COURT FILE NO.: CR-483/21 DATE: 20230803

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – D.G. Defendant

Counsel: Devyn Noonan, for the Crown Eugene Bhattacharya, for the defence

HEARD: August 2, 2023

REASONS FOR SENTENCE

PUBLICATION BAN

An Order has been made pursuant to s. 486.4 of the Criminal Code directing that the identity of the complainant and information that could disclose such identity shall not be published or broadcast or transmitted in any way.

MANDHANE J.

OVERVIEW

[1] On March 30, 2020, D.G. was arrested by Peel Regional Police and charged with committing a sexual assault on A.C. on March 1, 2020, contrary to s. 271 (a) of the Criminal Code of Canada, R.S.C., 1985, c. C-46. Between April 17 and May 1, 2023, D.G. appeared before me for his trial by jury. On May 1, 2023, the jury convicted D.G. of one count of sexual assault contrary to s. 271 of the Criminal Code.

[2] D.G. now appear before me for his sentencing hearing. The Crown submits that a sentence of four years in custody is appropriate. The Crown also asks for a number of ancillary orders including a mandatory SOIRA order pursuant to s. 490.012 of the Criminal Code, a mandatory 10-year weapons prohibition order pursuant to s. 109 of the Criminal Code, a mandatory DNA order pursuant to s. 487.051 of the Criminal Code, and a non-communication order pursuant to s. 743.21 of the Criminal Code.

[3] The Defence asks for a sentence of between two and three years. The Defence consents to the ancillary orders being made.

SHORT CONCLUSION

[4] A sentence of three years and six months (or 42 months) is appropriate in all of the circumstances.

THE FACTS OF THE OFFENCE

[5] After a jury renders a guilty verdict, as the sentencing judge, I must decide the facts upon which the offender is to be sentenced: Criminal Code, s. 724(2). I need not arrive at a complete theory of the facts, but I must make those factual determinations necessary for the appropriate sentence: R. v. Ferguson, 2008 SCC 6; see also, R v. Forsellino, 2022 ONSC 262; R. v. Aragon, 2022 ONCA 244, paras.104-106.

[6] As sentencing judge, I am bound by the express and implied factual implications of the jury’s verdict: Ferguson, paras. 17-18. I must accept as proven all facts, express or implied, that are essential to the jury’s finding of guilt. On the other hand, I must not accept any facts that are only consistent with a verdict that the jury rejected.

[7] Where the factual implications of the jury’s verdict are ambiguous, I must come to my own independent determination of the relevant facts consistent with the jury’s verdict: Ferguson, paras. 17-18. see also R. v. Roncaioli, 2011 ONCA 378, para. 59. I need not assume that the jury took "the most lenient path to conviction": R. v. Nelson, 2014 ONCA 853, para. 56. However, to rely upon an aggravating factor, I must be convinced of the existence of the fact beyond a reasonable doubt.

[8] In this case, some things are clear from the jury's verdict. First, the jury was satisfied beyond a reasonable doubt that D.G. intentionally touched the Complainant in circumstances of sexual nature. Given that D.G. denied that any sexual touching took place, it is also implied by their finding that the jury rejected his evidence about what happened in the vehicle. Second, the jury was satisfied beyond a reasonable doubt that the Complainant did not consent to the sexual touching, and that D.G. knew that the Complainant did not consent.

[9] However, the jury’s verdict does not tell me what form of touching took place (whether fondling, digital penetration, or sexual intercourse) and also does not tell me whether the Complainant’s lack of consent was as the result of her state of intoxication. The nature of the touching and the reasons for the Complainant’s lack of consent are facts that are important to assessing the gravity of the offence and imposing my ultimate sentence.

The nature of the touching

[10] Based on my review of the totality of the evidence, I find beyond a reasonable doubt that D.G. engaged in sexual intercourse with the Complainant in the backseat of Mr. Johnson’s car. I come to this as my conclusion based on the following key facts:

• The Complainant believed that a man had sexual intercourse with her while she was in the backseat of the car, though she wasn’t 100% sure;
• Mr. Johnson’s saw movements that were consistent with D.G. having “doggy-style” sexual intercourse with the Complainant in the back of the car;
• The Complainant exited the car naked and her clothes were later found in Ms. Johnson’s car;
• D.G.’s was overheard immediately after the assault stating, “When I put my dick in her she started bawling for rape,”
• The Complainant’s demeanor immediately after the alleged incident was consistent with a serious assault, and
• The results of the physical exam were consistent with recent sexual intercourse.

The evidence upon which I rely is detailed below.

The Complainant’s evidence about the alleged touching

[11] The Complainant testified that she was very drunk when she left the nightclub and that she eventually entered a car that she believed was an Uber or a taxi but which was actually the Acura being driven by Mr. Johnson.

[12] The security camera footage has the Complainant leaving the club at approximately 2:58 a.m.. At this point, she was wearing her clothing, a winter jacket, and shoes. She recalled there being two men in the front seat of the car and one man in the back. She says that, upon entering the car, she fell asleep. She said that she was intoxicated and thought that the Uber was driving her home.

[13] The next thing the Complainant remembered was realizing that the car was stopped in a field. The Complainant said that she is certain that she felt a man touch her breasts and her vagina with his fingers. She thinks she was laying down in the back seat and that the man was on top of her. In cross-examination, she said that the individual was also behind her at one point. The Complainant testified that she believed that the man had sexual intercourse with her, but that she could not be 100% sure given her state of intoxication.

[14] The Complainant testified that she couldn’t be sure about which of the men was touching her, because she had never met them before. Based on their voices, she thought that they might be Black, mixed-race, or Hispanic. She said that she could not recall what the men looked like anymore. The Complainant testified that she was completely blacked-out at points during the alleged assault. She admitted that her recollection of events is confused and fragmented, and that “its hard to put it together.”

[15] The next thing the Complainant remembered was being back in the vicinity of the nightclub, opening the door of the car, and running away from it. She said that the men were outside the car at this point, that they were laughing, and that one of them yelled, “fucking bitch.” At this point, the Complainant was naked but for her winter jacket, which was not zipped up. She testified that she did not know how or when her clothing and shoes had come off but denied that she would have taken them off herself.

[16] The Complainant remembered asking a woman exiting the club for help, talking to some construction workers, and sitting in a van. She recalled getting into an Uber and being driven to the police station.

[17] There was circumstantial evidence about the Complainant’s demeanour that supports an inference that the touching was serious. Ms. Billings, Kelvin Phillip, and Officer Natalia Michenko all testified that, during their interactions with the Complainant immediately after the alleged assault, she was crying and she seemed scared, worried, and angry. A dashboard camera video from Mr. Phillip’s car shows the Complainant being visibly distraught. Ms. Billings and Mr. Phillips also testified that the Complainant asked them for help, and that they both formed the impression from her statements that she needed to be taken to a police station.

Mr. Johnson’s evidence about the touching

[18] According to security camera footage, upon entering the club, Mr. Johnson was wearing a pink hoodie, while D.G. was wearing a grey and white hoodie. Mr. Johnson, D.G., and another man, “Goolie,” exited the club together at about 2:56 a.m.. Mr. Johnson went to get his car, while D.G. and “Goolie” waited by the exit.

[19] Mr. Johnson eventually pulled up in front of the club, and testified that D.G., “Goolie,” and the Complainant all got into the car at the same time. He said that the Complainant sat in the front seat, while D.G. sat in the rear passenger-side seat, and “Goolie” sat in the rear driver-side seat. Mr. Johnson testified that he did not know the Complainant, that he had never met her before, and that she did not say anything when she got into the car. He testified that he heard someone say, “Let her in,” and from that he assumed that the Complainant was accompanying either D.G. or “Goolie.”

[20] Mr. Johnson testified that he started driving away from the club in Mississauga towards his home. Mr. Johnson testified that when they arrived at the house, “Goolie” immediately exited the car and entered the house. At that point, the Complainant looked out the window and realized that she wasn’t home. That’s when Mr. Johnson said he realized that the Complainant was not accompanying either D.G. or “Goolie.” Mr. Johnson testified that the Complainant repeatedly told him that she wanted to “go home” and that she had a son, but that she refused to give him her home address. Mr. Johnson testified that he decided to drop the Complainant back at the club. He said the whole exchange in front of the house lasted only a minute or so.

[21] Mr. Johnson said that he drove back to the club. D.G. was there to keep Mr. Johnson company. The Complainant remained in the front seat, while D.G. was in the back seat. At some point, Mr. Johnson testified that the Complainant tried to grab onto his steering wheel, that he was blocking her with his arm and pushing her away, and that he eventually told her to get into the backseat, which she did. From that point onwards, D.G. was behind the driver’s seat, and the Complainant was in the rear behind the front passenger’s seat.

[22] Mr. Johnson testified that things changed when the Complainant got into the back seat. He said that the Complainant was reaching over to touch D.G. and saying, “I want to go home. I want to go home.” Mr. Johnson testified that the Complainant then announced loudly, more than once, that she “wanted it doggie style.” He said that at first D.G. told the Complainant to “calm yourself,” but that she kept repeating, “I want doggie style.” Mr. Johnson said that the Complainant was not doing anything unusual with her body but admitted that he was driving and not totally focused on what was happening in the back. Mr. Johnson testified that he never heard D.G. ask the Complainant if she wanted to have sexual intercourse, or whether she wanted to have sexual intercourse with him.

[23] Mr. Johnson said that he couldn’t see D.G. because D.G. was seated immediately behind him, but that through the rear-view mirror it looked like D.G. and the Complainant were “doing it doggie style.” He said that he didn’t see either one of them naked or in a state of undress and did not see their genitalia, but that their positions and body movements were consistent with sexual intercourse. He couldn’t see the Complainant’s face because she was bent over, kneeling-down, and looking out the rear side-door window. He didn’t hear anything really except the sound of the seats from movement on the back. He said that D.G. and the Complainant were in that position for six to seven minutes, and that afterwards D.G. was on one side of the backseat and the Complainant was on the other side for the remainder of the drive.

[24] Mr. Johnson testified that when they arrived back in the vicinity of the club, the Complainant kept saying that she wanted to go home but kept refusing to give him her address. Mr. Johnson and D.G. eventually exited the car. Mr. Johnson ended up talking to a security guard who told him to take the Complainant to the police station at 3:41 a.m.

[25] Mr. Johnson said that when he got back into the car, he asked the Complainant again for her address. This time, she handed him her phone which was open to her address. He said that before he could click on the Uber app, the Complainant grabbed the phone back, and bust the door open and ran out. Mr. Johnson said that the Complainant ran towards a female bartender, Nyteriah Billings, who was exiting the club and started to speak with her.

[26] Mr. Johnson said that after the Complainant left his car, he was waiting for D.G. to come back so they could leave. When D.G. got back to the car, he told Mr. Johnson that Ms. Billings had told him that the Complainant told her that she had been raped while she was drunk. Mr. Johnson said that he was concerned about the allegation and tried to catch up to the Complainant and Ms. Billings as they were walking across the street towards a food truck. He said that by the time he pulled the car up behind them, the Complainant had entered the food truck’s U-Haul van. Mr. Johnson spoke to Ms. Billings who told him that she had called an Uber and would be taking the Complainant to the police.

[27] Mr. Johnson testified that the next thing he saw was a police cruiser driving by on the road. He said that he drove after the police cruiser and honked the horn for him to stop. After explaining the situation, he says that the officer told him that he was on another call and to either call the police or bring the Complainant to the station.

[28] Mr. Johnson said that after he arrived back to where he had left the Complainant and the bartender, they were both gone. Mr. Johnson testified that he and D.G. were in the vicinity of the club for a total of about 30 to 45 minutes before they left to return home.

[29] Mr. Johnson said that he later found a dress or jumper in his car and that he threw it out.

[30] Overall, while I do not accept the entirety of Mr. Johnson’s evidence, I accept his evidence about the nature of the touching. I accept that he observed movements consistent with sexual intercourse in the back of the car because this evidence is consistent with the Complainant’s memory of a man being both on top of her and behind her in the car. As will be discussed below, it is also consistent with D.G.’s admission after the fact.

Ms. Billings’ evidence about D.G.’s admission

[31] Ms. Billings testified that after the Complainant had left the vicinity of the club, and while the Complainant was waiting in the U-Haul van for an Uber to take her home, she overheard two men engaged in conversation. She said that the chef from the food stand asked the other man what had happened, and that the other man explained that the Complainant had taken off her clothes and bent over, and that “when I put my dick inside of her, she was bawling for rape.” Ms. Billings described the man who said these words as wearing a grey or black hooded sweatshirt (as opposed to the other occupant of the car who she described as wearing a pink hooded sweatshirt).

[32] I have no trouble concluding that D.G. was the one who said these words. Ms. Billings was unshaken in her testimony and her story is consistent with Ms. Johnson’s evidence about the timeline after the incident. D.G.’s admission of engaging in sexual intercourse with the Complainant is a very strong piece of evidence that supports my finding that he engaged in sexual intercourse with the Complainant.

Ms. Faye’s evidence relevant to touching

[33] Rachel Faye, a registered nurse, examined the Complainant at 10:00 a.m. on March 1, 2020, and testified that the Complainant had difficulty recalling the events at issue. Overall, Ms. Faye did not observe any physical injuries on the Complainant’s body. However, she noted small linear scratches on both of her upper arms, and two small linear scratches on her left upper breast. She found three small bright red lacerations on her posterior fourchette, which she explained was at the opening of the vagina towards the anus. While Ms. Faye’s evidence is not conclusive, I find that it is consistent with recent sexual intercourse.

The lack of consent

[34] I find beyond a reasonable doubt that the Complainant lacked the capacity to consent because of her state of intoxication. This finding is inescapable based on the following evidence, which is detailed below:

• The Complainant’s evidence about the amount of alcohol she consumed, her state of intoxication in the club, her demeanour in the car, and her difficulties remembering the evening,
• Ms. Spencer and Mr. Haywood observations of the Complainant in the club and immediately before she got into the car (which was supported by security camera footage), and;
• The expert evidence of Dr. Marie Elliot who estimated that, immediately being getting into Mr. Johnson’s car, the Complainant’s blood alcohol concentration would have been between 89 and 196 mg of alcohol per 100 ml of blood.

The Complainant’s evidence about capacity

[35] The Complainant testified that she did not consume alcohol regularly, but that on the night in question, she was in the mood to go out and have fun with her friend. She testified that between approximately 10:00 p.m. and leaving the nightclub at 2:58 a.m., she consumed a “few small shots of tequila” at a friend’s house, as well as three cocktails and one beer at the nightclub.

[36] The Complainant said that when they first arrived at the club, she went to the washroom, and then she was dancing and having fun with her friend. She recalled starting to feel very drunk as the night went on. She said her mental state was “not good,” and that she “couldn’t focus” on what was going on around her. She remembered throwing up in the washroom and searching for her friend at the club.

[37] The Complainant admitted that there are many gaps in her memory because of her level of intoxication. For example, when being shown portions of the security camera footage showing her interactions with Chantel Spencer and Donnie Haywood, the Complainant could not remember interacting with either of them. She did not remember slamming her purse against the ground.

[38] The Complainant testified that immediately upon entering Mr. Johnson’s car, she fell asleep. She said she thought the car was an Uber or taxi, and that she wanted to go home because she was “so drunk.” The Complainant testified that she was extremely intoxicated at the time of the alleged assault but recalled her breasts and vagina being touched. She said that at the point of the alleged sexual intercourse she was “totally blacked out.”

[39] By 4:54 a.m., when she is photographed in the vicinity of the food stand, the Complainant had some recollection of interacting with “two construction guys,” asking “a girl” to help her, getting into an Uber, and talking to her friend on the phone. She remembered the Uber driver dropping her off at the police station.

Ms. Spencer and Mr. Haywood’s evidence about capacity

[40] Ms Spencer and Mr. Haywood, who were both strangers to the Complainant, testified that she was extremely intoxicated during their interactions with her at the club.

[41] Ms. Spencer testified that she noticed a woman who was stumbling, bumping into people, and who appeared “super intoxicated.” Ms. Spencer did not know the Complainant but said that she was “concerned for her safety.” She said that she was specifically concerned that “someone would take advantage of her.”

[42] Ms. Spencer eventually followed the Complainant, who appeared to be headed to the bathroom, and asked her, “Where are your friends?” Ms. Spencer said that she couldn’t understand the Complainant because she was crying and drunk. At that point, the Complainant threw her arms around Ms. Spencer and was resting her whole-body weight against her. Ms. Spencer said that the Complainant could not stand without support.

[43] Eventually, the Complainant sat down on a couch and Ms. Spencer sat down beside her. The Complainant took her shoes off and handed them to Ms. Spencer. Ms. Spencer eventually used the Complainant’s phone to call her friend and learned that the Complainant was at the club alone. At that point, Ms. Spencer testified that the Complainant got up and started to bend over and make noises like she was going to throw up. Ms. Spencer took her to the washroom. She linked arms with the Complainant to hold her steady while they waited for a stall to come free.

[44] The Complainant entered the bathroom stall alone, while Ms. Spencer held the door shut. Ms. Spencer left the Complainant in the care of another patron to go alert security staff to the situation. Ms. Spencer first talked to a female security guard and then to a male security guard. The female security guard accompanied her back into the bathroom. Inside, the Complainant was still in the stall and was “making banging and screaming noises” that it sounded like someone who was “possessed.” Ms. Spencer testified that it was “very weird.” She heard the Complainant heaving but did not know if she vomited.

[45] After they exited the washroom, Ms. Spencer led the Complainant towards the security guards who were stationed at the exit. Ms. Spencer said that the Complainant was holding onto her, leaning on her, grabbing her, and hugging her. The Complainant kept trying to put her head on Ms. Spencer’s shoulder. Ms. Spencer testified that the Complainant couldn’t hold herself steady and was almost falling forward. Ms. Spencer said that she eventually gave the male security guard the Complainant’s address, which she testified that she obtained by text from the Complainant’s friend. Ms. Spencer said that the male security guard told her that they would send the Complainant home in a taxi.

[46] There was security camera footage showing Ms. Spencer’s interactions with security staff, which was timestamped 2:46 to 2:52 a.m. Mr. Haywood was the male security guard interacting with Ms. Spencer. He said that Ms. Spencer handed the Complainant over to him because she was “wandering around and acting weird.” He said his usual practice when dealing with a drunk person is to get them a ride home. He testified that he called a taxi for the Complainant and told her that it was on its way. He said that the Complainant went outside, and that he followed her out. He testified that she was “laughing, screaming,” pointing and waving at people, and throwing down her purse. He testified that she was “smashed” but that she didn’t need police or medical attention. He testified that the Complainant went up to a car and told him that she knew the people inside and then got in. He said he cancelled the taxi that he had previously called for her. The security camera footage showing Mr. Haywood’s interactions with the Complainant outside while waiting for the taxi is timestamped 2:52 to 2:58 a.m.

Dr. Elliot’s opinion about capacity

[47] Dr. Marie Elliot who is a toxicologist at the Centre for Forensic Sciences also gave evidence. Dr. Elliot has a doctorate degree in chemistry and has worked in her field for over 20 years. Dr. Elliot was qualified to give expert opinion evidence on the adverse effects of alcohol on the human body.

[48] Dr. Elliot was provided with a urine sample that was taken from the Complainant at 9:30 a.m. on March 1, 2020, and a blood sample that was taken at 11:43 a.m. At that time, the Complainant’s blood alcohol concentration was 21 milligrams (mg) of alcohol per 100 millilitres (ml) of blood.

[49] Because the samples were taken well-after the alleged assault, Dr. Elliot provided her opinion on the Complainant’s blood alcohol concentration at relevant points in time. Dr. Elliot said that she was able to predict the Complainant’s blood alcohol concentration at a specific point in time based on a calculation called a “readback.” However, Dr. Elliot cautioned that a readback was only an estimate because it was based on assumptions about a person’s previous experience consuming alcohol and their pattern of consumption at the relevant time.

[50] Dr. Elliot estimated that, at 2:53 a.m., immediately after Ms. Spencer handed the Complainant over to Mr. Haywood, the Complainant’s blood alcohol concentration would have been between 89 and 196 mg of alcohol per 100 ml of blood. Dr. Elliot estimated that at 4:53 a.m., when the Complainant was at the police station, her blood alcohol concentration was between 69 and 156 mg/100 ml.

[51] Dr. Elliot said that, between the entire range—i.e., 69 to 196 mg/100 ml—the effects can “vary greatly” between individuals because of tolerance and consumption patterns. All things being equal, a person who had consumed less alcohol in the past, like the Complainant, would have a higher blood alcohol concentration than someone who has more experience with alcohol. The same can be said for someone who drank quickly or binge drank versus someone who drank slowly throughout the night.

[52] Dr. Elliot opined that a light to moderate drinker, like the Complainant, with a blood alcohol concentration of 89 to 119 mg/100 ml, would have slight slurred speech, slight loss of coordination, flushed cheeks, disinhibition, increased sociability, and confidence. They could be some very slight memory deficits, mostly related to a lack of attention. With a blood alcohol concentration of 120 to 140 mg/100 ml, the person could be staggering and swaying, have slurred speech, have increased confidence and, at the upper range, changes in mood.

[53] Above 150 mg/100 ml, the person could experience nausea or vomiting. Approaching 160 mg/100 ml, the person might have difficulty walking, and might be confused and disoriented. From 160 to 180 mg/100 ml, Dr. Elliot opined that all the effects would be more exaggerated, with increased slurring and potentially needing assistance with walking. In this range, Dr. Elliot opinion that the alcohol will have an impact on decision-making. Closer to 180 mg/100 ml, there could be tiredness and lethargy, such as the Complainant experienced in this case.

[54] She said that between 160 to 200 mg/100 ml, a person may lose consciousness, though that would be more likely at the higher range unless the person was a naïve drinker—again, like the Complainant. Dr. Elliot said blood alcohol concentrations in the range of 160 to 200 mg/100 ml can impact memory but that it is “somewhat unpredictable” and could include loss of specific memories or a complete memory loss or blackout. Between 180 to 200 mg/100 ml, all the symptoms will be further exaggerated, with potentially extreme confusion and disorientation.

[55] The expert evidence supports my finding that the Complainant was intoxicated and passed out at the time of the offence.

CRAFTING THE APPROPRIATE SENTENCE

[56] The fundamental purpose of sentencing is to protect society and contribute “to respect for the law and the maintenance of a just, peaceful and safe society”: Criminal Code, s. 718. To do this, judges must impose “just sanctions” that reflect one or more traditional sentencing objectives, including denunciation, general and specific deterrence, separation of offenders from society, rehabilitation, reparation to victims, promoting a sense of responsibility in offenders, and acknowledging the harm done to victims and the community: s. 718(a)-(f).

[57] Sentencing is highly discretionary, and there is no set formula for fixing the correct sentence: R. v. Parranto, 2021 SCC 46, para. 13. The starting point is that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. According to the majority in Parranto at para. 10, “proportionality is the organizing principle” to reach the ultimate goal of imposing a fair, fit and principled sentence. The principles of parity and individualization, while important, are secondary: Parranto, para. 10. As the Supreme Court explained in R. v. Lacasse, 2015 SCC 64, para. 53, “individualization and parity of sentences must be reconciled for a sentence to be proportionate.”

Gravity of the Offence

[58] The Court of Appeal’s words in R. v. A.J.K., 2022 ONCA 487 at para. 74, ring true:

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.

[59] Here, D.G. was found guilty of a serious sexual assault that involved vaginal penetration of the Complainant—a stranger who was intoxicated to the point of unconsciousness. The sexual assault was unplanned and opportunistic. D.G. took advantage of the Complainant’s extreme vulnerability for his own sexual gratification.

[60] It is clear that a sexual assault that takes place while the complainant is unconscious is aggravating because the complainant is “vulnerable and defenceless”: R. v. A.J., 2018 ONSC 5153, at para. 31. It is also aggravating to leave the victim in a vulnerable state, such as being disrobed: R. v. Thakoordeen, 2019 ONSC 1540 at para. 32. The Court of Appeal for Ontario has found that a stranger attacking a random woman is also aggravating because it “shakes the community” and “breeds fear that anyone is a potential target”: R. v. Brown, 2020 ONCA 657; see also, R. v. O’Kane, 2021 ONSC 3946, para. 19. Courts have found that the negative impact of such crimes extends well-beyond the victim to the broader community: “This type of offence is not just an assault on an individual woman, awful as that is, it is also an assault…on the sense of security that should be enjoyed by all members of the community.”: R. v. Trumpa, 2017 ONSC 5966 at para. 27.

Victim impact

[61] I accept the Crown’s submission that the Complainant was vulnerable insofar as she is racialized woman and recent immigrant with dependent children. The Complainant filed a victim impact statement with the court. These are her words about how the sexual assault and the trial impacted her:

Everyday is a struggle for me, since the incident happened I felt.I am no longer the person I was once, The happy, outgoing, adventurous, love to laugh and the person full of life , despite on not having enough,but I was contented and happy.Now that person is been long gone. I started to feel dirty about my self and sad most the time . It's been affecting me on my daily life, I've tried so many times to leave the past and move on with my life.But still I have big questions in my mind, that no one can answer. Most of the time I blamed myself. It is so hard to live in this world and pretend that I am ok, because I am not ok. I even cried and don't know the reasons.I started having trust issues problem.And it's been affecting my relationship with my husband. I just felt so dirty and disgusted with myself.

After I saw him on a trial. Seeing his face for the first time . A stranger man that I never seen in my entire 31 years of existence .A totally estranger ... I feel sick in my stomach and it gives anxiety, stressed , scared and feeling disgusting about my self.

I even started to have eating problems. And I'm scared of knowing that my kids would be find out. Scared of being judge.I even get nervous when guys staring at me or random people touching me. I get nervous and anxious especially when I saw someone that looks like him. I started to panicked.

D.G.’s circumstances

[62] D.G. does not have a criminal record and is a first-time offender. I have his pre-sentence report dated June 23, 2023, which was based on a search of police databases, as well as interviews with D.G. and his common law partner, C.B.

[63] D.G. was born in Jamaica and lived with his parents until they separated when he was seven years old. He says that his father was a gambler, excessive drinker, and used to beat him up until his teenage years. His mother eventually re-partnered and D.G. had a positive relationship with his stepfather. D.G. grew up with his siblings and half-siblings and described his childhood as “fun.” He has a good relationship with his extended family, except for his father. He is currently contributing financially to the costs of his mother’s healthcare and treatment in Jamaica.

[64] D.G. dropped out of high school in Jamaica in grade 10 and started working to support his family. He largely worked in construction. In Jamaica, D.G. was in a long-term common law relationship that resulted in a child. The child is now 19 years old and lives in Jamaica with her mother. D.G. has a good relationship with the child and her mother, and the child has visited him in Canada and hopes to immigrate here.

[65] D.G. immigrated to Canada in 2018 as a convention refugee and has applied for permanent residency. Because he is not a Canadian citizen, after serving his sentence, D.G. is likely to be removed from Canada: Immigration and Refugee Protection Act, S.C. 2001, c. 27. D.G. is very concerned about his potential removal from Canada, especially since he was granted refugee status in due to a risk to his life in Jamaica. While collateral immigration consequences are neither mitigating nor aggravating, they are part of personal circumstances of the offender, and may be relevant to the principles of individualization, parity, and rehabilitation: R. v. Pham, 2013 SCC 15, paras. 11-14.

[66] D.G. met C.B. in 2018 and they have been in a common law relationship since 2019 and live together in Belleville, Ontario. They have one child who is two years old, and C.B.’s 12-year-old daughter from a previous relationship also lives in the home. C.B. says that D.G. is a very involved father and that they have a good relationship. C.B. attended in court for the sentencing hearing.

[67] Since arriving in Canada, D.G. obtained a forklift license and started working in construction. He is currently employed at a masonry company in Belleville. He has never been in receipt of social assistance. D.G. does not have any serious substance use or addictions issues. However, he noted that his alcohol use has increased due to the stress of his conviction.

[68] D.G. does not accept responsibility for the offence and maintains his innocence. However, he accepts that “a jury of peers have chosen to convict me.” He reports being sad, ashamed, and embarrassed about the offence which has had made him feel depressed. In my view, D.G. failure to take responsibility poses a barrier to his future rehabilitation.

[69] As a Black man, and a Jamaican refugee, I accept that D.G. himself is the member of a group that is over-represented in the criminal justice system. However, in my view, this is not a mitigating factor in this case. As discussed by R. v. Morris, 2021 ONCA 680, para. 97, the Court of Appeal is clear that “there must, however, be some connection between the overt and systemic racism identified in the community and the circumstances or events that are said to explain or mitigate the criminal conduct in issue.” Here there is no such connection on the facts before me.

Parity

[70] Both parties cite R. v. Bradley, 2008 ONCA 179, at para. 18 as the starting point for my analysis on parity. In that case, the Court of Appeal found that the appropriate range for sexual assaults involving adults was three to five years. In R. v. A.J., 2018 ONSC 5153 at para. 34, Code J. affirmed that “the case law in this province is to the effect that three to five years is the appropriate range of sentence for a serious sexual assault against an adult victim, such as the ones committed in this case. Exceptional cases can fall either above or below that range.” In A.J.K., at para. 77, the Court of Appeal clarified that, “Absent some highly mitigating factor, the forced penetration of another person will typically attract a sentence of at least three years in the penitentiary.”

[71] In her decision, R. v. T.W., 2019 ONSC 5596 at para. 33, Justice Fowler-Byrne sentenced an offender who did not have a criminal record to three and a half years for penetrating a complainant who was intoxicated and sleeping at his house after a house party. The judge also summarized some of the applicable caselaw as follows:

a) R. v. McCaw, 2019 ONSC 3906: in this case, the offender was found guilty of one count of sexual assault. The victim was passed out under the influence of alcohol. The offender engaged in vaginal intercourse without the consent of the victim who was incapable of consenting. The offender claimed to have no memory of having sex with the victim. The offender ejaculated in the victim and did not wear a condom. The offender completed programs in alcoholism prior to sentencing and was remorseful. The offender received a sentence of 40 months of incarceration;

b) R. v. Rand, 2012 ONCA 731: in this case, both the offender and the victim drank excessive alcohol. The victim had little memory of the events of the night, except a memory of the offender on top of her penetrating her vaginally. She was in and out of consciousness throughout the assault. The offender did not wear a condom. When the victim rolled over, the offender penetrated her anally. The victim verbally indicated that she did not consent to the sexual act. The offender had a prior criminal record which included offences of dishonesty and crimes of violence, including assault and assault with a weapon. Two of his previous assault convictions involved incidents of domestic violence. The offender was sentenced to four years incarceration, which was not varied on appeal;

c) R. v. Bradley, 2008 ONCA 179: in this case, the offender was convicted of one count of sexual assault. The offender was a police officer and had become a mentor to the victim. The offender had no prior criminal record. The offender was sentenced to three years incarceration;

d) R. v. Stankovic, 2015 ONSC 6246: in this case, the offender was found to have engaged in vaginal and anal intercourse with the victim without her consent. The victim verbally told the offender that she did not want to engage in the sexual activity and he did not listen. The offender was wearing a condom. The victim indicated that she now has trouble sleeping and is fearful of going out in crowds. The victim blamed herself for allowing herself to be in that situation and found it difficult to be motivated in life. The offender had a previous conviction for uttering threats to his ex-wife that he did not disclose to the author of the pre-sentencing report. He also faced possible deportation. The offender received a sentence of three years incarceration.

[72] In addition to these cases, the defence also relies on the following cases regarding the appropriate range:

• R v. P.M. 2022 ONCA 408: The offender sexually assaulted the complainant twice in her home. The offender used violence and threats during the commission of the offence. The offender absconded after his trial and before his sentencing. The offender did not have a criminal record and would face collateral immigration consequences as a result of his conviction. A sentence of three years was found to be appropriate.
• R. v. K.T., [2008] 80 O.R. (3d) 99: The offender was 19 years old and convicted of sexual assaulting a 14-year-old girl. The victim became very drunk and passed out while drinking with the offender. He had unprotected sexual intercourse with her and dumped her partially clad and unconscious into a snowbank. They accused then called her brother to pick her up. The offender did not have a criminal record and he had strong family support. The Court of Appeal held that the appropriate range would have been two years less a day to four years’ incarceration.
• R v. Smith, 2011 ONCA 564, [2011] O.J. No. 3832: In the context of an abusive intimate partner relationship, the offender had nonconsensual sex with the Complainant after she had left him. The offender was law-abiding but for a dated assault conviction, and the allegations related to things he had done many years before. The Court of Appeal imposed a sentence of 2 years for the sexual assault.

The appropriate sentence

[73] In fashioning a fit sentence, I find that the following factors are aggravating:

• D.G. engaged in penetrative vaginal intercourse with the Complainant while she was incapable of consenting, and while she was confined in a vehicle with two other men, and then left her naked afterwards. That said, I note that no weapons were used and there were no lasting physical injuries.
• The Complainant has suffered serious and long-term psychological harm that continues to affect her daily life and her relationship with her husband. She describes not knowing what happened to her, losing her sense of self, feeling disgusting about herself, feeling humiliated, becoming distrustful of others, being scared, feeling judged, becoming nervous and anxious in public spaces, and having eating issues.
• D.G.’s conduct—sexually assaulting of a stranger—has a wide-ranging impact on the community and makes women afraid to go about their daily lives.

[74] On the other hand, the following factors are mitigating:

• D.G. is a first-time offender who has never been in trouble with the law before;
• D.G. is an involved father and responsible for providing financially for his children and his aging mother; and
• D.G. is employed and does not have any substance abuse issues.

[75] Considering these individual factors, the related immigration consequences, and the principles of parity, I find that a sentence of three and a half years is appropriate. This sentence appropriately balances the seriousness of the offence and impact on the Complainant against the fact that D.G. is a first-time offender with prosocial antecedents. In my view, a three-and-a-half-year sentence is consistent with other sentences for similar offences.

SENTENCE IMPOSED

[76] D.G. is sentenced to 3 years and 6 months of imprisonment for sexual assault. The ancillary orders shall be made on consent.

Mandhane J. Released: August 3, 2023

COURT FILE NO.: CR-1483/21 DATE: 20230803

ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – D.G. REASONS FOR SENTENCE Mandhane J. Released: August 3, 2023