hand, it must be acknowledged that this is a very serious sexual assault, when viewed from the perspective of the invasiveness of the sexual activity, the scope of the interference with the bodily integrity of the victim, and the very significant and understandable impact on K.L. I do not accept the defence proposition that assessing the severity of a sexual assault along a continuum of invasiveness has no value in defining the “circumstances of the offence”. While it is true that there has been a shift in the understanding of sexual offences away from “sexual propriety” and in favour of the concept of “sexual integrity”, that is not to say that characterizing the violative act has no value . [4] Simply put, a sexual assault involving full penetrative intercourse without protection must objectively be viewed differently than a less invasive form of conduct. The sexual activity that formed the basis of the assault here interfered gravely with K.L.’s sexual integrity and personal autonomy. It was highly aggravating. [5]

Breach of Trust

29The Crown also asserts that this sexual assault took place in the context of a breach of trust. In many cases where a sleeping, intoxicated or unconscious victim has been sexually assaulted by a person with superior capacity, or unique opportunity, a breach of trust may be found. Here, however, the circumstances are somewhat more nuanced.

30First, I must accept the facts as they have been put forward: K.L. was not a sleeping or unconscious victim. She said “yes” when asked if she wanted to engage in sexual activity. Yet she was also profoundly intoxicated and legally incapable of providing consent. Mr. Morgan was also intoxicated at the time of his reckless conduct.

31Second, Mr. Morgan’s decision to take K.L. into his care must be analyzed. K.L. was a stranger to Mr. Morgan. He found her in need of assistance outside a party, and then took steps to look after her. These actions can only be described, at least initially, as principled and caring. His telephone calls to 911 demonstrate objectively that he was not possessed of any nefarious intent as it pertained to K.L. from the outset. When faced with the reality that the police were not responding quickly to his call for assistance, and in view of the fact that she was entirely incapacitated, Mr. Morgan was required to take steps to safeguard K.L. from harm. The fact that Mr. Morgan was in a position of trust with K.L. commenced as a result of the operation of law from the moment that he took her into his care outside the party. Having assumed K.L.’s care, it would have been both morally indefensible and legally impermissible to abandon her to fate.

32In addition to calling 911, the facts demonstrate that Mr. Morgan made further phone calls to family members for assistance. Given the hour, they were not answered. Mr. Morgan’s decision to return to his parents’ house with K.L. was, in the circumstances, appropriate. When he arrived, however, K.L. was clearly in his care. He could have placed her elsewhere in the house. Even if he was worried about K.L.’s advanced intoxication, he did not have to take her into the basement and he clearly did not have to get into bed with her.

33In that respect, Mr. Morgan’s position vis a vis K.L. is different from that of someone who simply invites another over to his house and then sexually assaults her while she is intoxicated, unconscious or asleep. Mr. Morgan’s breach of trust must be seen in its appropriate context.

34Nevertheless, the facts demonstrate the existence of a clear breach of trust. At the point that Mr. Morgan decided to sleep in the basement room and not his own bedroom, at the point that he decided to sleep in the same bed as K.L. and at the point that he engaged in sexual intercourse with her when he knew that she was profoundly intoxicated, Mr. Morgan transitioned from guardian to perpetrator. He breached the trust that had been imposed upon him to safeguard K.L. from harm.

The Mens Rea Component

35The mens rea for sexual assault consists of an intention to touch, and knowledge, recklessness, or willful blindness about the lack of the victim’s consent. [6]

36The parties agree that the mens rea component of the sexual assault in this case is based on recklessness. It is further agreed that Mr. Morgan could not form a lawfully recognized mistaken belief in consent, as set out by s.273.2 of the Criminal Code , by reason of either his recklessness or his failure to take reasonable steps to ascertain the viability of K.L.’s consent.

37The factual foundation that underpins the mental fault component of this offence is highly unusual. In assessing the mens rea for this offence, the following facts must be considered:

1. Mr. Morgan and K.L. were strangers;
2. Mr. Morgan knew that K.L. was profoundly intoxicated. Approximately 90 minutes to two hours prior to the sexual assault she was unable to speak, walk, or even stand up on her own;
3. Prior to the sexual assault, Mr. Morgan asked K.L. three times if she was consenting to sexual interactions. She said “yes”.
4. K.L. was not capable of consenting to sexual activity at the time of Mr. Morgan’s engagement with her, notwithstanding her affirmation;
5. K.L. awoke 90 minutes to 2 hours after the sexual interactions with Mr. Morgan. She was disoriented, afraid and upset. She did not know where she was. She did not know who Mr. Morgan was.

38During submissions, the Crown initially took the position that recklessness was not a less culpable form of intent than the mens rea associated with an action that is coupled with knowledge. This position was taken in reliance on dicta found in the case of R v. Smith [7] where the Court appeared to suggest that there is “no difference” whether a victim was assaulted when she was deeply asleep, unconscious, significantly intoxicated or obviously incapable of consenting to sexual activity. This proposition in Smith must be seen in its proper context. In that case, the victim was asleep at the time of the sexual assault. This fact leads logically to a finding of actual knowledge concerning the lack of the victim’s consent. At no time in Smith did the Court undertake a deliberate or considered review of the spectrum of moral culpability in the sentencing process based on the mens rea that led to the finding of criminal liability.

39On the other hand, in the case of R v. Tweneboah-Koduah , the Ontario Court of Appeal did expressly decline to afford a lesser degree of moral blameworthiness to recklessness than to actual knowledge. [8] In that case, the sexual assault was perpetrated against an intoxicated and unconscious victim. In expressing its finding, however, the Court of Appeal was again not attempting to express a general approach to assessing moral blameworthiness associated with different liability-imposing forms of mens rea . Instead, the Court was simply expressing the reality that on the facts of the case before it, there would have been no practical difference in sentence regardless of the form of mens rea that was the basis for the criminal liability that had been imposed. [9]

40The Defence takes the position that not only should a case with a mens rea based on recklessness be treated differently from a case where the perpetrator possesses actual knowledge of non-consent, but that the factors that existed alongside Mr. Morgan’s recklessness informed his conduct in this case. In particular, Ms. Robitaille pointed to Mr. Morgan’s intoxication, and his inexperience both with alcohol, and with sex. Neither of these factors are relevant in respect of the finding of liability. Neither factor can be relied on in the assertion of a mistaken belief in consent. That does not mean, however, that both factors are irrelevant on sentencing.

41The reality is that the facts will always drive the conclusion concerning the level of moral culpability in every case. As Tweneboah-Koduah demonstrates, it is possible to imagine a scenario where the distinction between reckless and knowing conduct would be so fine as to demonstrate a functional equivalence. In other circumstances, as the Court in Henry points out, a person who commits a sexual assault in the face of actual knowledge of non-consent may be found to have a higher degree of moral blameworthiness than a person who does so recklessly. Recklessness explains the conduct of one who “sees the risk and who takes the chance” [10] . At a fundamental level, those who commit crimes with “pure subjective intent” based on acts taken in the face of actual knowledge are usually subject to greater punishment than those who act with imputed knowledge or intent. [11]

42A finding of recklessness in this case means that even after considering her affirmative response to his query about participating in sex, Mr. Morgan observed a risk that K.L. was not capable of consenting to sex, yet he proceeded in the face of that risk. This conduct is reprehensible and deserving of strong censure to be sure. Nonetheless, on the unusual facts of this case, it is clear that Mr. Morgan’s recklessness presents a less morally culpable mental fault element than would be the case had Mr. Morgan simply had sex with an unconscious or entirely unresponsive partner.

43I do not, however, accept the defence proposition that this represents “the lowest possible” form of criminally blameworthy mental fault. Mr. Morgan had been in the company of K.L. for well over two hours at the point that the sexual assault occurred. He saw her lying on the sidewalk at the Adelaide Street residence, completely unable to fend for herself. He physically moved her into two motor vehicles. He propped her up against a tree when he arrived at his parents’ house. He observed her at the same time the Uber driver made his observations about K.L.’s incoherence. The risk was obvious, and Mr. Morgan proceeded in the face of that risk. [12]

44This case highlights the critical importance of ensuring the existence of consent in sexual interactions. Consent is now often explained to young people as being present only where it is “enthusiastic and informed”. [13] While perhaps not a legal proposition, the concept of an enthusiastic consent is easy to understand, and it makes good sense. Given the evidence concerning the advanced state of K.L.’s intoxication, there is little doubt that had Mr. Morgan turned his mind to the requirement to ensure that K.L. was an enthusiastic partner in the sexual activity that occurred, he would not be before the court; K.L. would not have been harmed; and Mr. Morgan would not have to live with the obvious guilt and remorse that he now feels as a result of the trauma and suffering that he has inflicted upon K.L.

The Sentencing Principles Applied

Fundamental Purpose and Sentencing Objectives

45The fundamental purpose of sentencing is to protect the public and to engender “…respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions…” [14]

46This purpose is satisfied by the application or “one or more” of a series of sentencing objectives. Of importance in this analysis, the sentencing objectives include denunciation, general and specific deterrence, and rehabilitation.

47In 2019, Parliament enacted s.718.04 of the Criminal Code . This section contains a further specific sentencing objective that provides that where the offence involved the abuse of a person who is vulnerable because of personal circumstances, primary consideration must be given to the objectives of denunciation and deterrence. [15] In this case, clearly K.L. was a person who was “vulnerable because of personal circumstances”. Strictly speaking, however, this provision does not apply to Mr. Morgan because it was enacted after the commission of this offence. Nonetheless in a case such as this, s.718.04 effectively mirrors the “breach of trust” principle found at s.718.2(a)(iii). That provision has application here and was in force at the time of this offence. In cases involving a sexual assault against an incapacitated victim, s.718.04 can be seen to effectively restate the common law which treats the objective of denunciation in such circumstances as particularly important. [16]

Proportionality

48The purpose and objectives of sentencing must be satisfied in accordance with the sentencing principles that are set out in the Criminal Code . The principle with predominant importance is that of proportionality. Section 718.1 of the Code states as follows:

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

49The critical role of proportionality has been repeatedly emphasized by the Supreme Court of Canada. [17] In the case of R v. Ipeelee , the court found as follows:

The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing…the resulting sentence must respect the fundamental principle of proportionality. Proportionality is the sine qua non of a just sanction…First, the principle ensures that a sentence reflects the gravity of the offence….Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender….a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other. [18]

50The practical difficulty is that at first glance the circumstances of the offence appear to pull strongly in the opposite direction from the circumstances of the offender. Here, the offence was very serious. On the other hand, Mr. Morgan presents with numerous mitigating features and limited aggravating features to assess on the “offender” side of the scale. In reality, however, the proportionality analysis is best understood not as a bipolar continuum but as requiring a complex, individualized and multi-dimensional analysis. That analysis here must incorporate the very serious infringement of K.L.’s bodily integrity, the consequential harm caused, the modestly attenuated mental fault component, the unique facts underlying the breach of trust, and the many mitigating factors demonstrated by Mr. Morgan including his guilty plea, obvious remorse, significant non-penal consequences, youth, family situation and community support and prior pro-social orientation. [19]

Parity

51It is also important that the sentence passed in this case bears comparison with other similar offenders and similar offences committed in similar circumstances. Of course, no two cases are identical. In truth, this case does not lend itself easily to comparison. It contains some components that are unique, and which make the task of achieving parity more challenging. While sentencing ranges have been presented by both the Crown and Defence, the reality that counsel have recognized is that none of the authorities presented are entirely factually aligned with the case at bar. Even where cases have close factual alignment, sentencing ranges expressed in the jurisprudence act merely as a guide. The unique circumstances of the offence and the offender that are part of an individualized sentencing assessment may require a sentence outside of a particular range. [20] The overall goal in relation to parity must be the expression of an understandable sentence when the case at bar is examined in light of other cases. [21]

Restraint

52The so-called restraint principle must also be afforded expression in the sentence in this case. It operates because Mr. Morgan is a youthful first offender. As such, all sanctions apart from incarceration must be considered. Where incarceration is required, the length of imprisonment must be “as short as possible and tailored to the individual circumstances of the accused.” [22] The quantum of custody imposed must be the least possible period that adequately reflects the need for deterrence and denunciation. In giving effect to the restraint principle, while the objective of rehabilitation cannot be allowed to dominate the sentencing exercise, it also cannot be ignored in favour of denunciation and deterrence. [23]

Does a Conditional Discharge Satisfy the Sentencing Principles?

53The Defence request to consider a conditional discharge in this case must be weighed against these sentencing objectives and principles. The test under s.730 of the Criminal Code has two parts. A discharge can only be imposed where it is in the best interests of the accused and where it is not contrary to the public interest.

54In support of its argument, the Defence presents a series of sentencing cases involving sexual assaults where conditional discharges have been imposed.

55In R v. Henry , 2019 ONSC 4978 , the youthful first offender met the victim through an online dating site. The two engaged in consensual foreplay which was followed later by further touching. When he began to choke her, the victim said “stop”. At trial, the offender was found guilty of sexual assault and given an absolute discharge, which was upheld on appeal.

56In R c. Côté-Nault , 2020 QCCQ 1975 , the offender pleaded guilty to sexually assaulting his roommate after drinking. The assault involved sexual touching and oral sex. The offender was remorseful and cooperative. He was given a conditional discharge.

57In R c. Gravel , 2018 QCCA 1114 , the offender was given a conditional discharge for his sexual assault conviction. The sentence was not overturned by the Court of Appeal, but the facts underlying the original sentence were not examined.

58In R v. J.H., 2014 ONSC 2288 , the issue was informed consent. The offender suspected he had genital herpes yet he had unprotected sexual intercourse with the victim. She contracted the virus and suffered severe physical and emotional consequences. The offender pleaded guilty and was given a conditional discharge. The sentence was upheld on appeal.

59In R v. Berseth , 2019 ONSC 888 , the youthful first offender pleaded guilty to sexual assaulting the victim at their university’s athletic banquet. The offending behaviour involved an invasive groping incident. The offender was discharged conditionally, and the Crown appeal was dismissed.

60In R v. Rai , 2018 ONCJ 949 , the offender pleaded guilty to sexually assaulting the victim as she was getting into her vehicle. The youthful first-time offender, who was subject to potential immigration issues upon conviction, pressed himself against the victim, attempted to kiss her, and placed his hand on her breast. The court imposed a conditional discharge.

61It will be obvious from a review of these cases that none present a sexual assault involving unprotected sexual intercourse with a profoundly intoxicated victim. As the defence acknowledges, the imposition of a conditional discharge presents as a highly fact-driven result. Although not a criticism given the somewhat unique circumstances of the case at bar, the factual circumstances in the cases offered by the Defence are not of significant assistance in addressing the appropriate range of sentence in this case.

62In many respects, Mr. Morgan presents as a highly sympathetic individual. Among other factors, the presence of strong, obvious and real remorse for his actions from the very outset of this case must be considered. K.L. was said to have no memory of the events surrounding the sexual assault. The reality is that this case would not be before the court had Mr. Morgan not immediately accepted responsibility for his wrongdoing both in his communications with K.L. and then later in his interactions with the police.

63Ms. Robitaille has been highly effective in presenting Mr. Morgan as a young man whose best interests clearly favour the imposition of a conditional discharge. He is a young man who has worked hard, and who continues to both support his family and advance his education. The imposition of a criminal record associated with the entry of a conviction will create obvious collateral hardships for Mr. Morgan. So too will the imposition of the mandatory ancillary orders. Mr. Morgan has suffered some crushing personal difficulties, including his father’s cancer diagnosis and death between the time that he was charged with this offence, and the time of his sentencing. If I was only to consider the principal of rehabilitation or the best interests of the offender, I would not have hesitated in imposing a conditional discharge.

64The sentencing principles engaged, and the issues involved here necessitate a much broader analysis. This was a highly invasive sexual assault involving unprotected intercourse perpetrated upon an incapacitated young woman in Mr. Morgan’s charge. This reality militates strongly against the imposition of a conditional discharge. [24] While in one respect the public may, as Ms. Robitaille suggests, be well served by supporting Mr. Morgan’s full rehabilitation by permitting access to the discharge provisions of the Code, the requirement to impose a sentence that gives effect to both denunciation and general deterrence here is overwhelming. The type of sexual assault perpetrated in this case can be compared to the offence of impaired driving in one limited sense: these are both the kinds of offences that are likely most often committed by otherwise law-abiding people. The imposition of substantial penalties in such circumstances bears the greatest likelihood of achieving a deterring effect. [25] As a result, I find that it would be entirely contrary to the public interest to discharge Mr. Morgan in this case. For the same reason, the imposition of a non-custodial disposition of any type would simply not be appropriate.

Does a Conditional Sentence Satisfy the Sentencing Principles?

65Having determined that the requirements of denunciation and general deterrence require the imposition of a custodial sentence, I must now determine the form of that sentence. Custodial sentences can be served in traditional carceral institutions or they can be served in the community in the form of a conditional sentence.

66Here, the Crown urges the imposition of a traditional jail sentence. In so doing, they rely on a series of cases that appear to set the range for offences of this nature as between 14 months to 3 years.

67In R v. Smith , 2015 ONSC 4304 , the youthful first offender was convicted of sexually assaulting a homeless and sleeping 18-year-old virgin who was dealing with the effects of a crystal meth binge. The sexual assault took place at the offender’s residence. At trial, the court imposed a 16-month conditional sentence. Upon Crown appeal, the sentence was varied to 9 months in jail.

68In R v. Scinocco , 2017 ONCJ 359 , after a night of drinking at the offender’s residence, the victim was sexually assaulted while she slept. There was partial vaginal penetration that stopped only after the victim awoke and she verbally and physically resisted. There was a breach of trust. The offender was sentenced to 12 months’ jail followed by two years of probation.

69In R v. D., 2015 ONSC 1312 , the offender attended a small gathering at the victim’s apartment. Both were university students. The offender sexually assaulted the victim while she slept. This was the youthful offender’s first offence. He was on bail for a long time prior to the trial, without issue. He was sentenced to 12 months’ jail and 2 years’ probation.

70In R v. Colbourne , 2013 ONCA 308 , a group that included the offender and the victim spent the night drinking at a bar. The group then drove to the offender’s home. The victim was passed out from the effects of alcohol when she was sexually assaulted by the offender. He was sentenced to 14 months in jail with 2 years’ probation. The Ontario Court of Appeal dismissed the offender’s sentence appeal. In its decision, the Court noted that the sentence was at the low end of the range.

71In R v. Merritt , 2004 CarswellOnt 1214 , the offender sexually assaulted a young, extremely intoxicated, and unconscious employee after an office party. There was a breach of trust. The reviewing court dismissed the offender’s appeal from a sentence of imprisonment of 18 months plus 2 years’ probation.

72In R v. F.(J.), 2015 ONSC 5763 , the youthful first time offender sexually assaulted an unconscious and extremely intoxicated friend who had accompanied him to an office party. Here too the Court found a breach of trust. The offender showed great remorse. The Court pointed out that a sexual assault that includes a breach of trust component “demands a sentence in excess of fourteen (14) months in custody”. [26] The sentence was 18 months in jail and 2 years of probation.

73Finally, in R v. Wells, 2000 SCC 10 , an aboriginal offender, who committed two prior assaults, appealed his sentence of 20 months’ incarceration for sexually assaulting a young aboriginal woman while she was asleep or unconscious from the effects of alcohol. The Supreme Court of Canada dismissed the appeal.

74Although not cited by the Crown, the case of R v. Ghadghoni , 2020 ONCA 24 , is also relevant. In that case, the youthful offender appealed a sentence of 30-months’ incarceration for sexually assaulting a sleeping and intoxicated woman after a nightclub event. The Ontario Court of Appeal found that the proper range for sexual assaults committed in similar circumstances was between 18 months and three years. The Court reduced the sentence after finding that the sexual assault was spontaneous, and not planned as had been found by the trial judge.

75It must be noted that each of these cases involve traditional jail sentences. None endorse a conditional sentence. [27] At the same time, it should be noted that each of these cases contain key features that distinguish them from the case at bar. All of them involved sexual assaults committed against sleeping or unconscious victims. It must be remembered that here, the task is to achieve an appropriate sentence for Mr. Morgan – a 19-year-old first offender who committed a very serious offence, but who did so under unusual circumstances. Liability was not imposed on the basis of an absence of subjective consent proved either circumstantially or by direct evidence. [28] Liability here is derived from K.L.’s lack of capacity to consent. Mr. Morgan is being sentenced on the basis of the presence of a mens rea based on recklessness that flowed from his seeking and obtaining consent to sexual interactions from a conscious victim at a time when he saw the risk that she was incapacitated and not actually capable of giving the consent that she purported to give.

76In considering the propriety of a conditional sentence under s.742.1 of the Criminal Code , there are a number of statutory requirements that must be met. Here, the Crown has proceeded by summary conviction. This opens an important gateway to a conditional sentence, and limits the maximum sentence to one of 18 months. The other prerequisites are similarly satisfied. Mr. Morgan does not present a danger to the community.

77As is often the case, the real issue concerns whether the imposition of a conditional sentence would be consistent with the principles of sentencing found at s.718 to s.718.2 of the Criminal Code . This, in turn, requires an assessment as to whether or not a conditional sentence can achieve sufficient denunciation and general deterrence to properly address the circumstances of this case.

78While the imposition of a conditional sentence in respect of the offence of sexual assault is perhaps somewhat unusual, it is not unprecedented. [29] Conditional sentences are jail sentences, served in the community. They are not enhanced probation orders, and the imposition of an electronic monitoring condition serves to emphasize that reality. Conditional sentences are recognized as fulfilling, “…the functions of deterrence and denunciation. Indeed, conditional sentences may be available even in cases where deterrence and denunciation are the paramount sentencing objectives.” [30] Upon satisfaction of the statutory criteria, there are no offences, and no category of offences that are removed from consideration for the imposition of a conditional sentence. [31]

79Furthermore, a conditional sentence can have a meaningful denunciatory impact, particularly where the conditions imposed are significant. The more onerous, and more enforceable imposed conditions are, the greater is the denunciatory and deterring effect of the sentence. If an offence is particularly serious, and requires enhanced denunciation, a conditional sentence should reflect that reality by both increased duration, and the imposition of onerous conditions. [32]

80Finally, in considering the imposition of a conditional sentence, there is also some relevance to the circumstances facing the community at the time of this sentencing. At present, the Province of Ontario is pinned in the grips of a devastating pandemic. All congregate living facilities, including correctional institutions are at grave risk from a pathogen that apparently spreads through aerosol transmission. The result of this is at least twofold: first, in order to combat the threat posed by this virus, correctional facilities have had to take significant measures that will have the effect of increasing the hardships associated with serving a traditional jail sentence. Increased lockdowns, quarantine within the institution, and restricted programming are all likely factors. Furthermore, while Mr. Morgan himself presents no obvious enhanced risk factors for serious adverse outcomes from contracting this virus, the reality is that he is without doubt at a greater risk of becoming infected in jail than he would be at home, serving a conditional sentence in the community. Although I consider this as a minor collateral factor, it is one that modestly supports the imposition of a community-based sentence. [33]

81Having considered all of the sentencing objectives, and particularly having considered the critical importance and balance that is required between denunciation, general deterrence, and rehabilitation, I am of the view that Mr. Morgan may be appropriately sentenced to serve a conditional sentence of imprisonment in the community for this sexual assault upon K.L.

82Had I imposed a sentence of traditional custody, in giving effect to the objectives and principles of sentencing, including most importantly the proportionality principle, I would have sentenced Mr. Morgan to 10 months jail. As I am now imposing a conditional sentence, Mr. Morgan will be sentenced to 16 months in custody, to be served in the community. This sentence will be enforced with electronic monitoring, and will contain strict and punitive conditions that are intended to send a strong message that is intended to denounce Mr. Morgan’s conduct in this case.

83The transcript of the sentencing hearing contains the specific terms and conditions that will apply to Mr. Morgan for the duration of his conditional sentence, the necessary ancillary orders, and the terms and conditions of the 18 month probation order that will follow the completion of his conditional sentence.

84I wish to thank counsel for their professional and very helpful submissions and materials. The efforts that were put into this matter have been greatly appreciated.

Released: February 19, 2021 Signed: Justice Mark T. Poland

[1] R v. Friesen , 2020 SCC 9 at para. 43 . [2] Criminal Code of Canada , R.S.C. 1985, s.724(3)(d). [3] 2020 SCC 9 , at para 165 [hereinafter “Friesen”]. [4] Friesen , ibid at paras. 56, 91 . R v. Jarvis , 2019 SCC 10 at para. 127 . [5] R v. Stuckless , 2019 ONCA 504 , 2019 CarswellOnt 9580 , [2019] O.J. No. 3215 , 146 O.R. (3d) 752 , 157 W.C.B. (2d) 591 , 376 C.C.C. (3d) 294 . [6] R v. Ewanchuk , [1999] 1 S.C.R. 330 at para 42 . [7] 2015 ONSC 4304 [8] 2018 ONCA 570 at para. 33 . [9] R v. Henry , 2019 ONSC 4978 at para. 20 [hereinafter “ Henry ”] [10] R v. Sansregret , [1985] 1 S.C.R. 570 at para. 16 . [11] Henry , ibid, citing R v. Martineau , [1990] 2 SCR 633 at p.645 . [12] It is common ground that K.L. was incapacitated during this sexual assault. Her “participation” in the sexual assault, whether by oral affirmation or otherwise is not a mitigating factor, nor is it relevant to determining a fit sentence for the same reason that “victim participation” in child sexual assaults is irrelevant. Friesen , 2020 SCC 9 at 150 . [13] R v. J. H. , 2014 ONSC 2288 , cited by the defence, provides an example of an uninformed consent. In that case, the accused had active and unprotected sex with the victim, but failed to inform her about the fact that he was suffering from genital herpes at the time of the interaction. [14] Criminal Code of Canada , RSC 1985, s.718. [15] The provision was designed specifically to deal with offences committed against persons who are “Aboriginal and female”, but it is drafted broadly and captures all persons who are “vulnerable because of personal circumstances”. [16] R v. Smith , 2015 ONSC 4304 at para 39 . [17] See i.e. R v. Lacasse , 2015 SCC 64 at para. 53 . [18] 2012 SCC 13 at para 37 . [19] Mr. Morgan’s own self-induced intoxication relates to the circumstances of the offender, not to the circumstances of the offence. While relevant to his moral culpability, Mr. Morgan’s own intoxication is not strongly mitigating and does not bear strongly on the proportionality analysis. See R v. Berseth , [2019] O.J. No. 2732 at para. 105 . [20] R v. Lacasse , 2015 SCC 64 at para. 58 . [21] R v. Bhatti , 2016 ONCA 769 , [2016] O.J. No. 5367 at para. 6 . [22] R v. Batisse , 2009 ONCA 114 , [2009] O.J. No. 452 (C.A.) at paras. 32-34 . [23] R v. Ramage , 2010 ONCA 488 at para. 80 . [24] R v. Parker-Ford , 2020 ONSC 5951 at para. 37 . [25] R v. Lacasse , 2015 SCC 64 at para. 73 . [26] at para. 39. [27] In R v. Smith , supra at note 16, para. 36 , the court noted that conditional sentences have been imposed in exceptional circumstances for sexual assault committed against unconscious or semi-conscious complainants. See also R v. Scinocco , 2017 ONCJ 359 , at para. 8 . [28] R v. Kishayinew , 2020 SCC 34 , 2020 S.C.J. No. 34 . [29] R v. Kennedy , 2018 ONCJ 600 (conditional sentence of 18 months); R v. Lim , 2020 ONCJ 14 (conditional sentence of 6 months); R v. S.C. , 2017 ONCJ 891 (conditional sentence of 12 months); R v. B.S. (12 months’ conditional sentence); R v. Hans , 2016 BCPC 222 (18 months’ conditional sentence). [30] R v. Sharma , 2020 ONCA 478 at para 110 . [31] R v. Proulx , 2000 SCC 7 , [2000] 1 S.C.R. 149 at paras. 79-85 . [32] R v. Proulx at para 106 . [33] R v. Hearns , 2020 ONSC 2365 . See also R v. Leclair , 2020 ONCJ 260 , R v. D.D. , 2020 ONCJ 218 .