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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
Court File and Parties
ONTARIO COURT OF JUSTICE
DATE: 2024 06 24 COURT FILE No.: Pembroke 21-0843
BETWEEN:
HIS MAJESTY THE KING
— AND —
PC
Before: Justice J.R. Richardson
Heard on: April 26, 2024 Reasons for Sentence released on: June 24, 2024
Counsel: Caitlin Downing, counsel for the Crown Jason Gilbert, counsel for the accused
Introduction
1On October 5, 2023, I found PC guilty of two counts of sexually assaulting HL on August 31, 2020 and March 22, 2021.
2With respect to the August 31, 2020 incident, I found that the vaginal intercourse the parties engaged in was consensual. She did not, however, consent to anal intercourse.
3With respect to the March 22, 2021 incident, I found that HL did not consent to any sexual contact with PC. She told PC that she did not want to have sex. Despite this, PC proceeded to digitally penetrate her and penetrate her vagina with his penis. He also attempted a number of times to penetrate her anus with his penis but was unsuccessful.
4I must now determine the appropriate sentence.
The Pre-Sentence Report
5PC is now 47 years of age. At the time of the offences, he was 44 years old. He has a Criminal Record with convictions from 2005 for Criminal Negligence Causing Bodily Harm and Failing to Comply with a Recognizance. He received a ten-month conditional sentence and 18 months probation. In March 2020, he was granted a Conditional Discharge and required to serve 12 months probation for an offence of Mischief to Property.
6He is the eldest of two children in his family. He grew up in Madawaska, Ontario, which is a small village west of Barry’s Bay, not far from the east gate to Algonquin Park. The economy in Madawaska is largely based on the forestry industry and the summer tourist trade. Like a lot of Renfrew County, it is not an affluent area.
7PC’s father was an alcoholic. He and his sister were physically abused, mostly by his mother who believed in extreme corporal punishment. He was apprehended by the Children’s Aid Society when he was eleven after bruises were noticed by neighbours and school officials. He was in care for a year and a half.
8When he was 13 he was hit by a car. He suffered head trauma. His recovery from this resulted in him becoming closer to his mother.
9He graduated with his Grade 12 diploma in 1996. He struggled academically and needed extra help through elementary school. That help ended when he went to high school. He had problems with truancy and he was disciplined at school for fighting. He was expelled in Grade 11. He went to work for the balance of the school year but returned to school and successfully completed Grade 12 the following year. It is noted that although PC successfully completed Grade 12, there is reference in one of the reports that he was streamed in the “basic” program. I will have more to say about PC’s intelligence, later in these reasons.
10He worked at a grocery store and in a provincial park. He has worked for a window and door company and a lumber mill.
11He moved out when he was 21 and rented an apartment in Barry’s Bay. When he was 24, he met a 15-year-old at work. He and this woman had a child, a son. In 2004, the relationship ended after an incident of domestic violence.
12In 2005, he moved to Pembroke. He started a relationship with a woman who had two children. He dropped one of the children, who at the time was an infant, which resulted in trauma to the child. PC was convicted of criminal negligence causing bodily harm as a result of this incident.
13They also had a daughter of their own. Because of the accident involving the one-year-old, PC was only permitted to have supervised access to this child. This child was ultimately apprehended when she turned six “because of the mother’s struggles”. PC lost his access and the child was placed for adoption. He apparently also lost contact with his son from his first relationship.
14At some point PC moved to Ottawa and he worked for a retail store there.
15By 2016, he had regained contact with his son and he was living with this child in Ottawa when he started dating HL, the victim of the offence before the Court, in 2016. She had two children from a previous relationship. This was initially a long-distance relationship. PC lived in Ottawa and would commute to Pembroke to see HL. Ultimately PC moved to Pembroke to cohabitate with HL. Because of an incident between PC’s son and HL’s daughter, PC was unable to keep custody of his son and the child returned to live with his mother. PC and his son were estranged for almost five years.
16PC told the author of the PSR that there was infidelity on the part of both he and HL. This caused jealousy and arguments. His conditional discharge from 2020 is as a result of an intimate partner violence incident between them in 2019. Despite a non communication order, HL consented to renewed contact between them and they co-parented a child. The relationship, however, was unstable. She would often tell him to leave but he had nowhere to go.
17The relationship ended in June 2021 when PC took a knife, put it to his stomach and threatened to kill himself. He attempted to get HL to push the knife into his stomach. She called the police. As a result of this incident, PC was apprehended pursuant to the Mental Health Act. In the course of the investigation with respect to that matter, HL disclosed the incidents that form the basis of the charges before the Court.
18After his arrest and release, PC lived in a hotel and then moved to an apartment. He had unsupervised parenting time with his daughter until the summer of 2022. When the PSR was prepared in late December 2023 or early January 2024, PC had only seen his daughter once since the parenting time ended. PC told the author of the PSR that the access ended because HL was punishing him for dating a woman (not HR) that she did not like.
19PC met and dated HR. They had a mutual friend but they became reacquainted after PC contacted her about an item for sale on social media. They stopped dating after a few months because it was too much, too soon for HR. HR told the author of the PSR that PC was very considerate, and he did not push himself or any form of sex that she did not want. He is appropriate with her children. She expressed surprise when she learned of the offences before the Court.
20PC now works at a grocery store in Pembroke. His employer, who is aware of his charges, spoke highly of PC and indicated that he would be welcome to work there again if he lost his job as a result of incarceration.
21PC does not report any problem with alcohol. He smokes cannabis before he goes to bed. HL told the probation officer, however, that PC drank too much when he lived with her and he became verbally abusive when he drank. She also stated that he used significant amounts of cannabis. HR, on the other hand, corroborates PC’s current report with respect to the use of both substances.
22PC does not have any close friends with whom he has regular contact, other than HR.
23PC was diagnosed with depression in 2016. As a result of the intervention in June 2021, he has been seeing a psychiatrist who has diagnosed borderline personality disorder, anxiety and attention deficit disorder. He has a mental health crisis worker, with whom he speaks once a week.
24PC continues to maintain his innocence. He believes that HL lied to the Court. He is fixated on the fact that he and HL had sexual relations after they broke up.
25The author of the PSR noted that the offences before the Court took place while PC was on supervision for the 2019 incident for which he was granted a conditional discharge. He completed the Partner Assault Response Program but was noted to deflect responsibility for his actions and blame them on his mental health difficulties.
The Section 21 Reports
The April 13, 2022 Report
26Unbeknownst to me, before these charges came to trial, PC entered a guilty plea to sexually assaulting another woman, BL. I understand that these charges arose as a result of an incident between he and BL, when they worked together at a grocery store. Justice March ordered a section 21 report under the Mental Health Act as a result of this plea and I understand that the sentencing in this case is outstanding. Counsel agreed that the section 21 report prepared for the incident involving BL would be filed in this incident.
27I note that defence counsel advised me at the sentencing that he wanted to try to strike the plea and re-enter it before me so that PC could be sentenced on everything at once but the Crown refused to proceed in this fashion. I do not understand the Crown’s position. This makes the sentencing of PC – by two judges – even more difficult an exercise.
28The original section 21 report is dated April 13, 2022. I ordered an updated report, which is dated March 22, 2024. Both reports were prepared by Dr. Brad Booth, who is a respected forensic psychiatrist at the Royal Ottawa Hospital.
29The original report largely confirms the information that PC gave to the probation officer concerning his upbringing. There is some more information about PC’s sister who apparently is disabled as a result of a tumor on her pituitary gland and she suffers from mental health problems. Although she lives in Barry’s Bay, PC does not see her often.
30The original report also largely confirms the information that PC gave the probation officer about his relationship history as well as his academic and work history.
31The original report noted that PC has suffered from low self esteem throughout his life. He has attempted suicide on a couple of occasions. He reported difficulty with impulsivity – he breaks things or punches holes in the wall. He reported significant anxiety and worry. He has nightmares as a result of the abuse he suffered as a child about twice a year. He has had panic attacks.
32He was exposed to pornography when he was young and he started watching it regularly when he was a teenager. He told the psychiatrist who prepared the report that he worried that he was a “porn addict” because he watches it two to four times a day. He was reported having sex two or three times a day when he is in a relationship. He reported struggling with being monogamous.
33With respect to sexual preferences, he reported that he “likes giving it rough”. He likes to spank his partner or pull her hair, but only if she is consenting.
34Dr. Booth reported that although often open, forthcoming, cooperative and largely pleasant, PC would sometimes have a guarded and defensive manner about him. He took offence easily and became adversarial and sarcastic. He was often loud and easily angered. He would go on tangents.
35Dr. Booth reviewed the records from PC’s psychiatrist, who reported a history of self harm, frequent feelings of being overwhelmed, and inability to cope. There is an indication that PC refused to take a prescription medication that his psychiatrist prescribed for him.
36According to one test, PC has low vocabulary, verbal and abstraction abilities and a low IQ. Dr. Booth stated:
These results suggest that [PC] likely has borderline intellectual function heading into the mild intellectual disability category. His functional ability such as caring for himself appears higher. However, his results would suggest that he would have difficulties understanding some of what people tell him. Further he is quite concrete and would have difficulties problem solving. This would explain his school difficulties. These impairments may also contribute to some of his problems maintaining work.
37Nowhere in the report, however, does Dr. Booth discuss a direct correlation between PC’s low intellectual functioning and the commission of these offences.
38After running a battery of psychiatric and psychological instruments, Dr. Booth diagnosed the following:
a) Persistent depressive disorder; b) PTSD; c) Generalized anxiety disorder with panic attacks; and d) ADHD.
39With respect to depression management, Dr. Booth noted that PC had a tendency to minimize socially undesirable traits.
40Dr. Booth felt that PC’s cannabis and alcohol use should be subject to further examination. Sleep apnea also needed to be ruled out as a contributor to his ADHD.
41Dr. Booth noted that PC likely had “borderline intellectual function or mild intellectual disability combined with undiagnosed ADHD” as a child. His other disorders have their roots in his abusive parents which caused “poor attachment and low self-esteem”. He noted, “I suspect that he may be prone to misinterpreting signals of others and acting impulsively particularly if intoxicated.”
42With respect to the risk PC posed, Dr. Booth scored him as “below average risk” using one instrument and average risk using another. He concluded that PC has an average risk of reoffence.
43In the original report, Dr. Booth recommended the St. Lawrence Valley Treatment Centre as a good fit for PC should he receive a carceral sentence.
The March 22, 2024 Report
44The more recent report revealed the following updates:
a) PC’s sister is now hospitalized in Barry’s Bay. He speaks to her two or three times a week. b) PC’s son is now 20 and is working in Ottawa. He does not see him often. They speak once or twice a month. c) PC still does not have any relationship with his eldest daughter, who he believes is now 14 years old. d) PC’s youngest daughter is now seven. He reiterated that because he started a relationship with a woman that HL did not approve of, he has not had visits with his youngest child since October 2023. e) PC continues to struggle with significant depression but does not voice suicidal ideation as often. f) He continues to struggle with anxiety but has not recently had panic attacks. His last reported panic attack was in January 2024. g) PC did not go for a sleep study to rule out sleep apnea. h) PC continues to see a psychiatrist in Pembroke and a mental health crisis worker. His mental health crisis worker reported that PC is very engaged in working with her and she has seen progress, particularly with insight. i) PC reported having less frequent sex, down to once every two weeks. j) He reported that he had not looked at pornography for a few months. k) He saw his psychiatrist in November (after he was found guilty) and he reported that his stress had increased, and he had lost 15 pounds. His psychiatrist increased his medications. l) PC’s compliance with medication is better than in the previous report. m) PC was more cooperative and pleasant than in the previous report. He was less guarded. His thinking was still tangential at times. He became irritable when discussing HL. n) PC “endorsed ongoing intermittent auditory hallucinations and a schizotypal idea of seeing ghosts and spirits.” o) He continued to maintain his innocence with respect to the offences against HL and he described her as a “cold-hearted bitch”. p) PC’s personality profile “reflects a resentful, angry, distrustful individual who approaches life with vigilance for how others may use them or take advantage of them.” They can be “difficult to treat because they enter treatment defensively”. “They have difficulty empathizing.”
45Dr. Booth essentially repeated the same diagnoses as in the 2022 report.
46Dr. Booth also noted that despite the “second set of convictions”, his previous scoring on the risk assessment instruments remains unchanged and PC remains at an average risk to reoffend.
47Dr. Booth again recommended the St. Lawrence Valley Treatment Centre but also noted that “similar treatment is available in the federal system or in the community”. He also recommended Cognitive Behaviour Therapy and Dialectical Behaviour Therapy.
48The updated report does not discuss PC’s intellectual functioning in any detail.
The Victim Impact
49HL stated that she has suffered from suicidal ideation and she has attempted suicide once.
50She recalled that she was pregnant when she testified at trial. She stated that she went into labour early as a result of the stress.
51She reported that she has suffered loss of appetite. She has difficulty being intimate with her husband. She stated that a “friendly hug” with another person leaves her twitching.
52She has been diagnosed prescription medication to help her to cope with depression and trauma. She is embarrassed and ashamed that she has had to resort to these medications.
53HL has not been able to return to work. Her husband is now the sole breadwinner for her family of seven.
54She stated, “My anxiety stops me from being the best version of myself”.
55She is easily startled. Her husband must announce himself before he enters the bedroom. Simple words and phrases trigger her PTSD.
56HL stated that she trusts no one.
57She closed her Victim Impact Statement by saying “I want me back.”
The Crown’s Position
58The Crown seeks a sentence of five years in the penitentiary. She noted that pursuant to the Court of Appeal’s decision in R. v. AJK, 2022 ONCA 487, the starting point for a sentence in a case involving penetration of an intimate partner was three years. The Crown argued that PC is deserving of a higher sentence because of the following aggravating factors:
a) There are two sexual assaults in this case. b) PC has a prior criminal record. c) PC did not stop in the August 2021 incident despite being told “no”. d) PC was on probation for mischief involving the same victim when the offences were committed. e) PC’s mental health concerns are not so exceptional as to take him below the AJK range of sentence. f) PC’s other sexual offence, for which he remains to be sentenced before Justice March, demonstrates that PC feels entitled to objectify women.
The Defence Position
59Defence counsel argued for a carceral sentence at the St. Lawrence Valley Treatment Centre. He stated that PC’s psychiatric reports demonstrated that PC was an exceptional individual who was entitled to a sentence below the AJK range.
60Defence counsel stated that the two counts should be dealt with as a continued offence rather than two separate offences.
61Defence counsel asked me to keep the sentencing principles of restraint and totality in mind, in light of the fact that PC still must be sentenced on the other sexual assault that he pleaded guilty to.
62Defence counsel argued that PC’s 2020 Conditional Discharge should not be held against him at a sentencing in 2024 by virtue of the fact that his record for that offence would now be expunged.
63Defence counsel maintained that PC’s offending behaviour is more a product of his intellectual disabilities than it is of his negative attitudes towards women.
64Defence counsel cited the following mitigating factors:
a) PC has managed to maintain his employment. b) The reports indicate a number of mental health difficulties including depressive disorder, PTSD, ADHD, Anxiety, Borderline Personality Disorder, Borderline Intellectual Functioning and Mild Intellectual Disability. This makes him better suited to serving his sentence at St. Lawrence Valley. c) He has never breached a probation order. d) Depending on how the Court treats his 2020 Conditional Discharge, PC has not had difficulty with the law since 2005. He is therefore entitled to be considered a first-time offender.
PC’s Address to the Court
65I asked PC if he had anything to say before I sentenced him. He continued to maintain his innocence. He stated that HL “cried wolf”. He complained that HL took his daughter away from him. He told me that he was not a horrible person, that he worked and that he was “not out committing crimes any other day of the week”. He stated that he needed someone to recognize the good in him and know that he is not a threat to society or a threat to women. He stated that he has been struggling with his mental health for four years, including thoughts of suicide, stress, and losing a considerable amount of weight. He stated, “I can’t deal with this anymore. It has taken everything in me to keep going each and every day.”
Analysis
66In R. v. AJK, 2022 ONCA 487 at paragraphs 73 to 77, Associate Chief Justice Fairburn of the Ontario Court of Appeal found that the sentencing range for penetrative sexual assault on an intimate partner was three to five years. She stated:
73A sexual assault involving forced penetration is a sexual assault involving forced penetration. An act of sexual violence perpetrated on a stranger to the accused is not necessarily worse than a similar act of sexual violence perpetrated on an intimate or former intimate partner. Any suggestion to the contrary could only rest on unacceptable myths and stereotypes, ones that a fair justice system must continuously confront and eradicate: see R. v. Ewanchuk, 1999 SCC 711, 1999 SCC 711, [1999] 1 S.C.R. 330, at para. 82.
74All 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.
75As 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.
76There 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.
77The fact that the complainant had a relationship or prior relationship with the accused cannot serve to justify a sentencing range below a range for non-intimate partner sexual violence. To the extent that the Smith has been interpreted as suggesting otherwise, it is no longer to be understood this way. Absent some highly mitigating factor, the forced penetration of another person will typically attract a sentence of at least three years in the penitentiary. While Bradley and the cases following it suggest that the range is three to five years, this is of course just a range, a quantitative sentencing tool designed to assist busy trial judges with where to start: Parranto, at paras. 15-17. Accordingly, there will be circumstances where a departure from the range, either above or below the range, is entirely appropriate.
67This case concerns the question of whether PC’s background is sufficiently “highly mitigating” to justify the imposition of a sentence below this range.
68R. v. RS 2023 ONCA 608, is directly on point. In this case, 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.
69Unlike PC, the accused was Indigenous. Like PC, 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. Unlike PC, he demonstrated remorse and insight into his thinking.
70The 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. There are a lot of similarities between the victim impact in RS and HL’s victim impact in the case before me.
71Justice Nakatsuru sentenced the accused to two years less one day conditional on the sexual assault with 90 days intermittent concurrent on the choking charge. He emphasized the accused’s deprived background.
72On appeal, Justice Huscroft, writing for himself and Justice Coroza, citing, inter alia, AJK, found that the sentence imposed by the trial judge was inadequate because it did not adequately reflect the fact that denunciation and deterrence are the primary sentencing considerations in cases of sexual assault (see paragraph 39 of RS).
73Although Justice Huscroft found that the accused’s “moral culpability could rightly be considered to be reduced by his background” (paragraph 40) he concluded that the trial judge went too far. Justice Huscroft found that three years in the penitentiary would have been appropriate.
74Justice 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 RS 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).
75Justice 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.
76Finally, citing the Supreme Court of Canada in R. v. Lacasse 2015 SCC 64, 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).
77The most recent word regarding AJK from the Court of Appeal is R. v. SW 2024 ONCA 173. The accused and the victim were intimate partners. One night, the accused sexually assaulted the victim by penetrating her with his penis four times. The trial judge imposed a conditional sentence of two years less one day, followed by 12 months probation. The Crown appealed.
78The Court of Appeal agreed with the Crown, found the trial judge’s decision unfit and imposed a sentence of three years in the penitentiary. A unanimous panel of the Court of Appeal found that the trial judge’s decision was demonstrably unfit because the trial judge did not rely on AJK and instead relied on pre-AJK caselaw. Moreover, the trial judge did not state why he was imposing a sentence outside the AJK range.
79SW is instructive with respect to a couple of issues. First, SW confirms that the word “forced” in the phrase “forced penetration” in AJK does not require an element of violence beyond non-consensual penetration. “Forced penetration” simply means “lack of consent”: see paragraphs 38 and 39 of SW.
80The second point has to do with Associate Chief Justice Fairburn’s reasons in AJK where she stated that “highly mitigating” factors are required in order for a trial judge to go below the AJK range. In SK at paragraphs 44 through 46, Justice Favreau indicated that:
….the trial judge was not required to find that there were “exceptional” circumstances to justify a sentence that would fall outside the appropriate range. However, his reasons must demonstrate that he considered appropriate factors in imposing a sentence that fell far below the appropriate range.
45In his reasons, the trial judge did not provide any rationale for the length of the sentence he imposed. Presumably, he chose a period of two years less a day to avoid a penitentiary sentence so the respondent would be eligible for a conditional sentence. The trial judge then imposed the conditional sentence itself by stating that there were “exceptional” circumstances in this case. However, he provided no explanation or rationale for this finding. Notably, he failed to recognize the seriousness of this offence. He made no findings that would justify a conclusion that the respondent’s moral blameworthiness was lowered. Many of the mitigating circumstances cited by the trial judge were irrelevant, such as the respondent’s failure to get a driver’s licence and his unsuccessful attempt to work as a personal support worker. Accordingly, it is not possible to understand how the trial judge reached the conclusion that would justify a conditional sentence or even a sentence below three years in this case.
46There is in fact nothing about this case that would justify a sentence below a three year penitentiary sentence. It appears that the trial judge may have been influenced by the fact that the respondent was a first-time offender, had a strong relationship with his parents and children, and had good and stable employment. However, these considerations do not justify the imposition of a sentence below two years, which is required before a conditional sentence can be imposed. Given the seriousness of the offence, and in the absence of any factors that would justify departing from the three to five years sentencing range, the conditional sentence of two years less a day does not sufficiently meet the objectives of denunciation and deterrence which, as held in A.J.K., at para. 83, are an “overarching sentencing principle” in cases of this nature.
81The Court of Appeal recently considered this issue again in R. v. EM 2024 ONCA 399. In this case, the trial judge sentenced the accused to thirty months. The parties were in a relationship for five years. They did not live together. On the night in question, they were at the home of the victim’s parents. She woke up to the pressure in her vagina. He admitted to kissing her neck, fondling her breasts and penetrating her vagina. Defence appealed and argued that the trial judge did not give sufficient mitigation to the fact that the accused entered a guilty plea, was remorseful and had taken steps towards his rehabilitation. The Court of Appeal found no error in the trial judge’s decision, noting that the trial judge’s imposition of a thirty-month sentence gave effect to these principles.
82In R. v. EN 2024 ONCA 472, the accused was found guilty after a trial of one instance of forced vaginal intercourse and attempted anal intercourse. The trial judge imposed a sentence of two years less one day plus three years probation. Defence appealed conviction. Crown appealed sentence. Both appeals were unsuccessful. With respect to the sentence appeal, the Court of Appeal stated at paragraph 19:
While the sentence imposed by the trial judge is lower than the 3 to 5-year range articulated in R. v. A.J.K., 2022 ONCA 487, 162 O.R. (3d) 721 and other cases, it is not demonstrably unfit. As the Supreme Court cautioned in Lacasse, sentencing ranges are tools for busy trial judges, not straightjackets. The trial judge gave adequate reasons for a “slight downward departure” from the 3 to 5-year range. His sentence is owed significant deference on appellate review. We see no basis to intervene.
83There are two recent decisions of the British Columbia Court of Appeal that specifically address the issue of diminished moral blameworthiness in a sexual assault case where the accused has mental health problems.
84The first is R. v. Nystrom 2023 BCCA 232. The accused was 19. The complainant was 14. Both were homeless. He was found guilty after a trial of three incidents of sexual assault that were weeks apart. In the first one, the accused digitally penetrated the complainant’s anus and then had vaginal and anal intercourse with her. In the second incident, the complainant woke up to find the accused with his hand down her pants digitally penetrating her. Later in the evening, after she refused to perform oral sex, he threw her against a truck, pushed her to the ground and had anal sex with her. The last incident involved rubbing and digital penetration of her vagina.
85The accused had a difficult upbringing. His parents separated when he was 10. His mother was a heavy drinker. He started running away when he was 16 and by the time he was 19, he was on his own. He completed high school with specialized academic assistance. He had a learning disability and a mild intellectual disability. He worked a little but at the time of his trial he was getting by with a provincial disability pension. He used drugs and drank. He was said to have low insight. The trial judge imposed a sentence of two years plus three years probation. With respect to whether cognitive impairment was a mitigating factor, the Court of Appeal stated at paragraphs 21 to 26:
A medically recognized mental disorder such as cognitive impairment, which has caused or contributed to the commission of an offence, may be a mitigating factor that reduces an offender’s moral culpability and thereby warrants a reduction in sentence. In these circumstances, both general and specific deterrence will necessarily play a diminished role in determining a fit sentence: R. v. Badhesa, 2019 BCCA 70 at para. 42; R. v. Penttila, 2020 BCCA 63 at paras. 68–69.
Sentencing judges must consider evidence of the nature and magnitude of the disorder, determine its overall role in the offending conduct, and be satisfied on a balance of probabilities that the disorder caused or contributed to the commission of the offence. Detailed and specific medical evidence is necessary to properly understand the relationship between the disorder and the offending conduct; generalized evidence is not sufficient: Badhesa at para. 43; R. v. Botticelli, 2022 BCCA 344 at paras. 21–22; see also R. v. Scofield, 2019 BCCA 3; R. v. Okemow, 2017 MBCA 59 at para. 73.
The assessment of an offender’s moral culpability, and more particularly how a disorder impacts this, is a question of fact. Absent palpable and overriding error, this finding is entitled to deference on appeal: Badhesa at para. 26; Botticelli at para. 19; Penttila at para. 70; Scofield at paras. 48, 56.
The Crown submits that the judge erred in finding the respondent’s cognitive impairment reduced his moral blameworthiness in the absence of any evidence of a nexus to the sexual assaults. In finding that the risk factors identified in the psychiatric assessment “played a role” in the commission of the offences, the judge relied only on risk factors for future offending. The Crown says it was not open to the judge to extrapolate backwards absent evidence that these risk factors played any role in the respondent’s offending conduct.
The respondent submits that the sentencing judge viewed these risk factors “as providing the necessary context to mete out an appropriate sentence” and made no palpable and overriding error in doing so. He says the fact that he is an offender who needs assistance with basic life skills is sufficient in itself to ground a connection between his cognitive impairment and offending conduct.
In my opinion, the sentencing judge erred by treating the respondent’s cognitive impairment as a contributing factor in the commission of these offences. This impairment was a relevant contextual factor, but there was no evidence that it played any part in the respondent’s offending.
86The second case, R. v. GJM 2024 BCCA 82 is a sexual interference and child pornography case. The accused suffered from suicidal ideation (one serious attempt), depression, loneliness, and self-hatred. He demonstrated traits of antisocial, borderline, histrionic and/or narcissistic personality disorder. He had no criminal record. He was 29 and unemployed. He was supported financially by his mother. A psychologist who prepared a report for the court hypothesized that adverse childhood experiences resulted in intimacy deficits, depressive syndrome and low self esteem. He wrote that this was “a reasonable conceptualization of how his mental health might have contributed to his offences.” (see paragraph 22). The trial judge found that the accused’s long-standing depression reduced his moral blameworthiness.
87The Court of Appeal disagreed. The panel, led by Justice MacKenzie, agreed that “offenders who suffer from mental disabilities that impose serious cognitive limitations will likely have reduced moral culpability” (paragraph 53 and 54). The Court also found that “cognitive impairment or mental health issues shown to affect an offender’s capacity to control their impulses or appreciate the seriousness of their conduct or its risk may attenuate their moral culpability” (paragraph 56). However, when it came to the issue of the offender’s mental health problems in this case, the Court noted at paragraph 57:
The respondent’s long-standing depression was of a distinctly different order of magnitude. Although undoubtedly challenging, it did not affect his capacity to finish high school or work regularly until after the offences came to light. Nor was there proof that because of his depression the respondent could not control himself sexually or appreciate the seriousness and harmfulness of failing to do so.
88I confess I have some difficulty here. While I appreciate that the Court should be hard-pressed to accept that “garden variety” mental health diagnoses such as depression and anxiety are sufficient to establish “diminished moral blameworthiness”, surely the law does not require the accused to be virtually on the doorstep of a not criminally responsible defence to make out mental health problems as a mitigating factor on sentence.
Mitigating Factors on Sentence
89PC has managed to maintain his employment notwithstanding his intellectual disabilities, his mental health struggles and the findings of the Court.
90His mental health crisis worker reports that PC is engaged with her and his insight has improved. This must be tempered by the hostility that PC voices in relation to HL.
91PC is also engaged with his psychiatrist.
92Dr. Booth opines that, despite incidents of sexual assault (two with HL and one with BL) PC is an average risk to reoffend.
93PC had an extremely deprived childhood. His mother beat him. His father was an alcoholic. He was apprehended and placed in the care of the Children’s Aid Society. PC’s adverse childhood experiences must have had an impact on him. As Professors Randall and Haskell stated in Trauma-Informed Approaches to Law: Why Restorative Justice Must Understand Trauma and Psychological Coping, 213 36-2 Dalhousie Law Journal 501 at pages 515 to 516.
Why is understanding trauma so important for people working within law, and in particular, the criminal justice system? Given the widespread problems of childhood abuse, violence and neglect, large numbers of people are dealing with trauma responses, which often (not always) lead to substance abuse problems and conflict with the law. Studies show that between seventy-five per cent and ninety-three per cent of those entering the juvenile justice system have experienced trauma. The Adverse Childhood Experiences study, one of the largest epidemiological investigations ever conducted in North America to assess associations between childhood maltreatment and health and well-being later in life, found that the economic costs of untreated trauma-related alcohol and drug abuse were estimated at $161 billion in 2000.
How and why people are capable of insight and behaviour change is a complex area which is both seriously under-theorized and under-attended to in law in general, as well as in restorative justice approaches to law. Most areas of law are organized around simplistic assumptions about humans as rational maximizers of their own self-interest, undertaking cost benefit assessments of their actions and the possible reactions to them. Criminal law, in particular, operates on the assumption that deterrence dissuades people from engaging in criminal behaviour by imposing penalties (such as a criminal record and imprisonment) that they will want to avoid. In this view, however, people's choices to commit crimes must be either based on information deficits or miscalculations of the risks associated with criminal conduct.
Research has demonstrated the interconnection between histories of violence and abuse, traumatic experiences, and criminal behaviour. This does not mean that violence and abuse in life creates or causes criminality in a simplistic or linear way, or that those who commit crime can merely "blame it on" their previous experiences of violence, abuse, or neglect. Still, it does mean that there are complex interconnections between people's life experiences, opportunities, choices and chances, and their personal histories, including trauma histories. As one researcher observes: "child abuse and neglect, poverty, sexual molestation, and witnessing violence are, among others, the most common risk factors for post-traumatic reactions, aggression, and antisocial behaviour."
94A recent report from the World Health Organization found that approximately 58% of North American adults suffered from at least one ACE and 35% suffered from more than one: World Health Organization, Tackling Adverse Childhood Experiences ACEs): State of the Art and Options for Action, 2023 at page 10. The results for incarcerated individuals are even higher, suggesting a strong correlation between ACEs and criminality. A 2023 Correctional Service of Canada Study found that 80% of men and 86% of women in federal inmate population have experienced at least one ACE: Sheahan, C. and Wardrop K. (2023) The adverse childhood experiences of Canadian federal offenders: Available information and correctional outcomes (Research Report R-445) Ottawa, Ontario: Correctional Service of Canada.
95In addition to his adverse experiences as a child, PC has an intellectual disability. In one instrument, he was found to have an IQ of 54. A 2022 Swedish study found that offenders with intellectual disability are much more likely to have a sexual crime as an index crime: Edberg, H.; Chen, Q; Andine, P; Larsson, H. and Hirvikoski, T., Crimes and sentences with individuals with intellectual disability in a forensic psychiatric context: a register-based study : Epidemiology and Psychiatric Sciences 2022; 31: e2.
96In my view, the combination of PC’s history of Adverse Childhood Experiences and his intellectual disability are sufficient for me to find that he meets the criteria for “diminished moral blameworthiness”.
97To find otherwise would be tantamount to ignoring two parts of who PC is that are not his fault: his intellectual disability (whether he was born with it or whether being hit by a car when he was young caused it or contributed to its congenital nature) and the abuse and neglect he was subjected to as a child.
98To find otherwise not only defies the existence of the not well understood “complex interconnections” referred to in the literature above, it defies common sense and experience.
The Neutral Factors
99PC has been found guilty after a trial. He is not entitled to any mitigation for an early guilty plea. Nor is the fact that he opted to insist that the Crown prove the offences against him beyond a reasonable doubt an aggravating factor.
100PC may have an issue with alcohol and cannabis. This has been identified by Dr. Booth as something that requires further study and something that may contribute to poor impulse control and problems interpreting signals from others. I note that HL indicated that this was a problem area during their relationship. His current partner, HR would suggest otherwise.
The Aggravating Factors
101The incidents in question involve PC’s intimate partner.
102PC was on supervision for another offence against HL when he committed these offences.
103Contrary to the assertion of defence counsel, this is not one continuing offence, but rather two distinct violations of HL’s sexual integrity.
104The impact of the offences on HL is very significant. She is unlikely to ever be the same.
105Although PC is entitled to mitigation for diminished moral blameworthiness on account of the ways in which his intellectual disability and his adverse childhood experiences have shaped his personality and contributed to his criminality, it is clear that he lacks insight into his offending behaviour, and he is resentful, angry and distrustful. In Dr. Booth’s opinion, this may render him more difficult to treat because he will enter treatment from a defensive perspective. His intellectual disability means that he may have difficulty understanding what he is told.
The Appropriate Sentence
106Absent mitigation for diminished moral blameworthiness associated with his adverse childhood experiences and intellectual disability, I would have found that the total appropriate sentence for PC was four years. I would have imposed three years for the August 2020 incident and one year consecutive on the March 2021 incident. In my view, absent his diminished moral blameworthiness, PC is deserving of a mid-AJK range sentence in order to reflect the principles of denunciation and deterrence which are ordinarily the paramount sentencing principles for crimes of this nature. Such a sentence also reflects the need to sentence him separately for each count while at the same time paying heed to the principles of restraint and totality.
107Balancing his diminished moral blameworthiness with the practical reality that the same factors that diminish his moral blameworthiness may also result in making his treatment more intractable and difficult, puts me in a quandary.
108I therefore conclude that the appropriate sentence to be imposed in this case is a total sentence of three years in the penitentiary. I will – somewhat arbitrarily given that I find the March 2021 offence to be the more serious incident – impose a sentence of three years for the August 2021 offence and one year concurrent for the March 2021 offence. The usual ancillary orders including DNA, section 109 weapons prohibition and a section 743.6 order prohibiting contact with HL while he is serving his sentence will also be made.
SOIRA
109In R. v. Ndhlovu 2022 SCC 38, the Supreme Court of Canada struck down section 487.092 of the Criminal Code with respect to mandatory registration requirements for sexual offenders as overbroad.
110In response to Ndhlovu, Parliament passed amendments to the Criminal Code so that it now states as follows:
490.012 (1) Subject to subsection (5), when a court imposes a sentence on a person for a designated offence, it shall make an order in Form 52 requiring the person to comply with the Sex Offender Information Registration Act if
(a) the designated offence was prosecuted by indictment; (b) the sentence for the designated offence is a term of imprisonment of two years or more; and (c) the victim of the designated offence is under the age of 18 years.
Order — previous offence or obligation
(2) Subject to subsection (5), when a court imposes a sentence on a person for a designated offence, it shall make an order in Form 52 requiring the person to comply with the Sex Offender Information Registration Act if the prosecutor establishes that, before or after the coming into force of paragraphs (a) and (b), the person
(a) was previously convicted of a primary offence or previously convicted under section 130 of the National Defence Act in respect of a primary offence; or (b) is or was, as a result of a conviction, subject to an order or obligation under this or another Act of Parliament to comply with the Sex Offender Information Registration Act.
Order — other circumstances
(3) Subject to subsection (5), when a court imposes a sentence on a person for a designated offence in circumstances in which neither subsection (1) nor (2) applies, or when the court renders a verdict of not criminally responsible on account of mental disorder for a designated offence, it shall make an order in Form 52 requiring the person to comply with the Sex Offender Information Registration Act unless the court is satisfied the person has established that
(a) there would be no connection between making the order and the purpose of helping police services prevent or investigate crimes of a sexual nature by requiring the registration of information relating to sex offenders under that Act; or (b) the impact of the order on the person, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under that Act.
Factors
(4) In determining whether to make an order under subsection (3) in respect of a person, the court shall consider
(a) the nature and seriousness of the designated offence; (b) the victim’s age and other personal characteristics; (c) the nature and circumstances of the relationship between the person and the victim; (d) the personal characteristics and circumstances of the person; (e) the person’s criminal history, including the age at which they previously committed any offence and the length of time for which they have been at liberty without committing an offence; (f) the opinions of experts who have examined the person; and (g) any other factors that the court considers relevant.
Limitation — secondary offences
(5) A court shall make an order under any of subsections (1) to (3) in respect of a secondary offence only if the prosecutor applies for the order and establishes beyond a reasonable doubt that the person committed the secondary offence with the intent to commit a primary offence.
111In this case, Crown counsel asked for a SOIRA order of 20 years duration on the basis that the accused has now committed another sexual assault for which he is awaiting sentence.
112Defence counsel opposed the Order on the basis that, following my decision in R. v. JG 2024 ONCJ 42, I should exercise my discretion and not impose the Order on the basis that the accused was not at a high risk to reoffend and it would be disproportionate to have him register. Alternatively defence counsel argued that if I were to impose a SOIRA order, it should be for a shorter period.
113Because HL was not under the age of 18 when the offences were committed, the Order is not mandatory which brings the factors in subsection 4 into play.
114In my view this is a serious offence committed against the offender’s intimate partner, a person to whom PC was in a position of trust toward. She was vulnerable and not strong enough to repel him. The victim impact is significant and life altering.
115Unlike the offender in JG, PC does not have a positive background. He has a criminal record, which is dated. He was on supervision for a previous, albeit much more minor intimate partner violence offence when he committed this offence. He was charged with another sexual offence while he was at liberty with this offence, entered a guilty plea and is awaiting sentencing. He has been found by Dr. Booth to be at an “average risk” of reoffence. He has intellectual disability and adverse childhood experiences, which although diminish his overall moral blameworthiness, render him more difficult to treat. He is something of a loner who does not enjoy good community support waiting for him when he is released from custody.
116PC has a much different offender profile than JG.
117Having regard to all the circumstances, I am unable to find that there is no connection between the requirement that PC register and the purpose of assisting the police in preventing or investigating crimes of a sexual nature.
118I am also unable to find that requiring PC to register would have an impact on his privacy and liberty that would be grossly disproportionate to the public interest of preventing or investigating crimes of a sexual nature.
119I do, however, find that the twenty year period advanced by the Crown is grossly disproportionate.
120I will therefore make an order requiring PC to comply with the SOIRA registration requirements for a period of ten years.
Released: June 24, 2024 Signed: Justice J.R. Richardson