R. v. Hall, 2025 ONCJ 44

R. v. Hall, 2025 ONCJ 44

DATE: January 17, 2025
ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
DANIEL HALL

Before Justice B. Green
Reasons for Sentence January 17, 2025

Counsel:
Mr. G. Jarrar — counsel for the Crown
Mr. J. Lisowski — counsel for the defendant Mr. Hall

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

A. Introduction

1On December 31, 2022, Mr. Hall and the victim, Ms. R.C., met on an online dating site. After chatting throughout the day, they agreed to meet and spend New Year’s Eve together. Ms. R.C. was unequivocal, before meeting him, that she was not interested in a sexual encounter. Mr. Hall had a young daughter. Ms. R.C. did not want him to leave her alone so she agreed to meet him at his home. The fact that Mr. Hall’s child was sleeping upstairs gave Ms. R.C. a sense of safety. She attended his home with the intention of getting to know each other better.

2Despite Ms. R.C.’s clear expressions that she was not interested in a sexual encounter of any kind, Mr. Hall quickly made sexual advances which she rebuffed repeatedly. Mr. Hall was undeterred by Ms. R.C.’s protests, pleading and ultimately her tears. He violently sexually assaulted her. He violated her orally and then forcefully penetrated her vaginally and anally without using any protection. He also bit her breast and struck her across the face. Ms. R.C. was finally able to escape by talking her way out of Mr. Hall’s home. The next day a battered and bruised Ms. R.C. attended the hospital for an examination and reported to the police the crimes that had been committed by Mr. Hall the night before.

3Mr. Hall was arrested and charged with sexually assaulting and assaulting Ms. R.C. He pled not guilty, and the matter proceeded to trial over a period of two days. Mr. Hall was convicted of both counts.

4Ms. R.C. was a thoughtful and credible witness. It was obvious that recounting these events was particularly difficult for her, but she persevered through a challenging cross-examination which included degrading suggestions that she was the sexual aggressor. In stark contrast, Mr. Hall provided an unbelievable account while trying to shift blame to the victim. Mr. Hall’s descriptions of a wanton woman who was focussed entirely on her own pleasure were obviously fictitious, if not ridiculous when considered within the context of the evidence as a whole.

5Mr. Hall’s denials of responsibility during the trial and to the probation officer who prepared the presentence report cannot be aggravating factors. However, there is an absence of significantly mitigating factors. In addition, Mr. Hall’s justifications of his shocking misconduct, which bordered on suggesting that Ms. R.C. deserved what happened to her, cause me significant concerns about the risks that he poses to other vulnerable women in the future. It is doubtful that he will sincerely invest in any rehabilitative programs to address his deviant attitude of entitlement to disregard a woman’s sexual autonomy and her dignity.

6The crown emphasized the shocking circumstances of the offence. Mr. Hall sexually violated Ms. R.C. in various ways without using protection which exposed her to risks of additional harm. He engaged in gratuitous violence causing injuries to her. The victim has suffered lasting trauma. This event has detrimentally impacted every aspect of her life. The crown forcefully submitted that the fit sentence is a period of incarceration of 5 years in the penitentiary to be followed by a SOIRA order of 20 years, DNA, and a weapons prohibition.

7In contrast, counsel focussed on the circumstances of the offender. He highlighted Mr. Hall’s very difficult upbringing and the lack of any criminal antecedents at the time of this offence. He is successfully self-employed. Once incarcerated, he will lose the business that he worked to build on his own. Mr. Hall enjoys the ongoing support of his new partner and his lifelong best friend who both spoke highly of him. Mr. Hall is the single parent of an 11-year-old child who will suffer the loss of her father while he is incarcerated for this offence. The realization that Mr. Hall will be absent from his daughter’s life understandably causes him pain and sadness.

8To reflect the collateral consequences of this conviction and the mitigating factors, Counsel urged me to grant his client a sentence at the lower end of the range for these types of offences of 3½ years incarceration. Counsel opposed the imposition of a SOIRA order because it would be disproportionately punitive for this offender. He also opposed the imposition of a peace bond that would give the victim a sense of safety.

9Since the Supreme Court of Canada’s watershed decision in R. v. Friesen, 2020 SCC 9, the sentences for sexual offences have been increasing across Canada. The range relied on by both the crown and counsel for this type of offence is 3 to 5 years. Nevertheless, that range is not a straitjacket that binds me to stay within it. Despite the mitigating factors, the impact on Mr. Hall’s daughter and his business, and the lack of any criminal record at the time of this offence, I agree with the crown that the circumstances of these offences demand a significant penitentiary sentence.

10The issues to be decided are the total length of the sentence of incarceration and whether the ancillary SOIRA order is disproportionately punitive in the unique circumstances of this offence and this offender. Finally, I invited further submissions from counsel and the crown about the imposition of a common law peace bond to provide a very traumatized victim with the sense of safety that she is requesting from the court.

B. Facts

i. Circumstances of the offence

11Ms. R.C. went to Mr. Hall’s home in the hopes of amicably ringing in the new year with a new friend. Instead, she was subjected to violent and relentless sexual assaults and assaults.

12Contrary to Mr. Hall’s deluded beliefs that Ms. R.C. wanted or invited his attention, there was absolutely nothing in Ms. R.C.’s conduct that would have communicated to Mr. Hall that she was a willing participant or that she was consenting in any way at all. She told him before she met him that she was not interested in a sexual encounter. Once she arrived at his home, every step of the way, Ms. R.C. repeated that she did not want any sexual contact. She asked him to stop and/or told him no and that she did not want him to touch her.

13Ms. R.C. initially and briefly reciprocated Mr. Hall’s insistent advances by kissing him back. However, he became even more aggressive and began biting her mouth. From that point onwards, Mr. Hall callously ignored Ms. R.C.’s pleas to stop and that she did not want to have any intimate contact with him whatsoever. She was crying throughout most of his attacks.

14The crown proved beyond a reasonable doubt that:

• Mr. Hall initiated each physical occurrence of kissing despite Ms. R.C.’s objections. He became increasingly physically aggressive with Ms. R.C. including biting her mouth which caused her pain. She consistently told him to stop and unequivocally communicated that she was not consenting to any sexual contact.
• While Ms. R.C. struggled with Mr. Hall, he overpowered her. He forcibly removed her pants and underwear. There are photos of abrasions to her pelvic area. He performed oral sex on her vagina over her objections.
• Ms. R.C. repeated that she needed to go home and that she wanted him to stop it. At one point she recalled him making demeaning remarks to her like "just be a good little bitch and it will be done" (p. 27 July 17). He made these types of comments throughout her ordeal whenever she would say no, struggle or try to squirm away from him (p. 53 July 17). She believed that if she stopped resisting him, it would be “done faster”.
• Ms. R.C. lost her concept of time while she was being attacked. She could not reliably recall how long each event lasted because it seemed like forever in her mind. Just as suddenly as he started, he stopped performing oral sex and repositioned her legs. He got more upright and positioned his body between her legs. He pulled down the front of his pants and penetrated her vagina with his penis without a condom. At this point, Ms. R.C. was overwhelmed by what he was doing to her. She emotionally checked out and stopped talking to him. She recalled him putting his hands on her shoulders and arms so that she was bearing the weight of his body. She could not move away from him.
• Ms. R.C. provided additional details of what Mr. Hall was doing while penetrating her. He reached under her shirt to grope and fondle her breasts. At one point, he even bit one of her breasts. The bite was so forceful that it broke the skin and left a very distinctive bruise. A photograph was tendered of an oval shaped bruise, separated in half like the upper and lower teeth, on her breast.
• During the sexual assault, Ms. R.C. heard Mr. Hall’s daughter upstairs. Ms. R.C. tried to alert her by making noise in the hopes that he would finally stop hurting her. Instead of stopping the attack, Mr. Hall “backhanded” her across the face. He used quite a bit of force. She recalled that her lip began to bleed, and it was swollen afterwards. He told her to “shut the fuck up” because his daughter was going to hear her (p. 32 July 17). There were also pictures of her swollen lips with bruising on the bottom.
• Mr. Hall was very angry with her for calling out. He told her that was a “dumb choice” and he was cursing at her. He pulled himself out of her and stood up. He grabbed a hold of her and flipped her onto her stomach. He got behind her and pushed her face down into a “knitted Afghan type blanket” that was on the couch. She distinctly recalled his hands on the back of her head pushing her face down while the sexual attack continued.
• At one point, Mr. Hall briefly left the room to bring his daughter some water. Ms. R.C. was too frightened to run at that moment. Within minutes, Mr. Hall came back down the stairs, and she had not moved from the couch/loveseat. Mr. Hall pulled her to a standing position and bent her forward. He tried to shove his penis into her anus, but she was “doing everything in my power to prevent it” (p. 37 July 17). Because she was standing, she was able to move more freely, and she kept shifting around while he was behind her. She dropped her knees to the floor so he could not get his penis inside of her anus.
• Mr. Hall became increasingly angry with her resistance. He grabbed her and repositioned her face down on the couch again. He penetrated her vagina with his penis from behind her. She recalled that his hands were pressed on the back of her shoulder blades. She had to move her face sideways so she could breathe because she was being smothered by the blanket.
• Ms. R.C. explained how, after being repeatedly assaulted, she became numb. She wasn’t fighting or saying anything to him. She was crying. Mr. Hall was making comments “about me wanting it, just to be good and take it, it will be done sooner. Yeah, it will bitch" (p. 39 July 17). While he was penetrating her with his penis, he roughly thrust his fingers into her anus (p. 40 July 17). During the vaginal intercourse, Mr. Hall did not ejaculate. He blamed her for not being able to climax.
• Ms. R.C. described the unwanted vaginal sex and digital penetration of her anus with more than one finger as “extremely painful” and “very forceful”. Mr. Hall was very aggressive, “ramming” and “shoving” himself inside of her. (p. 40-41 July 17). Mr. Hall was exerting himself so much that he became out of breath.
• Mr. Hall forcefully controlled Ms. R.C.’s movements and engaged in a series of progressively non-consensual, invasive, sexual acts including forced vaginal penetration with his penis, attempted anal penetration with his penis and painful digital penetration of her anus with more than one finger. Ms. R.C.’s crying and pleas fell on deaf ears.
• Throughout these acts of degradation, Mr. Hall projected blame on to Ms. R.C. by accusing her of flirting with him, wanting it or inviting him to do these things with her eyes.
• The attacks only stopped because of Mr. Hall’s compromised breathing, and he could not continue exerting himself. Ms. R.C. made up a convincing story to get out of the house. As she walked towards the front door to put her shoes on, Mr. Hall shoved his hand down the back of her pants and penetrated her anally with his fingers again. He excused his behaviour stating that he was a “freak” and, frighteningly, that he liked “that kind of thing”. Ms. R.C. retreated from his home but he followed her outside. She was able to drive away.
• There were photographs tendered as exhibits of Ms. R.C.’s injuries. Her lips were swollen and split from where they had been bleeding. There was some visible discolouration or bruising above and below the corner of her mouth as well as on the inside of her lip. Ms. R.C. believed the injuries to her lip were from being bitten and slapped by Mr. Hall. There was also a photograph of a semi-circular bruise on her breast from when Mr. Hall bit her breast. There were bruises on her wrist and arm from being restrained by him. She had a cut or tear on her skin and red marks around her pelvis. She could not recall how she sustained those injuries other than being aggressively handled by Mr. Hall.
• Mr. Hall was so forceful while penetrating Ms. R.C. that it caused her to bleed from her vagina and anus for days afterwards. For a significant period after the sexual assaults, Ms. R.C. was in pain. Her lips hurt and the bruises were tender. All the muscles in her body hurt, she described it as feeling like she had been “hit by a truck”. Her groin and pelvis were quite painful. It hurt to sit in certain positions.

15Ms. R.C. endured relentless, painful, and progressively invasive sexual assaults. Mr. Hall bit her, hit her and demeaned her by referring to her as a “bitch” who wanted what he was doing to her. He projected blame for his misconduct on her during the attacks and during the trial. He testified that she was giving him “signals” with her eyes even though she did not communicate her consent in words. He engaged in extensive victim blaming.

ii. Victim impact

16In R. v. Bertrand Marchand, 2023 SCC 26 at paras 30 and 31 the Supreme Court reiterated that more punitive sentences are necessary to reflect the enduring harm caused by sexual offences:

Friesen recognized that the focus of the legislative scheme of sexual offences against children has shifted to protect a child's personal autonomy, bodily integrity, sexual integrity, dignity and equality. The Court outlined how sexual offences against children produce profound physical and psychological harms to the most vulnerable members of our society. It was deeply concerned with how the sexual assault of children may produce shame, embarrassment, unresolved anger, a reduced ability to trust and fear that other people would also abuse them (Friesen, at para. 57). It set out the disproportionate impact of violence on girls, women, Indigenous persons and other vulnerable groups.
Friesen sends the clear message that sentences for these crimes must account for the far-reaching and ongoing damage sexual violence causes to children, families and society at large, which may take many years to manifest. Consequently, sentences for offences involving sexual violence against children must generally increase to reflect society's modern understanding of such offences and Parliament's choice to increase the sentences associated with these crimes (paras. 3-5). [citations omitted]

17The concern about the devastating impact of these offences applies to adult victims as well. Mr. Hall’s crime has negatively impacted every aspect of Ms. R.C.’s life. She detailed in her victim impact statement the suffering that she endured over the past few years since the date of this offence. While she healed from her physical injuries, Ms. R.C. is emotionally and mentally scarred and she is unable to work or function like she did before these offences. She has also been economically disadvantaged because of the costs of therapy, medication and lost work. Ms. R.C. explained that:

I have zero trust in men, I have nightmares STILL, I take Ativan like candy STILL. I get anxious in crowds and large events. I hate myself and my body still. I don’t know when or if I will stop these things.
Maybe it is the 5 new prescriptions I am now on daily to combat my anxiety, depression, nightmares, PTSD meds. I could add up the last 2 years’ worth of meds, that would be in the thousands as 2 of them are over $100 each. And who knows how long that regiment will need to continue.
What about the thousands I have had to spend on therapy & continue to?
What about the 3 times I’ve moved because I don’t feel safe or feel like he can find me.
Maybe it is the 2 years of loss wages? I can give you that number too $60,192.
Honestly, nothing he gets will be justified or satisfactory to me. He is still no matter what he gets, will be less time than what I have and will continue to suffer from this. This trial and whole thing has stripped me right down. Bared me naked and stripped all dignity and embarrassed me.

18There are many reasons why pleas of guilty substantially mitigate a sentence for sexual offences. One of those reasons is that this process exacerbates the victim’s suffering and trauma. Ms. R.C. had to relive the most degrading, horrifying moments of her life and then be subject to cross-examination that suggested she was responsible for what happened to her that night. I do not say this to fault counsel for fulfilling his ethical and professional obligations. Rather, it highlights why defendants who admit responsibility and spare the victims the added shame and embarrassment of publicly recounting their humiliation and abuse are deserving of lesser penalties.

19It is essential to try to break this ongoing cycle of sexual violence by predators of the vulnerable through consistently denunciatory and deterrent sentences in the hopes that it will help to protect members of our communities and prevent similar offences.

iii. Circumstances of the offender

20There was a fulsome presentence report that was filed as an exhibit. It provided a lot of information about Mr. Hall’s background.

21Mr. Hall had a tumultuous upbringing. While his parents were together, he witnessed domestic abuse and he suffered physical abuse at the hands of his father. After his father left his mother, Mr. Hall had a difficult relationship with his mother. As a result, he eventually went to live with his father and, when that didn’t work out, he went to live with his grandfather. He had a good relationship with his grandfather who was described as a positive influence. Mr. Hall’s mother passed away when he was in his late teens. He currently has no contact with his father. He maintains relationships with his siblings.

22As a result of Mr. Hall’s childhood instability and other issues, he had difficulties in school. He completed grade 10 in high school but then he dropped out. He focussed on gaining employment experience working in the trades and manual labour. He is currently self-employed as a roofing contractor which is seasonal work. His best friend and former coworker described Mr. Hall as a “hard worker, with good work ethic” and he “has only witnessed prosocial relationships with other employees when they worked together on job sites”. Once incarcerated, Mr. Hall will lose the business that he spent years building up and his current contracts.

23Mr. Hall had three long term relationships. He has full custody of his 11-year-old daughter from a previous relationship. He recently met his current partner online in 2023 while these charges were outstanding. She moved in with him along with her two daughters. His partner was interviewed by the author of the presentence report. She described Mr. Hall as “kind, respectful and loyal”. His partner expressed shock about this offence because “sexual impropriety” is inconsistent with the man that she knows. Of course, the man that she knows was awaiting the outcome of this proceeding throughout their relationship. This woman is so committed to Mr. Hall that she will be taking care of his daughter while he is incarcerated for these offences.

24Mr. Hall’s best friend, who has known him for 25 years, explained that Mr. Hall faced life challenges because of his difficult upbringing. He also expressed to the probation officer “a strong disbelief in the subjects’ current criminal entanglement. Conveying “this just does not align with his character”.

25It is hardly surprising that his lifelong friend or the intimate partner he met after the charges were laid do not know this dark side of Mr. Hall. Unfortunately, none of his previous partners were interviewed by the probation officer. Their perspectives could have been illuminating. The only information that was provided was that one of his former partners was unsuitable to parent their child. To Mr. Hall’s credit, he volunteered that he was abusing cocaine in the past, but he stopped to gain custody of his child. In addition, he advised that his partner from 2018 to 2021 filed a restraining order against him that is not set to expire until 2026.

26Mr. Hall is entitled to maintain his innocence and that is not, in any way, an aggravating factor. Nevertheless, his mindset that he is the victim of a wrongful conviction can factor into the sentencing considerations. In the oft cited decision of R. v. Shah, 2017 ONCA 872 at para 8, the Ontario Court of Appeal explained that while the lack of a guilty plea or an expression of remorse must not be treated as aggravating factors, a Court can still consider these facts when assessing the need for specific deterrence and an offender’s potential for rehabilitation:

Lack of remorse is not ordinarily a relevant aggravating factor on sentencing. It cannot be used to punish the accused for failing to plead guilty or for having mounted a defence. Absence of remorse is a relevant factor in sentencing, however, with respect to the issues of rehabilitation and specific deterrence, in that an accused's absence of remorse may indicate a lack of insight into and a failure to accept responsibility for the crimes committed and demonstrate a substantial likelihood of future dangerousness. [citations omitted and emphasis mine]

27More recently, in R. v. Walker, 2021 ONCA 863, the Ontario Court of Appeal observed that:

In addition, in the case at bar, the thrust of the defence submission was that the appellant posed a low risk to re-offend and that a conditional sentence was fit in the circumstances. In considering that argument and the issue of future dangerousness, it was open to the trial judge to consider that the appellant did not appear to understand the seriousness of the offences. [emphasis mine]

28I acknowledge that Mr. Hall has the support of his best friend and a partner who speak highly of him. Nevertheless, I am guided by the directions of the Supreme Court of Canada in R. v. Profit, [1993] S.C.R. 637 that:

The reasons of the trial judge must be viewed in light of the fact that as a matter of common sense, but not as a principle of law, a trial judge may take into account that in sexual assault cases involving children, sexual misconduct occurs in private and in most cases will not be reflected in the reputation in the community of the accused for morality. As a matter of weight, the trial judge is entitled to find that the propensity value of character evidence as to morality is diminished in such cases. [emphasis mine]

29Similarly, in R. v. K.M., 2017 ONSC 2690, Justice Edwards reiterated that:

Sexual offences are, by their very nature, generally perpetrated in private. It is largely for that reason that many cases of sexual assault are characterized as a "he said, she said" type of case. The Supreme Court of Canada has made it quite clear that the good community reputation of an accused has little probative value in the overall assessment of an appropriate sentence in a case of sexual assault. [emphasis mine]

30There are enumerable sentencing decisions, across Canada, with offenders of supposedly stellar character and/or no criminal records, committing inexcusable acts of depravity, violence and/or sexual abuse. Abusers who commit inexplicable acts of sexual violence but maintain positive relationships with other partners. Generations of children, women and men, the socioeconomically disadvantaged and the vulnerable have fallen prey to these offenders who are secretly sexual predators. When victims like Ms. R.C. find the strength or have the means to report their abuse, their abusers often hide behind carefully constructed façades of respectability to avoid being held accountable for their actions. Mr. Hall is no exception.

31Glowing character references cannot be an aggravating factor. His friends and partner are entitled not to believe that someone they love committed such heinous acts of sexual violence. However, their comments highlight the absence of some important mitigating factors. As noted, I have substantial concerns about Mr. Hall’s potential for rehabilitation especially when his support system does not believe that he committed these crimes.

32Mr. Hall preyed on Ms. R.C.’s vulnerabilities and brutalized her while his daughter was a flight of stairs away from them. Absent any acceptance of responsibility or expressed insight, it is unlikely that he will seek or meaningfully participate in any treatment for the issues that precipitated the offending behaviour. He certainly has unresolved issues with his mother that he needs to address. Accordingly, I am concerned that there is a risk for recidivism.

33Mr. Hall is 39 years old. He had no criminal record at the time of this offence, but he was convicted of an assault and a breach of undertaking while this charge was outstanding. He was sentenced to a period of imprisonment of 45 days to be served intermittently and a period of 18 months of probation. He has been complying with the terms of his probation order. His record is not an aggravating factor, but he also cannot assert that he is a first offender before more than one court. One way or the other, the principle of restraint will apply considering this will be his first penitentiary sentence.

34In summary, Mr. Hall had a difficult childhood and suffered alienation from his mother and his father. While he did not complete high school, that was attributable to his early life challenges. He has a positive work history in the trades. He is not struggling with any mental health issues or substance abuse. Mr. Hall is a single parent who supports his family through his own seasonal business. His daughter’s life will undoubtedly be upended while her father is incarcerated as well as after he is released from custody and struggles to rebuild his business.

35Despite alcohol being involved in this offence, Mr. Hall continues to consume alcohol casually. He denies that he has an alcohol problem. He denied that he was drinking heavily that night. There are no factors that would attenuate his moral culpability for this offence.

C. Sentencing principles and law

i. Principles of sentencing

36The fundamental purpose of sentencing is 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 acknowledgment of the harm done to victims and to the community.

37Section 718 of the Criminal Code provides that any sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. As a result, depending on the circumstances of the offence and the circumstances of the offender, a Court may focus on specific principles of sentencing as the most important factors to guide the Court’s decision.

38Unquestionably, the predominant sentencing principles in sexual assault cases with vulnerable victims are general deterrence and denunciation. The Criminal Code was amended to reiterate the primary importance of these sentencing principles:

Objectives — offence against vulnerable person
718.04 When a Court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances — including because the person is Aboriginal and female — the Court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence. [emphasis mine]

39Ms. R.C. trusted Mr. Hall’s assurances that he respected her choice not to engage in any sexual relations. She was vulnerable because of her naivety, gender, and size difference. Mr. Hall was able to overpower her and force himself upon her.

40In addition, section 718.2 of the Criminal Code specifically directs that a Court “shall also take into consideration”, when sentencing Mr. Hall, the following statutorily aggravating factor:

(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.

41Ms. R.C. was physically injured because of the forcefulness and violence of this attack. She was and continues to be emotionally and psychologically devastated by these offences. She has lost an incalculable amount of money in wages, paying for therapists and medication costs. She is so afraid of him that she relocated her home. Significant victim impact is an understatement.

42The predominant principles of sentencing are denunciation and deterrence, both specific and general. Of course, rehabilitation remains an important goal with any sentencing particularly in a case involving a person with no criminal record prior to the offence.

ii. Collateral consequences of a custodial sentence

43Before addressing the principle of restraint and reviewing other sentencing precedents, I will address counsel’s submission that the impact of a custodial sentence on Mr. Hall’s daughter is an exceptional circumstance that should factor into the determination of the appropriate sanction.

44The Supreme Court of Canada in R. v. Suter, 2018 SCC 34 at para 46, recognised that the collateral consequences of a crime may attenuate the overall sentence. This ensures proportionality by “taking into account all relevant circumstances related to the offence and the offender”. The court cited a sentencing text at para 47:

There is no rigid formula for taking collateral consequences into account. They may flow from the length of sentence, or from the conviction itself… [citations omitted] In his text The Law of Sentencing (2001), Professor Allan Manson notes that they may also flow from the very act of committing the offence:
As a result of the commission of an offence, the offender may suffer physical, emotional, social, or financial consequences. While not punishment in the true sense of pains or burdens imposed by the state after a finding of guilt, they are often considered in mitigation. [Emphasis added; p. 136.]
I agree with Professor Manson's observation, much as it constitutes an incremental extension of this Court's characterization of collateral consequences in Pham. In my view, a collateral consequence includes any consequence arising from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence, that impacts the offender. [emphasis mine]

45The Supreme Court went on to explain at para. 48 that these unique considerations are part of the circumstances of the offender:

Though collateral consequences are not necessarily "aggravating" or "mitigating" factors under s. 718.2 (a) of the Criminal Code - as they do not relate to the gravity of the offence or the level of responsibility of the offender - they nevertheless speak to the "personal circumstances of the offender" (Pham, at para. 11). The relevance of collateral consequences stems, in part, from the application of the sentencing principles of individualization and parity: ibid.; s. 718.2(b) of the Criminal Code. The question is not whether collateral consequences diminish the offender's moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances. Like offenders should be treated alike, and collateral consequences may mean that an offender is no longer "like" the others, rendering a given sentence unfit. [emphasis mine]

46Justice Moldaver, writing on behalf of the majority, explained that there are limitations. When the collateral consequences are so directly linked to the circumstances of the offence “as to be almost inevitable”, the mitigating impact or attenuation of the sentence is substantially diminished: Suter, supra, at paras 49 and 50. Furthermore, it is essential that these consequences are not “used to reduce a sentence to a point where the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender”: R. v. Suter, supra at para. 56.

47It was entirely foreseeable that Mr. Hall’s daughter would lose the continued presence in her life of her only custodial parent when he committed such egregious offences. He made the informed choice to risk his daughter’s stability and happiness by engaging in these crimes, especially when these events occurred in the home that he shared with his daughter.

48The Ontario Court of Appeal recently reiterated in R. v. Habid, 2024 ONCA 830 at 42 and 43 that the impact of incarceration on an offender’s family is a relevant consideration but it must not overwhelm the sentencing considerations:

As recognized in R. v. Spencer (2004), 72 O.R. (3d) 47 (C.A.), at para. 46, leave to appeal refused, [2005] S.C.C.A. No. 4, it is an unfortunate reality that sentencing defendants to prison often harms their families. Family members are deprived of the defendant's love and care and suffer the emotional pain of separation. They must often assume the added burdens of the breadwinning and caregiving responsibilities that the defendant formerly performed. Further, they may suffer financial hardship, educational deprivation, and even the loss of the family residence. As well, being unable to care and provide for their families increases the severity of incarceration for defendants.
The courts have been careful not to let these consequences overwhelm the other principles of sentencing. As emphasized in Spencer, these consequences are not an excuse to overlook the harm that the defendant's criminal conduct caused victims of crime, or the importance of protecting those victims and society, or the need for denunciation and deterrence. Likewise, family separation may have a reduced impact on the sentence if its effects on defendants and their families are less strong. Further, these consequences cannot justify imposing a disproportionate sentence. Thus, this court has sometimes imposed or affirmed significant prison sentences to respect the other principles of sentencing even after accounting for family separation consequences. [extensive citations omitted]

49It is unfortunate that an innocent child will suffer because of her father’s misdeeds. The collateral consequences are relevant considerations in the sense that the period of incarceration will be more punitive for Mr. Hall. Nevertheless, the impact on Mr. Hall’s daughter and the loss of his business cannot justify imposing a disproportionate sentence for these offences in these circumstances.

iii. Principle of restraint

50Sentencing is a delicate balancing act of competing considerations to achieve a just disposition. Courts in Canada have been unequivocal that the lack of criminal antecedents should weigh very heavily in terms of tipping the scales towards a more lenient sentence.

51Except for very serious offences or crimes of violence, the primary objectives when sentencing a first offender are considerations of individual deterrence and rehabilitation. Please see: R. v. Stein, 1974 ONCA 1615. These objectives are best achieved by non-custodial sentences. This principle of restraint was codified in section 718.2 of the Criminal Code:

(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 and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

52There are some offences, like violent rapes, that are so serious that the paramount principles of denunciation and deterrence demand a lengthy custodial sentence despite a lack of criminal antecedents at the time of the offence. The Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64 explained:

The more serious the crime and its consequences, or the greater the offender's degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime's consequences, but also on the moral blameworthiness of the offender. Determining a proportionate sentence is a delicate task. As I mentioned above, both sentences that are too lenient and sentences that are too harsh can undermine public confidence in the administration of justice.

53This offence is so deplorable that a custodial term is essential to achieve the principles of sentencing. Of course, even with serious offences, the sentences meted out for “first offenders” must be the shortest term of imprisonment that achieves the predominant sentencing principles. I observe, however, that Mr. Hall had the benefit of being treated as a “first offender” when he received his last sentence. While his subsequent convictions cannot be an aggravating factor, he cannot receive the benefit of being treated as a “first offender” again at this sentencing because his convictions are out of sequence. The subsequent convictions can be relied on as “evidence of the character or rehabilitative potential of the accused” or lack thereof: R. v. Wilson, 2020 ONCA 3 at paras 61 and 67.

54It must be emphasized, regardless of an offender’s record, that parliament has directed that a court “shall” give primary consideration to the objectives of denunciation and deterrence when the victim is “a person who is vulnerable because of personal circumstances”.

55It would be an error in principle to fail to give “primary” consideration to these objectives by unduly focussing on the offender’s mitigating factors and the impact that a custodial sentence will have on him. In R. v. B.M., 2023 ONCA 224 at paras 14 to 16, the Ontario Court of Appeal considered the similar section 718.01 of the Criminal Code and emphasized the Court’s obligation to give “primary consideration” to deterrence and denunciation:

The court emphasized in Friesen that the expression "primary consideration" in s. 718.01 prescribes a relative ordering of sentencing objectives that is absent from the general list of six objectives in s. 718(a) through (f) of the Code: at para. 102. At para. 104, the court went on:
Section 718.01 thus qualifies this Court's previous direction that it is for the sentencing judge to determine which sentencing objective or objectives are to be prioritized. Where Parliament has indicated which sentencing objectives are to receive priority in certain cases, the sentencing judge's discretion is thereby limited, such that it is no longer open to the judge to elevate other sentencing objectives to an equal or higher priority. However, while s. 718.01 requires that deterrence and denunciation have priority, nonetheless, the sentencing judge retains discretion to accord significant weight to other factors (including rehabilitation and Gladue factors) in exercising discretion in arriving at a fit sentence, in accordance with the overall principle of proportionality. [Emphasis added.]
The sentencing judge erred by failing to adhere to this clear sentencing principle. The reasons for sentence reveal an erroneous reordering of sentencing principles in a way that clearly conflicts with s. 718.01 of the Code and the Supreme Court's admonition that it does not fall to judges to reorder what Parliament has already ordered.

56Similarly, in R. v. Bertrand Marchand, 2023 SCC 26, the Supreme Court reviewed an identically worded section and highlighted that Parliament has specifically limited judicial discretion for these offences:

Parliament has specifically indicated that in sentencing offences involving abuse of children, including child luring, the objectives of denunciation and deterrence must be given primary consideration or "une attention particulière" (Friesen, at para. 101; Criminal Code, s. 718.01). Section 718.01's open textured language limits judicial discretion by giving priority to these objectives, but their primary importance does not exclude consideration of other sentencing objectives, including rehabilitation (Rayo, at paras. 102-8). The judge can accord significant weight to other factors, but cannot give them precedence or equivalency.

57When balancing competing sentencing considerations in a sexual assault case, there is a statutorily prescribed weight on one side of the scale to ensure that jurists prioritize denunciation and deterrence. This is not to say that the competing considerations are irrelevant, rather, they ought not predominate a court’s deliberations. As a result, the precedential import of more dated decisions must be cautiously viewed through the lens of more recent developments in the law.

58Considering the aggravating factors and the mitigating considerations as well as the principle of restraint, the sentence of 3½ years that was advocated by counsel, would not adequately address the primary principles of deterrence and denunciation. Frankly, it would be woefully inadequate. I adopt the language of the Ontario Court of Appeal in R. v. Macintyer-Syrette, 2018 ONCA 706 at para. 21 that:

This offence requires denunciation, as an affirmation of the dignity of the complainant, and no appropriate sentencing proposal or sanction, short of a custodial disposition, appears to be available. [emphasis mine]

59A very strong message must be sent to Mr. Hall, to the public and to likeminded offenders that a heavy price will be paid by anyone who sexually assaults a vulnerable victim. Sentences must unequivocally communicate that these offences will not be tolerated or condoned by our courts. As the Supreme Court stated in Friesen, supra, at para 45:

The criminal law in general and sentencing law specifically are important mechanisms that Parliament has chosen to employ to protect children from sexual violence, to hold perpetrators accountable, and to communicate the wrongfulness of sexual violence against children. It is our duty to give Parliament's sentencing initiatives their full effect.

60The principles enunciated in the Friesen decision apply equally to other sexual offences with vulnerable victims. In R. v. R.S., 2023 ONCA 608 at paras 28 and 29, the Court underscored that:

Time and again, this court has emphasized the considerations that inform proportionality determinations in sexual offences, not only against children but also adults. As Trotter J.A. noted in R. v. Brown, 2020 ONCA 657, 152 O.R. (3d) 650, at para. 59:
Sexual offences raise particular considerations in the proportionality analysis. In R. v. Friesen, the Supreme Court said, at para. 75: "In particular, courts need to take into account the wrongfulness and harmfulness of sexual offences against children when applying the proportionality principle. Accurately understanding both factors is key to imposing a proportionate sentence." There is no reason to think that it does not also apply to sexual offences at large. As the Supreme Court observed"taking the harmfulness of these offences into account ensures that the sentence fully reflects the 'life-altering consequences' that can and often do flow from the sexual violence": Friesen, at para. 74. [Citation omitted.]
As Fairburn A.C.J.O. noted A.J.K., at para. 74, sexual assaults are "serious acts of violence", the victims of which "suffer profound emotional and physical harm and their lives can be forever altered.

61The sentence must be proportionate to the gravity of this offence and Mr. Hall’s sole responsibility for the commission of the crime. The need for denunciation and deterrence is so pressing that the only means to sufficiently express condemnation is with a period of incarceration in the penitentiary even after balancing the mitigating facts and considering the principle of restraint.

62Ultimately, I must sentence Mr. Hall to the shortest period of incarceration that fairly achieves all the competing sentencing objectives and reflects the seriousness of this crime as well as the mitigating facts. To arrive at a sentence that balances these opposing considerations, it is helpful to review any sentencing precedents that have considered the appropriate sentence ranges for these types of cases.

iv. The principle of parity

63In addition to these guiding sentencing principles, the principle of parity is an important consideration. It is set out in subsection 718.2 of the Criminal Code which requires that:

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

64While this is a worthy goal, each individual case is often so unique that it is difficult to achieve parity in sentencing. Ultimately, considering the unfortunately countless ways to commit a sexual assault, the distinctiveness of each offence and each offender, it is often challenging to find comparable cases. As Chief Justice Lamer stated in R. v. M. (C.A.), 1996 SCC 230, [1996] 1 S.C.R. 500 at paragraph 92:

...Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction.

65Sexual offences range from minimally intrusive momentary occurrences to horrifying facts. Offenders can be responsible, sympathetic, and apologetic or they can be recalcitrant, unrepentant recidivists. The Ontario Court of Appeal observed in R. v. E.C., 2019 ONCA 688 that:

The offence of sexual interference can be committed in any number of ways, and with varying levels of moral turpitude. The broad range of available sentences is rooted in the "infinitely variable ways in which the offence can be committed": R. v. M.B., 2013 ONCA 493, at para. 21. Within the wide range of available sentences, the court must impose an appropriate sentence - one that is proportionate to the gravity of the offence and the degree of responsibility of the offender, and, respecting the principle of parity, is proportionate to sentences imposed for similar offences committed in similar circumstances: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 53.

66Despite the myriad of ways that victims of sexual violence are unfortunately violated, there is a very clear and consistent trend in the appellate authorities that the sentence range must increase. Appellate courts have been clear that sexual violence must be denounced and deterred in a manner that is intended to stop this seemingly endless cycle of violence. Modern sentences must reflect the egregious nature of these offences and our present understanding of the impact on the victims.

67The Supreme Court was unequivocal in R. v. Friesen, supra, that sentences must increase to reflect that “our understanding of the profound physical and psychological harm that all victims of sexual assault experience has deepened”. While the Supreme Court declined to set a specific sentence range for sexual violence, they emphasized at para 114 that:

Nonetheless, it is incumbent on us to provide an overall message that is clear (D. (D.), at paras. 34 and 45). That message is that mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances. We would add that substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim, as in this case, Woodward, and L.M. In addition, as this Court recognized in L.M., maximum sentences should not be reserved for the "abstract case of the worst crime committed in the worst circumstances" (para. 22). Instead, a maximum sentence should be imposed whenever the circumstances warrant it (para. 20). [emphasis mine]

68The Supreme Court deferred to the Provincial Courts of Appeal to set sentencing ranges at para. 106:

We would decline the Crown's invitation to create a national starting point or sentencing range for sexual offences against children. Generally speaking, this Court is reluctant to pronounce on the specific length of sentence. The appropriate length and the setting of sentencing ranges or starting points are best left to provincial appellate courts.

69Since this direction in Friesen, the Ontario Court of Appeal has consistently and repeatedly reiterated that the appropriate range of sentence for the sexual violation of a vulnerable person by an adult is between 3 to 5 years of incarceration:

• R. v. A.J.K., 2022 ONCA 487 at para 77: Although the facts were different, the majority of the Court of Appeal made the following oft-cited guiding remarks:

  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.

• R. v. Henry, 2022 ONCA 191: The appellant met the victim online and they went on a date. He sexual assaulted her, including acts of forced fellatio and vaginal intercourse. The appellant's behavior towards the complainant was described as “demeaning”. The Court of Appeal found that “the trial judge correctly identified the range of sentence for this offence as being between three and five years”. The sentence of 3½ years was upheld.

• R. v. R.S., 2023 ONCA 608: The defendant sexually assaulted and attacked the victim in her own apartment. They were previously involved in an intimate relationship. The victim was stripped, her tampon removed, and she was digitally penetrated. The court repeated that “denunciation and deterrence are primary considerations on sentencing in cases of serious sexual assault”. Despite various mitigating considerations, the Court of Appeal overturned a sentence of 90 days intermittent with a conditional sentence and probation:

  40 As I have said, this was a serious sexual assault. The Crown accepts, and I agree, that this was a case in which R.S.'s moral culpability could rightly be considered to be reduced by his background, but not to the extent that the sentencing judge concluded. This was a case in which nothing less than a term of imprisonment was appropriate. Taking into account all of the aggravating factors, mitigating factors, and the Gladue factors, a proportionate global sentence for the sexual assault and choking offences was at the lower end of the 3 to 5-year range - a penitentiary term of 3 years.

• R. v. S.W., 2024 ONCA 173: The Court of Appeal was emphatic that the absence of certain aggravating factors does not justify a sentence below the range of 3 to 5 years, but additional violence may justify a sentence beyond the range:

  39 Notably, the three to five year range comes from Bradley, which did not involve any additional violence, beyond the violence inherent in non-consensual sexual intercourse. Moreover, as this court described in A.J.K., non-consensual sexual intercourse is inherently violent. Added violence may justify additional or different charges, for example under s. 272 (sexual assault with a weapon or causing bodily harm) or s. 273 (aggravated sexual assault) of the Criminal Code. Added violence may also be an aggravating factor that would justify a sentence at the higher end of the range or, in appropriate circumstances, beyond the higher end of the range. However, the use of the word "forced" in A.J.K. should not be taken to mean anything more than a reference to the fact the sexual assault was non-consensual. [emphasis mine]

70Counsel relied on a series of appellate decisions to support a sentence at the bottom end of the applicable range.

71I will not review R. v. P.M., 2022 ONCA 408, because the sentence reflected the trial judge’s concerns about the appropriate range of penalty for intimate partner as opposed to stranger violence. This conflict has since been resolved in more recent decisions. Similarly, in R. v. Ruelas, 2022 ONCA 262, the Court of Appeal upheld a 3½ year sentence imposed by the trial judge as “entirely fit” even though the offender had good rehabilitative prospects, completed some counselling, and had engaged in a risk assessment. None of these mitigating factors are present in this case. Moreover, the trial judge did not have the benefit of the reasons in R. v. A.J.K. supra or more recent cases and the sentence was reflective of the crown’s position.

72In R. v. C.P., 2024 ONCA 783, the offender had an “unblemished record”, strong community ties and he was prepared to pay $10,000 in restitution to the victim. The trial court sentenced him to a conditional sentence. The Court of Appeal found the sentence to be unfit and observed that:

35 the trial judge went on to incorrectly state that certain other factors, including the fact that this was not a planned offence and that C.P. did not ply the complainant with alcohol or use a weapon, mitigated the seriousness of the offence. It is an error in principle to treat the absence of an aggravating factor, including the absence of gratuitous violence in a sexual assault, as mitigating: see R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 150; R. v. B.M., 2008 ONCA 645, at para. 7.
36 We are not persuaded that the trial judge's mischaracterization of some of the circumstances of the offence and the offender as mitigating factors, materially affected the sentence she imposed. Overall, however, we conclude that the general tenor of her reasons minimizes the seriousness of the offence. In particular, we note that, after reviewing the authorities submitted by counsel, the trial judge emphasized the facts that the appellant did not supply the complainant with alcohol, that his actions were not predatory and that the choking that occurred was not done to overcome the complainant's resistance. These comments fail to capture the very serious nature of the appellant's actions in using force to sexually assault in multiple ways a highly vulnerable sleeping and intoxicated victim.

73The only reason why the Court of Appeal did not order the offender to serve the appropriate period of incarceration in the penitentiary was because it was no longer in the interests of justice to incarcerate him.

74In R. v. M.G., 2024 ONCA 443, the facts involved an intimate partner. These cases also fall within the 3-to-5-year range. The trial judge provided detailed reasons for the lenient sentence in a reported decision, 2021 ONSC 6359. There were unusually mitigating considerations including that the offender was bound by restrictive bail terms that prohibited him from seeing his daughters for years. Mr. Hall was released on an undertaking. His liberty was not curtailed by the terms of his release. In addition, in M.G. the victim was supportive of the offender because he was the sole provider of their family. The Court of Appeal upheld a sentence at the bottom end of the range of 3 years because of these uniquely and substantially mitigating facts.

75In R. v. S.W., 2024 ONCA 173, the offender sexually assaulted his intimate partner in their bed while she pretended to be asleep. The Court of Appeal found that a conditional sentence was “manifestly unfit” and ordered a sentence of 3 years incarceration. Notably, the crown only sought a sentence of 3 years incarceration. A sentence is reflective of the positions advocated by the litigants.

76Sentencing precedents that set out recommended ranges for certain offences are intended to provide guidance as opposed to dominating the sentencing process. In R. v. Rawn, 2012 ONCA 487 at paras. 29 and 30, the Ontario Court of Appeal emphasized that:

It goes without saying that a fit sentence must be ascertained on an individual basis. It is therefore inappropriate to allow the parity principle, a principle that, by definition considers another sentence imposed on another offender, to dominate the determination of a fit sentence.
In R. v. Issa (T.) (1992), 57 O.A.C. 253, this court expressed the role of the parity principle as follows, at para. 9:
So long as sentencing remains an individual process there may be sentences meted out to offenders for participation in the same offence which are justifiably disparate. [We] think that Clayton Ruby's statement in Sentencing is correct, that the rule against unreasonable disparity in sentencing "does not require equal sentences, but only understandable sentences when examined together."

77In R. v. Kelly, 2022 ONSC 5500 at paras. 35 and 36, the Court cautioned that:

The Supreme Court of Canada has emphasized that usual ranges of sentence are neither "straitjackets" nor hard and fast rules. Rather, they are properly understood as "historical portraits for the use of sentencing judges, who must still exercise their discretion in each case": R. v. Lacasse, 2015 SCC 64 at paras. 56-60. There is no requirement for exceptional circumstances for a sentencing judge to impose a sentence outside the usual range: Friesen, at paras. 36-39; 111-112.
Thus, while ranges are relevant to the analysis, sentencing is best understood as an exercise of judicial discretion to individualize the sentence for a particular offender who committed particular offences, in a particular community. Proportionality remains the overarching objective.

78This sentence range of 3 to 5 years represents a “historical portrait” of previous sentences. It is not a portrait that has been drawn in indelible ink. Rather, that portrait will and should change as crowns advocate for longer sentences to reflect the upward trend in sentences for sexual violence and trial judges have the benefit of the guidance from more recent appellate decisions upholding higher sentences.

79The aggravating considerations of gratuitous violence, victim blaming, demeaning language, various penetrative sexual acts without protection and the victim impact justify a sentence well beyond the historical portrait for sexual offences without these additional facts. A sentence longer than the 5 years requested by the crown, would have been entirely justified in the circumstances of this case even with the mitigating considerations. Ms. R.C.’s sexual and physical integrity could not have mattered less to Mr. Hall. Mr. Hall must be deterred from future sexual violence and his crimes must be denounced in the strongest possible language.

80In 2017, years before the Court of Appeal set out the current range of 3 to 5 years, Justice O’Marra sentenced an offender with similarly aggravating considerations in R. v. Clase, 2017 ONSC 2484. The victim was choked and restrained by her assailant who raped her. After a hard struggle that left bruising on her neck, she relented only to make the violence stop.

81The offender faced deportation because of his crimes. He was 36 years old and the father of two children who his grandmother was caring for by the time of the sentencing. He had a good job and a supportive partner. He was sentenced to the upper end of the range proposed by counsel and the crown of 5 years incarceration. Almost 8 years later, with ample additional insight from the Supreme Court of Canada and the Ontario Court of Appeal, similar facts should warrant an even longer period of incarceration.

82Mr. Hall perpetrated multiple acts of sexual violence while callously disregarding the victim’s pleas for him to stop and her tears. He forced cunnilingus on her. He forced vaginal sex without protection. He attempted anal intercourse. When he was unsuccessful, he digitally penetrated the victim’s anus with more than one finger causing her considerable pain. Ms. R.C. was bitten, struck, and she was penetrated so violently that she bled from her vagina and anus for days. She has been emotionally, psychologically, and financially devastated by this offence.

83The Ontario Court of Appeal has been unwaveringly clear that the bottom end of the range of sentencing for this type of offence is, absent some exceptional circumstances, 3 years incarceration. Sentences at the lower end of the range should apply to cases in which an offender pleads guilty, demonstrates insight and sincere remorse, has significant potential for rehabilitation or has invested in counseling, there are some other uniquely or substantially mitigating considerations or the absence of certain aggravating features.

84There is nothing exceptionally mitigating about Mr. Hall’s background or his current circumstances that attenuates his moral culpability. The unintentional but entirely foreseeable impact of rendering an innocent child without the support of her only custodial parent is tragic but that is Mr. Hall’s fault. Mr. Hall cannot use the child who he risked exposing to his acts of depravity as a shield to prevent him from being held fully accountable for these offences.

85It would be a clearly unfit sentence for Mr. Hall to receive the benefit of the lower end of the range of 3½ years that was advocated for by counsel. Even after considering the principle of restraint and the mitigating factors, the crown’s position of 5 years incarceration is lenient. It must be emphasized that the upper end of the range is a glass ceiling that can and should be broken when the facts warrant a higher penalty. A sentence in the range of 6 to 7 years of incarceration would be a balanced and proportionate penalty.

86In response to my queries about ordering a sentence beyond the upper end of the range, the crown fairly and professionally stressed the principle of restraint and that there are collateral punitive impacts that should attenuate the period of incarceration considering the loss of Mr. Hall’s business and the lack of access to his child for the next few years. Upon further reflection, I also contemplated the principle of totality considering the additional orders of the S.O.I.R.A. order which will be a constant reminder for Mr. Hall of one of the consequences of being a sex offender. I considered the additional order of a lengthy common law peace bond to give the victim an added sense of safety that there is an order protecting her when Mr. Hall is ultimately released from jail.

87While I was inclined to order a sentence in excess of the crown’s position, I reviewed the decision of R. v. A.B., 2023 ONCA 254. The Court of Appeal urged caution before exceeding the crown’s position. The litigants should have a fulsome opportunity to address any concerns about the adequacy of the crown’s position. Like this case, the trial judge was sentencing a sexual offender to a period of incarceration. The crown advocated for a period of 5 years. The trial judge exceeded the crown’s position and ordered a sentence of incarceration of 7 years. Candidly, while I engaged the crown, I should have given Mr. Hall’s counsel more of an opportunity to address the possibility of exceeding the crown’s position. However, counsel’s position was very clear when he advocated for a disproportionate sentence to reflect the mitigating facts, restraint, and the collateral consequences of incarceration.

88Although the facts are distinguishable, I note that the Court of Appeal overturned the sentence of 7 years because:

50 The appellant was a first offender. Unquestionably, denunciation and deterrence were the predominant sentencing factors in this case. However, five years is a significant penitentiary sentence for a first offender. Where incarceration is required, indeed, even where a penitentiary sentence is required, the principle of restraint dictates that the sentence imposed not be longer than is necessary to achieve other sentencing goals, such as denunciation and deterrence.

89The offender in that case sexually abused his stepdaughter for years and there was significant victim impact. Nevertheless, the Court of Appeal found that “the goals of denunciation and deterrence are achieved, while also weighing the other relevant sentencing principles, by a sentence of five years imprisonment.”

90While the aggravating facts cry out for a longer period of incarceration than the top end of the range, I will reluctantly accede to the crown’s position primarily because of the principle of totality when considering the other orders that I will be imposing on Mr. Hall.

91Mr. Hall is sentenced to a period of 5 years of incarceration for the sexual assault and 6 months concurrent for the assault. This period of incarceration is consecutive to any sentence that he is currently serving. I will address the ancillary orders requested by the crown and opposed by defence.

D. Ancillary orders: SOIRA and a peace bond

92The law recently changed with respect to the imposition of SOIRA orders. Mr. Hall has been convicted of a designated offence and the crown elected to proceed by Indictment. As a result, subsection 490.012(3) of the Criminal Code applies:

490.012 (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.

93I have considered the mandatory nature of the order, the aggravating features of this serious offence and the concern that Mr. Hall lacks any insight into the seriousness of his crime. I have also considered that while this charge was outstanding, he committed an offence of violence for which he was sentenced to a period of custody even though he was considered a first offender at that time.

94The imposition of a S.O.I.R.A. order is not grossly disproportionate to the public interest in protecting vulnerable members of our society and the effective prevention or investigation of crimes of a sexual nature. Accordingly, I shall make an order for Mr. Hall to comply with a S.O.I.R.A. order for the next 20 years.

95In terms of the common law peace bond, counsel opposed the imposition of this order in addition to the other sanctions. He aptly noted that Mr. Hall has abided by the terms of his release with respect to non-communication with the victim for years. He also highlighted that Mr. Hall will face additional consequences if he breaches the terms to keep the peace and be of good behavior that exposes him unnecessarily to additional jeopardy.

96In R. v. Musoni, 2009 ONSC 12118, [2009] O.J. No. 1161 (Ont.S.C.) affirmed 2009 ONCA 829 and leave to appeal refused, Justice Durno explained that:

The determination in a common law peace bond application is whether there are grounds to conclude that the accused may breach the peace in general or in relation to a specific person. On the information before him the trial judge could make an independent determination that there were grounds to require the appellant to sign the bond.

97In this case, Ms. R.C. lives in constant fear of seeing Mr. Hall. She has moved three times because she is so afraid to bump into him even though they live far apart. While I have some degree of confidence presently that he will remain away from her based on his compliance with the bail terms, he may be a different man after he is released from this penitentiary sentence. In addition, he was recently convicted of failing to comply with terms of bail on an unrelated offence of violence while this charge was outstanding.

98At the very least, Ms. R.C. should be afforded the comfort of an ongoing sense of safety for the next 8 years. This order is not onerous. Quite the contrary, it has been factored into the overall sentence. Absent considerations of totality, I would have imposed a longer period of incarceration.

E. Conclusion

99This sentence cannot possibly undo or ameliorate the lasting emotional and psychological harm that Mr. Hall caused to Ms. R.C. nor is that the purpose of a sentence. Rather, Mr. Hall must be held proportionately accountable for the consequences of the crimes that he committed against an innocent woman. He is solely responsible for harming her. The 5-year sentence reflects the mitigating factors, the collateral consequences, and the multitude of aggravating considerations. It is intended to give primary consideration to deterring Mr. Hall from future sexual offences, deterring other would-be predators, and denouncing his crimes while still considering his potential for rehabilitation and his personal circumstances and restraint when imposing his first penitentiary sentence.

100In summary, for the sexual assault, Mr. Hall is sentenced as follows:

• He will be incarcerated for a period of 5 years or 60 months.
• There will be a peace bond in the amount of $2,500 without deposit and without surety for a period of 8 years to keep the peace and be of good behaviour and the following terms:
  • Do not contact or communicate in any way, directly or indirectly, by any physical or electronic or other means with Ms. R.C.
  • Do not be within 100 meters of any place where you know Ms. R.C. to live, work, go to school or any place that you know the person to be except for required court appearances.
  • Do not post any information about, depictions of, recordings of or photographs of Ms. R.C. on any social media site.
• Pursuant to section 743.21 of the Criminal Code, Mr. Hall is prohibited from communicating with Ms. R.C. while he is in custody.
• He will abide by a S.O.I.R.A. order for a period of 20 years.
• He is prohibited from possessing weapons or authorization pursuant to section 109 of the Criminal Code for a period of 10 years.
• He will be required to submit a sample of his D.N.A.

101There will be a concurrent sentence of 6 months incarceration for the assault since the gratuitous violence was factored into the sentence for the sexual assault. The victim fine surcharges are waived as an undue hardship.