Court File and Parties

BARRIE COURT FILE NO.: CR-21-104 DATE: February 6, 2024

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

His Majesty the King – and – Kyle Silveira, Defendant

Counsel: J. Janiuk, for the Crown S. Menzies, for the Defendant

HEARD: January 26, 2024

Reasons for Sentence

LEIBOVICH J.

[1] On October 11, 2023, I, sitting without a jury, convicted Mr. Silveira of sexually assaulting SB on October 9, 2018. I found that Mr. Silveira, despite SB’s pleas to stop, had sexual intercourse with SB without her consent. Sentencing submissions were heard on January 26, 2024. The Crown, in addition to various ancillary orders, is seeking a sentence of 4 to 5 years in the penitentiary. The defence is seeking a conditional sentence or a reformatory sentence. My decision with respect to sentence was put over to today, February 6, 2024.

Circumstances of the Offence

[2] The circumstances of the offence are fully set out in my reasons for judgement; R. v. Silveira, 2023 ONSC 5685. I stated at para. 56, “The complainant testified that she did not consent to having sexual intercourse. She told Mr. Silveira no, in the double digits, she was crying but he continued. I am satisfied beyond a reasonable doubt, based on the complainant’s evidence, that she did not consent.” The following is a very brief summary of the facts.

[3] There was no dispute amongst the parties that SB and Mr. Silveira first met while attending TFC soccer games. The two agreed to meet on October 9, 2018. SB testified that when making plans with Mr. Silveira, she thought by the way he spoke that he may be interested in something sexual. She told him that if he was interested in something sexual, she did not want to do that. He responded that this was not his intention.

[4] SB picked Mr. Silveira up at his friends’ house and they drove back to his parents’ house. It was nighttime, the parents were not home. SB used the bathroom and then came into Mr. Silveira’s bedroom where he was sitting on the bed. They watched a show and then Mr. Silveira tried to kiss her. She moved back and put her hands out and said “woah”. She said, “what are you doing, we already talked about this”. Mr. Silveira responded that there had been sexual tension between the two of them for a long time.

[5] SB testified that Mr. Silveira offered to give her a massage. He said that she had driven a long way and that this would relax her. She said no five times, but Mr. Silveira was persistent and she agreed. She was getting anxious.

[6] SB testified that he placed her on her stomach. Her head was facing the headboard. With a quick motion he lifted her shirt up and above her shoulders. He was straddling her legs. Her legs were in between his and he was sitting on her butt or just below.

[7] SB testified that she asked him why he lifted her shirt. He said it would be better this way. SB testified that she said “no, its okay, over the clothes.” Mr. Silveira said, “trust me, trust me, this will feel so good”. SB testified that he wasn’t listening. He massaged her back and then he undid her bra strap. SB testified that she told him that you “don’t need to take my bra off for this”. He said that he didn’t want the strap to get in the way and that it would feel so good. SB said that he could go around the strap. He continued. It felt very long but it was probably two to three minutes. She testified that she felt vulnerable and that her “no’s weren’t working”.

[8] SB testified that Mr. Silveira then got up and took her pants off quickly. He ripped them off. SB testified that she told him that she didn’t want to have sex. She was not yelling but she was fearful and nervous. SB testified that Mr. Silveira responded, “yes you do, there has been sexual tension between us”. SB testified that she started to cry. She was now on her back. He was on top of her having intercourse with her. She said no multiple times in the “double digits”. She was crying. She said that she didn’t want this. Mr. Silveira responded that she did, “you want this, you like this, it feels good.” He said that she was tight and that it felt good for him.

[9] SB testified that he then turned her onto her stomach, her legs were hanging off the bed and he was penetrating her. Mr. Silveira said he was going to ejaculate inside her. His full body weight was on top of her making it difficult to move. She freaked out and kicked her feet and yelled “don’t do that”. He then ejaculated on her back and cleaned it up with a towel.

[10] SB testified that she then went to the bathroom and texted her friend at 9:17 p.m. “SOS”. She testified that the sexual activity lasted five minutes. She was crying throughout. A condom was not used.

Impact on the Victim

[11] SB filed an impact statement. She discussed the impact of the offence on her. She stated:

From the moment I was sexually assaulted back when I was 21 to now being 26, my life has been deeply impacted. I’m stuck battling a variety of obstacles no one should have to battle. During the time of the assault, I was in 3rd year college. A time where I should have been gaining new knowledge, learning more about my identity and making positive memories. Instead, the remainder of my years at school were spent struggling. I completely lost my identity, struggled with anxiety and suffered from PTSD. My PTSD included random flashbacks of the event, trouble sleeping, increased anxiety, nightmares, difficulty concentrating, feeling tense and on edge all of the time and overall, never feeling emotionally regulated. This affected my school life, my social life, my home life and my work life.

Circumstances of the Offender

[12] Mr. Silveira does not have a criminal record. At the time of the offence, he was just shy of his 23rd birthday. He has two parents and two older brothers. By all accounts, he was raised in a stable home and he has the support and love of his family.

[13] Mr. Silveira completed high school. He did not attend post secondary school. He had learning difficulties but did well in sports and got along with the other students. He has had various sales positions and he has been working as a sales consultant at a car dealership since July 2023. Mr. Silveira does not appear to have any alcohol or substance abuse issues.

[14] After this incident, Mr. Silveira pleaded guilty to assault and he received a conditional discharge. He completed the Partner Assault Response (PAR) program as part of his probation. The pre-sentence report author noted that “the subject was an active and engaged participant in the group, particularly in the latter half of the program, and that he was able to take accountability for his actions. They indicated he was able to focus on his own behavior and that he challenged some distorted thinking expressed by other group members.”

[15] Ten letters of support were filed on behalf of Mr. Silveira from family members, fellow TFC soccer seat holders and friends. They describe a person who is respectful, kind and caring. They state that the offence is not indicative of who he is as a person. The following extracts are representative of the comments seen in the letters:

Along with our family we have had the pleasure of spending many games chatting, cheering or complaining about the games and the team. We have never had any issues or disturbances with Kyle or his family.

Kyle and his family always made sure to be respectful when we had our young daughter attend games with us. Kyle was always friendly and he would always make sure to tell all around to watch their language when there were younger fans in the section.

Kyle has a respectful relationship with his parents. On many occasions that I've been with his mother, he just calls to see how her day is going, or if she wasn't feeling well, to see if she feels better. At the age of 28, he still lets his parents know if he won't be home for dinner, or going out for the night. Kyle has a strong loving relationship with his mother, sisters-in-law, and absolutely adores and visits his grandmother often. That is why my husband and I find it extremely difficult to believe the situation he finds himself in.

We have known the entire Silveira Family who are close friends, and a former work colleague with his mother Laura Silveira for the past 7 years. We have seen Kyle Silveira numerous times over the years, be it at celebrations, other functions or just visiting the family, and we have always found him to be respectful, gentle, and kind to everyone. He is a very hardworking and responsible individual who cares about his family, friends, and people in general.

Aggravating and Mitigating Factors

[16] The aggravating factors are as follows:

a) The offence involved a serious violation of the victim’s sexual integrity as she was subjected to forced intercourse over an extended period of time, first while on her back and then while on her front;

b) The offence took place over the numerous protests by the victim to stop, while she was crying, and after having told the accused earlier, before the night started, that she did not want to have sex;

c) No condom was used; and

d) The victim has suffered significant psychological harm as a result of the offence.

[17] The defence, at the tail end of his submissions, noted that he had some information from her social media postings that the victim, prior to the sexual assault, was having difficulties. The defence does not contest that the victim would have been affected by the offence but submits that perhaps the degree to which she was affected was impacted by other events. I have not been provided with this other information. It matters not. A person’s prior background and history will inevitably impact how that person reacts to, and is impacted by, an act of violence. In this case, the impact described by SB is not unusual or odd. It is completely predictable and matches, unfortunately, with the impact described by the Supreme Court of Canada in R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3, at para. 37:

…As time passes, our understanding of the profound impact sexual violence can have on a victim's physical and mental health only deepens……. Throughout their lives, survivors may experience a constellation of physical and psychological symptoms including: high rates of depression; anxiety, sleep, panic and eating disorders; substance dependence; self-harm and suicidal behaviour. A recent Department of Justice study estimated the costs of sexual assault at approximately $4.8 billion in 2009, an astonishing $4.6 billion of which related to survivors' medical costs, lost productivity (due in large part to mental health disability), and costs from pain and suffering. The harm caused by sexual assault, and society's biased reactions to that harm, are not relics of a bygone Victorian era.

[18] The mitigating factors are as follows:

a) Mr. Silveira has no criminal record;

b) He was a youthful adult when the incident occurred;

c) He has the support of his family; and

d) He has the potential for rehabilitation.

[19] The most that can be said is, that given the accused’s youth and his prior positive response to the PARS program, he has the potential for rehabilitation. Mr. Silveira, at his sentencing, also stated that he was remorseful. However, Mr. Silveira has maintained, as is his right, that he did not commit the offence. True remorse and true rehabilitation begins with admitting one’s culpability. I wish to be perfectly clear; the absence of true remorse is not an aggravating factor. However, the absence of remorse does diminish the accused’s prospects of rehabilitation but as stated, despite that absence, I find that he has the potential for rehabilitation.

[20] I do agree with the defence that the accused’s refusal to answer some questions posed by the pre-sentence report writer should not be held against the accused. The questions were connected to the accused’s sexual behaviour, attitudes and beliefs. I have no evidence that the pre-sentence report writer was qualified to ask, let alone interpret, the accused’s answers.

[21] The defence submitted that the passage of time since the offence, should be seen as a mitigating factor that should operate to reduce Mr. Silveira’s sentence. I disagree. While I have not been presented with the full history of the proceedings, it appears from the indictment and the submissions of counsel that two prior trial dates were vacated at the request of the defence. Furthermore, it appears that this trial was set down the road to accommodate Mr. Silveira’s other criminal trial. Finally, I have not been provided with any information regarding Mr. Silveira’s bail conditions and whether they had any impact on him.

Law and analysis

[22] Section 718 of the Criminal Code describes the purpose of sentencing:

The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

a. To denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

b. To deter the offender and other persons from committing offences;

c. To separate offenders from society, where necessary;

d. To assist in rehabilitating offenders;

e. To provide reparations for harm done to victims or to the community; and,

f. To promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[23] Further, s. 718.1 of the Criminal Code provides that:

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[24] Section 718.2 of the Criminal Code specifies that the following is deemed to be an aggravating factor:

• evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation.

[25] In sexual offences, the moral blameworthiness of the offender is high. As stated by the Supreme Court of Canada in R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1, at para. 89:

All forms of sexual violence, including sexual violence against adults, are morally blameworthy precisely because they involve the wrongful exploitation of the victim by the offender -- the offender is treating the victim as an object and disregarding the victim's human dignity (see R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584, at paras. 45 and 48).

[26] Denunciation and deterrence are primary considerations on sentencing in cases of serious sexual assault: R. v. A.J.K., 2022 ONCA 487 at para 83, R. v. Macintyre-Syrette, 2018 ONCA 706, R. v. R.S. 2023 ONCA 608 at para. 39. Sentencing in sexual assault cases must denounce this conduct and deter likeminded individuals from committing such offences. “Sexual assault is still among the most highly gendered and underreported crimes.” Sentencing decisions must reflect the harm that sexual offences have done to the complainant and our community at large; Goldfinch, 2019 at para. 37.

[27] In this case, Mr. Silveira sexually assaulted SB, a person that he knew, when they were on a date. Recently, the Court of Appeal in A.J.K., made it clear that the sentencing range for sexual assaults where the victim is known to the accused is not less than where the victim is a stranger. Associate Chief Justice Fairburn, speaking for the court stated at paras. 73 and 74:

A sexual assault involving forced penetration is a sexual assault involving forced penetration. An act of sexual violence perpetrated on a stranger to the accused is not necessarily worse than a similar act of sexual violence perpetrated on an intimate or former intimate partner. Any suggestion to the contrary could only rest on unacceptable myths and stereotypes, ones that a fair justice system must continuously confront and eradicate: see R. v. Ewanchuk, 1999 SCC 711, [1999] 1 S.C.R. 330, at para. 82.

All sexual assaults are serious acts of violence. They reflect the wrongful exploitation of the victim whose personal autonomy, sexual integrity, and dignity is harmfully impacted while being treated as nothing more than an object. Whether intimate partners or strangers, victims of sexual violence suffer profound emotional and physical harm and their lives can be forever altered. So too can the lives of their loved ones.

[28] Associate Chief Justice Fairburn, speaking for the court stated at para. 77 in A.J.K. that absent some highly mitigating factors, the forced penetration of another person would typically attract a sentence of at least 3 years:

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.

[29] As stated in RS at para. 22, the decision in AJK makes it clear that range for sexual assault involving forced penetration is 3-5 years in the penitentiary.

[30] However, sentencing is an individualized process and sentencing ranges are not meant to handcuff the court. As stated by ACJO Fairburn in A.J.K., at para. 71:

The Supreme Court recently reiterated that ranges and starting points are malleable products of their time. They are "historical portraits" that provide insight into the operative precedents of the day, but they are not "straitjackets" and can be departed from as societal understanding of offences and the severity of harm arising from those offences deepens: see R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 57; R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1, at para. 108. To that end, it is not unusual "for sentences to increase and decrease as societal and judicial knowledge and attitudes about certain offences change": R. v. Parranto, 2021 SCC 46, 436 D.L.R. (4th) 389, at para. 22, citing R. v. Smith, 2017 BCCA 112, at para. 36, citing R. v. Nur, 2011 ONSC 4874, 275 C.C.C. (3d) 330, at para. 49; Friesen, at para. 108.

Positions of Counsel

[31] The Crown seeks a sentence of four to five years. The Crown relies on the aggravating factors surrounding the commission of the offence, in particular, the acts of forced sexual intercourse, and submits that the few mitigating factors do not warrant reducing the sentence below the range set out in A.J.K. The defence seeks a conditional sentence. The defence submits that this case involved a unique situation between two adults such that general deterrence should not be given primary consideration. While the defence agrees that this was a serious sexual assault, the defence submits that there is an absence of many aggravating factors normally seen in cases where penitentiary sentences are given. The defence submits that every neutral or mitigating factor points to a conditional sentence.

Cases provided

[32] The Crown relies on the following cases:

• A.J.K.: A five year total sentence was given. The victim and the accused were dating. The accused was to drive the victim home, but en-route he took her to an industrial area, where he penetrated her vaginally against her will while choking her. He then assaulted her after she tried to escape. Her injuries included abrasions to her hand and swelling to her jaw, as well as severe psychological damage. The accused had a criminal record that included a prior conviction for communicating with a minor for the purposes of prostitution.
• R.S.: The victim and the accused had been dating. R.S. sexually assaulted the victim just following their arrival at the apartment. He tackled her from behind as she walked toward her refrigerator. While on top of the victim, he aggressively removed her pants and underwear, bit or sucked on her abdomen, removed a tampon from her vagina, and digitally penetrated her. All of this happened over the victim's pleas to stop. She said "no" repeatedly. The victim attempted to get away, but R.S. responded by grabbing her throat and squeezing hard. He stopped choking her when she grabbed his hand. R.S. then pushed her over the kitchen counter, telling her he wanted to "fuck her hard". A neighbor from the upstairs apartment interrupted the sexual assault. The accused was indigenous and there were some factors that reduced his moral culpability. The Court of Appeal set aside the conditional sentence imposed by the trial judge and found that a sentence of three years would have been appropriate. The Court of Appeal found that reincarceration though would not be appropriate.
• R. v. Henry, 2022 ONCA 191: The accused and the victim met online and went on a date. The sexual assault involved forced fellatio and vaginal intercourse. The trial judge imposed a sentence of 3.5 years. The sentence was upheld on appeal.

[33] I have read the cases provided by the defence. I will not summarize them. While I appreciate that all cases will have different aggravating and mitigating factors, I do not feel that the defence cases provided are sufficiently similar to this case to be of assistance. For example, in R. v. G.T., 2022 ONSC 2619, the sexual assault involved touching of the victim’s anus. In R. v. Holland, 2022 ONSC 600, the sexual assault involved digital penetration of the victim’s vagina and the offence occurred 15 years earlier. In R. v. Laidman, 2017 ONCJ 70, the Crown proceeded summarily which capped the maximum sentence that could be imposed at 18 months.

[34] In contrast I found that the cases relied upon by the Crown, while containing some differences, are factually similar enough to this case to be of assistance in determining the appropriate sentence.

The appropriate sentence

[35] A conditional sentence is only available if a sentence of less than two years is appropriate; R.S. at para. 21. The defence submits that the facts of the offence are unique justifying a reformatory sentence and a reformatory sentence that can be served in the community. I disagree. There is nothing, in any way, shape or form, that is unique about this case. Mr. Silveira and SB were on a date. Over her repeated protests he forced sexual intercourse on her. As a result, the victim has suffered significant psychological harm. Unfortunately, this same scenario has been repeated and played out in numerous other cases.

[36] Our Court of Appeal has recently stated 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.” There are some mitigating circumstances. I have mentioned them earlier in these reasons. But there are no highly mitigating factors in this case that would serve to reduce the sentence below the three-year mark. Defence counsel in his submissions has referenced a number of factors. The defence noted that the accused listened to the victim’s request and did not ejaculate inside her. The defence also noted that there was no evidence that the sexual assault was planned or resulted from any predatory actions. These are not mitigating factors. They are the absence of other aggravating factors. But I also note that the accused ejaculated on the victim’s back, which was a demeaning act. In addition, I also note that SB told the accused earlier that day that she was not interested in sex. Therefore, while there is no evidence that the sexual assault was planned, the accused’s moral blameworthiness is high given the prior warning and the victim’s repeated nos and crying during the offence.

[37] Having regard to all the aggravating and mitigating factors, including Mr. Silveira’s youth at the time of the offence, and the absence of a criminal record, a sentence of 3.5 years is appropriate.

[38] There will also be a DNA order, a s.109 order for life and a 20-year SOIRA order. There will also be a s.743.1 non-communication order with respect to SB.

The Honourable Justice H. Leibovich Date Released: February 6, 2024