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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 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 at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct 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 complainant of the right to make an application for the order; and

( b ) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Ontario Court of Justice

Date: 2022 06 06 Court File No.: Pembroke 20-0321

Between:

HER MAJESTY THE QUEEN

— AND —

GARRETT BEAL

Before: Justice J.R. RICHARDSON

Heard on: April 28, 2022; June 6, 2022 Reasons for Judgment released on: June 6, 2022

Counsel: Suzanne Schriek................................................................................. counsel for the Crown Michael Spratt.................................................................................. counsel for the accused

RICHARDSON J.:

Introduction

[1] The issue I must decide in this case is the length and nature of the appropriate sentence for a man with no criminal record and otherwise excellent character who I convicted of Sexual Assault against an intoxicated woman. The Sexual Assault took place in her own home, with her son sleeping in the next room.

Facts

[2] On December 8, 2021, after a trial, I found the accused guilty of one count of sexually assaulting CW contrary to section 271.

[3] CW lives in Petawawa and at the time of trial, she was a Captain in the Canadian Forces. She has a little boy who was seven at the time of the incident. Her son lived primarily with her. On the night in question he was sleeping in the next room.

[4] Garrett Beal is a Corporal in the Canadian Forces. At the time of the incident, he was single and he lived alone in the Town of Petawawa.

[5] The parties did not really know one another. They had met through the social media application “Tinder”. At trial I was told that Tinder displays a picture and a bit of information about would-be “matches” to people who subscribe to it. Both people have to indicate an interest in communication. They exchanged messages which meant that they were interested. CW testified that she found Beal attractive and nice.

[6] Apart from that, neither of them had ever pursued getting to know one another. They had mutual friends, one of whom had a dog. About a month before the incident, they took turns taking care of the dog for the friend, who is also in the military and was on deployment. They exchanged text messages about the dog and Beal went to CW’s house to pick up or drop off the dog. They also exchanged text messages about day-to-day things.

[7] On the night in question, CW had a party with her cousin and her cousin’s fiancée. Prior to the party, CW obtained marihuana and she made marihuana brownies. During the party, in addition to consuming the brownies, CW vaped marihuana. At trial there was evidence from a toxicologist, which I accepted, that because the marihuana was consumed orally, the effect of the “high” she experienced was more intense, took longer to take effect, but also lasted longer than it would if she had only smoked it.

[8] CW got a text message from Beal at 11:18 pm. They exchanged text messages between 11:18 and 11:58. During those text messages, CW initially was receptive to Beal coming over to her house and staying the night, but she later tried to change her mind. Only after Beal persuaded her that they were just going to hang out and that he was a good cuddler (just hanging out and cuddling being something both parties understood did not involve sex), did she relent and agree that he could still come over.

[9] During the text messaging CW told Beal a number of times that she was high. Beal indicated that he was drunk.

[10] As the text messaging progressed, as a result of the marihuana consumption, CW started to become extremely drowsy and she wanted to go to bed.

[11] Nonetheless, once Beal arrived, CW let him into her residence.

[12] Beal knew when he arrived that CW wanted to just hang out and cuddle. She did not want sex. He was hoping that she would change her mind and he would be able to have sex with her. He was going to “make a move” or “try his luck” at getting her to have sex with him.

[13] Upon his arrival the parties exchanged some small talk. CW was very tired and wanted to go to bed. Beal came with her. During the course of their conversation, CW raised the issue of whether Beal had transmitted chlamydia to a former girlfriend. Beal admitted that he had and told CW that he no longer had the disease. I found at trial that CW was not prepared to have sex with Beal in these circumstances.

[14] Once in her bedroom, CW undressed to her tank top and underwear and Beal undressed to his boxer shorts.

[15] Once they finished undressing, they got into CW’s bed. CW had her back to him initially and Beal started kissing her neck. CW turned and kissed him on the mouth and Beal responded in kind. This led to Beal touching CW over the clothes and under the underwear. CW touched Beal’s penis and started to masturbate him, which both parties referred to as a “hand job”. Neither party exchanged any words.

[16] Emboldened by the fact that CW reciprocated the kissing and the touching, Beal raised CW’s legs and commenced having vigorous sexual intercourse with CW which lasted approximately 15 minutes. This position allowed him to thrust his penis more deeply into CW’s vagina. It also allowed him to have physical control of CW. CW found this painful and asked him to stop. Instead of stopping immediately, Beal told CW that he was coming and he ejaculated inside CW. He did not ask her consent to the change in position.

[17] During the sexual intercourse Beal was on top of CW. CW was not strong enough to push Beal off her due his relative weight and size compared to hers. I also found that due to the effects of the consumption of marihuana, her ability to resist Beal was compromised.

[18] When CW went to the washroom to clean up and get something for Beal to clean up, she noticed a significant amount of fresh blood. She drew this to Beal’s attention and she was upset about it.

[19] Beal had already decided that he intended to leave immediately and return to the party he was at before he went to CW’s home. CW was not upset that Beal intended to leave; she was upset about the bleeding and she actually wanted Beal to leave.

[20] As a result of the vigorous sexual intercourse with Beal, CW suffered a deep internal cut to her vagina. This cut was painful and it produced a lot of blood. She was still very sore when the Sexual Assault Nurse examined her 14 hours later.

The Presentence Report

[21] After trial, I ordered the preparation of a Pre-Sentence Report. The Pre-Sentence report revealed the following information:

a) Mr. Beal is now 29 years of age. At the time of the offence, he was 26. b) Mr. Beal does not have a criminal record. c) Mr. Beal is the youngest of four children. He was born in Sackville, New Brunswick but moved to Alberta when he was five. The family resided in Peace River until he was 14, when they moved to Calgary. d) Mr. Beal was raised in a “normal” home with good parents who have been together for 40 years. His upbringing has been described as “Christian” and Mr. Beal worked as a teen and young adult as a camp counsellor. He is said to have not experienced any childhood trauma. e) Mr. Beal completed his Grade 12. He does not have any learning disabilities. f) After completing Grade 12, Mr. Beal went to the University of Calgary for one year. He left school to work as a labourer in construction. g) Mr. Beal enlisted in the Canadian Armed Forces at age 23. Garrison Petawawa is his first posting. He is a member of the Third Royal Canadian Regiment and he holds the rank of Corporal. He was described by his Lieutenant as “one of the stronger performing Corporals under his supervision.” h) Mr. Beal now has a relationship with Sionnan Cardillo. He met Ms Cardillo in January 2020 and started residing with her in April 2020. They continue to reside together. i) Despite the fact that on the night in question Mr. Beal described himself in the text messaging as “drunk”, he does not endorse a drinking problem. There is no family history of alcoholism; he started drinking in his late teens and his drinking took place only on weekends. There is no suggestion that Mr. Beal frequently drinks to excess. It is noteworthy, however, that when CW was contacted by the author of the Pre-Sentence Report for her views, she certainly felt that Mr. Beal’s use of alcohol was a factor in the offence. j) Mr. Beal does not endorse the use of drugs either. He denies using marihuana until after it became legal and even then, the PSR indicated that he “goes through phases with marihuana use” and “he dabbled in it”. k) There is no indication of any psychiatric or psychological issue. Understandably, he has developed some anxiety as a result of the situation that he finds himself in. l) The author of the Presentence Report strongly encouraged me to consider the need for a Psycho-Sexual Behaviours Assessment before imposing a sentence. After receiving the report, but before I heard submissions, I contacted Crown and Defence to ascertain whether this was something that they were prepared to consider. This was canvassed again when I heard submissions and the parties decided that this was unnecessary. m) As is his right, he maintains his innocence. He does not have any remorse. The author of the Report was concerned that this would have an impact on specialised counselling that may be ordered as part of Mr. Beal’s sentence. n) The author of the Presentence Report concluded that Mr. Beal was a suitable candidate for community supervision.

[22] I was hoping that the Presentence Report would give me some insight as to why this offence took place. Unfortunately, it does not. Unlike the vast majority of offenders that come before the court, Mr. Beal does not present with any psycho-social background that goes any distance in helping me.

Victim Impact Statement of CW

[23] Although CW advised the author of the Pre-Sentence Report that she did not wish to provide information with respect to Victim Impact, CW did prepare a Victim Impact Statement that was filed as an Exhibit. The Impacts that she described are summarized as follows:

a) She is coping with the fact that she is a victim and this has caused her to re-evaluate how she sees herself. b) She has tried to “tuck away” what happened and only deal with it when she has to. She avoids discussions and situations that force her to think about what happened. She also avoids “certain settings”. c) She is in counselling and on anti-depressants to help her cope because she realises that she is unable to deal with it on her own. I note that there was evidence at trial that CW was on a mild dose of anti-depressant at the time of incident. Nonetheless, I accept what she has indicated about the need for counselling and the difficulty with trying to cope on her own. d) She is no longer able to participate in Brazillian Jiu Jitsu, a sport that she previously loved, because she has significant anxiety about having the kind of close physical contact with men that she must engage in to take part in that sport. e) She is fearful and uneasy about letting a stranger into her personal space. f) She has lost her “naivete that people are all generally good and kind and respectful of each other’s bodily autonomy”. g) She feels guilty about coming forward and participating in holding the accused accountable. She recognises that this will have a profound effect on Mr. Beal’s life. The irony that she feels guilty but Mr. Beal does not is not lost on her.

[24] None of these impacts are surprising. As Justice Cory wrote in R. v. McCraw over thirty years ago:

The psychological trauma suffered by rape victims has been well documented. It involves symptoms of depression, sleeplessness, a sense of defilement, the loss of sexual desire, fear and distrust of others, strong feelings of guilt, shame and loss of self-esteem. It is a crime committed against women which has a dramatic, traumatic impact. [1]

[25] This offence has resulted in life-altering consequences for the CW. She will never be the same. No sentence for Mr. Beal will ever be able to replace what she has lost.

Letters of Support for Mr. Beal

[26] I received 31 letters of support for Mr. Beal. All of the authors attest to the fact that on the night in question Mr. Beal’s actions were entirely out of character with the man that they know.

[27] Many of them expressed shock and disbelief that Mr. Beal could be capable of committing this offence. Some expressed outrage with the findings of the court.

[28] Mr. Beal has incredible family support, wonderful friends and supportive colleagues.

[29] All of the letters described Mr. Beal as a kind, caring, and compassionate man.

[30] Until this conviction, it was Mr. Beal’s dream to be a Police Officer. Many of the letters tell me that the fact that this conviction and sentence has extinguished that dream will be devastating for him.

[31] He has been involved in community activities.

[32] Many commented on a strong work ethic. He enjoys the respect and admiration of his peers in the Canadian Forces.

[33] He has assisted his partner in dealing with her mental health issues. She indicated that she has seen “no evidence of substance abuse or lack of control with alcohol.” He is always respectful to her in their relationship. They were saving for a house but the funds were diverted to fund Mr. Beal’s defence. She told me that they have put off their plans to marry and she is understandably concerned about the effect of Mr. Beal being on the Sex Offender Registry will have on their future.

[34] In one letter, Ms Girard-Jobin of the 2 Field Ambulance, Mental Health Services, told me that as of April 4, 2022, Mr. Beal has sought out and attended two sessions of “brief supportive counselling… to address current psychosocial stressors.” The letter does not provide any information with respect to what those stressors are or whether he was dealing with them when the offence was committed.

[35] Mr. Beal also has two offers of employment. Dynna Foundations Ltd. has offered Mr. Beal an apprenticeship in Carpentry in Penticton, British Columbia. The second offers him a position as a Framer’s Helper at Clear Creek Contracting Ltd. In Okotoks, Alberta.

[36] All of the letters make two things very clear: First, Garrett Beal’s actions on February 29, 2020 were entirely and completely out of character. Secondly, this conviction and the sentence that I will impose has had and will continue to have life-altering consequences for him.

The Positions of the Parties

Defence Submissions

[37] On Mr. Beal’s behalf, Mr. Spratt submitted that the appropriate sentence was in the area of 18 months. He reviewed many of the conclusions from the letters of support, which I have summarized above. He argued that the offence is out of character with Mr. Beal, who up to this point has led an impeccable, offence-free life.

[38] He pointed out that Mr. Beal has a solid work record in the Canadian Forces. He stated that the Pre-Sentence report recommended Mr. Beal as a suitable candidate for community supervision. He stated that Mr. Beal has taken the findings of the court seriously and will take the sentence imposed seriously. He argued that Mr. Beal has been deterred by going through the court process. He stated that Mr. Beal will do what he is told to do in any order I make.

[39] He maintained that at 28 years of age, Mr. Beal should be considered as a youthful offender. Despite his youth, on the other hand, Mr. Spratt argued that Mr. Beal is old enough that he has a positive and pro-social track record.

[40] While acknowledging that the principles of denunciation and deterrence were of primary importance in this case, Mr. Spratt argued, persuasively, that the out-of-character nature of the offence together with a strong, stable circle of support of family and friends elevated the principles of restraint, rehabilitation and reintegration.

[41] Ultimately Mr. Spratt urged me to consider a Conditional Sentence and acknowledged that such a sentence was normally “outside the range”. He cited the two job offers and argued that Mr. Beal was also willing to do community service. He argued that incarcerating Mr. Beal was not required for the protection and safety of the public.

[42] In short, he stated that Mr. Beal was deserving of an exemplary sentence.

Crown Submissions

[43] The Crown argued that Mr. Beal was deserving of an exemplary sentence in the other direction and that the appropriate sentence was three and a half to four years in the penitentiary.

[44] Ms Schriek argued that the principles of denunciation and deterrence were the primary objectives. She allowed that the there were a number of mitigating factors, including the fact that this was Mr. Beal’s first offence, he is youthful, he had good employment and was of good character. She agreed that the Pre Sentence Report was positive.

[45] With respect to the letters of support, Ms Schriek maintained that these letters have diminished weight, citing the decision of Justice Griffiths of the Ontario Court of Appeal in R. v. Profit. [2]

[46] She urged me to consider a number of aggravating factors, including the following:

a) The offence was committed while CW was in the sanctity of her home. b) Her young son was sleeping next door. c) The text messaging showed an intention to have sex with CW regardless of her feelings about it. d) CW was fatigued and had low energy as a result of the consumption of marihuana. Mr. Beal knew this and took advantage of it. e) Mr. Beal engaged in demeaning behaviour to CW, citing the fact that he lifted her legs to such a degree, that he hurt her, that he ignored the pain that she was in, and that he later ignored the bleeding she suffered. f) The form of sexual assault – full penetration – was intrusive. There was no stopping part way through. The assault took place “full on” until Mr. Beal finished. g) CW suffered a deep cut that was still hurting several hours later when she was examined at the hospital. h) There was no use of a condom which exposed CW to sexually-transmitted disease. There was evidence at trial that CW had taken medication to counteract this possibility. i) The impact to CW is significant, as evidence by her Victim Impact Statement.

[47] Ms Schriek persuasively argued that sentencing in sexual offences involving adults should reflect the approach recently taken by the Supreme Court of Canada in R. v. Friesen [3] in dealing with sentencing in sexual offences against children.

Analysis

The Sentencing Provisions in the Criminal Code

[48] Section 718 of the Criminal Code sets out the fundamental purpose of sentencing:

The fundamental purpose of sentencing is 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 by imposing just sanctions that have one or more of the following objectives:

a) To denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; b) To deter the offender and other persons from committing offences; c) To separate offenders from society, where necessary; d) To assist in rehabilitating offenders; e) To provide reparations for harm done to victims or to the community; and f) To promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community.

[49] Section 718.1 of the Criminal Code sets out the fundamental principle in sentencing: “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

[50] Section 718.2 sets out “Other Sentencing Principles”. The relevant paragraphs of section 718.2 are:

a) A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the forgoing,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim; (iv) evidence that the offence had a significant impact on the victim, considering their age and personal circumstances, including their health and financial situation,

Shall be deemed to be aggravating circumstances;

(b) a sentence should be similar to offences imposed on similar offenders for similar offences committed in similar circumstances;

(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…..

[51] In Lacasse, Justice Wagner (as he then was) noted that sentencing is “one of the most delicate stages of the criminal process” because a sentence that is too harsh or too lenient will undermine public confidence in the administration of justice. [4] He described the principle of proportionality in section 718.1 as a “cardinal principle”. [5]

[52] Lacasse also clarified the importance of sentencing ranges laid down by appellate courts within this rubric as “primarily guidelines and not hard and fast rules” [6]. Justice Wagner stated:

There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender's degree of responsibility and the specific circumstances of each case. LeBel J. commented as follows on this subject:

A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred. [7]

What is the Appropriate Range of Sentence for This Offence?

[53] There are a number of divergent authorities from the Court of Appeal which are difficult to reconcile. Mr. Spratt urges me to find that the appropriate range of sentence for Mr. Beal’s crime is between 18 months and three years. Ms Schriek, on the other hand, argues that the appropriate range is between three and five years.

[54] In R. v. Ghadghoni [8], one of the cases relied upon by Mr. Spratt, the accused and the complainant met over social media. They then went separately to an event at a nightclub. While at the nightclub, the complainant became very intoxicated. The accused took her home. She was so intoxicated that she could not get out of the car or walk by herself. He would later claim that she initiated sex and participated enthusiastically before they both fell asleep. Later on, when they woke, he said that she initiated sex again. The complainant’s evidence was that she woke up to find the accused penetrating her from behind. She told him to stop two or three times and he replied, “hold on”.

[55] The accused was 22 years of age at the time of the offence. He suffered a severe brain injury when he was a child that left him with problems with impulsivity, distractibility and self control. The trial judge found that the appropriate sentence was 36 months. Due to the accused’s cognitive deficits, the trial judge imposed a sentence of 30 months. The accused appealed. Citing Lacasse, the Court of Appeal did not interfere with the trial judge’s sentence. Justice Pardu noted that:

I further agree that the usual range identified in past jurisprudence for sexual assaults committed in similar circumstances has been between 18 months and three years. [9]

[56] Mr. Spratt also relied upon R. v. Hughes. In this case the Court of Appeal upheld an 18 month sentence where the accused, a student in university, raped the complainant in her dorm room. The Court of Appeal stated, “This was a rape. Even when, as in this case, there are many legitimately strongly mitigating factors, a significant reformatory sentence is a fit sentence.” [10]

[57] The Court of Appeal overturned a ninety day intermittent sentence imposed by the trial judge in R. v Garrett [11], which is a case Ms Schriek relied upon. In that case the Court substituted an 18 month sentence in a case where there was non consensual intercourse.

[58] In R. v. Bradley [12], the accused was a police officer and the complainant was a young Aboriginal woman who wanted to be a police officer. They originally met through a high school co-op placement, but eventually the accused became the complainant’s friend and mentor. In 1992, she invited him over to her house and he raped her vaginally and anally. At the time of the offence, the accused was 39. After trial, the accused was sentenced to four years in the penitentiary.

[59] The Court of Appeal found that trial judge erred in sentencing the accused because the trial judge referred to the accused’s decision to proceed to trial and lied and fabricated his evidence in that trial. The Court of Appeal varied the sentence to three years imprisonment. In doing so, it noted that:

We accept the Crown’s submission that, in the circumstances, the appropriate range of sentence was three to five years. Without in any way diminishing the devastating impact the assault had on the complainant, we find that, in the circumstances, a sentence at the low end of the range is fit. The conviction was for a single count of sexual assault. There was no violence apart from that which is inherent in such an offence. The offence had occurred many years prior to trial and the appellant, a man in his early fifties, had no prior criminal record. In addition, there was much evidence on his otherwise unblemished character and positive role as a father, especially to his two youngest children. [13]

[60] Ms Schriek also cited R. v. Smith. In Smith, the Court of Appeal found that “…in cases of sexual assault involving forced intercourse with a spouse or former spouse, sentences generally range from 21 months to four years.” [14]

[61] Further support for Ms Schriek’s position comes from the Court of Appeal’s recent decision in R. v. Henry [15]. There, the Court found that the proper range in a case that involved forced fellatio and forced vaginal intercourse was between three and five years.

[62] Smith and Bradley were recently considered by the Court of Appeal in the case of R. v. PM. PM was decided after I heard the sentencing submissions in this case. The trial judgment in PM was relied upon by Ms Schriek in her submissions.

[63] In that case the accused was a 37 year old Congolese refugee with no prior record. He had a relationship with the complainant going back approximately nine years. They had a child together and they stayed together from time to time. The sexual assault occurred after the accused had tried, without success, to persuade the complainant to let him into her apartment on the evening before. He followed the complainant into her apartment uninvited and dragged her to her upstairs bedroom, pushed her onto her bed, performed oral sex, digitally penetrated her, and had vaginal intercourse with her against her will. He was not wearing a condom and he ejaculated inside of her. Although there is no indication that the complainant’s children witnessed these events, they were present in the home. The accused absconded prior to sentencing and the trial judge that found that this indicated that his prospect for rehabilitation was poor. The trial judge sentenced the accused to three years in custody and six months consecutive for the assault.

[64] On appeal, the Court of Appeal noted:

Even taking account of the appellant’s first offender status and the collateral immigration consequences arising from his conviction and sentence, we consider that the two-year sentence suggested by duty counsel would not be a fit sentence in all the circumstances.

We agree with the trial judge’s conclusion that the fact that the appellant absconded indicates the prospects of his rehabilitation are remote. This was a serious sexual assault perpetrated in the complainant’s home in blatant disregard of the complainant’s protests. It was accomplished through violence and followed a prior assault and threat to inflict bodily harm. The three-year sentence that was imposed properly reflects the gravity of the offence and the appellant’s moral blameworthiness. He committed a serious breach of trust and was not entitled to the mitigating effect of remorse that could have been reflected in a guilty plea. Denunciation and deterrence must assume prominence in these circumstances. However the applicable sentence range might be described, in our view, a two‑year sentence for this offence and this offender would simply not be proportionate in all the circumstances. [16]

[65] Lastly, Ms Schriek argues that the increase in sentencing mandated by the Supreme Court of Canada in R. v. Friesen in cases involving sexual assaults against children should also apply to sexual assaults against adults. As authority for this she cites the Court of Appeal’s decision in R. v. Brown, where at paragraph 59, Justice Trotter stated:

Sexual offences raise particular considerations in the proportionality analysis. In R. v. Friesen, 2020 SCC 9, the Supreme Court said, at para. 75: "In particular, courts need to take into account the wrongfulness and harmfulness of sexual offences against children when applying the proportionality principle. Accurately understanding both factors is key to imposing a proportionate sentence." There is no reason to think that it does not also apply to sexual offences at large. As the Supreme Court observed, "taking the harmfulness of these offences into account ensures that the sentence fully reflects the 'life-altering consequences' that can and often do flow from the sexual violence": Friesen, at para. 74. [17]

[66] So how does one reconcile these principles to find the appropriate range of sentence.

[67] The divergent cases from the Court of Appeal make it clear that there is no “one size fits all” approach. Lacasse makes it clear that the weight that sentencing judges give to various aggravating and mitigating factors within the range are up to that particular judge, and, so long as there is no error in the principle underpinning that weighting the appellate courts cannot interfere. The post- Lacasse cases reflect that approach.

[68] Thus, there is a broad range of sentencing that is available here, anywhere from 18 months to five years, depending upon the facts of each particular case and how various judges have weighed the various aggravating and mitigating circumstances. That is how the seemingly divergent authorities from the Court of Appeal can be reconciled. It is also how I reconcile the divergent views in the other authorities relied upon by counsel, including:

a) R. v. Lamure, [2019] ONSC 2144 [18], where the Superior Court imposed a sentence of two years imprisonment b) R. v. Ignacio, [2019] ONSC 2832 [19], where the Superior Court imposed a sentence of twenty months imprisonment in what was described as a “classic date rape scenario”. c) R. v. Diaz, [2017] ONSC 1883 [20], where the Superior Court imposed a sentence of twenty months imprisonment in a case where there was unprotected anal sex without consent after they had consensual vaginal intercourse. d) R. v. MM, [2017] ONSC 1829 [21], where the Superior Court imposed a sentence of four years imprisonment in a case of forced vaginal intercourse perpetrated by an accused with an extensive criminal record, a history of violence against women, who taunted the complainant after the act. e) R v. McCaw, [2019] ONSC 3906 [22], where the Superior Court imposed a sentence of forty months in a case where there was forced vaginal intercourse with an unconscious intoxicated complainant.

[69] As to whether I should, as I was invited to do by Ms Schriek, decide that sentencing for sexual assaults against adults should move higher, I decline to do so. As Justice Wagner stated in Friesen:

Sometimes, an appellate court must also set a new direction, bringing the law into harmony with a new societal understanding of the gravity of certain offences or the degree of responsibility of certain offenders (R. v. Stone, [1999] 2 S.C.R. 290, at para. 239). When a body of precedent no longer responds to society’s current understanding and awareness of the gravity of a particular offence and blameworthiness of particular offenders or to the legislative initiatives of Parliament, sentencing judges may deviate from sentences imposed in the past to impose a fit sentence (Lacasse, at para. 57). That said, as a general rule, appellate courts should take the lead in such circumstances and give sentencing judges the tools to depart from past precedents and craft fit sentences. [23]

[70] In my view, unless and until an appellate court takes the lead, as the Supreme Court of Canada did in Friesen, the law is it presently stands provides me with more than sufficient scope to craft an adequate sentence for Mr. Beal. The sentencing ranges that have been established, divergent as they are, respond to society’s current understanding and awareness of the gravity of these offences and the moral blameworthiness of the offenders who commit them.

The Appropriate Sentence

[71] In weighing the aggravating and mitigating circumstances here, Mr. Beal is a first-time offender. He is young.

[72] He has strong support from family and friends.

[73] He has lived a blemish-free life up to this point.

[74] He has excellent prospects for his future. While his dream to be a Police Officer has no doubt been dashed, he has a solid plan to move on with his life, including two job offers.

[75] The positive attitude that many who know him commented on in their letters of support will no doubt sustain him through the turbulent days ahead.

[76] Mr. Beal is not entitled to mitigation for an early guilty plea. This is a neutral factor.

[77] I believe that he minimizes the likely impact that the consumption of alcohol had on his behaviour on that particular night.

[78] This was a forceful sexual assault perpetrated against an intoxicated woman, by a man she barely knew, in her own home while her little boy slept in the next room.

[79] Emboldened by alcohol, Mr. Beal decided that he wanted to have sex that night and he followed through on that quest with determination. Cuddling was the farthest that CW wanted to go and she clearly communicated that to Mr. Beal.

[80] The sexual assault that followed was intrusive, painful and degrading.

[81] He did not wear a condom.

[82] He did not stop when she asked him to do so.

[83] CW suffered a serious physical injury. She had endure a Sexual Assault examination.

[84] While those physical wounds have no doubt healed, the psychological scars remain and they will be something that she will be dealing with for a very long time, if not for the rest of her life.

[85] Mr. Spratt asked me to consider a conditional sentence. I cannot. While there are many mitigating factors here, the facts of this case are simply too aggravating for me to do so. A conditional sentence does not adequately and squarely hold Mr. Beal accountable for his crime. It is not proportionate. The principles of denunciation and deterrence require a more significant sentence.

[86] The Supreme Court of Canada has stated a number of times (most recently in R. v. Bissonnette, 2022 SCC 22) that “T he sentence must be severe enough to denounce the offence but must not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence.” [24] In this case, I simply do not believe that a conditional sentence is severe enough to denounce the offence. It does not adequately reflect Mr. Beal’s moral blameworthiness for his crime nor does it reflect the gravity of the offence he committed.

[87] That said, I do not agree with Ms Schriek that a sentence of between three and a half to four years is mandated here. To impose such a sentence would, in my view, ignore the many mitigating factors in play, exceed what is just and appropriate and crush Mr. Beal.

[88] Mr. Beal, I sentence you to twenty four months in the penitentiary. Your sentence will be followed by three years probation. The probation order will be non reporting after the first year.

[89] Pursuant to section 743.21, during your period of incarceration, you shall have no contact directly or indirectly with CW.

[90] Pursuant to section 109, you are subject to a mandatory ten year firearms prohibition.

[91] Pursuant to section 490.11, I order you to comply with the Sex Offender Information Act for a period of twenty years.

Released: June 6, 2022 Signed: Justice J.R. Richardson

[1] R. v. McCraw, [1991] 3 SCR 72 at paragraph 31. [2] R. v. Profit, [1992] OJ 2238 (Ont. C.A.), Griffiths, J.A., aff’d 1993 SCJ 104. [3] R. v. Friesen, [2020] SCJ 100. [4] R. v. Lacasse, 2015 SCC 64, [2015] 3 SCR 1089 at paragraphs 1, 3 and 12. [5] R. v. Lacasse, supra, at paragraph 12. [6] R. v. Lacasse, supra, at paragraph 60. [7] Lacasse, supra, at paragraph 58. [8] R. v. Ghadghoni, [2020] ONCA 24. [9] R. v. Ghadghoni, supra at paragraph 48. [10] R. v. Hughes, [2017] ONCA 814 at paragraph 18. [11] R. v. Garrett, [2014] ONCA 734. [12] R. v. Bradley, [2008] ONCA 179. [13] R. v. Bradley, supra, at paragraph 18. [14] R. v. Smith, [2011] ONCA 564 at paragraph 87. [15] R. v. Henry, [2022] ONCA 191. [16] R. v. PM, [2022] ONCA 408 at paragraphs 21 and 22. [17] R. v. Brown, [2020] ONCA 657 at paragraph 59. [18] R. v. Lamure, [2019] ONSC 2144. [19] R. v. Ignacio, [2019] ONSC 2832. [20] R. v. Diaz, [2017] ONSC 1883. [21] R. v. MM, [2017] ONSC 1829. [22] R. v. McCaw, [2019] ONSC 3906. [23] R. v. Friesen, supra, at paragraph 35. [24] R. v. Bissonnette, 2022 SCC 22 at paragraph 50.