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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged 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 victim of the right to make an application for the order; and

( b ) on application made by the victim, 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 File and Parties

DATE: March 12, 2021 COURT FILE No: 17-1035

O N T A R I O C O U R T OF J U S T I C E

B E T W E E N :

HER MAJESTY THE QUEEN

-AND-

T.N.

Before: Justice Michael G. March

Submissions on Sentence heard: January 27, 2021 Reasons for Sentence released on: March 12, 2021

Counsel: Caitlin Downing, Counsel for the Crown Ravin Pillay, Counsel for T.N.

March, M.G., J. :

Introduction

1On December 9, 2019, I found T.N. guilty following trial of a sexual assault upon R.E.-S. contrary to section 271 of the Criminal Code (“the “Code”).

2My reasons for decision in convicting J.K. of the above offence are reported at R. v. T.N., 2019 ONCJ 887.

3Briefly, the evidence I accepted disclosed that R.E.-S., while on a camping trip in Algonquin Park, awoke in her tent to being touched on her vagina by T.N. and being vaginally penetrated by him from behind.

4Sentencing did not take place for over a year due to the retirement of T.N.’s former counsel, the time required to retain new counsel, and Court closure owing to the Covid-19 pandemic.

Crown’s Position on Sentence

5The Crown seeks a period of incarceration of 3 to 5 years, but in light of the harder time T.N. will serve due to lockdowns, cancelation of visits, and losses of other regular privileges likely to be imposed by correctional authorities to prevent the spread of Covid-19, the Crown asks that the lower end of the range be imposed.

6By way of ancillary orders, the Crown requests that T.N. provide a sample of his DNA to the authorities pursuant to section 487.051(2) of the Code.

7The Crown further asks for a weapons prohibition for a period of 10 years under section 109 of the Code.

8Lastly, the Crown submits that T.N. must be subjected to the requirements of the Sex Offender Information Registration Act for a period of 20 years.

Defence Position on Sentence

9Defence counsel on behalf of T.N. seeks a period of incarceration of 9 months duration to be followed by 2 years of probation.

10Restraint, the defence submits, ought to be exercised given T.N.’s lack of any criminal antecedents.

11Although defence counsel did not specify the types of conditions which ought to bind T.N.’s conduct during the probationary period to follow his release from custody, clearly those which prevent contact with the victim and assist in T.N.’s rehabilitation in forging healthy relationships with women in future spring to mind.

Circumstances of the Offender

12When T.N. committed the sexual assault on July 7, 2017, he was about to turn 23 years of age. Three and a half years have elapsed since the date of the offence. T.N. is now 26 years old.

13By way of personal background, T.N.’s parents emigrated from Vietnam before he was born. They separated when T.N. was 10 years old. His brother and he remained living with their mother in Etobicoke, Ontario thereafter.

14T.N. is single. He has no children or dependents.

15He completed high school in 2013. He then attended Herzing College to pursue a course in Police Foundations.

16In light of his conviction for sexual assault, he has abandoned any hope of becoming a police officer.

17Currently, T.N. works in a security capacity. He is employed by the Toronto District School Board as a safety monitor.

18The entire time T.N. has been subject to conditions of release awaiting trial and then sentence, he has complied with the terms of his release. He has not attracted the attention of the authorities in any manner whatsoever.

19T.N. is described by co-workers and friends as “honest and trustworthy”, “respectful”, “sensitive and caring”, “positive and upbeat”, and someone who “quickly builds trust and rapport”.

20Although T.N. continues to deny his guilt when interviewed by the author of his Presentence Report (“PSR”), which is, of course, his right, he has nevertheless been deemed to be a suitable candidate for a referral to the Manasa Group Therapy Program for Sexual Expression.

21In addition, T.N. is considered amenable to community supervision.

Analysis

22In arriving at a fit disposition for T.N., I must, of course, apply the relevant principles of sentencing now codified at sections 718 to 718.3 of the Code. Sentencing is always a unique, individualized exercise. No two cases are completely alike. Nor are any two offenders completely the same.

23T.N.’s sentence must be an appropriate one upon consideration of the circumstances of the offence he committed as well as his personal circumstances.

24Most importantly, the punishment I impose must be proportionate to the seriousness of his offence and the degree of his responsibility for it.

Denunciation and Deterrence

25Crown and defence counsel are agreed that deterrence and denunciation are the paramount sentencing principles to be applied when dealing with an offender who has sexually assaulted his victim.

26In R. v. Garrett, (2014) 2014 ONCA 734, O.J. No. 5031, a unanimous panel of the Court of Appeal for Ontario reminded sentencing judges at paragraph 19 that virtually every sexual assault, where the protestations of the victim go unheeded by the offender, “… constitutes demeaning behaviour and contemptuous disregard for the personal integrity of the [victim] and engages the predominant sentencing principles of denunciation and deterrence.” The panel overturned in Garrett the 90 day intermittent sentence imposed at first instance and substituted a period of incarceration of 18 months.

Separation from Society

27Offenders must be separated from society where necessary. In my view, T.N. must be deprived of his liberty. To do less would show insufficient respect to the fundamental purpose and principles of sentencing which must be applied in this case, most importantly, of course, denunciation and deterrence.

Rehabilitation

28I cannot lose sight of the fact that T.N. is a youthful, first time offender. He was on the cusp of turning 23 years of age when he committed the offence. Over 3 ½ years have elapsed since he violated the sexual integrity of R.E.-S. He has maintained his employment. He continues to impress his friends and co-workers as a remarkable, young man.

29Crown counsel agrees that on its face, the offence T.N. committed was out of character.

30However, the Crown questions his lack of remorse, and posits whether it may be an indicator of his poor prospects for rehabilitation.

31The Crown drew to my attention to the decision of R. v. K.E., (2014) O.J. No. 1119. In K.E., the PSR, to which the sentencing judge referred, highlighted the offender’s lack of remorse and his shock at having been found guilty. Clearly, the offender was unprepared to take any responsibility for his conduct. The sentencing judge imposed a sentence of four years imprisonment for assault, sexual assault and uttering death threats against the girlfriend.

32I do not read K.E. to enshrine a principle of sentencing that where a lack of remorse is shown by the offender, it follows that his or her prospects for rehabilitation are poor. In K.E.’s appeal, the Court of Appeal for Ontario was simply examining the issue of whether the sentencing judge failed to consider rehabilitation and relied solely on the principles of denunciation and deterrence.

33In dismissing the sentence appeal, the Court of Appeal for Ontario pointed out that rehabilitation would not have played a significant role at the offender’s sentencing hearing given his express denial of responsibility, lack of remorse, as well as the discovery by the PSR author of K.E.’s prior conviction in the United States for a crime of a sexual nature.

34In a similar vein, the Crown referred me to R. v. Diabas, 2018 ONSC 7500. At paragraph 32, Woollcombe J. equated the offender’s continued denial of responsibility for his offences and his unrelenting assertion of innocence post-conviction as a “lack of insight into what caused him to commit the offences”. Her Honour went on to find that there was an absence of other evidence as to the offender’s rehabilitative prospects. As a result, she concluded the offender’s prospects for rehabilitation were not strong.

35Unlike in Diabas, I have evidence before me that T.N. is prepared to undergo therapy for sexual expression. The PSR author confirmed through her interview with Dr. Gojer, a forensic psychiatrist, that T.N. could be considered for admission to the Manasa Group Therapy Program for Sexual Expression in spite of his denial of guilt. One of the Program’s goals is to channel sexual arousal in a manner that does not violate individual and social boundaries.

36In my view, T.N.’s inability to accept responsibility and show remorse has more to do with pride than a committed mindset that he did no wrong. T.N. is clearly well-liked by his colleagues and friends. They legitimately believe him to be a good man based on their interactions with him. Sadly, good men do bad things on occasion.

37I conclude that T.N.’s prospects for rehabilitation are excellent. He has the support of family, friends and coworkers. He can be required to attend assessment and counselling for the development of appropriate, future, intimate relationships. He will likely go on to be a law-abiding, productive member of society, if he embraces such counselling.

38At some point, as he matures, he may even come to understand the criminality of his act and the harm he has done to R.E.-S. In the moment, he allowed lust to overcome reserve. He took advantage of a sleeping, young woman. Her violation was neither violent nor prolonged, but criminal in its nature at its core, it was indeed. Someday T.N. may come to terms with this reality. Time will tell.

Reparations for Harm Done to the Victim and the Community

39There is little T.N. can do to make amends for the psychological harm he has caused to R.E.-S. Someday, he may find it in his heart to offer an apology. Of course, that day may never come. T.N. will decide.

Promotion of a Sense of Responsibility and Acknowledgement of Harm

40T.N. will, of course, benefit from education and counselling that can be offered to him in a correctional facility, or in his community, or both.

41T.N. must learn he cannot take liberties with an intimate partner irrespective of any history of consensual sexual relations which his partner and he may have shared.

Aggravating Circumstances

42Upon review of the offence committed by T.N., I find the following factors to be aggravating:

a) he violated a position of trust he enjoyed with R.E.-S. arising from their dating relationship, which lasted some 3 to 4 months (see s. 718.2(a)(iii) of the Code and para. 86 of R. v. C.R., 2010 ONCA 176),

b) the offence has had a significant and perhaps lifelong psychological impact on R.E.-S., and

c) he attempted to persuade and manipulate R.E.-S. and her father, B.E.-S., not to contact the authorities out of pure self-preservation on his part.

Mitigating Circumstances

43I consider as mitigating that:

a) T.N. has no criminal record,

b) he is young and inclined to assist others whenever he can,

c) by all accounts, the offence he committed seems out of character,

d) he has the support of his family, friends and employer, and

e) he has a history of employment demonstrating a willingness to provide for and better himself.

Parity

44Section 718.2 (b) of the Code provides:

“A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.”

Crown’s Authorities

45In light of the parity principle as codified above, the Crown has provided me with a number of authorities for my consideration. Some bear resemblance to T.N.’s case, but all are readily distinguishable. This observation is offered as no criticism of the Crown.

46In oral argument, the Crown placed great reliance on the decision of Spies J. in R. v. P.M., 2020 ONSC 3325. P.M. was convicted following a judge alone trial before Her Honour of uttering a threat, assaulting and sexually assaulting his former intimate partner, N.D. The offender, a Congolese refugee, absconded and did not attend his sentencing. Spies J. appointed amicus to deal with what she considered to be conflicting ranges of sentence articulated by the Court of Appeal for Ontario in R. v. Bradley, 2008 ONCA 179 and R. v. Smith, 2011 ONCA 564.

47Spies J., relying upon one of her earlier decisions in R. v. McCaw, 2019 ONSC 3906, opined that the Court of Appeal in Bradley established a range of 3 to 5 years for a single offence of sexual assault involving a completed act of unprotected vaginal intercourse. Molloy J. came to a similar conclusion on what she considered to be the binding authority of Bradley in R. v. Mitrovic, 2017 ONSC 1829, where the victim of the sexual assault was a friend of the offender, but not a sexual partner.

48By contrast, Spies J. recognized that the Court of Appeal for Ontario held in Smith at paragraph 87 that forced sexual intercourse with a spouse or former spouse generally attracts a sentence in the range of 21 months to four years.

49Smith was mentioned in R. v. H.E., 2015 ONCA 531, where Benotto J.A. commented that the lower end of the range (i.e. 21 months) would be more appropriate in the event a single occurrence.

50At paragraph 80 of P.M., Spies J. concluded that Bradley established a range of sentence of 3 to 5 years for the sexual assault of a stranger. At paragraph 85, Her Honour went on to find that Bradley had precedential value, notwithstanding it was an Endorsement of the Court of Appeal for Ontario.

51With the greatest respect, I disagree with the reasoning of Spies J.

52At paragraph 18 of Bradley, the Court of Appeal specifically stated:

“We accept the Crown’s submission that, in the circumstances, the appropriate range of sentence was three to five years.” (my italics)

53I take the Court of Appeal to mean in the circumstances of the offence and the offender. Accordingly, Bradley was a case decided on its own facts with its own set of unique, aggravating features. The offender was a seasoned police officer. The victim was a young aboriginal woman with aspirations of a career in law enforcement.

54The offender gained her trust. He became a friend and mentor. He took her on “ride alongs”. He let her drive his sports car. He seized on an invitation from the victim to come to her place as the opportunity to vaginally and anally rape her, to demand oral sex from her and to tell her she “owed” him.

55I do not read into Bradley the establishment of a range for a serious sexual assault on a friend or colleague.

56Nor is Smith an attempt by the Court of Appeal to categorize and to set out ranges of penalties for specified offences. The Court of Appeal was simply performing a rather cursory review of cases decided by it where sentences were meted out in similar circumstance to the offence committed by the appellant, Mr. Smith. This is made plain from the language utilized by Epstein J.A. writing for the unanimous panel of the Court of Appeal. She employs phrases such as “in circumstances similar to those in this case”, “generally be appropriate . . . on facts such as those comprising count ten” and “sentences generally range”. Epstein J.A. was clearly reviewing her own Court’s decisions seeking benchmarks for consistency sake.

57In R. v. Stone (1999)), Bastarache J. at paragraphs 243 to 245 explained the process to be employed by Canadian appellate courts in setting ranges of sentence as follows:

243 The Crown and the intervening Attorneys General of Canada and for Ontario argue that the sentence in the present case is unfit because the trial judge relied on an inappropriate sentencing range established by the British Columbia Court of Appeal for provoked, spousal manslaughter in Archibald. In Archibald, McEachern C.J. stated, at p. 304:

For this kind of manslaughter, the cases we have been given, and my own experience as a sentencing judge, persuade me the modern range is from suspended sentence to something less than eight years, although it is wrong to assume there is any precise range that will apply to every case.

244 One function of appellate courts is to minimize disparity of sentences in cases involving similar offences and similar offenders; see M. (C.A.), supra, at para. 92, and McDonnell, supra, at para. 16, per Sopinka J. In carrying out this function, appellate courts may fix ranges for particular categories of offences as guidelines for lower courts. However, in attempting to achieve uniformity, appellate courts must not interfere with sentencing judges’ duty to consider all relevant circumstances in sentencing; see McDonnell, supra, at para. 43, per Sopinka J.; and at para. 66, per McLachlin J. In Archibald, McEachern C.J. clearly stated, at p. 304, that it would be wrong to assume that there is any “precise range that will apply to every case”. In my opinion, this qualification reveals that the Court of Appeal in Archibald correctly intended for trial judges to balance uniformity in sentencing with their duty to consider the circumstances of the particular case.

245 This Court’s decision in McDonnell, supra, highlights the need for clarity on the part of appellate courts in setting ranges for offences. More specifically, McLachlin J., in dissent, stated that appellate courts must clearly specify what categories of offences are meant to be covered by a starting point (para. 104). Although the majority, per Sopinka J., did not expressly identify this need for clarity in the classification of offences, it did agree that appellate courts may set starting points as guides for lower courts. In my opinion, a clarity requirement must be read into this appellate court authority because such guides would not be useful without a clear description of the category created and the logic behind the starting point appropriate to it. The same need for clear direction applies to ranges set by appellate courts. However, in Archibald, McEachern C.J. simply refers, at p. 304, to “this kind of manslaughter”. Furthermore, the “kind” of manslaughter McEachern C.J. was referring to is not discernable from the facts of the case. Both provocation and intoxication were left with the jury in Archibald. The jury returned a verdict of manslaughter, but did not specify which of these factors had influenced its verdict. As a result, the category of offences McEachern C.J. intended the above-mentioned range to apply to is unclear. Indeed, McEachern C.J. specifically noted in his reasons that the trial judge, without making a specific finding, expressed the view that the stronger likelihood was that the jury acted on drunkenness rather than provocation (p. 303). Accordingly, it cannot be said with any certainty that the range set out in Archibald is applicable to cases involving provoked, spousal manslaughter like the present appeal. It is therefore unnecessary to assess the reasonableness of that sentencing range in this case.

58Again, the Supreme Court of Canada took pains to preserve respect for a sentencing judge’s duty to consider all relevant circumstances.

59More recently in R. v. Friesen, 2020 SCC 9, Wagner C.J. and Rowe J., speaking for a unanimous panel of the Supreme Court of Canada, clarified at paragraphs 37 to 39:

37This Court has repeatedly held that sentencing ranges and starting points are guidelines, not hard and fast rules (R. v. McDonnell, [1997] 1 S.C.R. 948, at para. 33; R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, at para. 45; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 44; Lacasse, at para. 60). Appellate courts cannot treat the departure from or failure to refer to a range of sentence or starting point as an error in principle. Nor can they intervene simply because the sentence is different from the sentence that would have been reached had the range of sentence or starting point been applied (McDonnell, at para. 42). Ranges of sentence and starting points cannot be binding in either theory or practice, and appellate courts cannot interpret or apply the standard of review to enforce them, contrary to R. v. Arcand, 2010 ABCA 363, 40 Alta. L.R. (5th) 199, at paras. 116-18 and 273. As this Court held in Lacasse, to do so would be to usurp the role of Parliament in creating categories of offences (paras. 60-61; see also McDonnell, at paras. 33-34).

38The deferential appellate standard of review is designed to ensure that sentencing judges can individualize sentencing both in method and outcome. Sentencing judges have considerable scope to apply the principles of sentencing in any manner that suits the features of a particular case. Different methods may even be required to account properly for relevant systemic and background factors (Ipeelee, at para. 59). Similarly, a particular combination of aggravating and mitigating factors may call for a sentence that lies far from any starting point and outside any range (see Lacasse, at para. 58; Nasogaluak, at para. 44; R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 4).

39A range or starting point should only be created for a category of offences that share enough common features that it is useful to judge them by the same rubric. When an appellate court outlines a range or starting point, it must also provide a clear description both of the category created and the logic behind it (Stone, at para. 245). Without this description, it can be difficult to tell when the range or starting point is appropriate and how to use it.

60Parliament, of course, has the unique power to impose minimum penalties, or actual starting points. Appellate courts may suggest ranges of disposition to guide sentencing judges. However, in the end, a sentencing judge must use his or her own discretion, reason, logic and common sense to fix upon a fit disposition for the offence and the offender before him before ever feeling so compelled as to blindly adhere to a lower and upper penal limit for a particular offence, or category thereof.

61I do nevertheless completely agree with the conclusion of Spies J. that no artificial distinction should be drawn between sexual assaults committed by friends, or strangers even, upon their victims as compared to those committed by one intimate partner upon another. The former categorization should not warrant greater leniency solely by virtue of a lack of acquaintance between offender and victim. The intimate partner type sexual assault is by no means automatically less serious because a sexual history was shared by the offender and the victim.

62As explained by Spies J. in P.M., the evolution of the law regarding sexual assault should permit of no such distinction. As Her Honour wrote at para. 104:

104To conclude otherwise and have trial courts in this Province continue to use the lower sentencing range established in Smith for intimate partner sexual assault would in my view lower public confidence in the administration of justice and would contradict the intention of Parliament given the sexual assault reforms enacted; it would send the wrong message to complainants that they are less worthy of the law’s protection than complainants who are sexually assaulted by a stranger or friend. As Justice L’Heureux-Dubé wrote in R. v. Seaboyer, [1991] 2 S.C.R. 577, at 654:

the criminal justice system can play a major role in the process of replacing ‘mythical’ views of sexual assault, and the social definitions of sexual assault based on these myths, with views based on fact and the results of empirical studies.

63The Crown has referred me to several other authorities:

a) R. v. U.A., 2019 ONCA 946 – the Court of Appeal for Ontario observed that in analogous circumstances, numerous offenders have been sentenced to periods of incarceration in the 3 to 5 year range for forced oral sex upon a victim on repeated occasions. The offender had forced his cellmate to perform fellatio upon him on three separate occasions over the course of one day. The four year sentence was upheld. The offender had a prior conviction for a sexual offence. The trial judge properly treated the related criminal record as an aggravating factor.

b) R. v. Curto, 2008 ONCA 161 – the Court of Appeal for Ontario held that a four year sentence was not outside the range where an offender showed up at a victim’s home late at night, tore off her clothes, raped her and spat on her afterwards. Additionally, the crime itself had a devastating impact upon the victim.

c) R. v. S.A., 2014 ONCA 226 – the Court of Appeal for Ontario upheld a five-year period of imprisonment imposed by the trial judge for three counts of sexual assault, three counts of uttering a threat and one count of unlawful confinement. The offender forced two victims on three separate occasions to perform fellatio upon him. He ejaculated in the mouth of one victim and ejaculated on the person of another. He pulled the hair of one of his victims so hard while forcing her mouth onto his penis that a clump came out. The only criticism offered by the Court of Appeal was the trial judge’s suggestion that a sentence as low as a reformatory one was in play on the facts as the trial judge found them.

d) [R. v. H.H., (2002)) – the Court of Appeal for Ontario set aside a conditional sentence of two years less a day and replaced it with a sentence of 18 months incarceration. By the time the appeal was heard, the offender had served the majority of his conditional sentence term. In disturbing the sentence imposed by the trial judge, the Court of Appeal commented upon the gravity of the offence and the offender’s moral blameworthiness including his abuse of a position of authority. The offender commenced vaginal intercourse after plying his victim with drink and rendering her unconscious. He abused his position of trust as her employer. When she awoke and she asked him to get off of her; he did not stop and continued until he was finished. Under the circumstances, the Court of Appeal opined that a penitentiary term was clearly called for.

e) R. v. Khan, 2015 ONSC 4325 – O’Marra J. of the Superior Court of Justice characterized the offender as a “predator of opportunity who sought out intoxicated female students to force himself on them when alone and vulnerable”. The offender groped in the vaginal area underneath the clothing of one of his victims, the other he had forced vaginal intercourse with. When asked to stop, he ignored the plea of his victim and continued until he ejaculated. Although he was a youthful first offender, O’Marra J held that out of respect for the principles of denunciation and deterrence, and in consideration of the aggravating and mitigating factors, a total period of incarceration of three years and six months was appropriate.

f) R. v. D.L., 2016 ONSC 733 – Lacelle J. of the Superior Court of Justice shared the same interpretation as Spies J. in P.M. as to the range of sentence established in Bradley. The facts in D.L. disclosed a particularly serious sexual assault. The 40-year-old offender pushed a physically disabled 53-year-old woman down on her walker. He pulled her pants down and tried to put his penis in her vagina, but she was too dry. He went to the front of her walker and told her to suck his penis to get it wet. He pushed her head down and made her perform oral sex. He went around to the back and tried to put his penis in her vagina once again. She was still too dry. He went to the front and made her suck his penis again. The cycle repeated about five times. He ultimately succeeded in penetrating her vagina. He also tried to penetrate her anus, but was unsuccessful. The victim experienced extreme pain which she likened to childbirth. She was choking and gasping for breath. She thought she would black out. Notwithstanding, the offender continued pumping harder and harder. The lasting impact upon the victim was profound. In light of the significant aggravating factors, Lacelle J. imposed a total sentence of five years imprisonment.

g) R. v. J.F., 2015 ONSC 5763 – Conlan J. of the Superior Court of Justice imposed an 18 month period of imprisonment to be followed by two years’ probation upon a 25-year-old offender at the time of his sentencing. The offender had sexual intercourse with the victim while she was asleep. He had no criminal record. He was able to amass a number of positive character letters which described him in glowing terms. Upon a review of the jurisprudence similar on its facts to those before Conlan J., His Honour found at paragraph 36 that the range of sentence laid between 14 months and three years.

64What resoundingly emerges upon my review of the Crown’s authorities is that the Court of Appeal for Ontario and Superior Court of Justice, more often than not, speak of the range of penalty which can apply to an offender based on the circumstances of the offence and the personal circumstances of the offender. No hard and fast ranges are being laid down. The notion of categorization is illusory. The fitness of a sentence is more driven by the seriousness of the offence pitted against the moral blameworthiness of the offender.

Defence Authorities

65The defence has commended to me for my review the following:

a) R. v. M.G., 2019 ONCA 796 – the Court of Appeal for Ontario opined that the 14 month period of imprisonment and 3 years of probation imposed by the trial judge was well within the applicable range. The offender penetrated the victim while she was asleep.

b) R. v. McKenzie, 2017 ONCA 128 – the Court of Appeal for Ontario upheld the nine month period of custody and two years’ probation for sexual assault committed by the 33-year-old offender on a 19-year-old co-worker. He pulled the victim into a washroom at a Christmas party. He lowered his pants down, then hers and pressed his penis into her anus achieving partial penetration. It lasted for 20 to 35 seconds. The incident came to an end when someone knocked on the door. Trotter J.A., speaking for a unanimous three-member panel, stated at paragraph 23, which warrants reproduction in its entirety here, the following:

“Every case is unique. Despite the existence of sentencing ranges for particular types of offending, “the determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation”: see Lacasse at para. 58. The trial judge undertook this analysis and imposed a sentence that is supported by other decisions of this Court: see Garrett at paras. 15-23; R. v. Crespo (2016) ONCA 454, and R. v. R. (C.) (2010) ONCA 176.”

c) R. v. Crespo, 2016 ONCA 454 – the Court of Appeal upheld a 15 month period of imprisonment plus18 months’ probation imposed by the trial judge. The offender engaged in sexual intercourse with the victim who was drunk and disoriented. After she realized it was the offender who was having sex with her, and not her partner, she pushed him off.

d) R. v. L.A.A., 2020 ONCJ 556 – I imposed a sentence of 12 months upon an offender for vaginally penetrating a sleeping victim who had been consuming alcohol and cocaine. I would have imposed a consecutive 3 month sentence for his voyeurism in videotaping the act, but instead I imposed those 3 months concurrently to offer prospective credit to the offender for the harder time he would serve in custody as a result of the harsher conditions of confinement in reformatories brought on by the Covid-19 pandemic.

A Fit Sentence for T.N. in the Circumstances of the Serious Offence He Committed, His Personal Circumstances and His Moral Blameworthiness

66T.N.’s offence is similar in many respects to the sexual assaults committed upon sleeping victims by the offenders in J.F., M.G., McKenzie, Crespo and L.A.A..

67In my view however, there is no proper, recognized range for this category of sexual assault. As a phenomenon of sexual predilection, I would venture it is quite rare.

68I must therefore individualize the sentence I impose for T.N.

69One of the most aggravating features of T.N.’s sexual assault upon R.E.-S. is the inherent breach of trust arising from its occurrence. She allowed him to “spoon” her because of their history. Her licence for physical contact extended no further while she was conscious. It certainly did not allow for sexual intercourse after she fell asleep. Indeed, T.N. ought to have taken all reasonable steps to secure R.E.-S.’s agreement to every intimate act he wished to engage in with her. No liberty ought to have been taken after she was sleeping and unconscious.

70T.N. ignored R.E.-S.’s limit. He exceeded the boundary she set while she was awake. He took real advantage of her. He vaginally penetrated her and digitally fondled her while she slept. She was shocked and dismayed at his conduct once she awoke.

71The offence had a devastating effect upon R.E.-S. In her Victim Impact Statement, she wrote:

“I can’t think about my life without making the distinction of before and after. Before the rape, I felt strong and capable and safe. I was independent. After the rape, the world felt entirely different to me.

I was scared to be home alone… I stopped sleeping in my bedroom because we had slept there together in the past…

I fixated on my body and hated it… I was angry that I didn’t fight back… That I was smaller and weaker than him… I hate that I was as kind to [T.N.] after he raped me as I was, that I didn’t call someone to pick me up right away, that I didn’t make a scene. I know why I didn’t. I was in shock and embarrassed and I didn’t want to believe that he didn’t care about me. . .

I can’t call up [T.N.’s] face in my memory when I’m awake anymore, but I see him in nightmares. After the assault, it was so hard to fall asleep and stay asleep. My body wouldn’t let itself relax and when I was able to sleep, I had terrible dreams. I would cry during the night and wake dad up to tell me that I was safe. I still go through weeks at a time when I’ll have trouble sleeping.

I have spent the last 2+ years feeling like I died that day but my body kept moving, like my ghost had left me behind. It feels sometimes like I’m on the wrong timeline. I’ve spent so much time wishing I really did die so I didn’t have to live in this body anymore. It took me so long to make myself feel clean again. I’m still learning how to make it feel like mine.

The impact is deep and ongoing. I didn’t deserve this… This wasn’t supposed to be my life. I still feel like a shell a lot of the time. I feel so sad. I know I won’t feel this way forever. I know I am healing. Still I wonder what things would be like for me today if none of this had ever happened.”

72The length of time upon which I settle in depriving T.N. of his liberty out of respect for the principles of denunciation and deterrence will not diminish R.E.-S.’s pain and sorrow. I can only hope that she will find solace sooner rather than later. She did nothing wrong.

73At the same time, I cannot lose sight of the fact that T.N. has no criminal history. He is a person of otherwise good character. In R. v. Priest (1996), 30 O.R. (3d) 538, the Court of Appeal for Ontario reminded sentencing judges that a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the offender rather than solely for the purpose of general deterrence.

Conclusion

74Upon consideration of all relevant principles of sentencing and their purpose, I shall impose for the sexual assault upon R.E.-S. contrary to s. 271 of the Code a sentence of 1 year of imprisonment for T.N. I would have been prepared to impose a 15 month period of custody, but I wish to offer prospective credit for the harsher conditions of confinement likely to be endured by T.N. in serving his sentence during the era of the pandemic, (see R. v. L.A.A., paras. 97-111) and to exercise some restraint in sentencing a first time, youthful offender.

75Under authority of s. 743.21 of the Code, I shall order T.N. to refrain from any form of contact directly or indirectly with R.E.-S. while incarcerated.

76Upon release from custody, T.N. shall be subject to a 3 year period of probation on the following conditions:

a) report to a probation officer within 24 hours of your release and thereafter as required,

b) reside at a residence approved by your probation officer and not elsewhere,

c) attend at any assessment, counselling and rehabilitation programs recommended to you by your probation officer for sexual behaviour including, but not limited to, the Manasa Group Therapy Program for Sexual Expression,

d) sign any releases necessary to permit your probation officer to monitor your compliance and attendance at any assessment, counselling and rehabilitation programs recommended,

e) appear before the Court when required to do so,

f) notify the Court or your probation officer in advance of any change of name or address, and promptly notify the Court or your probation officer of any change of employment or occupation,

g) abstain from communicating, directly or indirectly with R.E.-S., or attending within 100 m of her place of residence, place of schooling, place of worship or any other place you know her to frequent,

h) abstain from owning, possessing or carrying a weapon, and

i) keep the peace and be of good behaviour.

77By way of ancillary orders, I shall impose the following:

a) provide to the authorities as soon as reasonably practicable a sample of your DNA pursuant to section 487.051(2) of the Code,

b) comply with the requirements of the Sex Offender Information Registration Act for a period of 20 years, and

c) under section 109 of the Code, refrain from possessing a weapon as that term is defined in the Code for a period of 10 years.

78Again, I wish to thank Crown and defence counsel for their helpful and thorough submissions.