Court File and Parties

COURT FILE NO.: CR-21-85 (Brantford) DATE: 2023/07/31 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – M. T-S.

Counsel: J. Mociak, Counsel for the Crown C. Maiolo, Counsel for M. T-S.

HEARD: July 31, 2023

Reasons for Sentence

GIBSON J.:

[1] M. T-S. was tried by judge and jury on an Indictment dated September 17, 2021, which alleged two counts of Sexual Assault contrary to s. 271 of the Criminal Code, and two counts of Assault contrary to s.266 of the Criminal Code. The jury found him guilty of one count of Sexual Assault on C.U..

[2] It is now my task to determine a fair, fit and principled sentence.

Circumstances of the Offence

[3] M. T-S. is now 29 years old. He came to Canada originally from Trinidad and Tobago. He has been employed intermittently. He is an amputee as a result of a serious vehicle accident that occurred some years ago in British Columbia and wears a prosthetic leg.

[4] C.U. was a former intimate partner of M. T-S., and they had one child together.

[5] As provided at s.724(2) of the Criminal Code, where the court is composed of a judge and jury, the court shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty.

[6] As McLachlin C.J.C. stated at paras. 16-18 in R. v. Ferguson, 2008 SCC 6:

[16] This poses a difficulty in a case such as this, since, unlike a judge sitting alone, who has a duty to give reasons, the jury gives only its ultimate verdict. The sentencing judge therefore must do his or her best to determine the facts necessary for sentencing from the issues before the jury and from the jury’s verdict. This may not require the sentencing judge to arrive at a complete theory of the facts; the sentencing judge is required to make only those factual determinations necessary for deciding the appropriate sentence in the case at hand.

[17] Two principles govern the sentencing judge in this endeavour. First, the sentencing judge “is bound by the express and implied factual implications of the jury’s verdict”: R. v. Brown, [1991] 2 S.C.R. 518, p. 523. The sentencing judge “shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty” (Criminal Code, s. 724(2) (a)), and must not accept as fact any evidence consistent only with a verdict rejected by the jury: Brown; R. v. Braun (1995), 95 C.C.C. (3d) 443 (Man. C.A.).

[18] Second, when the factual implications of the jury’s verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury, but should come to his or her own independent determination of the relevant facts: Brown; R. v. Fiqia (1994), 1994 ABCA 402, 162 A.R. 117 (C.A.). In so doing, the sentencing judge “may find any other relevant fact that was disclosed by evidence at the trial to be proven” (s. 724(2) (b)). To rely upon an aggravating fact or previous conviction, the sentencing judge must be convinced of the existence of that fact or conviction beyond a reasonable doubt; to rely upon any other relevant fact, the sentencing judge must be persuaded on a balance of probabilities: ss. 724(3)(d) and 724(3)(e); see also R. v. Gardiner, [1982] 2 S.C.R. 368; R. v. Lawrence (1987), 58 C.R. (3d) 71 (Ont. H.C.). It follows from the purpose of the exercise that the sentencing judge should find only those facts necessary to permit the proper sentence to be imposed in the case at hand. The judge should first ask what the issues on sentencing are, and then find such facts as are necessary to deal with those issues.

[7] In this case, C.U. testified about an incident which she said occurred at M. T-S.’s then residence in Paris, Ontario. She visited his place to discuss their ongoing dispute about custody of their daughter J. She said that she had sent him text messages saying that they would not be having sex during the visit. At this time she was seven months pregnant with a child for whom she was acting as a surrogate mother. She was accompanied by her daughter M. She put M. into the bedroom where J. occasionally stayed to play with some blocks. They sat on a couch in the living room. He said that his leg hurt and went to his bedroom. He took his prosthesis off. She accompanied him, and they sat on his bed. He climbed on top of her, and started to take her pants off. She told him that she did not want to have sex. He ignored her. He pulled her pants off. He inserted his penis into her vagina. He told her to just be quiet and let it happen. She kept telling him that she did not want to have sex. M. came into the room. C.U. told her to get out. She tried to push M. T-S. off. Eventually he ejaculated and then withdrew his penis from her vagina. He got up. She got up, put her clothes on, got M., and left the apartment. She did not see anyone while she was leaving. She went to her car and had an anxiety attack, during which she was crying and shaking uncontrollably. She then drove to her home and took a shower.

[8] In order to find M. T-S. guilty, the jury clearly must have rejected his assertion that the sexual intercourse which occurred on this occasion happened with the full consent of C.U..

[9] I find that M. T-S. did pull her pants off and insert his penis into C.U.’s vagina, without her consent, and did ejaculate inside her. Her daughter M. was present for part of this incident.

Evidence on Sentencing

[10] The evidence on sentencing included a copy of M. T-S.’s criminal record, and a letter of support for him from his current partner Lauren MacKenzie. No Victim Impact Statement was presented to the Court on behalf of C.U..

Submission of the Crown

[11] The Crown submits that M. T-S. should be sentenced to imprisonment for four years, together with some ancillary orders.

Submission of the Defence

[12] The Defence concedes that the Court of Appeal for Ontario has specified a range of 3-5 years for penetrative sexual assault, but submits that mitigating factors might legitimately result in an appropriate sentence being found below this range. It submits that in the present case the court should consider a sentence of 30 months. It does not suggest that a conditional sentence would be appropriate in this case.

Sentencing Principles

[13] As succinctly summarized by Watt J.A. in R. v. Marshall, 2021 ONCA 28, in determining a fit sentence, the sentencing judge must consider a complexity of factors including the nature of the offence and the personal characteristics of the offender. As well, the sentencing judge must weigh the normative principles Parliament has enshrined in the Criminal Code; the sentencing objectives in s. 718, the fundamental principle of proportionality in s. 718.1, the aggravating and mitigating factors, as well as the principles of totality and restraint in s. 718.2: R. v. M. (L.), 2008 SCC 31, [2008] 2 S.C.R. 163, at para. 17.

[14] Proportionality is a cardinal principle that governs the fitness of a sentence imposed on an offender. It requires that every sentence be proportionate not only to the gravity of the offence, but also to the degree of responsibility of the offender who committed that offence: Criminal Code, s. 718.1.

[15] Individualization is central to the assessment of proportionality in that it demands focus upon the individual circumstances of each offender: R. v. A.J.K., 2022 ONCA 487 at para. 82.

[16] The severity of a sentence depends not only upon the seriousness of the consequences of a crime, but also on the moral blameworthiness of the offender. The more serious the crime and its consequences, or the greater the offender’s degree of responsibility for that crime, the heavier the penalty.

Caselaw

[17] The Crown referred me to the following cases: R. v. A.J.K., 2022 ONCA 487; R. v. Lopez-Gomez (May 23, 2023, Kitchener, OCJ, unreported); R. v. M.G., 2021 ONSC 6359; and R. v. Sousa, 2023 ONCA 100.

[18] The Defence drew my attention to the following cases: R. v. A.J.K., 2022 ONCA 487; R. v. Critton, [2002] O.J. No. 2594 (ONSC); R. v. Dickson, 2023 ONSC 2776; R v. Ghadghoni, 2020 ONCA 24; R. v. LaCombe, 2023 ONSC 1975; R. v. Mahmood, 2023 ONSC 3247; and R. v. Shadowver, 2023 ONSC 3986.

[19] All sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Sentencing judges must also consider the principle of parity: similar offenders who commit similar offences in similar circumstances should receive similar sentences. Parity is an expression of proportionality and gives meaning to proportionality in practice. It helps calibrate proportionate sentences.

[20] The Court of Appeal for Ontario has specified a starting point range for penetrative sexual assaults with forced intercourse of between 3-5 years: R. v. A.J.K., 2022 ONCA 487, at paras. 68 and 74-77.

[21] As Fairburn A.C.J.O. said in A.J.K.:

[74] 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.

[75] 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.

[76] 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.

[77] The 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.

[22] Where a breach of trust or grooming led to the victim’s participation, this should properly be seen as an aggravating factor: R. v. Friesen, 2020 SCC 9, at para. 153.

Aggravating Factors

[23] M. T-S. was the former intimate partner of C.U., and they had a child together. On the evidence in this case, on the occasion at issue he ignored her repeated protestations that she did not want to have sex, removed her pants, and penetrated her vagina with his penis until he ejaculated. Her young daughter was present for at least part of this incident.

[24] M. T-S. has a criminal record for a variety of offences including assault, uttering threats, fraud, using a forged document, and failure to attend court.

[25] The Crown also alleged that he has a conviction for assault for a choking incident which post-dated the incident in respect of which he was found guilty by the jury at this trial. The Crown does not invite me to take this conviction into account on sentencing per se, but advances it to rebut the assertion in the character reference letter that M. T-S. has recently been of good character. As no record or particulars of this purported recent conviction are before the Court in evidence today, I have not taken this conviction into account on sentencing.

[26] This was a case involving the penetrative sexual assault of a former intimate partner. The aggravating factors present in this case include the following:

a. The direction of Parliament at s.718.2 (a)(ii) of the Criminal Code that it shall be deemed to be an aggravating circumstance that the offender, in committing the offence, abused the offender’s intimate partner. Ms. C.U. had previously been M. T-S.’s intimate partner, and they had a child together;

b. The direction of Parliament at s.718.2(a)(iii.1) that the offence had a significant impact on the victim. This impact was evident from C.U.’s evidence about the aftermath of the incident;

c. That the sexual penetration took place in the presence of a young child; and

d. That M. T-S. has a criminal record extending over a number of years, including offences of assault.

Mitigating Factors

[27] The mitigating factors present on the facts of this case are few. They are chiefly that M. T-S., as an amputee, has one prosthetic leg and that serving a custodial sentence may thus be more difficult for him because of this physical disability.

[28] I have carefully considered this factor. There is no evidence before me that the degree of Mr. M. T-S.’s disability precludes his mobility to such a degree that it should be a significant mitigating factor on sentence. As a matter of general principle, when an offender has a health problem which is not life threatening it may be considered as a mitigating factor but will not justify a departure from the usual range of sentence in the absence of evidence that it cannot be treated within a custodial institution: R. v. LaCombe, 2023 ONSC 1975 at para. 36, citing R. v. H.S., 2014 ONCA 323 at paras, 37-38. There are medical facilities present in the correctional system sufficient to provide him with such medical assistance as he may require in this regard.

[29] Defence Counsel also made an oral submission to the effect that Mr. M. T-S. informed him that there was an immigration hearing on July 26, 2023, last week, and that he has been informed that a deportation order will be issued against him. No documentary or other evidence in this regard was presented at this sentencing hearing.

[30] I have considered the risk of deportation. Immigration consequences may be taken into account in sentencing as personal characteristics of the offender. They are not, strictly speaking, aggravating or mitigating factors. Their relevance flows from the application of the principles of individualization and parity. Relevance may also flow from the sentencing objective of rehabilitation. Where the court takes collateral immigration consequences into account, the sentence that is ultimately imposed must still be proportionate to the gravity of the offences and the degree of responsibility of the offender: R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739. See also R. v. Suter, 2018 SCC 34.

[31] In the recent case of R. v. Sousa, 2023 ONCA 100, Lauwers J.A. held at para. 14:

“The criminal acts in this case were so egregious that no reasonable adjustment in the sentence could obviate any immigration consequences. As noted in Pham, cited above, the sentence must ultimately still be proportionate to the gravity of the offence and the responsibility of the offender. Given the characteristics of this case, and the unknown likelihood of actual deportation, there is no reason to adjust the sentence on the basis of immigration consequences.”

[32] I find that that analysis aptly pertains to the present case as well.

[33] I also do not accept what I understood to be the “economic” argument advanced by Defence counsel in oral submissions, to the effect that the significant cost involved in incarceration in a penitentiary is not necessary for rehabilitation if Mr. M. T-S. is likely to be subsequently deported from Canada upon his release. He also suggested that the risk of incomplete rehabilitation on release from custody is not a risk imposed on the Canadian people. I would point out that Mr. M. T-S.’s ultimate deportation is not a certainty. But more importantly, in this country individuals are sentenced as individuals, having regard to all of the sentencing purposes and principles set out by Parliament in the Criminal Code, including denunciation and general and specific deterrence, which must predominate in this case.

[34] Defence counsel also submitted that Mr. M. T-S. has spent a long time on bail since his arrest on September 5, 2019. This is a relevant factor, and I have taken it into account in determining an appropriate sentence.

Assessment

[35] I have carefully considered all of the sentencing purposes and principles elaborated at ss. 718, 718.01, 718.1 and 718.2 of the Criminal Code. I have also considered the sentencing precedents in the caselaw jurisprudence submitted by the Crown and the Defence, and the relevant aggravating and mitigating factors in this case.

[36] I have considered the personal circumstances of M. T-S., including his physical disability and immigration status, and his criminal record of prior convictions. I have also considered the impact upon the complainant C.U..

[37] I am alive to the principle of restraint. However, in cases such as this, which involve a penetrative sexual assault against a vulnerable victim, the dominant sentencing principles must be denunciation, as well as general and specific deterrence.

[38] I have also had regard to the issue of rehabilitation, as well as the sentencing principles of separation of offenders from society, where necessary, and the promotion of a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community. But, as stated, considerations of denunciation and deterrence must predominate in this case.

[39] The moral responsibility of M. T-S. is high. He sexually exploited a vulnerable young woman for his own sexual satisfaction, heedless of the inevitable adverse impact upon her sexual integrity and well-being.

[40] Having regard to the facts in evidence in this case, the relevant aggravating and mitigating factors, the statutory provisions of the Criminal Code, including the objective gravity of the offence, and the sentencing precedents cited by the Crown and Defence, I am satisfied that, on the facts of this case, a significant penitentiary sentence is required to fulfill these objectives. This is a case that involved a wrongful interference with the personal autonomy, bodily integrity, sexual integrity, dignity and equality of C.U..

[41] This is manifestly not a case in which a conditional sentence would be appropriate. It would not be consistent with the fundamental purposes of sentencing in ss. 718 to 718.2. Indeed, the Defence does not ask the Court to consider such a sentence.

[42] Having regard to the principle of parity, although the facts of this case are disturbing, they are not as egregious as those in A.J.K., in which the sentencing judge sentenced the offender to five years, which the Court of Appeal found to be entirely fit. The mitigating factors present in Dickson (guilty plea, no criminal record, that the complainant did not want to see the offender incarcerated) are not present on the facts of this case. Mr. M. T-S.’s disabilities do not include cognitive impairment reducing moral blameworthiness, as was the case in Ghadghoni.

Sentence

[43] On the third count of the Indictment for which the jury found him guilty, that of sexual assault contrary to s. 271 of the Criminal Code of Canada, M. T-S. is sentenced to imprisonment for 4 years.

[44] As this is a primary designated offence pursuant to s. 487.051 of the Criminal Code, M. T-S. shall provide a sample of bodily substances for the purpose of forensic DNA analysis.

[45] There shall be a Sex Offender Information Registration Act Order pursuant to s. 490.012(1) of the Criminal Code. The duration of the order shall be for 20 years.

[46] During his incarceration, pursuant to s. 743.21, M. T-S. is to abstain from communicating, directly or indirectly, with C.U. or any of her children.

[47] There shall be a s.109 weapons prohibition Order for 10 years in respect of any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance, and for life in respect of any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition.

M. Gibson. J. Dated: July 31, 2023