COURT FILE NO.: CR-22-00000116 DATE: 2024 07 02

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING J. Bellehumeur, for the Respondent

• and -

A.R. L. Rados, for the Applicant

HEARD: January 18, 2024

REASONS FOR SENTENCE

JUSTICE BARNES

INTRODUCTION

1A jury convicted A.R. of four counts of assault and one count of sexual assault. The complainant is his then-intimate partner (R.V.). He was convicted of an additional count of assault (choking) the complainant is his young son (K.R.).

2The Crown sought a global 22-month sentence plus two years probation and a Sex Offender Identification Registration Act (SOIRA) order for 20 years with no contact with R.V. and K.R. unless permitted by a family court order.

3The defence sought a global conditional sentence of 18 months including a condition that A.R. attends counselling for anger management. The defence was opposed to a probation and SOIRA order.

4On October 22, 2022, the Supreme Court of Canada in R v Ndhlovu, 2022 SCC 38, held that the mandatory section 490.012 and 490.013 (2.1) Criminal Code orders were of no force and effect due to an infringement of section 7 not saved by section 1 of the Charter. This declaration was suspended for one year and applied prospectively. On consent, the sentencing of A.R. was delayed until the one-year grace period had elapsed.

5I sentenced A.R. to a global sentence of 18 months, 2 years Probation and a DNA order. I declined to impose a SOIRA order:

a) Count 2 - Assault: 2 months consecutive to all counts b) Count 5 – Assault: 5 months concurrent to count 6 and consecutive to all counts c) Count 6 – Assault: 5 months concurrent to count 5 and consecutive to all counts d) Count 7 – Assault: 5 months: concurrent to count 8 and consecutive to all counts e) Count 8 – Sex Assault: 5 months concurrent to count 7 and consecutive to all counts f) Count 10 – Assault (Choking): 6 months consecutive to all counts

6The probation order conditions: to report to his probation officer once and thereafter as required; not to possess any weapons prohibited by the Criminal Code; not to have any contact directly or indirectly with R.V and K.R. unless permitted by a Family Court Order and to take counselling as directed by his probation officer.

7I have considered all of the evidence and the submissions of the parties, however, I only refer to portions as necessary to provide context for and explain the sentence I have imposed.

BACKGROUND FACTS

Count 2: Between the 1st day of March 2011 and the 31st day of May 2011

8In the spring or summer of 2011, A.R. and his then spouse R.V. lived in the basement of his parents’ house. One day, A.R. argued with his mother. In private, R.V. told A.R. that she agreed with his mother. A.R. did not like that. He responded with violence.

9A.R. grabbed the front of R.V.’s neck with one hand. He used his other hand to push her back. He dragged her to the basement stairs leading upstairs. He dragged her up the stairs. At the top of the stairs, he pushed her in the back through the front door and threw her shoes at her. R.V. walked to the GO station. A.R.’s parents went to the GO station. They asked R.V. to return home and she agreed.

Count 5: Between the 1st day of June 2016 and the 31st day of August 2016 (Assault)

Count 6: Between the 1st day of June 2016 and the 31st day of August 2016 (Sexual Assault)

10One day in June 2016, R.V. went to a work function (dinner). A.R. was with their young son K.R. He sent her messages throughout the function. He asked her to return home. On her return, A.R. touched her in the chest area. She told him to stop. He pushed her toward the wall in the kitchen area with his right hand. With the same hand, he continued to touch her breasts. He groped her. She told him to stop more than once. He did not listen. He was aggressive. He said he was her husband and should be able to touch her as he wished.

11A.R. used his left hand to grab R.V. by the jaw and pushed her against the wall. He applied enough force such that only her toes touched the ground. She pushed at him and he finally let her go. She ran upstairs to their bedroom. Their son K.R. was asleep at that time.

Count 7: Between the 1st day of August 2020 and the 31st day of August 2020 (Assault)

Count 8: Between the 1st day of August 2020 and the 31st day of August 2020 (Sexual Assault)

12One day in August 2020, amid the pandemic, A.R. and R.V. were in the TV room of their home. A.R. wanted to buy tire rims for his car. R.V. disagreed. They were low on funds. They began to argue.

13In the middle of the argument, A.R. put his hands under R.V.’s shirt in an attempt to feel her breasts. She told him to stop and pushed his hand out of her shirt. He put his hand back and she pushed it away. She said no.

14A.R. grabbed R.V. by the back of her neck and pushed her down. She fell onto a blanket. Her face hit the floor. A.R. dragged her by the blanket from the room to the foyer and stopped by the front closet. The children were in the dining and living rooms. As she lay on the floor, A.R. kicked her hard on her side. The children screamed as he did this. R.V. sustained a bruise on the side of her body where she was kicked. She also had bruising on the side of her face.

Count 10: Between the 1st day of December 2020 and the 31st day of December 2020

15Just before Christmas in December 2020, R.V. and A.R. were home with their two young children. At that time, K.R. tended to cry often. A.R. put both hands around K.R.’s neck until K.R. could not breathe. K.R. was 5 or 6 years old. At some point, A.R. stopped choking K.R.

Objectives of Sentencing

16The sentencing objectives include denunciation; deterrence; separation from society as necessary; rehabilitation; and reparations for harm done to complainants and society; promoting a sense of responsibility in the offender and acknowledging the harm done to the complainant and the community: Section 718.

Primary Sentencing Objectives for these offences

17Denunciation and Deterrence are primary objectives when the offence committed involves the abuse of a child under eighteen years of age: Section 718.01. Denunciation and Deterrence are primary objectives when the offence is committed against a person who is vulnerable because of their circumstances including if the person is a female: Section 718.04.

18Deterrence and denunciation are the paramount sentencing objectives in violent sexual offences where the complainants are children or intimate partners. Parents stand in a position of trust to their children. Parents who commit these offences against their children breach that trust. This is an aggravating factor in sentencing: R v CMR, 2004 O.J. No. 4490.

19Considering the circumstances of each case, the sentencing judge must balance these objectives to determine which objective merits the greatest weight: R v Nasogaluak, 2010 SCC 6, [2010] 1 SCR 206, 72 C.R.

20Within the framework set by the sentencing objectives the imposition of a just, fair and principled sentence is guided by these sentencing principles described below.

21Principle of Proportionality: Any imposed sentence must be proportionate to the gravity of the offence and the offender's degree of responsibility: Section 718.1.

22Principle of Parity: The sentence imposed should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances: Section 718.2 (b).

23The organizing principle for imposing a fit, fair and principled sentence is proportionality. Individualization and parity are secondary principles: R v Parranto, 2021 SCC 46. Sentencing begins with proportionality. Parity is an extension of proportionality. Parity gives meaning to proportionality in practice. Sentencing precedents are a practical expression of proportionality and parity: R v Friesen, 2020 SCC 9.

24The Totality Principle: When consecutive sentences are imposed, the combined sentence should not be unduly harsh or long: Section 718.2 (c).

25Restraint: The offender must not be deprived of their liberty only in circumstances where the least restrictive sanctions would be inappropriate: Section 718.2(d). All available sanctions other than imprisonment should be considered where reasonable in all the circumstances: Section 718.2(e).

26Evidence that the offender abused the intimate partner or a member of their family is an aggravating factor: Section 718.2 (ii); so is evidence that the offender abused a complainant under 18 years of age: Section 718(ii. 1) or that in committing the offence the offender abused a position of trust: Section 718 (iii).

27Sentences imposed must be commensurate with the gravity of the sexual offence [offences]; reflect the normative character of the offender’s actions and the degree of harm to the children [complainants], their families, caregivers and communities: R v Friesen, 2020 SCC 9.

28Section 718.01 which mandates that deterrence and denunciation shall be the paramount sentencing objectives for offences involving the abuse of children confirms the need for courts to [now] impose higher sentences for these offences: R v Friesen, 2020 SCC 9. In my view, considering Parliament’s decision to legislate the following actions as aggravating factors: the abuse of an intimate partner or family member: Section 718.2 (ii); the abuse of a child under 18 years of age: Section 718(ii. 1) the abuse of a position of trust: Section 718 (iii), it is reasonable to extend this reasoning in Friesen beyond sexual offences against children to general application to offences against children and intimate partners.

29The court must consider any aggravating and mitigating factors: Section 718.2 (e). A consideration of these factors includes an assessment of the circumstances of the offence, the circumstances of the offender and the effect of the offender’s criminal behaviour on the complainants.

Aggravating Factors

30The aggravating factors include:

a) Multiple instances of violent assaults as described. b) Violence against intimate partner at the mid-range of seriousness as described. c) Violence against son at the serious end of the spectrum as described. He was choking his son. Son stopped breathing for a period. d) Violence against family members e) Violence against intimate partner. A vulnerable person f) Violence against son. A vulnerable person g) Multiple instances of sexual assault with violence as described. h) Breach of trust concerning son. i) Breach of trust concerning intimate partner j) Intimate partner sustained bruises as described including jaw pain. k) The deleterious impacts on R.V. and K.R. as described below.

Victim Impact Statement

31R.V. writes in her victim impact statement that as a result of A.R.’s offending behaviour, she experiences ongoing trauma, and anxiety and feels unsafe. She reports that her efforts to overcome the resultant social anxiety are proving successful. A.R.’s criminal behaviour has had a deleterious impact on K.R.

32As a result of A.R.’s actions, she experiences ongoing pain in her jaw. The injuries to her neck cause her ongoing pain. She experiences chronic pain in her wrists and hands that negatively impacts her ability on the job. This is detrimental to her occupation as a dental hygienist. As noted, these harmful impacts on both complainants are aggravating factors.

Mitigating Factors

33The mitigating factors include:

a) A.R. has no criminal record. b) A.R. has been on bail for a lengthy period and has complied with the terms of his release. c) He is 38 years old. Relatively youthful. d) Several letters of support with glowing descriptions of A.R. were filed. The attributes include an excellent reputation among friends and family. His behaviour has been described by those who know him as out of character. He has been described as a good family man, hard-working. A person of exemplary character and he has excellent family support. e) His mother is very supportive. f) A.R. is in a new relationship and there has been no deleterious effect on his new partner. g) He acknowledges that he made some mistakes in his marriage. h) He is working with a therapist to address the underlying issues and to improve himself i) He has participated in and completed an intimate partner violence rehabilitation program. j) He is hard-working and has always been gainfully employed. k) He is trained as an HVAC mechanic. l) He previously had his own HVAC business. m) He has a positive history of entrepreneurship. He is currently employed in the field. n) Great likelihood he would lose employment if he went to jail. o) A custodial disposition would adversely affect his employment prospects. p) These charges have taken an emotional toll on him. He has been unable to see his children for an extended period. q) None of the injuries caused constitute serious bodily harm r) No digital penetration (Sexual Assaults). s) No weapons were used.

ANALYSIS

34Sentencing ranges are non-binding tools that assist in arriving at a proportionate sentence: R v Parranto, 2021 SCC 46. Sentencing requires the individualized assessment of the circumstances of the offence and offender within the framework described above.

35Each case turns on its circumstances including the circumstances of the offender, however, the cases referred to below provide some guidance, in my efforts to arrive at a fit, fair, just and principled sentence.

36Cases supporting the imposition of a conditional sentence were provided by the defence. Cases supporting the imposition of sentences of imprisonment in a correctional institution were submitted by the Crown. No case was identical to the circumstances of A.R. and the offences he committed.

37In many instances the differences and similarities in circumstances of the offender and the offences in the cases below and that of A.R. are obvious. I do not refer to every difference and similarity except to acknowledge that I have considered them. I make references to the extent necessary to explain the reasons for the sentence I have imposed in this case.

38The case law below confirms that deterrence and denunciation are the paramount sentencing objectives in assault and violent sexual offences against intimate partners. The cases below reflect jail sentences of 21 months to 5 years.

39R v A.J.K., 2022 ONCA 487: The accused was found guilty after trial of sexual assault, assault and failure to comply with a probation order. The criminal conduct included non-consensual vaginal penetration while choking the complainant; punching her on the side of her head; pressing her head so hard against the side of the car such that she could not breathe. The accused had a prior criminal record for communicating with an underage person for prostitution. The 5-year sentence at trial was upheld. In this case, A.R. does not have a criminal record. None of his offences involved any penetration.

40R v McKenzie, 2023 ONSC 851: Mr. McKenzie was convicted after trial of two counts of assault. He squeezed the complainant tightly around her neck leaving marks on her neck. He punched her against a wall. He hit her on the head knocking her down. He lifted her by grabbing her by the crotch of her pants and neck. He then threw her against the wall. He picked her up and threw her down the hall causing her to strike her shoulder against the wall.

41On another occasion, he pushed the complainant onto the bed and began to strangle her with two hands such that she could not breathe. He placed a pillow over her face such that she could not breathe and then stopped.

42Mr. McKenzie was also convicted of sexual assault. He grabbed the complainant by her left breast such that it hurt. He pinched and grabbed her left arm such that it hurt. He grabbed her by the throat with her right hand and threw her to the floor. He straddled her with his right hand over her throat and with his face only inches away he said, “I will fucking kill you”. He head-butted her causing a 1.5 to 2 inches gash to her forehead. This force was enough to knock her down.

43The court noted that the appropriate range for such intimate partner crimes not involving sexual assault is 4 months to 2 years per event. The court concluded that a conditional sentence was not appropriate for violent intimate partner attacks, multiple violent attacks including choking and strangulation. A global sentence of 3 years was imposed.

44The violence that A.R. applied to R.V. was of lesser severity than in MacKenzie. For example, he did not choke her and he did not threaten to kill R.V.

45R v R.S., 2023 ONCA 600: R.S. was convicted of sexual assault and assault (choking with intent to overcome resistance).

46R. S. pushed the complainant causing her to hit the fridge and fall to the ground. He undid her pants and underwear. He removed her tampon from her vagina. He digitally penetrated her, He grabbed her throat and squeezed hard.

47The Court of Appeal observed that conditional sentences for these offences are rarely if ever proportionate in the context of violent sexual assault cases. Denunciation and deterrence normally require penitentiary sentences in the 3 to 5-year range: paras. 4, 22.

48There is a wide range of conduct which constitutes sexual assault i.e. from non-consensual touching to intercourse. In some circumstances, a conditional sentence is appropriate for sexual assault at the lowest range of wrongful conduct but not appropriate for conduct at the higher end of the range: R.S. para. 27.

49R.S. was a first-time offender. He had a difficult upbringing. He was gainfully employed. He had a good job. There were many prosocial aspects of R.S.’s life. R.S. has demonstrated remorse and insights into his thinking: para. 15

50At trial, R.S. was sentenced to 2 years less a day conditional sentence and a concurrent sentence on the assault to be served intermittently. This sentence was varied on appeal to 3 years.

51A.R. is a first-time offender. He is gainfully employed. He has exemplary letters of support which confirm the prosocial aspects of his life. A.R. did not penetrate R.V. He did not choke her. Except for the push, there are significant differences in the specifics of the assaults and sexual assaults inflicted by A.R. versus R.S.’s actions. A.R. has conceded that he made mistakes in his marriage. However, he has not expressed or demonstrated remorse for his actions as was the case in R.S.

52R v L.S., 2017 ONCA 685: L.S. was found guilty after a trial of two counts of sexual assault. He pushed the complainant. He charged at her and squeezed her tightly bruising her arm. He threw her to the ground and threw a phone at her. He grabbed her and shook her causing her to fall to the ground. He penetrated her vagina without her consent. A 2 year sentence was imposed. A.R. did not penetrate the complainant.

53The cases below impose jail sentences for assault against children. The sentences imposed range from 51 days to 8 years imprisonment.

54R v M.E., 2012 ONSC 1078, 2012 O.J. No. 1627 ONSC: M.E. was convicted after a trial. He frequently and systematically abused his three teenage children. The abusive conduct included slaps, punches, strikes with a belt and other objects. M.E. sexually abused his stepdaughter. He was convicted of assault, assault causing bodily harm, and possession of a weapon for a purpose dangerous to the public peace. M.E. had no insight into his actions. He was not remorseful. He breached the children’s trust. M.E. received a global sentence of 8 years plus DNA and SOIRA orders.

55A.R. was convicted of one count of assault against his son. He did not use any weapons. He was not found guilty of multiple acts of violence as was M.E. However, A.R.’s single violent act was serious. He choked his son until his son could not breathe before letting go of his grip. While he acknowledged that he made mistakes in his marriage, unlike M.E., he has not expressed any remorse for his actions.

56R v M.A.C., 2023 ABCA 234: MAC was convicted after trial of 4 counts of assault, three counts of assault with a weapon and 3 counts of assault by choking. The complainants were his 4 youngest children. The trial judge’s global 2-year sentence was increased on appeal to 4 years. The court noted that there were no mitigating factors.

57Unlike in M.A.C., A.R. was convicted of a single act of violence against his son and there are mitigating factors in this case.

58R v W.R., 2018 ONSC 7219: W. R. was found guilty of sexual assault. The complainant was his 14-year-old stepson. This involved anal penetration. He was found guilty of assault on his six-year-old son. He had a substance abuse problem. He had no insight into his actions. The court noted that forced penetration would attract a penitentiary sentence of 3 to 5 years. A three-and-a-half-year sentence was imposed.

59In the cases, discussed below a conditional sentence was found sufficient to satisfy the principles of denunciation and deterrence. In all cases, the offender was in a position of trust to the complainant (s). The offences constituted a breach of trust.

60R v J.K., 2021 ONCJ 40: J.K. was found guilty of assault with a weapon, unlawful confinement and assault. J.K. frequently used belts to punish her son who was between 8 to 9 years old. She would slap and squeeze her son’s chin. On occasion, she confined her son in the basement for disciplinary purposes.

61J.K.’s criminal conduct was a breach of her position of trust vis-a-vis her son. The offences occurred repeatedly over some time. The offences had an adverse psychological effect on her son.

62J.K. expressed unqualified remorse. She demonstrated insight into her actions. She had a positive presentence report. She had become a goodwill ambassador for underprivileged children. She previously ran a daycare for under privileged children. She had substance abuse issues. She suffered from depression. She was enrolled in a treatment program. Her mother and family were financially dependent on her. She had excellent family support. Her presentence report was positive. J.K. was sentenced to two years less one-day conditional sentence followed by 3 years probation.

63Unlike A.R.’s offence against his son K.R., J.K.'s offences against her son were multiple. Just like A.R., J.K.’s actions had harmful psychological impacts on her son. Unlike, A.R., K.R.'s actions were not life-threatening. A.R. choked K.R. to the point where he could not breathe before letting go. A.R. and J.K. have good pro-social attributes, however, unlike J.K., A.R. did not express remorse and has not demonstrated any insight into his act of choking his son. Unlike in J.K., A.R. was not charged with unlawful confinement.

64R v McDonald, [2019] O.J. No. 308 SCJ.: 24 counts of domestic abuse against his intimate partner and four children. There were multiple assaults and sexual assaults including digital penetration. Other conduct included push to the ground; kick to the face; pulling the complainant’s hair; pushing a complainant against a tree; poking the complainant back with fists; threatening to strike the complainant with a broken chair leg; choking; twisting the complainant’s arm; kicking complainant’s buttocks; pushing complainant onto her knees and grabbing and pushing the complainant.

65These factors were found to be mitigating: McDonald’s advanced age. He was age 83; dated charges going back to 1963; different societal norms i.e. that the law tended to treat these matters as private matters in the 1980s and the way the criminal justice system responds to domestic violence has evolved; he is a first offender; he was not accorded the opportunity to participate in a program such as the PARS program; he belonged to an era that had left him in a position that he could not comprehend what was happening to him and at his age, the normative value of imprisonment for his actions had largely been spent.

66McDonald had 111 days of pretrial custody. Sentence: 2 years less a day conditional sentence. All the factors that were found to be mitigating in McDonald do not apply to A.R. for example, MacDonald’s advanced age and concerns that he was “stuck in a different era.” Overall, while the court in McDonald described the string of offences as not amounting to a “reign of terror”, I have reached a different conclusion in this case.

67R v Sayers, [2020] O.J. No. 5924 (OCJ): Sexual assault involving penetration. 2 and a half years on bail without incident; complainant suffered emotional, financial and psychological harm; very favourable pre-sentence report; offence was out of character; Mr. Sayer was gainfully employed and in a new relationship. Sentence: 18-month conditional sentence.

68Unlike in Sayers, A.R.’s offences show a pattern of conduct of multiple instances of sexual assault with violence. Sayers involved penetration which is absent in the present case.

69R v Plews, [2011] O.J. No. 378 SCJ. A teacher assaulted three of his students. Collectively, the impugned conduct included placing a student in a headlock, roughhousing or horseplay, a shove into a chair, a drag/spin on the gym floor, tickling in the stomach area, side of body, torso, hips and thighs; wrestling to the floor tickling in the torso and thigh areas and pushing a student to the ground.

70Aggravating factors included breach of trust, multiple complainants(3), failure to heed previous warnings about conduct, offences occurred over some time and adversely affected the lives of the complainants. Mitigating factors included he was a first-time offender, was a dedicated professional, had obeyed all terms while on bail; had publicly apologized to the complainants, had stable family support and continued to care for ill family members.

71Mr. Plew was sentenced to a conditional sentence of 10 months. Unlike Mr. Plew, A.R. has not expressed remorse for his actions. He has not apologized to the complainants. Mr. Plew was not found guilty of offences that involved a mixture of sexual assault and violence or of an offence which involved the choking of a child to the point where the child could not breathe.

72R v McCabe, [2022] O.J. No. 2185: After an argument, Mr. McCabe struck his intimate partner in the face. She fell to the floor and injured her face. She began to bleed. He wanted her to go to the shower to wash her face. He stood over her and yelled at her as she lay on the ground. Her injuries were such that she required surgery. She also required plastic surgery. She continues to experience chronic pain.

73Mr. McCabe has a previous criminal record for domestic violence for which he received a non-custodial disposition. He was attending rehabilitative therapy. He was gainfully employed. Exemplary letters of support, he wrote a letter of apology to the complainant. He acknowledged the harm he had caused. Mr. McCabe was sentenced to a conditional sentence of two years less one day.

74A.R. has no criminal record. The injuries he caused R.V. did not result in bleeding or require surgical intervention. A.R. has not expressed remorse or apologized to the complainants unlike in McCabe. A.R.’s offences were multiple and committed over a significant period.

75R v G.T., [2022] O.J. No. 2473 (SCJ): G.T. was found guilty of one count of sexual assault. He had vaginal intercourse with the complainant. The complainant consented out of fear. He coaxed her relentlessly. Other conduct included touching the complainant in her anus without her consent.

76G.T. was 23 years old. He had no criminal record. Had pursued schooling and employment opportunities while awaiting trial and sentencing. He had been on a lengthy bail without incident. He had matured and reduced his consumption of alcohol. He was remorseful and showed remorse. G.T. was sentenced to a 12-month conditional sentence.

77A.R. was found guilty of multiple offences involving sexual assault and violence. G.T. was convicted of one sexual offence and there was no violence involved. Unlike A.R., G.T. expressed remorse for his actions.

78R v Holland, 2022 ONSC 1540, [2022] O.J. No. 1611 (SCJ), Mr. Holland was found guilty of one count of sexual assault. He lured the complainant to a private area and had nonconsensual vaginal intercourse with her either with his hand or finger. He stopped when she told him to stop. He took advantage of the complainant while she was intoxicated. The whole episode lasted 10 to 15 seconds. Mr. Holland informed the court that he had learned a lot about himself and he had changed as a result. He had no criminal record. He had been a law-abiding member of society. He had waited two years to be sentenced. He was a successful club promoter who had lost his business as a result of the charges.

79Mr. Holland was sentenced to 8 months conditional sentence. Unlike A.R., Mr. Holland was convicted of a single offence of sexual assault. A.R. was convicted of multiple such offences involving violence. Mr. Holland penetrated the complainant A.R. did not. Unlike A.R., Mr. Holland was not in a position of trust to the complainant.

80R v Cabral, [2015] O.J. No. 4425: Mr. Cabral was convicted after trial of 3 counts of assault against his intimate partner. The criminal conduct involved grabbing the complainant by the jacket and pushing her into a vehicle, hitting her head; grabbing the complainant during a struggle over a letter from the children’s aid society which resulted in her banging her head twice against a table and grabbing the complainant, ripping her pyjamas, pinning her and slapping her.

81Mr. Cabral was experiencing stress from the aftermath of the death of his unborn child. He had good prospects for rehabilitation. He had no criminal record. He had not been charged with any new offence while on bail. He had been unable to see his common-law partner for over a year and a half. He had limited access to his son. He had four and a half days of pre-trial custody.

82Mr. Cabral was sentenced to a 4-month conditional sentence. Unlike A.R., Mr. Cabral was not found guilty of offences which featured a combination of sexual assault and violence.

83R v Milne, [2016] O.J. no. 4511 (OCJ): Guilty pleas to 4 counts of assault and one mischief count. Mr. Milne assaulted his intimate partner on three occasions. The offensive conduct was pushing her against a door while she was pregnant, pushing her to the ground and slapping her repeatedly; grabbing her by the neck and assaulting her on the ground; striking her with a door, punching her, choking her and breaking her cellphone.

84It was a guilty plea. He was remorseful. Had a positive pre-sentence report. He had been on bail with no incident. He would lose his job and be unable to pay child support if he was sent to jail. His attacks left marks on the complainant. He assaulted her while she was pregnant. The sentence imposed: 4 months conditional sentence.

85R v J.B., 2016 ONCJ 312 OCJ: J.B. pleaded guilty to assault causing bodily harm. The complainant is her three-year-old son. She grabbed him so hard in the arm that it caused a fracture. She had been unable to see her children for 8 months. The offence was out of character and she was remorseful for her actions. J.B. was sentenced to a 6-month conditional sentence.

86The factual difference between Milne, J.B. and facts supporting A.R.’s conviction are obvious however these cases are not particularly helpful as they involved offenders who unlike A.R. pled guilty and expressed remorse. The fact that A.R. decided to go to trial is a neutral factor in the sentencing analysis.

87Case law provides significant assistance in addressing issues of proportionality and parity. Each case is characterized by its particular circumstances, including the circumstances of the offence and the offender. I am required to conduct an individualized analysis to arrive at the appropriate sentence: R v Parranto, 2021 SCC 46.

88As noted, the paramount sentencing objectives are denunciation and deterrence. Practically all of the mitigating factors outlined previously are pro-social attributes which indicate that the prospects for A.R.’s rehabilitation are promising. Rehabilitation is an important objective in such circumstances. A.R. has participated in the PARS program and is currently in therapy. He has conceded making mistakes in his marriage and he is engaged in ongoing therapy however, I am unable to determine if the ongoing therapy addresses issues related to his abusive actions against his son and then intimate partner. He has not expressed remorse for his actions. The cumulative effect of these two factors is that it is unclear whether he has any insight into his offences and the prospects for rehabilitation for issues related to his offending behaviour are thus unclear.

89Counsel for A.R. submits that the abuse he perpetuated was at the low end of the spectrum. This conclusion is reasonable when the matrix used to assess the seriousness of abusive behaviour is the degree of physical injury or physical violation of the complainants. However, this one-dimensional approach to the assessment of the severity of the abuse is incongruent with the current understanding of the non-physical manifestation (psychological) of the harm stemming from such abusive behaviour.

90A dispassionate analysis of the facts reveals that each time R.V. disagreed with A.R. he responded with a sexual assault accompanied with violence. He disciplined a helpless child K.R. by almost choking him to death. A.R. caused R.V. and K.R. and the physical harm with deleterious psychological effects. These criminal acts were committed against a vulnerable person in a place where one would expect them to feel safe, in their home. It was perpetuated by A.R., a person who is expected to keep them safe. He breached their trust. Unlike in MacDonald, this was a reign of terror at home.

91The nature of the offences as well as A.R’s circumstances provide a useful context in assessing the gravity of the offences and his degree of responsibility, in effect, his moral blameworthiness. Thus a principled approach must be adopted in assessing the impact of the aggravating and mitigating factors.

92A.R.’s pro-social behaviour should be considered in context. This is not a case in which A.R. was going out into the public; his place of employment; recreation or other activity outside his home and committing these offences. This was a circumstance where A.R. was engaging in very prosocial activities outside the home but engaging in a reign of terror within his home. Therefore, while it's correct that the physical injuries were at the low end of the spectrum, A.R.’s modus – operandi; frequency of attacks and the deleterious impacts on the complainants constitute a reign of terror which elevates the degree of seriousness of A.R’s offences.

93A.R. was convicted of multiple offences however considerations of proportionality and parity indicate that the nature of his antecedents should attract a cumulative sentence below the penitentiary range of 2 years. The apparent harm caused by A.R.’s actions and the degree of seriousness (gravity of his offences) falls below that of the cases for which penitentiary sentences were imposed. I have previously articulated these differences for example the absence of penetration of the complainant; the degree of the injuries and the absence of multiple instances of abuse against his son although the single assault (choking) is serious.

94The facts underpinning A.R.’s offences are similar to the circumstances of the offence and the circumstances of the offenders in sentences referenced above where sentences in the range of 4 months to 2 years less one day have been imposed. Within this context, the cumulative sentence imposed in this case for each count cannot exceed 2 years less one day.

95A principled assessment of all the circumstances of the offence and the offender leads me to conclude that a global sentence of 18 months is appropriate in this case. The breakdown of the sentence is as I have previously described. I will now consider whether this sentence should be served in the community or a correctional institution.

96A fit, fair and principled sentence of A.R. is a global sentence of 18 months. This is below the 2-year-less one-day ceiling. Therefore a conditional sentence is available: Section 742.1.

97The conditional sentence analysis requires an assessment of whether the imposition of a conditional sentence will endanger the public. This entails an assessment of the offender’s risk of re-offending and the gravity of the damage that will result from reoffending. If the imposition of a conditional sentence will endanger the public it should not be imposed. If the imposition of a conditional sentence will not endanger the public, the next consideration is whether a conditional sentence is consistent with the objectives of sentencing set out in sections 718 – 718.2. If answered in the affirmative, a conditional sentence can be imposed. If answered in the negative, a conditional sentence should not be imposed: R v Proulx, 2000 SCC 5.

98As previously noted, several of the mitigating factors which warranted the imposition of a conditional sentence in the cases referred to above are present in this case. I have already articulated the differences between those cases and the present case. These differences include the lack of remorse and insight into the offences he has committed, the degree of violence utilized and the absence of a guilty plea in this case. The decision to proceed to trial is always a neutral factor.

99The mitigating factors indicate that a conditional sentence will address the restorative objectives of sentencing set out in sections 718(d) – (f). In particular section 718 (d) – assisting in the rehabilitation of A.R. With the imposition of a conditional sentence, he would be able to maintain employment; earn an income; perhaps pay child support; continue his therapy; continue his relationship with his new partner and if a Family Court permits, resume contact with his son A.R.

100Considering the circumstances of this case and A.R. the imposition of a conditional sentence would not endanger the public. The risk of A.R. re-offending is low and though there is the potential of serious physical and psychological harm should he re-offend, this concern is mitigated by the conclusion that the risk of re-offending is low.

101The prospects for rehabilitation are good however, when considered in the context of the paramountcy of denunciation and deterrence, I conclude that a conditional sentence is inconsistent with these paramount sentencing objectives. This case is very different from the cases where a conditional sentence has been imposed because in this case despite his pro-social attributes A.R. engaged in the series of behaviours underpinning the offences which amounted to a reign of terror against his family.

SOIRA Order

102A.R. has been convicted of offences captured by section 490.012 of the Criminal Code. Relying primarily on the aggravating factors in this case the Crown seeks a SOIRA order for 20 years. Relying primarily on the mitigating factors in this case the defence submits that a SOIRA order is unnecessary and should not be imposed.

103The mitigating factors suggest the prospects for rehabilitation are promising. He is currently involved in therapy. He has completed the PARS program; he has been on a lengthy bail with no incident. He is currently in a relationship with no reported incidents. He has no criminal record. All indications are that his risk of reoffending is low. These factors significantly assuage any concerns of reoffending raised by the absence of an expression of remorse and questions about whether he has insight into his offences and the harm his actions have caused the complainants. For all these reasons, I conclude that there is a low risk that A.R. will re-offend and decline to order that he be subject to the terms of SOIRA.

104These are the reasons for the sentence I have imposed.