Ontario Superior Court of Justice

Court File No.: CR-0005-00AP
Date: 2025-02-12

Between

His Majesty the King
Appellant
Counsel: Dave Beaton

-and-

Richard Trudeau
Respondent
Counsel: Janani Shanmuganathan

Heard: January 16, 2025
Judge: Marc Gareau

Reasons on Appeal

Introduction

1This is a Crown appeal. The issue on this appeal is whether the offender should have received a traditional jail sentence as opposed to a conditional sentence.

2There is no issue as to the duration of the sentence (18 months) as it was the maximum allowable for the offence given the fact that the Crown proceeded summarily.

Background and Sentencing

3The events took place on March 15, 2020. On February 4, 2022, Richard Trudeau entered a plea to one count of sexual assault. On February 14, 2024, Mr. Trudeau was sentenced by Madam Justice J. Wolfe of the Ontario Court of Justice to a community sentence order of 18 months with strict conditions followed by a period of probation for 24 months.

4In her reasons, Wolfe J. set out the salient facts of the offence at page 1 and 2 as follows:

The facts of the offence you admitted to are that on the night in question you were at Brooke Mishibinijima’s residence with other people, including M.J. You were all drinking, and you were intoxicated. M.J. blacked out and woke up in one of the bedrooms. You were penetrating her vagina from behind. She wanted to scream but couldn’t. Her cousin came in and you left the room. Her cousin punched you before the complainant left with two others, including her mother. It is M.J.’s mother who contacted police.

Given her state of intoxication, M.J. did not and could not consent. You and M.J. were not in a relationship but were known to each other having both grown up in Wiikwemkoong Unceded Territory.

The Crown's Appeal

5The Crown is appealing the sentence imposed by Justice Wolfe and is asking that Mr. Trudeau be given an 18-month sentence of traditional incarceration. The Crown takes the position that the sentence imposed is demonstrably unfit as it does not emphasize the principles of deterrence and denunciation. The Crown also argues that section 718.04 of the Criminal Code of Canada was not applied by the sentencing judge and in so doing she committed a reversible error. The Crown takes the position that there was an unbalance in overemphasizing the effect on the accused as opposed to underestimating the effect that the offence had on the complainant. The Crown also takes the position that the sentencing judge erred in finding that the offender had a significant intellectual disability and in using this as a mitigating factor in the offender’s favour on sentencing.

Conditional Sentences and Proportionality

6There is no doubt that a conditional sentence could be imposed on Richard Trudeau. The four factors set out in R. v. Proulx, 2000 SCC 5 are present in the case at bar. A close read of the jurisprudence indicates that the court has not held that conditional sentences cannot be imposed in cases of sexual assault or in cases where deterrence and denunciation are the primary factors to be considered by the court on sentencing. In R. v. A.J.K., 2022 ONCA 487, the Court of Appeal discusses ranges of sentences that are appropriate in cases of sexual assault and at para. 77 concludes by stating that, “Accordingly, there will be circumstances where a departure from the range is entirely appropriate”. In R. v. R.S., 2023 ONCA 608, para 4 the Court of Appeal indicates that, “although conditional sentences are now available in sexual assault cases, proportionality remains key to sentencing. Conditional sentences will rarely, if ever, be proportionate in the context of violent sexual assault cases such as this.”

7The issue of proportionality was recently considered by the Ontario Court of Appeal in R. v. Pike, 173 O.R. (3d) 241. At paragraphs 181 and 182 of that decision, Tulloch C.J.O. states that,

But in my respectful view, M.(M.) did not and could not have intended to depart from Proulx by creating an offence-specific presumption against conditional sentences. Rather, it used the “exceptional circumstances” term to convey that, since Proulx, Parliament has increased maximum sentences and prioritized denunciation and deterrence for sexual offences against children and, further, that the court’s understanding of the harmfulness and wrongfulness of these offences has deepened: Friesen, at paras. 109-110; see M.(M.), at paras. 13-15. Thus, while there is no presumption against conditional sentences, these post-Proulx changes require more compelling personal circumstances, mitigating factors, and/or the absence of aggravating factors, to justify a conditional sentence than might have been the case when Proulx was decided more than two decades ago.

Nor, in my view, did M.(M.) intend to depart from Parranto by requiring exceptional circumstances to impose a conditional sentence. Rather, M.(M.) used “exceptional circumstances” as shorthand for personal circumstances and mitigating factors that are sufficiently compelling to make a conditional sentence proportionate, as in R. v. Padda, 2019 BCCA 351, para 36. Not only is there no closed list of seemingly non-exceptional factors taken together, such as being a young first offender with family support who poses little risk and takes responsibility for his actions, can collectively render a conditional sentence proportionate: R. v. Faroughi, 2024 ONCA 178, para 99. This is consistent with Parranto’s holding that sentencing must focus on proportionality, not pigeonholing cases into ill-defined exceptional circumstance categories: at para. 40; see R. v. Ellis, 2022 BCCA 278, para 118.

8In any given case, the court can find “exceptional circumstances” that are sufficiently compelling to make a conditional sentence proportionate, even in cases where sexual assault is involved and where deterrence and denunciation are the primary considerations on sentence. In R. v. Nanibush, 2024 ONCA 690, the court held that a conditional sentence may be appropriate even though denunciation and deterrence are the primary considerations in sentence.

Review of Sentencing Judge's Reasons

9I have reviewed the sentencing reasons of Justice Wolfe carefully. They are thirty-six pages in length. The reasons of the sentencing judge are thorough and thoughtful. She identified in her reasons why she concluded that a conditional sentence was appropriate and why she thought such a sentence was proportionate, that is, why “exceptional circumstances” existed. It is clear from the reasons of the sentencing judge that she weighed the appropriate factors to be considered in assessing whether a conditional sentence should be imposed, and, in my view, the sentencing judge did not err in her assessment of those factors or in coming to the conclusion that a conditional sentence was appropriate in the exceptional circumstances of this case.

10Justice Wolfe was attune to the fact that denunciation and deterrence were primary factors in the sentencing of Mr. Trudeau and that an act of sexual assault is inherently a violent and serious offence (see pages 18 and 29 of her reasons). At page 22 of the reasons for sentence, Justice Wolfe recognizes that the complainant “was inherently and statistically more vulnerable to violence.” In addition to acknowledging the vulnerability of the complainant, Justice Wolfe is sensitive to the fact that the event had a negative impact on the complainant. At page 2 of her reasons, the sentencing judge discusses and considers the victim impact statement of M.J. and the profound impact the offence had on her. I cannot give credence to the Crown’s view that the sentencing judge gave little weight to the effect the act had on the victim. The reasons of the sentencing judge indicate otherwise.

Section 718.04 and Indigenous Victims

11Furthermore, I am not convinced that the sentencing judge ignored section 718.04 of the Criminal Code of Canada or that she failed to apply it. At page 6 of her reasons, Justice Wolfe recognizes the provisions of section 718.04 and applies it. To quote directly from Justice Wolfe’s reasons,

M.J. is Anishinaabe-kwe. The Criminal Code was recently amended to include a section that requires judges consider Indigenous women’s increased vulnerability for violence. Sections 718.04 requires that in such circumstances a court give primary consideration to the objectives of denunciation and deterrence. The section was added to the Criminal Code to address the disproportionate victimization of Indigenous women in Canada, partially in response to the work of the National Inquiry into Missing and Murdered Indigenous Women and Girls, which provided context for understanding why this is. The Inquiry specifically noted that colonial and patriarchal policies displaced Indigenous women from their traditional roles in communities and governance, diminished their status in society, created intergenerational trauma and marginalization in the form of poverty, insecure housing or homelessness and barriers to education, employment, health care, and cultural support. This left Indigenous women vulnerable to violence. Further, the Inquiry found that Indigenous victims experienced discrimination from the system meant to support them, including police, health care providers and/or the courts.

As the Supreme Court in R. v. Barton, 2019 SCC 33, para 198 pointed out,

Indigenous persons have suffered a long history of colonialism, the effects of which continue to be felt. There is no denying that Indigenous people —and in particular Indigenous women, girls, and sex workers—have endured serious injustices, including high rates of sexual violence against women. (at paragraph 198)

I am required to give effect to section 718.04 to ameliorate the crisis of confidence Indigenous women and communities feel about the criminal justice system in addition to the other principles and objectives I must consider. This includes consideration of relevant aggravating and mitigating circumstances, some of which are codified such as the requirement that evidence the offence had a significant impact on the victim, as it did here, shall be deemed an aggravating circumstance.

Intellectual Disability as a Mitigating Factor

12I am also not convinced that the sentencing judge erred in finding that the accused had a significant intellectual disability or that the sentencing judge overemphasized that fact in concluding that a community sentence order was appropriate. On pages 26, 27, and 28 of her reasons, the sentencing judge notes that,

In Friesen, the Supreme Court held that even in cases of sexual violence against children, again where moral blameworthiness is generally increased given the known vulnerability of children, relevant factors that may reduce an offender’s moral culpability should not be disregarded (para. 91). The court specifically noted that,

...offenders who suffer from mental disabilities that impose serious cognitive limitations will likely have reduced moral culpability.” (R. v. Scofield, 2019 BCCA 3, para 64, and R. v. Hood, 2018 NSCA 18, para 180).

I find that this is the case here. Through your Gladue and psychological reports I learned that you were bullied at school because of the severity of your intellectual disability. The psychological report is dated, however it provided insight into the extent of your disability. It diagnosed you as being in the first percentile intellectually in comparison to your peers. Put another way, you were deemed to have low to very low cognitive skills, verbal reasoning, and ability to recall. You were in the fourth percentile for non-verbal reasoning such as spatial reasoning and still “well below average”. You have ongoing difficulties with reading and writing. It is a significant disability. I don’t say any of this to embarrass you, but it was very clear when you read your statement at the sentencing hearing that you struggle with communication and comprehension. The author of your psychological report believed that given the extent of your disability you were very likely to require social assistance to support you throughout your life.

13There was clearly an evidentiary basis for the sentencing judge to conclude that the accused had low to very low cognitive skills, verbal reasoning and ability to recall. This was supported by the evidence.

Application of Sentencing Principles

14The reasons of the sentencing judge reveal that she carefully considered the sentencing principles as set out in section 718 of the Criminal Code and applied these principles in reaching the conclusion that a conditional sentence was appropriate.

15I can find no errors in her reasoning, or the application of the law as set out by the sentencing judge in her reasons. In my view, the conditional sentence imposed is sufficient to achieve the objectives of denunciation and deterrence given the exceptional circumstances at play in this case and is a sentence that reflects a proportionate response to the gravity of the offence and degree of responsibility of the offence.

16Having reviewed the sentencing judge’s careful, thorough and thoughtful reasons, I cannot conclude that she made any errors in principle or that the sentence she imposed was demonstrably unfit.

Parole and Practical Consequences

17The offender has served 11 months of his 18-month conditional sentence. Had he received 18 months in jail, Mr. Trudeau would be paroled by now and close to being eligible for statutory release. In R. v. C.P., 2022 ONCA 123 even though the Ontario Court of Appeal found the conditional sentence imposed to be demonstrably unfit, they refused to allow the sentence appeal given the fact that C.P. was successfully serving the conditional sentence order and may well have been released on parole by now if the trial judge had imposed a sentence of incarceration.

18The same logic applies to the case at bar. If this court allows the appeal and imposes an 18-month jail sentence, Richard Trudeau will effectively receive a 29-month sentence (the 11 months he has served and a further 18 months) on an offence where the Crown proceeded summarily and a maximum sentence of 18 months was available. Such a disposition, in my view, would result in an injustice and would bring the administration of justice into disrepute.

Conclusion

19Accordingly, the appeal as to sentence must fail and is dismissed.

Marc Gareau