WARNING The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4 or 486.6 of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences: (i) an offence under section 151, 152,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) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order; (b) on application made by the victim, the prosecutor or any such witness, make the order; and (c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; (b) on application of the victim or the prosecutor, make the order; and (c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall (a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order; (b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and (c) in any event, advise the prosecutor of their duty under subsection (3.2).

(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have (a) informed the witnesses and the victim who are the subject of the order of its existence; (b) determined whether they wish to be the subject of the order; and (4) An order made under this section does not apply in either of the following circumstances: (a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or (b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.

(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.

486.6(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.

(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor, (a) the person knowingly failed to comply with the order; (b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and (c) a warning to the individual is not appropriate.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.

COURT OF APPEAL FOR ONTARIO DATE: 20240307 DOCKET: COA-23-CR-0765

van Rensburg, Coroza and Favreau JJ.A.

BETWEEN

His Majesty the King Appellant

and

S.W. Respondent

Counsel: Kevin Rawluk, for the appellant Peter Copeland, for the respondent

Heard: December 21, 2023

On appeal from the sentence imposed on June 16, 2023 by Justice J.G. Lebel of the Ontario Court of Justice.

Favreau J.A. :

A. Introduction

[1] The respondent and the complainant lived together and were in an intimate relationship. Over the course of one night, the respondent sexually assaulted the complainant four times while she was in bed, pretending to be asleep. Each time, the respondent penetrated the complainant’s vagina with his penis and ejaculated. He did not use a condom.

[2] The respondent was found guilty of sexual assault. The trial judge imposed a conditional sentence of two years less one day (with twelve months house arrest and no curfew), followed by one year of probation. The trial judge also did not make an order under the Sex Offender Information Registration Act, S.C. 2004, c. 10 (“SOIRA”), even though, at the time of sentencing, SOIRA orders were mandatory for sexual assault convictions.

[3] The Crown appeals the sentence, arguing that it was manifestly unfit given the gravity of the offence and that this was not an appropriate case for a conditional sentence. The Crown seeks a three year penitentiary sentence and for this court to impose a SOIRA order.

[4] I agree with the Crown that the sentence in this case is manifestly unfit. In imposing this sentence, the trial judge disregarded the seriousness of the offence, relied on an inappropriate sentencing range and unjustifiably found that there were “extraordinary” circumstances that warranted a conditional sentence.

[5] I would allow the appeal and impose a penitentiary sentence of three years, with one-to-one credit for the time served on the conditional sentence. However, I would not impose a SOIRA order because this court lacks jurisdiction to do so.

B. Background

(1) Nature of the offence and trial decision

[6] The respondent and the complainant became involved in an intimate relationship in January 2019. At the time of the offence, in June 2019, they lived together in the respondent’s home.

[7] On June 23, 2019, the respondent and the complainant were at home with the respondent’s three children, a 12-year-old and 10-year-old twins. That day, the respondent drank 13 beers.

[8] The complainant went to bed around 10:30 p.m. or 11:00 p.m. After she went to bed, when she was almost asleep, the respondent came into the bedroom and pulled down the complainant’s pants and underwear. He then put his penis in her vagina and had sexual intercourse with her for five to ten minutes. The respondent did not wear a condom and he ejaculated inside the complainant. Afterwards, the respondent pulled the complainant’s underwear and pants up and left the room. The respondent repeated these same acts three more times over a period of approximately two hours. Each time, he did the same thing: he pulled the complainant’s pants and underwear down, penetrated her with his penis, and ejaculated inside her without a condom.

[9] The complainant did not consent to the intercourse. On each occasion, she feigned being asleep, and she hoped it would stop. She felt that what was happening was “the worst nightmare [she had] ever had”. She was also afraid to scream because she was worried about waking up the respondent’s children who were sleeping close by.

[10] On the morning of June 24, 2019, the complainant packed her belongings and left the respondent’s home to go live with her father.

[11] The respondent and complainant then exchanged text messages. Initially, the respondent denied the sexual assaults. He then said he did not remember what happened but said that he “failed” and felt “horrible” about it. He also told the complainant that she should have stopped him.

(2) The trial decision

[12] The only witness at trial was the complainant. The respondent did not testify.

[13] The trial judge found the respondent guilty of sexual assault. In reaching this conclusion, the trial judge found that he would have had reasonable doubt based on the complainant’s evidence alone. However, he was satisfied that the text messages clearly established the respondent’s guilt.

(3) Sentencing submissions and decision

[14] At the sentencing hearing, the Crown sought a penitentiary sentence of three years. There was some confusion in the trial Crown’s submissions on the applicable sentencing range. Initially, the trial Crown relied on the sentencing range of three to five years for sexual assaults set out in this court’s decision in R. v. A.J.K., 2022 ONCA 487, 162 O.R. (3d) 721. She also referred to the sentencing range of 21 months to 4 years set out in this court’s decision in R. v. Smith, 2011 ONCA 564, 274 C.C.C. (3d) 34, for sexual assaults occurring in the context of an intimate partner relationship. Initially, the trial Crown pointed out that A.J.K. had done away with the distinction between the sentencing range applicable to sexual assaults on intimate partners and the range applicable to sexual assaults on strangers or acquaintances. She submitted that the appropriate range for all penetrative sexual assaults is three to five years. However, later in her submissions, the trial Crown confirmed with the trial judge that she took the position that the applicable range was the 21 months to 4 years range in Smith. At some point in her submissions, the trial Crown also acknowledged that the sentencing range for sexual assaults involving a sleeping complainant is 18 months to 3 years, but pointed out that the complainant was not sleeping in this case; she had only pretended to be sleeping.

[15] The respondent’s trial lawyer sought a conditional sentence of 18 months. She relied on decisions in which the range of sentences for sexual assaults while the complainant was sleeping was described as 18 months to 3 years. She submitted that this was an appropriate case for a conditional sentence because the respondent had not breached his bail conditions during the almost 4 years prior to trial, he had a supportive family, and he had kept the same job as the manager of a fast-food restaurant for 16 years.

[16] The materials before the trial judge on sentencing included a pre-sentence report and a victim impact statement from the complainant.

[17] In his reasons, the trial judge listed six factors as aggravating, although for the last factor he made a point of stating that it was not aggravating. He described the aggravating factors as follows:

1. The offender had non-consensual sexual intercourse with an intimate partner;
2. Although she was not unconscious or intoxicated, at the time she pretended to be asleep when he took advantage of her;
3. It is not a mitigating factor that the offender was not violent during the commission of the offence;
4. He did not use a condom;
5. The complainant suffered psychological harm;
6. In this instance, the fact that the children were in the home and were oblivious to what took place does not constitute an aggravating factor in the circumstances.

[18] The trial judge listed eleven mitigating factors, describing them as follows:

1. The offender has no criminal record;
2. He has been bound by release conditions for three years and ten months;
3. He has never breached his conditions;
4. He is not at risk to reoffend in any way;
5. He has three children. His son has been diagnosed with autism. He is described as a great father who spends quality time with his children;
6. He obtained a PSW certificate and worked in home care for two years and had to quit due to social anxiety;
7. Since the commission of the offence, he attended at New Path for counselling;
8. He regularly dines with his parents who consider him to be a good son and a good man;
9. He has been steadily employed by a fast-food restaurant for 16 years and is considered to be a model employee, the backbone of the operation, and is vital to its day to day operation;
10. He does not abuse drugs or alcohol;
11. He has expressed considerable remorse for his actions.

[19] In his reasons, the trial judge stated that the appropriate range of sentencing “as submitted by counsel” was 18 months to 3 years. He also stated that the cases he reviewed suggested that a fit and appropriate sentence ranged from a conditional sentence to a penitentiary sentence. The trial judge concluded that this was an appropriate case for a conditional sentence because he found that there were “exceptional circumstances mitigating against the imposition of a sentence behind bars”. However, he did not identify those exceptional circumstances.

[20] The trial judge imposed a conditional sentence of two years less one day, followed by a one year probationary period. During the first 12 months of the conditional sentence, the respondent was to be under house arrest, except for the purpose of going to work, exercising his parenting time with his children and a few other listed activities.

[21] The trial judge also decided not to impose a SOIRA order, explaining this aspect of his decision as follows:

In R. v. Ndhlovu, 2022 SCC 38, the Supreme Court of Canada declared the mandatory registration provision of Section 490.012 of the Criminal Code was unconstitutional. The invalidity was suspended for one year to permit Parliament to address the issue.

Parliament did address the issue by tabling Bill S-12. In fact, the bill was tabled in the Senate on May 17th, 2023. This bill proposes to restore traditional discretion over whether to order the sexual offender to register with the National Sex Offender Registry. This judicial discretion will now apply in cases involving repeat offenders or for convictions of serious child sexual offences. Although, I am not aware of the status of this bill in the Senate at this time, I am confident that it will pass legislative approval. The offender does not fall within either category of exceptions, and in my view, he does not present a risk to reoffend. Accordingly, I will not issue a SOIRA order today.

C. Did the trial judge err in imposing a two years less a day conditional sentence?

[22] Two issues arise from the sentence imposed: (1) whether the sentencing judged erred in imposing a sentence of two years less a day; and (2) whether the trial judge erred in imposing a conditional sentence.

[23] In addressing these issues, I start with a discussion of the standard of review and the general principles that apply to sentencing for sexual assaults, followed by a discussion of the sentence imposed in this case.

(1) Standard of review

[24] The Crown is entitled to appeal a sentence with leave of the court: s. 676(1) of the Criminal Code, R.S.C. 1985, c. C-46.

[25] This court owes significant deference to a sentencing judge’s decision. The court will only intervene where (1) the sentence imposed is demonstrably unfit or (2) where the sentencing judge committed an error in principle, failed to consider a relevant factor or erroneously considered an aggravating or mitigating factor, and it appears from the decision that such an error had an impact on the sentence: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 44, 51; R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at paras. 26-28.

[26] On appeal, the court is not to interfere with a sentencing decision because the appellate court would have imposed a different sentence or weighed relevant factors differently: R. v. W.V., 2023 ONCA 655, at para. 26.

[27] In determining whether a sentence is demonstrably unfit, the inquiry is focused on the principle of proportionality set out in s. 718.1 of the Criminal Code. As stated in Lacasse, at para. 53:

This inquiry must be focused on the fundamental principle of proportionality stated in s. 718.1 of the Criminal Code, which provides that a sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender”. A sentence will therefore be demonstrably unfit if it constitutes an unreasonable departure from this principle. Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances. Individualization and parity of sentences must be reconciled for a sentence to be proportionate: s. 718.2 (a) and (b) of the Criminal Code.

[28] Finally, in Lacasse, at para. 51, the Supreme Court emphasized that sentencing judges have discretion to identify an appropriate sentencing range and that the identification of an inappropriate sentencing range on its own is not an error in principle. The court also observed that “sentencing ranges are primarily guidelines, and not hard and fast rules”, and therefore “a deviation from a sentencing range is not synonymous with an error of law or an error in principle”: Lacasse, at para. 60. However, if the sentence imposed “departs significantly and for no reason from the contemplated sentences” (emphasis added), this may be an indication that a sentence is demonstrably unfit: Lacasse, at para. 67.

[29] In R. v. Parranto, 2021 SCC 46, 436 D.L.R. (4th) 389, at para. 40, the Supreme Court further explained the role a sentencing range may play in determining the fitness of a sentence. In this context, the court explained that “exceptional” circumstances are not required to justify a sentence that falls outside a sentencing range. However, where a sentence falls significantly outside a range without any explanation or rationale, this may be a signal that a sentence is demonstrably unfit:

Since starting points and ranges reflect the gravity of the offence, however, the sentencing judge’s reasons and the record must allow the reviewing court to understand why the sentence is proportionate despite a significant departure from the range or starting point. This applies regardless of whether the reasons refer to the starting point or not. At the very least, the appellate court must be able to discern from the reasons and the record why the sentence is fit in the circumstances of the offence and the offender. We emphasize, however, that it is inappropriate for appellate courts to “artificially constrain sentencing judges’ ability to impose a proportionate sentence” by requiring “exceptional circumstances” when departing from a range… Departing from a range or starting point is appropriate where required to achieve proportionality. [Citations omitted; emphasis added.]

(2) General principles regarding sentences for sexual assaults

[30] Prior to this court’s decision in A.J.K., the sentencing range for penetrative or serious sexual assaults perpetrated by an accused on a stranger or acquaintance differed from the range applied when the complainant was the accused’s intimate partner. This court’s decision in R. v. Bradley, 2008 ONCA 179, 234 O.A.C. 363, was often cited as support for a range of three to five years for sexual assaults involving non-intimate partners; this was referred to as the Bradley range. In contrast, this court’s decision in Smith was cited to support a range of 21 months to 4 years for sexual assaults involving an intimate partner; this was referred to as the Smith range.

[31] In A.J.K., this court brought the distinction between the sentencing ranges in Bradley and Smith to an end, emphasizing that it was a “sentencing artefact” that was out of step with the current societal and judicial understanding of the harm experienced by all victims of sexual assault: at paras. 70-71. Fairburn A.C.J.O. highlighted the serious nature of this harm as follows, at paras. 73-74:

A sexual assault involving forced penetration is a sexual assault involving forced penetration. An act of sexual violence perpetrated on a stranger to the accused is not necessarily worse than a similar act of sexual violence perpetrated on an intimate or former intimate partner. Any suggestion to the contrary could only rest on unacceptable myths and stereotypes, ones that a fair justice system must continuously confront and eradicate…

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

[32] In this context, the court established that “[a]bsent some highly mitigating factor, the forced penetration of another person will typically attract a sentence of at least three years in the penitentiary”, regardless of whether the complainant is a stranger or an intimate partner of the accused: at para. 77. The court further emphasized that, while the range for these types of offences is generally three to five years, a range is only meant to be “a quantitative sentencing tool designed to assist busy trial judges with where to start” and that “there will be circumstances where a departure from the range, either above or below the range, is entirely appropriate”: A.J.K., at para. 77 (citations omitted).

[33] In R. v. R.S., 2023 ONCA 608, this court addressed an appeal from a decision where a sentencing judge imposed a conditional sentence of two years less a day for a violent sexual assault involving forced digital penetration. In that context, relying on A.J.K., the majority of the court stated that “the range for sexual assault involving forced penetration is 3-5 years in the penitentiary”: R.S., at para. 22. The majority further stated that, while s. 742.1(f)(iii) of the Criminal Code was amended to allow for conditional sentences for a wider range of offences including sexual assault, this “did not have the effect of rendering conditional sentences appropriate or inappropriate in any particular circumstances. Sentencing remains a discretionary decision that courts must make, governed by the parameters established by the Criminal Code”: R.S., at para. 24. The majority also observed, at para. 27, that “[i]t may be that, in some circumstances, a conditional sentence is appropriate for sexual assault at the lowest end of the range of wrongful conduct. But there is no basis to suppose that it is appropriate for sexual assault at the higher end of that range.”

(3) The two years less a day conditional sentence was demonstrably unfit

[34] Pursuant to s. 742.1 of the Criminal Code, a conditional sentence is only available if the court imposes a sentence of less than two years. Accordingly, the starting point in determining whether the conditional sentence of two years less a day in this case is demonstrably unfit is to focus on the length of the sentence.

[35] The trial judge started with the proposition that the appropriate sentencing range in this case was 18 months to 3 years. In doing so, he stated that this was based on counsel’s submissions. However, as reviewed above, the Crown seemed to vacillate between the 3 to 5 year range referred to in A.J.K. and the 21 month to 4 year Smith range. It was only trial defence counsel who suggested that the appropriate range was 18 months to 3 years based on the cases she reviewed that involved the sexual assault of a sleeping complainant.

[36] As reviewed above, trial judges have discretion to determine the appropriate sentencing range and the failure to identify the proper range on its own does not constitute a reversible error: Lacasse, at para. 60; Parranto, at para. 40. However, given that a sentence must be proportionate to the gravity of the offence and the circumstances of the offender, the identification of an improper range or the failure to explain why it would be appropriate to depart from an established range in a specific case may serve as an indication that a sentencing judge has failed to grasp the seriousness of the offence: Lacasse, at para. 67; Parranto, at para. 40.

[37] In this case, the appropriate starting range was three to five years. This is clear from A.J.K., which is an authority that the trial Crown brought to the trial judge’s attention. This was a serious sexual assault. The complainant was the respondent’s intimate partner. The respondent assaulted her four separate times in one night. He penetrated her vagina with his penis, without using a condom. This clearly fell within the scope of cases identified in A.J.K. that this court has said should usually attract at least a three year penitentiary sentence.

[38] The respondent makes two arguments to suggest that the three to five year sentencing range set out in A.J.K. does not apply in this case. First, he submits that the reference to “forced penetration” (emphasis added) in A.J.K. means that there must be an element of violence beyond the non-consensual penetration for the range to be relevant.

[39] I disagree. “Forced” penetration refers to the lack of consent. 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.

[40] In this case, where the complainant was feigning sleep because she thought this may stop the sexual activity, and the respondent nevertheless pulled down her pants and underwear and inserted his penis in her vagina without her consent, it is hard to see how there can even be a dispute over whether this was a “forced” sexual assault. It clearly was.

[41] Second, the respondent relies on a series of cases where victims of sexual assault were sleeping to argue that in “sleeping cases”, the applicable sentencing range is 18 months to 3 years. In R. v. Ghadghoni, 2020 ONCA 24, this court addressed a sentence imposed for a sexual assault committed against a complainant who was asleep at the time of the offence. In that context, at para. 48, the court stated “the usual range identified in past jurisprudence for sexual assaults committed in similar circumstances has been between 18 months and three years”; see also e.g., R. v. Smith, 2015 ONSC 4304, at paras. 32-33; R. v. F. (J.), 2015 ONSC 5763, at paras. 35-36.

[42] However, as in A.J.K., where this court described the distinction between intimate partner and non-intimate partner cases as an artefact, there is no principled reason for distinguishing between complainants who are awake and complainants who are sleeping for the purpose of establishing a sentencing range. The experience for complainants of being sexually assaulted while they are sleeping or unconscious and thereby unable to consent is not necessarily any less violent and traumatic than if the complainant had been awake. If anything, in many cases, the sexual assault of a sleeping or unconscious complainant would appropriately be viewed as an aggravating factor: see e.g., R. v. Grey, 2023 ONSC 4516, at para. 60; R v Mahmood, 2023 ONSC 3247, at para. 25; R. v. C.J., 2020 ONSC 1486, at para. 28; R. v. A.J., 2018 ONSC 5153, at para. 31; R. v Hodgson, 2016 ONSC 8034, at paras. 29-30; R. v. S.G., 2014, at para. 39. In any event, in this case, the complainant was not asleep; she was feigning to be asleep.

[43] Accordingly, I would reject the respondent’s reliance on the 18 month to 3 year range based on the “sleeping cases”. There is no principled justification for this range and it should have played no role in sentencing in this case.

[44] Again, the trial judge’s failure to identify and apply the appropriate sentencing range does not constitute an error in principle on its own nor does it necessarily make the sentence unfit. While the three to five year range was the appropriate starting point for a sexual assault of this nature, there may nevertheless be circumstances that would justify a sentence below this range, in which case it would not be appropriate for this court to find that the sentence was demonstrably unfit. In addition, as reviewed above, the trial judge was not required to find that there were “exceptional” circumstances to justify a sentence that would fall outside the appropriate range. However, his reasons must demonstrate that he considered appropriate factors in imposing a sentence that fell far below the appropriate range.

[45] In his reasons, the trial judge did not provide any rationale for the length of the sentence he imposed. Presumably, he chose a period of two years less a day to avoid a penitentiary sentence so the respondent would be eligible for a conditional sentence. The trial judge then imposed the conditional sentence itself by stating that there were “exceptional” circumstances in this case. However, he provided no explanation or rationale for this finding. Notably, he failed to recognize the seriousness of this offence. He made no findings that would justify a conclusion that the respondent’s moral blameworthiness was lowered. Many of the mitigating circumstances cited by the trial judge were irrelevant, such as the respondent’s failure to get a driver’s licence and his unsuccessful attempt to work as a personal support worker. Accordingly, it is not possible to understand how the trial judge reached the conclusion that would justify a conditional sentence or even a sentence below three years in this case.

[46] There is in fact nothing about this case that would justify a sentence below a three year penitentiary sentence. It appears that the trial judge may have been influenced by the fact that the respondent was a first-time offender, had a strong relationship with his parents and children, and had good and stable employment. However, these considerations do not justify the imposition of a sentence below two years, which is required before a conditional sentence can be imposed. Given the seriousness of the offence, and in the absence of any factors that would justify departing from the three to five years sentencing range, the conditional sentence of two years less a day does not sufficiently meet the objectives of denunciation and deterrence which, as held in A.J.K., at para. 83, are an “overarching sentencing principle” in cases of this nature.

[47] Accordingly, I conclude that the sentence imposed by the trial judge is manifestly unfit.

(4) What is a fit sentence?

[48] Having found that the sentence imposed was unfit, it falls to this court to decide on a fit sentence.

[49] The Crown renews its suggestion that a penitentiary sentence of three years would be appropriate in this case. I agree.

[50] While the circumstances of the offence and the respondent do not justify a departure from the three to five year range for a sexual assault of this nature, a sentence at the lower end of the range is appropriate in this case. As noted above, this was a serious sexual assault. However, the respondent was a first time offender, he expressed some remorse, and he has close ties with his parents and children. The objectives of denunciation and deterrence can be achieved through a three year sentence while at the same time having regard to the specific circumstances and moral blameworthiness of the respondent.

[51] Accordingly, I find that a fit sentence in all the circumstances of this case is a three year sentence of imprisonment.

(5) Should the respondent be required to serve the custodial sentence?

[52] The respondent submits that, even if this court finds that the conditional sentence is unfit, this court should nevertheless not require that he serve a custodial sentence. The respondent argues that he has already served over six months of the house arrest portion of his conditional sentence and that over four and a half years have passed since he committed the offence. In making this argument, the respondent relies on cases where offenders have completed or almost completed their conditional sentences: R.S., at para. 41; R. v. M.M., 2022 ONCA 441, at para. 20.

[53] There is no doubt that this court’s jurisprudence supports the proposition that incarceration or re-incarceration may not be appropriate where offenders have served their whole sentence or a substantial portion of their sentence: W.V., at para. 48; R.S., at para. 41; R. v. T.J., 2021 ONCA 392, 156 O.R. (3d) 161, at paras. 48 to 49; R. v. Davatgar-Jafarpour, 2019 ONCA 353, 146 O.R. (3d) 206, at para. 50; R. v. Hamilton, 2004 ONCA 5549, 72 O.R. (3d) 1; R. v. Sharma, 2019 ONCA 274, at para. 24.

[54] In such cases, a lengthy period of time may also have elapsed between the imposition of the erroneous sentence and its correction by appellate review. In these circumstances, reincarceration may not be appropriate because, as Doherty J.A. explained in Hamilton, “[h]ad the respondents received the appropriate sentences at trial, they would have been released from custody on parole many months ago, and this sad episode in their lives would have been a bad memory by now”: at para. 165.

[55] However, this is not such a case. The respondent is still serving the house arrest portion of his conditional sentence and he still has a significant portion of his whole conditional sentence to serve. In many similar cases, where the court has concluded that a conditional sentence was not appropriate and the offender has not completed or almost completed the conditional sentence, this court has found it appropriate to require that an offender serve the custodial sentence imposed on appeal, subject to a reduction for time served on a 1:1 ratio: R. v. F.(G.C.), 2004 ONCA 4771, 71 O.R. (3d) 771 (C.A.), at paras. 29, 34-35; R. v. Haidar, 1999 ONCA 1220, 125 O.A.C. 70 (C.A.), at para. 7; R. v. Clarke, 2004 ONCA 7246, 189 O.A.C. 331 (C.A.), at paras. 2, 19-20; R. v. Cerda, 2008 ONCA 438, at para. 9; R. v. McGregor, 2008 ONCA 831, at paras. 45-47; R. v. H.S., 2014 ONCA 323, at para. 65; R. v. B.M., 2023 ONCA 224, at para. 48.

[56] Again, this was a serious sexual assault which requires a custodial sentence. The respondent has not served most of his conditional sentence. In the circumstances of this case, it is appropriate to require that the respondent be incarcerated to serve the balance of his sentence.

D. Did the trial judge err in not imposing a SOIRA order?

[57] As reviewed above, the trial judge chose not to impose a SOIRA order because he anticipated that the mandatory regime was soon to be replaced with a discretionary regime. Given his finding that the respondent was not at risk to reoffend, he found that it was not necessary to make a SOIRA order.

[58] The Crown now asks this court to not only vary the respondent’s sentence, but also to make a SOIRA order. The respondent concedes that the trial judge erred in failing to apply the SOIRA regime as it existed at the time of sentencing. However, he argues that this court does not have jurisdiction to hear an appeal from this issue.

[59] Based on this Court’s decision in R. v. R.P., 2018 ONCA 473, which adopted the approach of the New Brunswick Court of Appeal in R. v. Chisholm, 2012 NBCA 79, 393 N.B.R. (2d) 198, I agree with the respondent’s argument. At the relevant time, there was no right to appeal from an order made pursuant to s. 490.012 of the Criminal Code, which is the section that should have led to a SOIRA order. Although, as of October 26, 2023, the right of appeal under s. 490.014 was broadened to include all decisions made under s. 490.012, nothing in the legislation suggests that these revisions are to apply to sentencing decisions made prior to its enactment.

[60] Moreover, this court does not have original jurisdiction under s. 490.012 to “impose” a SOIRA order for two reasons. First, under s. 687 of the Criminal Code, this court is empowered to only “vary” a sentence, as opposed to “imposing” one. Second, a sentencing judge’s decision to impose or not impose a SOIRA order cannot be appealed under Part XXI of the Code because such orders do not form part of an offender’s “sentence”: R.P., at para. 9.

[61] In R. v. E.H., 2024 ONCA 74, this court recently found that it does not have the jurisdiction to vary an unlawful lifetime SOIRA order. Citing R.P., the court held that it is the sentencing judge who maintains jurisdiction to correct any errors associated with a SOIRA registration order: E.H. at paras. 94-95. Accordingly, it may be open to the Crown to return to the trial judge and seek a SOIRA order, but this court does not have jurisdiction to make the order: E.H. at para. 97.

E. Disposition

[62] Accordingly, I would grant leave to appeal sentence, allow the sentence appeal, set aside the conditional sentence order and substitute a three year term of imprisonment less the time served on the conditional sentence to date on a 1:1 basis. The probation order is set aside. All other orders remain the same.

[63] The respondent shall surrender into custody on or before March 11, 2024, failing which a bench warrant will issue for his arrest.

Released: March 7, 2024 “KMvR”

“L. Favreau J.A.”

“I agree. K. van Rensburg J.A.”

“I agree. Coroza J.A.”