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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
Ontario Court of Justice
Date: 2024 06 07 Court File No.: Pembroke 21-1028
BETWEEN:
HIS MAJESTY THE KING
— AND —
N.L.
Before: Justice J.R. Richardson Heard on: February 16, 2024 Reasons for Judgment released on: June 7, 2024
Counsel: Caitlin Downing, for the Crown Adrian Cleaver, for the accused
Introduction
1Before 2021, the world was NL’s oyster. He had gone out of province to learn his trade and returned to Ontario where he managed to land an excellent, well-paying job with benefits. He met and married KL, who also had an excellent job. They had two children. They lived close to his family; he regularly saw his parents and his brothers and sisters. They also lived close to KL’s family.
2NL is no stranger to hard work. In fact, his work ethic is perhaps his greatest attribute. In addition to working full time in his trade, NL worked on the family farm and there is some evidence that he and KL started their own farming business.
3Other than long working hours, life should have been just about perfect.
4Unfortunately, things started to go off the rails in late 2020 and early 2021. They separated, reconciled and in July 2021, they separated again. About a week before this incident, KL also broke her ankle and was not permitted to weight-bear on her ankle. She had to convalesce at home.
5Because of NL’s deteriorating behaviour, on the date in question, KL told NL not to come to the residence. Among other things, NL told KL that he had the right to attend because it was the matrimonial home. He then attended, waved his penis in her face, and grabbed her breasts and buttocks in an attempt to initiate sex with her. He also urinated in the basement of the home, threw apple sauce and spilled beer on the floor in the basement.
6After he left, he cruelly tormented KL with vile text messages. He told her he took her wedding rings and threw them out at the side of the road. Despite all that had gone on, these rings had significant sentimental value to KL.
7In the lead up to the events of the night of August 7, he also cruelly tormented KL with vile and hateful text messages attacking KL as a wife and mother, describing to her sexual encounters he had with another women, and relaying the details of sexual encounters he had with her contemporaneously to those with the other women.
8All of this was exposed in the public forum of a trial in this case. If there is one word that could have described how KL must feel after everything has gone on it must be “humiliation”. Total, utter humiliation.
9This is the context in which, on January 19, 2024, I found NL guilty of sexually assaulting KL and mischief to property on August 7, 2021. That judgment is reported as R. v. N.L. 2024 ONCJ 43.
10Like so many cases involving domestic violence and sexual violence, the parties will never be in the position that they were in before the events of August 7, 2021 occurred. Their lives will never be the same.
11As I will relate below, KL continues to suffer long-term physical and psychological effects of what happened to her. I note that throughout the trial and the sentencing, KL told me that she fiercely loved NL and desperately wanted help for him. That’s why she called the police. She did not realise that the police are in the business of investigating crime; they are not a social service agency.
12At the conclusion of my reasons today, NL will be going into custody. He may well lose his job which may permanently affect his life. He will have a criminal record for sexual assault and it will probably be difficult for him to overcome the stigma associated with that record. He may have to declare bankruptcy because of his inability to pay his debts. He will probably be unable to pay support for KL and his children.
13NL and KL’s children, H and M, are probably the hardest hit by what happened here. Given their ages and the importance of avoiding issues with parental alienation, I hope that they do not know anything about this case. While NL was a terrible, cruel and abusive husband to KL, I have no doubt, based on the evidence that I heard, that NL wants to be a caring and devoted father.
14H and M’s world was completely disrupted on August 7, 2021 too.
15They went a significant period of time without seeing their father. They have now started to see him again. When I heard submissions on this matter in February, I was advised that they were seeing the accused approximately five hours a week. Earlier this week, I emailed the parties to ascertain whether there had ever been any change. I was advised that this remains in effect. I was further advised that NL calls the children every night at 7:00 pm. I was advised that family counsel has (wisely) decided not to pursue further parenting time until after the conclusion of these proceedings.
16Unfortunately as a result of the sentence that I will be imposing, their world and their time with their father will be disrupted again.
17NL’s family will be looking on as NL gets taken into custody. Short of burying a child, sibling or close friend, I can think of nothing worse for any parent, sibling or close friend to go through than to watch their loved one being led away in handcuffs.
18In this case, there are no winners. Only losers.
19During the trial:
a) NL testified that because KL has an undergraduate degree in psychology, she knew how to “play the system” to her own benefit. The reality is that KL did not wish charges against NL to be laid and she called the police in order to figure out how to get some space from NL and get help for him because of his rapidly deteriorating behaviour.
b) NL proffered the theory that KL and the investigating police officer participated in a conspiracy to have him charged and convicted. He alleged -- falsely -- that she fabricated her complaint and the investigating officer, who NL branded “a dishonest cop”, went along with her fabrication.
c) NL lied to police about taking KL’s wedding rings. He cruelly told KL by text that he threw them out on the side of the road. To date, the wedding rings have not been recovered.
d) NL proffered that KL planted the damage to the home, including the urine, spilled beer and apple sauce, in order to effect her desire to set him up. In the alternative, he alleged that his children, not he, caused the damage. The reality is that because KL had broken her ankle, at the time of these offences, she was not terribly mobile. The reality is that the children were not routinely in the residence at this time due to KL’s injury. The reality is that NL also texted KL after the fact with the entreaty, “you better clean that piss up.” He, not KL, and not the children, did the damage.
e) NL insisted that he went to the home on the date in question to see his children and swim with them in a blow-up pool, even though only one text message spoke about the children and there was no evidence that, given KL’s ankle injury, the children were there. In reality the vile, degrading misogynist text messages that he sent leading up to and after his attendance at the matrimonial home make it clear that he went there for the purpose of confronting KL and challenging her to “save the marriage”. He equated “save the marriage” with having sex with her and he attempted to force sex with her for that purpose.
20At the end of the day, there was virtually nothing about NL’s evidence that I believed. It was preposterous, laden with a conspiracy theory that did not exist, laden with lies and completely out of touch with reality.
The Victim Impact Statement
21KL’s Victim Impact Statement was filed as the first exhibit on sentence.
22She complained that after the charges were laid, NL and his family retaliated by ceasing contact with her and their children and ending support.
23She reiterated her evidence at trial: she wanted to get some help for NL “because his actions were so alarming and disturbing that he was unrecognizable.” She noted that she loved him “fiercely” and was convinced that he was mentally unwell.
24She stated,
I’ve since had time to reflect and begin to process the events through counseling and am still haunted by what took place. The words that were spoken and occurrences that took place that night playback in the form of intrusive thoughts often and more vividly each time I have to revisit the details. The sheer agony from the discovery that the life we’d built together and future plans to grow our family and business, my everything for 8 years had not been real was unimaginable. I am uncomfortable being in public places and have social anxiety about running into people I know who either ask how we’re doing or want all the details, or awkwardly completely avoid me, unsure of what to say.
25She stated that although her engagement rings were insured and appraised at $5000, she did not receive compensation for them. Her mattress and foam bed topper are permanently soiled. On June 5, as I was preparing my reasons for judgment, I sent the parties an email. One of the questions I asked was whether she ever received any compensation for her wedding rings. I was told she was not. I accept that she has not. There is a dispute as to the value of the rings. KL is steadfast that they are appraised at $5000. NL says that he paid about $2000 for them. I will be making a restitution order in relation to these items and the mattress bed topper and the rings in the amount of $3000. This is without prejudice to KL’s right to pursue additional damages for these items in a court of competent jurisdiction.
26She stated that during the incident that I found NL guilty of, he sat on her ankle with such force that she had to have corrective surgery resulting in the insertion of a plate and ten screws. She was unable to weight-bear and drive for several months. She now suffers with chronic pain. She has been unable to return to work in a physically demanding job. No medical evidence was filed to support this proposition and I note that NL was charged and convicted of sexual assault, not sexual assault causing bodily harm. While I have every reason to believe that what KL is saying about her physical injury is true, I do not have any independent medical evidence which supports it and although I accept her word, she is not a medical practitioner qualified to give an opinion regarding her injury and exactly how NL’s conduct may have exacerbated it.
27She expressed concern about how she will ever explain her separation from NL to her children later in life. As I noted, this is a valid concern. Someday, they may have questions. I am not concerned about KL engaging in parental alienation, but I am concerned with NL and his family. His evidence in this case demonstrates that he lives in one giant far-fetched conspiracy.
28In June 2023, she received word that NL had made threats to her in a conversation with a clinician working for the Office of the Children’s Lawyer. Because of this, she moved to a shelter for ten days and the judge hearing her case in family court finally granted a restraining order in November 2023.
29She is terrified that her daughter will end up with a spouse like NL and/or her son will grow up to be like him. Given what we know about the inter-generational transfer of domestic violence behaviour and negative attitudes towards women, this is a valid concern.
30She has been diagnosed with adjustment disorder. She reports problems with her memory, focus, organization and time management.
31She is now in a position that she never wanted to be in: raising her children as if she is a single parent.
32She ended her Victim Impact Statement by stating: “Your Honour, I have already endured enough heartbreak, physical pain, mental anguish and financial abuse. This has gone on for 2 ½ years and the nightmare that has become my life needs a meaningful ending.”
33The reality is that because of H and M, KL will have to have NL in her life, probably for the rest of her life. There will be weddings, funerals, school plays, athletic events, music recitals, graduations and family gatherings. It will be incredibly difficult and awkward – for everyone – but particularly for KL. As I said, H and M will have questions which will be awkward and difficult.
34This is one reason why, in our law, cases of domestic sexual violence are now treated equal, if not worse, than cases of stranger sexual assaults. The victim of a stranger sexual assault can usually take solace from the fact that they are unlikely to ever see their assaulter again. KL will never have that solace. She will have a rude reminder of what she went through every time she sees NL or hears his name. For her, there will never truly be an escape.
Evidence in Support of NL
35Defence counsel filed a number of documents in support of NL, which collectively became Exhibit 2 on sentence.
36NL completed a four-hour parent education and family stabilization course in October 2022. I note that this course was completed after the incident but before his trial. If the evidence he gave at trial is any indication, he did not learn anything from this course.
37NL also completed a four-hour course for anger in February 2024.
38NL wrote a letter to me on his own behalf. He stated:
a) That he is not “very good at talking” but he is getting help through the Employee Assistance Program at work. He stated that he had been seeing a counsellor since March 2023. I note that I was not given any reports setting out the number of sessions attended, the things discussed or the progress that NL has made as a result of this counselling.
b) He is on the waiting list for program called Caring Dads, which is offered by the local Children’s Aid Society.
c) He only sees his children five and a half hours a week. He expressed concern that as a result of sentencing, he will not be able to see his children at all. I note that another one of the questions I asked counsel in my most recent email was whether there had been any change in the parenting time. I understand that there has been no change since November 2023. Justice Hooper of the Superior Court of Justice made an Order that NL is entitled to see his children five hours a week. His parenting time is unsupervised, but because of the safety issues involving KL, pick-up and drop-offs are through the Supervised Centre in Pembroke.
d) Referring to his release order and the family court restraining order, he has followed the rules. He only communicates with KL through an application on his phone for the purpose of arranging pick up and drop offs of the children.
e) He is paying $1826 a month in child and spousal support. If he loses his job, he will not be able to pay his support and he may lose his job and benefits. He stated that the benefits also provide for KL, his children and himself.
f) He expressed concern that if he lost his job, he would have to declare bankruptcy.
g) He expressed a willingness to complete whatever courses or programs I ordered him to complete.
39Although he made bare submissions in Court that he was “remorseful”, nowhere in his letter does he detail any feeling of remorse, regret for what he has done or empathy for KL. There is no heartfelt apology, no beg for forgiveness, no realization of what a sham his evidence at trial was. NL’s focus is on how this offence will affect him – he might lose his job; he might have to go bankrupt; he might lose parenting time with his children. There is no realization whatsoever of the cost to others, particularly KL, of his actions.
40I am mindful of NL’s belief that he is not good with words. On that score, he has some insight.
41This may be why Courts wiser than I decided sometime ago that the lack of remorse is not an aggravating factor on sentence. So I don’t hold NL’s lack of an expression of contrition against him. I cannot, however, find that the bare mention of being “remorseful” is sufficient to find it mitigating. As the Chief Justice and Justice Rowe noted in R. v. Friesen 2020 SCC 9 at paragraph 165:
Remorse is a relevant mitigating factor (see Lacasse, at paras. 77-78). However, 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 ” (R. v. Anderson (1992), 74 C.C.C. (3d) 523 (B.C.C.A.), at p. 536) (emphasis in original)
42That is completely absent here.
43Counsel filed a number of letters of support from NL’s co-workers, family and friends.
44As I was preparing my reasons for judgment, another one of the questions I asked counsel to respond to was whether the persons who prepared letters were advised by NL what the purpose of these letters was.
45Today, I heard submissions that the Crown was able to reach four of them. They were all told that the letters were necessary to support NL through a family court proceeding where there was a risk that he would lose parenting time with his children. They were not told that they were to be used in support of a sentencing in criminal court, let alone the nature of the charges that NL was convicted of.
46I also heard submissions from defence counsel to the effect that NL reported that a number of the individuals are aware of the nature of the charges that he is facing.
47No less than 24 letters of support from NL’s coworkers:
a) GH is NL’s union representative. He noted that NL does not have any discipline on his work record, he is hard working and in 2019, he won an award for his performance at work. The letter also states that the union “is committed to doing everything in its power” to ensure that NL’s job is held for him. Despite this statement, which initially suggested to me that GH was aware that the letter was going to be used in a criminal court sentencing, when contacted by the Crown, GH stated that he did not know it was for this purpose. He added that if he had known, he would not have written the letter.
b) QM stated that NL was a good worker. NL has expressed pride in his work on the farm and his time with his kids. QM expressed the opinion, “I Think He’s A Good Influence For His Kids”. QM is one of the people that the Crown contacted who indicated that he was not aware of the intended purpose of his letter of support.
c) KG wrote positively of NL’s attitude at work including the fact that he was approachable. He noted that NL “speaks warmly” of his children, is hardworking, never lets anyone down and is a pleasure to be around.
d) RT described NL as competent in his trade. He stated that NL’s shift schedule allows him three days every weekend to spend with his family.
e) CM has known NL for six years. He described him as a “valuable, knowledgeable hard worker” and a “genuinely good valuable person.”
f) BF stated that NL was “responsible, reliable and hardworking.”
g) BC has known NL for a little over ten years. He stated that they have also become friends outside of work. He knows NL to be honest and trustworthy and a “dedicated family man who cares deeply about his family, especially his two children”. BC was another one of the individuals that the Crown contacted who indicated that he did not know that the letter of support would be used in a criminal sentencing.
h) AL has known NL for more than 11 years. In his experience, NL is polite, hard-working and always willing to help. He described NL as an “enthusiastic, sensible and graceful person.”
i) PV has known NL since June 2013. He described NL as a “fun-loving friend/co-worker”. NL has shared stories about his family, his farm and wood processing with PV. He stated that NL is a hard worker.
j) RF has worked with NL for four years. He described him as “efficient and dedicated to his work”. He noted that NL often speaks with happiness about spending time with his children.
k) TM has known NL for seven years. He described NL as “kind, honest and responsible”. He noted that NL has “a professional work ethic” and is “a team player”. He also expressed the view that NL was a “devoted and doting father”. TM also stated:
I do understand that [N] is going through some personal stuff at the moment, he has spoken to me in confidence and seems very remorseful of the choice he made. He has taken responsibility and is ready to move on in a positive way, making sure not to make the same mistakes again. If given the chance, I do believe [N] would take the opportunity to do the right thing and better himself.
l) BB stated that NL was “easy to work with and has a great sense of humour”. He noted that in addition to working with him, NL has assisted him with a construction project outside of work. He described NL as “a great person.”
m) DS has worked with NL for approximately eight years. He described NL as skilled at his trade, punctual and a person who gets along well with his coworkers. He described NL’s children as a “highlight in NL’s life.”
n) RM has worked with NL for eight and a half years. He described NL as kind, courteous, polite, humourous, pleasant, decent, reliable and trustworthy.
o) JB has worked with NL for 11 years. He described NL as hard working, caring, enthusiastic, funny and helpful. He noted that NL gets along well with others. He stated that NL has acted as a steward and Financial Secretary for his union. He has mentored students.
p) CS has known NL for 11 years. CS described NL as being friendly, polite and helpful. CS has made similar observations when they have associated outside of work.
q) DK has known NL for 10 years. DK described him as a “valuable resource”. He noted that NL has learned how to use new machinery in the trade and volunteers for more than his fair share of “dirty work” – referring to work that requires wearing PPE. He stated that he knows that NL loves to spend time with his children.
r) DM has known NL for 10 years. He described him as a “man who likes to laugh and is thoughtful of others.”
s) SH has known NL for 11 years. He stated that NL has helped him with projects in his home. NL has spoken to him about his separation from his wife and kids and he opined that this has been difficult for NL. He has witnessed NL deal with challenges at work “in a calm and reasonable way”. He stated that he knows NL to be “even-tempered and respectful” at work.
t) DL has known NL for 11 years. He described NL as polite hard-working, always willing to help, enthusiastic, sensible and graceful.
u) RL has known NL for 11 years and he has also worked with NL on the union executive. He described NL as a man who is “of great integrity” and dedication.
v) AA has known NL for 11 years. AA devoted his entire letter of support to discussing how important NL’s children are to him.
w) TL has known NL for over 10 years. He described NL as a “pleasant co-worker and friend.” He stated that NL “is a hard worker both in and out of work.” He noted that NL talks a lot about spending time with his children.
x) RC stated that he is also NL’s friend outside of work. He noted that NL is hard working, willing to learn, outgoing and he gets along with everyone. He stated that NL was reliable and he would stay late at work to get a job done. NL has also proudly discussed his children and family with RL. RL described NL as a “good person, a good father, and a good friend.”
y) JF stated that he had known NL for two years. JF reported that NL is very concerned about his children, including their financial future. JF is another individual who was contacted by the Crown and who indicated that he was not aware that the letter of support was being used in a criminal court sentencing. JF added that he would not have provided the letter if he knew it was for this purpose.
48Counsel filed ten letters of support from members of NL’s family:
a) NL’s uncle MB stated that NL is hardworking and he expressed fond memories with respect to the pride that NL seemed to take in his wife and family.
b) NL’s aunt CB expressed pride in the fact that NL left his home and the family farm to pursue his education out of province. She noted that he has taught her children about farm animals and he was attentive and interested in her children. She observed him to be patient, attentive, caring, and full of pride with respect to his children. She stated that she knew that NL was remorseful “for the pain that these charges have caused”. She expressed the view that what took place was “an isolated incident and certainly not normal for his character.”
c) NL’s uncle DB expressed pride in NL’s decision to go out of province to pursue his education and his trade. He noted that he observed NL to be kind, hardworking and a person who loves his children. He indicated that it was clear that NL had a solid work ethic and good job. He expressed shock at the charges because “it did not fit with the person that I know”. He stated that family was very important to NL.
d) NL’s cousin and neighbour BW stated that NL has helped him with farm animals and farm equipment. He has seen NL out with his children on four-wheelers and ski-doos.
e) PB, who has known NL all of NL’s life, expressed the view that that NL was “a responsible caring person who is hard working and always put his family first.”
f) NL’s younger sister KL stated that NL was a role model who taught her a lot about gardening and raising animals. She noted that farming can be a male-dominated occupation and when she was young, NL helped her overcome being intimidated by large animals and men. She recalled that in his youth NL was a lifeguard at a local pool and taught many children to swim. She stated with pride that NL was the first in her family to go to college and his success made her believe that it was possible for her too. She is now a member of the Canadian Forces and she stated that NL encouraged her when she decided to pursue this career. She stated, “He is very much an advocate of female empowerment.” She stated that he is a caring and doting father and recounted positive observations of NL interacting with his children. She also stated that he is a source of support for her parents.
g) NL’s younger brother ML described NL as a positive role model and great influence on his life. He noted that for a few years, he suffered from poor health and NL cut and split his firewood and bought him a washer and dryer. Like his sister, he recounted how NL taught him about farm animals. He attested to NL’s work ethic. He stated that NL is a loving, caring and patient father.
h) NL’s sister-in-law, who works as a teacher, described NL as a dedicated and loving father. She knows him to be committed to his family; he has a strong work ethic and he is an honest, reliable and trustworthy individual.
i) NL’s father KL discussed his son’s achievements in school, in his workplace, and on the farm with pride. He stated that NL’s sense of obligation for his family led him to leave a life he started in western Canada and return to Ontario to support his parents and his siblings, including his brother. He described him as a doting father. He stated that NL was “not good with words”, but he has reached out for support in the workplace and for other counselling since the verdict in this case.
j) NL’s mother LL, who testified at trial, stated that NL’s actions on August 7 were very “out of character” for him. She stated that he has followed Court orders, has taken on-line courses, and is on the waiting list for a parenting course. LL told me that she suffered a brain injury in 2020 – something that I was not aware of when she testified at trial – and NL has been a great support to her during her recovery from this injury. She stated that NL is an attentive father. He does not procrastinate or shirk responsibility.
49Counsel filed five letters of support from friends and acquaintances of NL:
a) NL’s friend AS stated that he has observed NL “display qualities that make him an upstanding individual.” He expressed the view that NL has always been a good friend to him and a positive influence on his children. He is generous and willing to help others. He is a person with integrity.
b) CN has known him for three years. She expressed the opinion that the offences are out of character for NL. He expresses care and concern for herself and her children. She stated that NL speaks passionately about his love for his children. She noted that he was able to spend Christmas Eve and part of Christmas Day with them and expressed the view that he is an “exemplary father figure.”
c) MZ stated that he has had “some small business dealings with” NL and “they always worked out good.” In his experience, NL is respectful and honest.
d) AR stated that he and NL were chums in high school. They became reacquainted in 2015 or 2016 through work. He stated that NL has “always been a hard working and honest individual”.
50I must exercise caution with respect to how I interpret these letters of support. Given the results of the Crown’s investigations, I am not convinced of their veracity.
51As Justice Antonio pointed out at length in R. v. Shrivastava 2019 ABQB 619, the Court must be careful in putting too much weight on “otherwise good character” as a mitigating factor. To do so “can undermine the denunciative and deterrent functions of criminal sentences” (at paragraph 87). It also ignores the fact that “[p]eople of good character, involved in pro-social careers or altruistic activities, are not immune from offending sexually…” and “[a]ll potential offenders must hear the message of deterrence. Major sexual offences must be denounced as a serious wrong, no matter who commits them.” (at paragraph 93).
52I note that vast majority of NL’s co-workers are men. I wonder how eager they would be to offer such glowing letters in support of NL if they saw and heard the evidence that I saw and heard at trial?
53With respect to the letters from his family, I understand that everyone in NL’s family loves him, support him and will never abandon him. That comes with the territory of being a good aunt, uncle, father, brother, sister and friend.
54They also did not hear the evidence that I heard and after reading their letters, I wonder if they even bothered to read the trial judgment which although anonymized, is a public document.
55I have to assume that they have not. Otherwise, how could anyone who had read that judgment view NL as a “dedicated family man” or as his sister put it, someone who is “very much an advocate of female empowerment.”?
56How could any right-thinking member of today’s society so enthusiastically endorse the author of the vile, degrading and misogynistic text messaging that NL sent to KL which are in evidence in Exhibits 3 and 6 at trial, most of which I detailed at paragraphs 174 to 199 of the trial judgment. Here are some highlights:
a) “R u going to fuck me U can make this easy or hard its up to u U can move ur stuff to the upstairs im going to live down stairs till the house sells”
b) “No i’ll be there tonight its my home to If u don’t fuck me its going to be gell 1 Its up to u if u want this to go smoothly Let me know how you want this to go Ill be home later tonight.”
c) “Im coming home. Every guys treated u like shit lol What do u want me to pick u up This is all ur fault all u had to do was fuck and clean and cook but u couldn’t Its not my fault u cant have sex or make meals.”
d) “Ya its my home r u going to fuck me If u don’t fuck me this is going to be hell Im staying at my home till the house sells If u don’t fuck me the house is going for sale”.
e) “Ok fine u want it this way u want to have it over ill stay at my house you cant U put out and get along with me or the house and everything else is gone where r u going to go Without me ur ficked what r ur parents going to gove u money if ur not going to fuck im hiving u 0 money and living at the house nothing u can do about it So either fix this marriage or go through hell Its up to u Ull owe me about 50000 to walk away from that house Where r u going to get 50000 mm So suck it up cunt and put out Hoarded mess as is would sell in a week.”
f) “Fix our marriage u get ur shit in order give me 2 more kids…. …Ill be home tonight have a nice day”.
g) “Lol Yes ur usless wife u cant cook u cant clean ur a horrible mother and u cant fuck See u tonight my shitty wife….”
57I have not repeated verbatim other vile, graphic text messages between KL and NL with respect to NL’s relationship with a person I now know as NS. If my decision is reviewed, I trust a reviewing court will look at them. Those messages depict the same horrible misogynistic behaviour on NL’s part that I discussed above.
58Accordingly, the letters of support are of little use to me in sentencing NL.
59The thinking that is expressed in these text messages is wholly unacceptable in today’s society. NL, and anyone who thinks in a similar way, should be ashamed for thinking this way.
60But, it is not a crime. NL has been found guilty because I have found beyond a reasonable doubt that he acted on these thoughts and proceeded to sexually assault KL and commit mischief. I must consider the way he thinks, however, because it is relevant to other sentencing principles. As the Chief Justice and Justice Rowe stated in R. v. Friesen, supra, at paragraph 180:
….we do emphasize that judges should be attentive to evidence of an offender’s misogynistic attitudes. Such attitudes may have a significant bearing on, among other factors, moral blameworthiness, insight and likelihood to reoffend.
The Incident Involving NS
61In one of her letters to the Court, NL’s mother LL made a vague reference to NL himself being a victim in March of 2021. I did not recall hearing any evidence about this during the trial and as I was preparing my reasons for judgment earlier this week, I asked the parties about it by email. Crown counsel responded with a copy of a police general occurrence report. I have not read it. I asked the parties to make submissions about whether I should read it.
62In those submissions, I was advised that NL had an affair with NS in late 2020. KL became aware of the affair. NL and KL reconciled. It was later learned that NS was pregnant with NL’s child. Despite the fact that the affair had ended, NS criminally harassed NL. NL reported this harassment to the police and NS was prosecuted.
63As I discussed in paragraph 57 above, there was vile, graphic misogynistic text messaging in evidence between NL and KL in which NL crudely describes his sexual relationship with NL, and stated that this relationship was happening at the same time as sexual relations with KL.
64Apart from that text messaging, I take nothing else from NL’s involvement with NS. Relationships break down. People have affairs. Sometimes, as here, they reconcile. It is a part of life. It does not factor into the sentencing one way or another.
Position of the Crown
65The Crown submitted that I should sentence NL to a period of incarceration of 18 months with three years probation to follow. She sought a SOIRA order for ten years because of the “numerous aggravating factors, present in this case”, a section 109 weapons prohibition for ten years, a DNA Order and a section 743 Order prohibiting contact with KL while NL was in custody.
66The Crown focussed their submissions on denunciation and deterrence. She noted it was aggravating that these offences took place in the context of an intimate partner relationship, and there is a breach of trust.
67The Crown also noted that the offences were prolonged and persistent and were perpetrated against KL when she was particularly vulnerable, having been rendered largely immobile due to the injury of her ankle. Finally, citing the text messages, the Crown noted that there were elements of premeditation, which is also aggravating.
Position of the Defence
68Defence counsel argued that the appropriate sentence was a Conditional Sentence of two years less one day. He argued that the letters filed support the proposition that NL acted terribly out of character on the date in question.
69He submitted that NL was paying $1826 a month in child and spousal support, which, if he went into custody, he would not be able to continue paying. He noted that NL has been on bail for over 900 days and has not breached once.
70Defence submitted that NL was a good father and a first offender.
Sentencing Principles and Their Application
71This case involves a sexual assault perpetrated in the context of an intimate partner relationship. At one time, such sexual assaults were considered to be less serious than those involving strangers or mere acquaintances. No longer. As Associate Chief Justice Fairburn stated in R. v. AJK 2022 ONCA 487 at paragraphs 73 through 76:
….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: see R. v. Ewanchuk, 1999 SCC 711, [1999] 1 S.C.R. 330, at para. 82.
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.
As the years pass, enlightenment on the implications of sexual violence continues to permeate our conscious minds. In Friesen, the court noted, at para. 118, that “our understanding of the profound physical and psychological harm that all victims of sexual assault experience has deepened” and, I would add, is continuing to deepen: see also R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3, at para. 37. As Moldaver J. stated in R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 1: “Without a doubt, eliminating … sexual violence against women is one of the more pressing challenges we face as a society” and “we can – and must – do better” (emphasis in original). This comment encapsulates why these sentencing ranges as they have come to be understood must be reconciled.
There is no justifiable reason for why sexually assaulting an intimate or former intimate partner is any less serious than sexually assaulting a stranger. The fact is that a pre-existing relationship between the accused and complainant places them in a position of trust that can only be seen as an aggravating factor on sentencing: Criminal Code, R.S.C., 1985, c. C-46, s. 718.2 (a)(ii). Therefore, contrary to the impression that may be left when contrasting the Smith range with the non- Smith range, the sexual assault of an intimate or former intimate partner can actually attract a greater sentence.
72Not only are sexual assaults against intimate partners no longer less serious than sexual assaults involving strangers or acquaintances, Associate Chief Justice Fairburn pointed out, that it is arguably more serious conduct.
73Additionally, old notions that based sentencing on the nature of the conduct have now also gone by the wayside. It is no longer permissible to base a sentence solely on a hierarchy of physical acts, with acts of touching at the bottom and penetration at the top in terms of severity. As Chief Justice Wagner and Justice Rowe stated in R. v. Friesen, supra, at paragraph 148:
The type of physical act can be a relevant factor to determine the degree of physical interference. However, courts have at times spoken of the degree of physical interference as a type of ladder of physical acts with touching and masturbation at the least wrongful end of the scale, fellatio and cunnilingus in the mid-range, and penile penetration at the most wrongful end of the scale (see R. v. R.W.V., 2012 BCCA 290, 323 B.C.A.C. 285, at paras. 19 and 33). This is an error — 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.
74As the majority noted in R. v. Goldfinch 2019 SCC 38 at paragraph 37, sexual assault of any kind can have significant consequences to the victim and results in serious costs to society:
Throughout their lives, survivors may experience a constellation of physical and psychological symptoms including: high rates of depression; anxiety, sleep, panic and eating disorders; substance dependence; self-harm and suicidal behaviour. A recent Department of Justice study estimated the costs of sexual assault at approximately $4.8 billion in 2009, an astonishing $4.6 billion of which related to survivors’ medical costs, lost productivity (due in large part to mental health disability), and costs from pain and suffering. The harm caused by sexual assault, and society’s biased reactions to that harm, are not relics of a bygone Victorian era.
75I pause to mention that this case certainly reflects that reality. KL’s Victim Impact Statement, detailed above, makes it clear that she continues to experience profound affects with respect to what has happened to her. As I have pointed out, the damage caused by NL has far-reaching impacts, not just on KL, but also on their children H and M, their families and society as a whole.
76There is a clear linkage between the kind of thinking that NL’s text messages to KL evidence, the perpetuation of myths and stereotypes against women and the commission of sexual offences against women. In AJK, Associate Chief Justice Fairburn cited Justice Moldaver’s decision in R. v. Barton 2019 SCC 33 with approval in the excerpt I have quoted above, but it is worth repeating his words:
We live in a time where myths, stereotypes, and sexual violence against women — particularly Indigenous women and sex workers — are tragically common. Our society has yet to come to grips with just how deep-rooted these issues truly are and just how devastating their consequences can be. Without a doubt, eliminating myths, stereotypes, and sexual violence against women is one of the more pressing challenges we face as a society. While serious efforts are being made by a range of actors to address and remedy these failings both within the criminal justice system and throughout Canadian society more broadly, this case attests to the fact that more needs to be done. Put simply, we can — and must — do better.
77Contrary to what NL and men like him think, women are not sexual objects who exist for the exclusive pleasure and servitude to men. They are not baby-making machines. They are not in a perpetual state of consent to have sexual relations whenever men demand it. They are not here to cook for or clean up after men.
78A wedding band does not signify a contract of servitude, slavery or subservience. It signifies commitment to love. When two people agree to enter into an intimate partner relationship – heterosexual or LGBTQIA2S+ whether in marriage, our outside of marriage, they are partners. Equal partners. Partnership extends to all aspects of their relationship – from the question of which of them is going to make the children’s lunches before bed to the question of whether they will make love when they retire.
79It astounds me that in Pembroke, Ontario, Canada in 2024 I have to state these simple, basic propositions. But here we are. I have seen the evidence.
80As I said at the outset, earlier in 2021, the world was NL’s oyster. He had a good job and a beautiful family. He should have put KL on a pedestal for helping him get there. Instead, in early August 2021, he dragged her through the mud and treated her worse than one of the animals on his farm.
81In this way, cases like AJK, Barton, Goldfinch and Friesen are important because they frame a criminal law response to individuals who commit serious criminal offences against women that are rooted in stone age beliefs with respect to women.
82I am mindful of the sentencing principle of restraint. A sentence cannot be punishment for the sake of punishment. It should be no longer and no shorter than what is necessary to give effect to the sentencing principles enshrined in our law.
83I am mindful of the mitigating factors. NL has no record. He is of otherwise good character. He is a hard worker.
84Although I have been critical of NL’s evidence at trial, I take nothing from the basic fact that he chose to test the allegations of the Crown in a trial. Putting the Crown to proof of the allegations must never be an aggravating factor. The Crown always has the onus of proof beyond a reasonable doubt. There can be no penalty against an accused who demands that the Crown discharge the onus. That said, by proceeding to trial, NL is not entitled to the sort of mitigation that comes with a guilty plea.
85I am mindful of the sentencing principle of proportionality – which the Chief Justice described in R. v. Lacasse 2015 SCC 64 at paragraph 12 as the “cardinal principle” of sentencing. Proportionality, he said, simply means that “[t]he more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be. The severity of the sentence depends, not only on the seriousness of the crime’s consequences, but on the moral blameworthiness of the offender.”
86I assess NL’s moral blameworthiness to be very high. I assess this crime to be serious; as I have pointed out, the consequences of this crime are serious, long lasting and far-reaching.
87I cannot lose sight of the importance of rehabilitation. In Lacasse, the Chief Justice stated that “Rehabilitation is one of the fundamental moral values that distinguish Canadian society from societies of many other nations in the world, and it helps the courts impose sentences that are just and appropriate.” May it ever be thus.
88There are cases, however, where rehabilitation, as important as it is, must take a back seat to the principles of denunciation and deterrence. This is one of those cases.
89The sentencing principle of parity refers to the notion that “similar offenders who commit similar offences in similar circumstances should receive similar sentences” (Friesen, supra, at paragraph 32).
90I turn now to examine some other cases.
91As I have pointed out the Court of Appeal’s decision in AJK makes it clear that the range of sentence for penetrative sexual assaults is three to five years. What of other forms of sexual assault? Does AJK mean that a conditional sentence is never available for a violent sexual assault?
92In R. v. RS 2023 ONCA 608, the accused was originally convicted of sexual assault and overcome resistance by choking by a jury. The parties were in an intimate partner relationship. The victim was in her apartment which was dark. The accused came in and they went to the ground. His hands were all over her. He touched her and undid her pants and underwear. He bit and sucked on her abdomen. He removed a tampon from her vagina. She said “no” but he continued and digitally penetrated her. She tried to get away from him and he grabbed her throat. She saw stars. He stopped grabbing her throat when she grabbed his hand. She was on her feet by the kitchen counter. He pushed her over and told her he wanted to “fuck her hard”. The assault was interrupted by an upstairs neighbour.
93The accused was Indigenous. There was violence and alcohol abuse when he was a child. His mother disappeared, probably at the hands of his father. He was apprehended by the Children’s Aid Society. He developed some alcohol issues himself while he was in university and in his 20s. He had a good job. He did not have a criminal record. There were many pro-social aspects of his life. He demonstrated remorse and insight into his thinking.
94The victim filed a Victim Impact Statement. In it, she indicated that she took an antiretroviral drug after the sexual assault which resulted in a number of serious side effects. She indicated that she was unable to sleep. She suffered from fear and anxiety and she had a lingering sense of violation; she did not feel secure when she was at home and she had general difficulty working and completing every day tasks.
95The trial judge sentenced the accused to two years less one day conditional on the sexual assault with 90 days intermittent concurrent on the choking charge.
96Justice Huscroft of the Court of Appeal, writing for himself and Justice Coroza, citing, inter alia, AJK, found that the sentence imposed was inadequate, stating, “….although conditional sentences are now available in sexual assault cases, proportionality remains key to sentencing. Conditional sentences will rarely, if ever, be appropriate in the context of violent sexual assault cases such as this.”. He found further that the sentence imposed by the trial judge did not adequately reflect that fact that the primary sentencing considerations in cases of sexual assault are denunciation and deterrence (see paragraph 39 of RS).
97Although Justice Huscroft found that the accused’s “moral culpability could rightly be considered to be reduced by his background ” (paragraph 40) the trial judge went too far. Justice Huscroft found that three years in the penitentiary would have been appropriate.
98Justice Paciocco dissented, finding that the trial judge’s sentence was fit, on the basis that the accused’s moral culpability was significantly reduced by his background. He noted that “notwithstanding that the sexual offence R.S. committed was serious, intrusive, degrading, violent, and damaging to the complainant”, “this case is a striking illustration of an offender whose criminal behaviour has been profoundly shaped by the damage done to him as a result of his indigeneity” and therefore the sentence was a reasonable one (see paragraph 48).
99Justice Paciocco’s dissent also focused on his view, supported by the recent Court of Appeal decision in R. v. Ali 2022 ONCA 736, that it was an error in principle to rule out a Conditional Sentence – in any case -- including sexual assaults – on the basis that denunciation and deterrence are the primary sentencing goals. He also found that it was an error in principle for a sentencing judge to hold that a conditional sentence cannot be imposed because it is outside the established range. In Justice Paciocco’s view, Justice Fairburn allowed for this in her discussion, quoted above, at paragraph 77 of AJK.
100Finally, citing the Supreme Court of Canada in R. v. Lacasse, Justice Paciocco found that the trial judge was entitled to deference because the sentence imposed was “arrived at after extensive consideration based on the correct identification of the proper principles of sentencing based on coherent, unchallenged findings of fact”, (paragraph 83) and thus could not be said to be “demonstrably unfit”, “clearly unreasonable”, “clearly excessive or inadequate”, or a “substantial and marked departure” or “an unreasonable departure from the principle of proportionality.” (see paragraph 85).
101In R. v. Maslehati 2024 BCCA 207, the accused was convicted of sexual assault after a trial. The conduct involved at least 88 minutes of oral sex on the complainant while she was sleeping. The complainant had earlier consumed beer and smoked marihuana with the accused and she was incapacitated when the offence took place. She said “no” or “don’t” four times. The accused was 60 years of age and had no prior record. The parties had known each other for 20 years. The complainant suffered epilepsy and she wanted to see if marihuana would help her with that condition. She did not want to try marihuana alone and she invited the accused to her apartment because she trusted him. The accused had a heart problem. A risk assessment indicated that the accused was at a low risk of reoffence. The Crown sought a carceral sentence of 30 months. Defence sought a conditional sentence. The trial judge found that an 18-month conditional sentence was appropriate.
102On appeal, at paragraphs 72 to 75, the British Columbia Court of Appeal laid out a number of factors that can be used by trial judges to assess the presence or absence of aggravating circumstances that help inform whether a conditional sentence might be available:
It is now generally recognized that all sexual assaults are “serious”, irrespective of the nature of the physical acts involved. As aptly noted in R. v. Merasty, 2023 SKCA 33 at para. 23: “[n]o matter what form it takes, a sexual assault is a forceful subjection of the victim to their assailant’s sexual desires” (emphasis added). Writing for the Court in R. v. A.J.K., 2022 ONCA 487 [A.J.K.], Associate Chief Justice Fairburn described all forms of sexual assault as “serious acts of violence” because: “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”: at para. 74. These comments are consistent with the Supreme Court of Canada’s more recent jurisprudence on sexual assault, including Kirkpatrick at para. 51 (set out above).
Accordingly, rather than describe some sexual assaults as “serious” and other sexual assaults as something other than that, I consider it constructive when distinguishing between cases for purposes of sentencing to focus on the circumstances surrounding the offence at issue, including the nature of the sexual contact, its duration, the context in which it occurred, and the actual and reasonably foreseeable harms that flowed from it. The more aggravating the circumstances, the objectively graver the offence.
Circumstances that may be found to elevate the already-inherent seriousness of a sexual assault (and are therefore aggravating), include:
- highly invasive, violative and/or demeaning sexual conduct;
- prolonged duration and/or repeated occurrences;
- additional physical violence and/or physical injury;
- administering drugs or alcohol to incapacitate the victim, or taking advantage of incapacity;
- threats and/or the use of a weapon;
- persistence in the face of communicated non-consent, or acts intended to overcome resistance;
- more than one offender involved;
- sexual assault in the presence of children;
- the violation occurs in the victim’s home;
- planning and/or steps taken to facilitate the offence;
- attempts to prevent disclosure or avoid detection;
- age of the victim;
- a particularly vulnerable victim;
- actual and reasonably foreseeable harms that flowed from the offence, including significant impact on the victim; and,
- breach of trust.
See also, s. 718.04 of the Criminal Code, the “aggravating circumstances” enumerated in s. 718.2 (a), and s. 718.201. A helpful discussion of relevant aggravating features can also be found at para. 78 of R. v. Bear, 2022 SKCA 69, albeit within the context of a starting point (as opposed to ranges) approach to sentencing.
This list of circumstances is by no means exhaustive. Moreover, whether the gravity of a particular sexual assault is elevated by aggravating circumstances, either singularly or in combination, requires an individualized and contextual assessment and it will be up to the sentencing judge to make this determination: Wells at para. 45. Sexual assault under s. 271 of the Criminal Code is “broadly-defined” and covers a “wide spectrum” of conduct: Friesen at para. 91. It also occurs in a wide variety of circumstances. It is up to the sentencing judge to determine, factually, whether there are aggravating circumstances, what they consist of, and, critically, the impact of those circumstances on the gravity of the offence in the particular context of the case.
103Citing, inter alia, RS, the British Columbia Court of Appeal found at paragraphs 113 to 115 that:
….a conditional sentence will generally not constitute a fit sentence for the kind of offence at issue in this appeal without a factual finding of diminished moral blameworthiness or compelling mitigation. See, for example, R. v. M.K.M., 2024 BCSC 575 at paras. 79–82.
Principally, this is because without either of those findings, a penitentiary term of at least two years’ imprisonment will generally be required in a prosecution by indictment with aggravating circumstances, even for a first-time offender. Accordingly, s. 742.1 is removed from consideration.
Secondly, even where imprisonment of less than two years is imposed, an absence of diminished moral blameworthiness or compelling mitigation will generally render a conditional sentence in a case with aggravating circumstances inconsistent with the fundamental purpose and principles of sentencing. Denunciation and deterrence are accepted as paramount in these cases. Proulx recognizes that incarceration usually provides greater denunciation than a conditional sentence: at para. 102. In my view, the need to denunciate sexual violence is “so pressing” that in the absence of diminished moral blameworthiness or compelling mitigation, incarceration is generally required to express society’s condemnation of the conduct: Proulx at para. 106.
104The court ultimately imposed a sentence of 28 months.
105In R. v. Lyons 2024 ONSC 969, the accused was found guilty after a trial of sexual assault which consisted of removal of the complainant’s clothing, kissing her stomach and putting his fingers in her vagina. Her child was present. The accused was in his late 40s; he had a “decent” childhood. He has four children from another relationship. He was working as a forklift operator. He was not remorseful. Numerous letters attesting to his good character were filed. The complainant was 22 at the time of the offence and a new immigrant to Canada. She was devastated by what happened to her. She lost trust in her family and friends, shunned everyone, lost weight, lost her hair, felt guilt and shame. The Crown sought 24 to 30 months in the penitentiary. Defence sought a 12 to 18 month conditional sentence. The accused had a criminal record which included a prior conditional sentence in 2000, and intermittent sentence in 2011. Citing AJK and RS, Justice Bloom declined to order a conditional sentence, and sentenced the accused to 18 months in custody, stating at paragraphs 32 to 36:
While a conditional sentence is available in the circumstances, I will not impose that disposition. Neither the use of a conditional sentence or probation, already imposed on the accused for offenses of violence, have deterred him from once again committing an offense of violence. A sexual assault is inherently an act of violence.
The offense in this case has had serious consequences for the victim as set out above.
I accept that the accused did not perpetrate upon her further acts of violence. I also accept that he has led a productive life; and has excellent prospects for rehabilitation, although he must learn to abstain from violence against others.
Denunciation and deterrence are central to my sentencing decision.
In all of the circumstances I sentence the accused to a term of incarceration of 18 months.
106In R. v. Hurst, 2023 ONSC 6448, the accused was found guilty of three counts of sexual assault after a trial by a jury. There were two victims. The sexual assaults took place in a workplace. The accused touched one victim’s leg between her knee and her bum, he squeezed her butt cheek and referred to her as his “sex-cretary”. He also squeezed the victim’s butt with both hands and grabbed her breasts with both hands. With respect to the second victim, there were three incidents which involved two instances of sliding his hand down the victim’s shirt and grabbing her breast, and one instance of rubbing her with his penis over her clothes. There was no gratuitous violence. The Victim Impact Statement filed for one victim noted that she had become withdrawn and reserved, she developed trust issues with men, she has engaged in therapy and is prescribed medication for depression and she lost her job. The accused was 46. He had a normal upbringing. He was close to his family. He was married and he had a nine year old son. He was employed full time as a truck driver. At the time of sentencing, he was serving a conditional sentence for other sexual offences. Justice Peterson imposed a global sentence of six months. At paragraph 79 of the judgment, Justice Peterson distinguished RS on the basis that “the circumstances of the offender and of the offence are so distinguishable that it is of little assistance to me in sentencing Mr. Hurst.”
107In R. v. GT 2022 ONSC 2619, the accused was found guilty at trial of a sexual assault which involved touching the complainant’s anus several times despite her direction not to. There was evidence that the parties had consensual vaginal intercourse and consensual oral sex. The parties were both summer students working at Algonquin Park. The accused was 23 years old. He had no prior record. He lost the prospect of long-term employment with the Ministry of Natural Resources as a result of the offence. Because of the delay caused by the pandemic, he was on bail for four years without commission of an offence. He ultimately expressed some insight. The victim impact focussed on the fact that she learned that the accused was enrolled in a university in her home town and because of this, she was too fearful to visit her friends and family. She indicated that she had flashbacks and triggers. Justice James imposed a conditional sentence of twelve months duration, followed by probation for 18 months.
108GT does not involve an allegation of intimate partner sexual assault. This is an acquaintance or stranger sexual assault. The victim impact is not as significant. The accused expressed some insight. There was consensual sexual activity (albeit begrudgingly on the part of the victim) before the contact became non-consensual and the accused disregarded the complainant’s direction not to touch her anus.
109In R. v. Holland 2022 ONSC 1540, Justice Schreck imposed a conditional sentence of eight months. The accused was a night club promoter. The victim was a patron. The accused invited the complainant to tour the night club. She agreed and consumed alcohol. He pulled down her pants and penetrated her vagina from behind with his penis or his finger. She told him to stop and he stopped. The assault was brief – lasting between 10 and 15 seconds. The accused was 33. He had no record. He was on bail without incident for six years, due to COVID-19. The sexual assault was historical. The complainant came forward after she heard that the accused was charged with another sexual offence. The complainant filed a victim impact statement in which she stated that she loathed herself, felt anxious and depressed, engaged in self harm, suffered panic attacks and night terrors. She was ultimately diagnosed with PTSD. She underwent treatment which has mitigated but not eliminated her symptoms. She completed her doctorate and has become a successful professional. Justice Schreck found that there was evidence that the sexual assault was planned. NK was intoxicated and vulnerable. The parties agreed that the accused should be sentenced on the basis that the penetration took place with his finger. Despite this, there was some stress to the complainant because she underwent and waited for the results of testing for a sexually transmitted disease. As is his right, the accused maintained his innocence throughout. He has no criminal record.
110Holland does not involve an allegation of intimate partner assault. This is an acquaintance or stranger sexual assault. The victim impact was significant but the complainant overcame a lot of it. The assault was quick. The accused stopped when the complainant told him to do so.
111In R. v. IFL, 2022 ONCJ 311, the accused was convicted at trial of sexual assault. The complainant was his wife. They were living separate and apart under the same roof. He went to her room and tried to remove her pajamas and touched her over her underwear. The accused had no record. The actual touching was brief, but there were protracted attempts to touch her over a period of 60 to 90 minutes. The conduct occurred when the accused was intoxicated. The complainant did not want the accused to go to jail because she was concerned about the impact that would have on their daughter, whom they shared custody of. He had a good job that he would lose if he were incarcerated. He would also not be able to pay support. Justice Kenkel found that a 12-month conditional sentence, to be followed by 12 months probation, was appropriate. Justice Kenkel noted at paragraph 12:
A custodial sentence would speak to general deterrence but at the cost of interfering with rehabilitation. There are many sexual assault cases where jail is nonetheless necessary, but I find that it’s not required in this case to address the same principles.
112In R. v. Arman, unreported, June 27, 2022. the accused was found guilty after a trial of sexually assaulting a young woman. He used the prospect of a job to lure her to a motel room. Once at the motel room, he insisted that she drink alcohol, he touched her hands, rubbed them with Vaseline, kissed her neck, touched her stomach and tried to unzip her pants. When she tried to leave, he grabbed her hand and placed it on his genitals. He kissed her on the lips and gave her money to pay for an Uber home. Justice Green described the accused’s conduct as “predatory and reprehensible”. The trial was difficult for the complainant who had to be coaxed into the courtroom to testify. She has not been able to attend a job interview since. She reported problems with lack of focus and triggers. She stated that she had to move to a different town out of fear of seeing the accused. She has been hospitalized multiple times for mental health related issues. She had difficulty sleeping and required “heavy medication” to get sleep. She had issues with her appetite. The accused was 43. He had a difficult upbringing. As a result of the offence, the franchisor changed the locks and prohibited him from running his business, resulting in the loss of approximately $400,000. He did not have a criminal record. The Crown sought a sentence of 9-12 months. Defence sought a conditional sentence of 12 months. Justice Green found that a conditional sentence was not appropriate and imposed a sentence of eight months in custody, to be followed by two years probation. She adopted the Ontario Court of Appeal decision in R. v. Macintyer-Syrette 2018 ONCA 706, [2018] OJ 4442 at paragraph 21, where the court stated:
A conditional sentence served in the community with individual counselling, as proposed by the appellant and supported by the Gladue reports, would not be a reasonable or proportionate sentence for this offence. This offence requires denunciation, as an affirmation of the dignity of the complainant, and no appropriate sentencing proposal or sanction, short of a custodial disposition, appears to be available.
113In R. v. Einollahi 2021 ONSC 6048, the accused was an Uber driver. He drove the victim, to a dimly lit field near her home, pulled her towards him by the back of the neck and kissed her. He then touched her breasts over her clothes and told her that she was hot. She was able to leave the car and run to her parents’ house. He was found guilty after a trial. The trial judge imposed a sixty-day conditional sentence. Justice Akhtar found that the sentence was demonstrably unfit and imposed a sentence of six months. He found that the appropriate range was six to nine months in custody. He found that the sentence imposed failed to reflect the required denunciation of the accused’s conduct.
114R. v. Ali 2021 ONSC 1648 was another case involving an Uber driver. He sexually assaulted two intoxicated women by touching their breasts with either his hands or his mouth. The sexual assault was confirmed by DNA testing. The accused was a first-time offender and the main breadwinner for his family. He had depression and addiction issues which he was starting to address at the time of sentencing. Justice Harris found that the appropriate sentence was nine months on each charge. He reduced the sentence on each charge by a month and a half to account for the length and restrictiveness of the accused’s bail conditions, including the fact that he was on house arrest.
Conclusions
115The law of sentencing in sexual assault cases is in transition. Care must be paid with respect to older authorities or authorities which do not take into consideration the principles in cases such as Barton, Goldfinch, Friesen, AJK and Maslehati.
116In more serious cases, appellate courts have made it clear that conditional sentences for violent sexual offences are increasingly rare because of the high moral culpability of the offenders and the harm that their offences cause.
117In less serious cases, the range of sentence still allows for the imposition of a conditional sentence.
118The seriousness of a sexual assault is no longer solely determined having regard to a hierarchy or ladder of conduct with penetration judged as most serious and touching judged as less serious. While this is still a factor that needs to be considered, it is not the only factor.
119The seriousness of a sexual assault is no longer determined having regard to the nature of the relationship with stranger or acquaintance sexual assaults being considered as most serious and intimate partner violence sexual assaults considered less serious.
120The focus is on the harm that is caused and the moral culpability of the offender.
121There will always be cases where there are compelling mitigating factors that bring an offender into the range of a conditional sentence.
122This is not one of those cases.
123This was a serious sexual assault perpetrated against a defenceless woman in her own home by her intimate partner. The text messages reveal elements of planning and deliberation. Fortunately, it was brief. It did not involve a weapon. Children were not present in the home when it occurred. While the sexual assault was serious, it did not involve horrifically invasive acts such as forced fellatio or forced penetration. The victim was particularly vulnerable because of the injuries to her ankle. Even without the injuries, she would have been no match for the accused who is a fit man in his prime. There is a breach of trust.
124The accused’s moral culpability is extremely high. His text messaging essentially reveals that, in committing the offences, he acted upon his misogynist beliefs. His pre- and post-offence conduct of tormenting the victim is aggravating.
125The harm that has been caused was foreseeable. I have already gone to great lengths to set it out. The victim will never be able to escape the reminders of what NL has done to her. No one who is a member of this family or is closely associated with this family will ever be the same. The accused has not demonstrated any insight into how his behaviour has affected the victim or his children. His focus is on what he has lost – his time with his children, the loss of his job.
126This case calls for a clear message to be sent. The Court will not condone this behaviour. A Conditional Sentence would not deliver that clear message. It would not adequately give effect to the principles of denunciation and deterrence. It is not proportionate. Only a carceral sentence will give meaning to these principles. Only a carceral sentence will reflect how abhorrent the accused’s behaviour was.
127The sentence will be as follows:
a) On the charge of sexual assault, twelve months in custody.
b) On the charge of mischief, thirty days in custody concurrent.
c) Following the accused’s time in custody, he will be placed on probation for a period of three years.
d) There will be a section 743.21 Order prohibiting the accused from having any contact with the complainant while he is in custody.
e) There will be an Order for the taking of his DNA. Sexual assault is a primary designated offence.
f) There will be a weapons prohibition under section 109 of the Criminal Code for ten years.
Released: June 7, 2024 Signed: Justice J.R. Richardson