COURT OF APPEAL FOR ONTARIO DATE: 20241219 DOCKET: COA-23-CR-1161

Trotter, Zarnett and George JJ.A.

BETWEEN

His Majesty the King Respondent

and

R.G. Appellant

Counsel: Alan D. Gold and Ellen C. Williams, for the appellant Owen Goddard, for the respondent

Heard: October 24, 2024

On appeal from the sentence imposed by Justice Colette Daniele Good of the Ontario Court of Justice on October 6, 2023.

REASONS FOR DECISION

[1] The appellant pleaded guilty to two counts of sexual assault and one count of unlawful confinement. He acknowledged using force to restrain the complainant, at her home, and having oral and vaginal sex with her without her consent. The appellant and the complainant had been “casually seeing” each other for about three weeks before these assaults occurred.

Background

[2] During the confinement and sexual assault, the complainant yelled and fought back, eventually escaping by running to the bathroom. The complainant told the appellant that he had raped her and asked him to leave, but he refused. Later that same night, the appellant sexually assaulted the complainant again, and when she did not react – she said she was in a dissociative state – he told her to “act like she doesn’t like it”. During this second assault, the complainant’s head struck the arm of a couch and the appellant pulled her hair. The appellant eventually left the complainant’s home, after which the complainant attended the hospital where a sexual assault kit was administered. The complainant reported this to the police the following day.

[3] The appellant was sentenced to six years in the penitentiary, concurrent on both counts, less two days of pre-sentence custody. The sentencing judge noted several mitigating factors, including that the appellant was a youthful first-time offender, had a longstanding employment history, had a supportive family, and had shown “recent insight into [the] need to accept treatment recommendations for his mental health [issues]”. The sentencing judge also noted several aggravating features, including that the appellant had abused an intimate partner, the complainant was vulnerable, the appellant used a significant level of violence, the complainant was assaulted in “multiple highly invasive ways”, and that the assault took place in the complainant’s home. Lastly, the sentencing judge described several factors that she called “neutral”, including a risk assessment completed by Dr. Sheridan (who opined that the appellant was a moderately low risk to reoffend) on the basis that he was not provided with an accurate account of what the appellant had admitted to doing to the complainant. The sentencing judge also treated the appellant’s history of mental illness as a “neutral” factor because she “[did] not know the root causes of [the appellant’s] longstanding history of non-compliance with medical care regimes and drug use”.

Issues

[4] The appellant appeals against sentence. He argues that the sentencing judge “took an unfair and harsh attitude in sentencing the appellant”, that the appropriate initial range is three to five years, and that the mitigating circumstances should have resulted in a sentence in the two- to three-year range. The appellant argues further that the sentencing judge erred by:

i) treating the case as one to which the intimate partner statutory aggravating circumstances applied;

ii) relying on this court’s decisions in R. v. A.J.K., 2022 ONCA 487, 162 O.R. (3d) 721, and R. v. Sousa, 2023 ONCA 100, 165 O.R. (3d) 641, to find that the appropriate sentencing range is three to eight years;

iii) accepting the Crown’s position that this was a case of two separate transactions;

iv) finding that the appellant’s mental health issues were “neutral” rather than mitigating; and

v) disregarding the appellant’s insight and remorse as demonstrated by his guilty plea, and commenting that the appellant held the views (towards women) “of a Neanderthal man”.

Discussion

[5] To start, we reject the appellant’s submission that the sentencing judge erred by finding that these assaults occurred in the context of an intimate partner relationship, an aggravating factor on sentence pursuant to s. 718.2(a)(ii) of the Criminal Code. The facts acknowledged by the appellant on his plea made it clear that this was a “dating relationship”; this was not their first, or even second, date, and this was not a one-night stand. Section 718.2(a)(ii) is not confined to long-term relationships, or to those who cohabit. The Criminal Code defines “intimate partner” as a “current or former spouse, common-law partner and dating partner”.

[6] We agree with the Crown that to accept the appellant’s arguments would be to enter into an amorphous and value-laden debate over whether the relationship was “serious enough” to trigger this section. The fact is that the appellant and the complainant had a pre-existing relationship, and this relationship is what allowed the appellant to arrange to meet the complainant in her home, where he betrayed her trust by sexually assaulting her. A breach of trust of this nature is what s. 718.2(a)(ii) is intended to address. As this court held in R. v. A.J.K., 2022 ONCA 487, 162 O.R. (3d) 721, at para. 76, “a pre-existing relationship between the accused and complainant places them in a position of trust that can only be seen as an aggravating feature on sentencing”; see also R. v. N.D., 2024 ONCA 777, at para. 42.

[7] However, in our view the sentencing judge did err in her treatment of Dr. Sheridan’s evidence, and by finding that the appellant’s mental health issues were a “neutral” factor. Both of these errors impacted the sentence imposed. Because these two errors alone require appellate intervention, there is no need to address the remaining grounds of appeal.

[8] Dr. Sheridan, who conducted a risk assessment and testified at the sentencing hearing, found that the appellant was a moderately low risk of reoffending. The Crown challenged Dr. Sheridan’s report as “somewhat limited” in value because he had only met with the appellant on three occasions, and because the appellant’s description of his conduct in his interviews with Dr. Sheridan was inconsistent with the facts he agreed to upon his guilty plea, thereby demonstrating a lack of insight into his offending behaviour. The sentencing judge accepted this submission, but took it even further, treating what she viewed as the appellant’s dishonesty as aggravating:

Dr. Sheridan’s risk assessment is of limited to no value to this court. This is not at all a criticism of Dr. Sheridan’s work. He is a highly qualified professional who is more than capable of preparing reliable risk assessments for offenders. In this case, however, his ability to accurately assess [the appellant’s] level of deviance and risk of recidivism was significantly hampered by [the appellant] hiding important truths from him and answering in a way that presented [himself] in the most favourable light.

For example, Dr. Sheridan was not provided with the highly aggravating statement of facts that was read out loud in this court and acknowledged as correct by counsel on your behalf.

[Y]ou provided a severely distorted version of events to Dr. Sheridan that suggested that [the complainant] initially reciprocated your sexual advances, leading [Dr. Sheridan] to believe that significant parts of this sexual encounter were consensual, that you were confused. These were not at all the facts that you acknowledged during your guilty plea and you deliberately chose to mislead [Dr. Sheridan], which shows a lack of insight on your part and limited remorse. [Emphasis added.]

[9] The sentencing judge erred by holding the appellant personally responsible for Dr. Sheridan not having received a copy of the agreed statement of facts and by effectively treating this as an aggravating factor and indicative of a lack of insight and remorse.

[10] The sentencing judge further erred by placing no weight on the favourable risk assessment. Although in cross-examination it was drawn to Dr. Sheridan’s attention that the facts agreed to by the appellant at the time of his guilty plea were of an encounter that was more aggressive and more violent than the description the appellant gave him, Dr. Sheridan was never asked what impact knowing those facts would have on his opinion. The sentencing judge should not have assumed that these facts would or should necessarily have altered Dr. Sheridan’s conclusions. Rather, and as Crown counsel urged, the trial judge could simply have acknowledged the limitations of Dr. Sheridan’s assessment, and treated the results as minimally helpful.

[11] With respect to the appellant’s mental health issues, the trial judge noted that she “does not know the root causes of [his] longstanding history of non-compliance with medical care regimes and [of his] drug use, [and] that is why it is a neutral factor in this case.” It is not entirely clear why the sentencing judge thought it necessary to know the root causes of the appellant’s mental health condition, or why that lack of information was relevant to the nature or length of the sentence. While it is the sentencing judge’s job to assign weight to the various factors, there was simply no basis on which to treat the appellant’s mental health issues as “neutral”, as opposed to mitigating.

[12] Having found that the sentencing judge committed errors in principle that impacted sentence, it falls to us to consider sentence afresh. We acknowledge that the offences committed by appellant were extremely serious. However, having weighed all of the mitigating and aggravating factors, we find that a fit and proper sentence is one of five years in the penitentiary, concurrent.

Conclusion

[13] For these reasons, leave to appeal sentence is granted. The appeal is allowed and the sentences of six years is reduced to five years, less the presentence custody credited by the sentencing judge. We would not interfere with the other terms of the sentence imposed.

“Gary Trotter J.A.”

“B. Zarnett J.A.”

“J. George J.A.”

[1] This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.