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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

DATE: 2022·10·27 ONTARIO COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

— AND —

JAYSON CACDAC

Before: Justice David Porter

Reasons for Sentence

Released on: October 27, 2022

Counsel: M. Sabat..................................................................................................................... for the Crown H. Evans................................................................................................................... for the Accused

Porter, J.:

OVERVIEW

1On May 31,2022, Mr. Cacdac entered a plea of guilty to a charge that on October 10, 2021 he committed sexual assault in relation to Ms. S.L. contrary to section 271 of the Criminal Code. The Crown elected to proceed summarily, with the result that the maximum sentence for this offence is a period of incarceration of 18 months: s.271(b) Criminal Code.

2The sentencing was adjourned to September 16, 2022 to permit Mr. Cacdac to complete some upfront work, and for the court to receive a pre-sentence report. A pre-sentence report dated September 6, 2022 was provided to counsel and to the court.

3At the conclusion of oral submissions on sentence on September 16, 2022, I reserved my decision on sentence, and this is my decision on the sentence in this matter.

4Counsel for the Crown and the defence are in agreement that a period of incarceration is appropriate in this case. The difference between the Crown and the defence relates to whether the period of incarceration should be a period of actual incarceration or whether, in the particular circumstances of this case, the period of incarceration should be served in the community as a conditional sentence pursuant to section 742.1 of the Criminal Code. The Crown submits that the proper sentence is a period of actual incarceration of 16 months plus a two-year probation order. The defence position is that a conditional sentence of 9-12 months would be appropriate on the usual terms permitting absence from house arrest for work, and rehabilitative treatment, and including a substantial amount of community service. I agree with counsel that a period of incarceration is appropriate in this case, in the reformatory range, and the sole issue to be determined is the duration of the incarceration, and whether the period of incarceration should be served in the community pursuant to section 742.1 of the Criminal Code.

5Section 742.1 (a) states:

“If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under section 742.3, if

(a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.”

The Facts

6Mr. Cacdac and Ms. S.L. (“SL”) are acquaintances who had been following each other on Instagram since 2019. SL lives outside of Toronto and was visiting friends in Toronto. Mr. Cacdac and SL agreed that she would sleep over at his home.

7On October 9, 2021 at 4:20 p.m., SL arrived at Mr. Cacdac’s home. They went out for a date and returned to his home early in the morning on October 10, 2021. They stayed up talking until 2 a.m. when SL went to bed in the second bedroom. Mr. Cacdac entered into the bed with her, and at this time SL made it clear that she did not wish to have sex.

8While in bed, Mr. Cacdac grabbed SL’s head with his hands and kissed her and put his tongue in her mouth. She pulled away and told him to stop. Mr. Cacdac then grabbed her breasts and buttocks. SL again stated that she did not wish to have sexual touching. Mr. Cacdac asked if they could just hug and SL agreed to the hug.

9During the night, SL was awoken by Mr. Cacdac about 5 to 10 times. Because SL was in and out of sleep, she was unable to remember the sequence of events. She recalls being woken up approximately three times with Mr. Cacdac grabbing her breasts and buttocks. SL told Mr. Cacdac to stop.

10S.L. recalls that on at least two occasions she was lying in a fetal position with Mr. Cacdac behind her. She woke up to Mr. Cacdac digitally penetrating her vagina with his fingers of his right hand. SL grabbed his hand and removed it. SL told him to stop.

11SL recalls lying on her back and Mr. Cacdac took her right hand and placed it on his erect penis over his boxer shorts. SL was fearful and left in the morning. She sustained no physical injuries.

Mr. Cacdac

12The court benefited from the receipt of a detailed pre-sentence report providing information on Mr. Cacdac’s background. He was 31 years of age at the time of the offence and has no prior criminal record. He was born in the Philippines and emigrated to Canada when he was 7 years of age. He was raised by his parents and he remains close to his parents to whom he speaks on a bi-weekly basis. He currently lives alone and has not told his parents about this charge before the court.

13He was successful in high school without any disciplinary suspensions. He participated in sports. In 2012, he attended community college where he studied marketing. He subsequently dropped out of college as the course was not consistent with his interests.

14He is currently employed at a company that sells industrial belts and pulleys. His duties include forklift operation and picking and packing orders. He works in a small team of about seven persons and has a good relationships with his co-workers and supervisors. His current employer is unaware of his conviction for sexual assault.

15He drinks alcohol socially, and has intermittently experimented with illegal narcotics including cocaine and crystal methamphetamine. Friends have cautioned him to moderate this behaviour. Counsel advises that he had consumed alcohol when he committed this offence.

16Collateral sources reported that he has a number of female friends and is reported to be polite and appropriate in these relationships. Information was received by the author of the pre-sentence report that it was out of character for Mr. Cacdac to have engaged in sexual assault.

17Since May 5, 2022, he has been seeing a psychotherapist to gain insight into his actions concerning the offence. The therapist reported to the pre-sentence report author that they are exploring issues related to his commission of the offence, as well as issues within his family which was described as dysfunctional, given abuse that he witnessed as a child, and his use of alcohol which the psychotherapist reported was a factor in the commission of the offence. The therapist reported that he was very open in sessions and has actively participated in his therapy.

18The author of the pre-sentence report reported that Mr. Cacdac was cooperative during the preparation of the report. She opined that Mr. Cacdac should attend counselling for sexual offending where he can learn about sexual boundaries and consent to engage in sexual activity. She noted that his cooperation with the report preparation process may be an indication of a positive response to a future period of community supervision.

19In summary, Mr. Cacdac is a currently employed, 31-year-old first offender. The pre-sentence report is positive with respect to the prospect of his rehabilitation. He is reported to generally relate appropriately to women, and collateral sources regarded the offence before the court as out of character. It appears that the consumption of alcohol may have contributed to the commission of the offence before the court. He has proactively commenced counselling with a psychotherapist since May, who reports his openness to the counselling process.

20During the sentencing hearing, Mr. Cacdac expressed his sincere regret for what he had done. He stated that it was his fault, that he is benefitting from therapy, which he intends to continue, and assured the court that this will never happen again.

Victim Impact

21The victim chose not to prepare a victim impact statement. However, included in the pre-sentence report was information from SL concerning the impact of the offence on her. It was noted that prior to the events of October 10, 2021, she had shared with Mr. Cacdac the fact that she had suffered previous sexual assaults, which made her victimization by Mr. Cacdac particularly distressing. She reported that she has nightmares, avoids lying in bed in the position she was in when she was assaulted, freezes when she sees any man who has a similar hairstyle to Mr. Cacdac, and avoids visiting friends in Toronto because the offence took place in Toronto.

Aggravating and Mitigating Circumstances

22In the circumstances of this case, the following may be considered to be relevant aggravating circumstances:

1. SL was in a vulnerable situation having agreed to sleep at Mr. Cacdac’s home when visiting other friends in Toronto. She lived outside of Toronto and indicated to Mr. Cacdac when he entered the second bedroom where she went to sleep that she did not wish to have sex.
2. When Mr. Cacdac touched her breasts and buttocks sexually, and kissed her, she stated that she did not wish to have sexual touching, and only agreed to a hug. She repeatedly told him to stop, that she did not want any sexual touching.
3. Mr. Cacdac engaged in intrusive sexual touching by digitally penetrating SL’s vagina while she was asleep. Notwithstanding that she told him to stop, he placed her hand on his erect penis over his boxer shorts.
4. SL had told Mr. Cacdac previously that she had been sexually assaulted by others. He was aware of this vulnerability when he committed the sexual assault. SL reported to the author of the pre-sentence report, that she has experienced considerable distress as a result of Mr. Cacdac’s sexual assault of her.

Mitigating Circumstances

23The mitigating circumstances are:

1. Mr. Cacdac has no prior criminal record.
2. He has entered an early plea of guilty. In my opinion, his guilty plea in this case is a significant mitigating circumstance as it saved SL the upset of attending court and describing for the court the sexual assault which has been so distressing to her. In the circumstances, the mitigating effect of the early plea of guilty is a significant factor in my opinion.
3. Mr. Cacdac is currently employed, is reported to have meaningful appropriate friendships with women, and is pursuing psychotherapy to understand how he could have committed this offence and to ensure that it does not recur. He stated to the court his intention to continue in counselling.
4. Persons interviewed by the pre-sentence report author report his positive and meaningful friendships with women, who regard this offence as out of character.
5. The presentence report is favourable concerning Mr. Cacdac’s prior good character, his prospect of rehabilitation and co-operation with the police and any supervision that may be ordered.
6. Mr. Cacdac made a sincere apology to the court, and an unqualified acceptance of responsibility for the offence he committed.

The Applicable Principles of Sentencing

24Crown counsel and defence counsel are in agreement that, if the statutory requirements for a conditional sentence are met, a conditional sentence is available in this case as the Crown proceeded summarily and the maximum sentence for sexual assault proceeded with summarily is a period of incarceration of 18 months: s.271 (b) Criminal Code.

25The Crown’s position is that a period of actual incarceration of 16 months, plus a two-year period of probation, is the appropriate sentence in this case having regard to the applicable principles of sentencing, placing particular emphasis on general and specific deterrence, and denunciation, in relation to this sexual assault which involved highly intrusive digital penetration of a vulnerable victim who was emotionally harmed by the assault.

26The defence submits that the appropriate sentence is a 9 - 12 month conditional sentence with strict terms including house arrest, a considerable requirement that Mr. Cacdac perform community service, and probation including a requirement that Mr. Cacdac attend for counselling and therapy as recommended by the probation officer.

27Section 742.1 (a) of the Criminal Code states:

“If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under section 742.3, if

(a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.”

28The general principles of sentencing are established in the following provisions of the Criminal Code. Section 718 states:

“The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims, or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community”

29Section 718.2 states:

“A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, ….

(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation…

shall be deemed to be aggravating circumstances;

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

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.”

30The fundamental principle of sentencing is the principle of proportionality. Section 718.1 of the Criminal Code states that a sentence,

“must be proportionate to the gravity of the offence and the degree of responsibility of the offender”.

31In R. v. Ipeelee, 2012 SCC 13, the Supreme Court of Canada defined the principle of proportionality as follows at para. 37:

“The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing — the maintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord to the various objectives and other principles listed in the Code, 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. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system. As Wilson J. expressed in her concurring judgment in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 533:

It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a “fit” sentence proportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender “deserved” the punishment he received and feel a confidence in the fairness and rationality of the system.

Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other.”

32In its recent decision in R. v. Parranto 2021 SCC 46, the Supreme Court of Canada recently reaffirmed the importance of the principle of proportionality in sentencing. The majority stated at paragraphs 10 and 12:

“The goal in every case is a fair, fit and principled sanction. Proportionality is the organizing principle in reaching this goal. Unlike other principles of sentencing set out in the Criminal Code, proportionality stands alone following the heading “Fundamental principle” (s. 718.1). Accordingly, “[a]ll sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender” (R. v. Friesen, 2020 SCC 9, at para. 30). The principles of parity and individualization, while important, are secondary principles.

As to the relationship of individualization to proportionality and parity, this Court in Lacasse aptly observed:

‘Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances. [para. 53]’

Individualization is central to the proportionality assessment. Whereas the gravity of a particular offence may be relatively constant, each offence is “committed in unique circumstances by an offender with a unique profile” (para. 58). This is why proportionality sometimes demands a sentence that has never been imposed in the past for a similar offence. The question is always whether the sentence reflects the gravity of the offence, the offender’s degree of responsibility and the unique circumstances of each case (para. 58).”

33As noted by the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, at para. 4:

“ One of the main objectives of Canadian criminal law is the rehabilitation of offenders. Rehabilitation is one of the fundamental moral values that distinguish Canadian society from the societies of many other nations in the world, and it helps the courts impose sentences that are just and appropriate.”

34The sentencing principle of rehabilitation is important when sentencing a first offender, as is the case with Mr. Cacdac.

35The Court of Appeal has stressed the principle of restraint in imposing a custodial sentence on a first offender. As Gillese J.A. stated in R. v. Batisse, 2009 ONCA 114, [2009] O.J. No. 452 at paras. 32-34:

“[32] The principle of restraint operates in three ways in the present case. First, it is an important consideration because the appellant was a first offender. As such, the restraint principle requires that the sentencing judge consider all sanctions apart from incarceration and where, as here, incarceration must be imposed, the term should be as short as possible and tailored to the individual circumstances of the accused: see R. v. Priest (1996), 30 O.R. (3d) 538, [1996] O.J. No. 3369 (C.A.), at p. 545 O.R. [page 651]

33Second, the principle of restraint requires the sentencing judge to consider rehabilitation in determining the appropriate length of the sentence. In lowering a sentence given to a first offender, this court stated in R. v. Blanas, [2006] O.J. No. 364, 207 O.A.C. 226 (C.A.), at para. 5:

[G]eneral deterrence cannot be the sole consideration. The appellant is relatively youthful and has no prior record and appears to have the full support of her family and community. Appropriate consideration must be given to the rehabilitation of the appellant.

34In serious cases and cases involving violence, rehabilitation alone is not the determinative factor - general deterrence and denunciation are also significant factors to be considered. However, as this court ruled in R. v. Dubinsky, [2005] O.J. No. 862, at para. 1, it is an error to focus almost exclusively on general deterrence and fail to consider individual deterrence and rehabilitation, especially when sentencing a first offender.”

36A proportionate sentence must give significant emphasis to denunciation and general deterrence in light of the gravity of the offence of sexual assault. However, it is also appropriate to bear in mind that a properly structured conditional sentence can satisfy the sentencing objectives of deterrence and denunciation. As stated by Lamer C.J. in R. v. Proulx, 2000 SCC 5 at para. 22:

“The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration. Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence. It is this punitive aspect that distinguishes the conditional sentence from probation, …..”

37In R. v. Proulx, supra, the Court rejected a presumption against conditional sentences for certain categories of offences. Lamer C.J. stated at paras. 79, 81 and 83:

“79 . . . Thus, a conditional sentence is available in principle for all offences in which the statutory prerequisites are satisfied….

81 In my view, while the gravity of such offences is clearly relevant to determining whether a conditional sentence is appropriate in the circumstances, it would be both unwise and unnecessary to establish judicially created presumptions that conditional sentences are inappropriate for specific offences. Offence-specific presumptions introduce unwarranted rigidity in the determination of whether a conditional sentence is a just and appropriate sanction. Such presumptions do not accord with the principle of proportionality set out in s. 718.1 and the value of individualization in sentencing, nor are they necessary to achieve the important objectives of uniformity and consistency in the use of conditional sentences.

83 My difficulty with the suggestion that the proportionality principle presumptively excludes certain offences from the conditional sentencing regime is that such an approach focuses inordinately on the gravity of the offence and insufficiently on the moral blameworthiness of the offender. This fundamentally misconstrues the nature of the principle. Proportionality requires that full consideration be given to both factors. As s. 718.1 provides: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” [Emphasis added.]”

38As summarized by the Supreme Court in R. v. Wells 2000 SCC 10, conditional sentences were enacted to further Parliament’s goals of reducing the use of incarceration and expanding the use of restorative justice principles, as mandated by the sentencing principle of restraint in the use of actual incarceration reflected in s.718.2 (e) of the Criminal Code.

39In R. v. Wells, supra, at para.31 Iacobucci, J. stated for the Court:

“ In Proulx, supra, the Court determined that the conditional sentence of imprisonment, introduced with Bill C-41, represents a meaningful alternative to incarceration for less serious and non-dangerous offenders. As was the case with s. 718.2 (e) (see Gladue, supra), the conditional sentence was enacted in order to further Parliament’s goals of reducing the use of prison and expanding the use of restorative justice principles in sentencing. At paras. 99-100 in Proulx, Lamer C.J. described how the conditional sentence incorporates traditionally punitive goals of sentencing while also providing an opportunity to further the goals of restorative justice:

The conditional sentence facilitates the achievement of both of Parliament’s objectives. It affords the sentencing judge the opportunity to craft a sentence with appropriate conditions that can lead to the rehabilitation of the offender, reparations to the community, and the promotion of a sense of responsibility in ways that jail cannot. However, it is also a punitive sanction. Indeed, it is the punitive aspect of a conditional sentence that distinguishes it from probation. As discussed above, it was not Parliament’s intention that offenders who would otherwise have gone to jail for up to two years less a day now be given probation or some equivalent thereof.

Thus, a conditional sentence can achieve both punitive and restorative objectives. To the extent that both punitive and restorative objectives can be achieved in a given case, a conditional sentence is likely a better sanction than incarceration. Where the need for punishment is particularly pressing, and there is little opportunity to achieve any restorative objectives, incarceration will likely be the more attractive sanction. However, even where restorative objectives cannot be readily satisfied, a conditional sentence will be preferable to incarceration in cases where a conditional sentence can achieve the objectives of denunciation and deterrence as effectively as incarceration. This follows from the principle of restraint in s. 718.2 (d) and (e), which militates in favour of alternatives to incarceration where appropriate in the circumstances.”

The Crown’s Cases

40The Crown relies upon the important decision of Justice Kenneth L. Campbell in R. v. Smith, 2015 ONSC 4304 in which, in the summary conviction prosecution of the accused for sexual assault, after trial, the trial judge imposed a 16-month conditional sentence in relation to a 27-year-old accused with no prior record. The factual circumstances were that the accused “raped a virginal and vulnerable young woman in his home while she was in a deep sleep due to her recent drug binge. The accused took sexual advantage of a homeless young woman who trusted him as a friend and as a relative of her jailed boyfriend”: R. v. Smith, supra, at para.31.

41On appeal, Justice Campbell allowed the Crown’s appeal from sentence on the basis that it failed to give appropriate weight to the principle of denunciation, a fundamental principle in sentencing accused persons for sexual assault. As Justice Campbell stated at paragraph 39 of the decision in R v. Smith, supra:

“In failing to mention denunciation, the trial judge failed to consider one of the most important sentencing considerations in these types of cases. As s.718(a) of the Criminal Code makes clear, one of the critical objectives of sentencing is “to denounce unlawful conduct”. This objective is especially important in sexual assault cases like the present one, where the accused took advantage of a vulnerable young virgin, and had unprotected sexual intercourse with her, to ejaculation, while she slept in his home. Robbing her of her virginity in this sordid fashion had predictably traumatic and long-term emotional consequences for the complainant. In such circumstances, the courts are obliged to clearly denounce this kind of serious criminal conduct by the imposition of sentences that are proportional to the gravity of the offence and the degree of responsibility of the offender. Men must understand that women who are deeply asleep, significantly intoxicated, unconscious, or otherwise obviously incapable of consenting to any kind of sexual activity must not be opportunistically victimized as their inert sexual playmates. Accordingly, the sentences imposed in such cases must send that clear and unmistakable message.

“That is not to say that denunciation is the only important sentencing consideration, or that it somehow trumps the other relevant sentencing principles. It is only to say that, in these types of cases, denunciation is of critical importance, and it must find effective expression in the sentence that is ultimately imposed”.

42On the Crown’s sentence appeal, Justice Campbell imposed a nine-month term of imprisonment, noting that at the time of sentencing a longer term of imprisonment would have been appropriate, however this was at the upper end of the range suggested by the Crown at trial, and the accused had already served two months of his conditional sentence: R. v. Smith, supra, at para.44.

43It is important to note that, in that case, the sentence was imposed after a trial, so the accused was not entitled to the mitigating circumstance of a plea of guilty. Furthermore, it appeared from the pre-sentence report as noted by Justice Campbell that “the accused appears to lack insight regarding his actions that led to his conviction”: R. v. Smith, supra, at para. 30.

44In reviewing the range of sentence for the sexual assault of a sleeping victim, Justice Campbell noted that where the accused has been prosecuted by indictment, the usual range of sentence for this type of invasive sexual assault on a sleeping unconscious victim is somewhere between an upper reformatory term of imprisonment and a lower penitentiary term of imprisonment: R. v. Smith, supra, at para.32.

45He noted, however, that where the Crown proceeds by summary conviction somewhat lesser sentences are appropriate. He stated at para. 34:

“Where the Crown elects to proceed, however, by way of summary conviction, against an accused charged with such a sexual assault offence, somewhat lesser sentences are required. According to s.271 (b) of the Criminal Code, the maximum potential sentence for any sexual assault where the Crown proceeds by summary conviction is 18 months imprisonment. At the same time, where the Crown elects to proceed by way of summary conviction, the sentencing principles outlined in Part XXIII of the Criminal Code still apply, and the court is obliged to determine the appropriate sentence for that offence for that mode of procedure. Importantly, the “worst offender committing the worst offence principle” does not operate to constrain the imposition of the maximum sentence in summary conviction matters were the maximum sentence would otherwise be appropriate having regard to the principles articulated in Part XXIII of the Code. See R. v. Solowan, 2008 SCC 62, [2008] 3 S.C.R. 309,237 C.C.C.(3d) 129 (S.C.C.), at paras. 3, 10, 15-16.”

46In support of their submission that a period of actual incarceration of 16 months is appropriate, the Crown relies upon a number of sentences imposed after trial rather than upon a plea of guilty. These cases clearly differ from the case at bar as there is no mitigating effect of a guilty plea.

47In R. v. Vaughan, 2020 ONSC 3942 the accused was convicted of sexual assault after a trial in which the Crown proceeded by indictment. Accordingly, the maximum sentence upon conviction was a term of imprisonment of 10 years.

48The account of the offence, accepted by the court but denied by the accused, was that a partygoer at the accused’s house had consumed a lot of alcohol at a party and passed out or fell asleep on the couch at the accused’s home. The accused got on top of her, while she was asleep, pushed up her tank top and fondled her breasts, penetrated her vagina with his fingers and suggested she remove her pants to have intercourse. She did not respond, and he put his penis in her mouth and tried to push it back and forth. The impact of the sexual assault on the victim was significant as she was already vulnerable and shortly after the incident attempted to take her own life. The accused had no criminal record. He had served Canada by participating in the military in a tour of duty in Bosnia Afghanistan and Iraq. The court imposed a period of incarceration of 15 months, in a case where the Crown proceeded by indictment and the sexual assault involved more intrusive conduct than the conduct at bar as the accused placed his penis in the mouth of the victim in addition to digitally penetrating her.: R. v. Vaughan, supra, at paras. 4-5, 10, 15, 54.

49In R. v. De Jesus-Carrasco, 2021 ONSC 6891, after trial of a charge of sexual assault prosecuted by indictment, the accused, who was already serving a 10.5 year sentence, was sentenced to an additional 15 months for a sexual assault involving digital penetration. The sexual assault was committed by the accused in relation to a work colleague who was given a drive home by the accused after a work shift. The accused kissed the victim, and then put his hands down her pants and digitally penetrated her for 3 to 5 minutes. In a subsequent offence, the accused was sentenced to nine years after a jury trial for gang sexual assault and administering a stupefying drug on the victim. Subsequently he was convicted of sexually assaulting another employee at his workplace and filming the assault and received an additional 18 months consecutive. At the time of the offence for which he was being sentenced in this case, he had no prior record. The trial judge, Justice Akhtar, noted at para. 40 the significant degradation and feeling of humiliation experienced by a victim who experiences digital penetration. In imposing a 15 month sentence, Justice Akhtar noted that the sentence would have been significantly longer but for the principle of totality.

50In R. v. Case and Loyer, 2021 ONSC 908, Justice Hennessy convicted two accused after trial of sexual assault prosecuted by indictment. The circumstances of the case were that the victim was 19 years of age, and was at the accused’s apartment where she consumed alcohol, and immediately felt drowsy and unable to stay awake or control her body. She subsequently had flashbacks of a sexual assault committed on her by the accused Ms. Loyer digitally penetrating her while Mr. Case was nearby and encouraging Ms. Loyer in her sexual assault. Mr. Case subsequently tried to manipulate the victim to persuade her that no sexual assault had occurred, and to convince her not to make a complaint to the police.: R v Case and Loyer, supra, at paras. 4-7. The accused Mr. Case was sentenced as a first offender, although it was noted that he had recently been convicted on other charges arising from historical incidents. Justice Hennessy noted at paragraph 58 that “Digital penetration is… highly invasive not only of the human dignity of a person but also of their sexual integrity.” A sentence of 16 months in custody was imposed on both Mr. Case and Ms. Loyer, on the basis that” it is necessary to achieve the denunciation and deterrence that is called for in the circumstances”: R. v. Case, supra, at para.61.

51There are a number of aggravating features to this case not present in the case at bar. Firstly, neither accused had the mitigating circumstance of a plea of guilty. Secondly, the victim was in and out of a state of unconsciousness for hours after drinking the shot of alcohol poured by Mr. Case, suggestive of the possible use of a date-rape drug. As noted by the trial judge at paragraph 52:

“The assault involved more than the digital penetration. The complainant’s clothes were partially removed and were put back on. She was moved from the couch to the floor to the car. Her body was manipulated and undressed and dressed and loaded into a car. None of those actions did she do herself.”

52In R. v. Scinocco, 2017 ONCJ 359, after a trial, Justice Renwick imposed a 12- month custodial sentence for a sexual assault in which the accused attempted to kiss the victim, grabbed her hip, attempted to hug her from behind, exposed himself to her, and his actions culminated in the sexual assault while she slept which consisted of removing her underwear, touching her vagina and attempting to put something or a part of himself into her vagina: R. v. Scinocco, supra, at para. 2. The accused had a prior unrelated criminal offence but was treated as a first offender by Justice Renwick. The defence submission for a conditional sentence was rejected by Justice Renwick, who stated at para. 15 that “a conditional sentence is not warranted because of the aggravating features of the sexual assault, the lack of remorse of the defendant, and the absence of any exceptional personal circumstances that might mitigate the potential effect of a conditional sentence in this type of case”.

53I note in the case at bar, Mr. Cacdac indicated his remorse in relation to his conduct in committing the sexual assault in his plea of guilty, and in his statement to the court indicating that he was sorry for his conduct, and that he accepted responsibility for it, which he made at the conclusion of sentencing submissions.

54In 2012, Parliament sought to limit the availability of conditional sentences for, inter alia, certain offences prosecuted by indictment. In the Safe Streets and Communities Act, S.C. 2012, c.1, s.34 in force November 20, 2012, Parliament amended section 742.1 of the Criminal Code by prohibiting conditional sentences for “an offence, prosecuted by way of indictment, under any of the following provisions…(iii) section 271 (sexual assault).” It is significant that sexual assault prosecuted summarily was not included in this prohibition on conditional sentences.

Recent Superior Court Sentencing Decisions for Sexual Assault Prosecuted by Indictment.

55Recent Superior Court jurisprudence in Ontario has held that section 742.1 (f) (iii), which prohibits conditional sentences for sexual assault offences prosecuted by indictment, is unconstitutional. Nakatsuru, J. held in R. v. R.S., 2021 ONSC 2263 that the section violated sections 7 and 15 of the Canadian Charter of Rights and Freedoms and was not justified under section 1 of the Charter. As a result, pursuant to section 52(1) of the Constitution Act,1982, he declared the section to be of no force and effect.

56In R. v. Browne, 2021 ONSC 6097, McArthur, J. held at paragraph 32, that she was not persuaded that the decision in R. v. R.S. is plainly wrong, and followed it in sentencing in a case in which the accused was convicted after trial of sexual assault with a weapon. In that case, Justice McArthur concluded that Mr. Browne had briefly inserted a vibrator in the victim’s vagina or anus while she was either unconscious or asleep and incapable of consenting: R. v. Browne, supra, at para.1.

57Justice McArthur noted that Mr. Browne was a first offender, and the offence was out of character. He committed the offence when he was heavily intoxicated by alcohol and drugs, had stopped drinking or using drugs, and was committed to living a sober life. He had participated in therapy sessions dealing with sexual boundaries and understanding the victim’s perspective and the harm he caused. He was steadily employed, and was supporting a son. She imposed a sentence of a conditional sentence of two years less a day, with the house arrest component to apply for the duration of the sentence. The sentence permitted Mr. Browne to continue working, and to make restitution to the victim, and in addition, he was placed on probation for a period of one year.

58Justice McArthur considered the decision of Campbell, J. in R. v. Smith, 2015 ONSC 4304, referred to above, and noted in that case that the conduct of the accused was more severe and the offender lack insight into the impact of his offending conduct. She noted that, in reversing the sentencing judge’s decision of a 16 month conditional sentence and substituting a nine month custodial sentence, Justice Campbell noted that the sentencing judge failed to consider denunciation. As Justice McArthur noted at R. v. Browne at para. 102:

“That said, Campbell, J. also recognized that conditional sentences have been imposed in exceptional circumstances for offences of sexual assault committed upon unconscious or semi-conscious complainants: Smith at para. 36; see for example R. v. Killam, [1999] O.J. No. 4289 (C.A.); R. v. Nikkanen, [1999] O.J. No.3822 (C.A.); R. v. Pecoskie, [2002] O.J. No. 4056.”

59In imposing the conditional sentence in R. v. Browne, McArthur, J. noted the importance of the paramount sentencing objectives of deterrence and denunciation in sentencing in sexual assault cases. She stated at paragraph 103:

“But what emerges again and again from the authorities presented is that the paramount sentencing objectives in cases involving sexual assault must be deterrence and denunciation. Further, it is clear that the objective of rehabilitation of the offender should not be given precedence over or even equal weight to denunciation or deterrence. On the other hand, rehabilitation of the offender is still relevant. Restraint also cannot be ignored as to do so would lead to sentences that offend the fundamental principle of proportionality. Finally, the cases make clear that conditional sentences for offences of sexual assault prosecuted by indictment, while uncommon, may in certain circumstances be consistent with the fundamental purpose and principles of sentencing”.

60Justice McArthur concluded that a lengthy conditional sentence, on the facts of the case before her, for a sexual assault prosecuted by indictment, could satisfy the fundamental purpose and principles of sentencing, including general deterrence and denunciation. She stated at paragraphs 106 – 108:

“As noted in R. v. Proulx, 2000 SCC 5, at para.102, a lengthier conditional sentence can add to the punitive aspect of the sentence. Thus, to ensure that the sentence properly emphasizes the objectives of denunciation and deterrence, I am sentencing Mr. Browne to a conditional sentence of two years less a day.

Further, as noted in Proulx, at paras.102 and 107, conditional sentences can provide significant denunciation and deterrence when onerous conditions are imposed. To add to the punitive nature of the sentence, I am ordering that the house arrest component apply for the duration of the sentence: R. v. K.K., 2020 ONSC 7198, at para.34.

And while specific deterrence is not a significant objective in this case, it is also important to note that if Mr. Browne were to violate the terms of his conditional sentence, there is a presumption that he would serve the remainder of his sentence in jail: R. v. Proulx, at para. 39.”

61I agree with Justice McArthur’s analysis that in sexual assault sentencing denunciation and general deterrence are the paramount sentencing principles which must be reflected in a proportionate sentence. I also agree with her that this must be balanced with the goal of the rehabilitation of the offender: s. 718 (d) Criminal Code.

62The principle of restraint in sentencing, reflected in s. 718.2(e), and the requirement in s. 718(d) that an objective of sentencing includes the rehabilitation of the offender, requires the court to consider whether the paramount objectives of denunciation and deterrence may be achieved by a sentence of imprisonment in the community, pursuant to s.742.1, where the sentence to be imposed is a term of imprisonment of less than 2 years, and the statutory requirements of s.742.1 of the Code are satisfied.

63In my opinion, having regard to the circumstances of this case, and the aggravating and mitigating circumstances referred to above, a sentence which is proportionate to the gravity of the offence and the degree of responsibility of Mr. Cacdac is a conditional sentence of imprisonment of 16 months. I am satisfied that serving this sentence in the community would not endanger the community, and that with a term of house arrest for the full 16 months, and a requirement that Mr. Cacdac perform a total of 150 hours of community service, at a rate of 10 hours per month, it would be a proportionate sentence that reflects the purpose and principles of sentencing, including the principles of denunciation and general and specific deterrence, and is proportionate to the gravity of the offence and the degree of responsibility of the offender in this case.

64The period of house arrest will apply for the entire 16 months, with the usual exceptions of absences for work, attendance at counselling or treatment as directed, religious services, legal medical or dental appointments, 4 hours per week for the necessities of life, and to perform community service. As the pre-sentence report noted the contribution of the consumption of alcohol to the commission of this offence, and Mr. Cacdac’s occasional use of illicit drugs, he will be required to attend such counselling as may be directed with respect to drug and alcohol abuse, in addition to the counselling regarding issues of consent in sexual matters recommended by the author of the pre-sentence report. The conditional sentence supervisor may reasonably regard Mr. Cacdac’s continued counselling with his current counsellor as sufficient compliance with the counselling regarding consent in sexual matters. Mr. Cacdac must sign releases to allow the conditional sentence supervisor to monitor compliance with his counselling condition. He shall also be required to abstain from any communication with the victim Ms. S.L. as a term of the conditional sentence order, and to stay more than 200 metres away from where she lives, works, goes to school, or is known to be. In addition, he shall not possess any weapons as defined by the Criminal Code.

65In addition, to assist in his rehabilitation, Mr. Cacdac will be placed on probation for a period of 12 months at the conclusion of his conditional sentence. The terms will be identical to the conditional sentence order, except there is no house arrest condition, and the community service requirement is 5 hours per month for 12 months for a total of 60 hours of community service to be completed as a term of his probation.

66In addition, Mr. Cacdac will be required to provide a DNA sample pursuant to s. 487.051 of the Criminal Code. There is also an order pursuant to s. 490.012 of the Criminal Code requiring him to comply with the Sex Offender Information Registration Act for a period of 10 years. There is a s.110 order for a period of 10 years, and an order that Mr. Cacdac pay the victim surcharge in the amount of $100 pursuant to s. 737 of the Criminal Code.