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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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.
Ontario Court of Justice
Date: 2024 01 19 Court File No.: Pembroke 3711 998 3711-21-0639
BETWEEN:
HIS MAJESTY THE KING
— AND —
JG
Judgment on Sentence
Before: Justice J.R. RICHARDSON Heard on: November 27, 2023 Reasons for Judgment released on: January 19, 2024
Counsel: Caitlin Downing, for the Crown Kathleen Kealey, for the accused
Introduction
1This case discusses the appropriate sentence in cases of penetrative sexual assault against an intimate partner and the ruling of the Ontario Court of Appeal in R. v. AJK 2022 ONCA 427.
2On June 2, 2023, this Court convicted JG of one count of sexual assault against CG, contrary to section 271 of the Criminal Code.
The Findings at Trial
3My decision on the trial is found at R. v. J.G. 2023 ONCJ 232.
4The parties started dating in 2011 and married in 2013. They have one child. The incidents occurred on February 21-22, 2021. When the incidents occurred, the marriage was clearly failing. There had been one prior separation the summer before but the parties reconciled.
5On the night in question, CG invited the accused to come up to the bedroom. Before then, he had been sleeping elsewhere in the house. He took advantage of that situation and proceeded to have vaginal intercourse with CG twice without her consent.
The Pre-Sentence Report
6I ordered the preparation of a Pre-Sentence Report which became Exhibit 1 on Sentence.
7JG grew up in what he considered to be a “normal” household. His parents struggled with alcohol. His cousin told the author of the Pre-Sentence Report that she believes that JG is a victim of his parents’ alcoholism as it is clear that he did not witness a healthy relationship growing up.
8JG’s parents separated when he was 12.
9JG joined the Canadian Forces in 2007. He resigned from the military in 2022 as a result of the charges. He has a clean military record. He has been employed as a garbage truck driver since June 2022.
10He enjoys parenting time with his child in person every two weeks and over the phone once a week. He wishes that he could spend more time with him and is very upset about the prospect of not seeing his son for some time. He reported that he was up-to-date in his child support payments.
11He has been involved in a relationship with his girlfriend since March 2021. At the time the report was prepared they were engaged. He is a father figure to her children.
12He does not endorse any difficulty with alcohol or drugs. He has used marihuana “to unwind” but he has not used it over the past 12-18 months.
13He is a first-time offender. He was cooperative and forthcoming with the Probation Officer who prepared the report.
14He does not endorse any difficulty with anger management. This is corroborated by his mother-in-law and his girlfriend.
15He has had suicidal ideation in the past. He went to counselling while in the military. He does not take any medication for General Anxiety Disorder which he was diagnosed with.
16He does not endorse “deviant” sexual tendencies.
17He told the author of the Pre-Sentence Report that his relationship with CG was “toxic”. He stated that he was “not aware” that sexual acts that he has been convicted of were not consensual. He expressed remorse to the Probation Officer.
18The Probation Officer found that he was a suitable candidate for community supervision.
The Section 21 Report
19I also ordered the preparation of a report under section 21 of the Mental Health Act. He told Dr. Gojer that he believed that the sexual intercourse with CG that formed the basis of the charges was consensual and mutual. He stated that there was no indication that she was unwilling to participate.
20With respect to his background Dr. Gojer’s report added the fact that he is originally from Cornwall, Ontario and he did not talk until he was four. He went to speech therapy. He was a shy child who did not have any behaviour difficulties growing up. He suffered from asthma, which he grew out of. He graduated from high school. In his last year of high school, he joined the Canadian Forces Reserves.
21He had one prior significant intimate partner relationship prior to his relationship with CG. He told Dr. Gojer that this ended due to infidelity on her part.
22He now lives near North Bay with his girlfriend.
23As with the Pre-Sentence Report, he denied any “deviant” sexual interests, or difficulty with drugs and alcohol.
24I heard evidence during the trial, which was supported by Dr. Gojer’s report that because he was born with his femurs outwards, he had them surgically repaired in 2015 and 2020.
25I also heard evidence during the trial of one episode of apparent psychosis, which was also briefly discussed in Dr. Gojer’s report.
26He has been diagnosed with General Anxiety Disorder while in the military in 2017. There are some obsessive compulsive traits. He was prescribed medication. He is not presently on medication.
27Dr. Gojer also spoke with collateral sources, all of whom reported a positive relationship with JG and all of whom reported never observing anything out of the ordinary.
28Dr. Gojer opined that JG did not suffer from any mental illness.
29Dr. Gojer also opined, based on actuarial instruments, that JG was at a low risk to reoffend.
30No phallometric testing was completed as part of the section 21 report.
The Letters of Support
31The first letter of Support was from his girlfriend. She stated that he was “genuine, loving, caring generous, dedicated and hardworking”. She indicated that he acts as a father to her children who call him “Dad”. He is a good father who is worried about losing contact with his son. His girlfriend indicated that she trusts JG with her life and with her children’s lives. Prior to her relationship with JG, she was involved in an abusive relationship. She has never seen him act as her former partner did and he has been by her side in dealing with her former partner. In their intimate life, she stated that JG was “respectful and considerate of my feelings”. He is not controlling or pushy. She believes that he has learned from his mistakes.
32The second letter was from JG’s employer. It reported that he worked 40 to 45 hours a week and showed pride in his work, was punctual and courteous. He is family oriented. His employer indicated that JG shared the guilty verdict with her and he is concerned about the financial and emotional impact of his absence on his family if he goes into custody.
33The third letter is from his cousin, who also provided information to the author of the Pre-Sentence Report. She babysat him when he was little. She described him as a shy, cuddly, sweet boy. He has an animated and comedic personality. Like the others, she reported that his family was his priority. He also has a strong work ethic.
Victim Impact
34CG did not file a Victim Impact Statement. At trial, she told me that she has forgiven JG and is prepared to move on.
Submissions
35Defence counsel argued that the appropriate sentence was a Conditional Sentence of two years less a day.
36She argued that this case did not involve any “extraneous violence”, or “gratuitous confinement”. At the end of the day, the case was a case of recklessness and wilful blindness as to consent, in that on the facts found at trial, JG took CG’s invitation to come to bed as an invitation for sex. She argued that paragraph 195 of the trial judgment takes the case “out of the realm of the usual”. I note that at paragraph 195 (R. v. JG 2023 ONCJ 232), I stated:
As I have pointed out, however, he was completely wrong in coming to this conclusion. There is absolutely nothing that CG said or did that should have led him to initiate intercourse. In this way, JG’s actions were reckless and willfully blind. He took the invitation to come to the bedroom, the mutual kissing and the lack of complaint about the touching as an invitation to engage in intercourse. He was not entitled to do so unless CG clearly and unequivocally communicated to him – by words or conduct – that she wanted to so engage. He did not take reasonable steps to obtain this clear and unequivocal communicated consent.
37Defence counsel further argued that the PSR, Section 21 report and letters of support are highly favourable. She reminded the court that JG has a young son, who he sees every two weeks. JG does all the driving to see his son and he pays child support. I have no doubt that he is heartbroken over the thought of losing time with his son.
38He is in a healthy loving relationship with his new partner, who he has assisted in coming out of an abusive relationship and who is now expecting another child. He has been on bail for over two years and has not breached. He suffers from Generalized Anxiety Disorder.
39Defence counsel stated that this was a case where the Court could justifiably impose a sentence of less than two years. She reminded me of the words in section 718 of the Criminal Code, which mandates the sentencing principle of separating the accused from society “where necessary”. On the facts of this case, defence counsel stated that separation of JG from society was not necessary.
40Defence counsel argued that Justice Fairburn’s comments about the range of sentence in cases of penetration starting at three years in R. v. AJK are tempered somewhat by what she stated at paragraph 80 of that judgment:
When imposing a sentence, the goal is always to impose a fair, fit, and principled sanction: Parranto, at para. 10. Proportionality is key to this determination, focussing as it does on the gravity of the offence and the degree of responsibility of the offender: Friesen, at para. 30; Parranto, at para. 10. Indeed, proportionality is described in the heading above s. 718.1 of the Criminal Code as being the “[f]undamental principle” of sentencing.
41Crown counsel sought a sentence of five years in the penitentiary on the basis that there were really two sexual assaults here. I note that initially, Crown counsel was under the misapprehension that JG had been found guilty of two counts. In fact, the Information was amended to change the date range of Count 1 to being between February 21 and February 23 and it was on this charge that the accused was found guilty. Other counts in the information, including two counts of sexual assault and one count of uttering a threat were withdrawn by the Crown.
42The Crown also argued that there was nothing about the facts of this case or JG’s situation which warranted a finding of “exceptional circumstances” such as to take it below the AJK.
Caselaw
43Before June 24, 2022, the sentencing range for sexual assault involving penetration of an intimate partner was two years less a day to four years. This was based on R. v. Smith 2011 ONCA 564 at paragraph 87.
44On June 24, 2022, the Court of Appeal released its decision in R. v. AJK, supra. In that case, Associate Chief Justice Fairburn agreed with the Crown that “the time had come to set [the Smith range] aside” (paragraphs 64 and 70). The rationale for doing so was expressed by Associate Chief Justice Fairburn at paragraphs 73 to 77 in this way:
73A 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 could 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, [1999] 1 S.C.R. 330, at para. 82.
74All 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.
75As the years pass, enlightenment on the implications of sexual violence continues to permeate our conscious minds. In Friesen, the court noted, at para. 118, that “our understanding of the profound physical and psychological harm that all victims of sexual assault experience has deepened” and, I would add, is continuing to deepen: see also R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3, at para. 37. As Moldaver J. stated in R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 1: “Without a doubt, eliminating … sexual violence against women is one of the more pressing challenges we face as a society” and “we can – and must – do better” (emphasis in original). This comment encapsulates why these sentencing ranges as they have come to be understood must be reconciled.
76There is no justifiable reason for why sexually assaulting an intimate or former intimate partner is any less serious than sexually assaulting a stranger. The fact is that a pre-existing relationship between the accused and complainant places them in a position of trust that can only be seen as an aggravating factor on sentencing: Criminal Code, R.S.C., 1985, c. C-46, s. 718.2 (a)(ii). Therefore, contrary to the impression that may be left when contrasting the Smith range with the non-Smith range, the sexual assault of an intimate or former intimate partner can actually attract a greater sentence.
77The 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 the 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 three years in the penitentiary. While Bradley and the cases following it suggest that the range is three to five years, this is of course just a range, a quantitative sentencing tool designed to assist busy trial judges with where to start: Parranto, at paras. 15-17. Accordingly, there will be circumstances where a departure from the range, either above or below the range, is entirely appropriate.
[Bold face emphasis mine]
45Justice Fairburn noted that the “non-Smith” sentencing range, i.e. the range for cases where the sexual assault does not take place in the context of an intimate partner relationship, was set by the Court of Appeal in R. v. Bradley 2008 ONCA 179 (and the cases that subsequently followed it) at three to five years.
46As set out in paragraph 76 of AJK, given the breach of trust involved in the case of sexual assault in the context of a relationship between intimate partners, arguably, the sentencing range for these kinds of cases could be even higher.
47Thus, AJK stands for the proposition that the sentencing range for penetrative sexual assault is at least three to five years.
48Justice Fairburn, was however, careful to point out that there was “no magic” in identifying the proper sentencing range because “the task is to arrive at a fit sentence through the employment of proper sentencing principles” (paragraph 78 of AJK). That said, she was clear, as I have emphasized with bold face print from paragraph 77, that in order to go below this range, the Court must be satisfied as to the presence of a “highly mitigating factor”.
49Just what is “highly mitigating”?
50Cases decided after AJK provide some clues.
51In R. v. RS 2023 ONCA 608, the accused was originally convicted of sexual assault and overcome resistance by choking by a jury. The parties were in an intimate partner relationship. The victim was in her apartment which was dark. The accused came in and they went to the ground. His hands were all over her. He touched her and undid her pants and underwear. He bit and sucked on her abdomen. He removed a tampon from her vagina. She said “no” but he continued and digitally penetrated her. She tried to get away from him and he grabbed her throat. She saw stars. He stopped grabbing her throat when she grabbed his hand. She was on her feet by the kitchen counter. He pushed her over and told her he wanted to “fuck her hard”. The assault was interrupted by an upstairs neighbour.
52The accused was Indigenous. There was violence and alcohol abuse when he was a child. His mother disappeared, probably at the hands of his father. He was apprehended by the Children’s Aid Society. He developed some alcohol issues himself while he was in university and in his 20s. He had a good job. He did not have a criminal record. There were many pro-social aspects of his life. He demonstrated remorse and insight into his thinking.
53The victim filed a Victim Impact Statement. In it, she indicated that she took an antiretroviral drug after the sexual assault which resulted in a number of serious side effects. She indicated that she was unable to sleep. She suffered from fear and anxiety and she had a lingering sense of violation; she did not feel secure when she was at home and she had general difficulty working and completing every day tasks.
54The trial judge sentenced the accused to two years less one day conditional on the sexual assault with 90 days intermittent concurrent on the choking charge.
55Justice Huscroft of the Court of Appeal, writing for himself and Justice Coroza, citing, inter alia, AJK, found that the sentence imposed was inadequate. The sentence imposed by the trial judge did not adequately reflect that fact that the primary sentencing considerations in cases of sexual assault are denunciation and deterrence (see paragraph 39 of RS).
56Although Justice Huscroft found that the accused’s “moral culpability could rightly be considered to be reduced by his background” (paragraph 40) the trial judge went too far. Justice Huscroft found that three years in the penitentiary would have been appropriate.
57Justice Paciocco dissented, finding that the trial judge’s sentence was fit, on the basis that the accused’s moral culpability was significantly reduced by his background. He noted that “notwithstanding that the sexual offence R.S. committed was serious, intrusive, degrading, violent, and damaging to the complainant”, “this case is a striking illustration of an offender whose criminal behaviour has been profoundly shaped by the damage done to him as a result of his indigeneity” and therefore the sentence was a reasonable one (see paragraph 48).
58Justice Paciocco’s dissent also focused on his view, supported by the recent Court of Appeal decision in R. v. Ali 2022 ONCA 736, that it was an error in principle to rule out a Conditional Sentence – in any case -- including sexual assaults – on the basis that denunciation and deterrence are the primary sentencing goals. He also found that it was an error in principle for a sentencing judge to hold that a conditional sentence cannot be imposed because it is outside the established range. In Justice Paciocco’s view, Justice Fairburn allowed for this in her discussion, quoted above, at paragraph 77 of AJK.
59Finally, citing the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, Justice Paciocco found that the trial judge was entitled to deference because the sentence imposed was “arrived at after extensive consideration based on the correct identification of the proper principles of sentencing based on coherent, unchallenged findings of fact”, (paragraph 83) and thus could not be said to be “demonstrably unfit”, “clearly unreasonable”, “clearly excessive or inadequate”, or a “substantial and marked departure” or “an unreasonable departure from the principle of proportionality.” (see paragraph 85).
60In R. v. M.T-S 2023 ONSC 4438, Justice Gibson imposed a four-year sentence in a case involving a penetrative sexual assault against his intimate partner. Justice Gibson dismissed arguments that the sentence should be mitigated by the fact that the accused was an amputee and there were significant immigration consequences. The accused had a significant criminal record.
61In R. v. AG 2023 ONSC 3049, Justice Harris imposed a five year sentence in a case involving penetrative and forced fellatio sexual assault, assault, sexual assault and forcible confinement where the complainant was left with bruises “head to toe” and she also suffered a bite mark to her leg. The accused told her that he was “branding her” by biting her. The accused was 20 years of age at the time of the incident, 26 at the time of sentencing. He had no prior record. He had strong family support, a new girlfriend and employment. He had significant mental health problems.
62In R. v. Dickson 2023 ONSC 2776, Justice Himel imposed a sentence of two years less one day conditional in a case involving penetrative sexual assault of his intimate partner. She was diagnosed with Chlamydia as a result of the assault. The accused was 33 years of age. He had no prior record. He had a good job as a delivery driver. He paid child support. He entered a guilty plea. Although the offence had a significant impact on the victim, she forgave him and she did not wish to see him incarcerated. Justice Himel distinguished AJK “in light of the serious violence involved and the physical and emotional injuries caused to the complainant in that case as well as the prior criminal record of the offender” (paragraph 26). He found the other circumstances “highly mitigating”. He also relied on the trial judge’s decision in RS, which, as discussed above, has since been overturned by the Court of Appeal.
63In the case at bar, defence counsel relied upon Dickson. Respectfully, I disagree with Dickson for a number of reasons. First, AJK is clear that the range for offences involving penetrative sexual assault is three to five years. On the facts of AJK, which involved serious violence, the sentence imposed was five years. Secondly, as I have pointed out, RS, which is one of the decisions relied upon by Justice Himel, has now been overturned by the Court of Appeal. In that case, as I have also indicated, there were significant mitigating factors which the majority in the Court of Appeal found were not sufficient to take the sentence below the AJK range.
64With respect, I believe that if I followed Dickson I would be in error.
65In R. v. Lacombe 2023 ONSC 1975, Justice Dawson imposed a three-year sentence in a case involving a 54 year old accused with significant health problems who committed four penetrative sexual assaults against his intimate partner. The accused had a minor criminal record but had been a contributing member of society for many years. Justice Dawson reasoned that the accused’s health problem was mitigating, but not so mitigating as to take the sentence below the three year starting point in AJK.
66Before the Court of Appeal clarified the state of the law in AJK, defence in this case would have persuaded me to impose a sentence of less than three years, but they would not have persuaded me to impose a conditional sentence: see for my example, my decision in R. v. Beal 2022 ONCJ 269.
67Prior to AJK, I simply believed that, absent something highly mitigating, penetrative sex required a penitentiary sentence in order to “adequately and squarely” (Beal at paragraph 85) hold the offender accountable and thus give effect to the principles of proportionality, denunciation and deterrence. I believed that this struck the right balance between those sentencing principles and the principle of restraint and the importance of not imposing a sentence which would crush the rehabilitative potential of the accused.
68With respect to the sentencing range, I stated:
In my view, unless and until an appellate court takes the lead, as the Supreme Court of Canada did in Friesen, the law is it presently stands provides me with more than sufficient scope to craft an adequate sentence for Mr. Beal. The sentencing ranges that have been established, divergent as they are, respond to society’s current understanding and awareness of the gravity of these offences and the moral blameworthiness of the offenders who commit them.
69In AJK, decided about three weeks after Beal, the Ontario Court of Appeal took the lead and settled the divergent line of decisions in cases dealing with penetrative sexual assaults.
Criminal Code Provisions with Respect to Sentencing and Aggravating and Mitigating Factors
71As my colleague Justice March recently stated in R. v. T.S., 2023 ONCJ 584, Ontario Court of Justice, Pembroke, at paragraph 42, sentencing is “always a unique individualized exercise. No two cases are completely alike. Nor are any two offenders completely the same.” Other decisions have described it as “delicate”.
72With respect to the sentencing principles of denunciation and deterrence, it is clear that as a result of AJK that this remains of primary importance in cases of this nature.
73With respect to the sentencing principle of specific deterrence, I accept that JG is remorseful for what he has done. I highly doubt that JG will ever find himself in this situation again.
74The sentencing principle of general deterrence is different however. As Justice Knickle observed in R. v. Bennett 2021 NLSC 26 at paragraph 14:
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.
75These words are particularly appropriate in this case.
76Another sentencing principle is the importance of separating offenders from society, where necessary.
77Given the Court of Appeal’s decision in AJK, separating offenders like JG from society is necessary in order to give effect the principles of general and specific deterrence. But for that, there is no need to separate him from society. He is at a low risk to reoffend. Any treatment or counselling goals could be achieved in the community.
78Another sentencing principle is the importance of rehabilitating the offender. Other than this offence, JG conducts himself in a pro-social fashion. By all accounts, he is a dedicated family man. He does need to learn from this, but as I alluded to above, it is not necessary that he do so in a custodial facility. There is no reason to believe that his rehabilitation could not be accomplished in the community.
79The Criminal Code also includes the sentencing principle of the importance of promotion of a sense of responsibility and an acknowledgement of harm. While I accept that JG is sorry for what he has done and accepts responsibility, I am not sure he understands the gravity of it, nor do I believe that he acknowledges any harm to CG.
80That said, I do not believe that in his particular case, custody is necessary to bring these things home to him. However, this sentencing principle can also fairly be said to underpin Associate Chief Justice Fairburn’s analysis in AJK.
81The sentence that I impose will be in line with the sentencing of similar offenders for similar offences. This principle of sentencing, referred to as parity, is also in line with the analysis in AJK. I note that in TS, supra, Justice March recently imposed a three-year sentence in a case of penetrative sexual assault committed against a friend.
82Statutorily aggravating factors include the fact that the offence is committed against JG’s intimate partner and, as CG’s husband at the time of the offences, he abused a position of trust in relation to her.
83There are many mitigating factors that I have already touched upon, including the fact that he has gainful employment, he does not have a criminal record, he is financially supportive not only to his new girlfriend and new family but also to CG. He does not have a drug and alcohol problem. He has some apparently minor mental health issues.
84I am concerned that a three-year penitentiary sentence will crush JG.
85It occurred to me in the course of writing these reasons that there is an argument that while no one single factor was “highly mitigating” the combination of all of JG’s mitigating factors add to a situation that is “highly mitigating” on sentence. This case is about a good and otherwise upstanding person who made a serious and profound mistake.
86On balance, however, particularly given the result in RS, supra, it is clear that there must be something that is extraordinarily mitigating in order to go below the AJK range.
87As Justice Antonio pointed out at length in R. v. Shrivastava 2019 ABQB 663, the Court must be careful in putting too much weight on “otherwise good character” as a mitigating factor. To do so can “can undermine the denunciative and deterrent functions of criminal sentences” (at paragraph 87). It also ignores the fact that “[p]eople of good character, involved in pro-social careers or altruistic activities, are not immune from offending sexually…” and “[a]ll potential offenders must hear the message of deterrence. Major sexual offences must be denounced as a serious wrong, no matter who commits them.” (at paragraph 93).
88In the final analysis, admittedly with some reluctance, I find that there is nothing in this case that is so “highly mitigating” that it justifies a sentence of less than three years and that is the fit and appropriate sentence.
SOIRA
89In R. v. Ndlovu 2022 SCC 38, the Supreme Court of Canada struck down section 487.092 of the Criminal Code with respect to mandatory registration requirements for sexual offenders as overbroad.
90In response to Ndlovu, Parliament passed amendments to the Criminal Code so that it now states as follows:
490.012 (1) Subject to subsection (5), when a court imposes a sentence on a person for a designated offence, it shall make an order in Form 52 requiring the person to comply with the Sex Offender Information Registration Act if
(a) the designated offence was prosecuted by indictment;
(b) the sentence for the designated offence is a term of imprisonment of two years or more; and
(c) the victim of the designated offence is under the age of 18 years.
Order — previous offence or obligation
(2) Subject to subsection (5), when a court imposes a sentence on a person for a designated offence, it shall make an order in Form 52 requiring the person to comply with the Sex Offender Information Registration Act if the prosecutor establishes that, before or after the coming into force of paragraphs (a) and (b), the person
(a) was previously convicted of a primary offence or previously convicted under section 130 of the National Defence Act in respect of a primary offence; or
(b) is or was, as a result of a conviction, subject to an order or obligation under this or another Act of Parliament to comply with the Sex Offender Information Registration Act.
Order — other circumstances
(3) Subject to subsection (5), when a court imposes a sentence on a person for a designated offence in circumstances in which neither subsection (1) nor (2) applies, or when the court renders a verdict of not criminally responsible on account of mental disorder for a designated offence, it shall make an order in Form 52 requiring the person to comply with the Sex Offender Information Registration Act unless the court is satisfied the person has established that
(a) there would be no connection between making the order and the purpose of helping police services prevent or investigate crimes of a sexual nature by requiring the registration of information relating to sex offenders under that Act; or
(b) the impact of the order on the person, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under that Act.
Factors
(4) In determining whether to make an order under subsection (3) in respect of a person, the court shall consider
(a) the nature and seriousness of the designated offence;
(b) the victim’s age and other personal characteristics;
(c) the nature and circumstances of the relationship between the person and the victim;
(d) the personal characteristics and circumstances of the person;
(e) the person’s criminal history, including the age at which they previously committed any offence and the length of time for which they have been at liberty without committing an offence;
(f) the opinions of experts who have examined the person; and
(g) any other factors that the court considers relevant.
Limitation — secondary offences
(5) A court shall make an order under any of subsections (1) to (3) in respect of a secondary offence only if the prosecutor applies for the order and establishes beyond a reasonable doubt that the person committed the secondary offence with the intent to commit a primary offence.
91In this case, defence counsel has brought an application that JG be exempted from compliance with SOIRA on the basis of that, as set out in the section 21 report and in the letter from the accused’s new partner, he is not at risk of reoffence.
92The Crown declined to make submissions.
93Because the victim is not under the age of 18, the Order is not mandatory which brings the factors in subsection 4 into play. I find that this is a serious offence committed against the offender’s intimate partner, a person whom the offender was in a position of trust toward. She was vulnerable in that she was not strong enough to repel the offender.
94I find that the offender has a positive background. Based on the evidence before me, I find that he is unlikely to reoffend. He has no prior criminal record. He has been at liberty since he was charged without reoffence. He has good community support that will be waiting for him when he is released from the penitentiary.
95Given his low risk of reoffence, I find that requiring JG to comply with SOIRA will not assist the police in preventing and investigating sexual offences. I find that requiring him to comply – and face prosecution if he fails to do so – would be grossly disproportionate to the public interest in having him register.
96Accordingly, I decline to make this Order.
Released: January 19, 2024 Signed: Justice J.R. Richardson
