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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
R. v. Towell, 2025 ONCJ 667
ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
MARK TOWELL
Before Justice B. Green
Heard on November 13th, 2025.
Reasons for Sentence released on December 15th, 2025.
Mr. G. Jarrar................................................................... counsel for the Crown
Ms. Owen and Mr. Goldkind............... counsel for the defendant Mr. Towell
Green J.:
A. Introduction:
1Mr. Towell was charged with various offences that arose out of his interactions with two vulnerable, transient women. The crown elected to proceed by Indictment. Mr. Towell elected to proceed to trial in the Ontario Court of Justice.
2After trial, Mr. Towell was acquitted of most counts in relation to one of the complainants, Ms. R.W., other than a breach of probation. He was convicted of sexually assaulting and assaulting a second complainant, Ms. K.D., as well as another breach of probation because of his mistreatment of both women.
3Throughout Mr. Towell’s dealings with the victims, he was bound by a probation order to keep the peace and be of good behaviour. He was not abiding by this condition by supplying these women with deadly narcotics and assaulting them with chemical scented spray from a can while they were in his home.
4The crown emphasized the multitude of aggravating factors. Mr. Towell has previous convictions for sexual and physical violence. Mr. Towell exploited the vulnerabilities of each of the victims and abused them. The crown urged me to impose a sentence in the range of six to seven years of incarceration. In addition, the crown sought various ancillary orders: a section 743.21 order prohibiting contact while in custody with the victims, a lifetime SOIRA order and a lifetime ban on possessing any weapons pursuant to section 109 of the Criminal Code.
5In contrast, counsel focussed exclusively on Mr. Towell’s personal circumstances. He suffered abuse and inhumane treatment while in custody awaiting the outcome of these proceedings. He is in the process of losing everything that he owns and earned since his release from custody in 2016. Counsel advocated for a global sentence of 18 months of incarceration to be followed by a period of probation. She did not take issue with the ancillary orders requested by the crown.
6Counsel’s position was clearly disproportionate and out of step with the current and fitting upward trend for longer sentences of incarceration for sexual offences. It was not reflective of any of the guiding sentencing precedents, Mr. Towell’s previous convictions or the aggravating factors in this case.
7I appreciate the crown’s passionate and informed submissions emphasizing the vulnerabilities of these two women. He provided ample case law to support a significant period of custody. Nevertheless, I must consider the absence of some aggravating features, the focussed and sensitive manner the trial was conducted by counsel, the collateral consequences of Mr. Towell’s choices and the principle of restraint as this will be his first penitentiary sentence.
8For the reasons that follow, I have determined that a total sentence of five years incarceration less pretrial custody is a just and proportionate sanction.
B. Aggravating facts and Victim Impact:
9The findings of fact are detailed in a written judgement. The reasons are lengthy, but they do not adequately capture the aggravating nature of Mr. Towell’s predatory crimes.
10In 2024, Mr. Towell became involved with two transient women who were struggling with drug addictions. On different dates, he enticed each woman to accompany him to his home with promises of the supply of some drugs. He falsely assured them that he would give them a safe place to stay, and he would return them to where he met them the next day.
11Once the women were in his home, he denigrated them for their addictions to fentanyl. He refused to bring them back to town. Instead, he watched as they suffered with withdrawal symptoms. Eventually, he provided them with just enough drugs to witness the cycle repeat itself.
12The first victim, Ms. R.W., was homeless when she met Mr. Towell in town. Mr. Towell was a stranger to her. They met on the street. He invited her to his rural home. He provided her with funds to purchase fentanyl. His attitude towards her suddenly changed once they returned to his home. Mr. Towell became verbally and emotionally abusive with her about her addiction to fentanyl.
13Mr. Towell eventually drove Ms. R.W. back into the city, and they parted ways. Months later, Mr. Towell met Ms. K.D. on the streets in Peterborough. They had a conversation about how difficult her life was at that time. He invited her to stay with him in Lindsay. He promised her a safe place and assured her that he would bring her back the next day. He brought her to his home and supplied her with drugs. She fell asleep and woke up naked in a bed.
14Mr. Towell knew that Ms. K.D. had no money and she was particularly vulnerable. Just like he had done with Ms. R.W., once Ms. K.D. was isolated at his rural home, he began to verbally abuse her. He expressed considerable disdain for addicts. When she woke up the next day, she pleaded with him to take her back to Peterborough. He refused to bring her home. She repeatedly told him that she would get sick without more drugs.
15Ms. K.D. went into withdrawal and became ill without access to drugs. She felt trapped with little choice but to cope with her symptoms. She laid down in bed and fell asleep. Despite her suffering, Mr. Towell woke her up with his penis in her face. He insisted on her performing oral sex on him. She repeatedly told him no, explaining that she was too sick. He was insistent. He got into bed with her and pushed her head towards his penis.
16Ms. K.D. was alone and afraid that she would get hurt by Mr. Towell. She may have performed some oral sex, but she pretended to fall asleep during the act so that he would leave her alone. He left the bed after she remained motionless.
17While Ms. K.D. was staying with Mr. Towell, he brought Ms. R.W. back to his home a second time. The three of them lived together for approximately a week or two. During that time, he periodically supplied both women with fentanyl, but he would control when and how much they consumed of it. He disparaged them even though Ms. R.W. worked around the farm and cooked for them.
18Ms. K.D. constantly pleaded with him to drive her to Peterborough but he refused her requests. She did not know anyone in Lindsay. She did not know her way around. She did not want to burden her mother with her situation.
19While they were staying with him, the women had some bizarre interactions with Mr. Towell. Both women complained that he sprayed them with an unknown substance from a can on more than one occasion. It smelled like a chemical. He would duck and hide himself and/or the container when they confronted him about what he was doing to them. They were aggrieved and annoyed by this unwanted misconduct.
20The last night they were in his home, they were cooking and one of them left a pot of grease heating up on the stove. They fell asleep. The kitchen caught on fire. Mr. Towell yelled at them. He tried to put the fire out. Ms. K.D. ran away but he pursued her. He assaulted her by forcefully dragging her by her hair back towards the kitchen. She stumbled forward so she was able to break free from his grip.
21The escalation in violence was a turning point for Ms. K.D. The two women fled the residence together. They sought assistance from a neighbour. Eventually, they walked back to town in Lindsay.
22Both victims were homeless, and Mr. Towell provided them with food and shelter. Nevertheless, I wish to be emphatically clear that there was nothing benevolent about Mr. Towell’s intentions for a variety of reasons:
a. He targeted these women. He knew from conversations with them that they were desperate, opiate addicts. There was planning and deliberation before these crimes to take advantage of their vulnerabilities.
b. Once they were isolated at his rural property, he knew it would be challenging for them to get back to the city. He adamantly refused to return Ms. K.D. He knew that she had no way to get home. She was not familiar with the area. She was helpless once she was suffering from withdrawal symptoms. She pleaded with Mr. Towell to no avail. It was ruthless and cruel.
c. Both women were traumatized by their experiences with Mr. Towell. They were in a constant cycle of the effects of their substance abuse or the symptoms of withdrawal from it which was caused by his refusal to return them to where he found them.
d. Mr. Towell expressed his disdain for both women. He demeaned them. He told them that they were an embarrassment to their parents, and it would have been better if they were never born. He didn’t offer them help. He showed them utter contempt. He was rough with both and ripped their meagre belongings.
e. The sadistic pleasure Mr. Towell derived from their suffering is evident from the sexual assault of Ms. K.D. She was sick from withdrawal and laying helpless in bed. Instead of showing her any empathy, he was aroused by her weakness and sought sexual gratification from her.
f. When Mr. Towell met Ms. R.W., he was bound by the terms of a conditional sentence. On March 11, 2024, he was convicted of assault causing bodily harm. He was sentenced to a 5-month conditional sentence to be followed by one year of probation. He was supposed to be serving a sentence of incarceration in his home. Instead, he was out trolling the streets of Lindsay for vulnerable women.
g. Obviously, the threat of incarceration had little deterrent impact on Mr. Towell. While he was supposed to be serving that sentence in his home, he was supplying deadly narcotics to a transient woman and verbally abusing her. That conditional sentence ultimately collapsed, and he spent time in custody. This explains the gap in time between picking up Ms. R.W. and picking up Ms. K.D.
h. Once he was released from custody, Mr. Towell was required by his probation order to keep the peace and be of good behaviour. Instead, once again, he was out looking for more women to bring to his isolated home. He supplied them with highly addictive and dangerous drugs, kept them isolated on his farm, and aggrieved and annoyed them by engaging in the bizarre behaviour of spraying them with a chemical substance.
i. He sexually assaulted and assaulted Ms. K.D. while he was on probation for a recent conviction for assault causing bodily harm.
23In addition to a recent prior offence for violence, Mr. Towell was previously convicted of two sexual assaults in 2016 for attacking random women in Toronto.1 He was sentenced to 423 days or 14 months of pretrial custody to be followed by a period of probation of two years.
24Although there is a gap in his criminal record from 2016 to 2024, it is obvious that he poses an ongoing threat to the sexual and bodily integrity of women. He has a recent conviction for an assault that caused bodily harm. While on probation for that offence of violence, he sexually assaulted and assaulted a very vulnerable woman.
25Understandably, Ms. R.W. chose not to provide a victim impact statement. Ms. K.D. related how Mr. Towell’s crimes have affected her. She related that:
My lifestyle has changed. I have been extremely emotional and exhausted. I have had many sleepless nights since the incident. I am scared to converse or interact with the opposite sex. I avoid gatherings and festivities with family due to depression and dealing with people.
Economically, it’s difficult to obtain or secure a job due to interviews with random men. I fear he will contact my friends or family and fear for myself or them.
26Ms. R.W. explained during the trial that she chose not to come forward earlier because of her belief that the police and the criminal justice system have little regard for the safety of women living certain lifestyles. Victims come from all walks of life. No one is less deserving of the protection of the law. Rather, Mr. Towell’s choice to target these vulnerable woman is an aggravating feature of the offences.
27These crimes have left a lasting and detrimental impact on women who were already facing various life challenges. A significant sentence is warranted as an affirmation of their dignity.
C. Mitigating facts and considerations unique to this offender:
i. Conduct of the defence:
28Mr. Towell does not have the mitigation of a plea of guilty. Nevertheless, his counsel made a series of admissions on his behalf at the outset of the trial to simplify the proceedings. Absent these reasonable concessions, the trial would have been much longer, and the victims would have endured more extensive questioning. More time spent in the witness box would have been particularly challenging for Ms. R.W. who clearly struggled during the trial.
29Counsel’s cross-examination was focussed on the facts that were in issue. She was fair and did not demean either witness’s life circumstances at the time they met Mr. Towell.
30A fundamental tenet of sentencing, related to the presumption of innocence, is that the conduct of the defence during the trial cannot be treated as an aggravating factor for the sentencing: R. v. Kozy, 1990 CanLII 2625 (ON CA), [1990] O.J. No. 1586 (Ont.C.A.). The converse should not be true.
31Mr. Towell does not have the full mitigation afforded a plea of guilty. Nevertheless, the way counsel conducted the trial saved valuable court resources. The brevity of the witnesses’ testimony attenuated the stress and trauma that victims inevitably experience during the proceeding. I was particularly impressed with counsel’s sensitivity when addressing the credibility and reliability of the witnesses’ recollections without unnecessarily degrading them.
32Counsel act on their client’s instructions. They should be encouraged to make appropriate admissions to streamline litigation. While it does not attract the same mitigation of a plea, in the unique circumstances of this case, I find that this consideration should mitigate Mr. Towell’s sentence.
ii. Mr. Towell’s background:
33Mr. Towell is 47 years old. His counsel related her client’s personal history instead of relying on a presentence report despite the court’s invitation to arrange an expedited in-custody interview with him.
34He is a college educated man. He is a talented handy man and mechanic. When he was younger, he worked in property management and maintenance with his father. He is also adept at landscaping and operating snowplows.
35Mr. Towell shared a close bond with his parents. Sadly, he lost his mother in 2014 and his father in 2017. He doesn’t have any family support since he lost them. He inherited their belongings and treasured many of these memories of them.
36Mr. Towell rented a rural property shortly after his release from custody in 2016. Over the years, he built up a good reputation for providing many services and tended to the needs of various customers. He had loyal clients and some friends. He used the garage on the property to repair vehicles.
37He enjoyed rural life. He rescued animals and engaged in some farming. Mr. Towell is currently unable to pay the rent due to his incarceration. As a result, he is facing eviction, especially if he receives a further period of incarceration. He despairs over the loss of everything he has accumulated because of his convictions.
38Mr. Towell was given the opportunity to address the court about the offences. All he related was that he “didn’t do it” or, at least, not as the women described their interactions with him. He had the choice to testify during the trial to explain his side of the story, but he chose not to do so which is his right. He does not accept responsibility or take accountability for how he mistreated these two women or the physical or sexual violence. As a result, it is difficult to see his potential for rehabilitation especially considering his antecedents for similar offences.
39I recognize that the absence of expressed remorse or insight are not aggravating factors. Rather, it is the absence of mitigating facts that assist with determining an offender’s potential for rehabilitation.
40The Supreme Court explained in R. v. Friesen, 2020 SCC 9 at para 165 the importance of these mitigating considerations since “remorse gains added significance when it is paired with insight and signs that the offender has come to realize the gravity of the conduct, and as a result has achieved a change in attitude or imposed some self-discipline which significantly reduces the likelihood of further offending".
41In the absence of these mitigating factors, I am quite concerned about Mr. Towell’s potential for future violence. These concerns are justified considering Mr. Towell’s prior convictions for sexual violence and his recent conviction for an assault causing bodily harm. A conditional sentence of incarceration and a probation order had no specifically deterrent influence to stem the injurious tide of his violent predispositions.
iii. Time spent in pretrial custody:
42Mr. Towell has been in custody since December 5th, 2024. He has served a total of 376 days pretrial custody. He served that time in Central East Correctional Center in terrible conditions. He was subjected to repeated lockdowns and triple bunking. I take judicial notice of the escalating crisis of overcrowding and understaffing that is contributing to the deteriorating conditions in this facility. Regardless of his crimes, no one should be or deserves to be subjected to inhumane conditions.
43There is an additional aspect of Mr. Towell’s pretrial custody that I have considered as unusually mitigating. Mr. Towell testified during the sentencing hearing. He related how the ranges are controlled by fearsome inmates who exert control. These inmates are referred to as “cleaners”. This is a well-known fact in this region. The inmates post a list of rules for other detainees to follow, or they will face violent sanctions. One of those rules is that the inmates must not have outstanding sexual offences.
44If a detainee denies that that he is charged with any sex crimes, other inmates place calls to ascertain the true nature of the detainee’s charges. Because of the nature of his offences, other inmates assaulted Mr. Towell. He suffered various injuries.
45He is struggling with post concussion syndrome. He has medical issues including a persistent ringing in his ears. He needs ongoing medical attention. In addition to the assaults, he described horrible conditions. The cells and showers are filthy. Inmates get sick often. They are discouraged from seeking medical attention. It is a place that makes a person feel helpless and hopeless.
46The fact that other inmates attacked and injured Mr. Towell is a consequence that I will consider when assessing the mitigation of his sentence due to his experiences in pretrial custody.
47In R. v. Suter, 2018 SCC 34 at para 51, the Supreme Court reviewed various cases and observed that “our courts have held that where an offender is attacked by fellow inmates in a prison and the attack is related to the offence for which the offender is in custody, such violence may be considered as a factor at sentencing”.
48With Summers credit, the 376 days that Mr. Towell has served will be the equivalent of 564 days or 18 months and 24 days. Mr. Towell’s total sentence will be further reduced or mitigated to reflect the physical abuse and harshness of the conditions he endured while awaiting the outcome of these proceedings.
49These considerations will not mitigate the sentence below what would be considered a proportionate disposition. The total pretrial custody will be reflected as 750 days or 25 months.
iv. Collateral consequences:
50I accept Mr. Towell’s evidence that he reformed parts of his life since his last period of incarceration in 2016. He rented a nice rural property on which he built up a business with regular customers. He enjoyed rescuing animals and tended to them. Both Ms. R.W. and Ms. K.D. described playing with the animals.
51Mr. Towell suffered the losses of his parents. He inherited all their belongings. He cherished these items. After he was arrested, his home was broken into and most of his belongings, including these mementos, were stolen from him.
52He believes that Ms. R.W. and/or her associates are responsible but that has not been proven to be true. Mr. Towell made the informed choice to bring indigent, drug addicted women to his home, victimize them and keep them there. It is hardly surprising that word would spread to other transient people in Lindsay that his rural home was vacant once he was incarcerated for his crimes.
53Mr. Towell understandably feels like he lost everything that he worked hard to build for himself. He lost his clients, business, and good reputation. All the animals he cared for were taken from his property. Anything of value has been stolen from his home, including various irreplaceable items of sentimental value. He is in the process of being evicted from the farm. Counsel stressed that he is devastated by the enormity of these punitive consequences.
54The 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]
55The 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.2 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]
56Justice 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. Please also see: R. v. Habid, 2024 ONCA 830.
57A significant collateral consequence is the loss of everything Mr. Towell cherished and worked hard to build a life for himself. However, Mr. Towell received the benefit of a conditional sentence to be served in the community just prior to these offences. That sentence should have been the wake up call he needed to the possibility that he could lose everything. Instead, he was undeterred and made the informed choice to risk everything by committing more crimes, targeting and taking advantage of these women.
58He had the chance to serve a sentence of incarceration in the community in 2024. He flouted that opportunity to get back on the right path. The loss of his home, belongings, work and reputation was an inevitable consequence of his commission of further crimes while on community supervision. While the aftermath of his crimes was predictable, I have considered the magnitude of his personal losses as part of the overall factual matrix of the impact of Mr. Towell’s incarceration.
D. Sentencing Principles:
i. General Principles:
59In R. v. J.W., 2025 SCC 16 at paras 38 to 44, the Supreme Court provided a comprehensive summary of the fundamental principles that should guide every sentencing decision:
The purpose, objectives and principles of sentencing are codified in ss. 718 to 718.2 of the Code. This Court has interpreted and applied these provisions in appellate review with a view to providing clarity for sentencing judges.
Section 718 sets out the fundamental purpose of sentencing: "... to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society ..."
This fundamental purpose is to be given effect by "imposing just sanctions" in accordance with the sentencing objectives set out in s. 718(a) to (f): denunciation, general and specific deterrence, separation of offenders (to protect society), rehabilitation, reparation, and the promotion of a sense of responsibility in the offender and acknowledgement of the harm caused to the victim and to the community. No one sentencing objective trumps the others. Rather, the sentencing judge is to determine what weight to give to the various objectives; this is to be decided on a case-by-case basis as sentences are to be "individualized".
Section 718.1 provides that the "fundamental principle" of sentencing is proportionality, i.e., that a sentence be "proportionate to the gravity of the offence and the degree of responsibility of the offender". This has been recognized as a "central tenet" of sentencing.
Proportionality is "intimately tied" to the fundamental purpose of sentencing and gives "sharper focus" to the "objectives" set out in s. 718. "[W]hatever weight a judge may wish to accord to the objectives listed [in s. 718], the resulting sentence must respect the fundamental principle of proportionality".
Proportionality is the "sine qua non of a just sanction". As LeBel J. stated in Ipeelee:
First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system... .
Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender.
A just sanction is one that "reflects both [the foregoing] perspectives on proportionality and does not elevate one at the expense of the other".
In 1995, Parliament set out a non-exhaustive list of principles in ss. 718.2 to 718.21 to assist in giving effect to proportionality. These principles include "the consideration of aggravating and mitigating circumstances, the principles of parity and totality, and the instruction to consider 'all available sanctions other than imprisonment that are reasonable in the circumstances', with particular attention paid to the circumstances of [A]boriginal offenders". [extensive citations omitted]
60Any 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.
61Unquestionably, 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]
62Both Ms. R.W. and Ms. K.D were vulnerable because of “personal circumstances”. Mr. Towell selected them specifically because he believed he could get away with abusing them. This sentencing is an opportunity to communicate a message to the community that, contrary to Ms. R.W.’s worries that women like them don’t matter, there is special recognition when women are targeted by predators who take advantage of their weaknesses.
63Ms. R.W. and Ms. K.D. naively trusted Mr. Towell’s assurances that he would not hurt them. Instead, he preyed on them and abused them. Ms. K.D. was especially vulnerable because of her life circumstances, gender, and addiction to drugs.
64In addition, section 718.2 of the Criminal Code specifically directs that a Court “shall also take into consideration”, when sentencing Mr. Towell, 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.
65The sexual and physical assaults committed by Mr. Towell left a lasting negative impact on various aspects of Ms. K.D.’s life. She is struggling to put the pieces of her life back together, which has been even more difficult with the trauma caused by Mr. Towell’s violent actions.
66To arrive at a just and proportionate sentence, I must carefully consider all the relevant factors. When trying to balance competing considerations, some factors may tip the scales one way or the other when determining the appropriate sentence. Some important considerations include whether the offender has a previous record and whether less restrictive sanctions could achieve all the sentencing goals including rehabilitation.
ii. Principle of restraint:
67Courts 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. Mr. Towell has a related criminal record for sexual violence and a recent conviction for an assault that caused bodily harm.
68While Mr. Towell has served time in the past, this will be his first penitentiary sentence. I am mindful of the principle of restraint that is 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.
69Mr. Towell is morally culpable for his choices to abuse these women. Victim blaming and his past convictions for sexually abusing random women causes considerable concern that he presents an ongoing danger.
70The reformatory sentence in 2016 did not deter him, rather, he chose to predate on other vulnerable women to avoid detection. As the crown astutely observed, there is an element of planning and deliberation in his victim selection that demonstrates a frightening evolution in the sophistication of his crimes.
71I agree with the crown that the least restrictive sanction that is appropriate in the circumstances is a significant penitentiary sentence to reflect the severity of his crimes and specifically deter him from future attacks on women. As the Supreme Court of Canada explained in R. v. Lacasse, supra, at para 12:
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.
72There are some offences, like repeat offences of physical and sexual violence against vulnerable victims, which are so serious that the paramount principles of denunciation and deterrence demand a lengthy custodial sentence.
73Considering Mr. Towell’s antecedents, the nature of the offences, and the multiple aggravating features, these offences cry out for a penitentiary sentence to achieve the principles of sentencing and as an affirmation of the sexual integrity, dignity and autonomy of the victims. Moreover, considering he was on a conditional sentence and then a probation order during the period he was keeping these women in his home, Mr. Towell’s prospects for rehabilitation are questionable.
74It would be an error in principle to give “primary” consideration to any rehabilitative objectives by unduly focussing on an offender’s mitigating factors and the impact that a custodial sentence will have on him.
75In R. v. B.M., 2023 ONCA 224 at paras 15 to 16, the Ontario Court of Appeal considered 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.]
76I am cognizant of the statutorily prescribed weight that sits on one side of the scale when trying to arrive at a balanced sentence.
77Mr. Towell is not a young man, and he has a criminal record but that does not mean I should not exercise restraint. I have cautioned myself that this sentence should not be so crushing that he is left with no hope for his eventual reintegration into society and restarting a new life.
78Ultimately, I must sentence Mr. Towell to the shortest period of incarceration that fairly achieves the competing sentencing objectives, reflects the seriousness of his crimes as well as any 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.
iii. The principle of parity:
79In 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.
80While 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 CanLII 230 (SCC), [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.
81Sexual 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.
82Despite the myriad of ways that victims of sexual violence are unfortunately violated, there is a clear and consistent trend in the appellate authorities that the sentence range must increase for these crimes.
83Appellate 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.
84Older authorities that are inconsistent with the increasing sentence range are of little assistance when deciding the appropriate penalty. For example, counsel relied on R. v. Micula, 2016 ONCJ 467. Notably, the crown only sought a sentence of 12 to 14 months of incarceration. In addition, the pivotal decision from the Ontario Court of Appeal that altered the sentencing range in R. v. A.J.K., 2022 ONCA 487, was not available at that time to guide the crown’s submissions or the court’s decision.
85The 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 have deepened”.
86Since 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 first offender 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 sexually 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 3 ½ 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]
87Despite the clear direction from the Court of Appeal in R. v. S.W., supra, counsel emphasized that Mr. Towell said “please” and the absence of gratuitous violence and that he stopped forcing Ms. K.D. to perform oral sex when she feigned being asleep. She submitted that these facts support a sentence below the applicable range.
88It bears repeating that the absence of aggravating facts does not justify a sentence outside the applicable range. Rather, the presence of aggravating facts may support a sentence above the range. For example, a substantially aggravating consideration is the danger posed by a repeat sex offender.
89In R. v. C.P., 2024 ONCA 783, the Court of Appeal addressed similar issues with the impact of the absence of aggravating facts on the applicable sentence range.
90The victim was described as "in and out" of consciousness as the offender “aggressively fingered her anus and vagina, attempted vaginal penetration from behind, performed oral sex on her, and forced his penis into her mouth”. 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.
91The Court of Appeal found the sentence to be demonstrably unfit and would have imposed a period of incarceration of 3 ½ years. The Court 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 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.
92The only reason 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.
93In addition to inappropriate weight placed on the absence of certain aggravating facts, counsel also overemphasised the nature of the act to support her position. Mr. Towell committed an act of forced oral intercourse on a woman who was suffering through the symptoms of withdrawal because he refused to bring her home. The fact that the sexual act in this case was coerced oral sex as opposed to intercourse does not alter the applicable range.
94Six years ago, in R. v. U.A., 2019 ONCA 946 at para 11, the Court of Appeal found that: “although the circumstances of each case are different, numerous offenders have been sentenced in the three-to-five-year range for sexual assault involving forced oral sex in analogous circumstances”.
95This is consistent with the Supreme Court of Canada’s observations in R. v. Friesen, supra at para 146 that:
there is no type of hierarchy of physical acts for the purposes of determining the degree of physical interference. As the Ontario Court of Appeal recognized in Stuckless (2019), physical acts such as digital penetration and fellatio can be just as serious a violation of the victim's bodily integrity as penile penetration (paras. 68-69 and 124-25). Similarly, it is an error to assume that an assault that involves touching is inherently less physically intrusive than an assault that involves fellatio, cunnilingus, or penetration. For instance, depending on the circumstances of the case, touching that is both extensive and intrusive can be equally or even more physically intrusive than an act of fellatio, cunnilingus, or penetration. [emphasis mine]
96To support the suggested sentence of 18 months incarceration, counsel also relied on a decision filed by the Crown, R. v. N.L., 2024 ONCJ 286 because the offender received a sentence of 12 months for sexual offences against his wife. This decision is factually distinguishable.
97The offender had no prior record. The crown only sought a sentence of 18 months of incarceration. The Court grappled with concerns about the impact the sentence would have on the victim’s and offender’s mutual children. In addition, there were other mitigating considerations unique to a first offender. None of these considerations apply to this case.
98Counsel emphasized that Mr. Towell received a sentence of 14 months in 2016 for two sexual offences. She submitted that tripling his sentence for the sexual assault against Ms. K.D. would offend the jump principle resulting in an unduly harsh sentence.
99In R. v. Green, 2021 ONCA 932 at paras 11 and 12, the Court of Appeal explained that:
The jump principle stands for the proposition that a subsequent sentence imposed on an offender should not be disproportionate to sentences imposed for prior offences, provided the subsequent offence is not significantly more serious than the prior offence. Essentially, a subsequent sentence for an offence should have an incremental increase proportionate to the frequency of the repeated offence: R. v. White, 2007 NLCA 44, 270 Nfld & P.E.I.R. 351. The application of this principle is contextual to the level of seriousness of the subsequent offences.
As noted by Rosenberg J.A. in Borde, at para. 39, the jump principle "has little application where the severity of the offender's crimes shows a dramatic increase in violence and seriousness". The same is true when dealing with multiple convictions for an offender with a lengthy criminal record, or where previous sanctions have been ineffective in deterring the offender. [emphasis mine]
100There are several reasons why a significant increase in the period of incarceration from Mr. Towell’s last sentence will not offend this principle.
101I do not know enough about the circumstances of Mr. Towell’s prior offences. For example, I do not know if he pled guilty or the crown’s position or the nature of the offences other than it involved grabbing unsuspecting women. Furthermore, Mr. Towell was sentenced as a first offender at that time.
102In contrast, Mr. Towell is a repeat sex offender who accumulated a recent conviction for violence causing bodily harm for which he was being supervised in the community when he reoffended with two different victims. Finally, the range of sentence for these crimes has changed since 2016 post Friesen and A.J.K., supra.
103I appreciate that sentencing precedents setting out recommended ranges for certain offences are intended to provide guidance as opposed to dominating the sentencing process. In R. v. Parranto, 2021 SCC 46 at para 36, the Supreme Court summarized these “key principles”:
Starting points and ranges are not and cannot be binding in theory or in practice;
Ranges and starting points are "guidelines, not hard and fast rules", and a "departure from or failure to refer to a range of sentence or starting point" cannot be treated as an error in principle;
Sentencing judges have discretion to "individualize sentencing both in method and outcome", and "[d]ifferent methods may even be required to account properly for relevant systemic and background factors"; and,
Appellate courts cannot "intervene simply because the sentence is different from the sentence that would have been reached had the range of sentence or starting point been applied". The focus should be on whether the sentence was fit and whether the judge properly applied the principles of sentencing, not whether the judge chose the right starting point or category. [citations omitted]
104Similarly, In 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.
105The applicable sentence range of 3 to 5 years represents an appropriate upward trend in sentences for sexual violence. This range may increase over time as crowns advocate for longer sentences and our courts benefit from a growing awareness of the lasting personal and societal harms of sexual violence. Trial judges will also have further guidance from more recent appellate decisions upholding higher sentences.
106Of course, there may be sentences above and below this range depending on the individual circumstances in each case. Sentences at or below the lower end of the range often involve a first offender who pleads guilty, demonstrates insight, expressed sincere remorse, has significant potential for rehabilitation or has invested in counseling. There may be other unique or substantially mitigating considerations or the absence of certain aggravating features.
107There is nothing exceptionally mitigating about Mr. Towell’s background or his current circumstances that attenuates his moral culpability. The unintentional but entirely foreseeable impact of the loss of his liberty and destruction of the life he built up cannot justify a disproportionate sentence.
E. Conclusion:
108Counsel’s recommended sentence of 18 months of incarceration was demonstrably unfit. Frankly, it would be a glaring error in principle as a disproportionate disposition.
109While the crown’s position of 6 to 7 years of incarceration was informed by the upward trend in sentencing and the aggravating features of these offences and this offender, it did not consider the absence of certain aggravating facts, and some mitigating considerations outlined in these reasons.
110I have determined that a fit and proportionate sentence is as follows:
Sexual assault on Ms. K.D. 25 months PTC + 27 months = 52 months
Assault on Ms. K.D 4 months consecutive
Breaches of probation 4 months consecutive but concurrent to each other
111The total sentence is a period of 5 years or 60 months. Considering the pretrial custody of 25 months, he has a balance of 35 months of incarceration left to serve.
112There will be an order pursuant to section 743.21 of the Criminal Code prohibiting contact while in custody with either of the victims or any members of their immediate families. In addition, he will be bound by a lifetime S.O.I.R.A order, a section 109 weapons prohibition for life and he will supply samples of his DNA.
113The victim fine surcharges are obviously an undue hardship and will be waived in the circumstances.