Court of Appeal for Ontario

Citation: R. v. B.M., 2008 ONCA 645

Date: 20080923

Docket: C48208

Between:

Her Majesty the Queen Appellant

and

B. M. Respondent

Counsel:

Jennifer Woollcombe, for the appellant

David A.L. Howick, for the respondent

Heard and released orally: September 11, 2008

On appeal from the sentence imposed by Justice Jon-Jo Douglas of the Ontario Court of Justice, dated December 13, 2007.

ENDORSEMENT

[1] The Crown appeals the sentence imposed upon B. M. following his conviction for sexual assault. The trial judge found that the offender engaged in anal intercourse with his developmentally delayed wife without her consent and sentenced him to nine months imprisonment followed by two years probation.

[2] The appellant argues that in sentencing the respondent the trial judge erred in principle as follows:

(1) In holding the absence of extraneous violence to be a mitigating factor; and

(2) In failing to properly consider the contextual history of the appellant’s prior abuse of the respondent into the sentence.

[3] The appellant further submits that, in any event, the sentence was outside the acceptable range and therefore demonstrably unfit.

[4] A fit sentence must always take into consideration the circumstances of the offence.

[5] The trial judge, in his reasons for sentence, described the forced anal intercourse as an act concerning which “there was no extraneous or degrading additional violence”, identifying this as a mitigating factor.

[6] While there was no evidence of gratuitous violence in the circumstances giving rise to the conviction, in R v. Stuckless (1998), 1998 CanLII 7143 (ON CA), 127 C.C.C. (3d) 225 this Court made it clear that an offender should not be treated more leniently simply because he refrained from the use of additional physical violence in a sexual assault.

[7] To treat the absence of gratuitous violence as a mitigating factor, as the trial judge did in this case, constitutes an error in principle.

[8] We now turn to the context of the offence, specifically the relevance of the trial judge’s clear finding that, over the course of the marriage, the respondent had previously sexually assaulted his wife. Despite this unequivocal finding, later in his sentencing reasons, the trial judge held that the respondent, “beyond the acts themselves, was not physically abusive to the complainant then or at other times” and distinguished the authorities upon which the appellant relied where prior abusive acts had occurred, stating “[t]here is, here, however, no history or pattern of physical abuse.”

[9] It would appear that the trial judge holds the erroneous view that sexual assault is not physically abusive.

[10] Furthermore, by failing to give proper consideration to the history of the respondent’s assaultive conduct toward his wife, the trial judge mischaracterized the character and background of the respondent. The trial judge then used the respondent’s “prior good character” as a mitigating factor. This mischaracterization constituted an additional error in principle.

[11] A sentencing judge should not rely on prior uncharged acts as “aggravating factors” as the sentencing process should not impose punishment for untried and uncharged offences. However, prior abusive conduct may nonetheless be relevant at the sentencing stage to show the character and background of the offender as it relates to the principles of sentencing: see R v. Edwards (2001), 2001 CanLII 24105 (ON CA), 155 C.C.C. (3d) 473 (Ont. C.A.) at para. 63; R v. Roberts (2006), 2006 ABCA 113, 208 C.C.C. (3d) 454 (Alta. C.A.) at para. 28. The background and character of the offender may be considered, for example, in order to assess the need for individual deterrence, rehabilitation, or the protection of the public. Such information is essential for crafting a sentence suitable for a particular offender.

[12] We also agree with the Crown that the length of sentence was not within an acceptable range. We appreciate that ranges are merely guidelines designed to assist trial judges. The overall message, however, must be clear. Individuals such as the respondent, who victimize their partners within the context of the marital relationship, in this case a spouse with particular vulnerabilities, must know that serious consequences will follow. In the circumstances of this case a fit sentence, in our view, is two years less a day.

[13] The seven-year SOIRA order was in contravention of s. 490.013(2)(b) of the Criminal Code respecting the duration of such orders. When the underlying offence of sexual assault proceeds by way of indictment, the maximum term of imprisonment is 10 years. In such circumstances, the term of the SOIRA order must be 20 years.

[14] Accordingly, we would grant leave to appeal and allow the appeal. We would replace the sentence of nine months with one of two years less one day. In these circumstances we would not impose a period of probation. We would also increase the SOIRA order to 20 years.

“Robert P. Armstrong J.A.”

“S.E. Lang J.A.”

“G. Epstein J.A.”