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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.

Court File and Parties

DATE: August 22, 2023 COURT FILE No: 21-1205

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 :

HIS MAJESTY THE KING

-AND-

T.S.

Before: Justice M. G. March

Submissions heard on: June 22, 2023 Reasons for Sentence released on: August 22, 2023

Counsel: Mariah Calamai, Crown Counsel Adrian Cleaver, Counsel for T.S.

March, M.G., J. :

Introduction

1On February 7, 2023, T.S. was found guilty by me following a two day trial of a sexual assault upon R.G. contrary to s. 271 of the Criminal Code (“the Code ”).

Circumstances of the Offences

2The facts as found at trial are set out in written reasons I have earlier provided. (see R. v. T.S., 2023 ONCJ 97)

3Briefly, T.S. and R.G. were friends for over 15 years. At the time that T.S. committed the offence, both R.G. and he were in their early 30s. On the evening of June 19 leading into the early morning hours of June 20, 2021, T.S. and R.G. engaged in intimate sexual activity for the first time ever.

4In her bedroom, R.G. consented to T.S. digitally penetrating her and performing cunnilingus upon her. While doing so, he became “aggressive”.

5R.G. told him to slow down. She explained that she had not had intercourse in 3 years.

6She went to her bathroom and retrieved Vaseline. T.S. took this as an invitation to place the lubricant on his penis.

7Notwithstanding R.G.’s protestations, T.S. pinned her down on her bed and penetrated her vagina with his penis.

8T.S. denied that the sexual activity in which he engaged with R.G. was nonconsensual in any aspect. I did not believe him. Based primarily on a considered and reasoned acceptance of the evidence of R.G., I found T.S. guilty.

9In her Victim Impact Statement (“VIS”) dated February 19, 2023, R.G. commented that she would rather not share every way that T.S.’s sexual assault upon her has affected her life. She has had trouble sleeping for a long period of time since it occurred. She was away from her bedroom for roughly a year post-incident.

10She is anxious in the presence of males she does not know well. Her grades have been affected at college as she attempts to retrain for a new career. Her children are spending more time with her ex-husband because she finds that her mind goes to “such a dark place” that she is “triggered by everything”.

11She explained that she loved [T.S.] in her own way, and that her trust in him was betrayed. Her heart still hurts for the “best friend” she thought she had.

Circumstances of the Offender

12At present, T.S. is 36 years of age. He has no criminal record.

13T.S. has led a difficult life in many respects. He never knew his father. He only learned of his identity after he passed away.

14He explained to the author of his very thorough and helpful Presentence Report (“PSR”) that his mother is a lesbian. There were no male role models for him growing up.

15He does have two other siblings, an older brother and a younger sister.

16At present he has a 17-year-old son, with whom he has no relationship. When the PSR was completed on April 19, 2023, T.S. had not seen his son in approximately 4 years. T.S. was 17 himself when he fathered this child during a “summer fling”.

17Nevertheless, T.S. does pay child support which is collected and administered through the Family Responsibility Office.

18T.S.’s sister, with whom he has a close relationship, opined to the author of the PSR that he cannot fulfil his role as a father. She described T.S. as a “little old hobbit”. He works, goes home, games and repeats. He has no desire to be in a relationship with a woman. She believed that this is due to his inability to read nonverbal cues and have interpersonal connections with others.

19To his credit, T.S. has been gainfully employed virtually his entire adult life as a labourer in the construction field. His mother described him as a “hard worker”. He has been with the same employer for the past 8 to 9 years.

20T.S. enjoys helping others. He would often take on the task of assisting his neighbours by shoveling snow away for them without ever being asked to do so.

21Although he has managed to live independently for a few years, he struggled to maintain his own apartment. At present, he resides with his mother. They support each other, but for the most part, live separate lives. T.S. has created a “den” over the garage of their shared home where he spends most of his time. His mother described living with her son as “fantastic”.

22His mother related to the author of the PSR that T.S. has had girlfriends, the longest possibly for two years, but nothing which resulted in a relationship of any permanence. His mother explained that T.S. is “unique”, and that most of the women he has dated have also been “different”.

23Surprisingly, T.S. told the author of the PSR that he “hates” his mother because she withheld the identity of his father from him all his life.

24For most of his schooling, T.S. has struggled. From the outset, he was evaluated and diagnosed with attention deficit hyperactivity disorder (“ADHD”). His mother added that “he checked off many boxes for Asperger’s”. He attended special-education classes for Math and English.

25T.S. faced many challenges fitting in with the other students. To this day, he still has no long-term friendships.

26At the age of 14, T.S. attempted to commit suicide. Thereafter, for a period of time, he attended counselling at a youth centre for mental health. His mother felt that the counselling he attended “for a few sessions” was quite helpful. He has not participated in any such treatment since.

27Sadly, T.S. had little family support from the time he was criminally charged to the completion of his trial – a span of roughly a year and a half. He believed mistakenly that he was told by the Court not to discuss the proceedings with anyone. It was not until during preparation of his PSR that his mother and sister learned of his conviction for sexual assault.

28In a letter dated May 31, 2023 and filed at T.S.’s sentencing, his mother gave a different reason for why T.S. kept the fact of his criminal charge and trial from his family. She stated, “in his mind, he would attend court, tell his truth and the charge would be withdrawn. Unfortunately, this did not occur. In hindsight, [T.S.] is aware that he should have reached out to those who could and would support him”.

29His sister in an email dated April 24, 2023, also filed at the sentencing, added that her brother’s “only crime was believing his honesty would prove his innocence”.

30Quite astutely in my view, she offered to the author of the PSR that her brother, T.S., cannot read emotions. He therefore often presents as socially awkward due to his inability to engage properly. She believes that he has a form of autism, but to her knowledge, there has been no actual diagnosis.

31She describes T.S. as “a very good guy, but he will never show you his love, as he doesn’t understand emotions”. She believes that is why he has remained single and living with her mother. His sister felt that he cannot form “healthy loving relationships”.

32Fortunately, although T.S. does smoke marijuana, his mother observed that he appears to have no issues with drug or alcohol dependence.

33Substance use played no major role in the offence committed by T.S.

Crown’s Position on Sentence

34Crown counsel seeks a period of incarceration of 3 years in total for T.S. Denunciation and deterrence are the salient sentencing principles to be taken into account by the Court, she submits.

35According to the Crown, the fact that T.S. is a first-time offender is the sole mitigating factor amongst his personal circumstances. The crime he committed was, of course, serious in nature. Any prospects for his rehabilitation must take a “backseat” to denunciation and deterrence.

36The Crown argues that T.S.’s lack of insight and acceptance of responsibility are most troubling.

37She pointed me to paragraph 77 of R. v. A.J.K., 2022 ONCA 487, where Fairburn A.C.J.O. stated,

“The fact that the complainant had a relationship or prior relationship with the accused cannot serve to justify a sentencing range below a range for non-intimate partner sexual violence. To the extent that Smith has been interpreted as suggesting otherwise, it is no longer to be understood this way. Absent some highly mitigating factor, the forced penetration of another person will typically attract a sentence of at least 3 years in the penitentiary . While Bradley and the cases following it suggests that the range is 3 to 5 years, this is of course just a range, a quantitative and sentencing tool designed to assist busy trial judges with where to start: Parranto , at paras. 15 – 17. Accordingly, there will be circumstances where her departure from the range, either above or below the range, is entirely appropriate.”

38Crown counsel also emphasized the significant impact the offence had upon the victim, R.G.

Defence Position on Sentence

39Defence counsel seeks for me to impose a sentence of incarceration in the 24 to 30 months range. He referred me specifically to the case of R. v. D.M., 2023 ONSC 2152, a post- A.J.K. decision.

[40] He emphasized that: a) T.S. is a first-time offender, b) T.S. has led to this point a quiet life, and has been a productive member of society, c) T.S.’s crime is out of character for him, and d) T.S. suffers from cognitive deficiencies, which make his crime less morally blameworthy.

41T.S., defence counsel submits, is the type of offender who should attract a sentence below the 3 year minimum stipulated in A.J.K.

Analysis

42In arriving at a fit disposition for T.S., 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.

43T.S.’s sentence must be an appropriate one upon consideration of the circumstances of the offence he committed as well as his personal circumstances.

44Most 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

45The principles of denunciation and deterrence are paramount when one sentences an offender who commits a serious crime of violence such as a sexual assault. (see R. v. Thuraiajah, 2008 ONCA 91 at para. 41)

46In R. v. Bennett, 2021 NLSC 26 at para. 14, Knickle J. observed:

“The perpetration of violent sexual offences, as occurred here, is appropriately the object of public abhorrence. This abhorrence requires an emphasis on deterrence and denunciation. This is because the perpetration of this kind of violence is the antithesis of a just and peaceful society. As has been stated often by sentencing courts, but bears repeating, women are not walking around in a perpetual state of consent from which they must overcome any unwanted sexual contact. All individuals are entitled to have their personal and sexual integrity respected. This means taking the time in all relationships to ascertain whether or not there is consent to particular sexual contact.”

47More recently in A.J.K., of course, Fairburn A.C.J.O. commented at paras 73 and 74 on the serious nature of either stranger or intimate partner sexual assaults as being deserving of society’s condemnation as follows:

“A sexual assault involving forced penetration is a sexual assault involving forced penetration. An act of sexual violence perpetrated on a stranger to the accused is not necessarily worse than a similar act of sexual violence perpetrated on an intimate or former intimate partner. Any suggestion to the contrary can only rest on unacceptable myths and stereotypes, ones that a fair justice system must continuously confront and eradicate: see R. v. Ewanchuk, 1999 SCC 711 at para. 82.

All sexual assaults are serious acts of violence. They reflect the wrongful exploitation of the victim whose personal autonomy, sexual integrity, and dignity is harmfully impacted while being treated as nothing more than an object. Whether intimate partners or strangers, victims of sexual violence suffer profound emotional and physical harm and their lives can be forever altered. So too can the lives of their loved ones.”

Separation from Society

48Offenders must be separated from society where necessary. Clearly, incarceration must be the penal sanction of last resort.

49In light of A.J.K., there can be no doubt that T.S. must go to jail.

Rehabilitation

50T.S. needs help. Hopefully, he will receive appropriate education and counseling to address a total lack of insight into his criminal wrongdoing.

51Only then will T.S. begin to be able to rehabilitate himself towards becoming a productive member of society again.

Promotion of a Sense of Responsibility and Acknowledgement of Harm

52To a large degree, T.S. wishes to maintain his innocence. That is his right. However, it does not bode well for his rehabilitation.

53I can only hope that T.S. will reflect long and hard on his conduct towards R.G. while incarcerated, and how what he did to her constituted a most serious crime. I appreciate that boundaries are difficult for T.S. to understand. Institutionally, I urge correctional authorities to offer all available assistance to T.S. in this regard in the way of programming.

Aggravating Circumstances

[54] Upon review of the offences committed by T.S., I find the following factors to be aggravating: a) he betrayed the trust of his friend of some 15 years, R.G., when in the face of being told unambiguously “no”, he proceeded to vaginally penetrate her, and b) the offence has had a significant, profound and lasting impact upon his victim, R.G.

Mitigating Circumstances

[55] I consider as mitigating that: a) T.S. is a ‘first time’ offender, who has had no prior brushes with the criminal justice system, b) T.S. suffers from ADHD, and likely some other form of intellectual and/or cognitive disability, which prevents him from appreciating the signals and cues that someone else not so afflicted would pick up on in their dealings with other people, and c) he has the support of his family, his mother and sister, who love him dearly, a factor which bodes well for his ability to reintegrate himself into society.

Parity

56Section 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.”

The Case Law

57None of the cases referred to me by counsel are on all fours with the facts in this case. Of course, this is not surprising in the slightest. As mentioned earlier, and as trite but true as it may be, no two cases are completely alike.

58Defence counsel could not point me to a case post- A.J.K., where the “starting point” of a three-year sentence of imprisonment, barring the presence of “a highly mitigating factor”, and where the circumstances of the offence involved nonconsensual, vaginal penetration occurred, another Court in Ontario saw fit to impose a sentence under the lower end of the range.

59I do, however, take guidance from the dicta of Dawson J. in R. v. Lacombe, 2023 ONSC 1975, a case to which defence counsel drew my attention. There, a 54-year-old offender with a dated criminal record was found guilty following trial of one count of sexual assault, notwithstanding the complainant related four occasions where the offender had attempted to have, and on three such occasions did have, sexual intercourse with his victim.

60At paras. 38 – 39, Dawson J. concluded:

“In this case there are four incidents of such penetration or attempted penetration. That might be expected to take the sentence up from the bottom of the range, particularly having regard to the intimate partner aspect of the matter and the associated breach of trust. Balanced against this, I take into account that these offences are out of character for the accused, who has been a contributing member of the community for many years. His criminal record is dated, relatively minor, and not a factor I place any weight on. The accused also has health issues which make it more difficult for him to be incarcerated. This is a factor I place some weight on , but it is not something which is of such significance as to take the sentence below the general range of sentence.

In my view, a sentence of 3 years is the appropriate sentence in this case which best balances all relevant factors and considerations…”

61On the facts of the case before me, T.S. is a younger man with no health issues. In most other respects, T.S., is a similar offender to Mr. Lacombe having regard to the circumstances of the offence he committed and his personal circumstances.

62I hasten to add that although T.S. committed a solitary act of sexual assault upon R.G., it was, in my view, more egregious than many others in that it involved painful, vaginal penetration of the victim, a longstanding friend of T.S. He betrayed her trust. He would not accept no for an answer. In and of itself, those are the most aggravating features of his offence.

63Crown counsel drew my attention as well to Bennett, supra at para. 50, where Knickle J. stated:

“ I also consider that Mr. Bennett seems to show a lack of insight into the wrongfulness of the conduct, and an unwillingness to take responsibility because of little recall as to the events. Mr. Bennett exhibits no remorse for his conduct. The absence of remorse is never an aggravating factor, but the presence of remorse can be a significant mitigating factor. Its presence can be mitigating because it is an indication of a willingness to take responsibility, which in turn can be a strong indication of an offenders prospects for rehabilitation. Mr. Bennett does not have the benefit of this mitigating factor.”

64I share the same concern for T.S. as Knickle J. did for Mr. Bennett.

A Fit Sentence for T.S. in the Circumstances of the Offences He Committed and His Personal Circumstances

65It warrants repeating that the length of time for which I will incarcerate T.S. must pay adequate respect for the principles of denunciation and deterrence. A significant penitentiary sentence must be imposed. However, I must also hearken back to the sage direction offered by Rosenberg J.A. in R. v. Priest, where he held:

“ . . . it is a well-established principle of sentencing laid down by this court that a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence.”

66I am mindful of the clear expression by the Court of Appeal as to the inferior position the sentencing principle of restraint must take to denunciation and deterrence, even for first-time offenders. Nevertheless, in my humble view, restraint cannot be completely ignored. (see D.M. supra at para. 40)

67Upon consideration of all relevant principles of sentencing and their purpose, I shall impose a sentence of three years imprisonment for T.S.

Conclusion

68While I find that T.S.’s cognitive deficiencies make him somewhat less morally blameworthy than the average individual, the betrayal of R.G.’s trust and the inherent wrongfulness of intimate partner sexual assault lands T.S. at the low end of the range as articulated by the Court of Appeal for Ontario in A.J.K.

69I can find no “highly mitigating factor” in this case which warrants the imposition of a penitentiary sentence under three years for T.S.

[70] By way of ancillary orders: a) T.S. shall provide to the authorities as soon as reasonably practicable a sample of his DNA under section 487.051 of the Code, b) T.S. shall, by virtue of section 109 of the Code, be prohibited from possessing a weapon as that term is defined in the Code for a period of 10 years, c) T.S. shall be subject to an Order under sections 490.012(1) and 490.013(1) and (2) (b) of the Code requiring him to comply with the provisions of the Sex Offender Information Registration Act for a period of 20 years, and d) pursuant to section 743.21(1) of the Code, T.S. shall refrain from any form of communication with R.G., or any other member of her immediate family while serving the sentence.

71I will waive the imposition of any victim fine surcharge for T.S. I find it will cause him undue hardship to face any type of monetary penalty upon his release from custody, given the significant length of time he will likely serve in prison.