WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. A.J.K., 2022 ONCA 487

DATE: 20220624

DOCKET: C68553

Fairburn A.C.J.O., Gillese and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A.J.K.

Appellant

Richard Litkowski and Myles Anevich, for the appellant

Michael Fawcett, for the respondent

Heard: January 24, 2022 by video conference

On appeal from the convictions entered by Justice Simon C. Armstrong of the Ontario Court of Justice, dated January 31, 2020, and from the sentence imposed on September 25, 2020.

Fairburn A.C.J.O.:

overview

[1] The appellant and complainant went out together during the evening of November 2, 2018. At the end of the evening, the appellant testified that they had consensual sexual intercourse while in his car, which was parked in an industrial area. In contrast, the complainant testified that she was brutally sexually assaulted and beaten while in that area.

[2] The appellant was tried in the Ontario Court of Justice. He was found guilty of sexual assault, assault, and failure to comply with a probation order. A global sentence of five years was imposed. The appellant appeals from his convictions and seeks leave to appeal from his sentence. As to the conviction appeal, he raises three grounds. The appellant argues that the trial judge erred: (1) in his application of the burden of proof; (2) in his assessment of the complainant’s credibility; and (3) by permitting the trial Crown to ask a question about the appellant’s criminal record that exceeded the bounds of permissible questioning and then using his answers to that question to reject his evidence.

[3] As to the sentence appeal, the appellant argues that the trial judge erred by imposing a demonstrably unfit sentence, one that represents a marked departure from the established range for what the appellant refers to as “intimate partner, or former intimate partner” sexual assaults.

[4] For the reasons that follow, I would dismiss both the conviction and sentence appeals.

factual backdrop

[5] The appellant and complainant met on Tinder, an online dating application. They first got together about eight months prior to the night of the events giving rise to the prosecution. While they had not seen each other for a few months, they decided to get together again during the evening of November 2, 2018.

[6] The appellant picked the complainant up in his car. They bought a small bottle of tequila and a can of orange soda pop that the appellant liked to use as a “chaser” to his tequila. They then went to a bar in Toronto where they spent several hours together. The events at the bar are irrelevant to the issues on appeal. What matters is what happened after they left the bar.

[7] The bar was in downtown Toronto. The complainant lived in Vaughan. She said the drive from downtown Toronto to Highway 400 took about 45 minutes at that time of night. The appellant and complainant gave dramatically different accounts as to what happened during that 45-minute drive.

[8] The appellant testified that the drive started with the two of them telling jokes and “teasing” and “flirting” with one another. According to the appellant, things quickly progressed from there. He testified that early in the drive, the complainant started kissing his neck without him asking. Then, at his suggestion, the complainant removed the appellant’s penis from his pants and fellated him for most of the journey back to Vaughan. The only real exception seems to have been when the complainant, according to the appellant, “wanted to take a break.” It was apparently a short break, after which she continued to fellate him. The appellant testified that he praised the complainant for her technique.

[9] The appellant testified that he suggested to the complainant that they stop for a “quickie”, a term that he explained he uses to suggest sexual intercourse. The appellant recounted that it was difficult for the complainant to respond to his suggestion as she was “still giving [him] oral sex”, but that she was able to utter an “Mm-hmm” in response to his suggestion. Accordingly, he pulled off the highway and proceeded to an industrial area.

[10] Once he parked the car, he said: “Okay, let’s go”, to which she apparently responded “okay” and took her own pants off. To the appellant, “[o]kay, let’s go” meant “let’s have sex now”. The appellant then described a consensual sexual encounter involving vaginal intercourse.

[11] According to the appellant, the intercourse only stopped when the complainant said that she could not continue because she could not get the image of a man out of her head. The appellant testified that just before they had left the bar earlier that evening, he had seen a “homeless” man who had a large gash on his hand. He had told the complainant about what he had seen. According to the appellant, it was his description of that man to the complainant that she could not get out of her head.

[12] The appellant admitted that he was angry about the intercourse having to stop and that an argument broke out between them. According to him, he suggested to the complainant that she had “ruined” the “entire night and the mood.” She then got “really furious.” He said that she started taunting him, raising his prior criminal record, which includes a conviction for communicating with an underage person for the purpose of prostitution.

[13] He testified that the argument culminated in the complainant pouring the can of orange soda pop over his head. He apparently reacted in an almost instinctive way: he swung his hand to knock the can out of her hand, which he said resulted in his hand hitting the complainant’s face by accident. The appellant admitted that after this unintentional strike, he “took things a little too far and [he] gave her one hard hit to [her] … left side with [his] right arm.”

[14] She then got out of the car and threatened that she was going to call the police. The appellant admitted that he then got out of the car, pushed the complainant against it, and begged her to calm down. He testified that she ran from the car. He left the scene once she called the police.

[15] The complainant’s version of events bore no resemblance to the appellant’s version. She denied having fellated him; she denied that there was any part of the drive that was harmonious; she denied that she agreed to pull off of the highway to have a “quickie”; she denied that she poured pop on the appellant’s head; and she denied that that she consented to any sexual activity with the appellant.

[16] According to the complainant, the appellant wanted to know if she had been sexually active since the last time that he had seen her. He did not believe her when she said that she had not been. She testified that the appellant made it clear that he wanted to have sex with her in the car. She did not want to do that and pleaded to be taken home or let out of the vehicle. Indeed, she was so anxious to get out of the car that she begged to be let out at the side of a major highway. Over her objections, the appellant proceeded to the industrial area, saying: “We’re having sex tonight.”

[17] Once in the parking lot, the complainant was crying. The appellant pulled down his pants and then the complainant’s pants. He penetrated her vaginally from behind, all the while choking her. The complainant only escaped when she managed to open the car door that she was being partially pressed up against. She fell from the car and then attempted to retrieve her belongings. At that point, the appellant came around the side of the car and started punching her in the side of the head. He also pressed her so hard against the side of the car that she could not breathe. The appellant eventually stopped hitting her, got in his car, and drove off. The complainant then called the police.

[18] The other evidence at trial included that of the nurse who attended to the complainant in the immediate wake of the assault. She catalogued the various injuries that the complainant had suffered, including swelling to the complainant’s jaw line, abrasions on her hand, and red discolouration on her ear and scalp.

[19] The complainant’s mother also testified. She recounted the call that she received from the complainant from the hospital. The mother also testified about the lengthy period of recovery that the complainant experienced after the night of November 2, 2018, including school accommodations that had to be made and counselling that had to occur.

conviction appeal

The burden of proof

[20] While the appellant acknowledges that the trial judge correctly cited the requirements of R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, he contends that, read as a whole, the reasons for judgment reflect a failure to adhere to the command of that decision. Specifically, the appellant argues that the reasons for judgment reflect nothing more than the trial judge’s resolution of what he perceived to be a credibility contest, where he understood his task as one of choosing between the appellant’s or complainant’s versions of events. This is said to have had the effect of misplacing the burden of proof.

[21] I disagree. Contrary to the appellant’s submissions, the trial judge’s reasons reveal a pitch perfect adherence to the application of the W.(D.) principles and the burden of proof.

[22] Much ink has been spilled over W.(D.). This case involves a straightforward application of these principles. It is simply a methodology that triers use to determine whether the prosecution has met its burden of proving each element of the offence beyond a reasonable doubt. In cases like this one, involving “conflicting testimonial accounts”, the methodology can be helpful in ensuring that triers keep the burden squarely on the Crown: see R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 9.

[23] There is no dispute that the trial judge properly recounted the W.(D.) framework: (1) if he believed the accused, he had to acquit; (2) if he did not believe the accused, but was left in a reasonable doubt by the accused’s evidence, he had to acquit; and (3) even if he was not left in a reasonable doubt by the accused’s evidence, he had to determine, on the basis of the evidence he accepted, if he was satisfied “beyond a reasonable doubt by that evidence of the guilt of the accused”: W.(D.), at pp. 757-58.

[24] While the appellant accepts that the trial judge correctly recounted the W.(D.) methodology, he finds error in the trial judge’s application of that methodology. In particular, he maintains that the trial judge erred by failing to apply the second prong of the W.(D.) analysis, as evidenced in his alleged approach to the appellant’s and complainant’s evidence as if it represented a credibility contest, with only one who could win and one who could lose.

[25] The appellant points to the following impugned passage, early in the analysis portion of the reasons for judgment, where the trial judge is said to have acknowledged that he was engaged in a credibility contest: “To a large extent, this is a she said/he said case with some additional evidence from [the complainant’s mother] and [the nurse]” (emphasis added).

[26] Characterizing the matter as a “she said/he said case” is said to reveal a judicial mindset stuck in a rigid choice between two competing accounts. The appellant contends that this passage lays bare the trial judge’s erroneous understanding that he was presiding over nothing more than a credibility contest, one where he was called upon to resolve the competing versions of events by simply choosing the one he preferred. I do not agree.

[27] While describing a case as a “she said/he said case” could signal a problem in terms of the burden of proof, that expression does not, in and of itself, suggest that a trial judge has simply chosen between two accounts. It is not the function of this court to extract five words from a judgment and call them problematic. Rather, we must look to those words and consider them in context when answering the real question: did the trial judge misplace the burden?

[28] The fact of the matter is that this was a case involving starkly different versions of events that stood in dramatic opposition to one another. This meant that the credibility and reliability of the complainant’s and appellant’s accounts would be fundamental to the resolution of the issues at trial. The trial judge clearly knew this. Indeed, he said that in the very next sentence following upon the impugned comment: “[T]he credibility and reliability of the evidence of the complainant and the defendant are live issues for me to determine.”

[29] The experienced trial judge also knew that his reasoning could not devolve into a simple credibility contest, one where he could choose between the two accounts given. How do we know this? He said so: “[M]y verdict must not be based on a choice between the evidence of the defence and the evidence of the Crown.”

[30] The appellant points to four occasions in the reasons for judgment that he says demonstrate the trial judge having exercised a choice between accounts. The appellant maintains that these four examples reflect situations where the trial judge “expressly contrasted” the appellant’s evidence with the complainant’s evidence, revealing that he “preferred” the complainant’s evidence over the appellant’s evidence. Respectfully, I do not read these examples in the same way as the appellant.

[31] I will not review each of the four occasions where the trial judge is said to have merely picked a side. Suffice to say that on each of the occasions, while the trial judge described the competing accounts, he did not merely pick a side. Rather, his decision reveals cogent reasons for why he rejected the appellant’s evidence on each of those occasions. The trial judge also explained why he was satisfied that the complainant gave credible and reliable evidence. In other words, he carefully explained why he wholly rejected the appellant’s version of events and accepted the complainant’s version of events.

[32] There is nothing inherently wrong, and much right, with a trial judge contrasting and comparing evidence with an accused’s evidence. Engaging in this kind of contrast and comparison does not in and of itself reflect a misplacement of the burden. To the contrary, engaging in this exercise will often reflect a proper consideration of an accused’s evidence in light of the evidence as a whole, including a complainant’s evidence: see R. v. N.K., 2021 ONCA 13, at para. 10; R. v. Hull, 2006 CanLII 26572 (ON CA), [2006] O.J. No. 3177 (C.A.), at paras. 5-6. That is all that was going on in these considered reasons.

[33] The appellant also suggests that the following passage reflects an erroneous approach to the burden of proof, again framing the analysis as a credibility contest:

In the language of W.(D.), I did not believe your evidence, nor did it raise a reasonable doubt, as I have explained. I accept the evidence of the Crown witnesses and find that the charges of assault, sexual assault and breach of probation have been proven beyond a reasonable doubt.

[34] Respectfully, this concluding passage, found at page 33 of the reasons, reflects nothing more than a final summary of the trial judge’s analysis in the pages prior and what the subtitle immediately preceding it says: “Application of the W.(D.) Test”. It is error free.

[35] To conclude, the trial judge: (1) properly recounted the W.(D.) methodology; (2) specifically noted that he was not engaged in a credibility contest; (3) gave clear and logical reasons, utilizing multiple examples, for why he rejected the appellant’s evidence and why it did not leave him in a state of reasonable doubt; (4) gave reasons for why he accepted the complainant’s evidence as credible and reliable; and (5) gave reasons for why, on the whole of the evidence, he was satisfied beyond a reasonable doubt that the appellant committed the offences.

[36] There was no reversal of the burden in this case.

The credibility assessment

[37] The complainant’s mother testified that following upon the alleged incident, the complainant was very distraught for a long time. The complainant’s emotional distress manifested itself in her need for therapy and various accommodations when she returned to school. The trial judge relied upon this evidence as one of the many reasons for why he had “strong concerns” about the credibility of the appellant’s account.

[38] The appellant does not dispute that the complainant was emotionally devastated after November 2, 2018, or that she needed professional help in relation to that devastation. Rather, the appellant argues that the trial judge erred in using the evidence of that devastation as a reason for rejecting his version of events.

[39] The appellant maintains that the complainant’s mother’s evidence could not materially advance the Crown’s case, either by undermining the appellant’s credibility or by supporting the complainant’s credibility. In particular, the appellant argues that by considering the complainant’s trauma in the wake of the alleged offence, including how it manifested itself and how she addressed it, the trial judge “presumed an expected course of conduct in response to a sexual assault” despite the fact that courts have “long rejected this stereotypical reasoning”. In short, he says that the trial judge’s reasons reflect stereotypical thinking about how a victim will react to a sexual assault.

[40] The trial judge did not err in using evidence of the complainant’s emotional devastation.

[41] I start by noting that there was no objection to the mother having testified on these points. The trial participants were clearly in the best position to appreciate the relevance of the evidence at the time that it was given and within the context of the trial as a whole. Having failed to object to the introduction of this evidence belies the submission made for the first time on appeal that the mother’s evidence could not materially advance the prosecution’s case.

[42] In addition, it is important to place the trial judge’s use of the complainant’s reaction to the alleged offence within its proper context. It is clear from the trial judge’s reasons that the convictions did not stand or fall on evidence of the complainant’s demeanour following the alleged events. This was the trial judge’s fifth and final reason for why he rejected the appellant’s evidence as a fabrication. The trial judge prefaced his comments with the observation that it was his “final reason” for having “strong concerns” about the appellant’s evidence. Suffice to say, standing on their own and collectively, the other 4 reasons that span the previous 24 paragraphs of analysis into why the trial judge rejected the appellant’s evidence as a fabrication are compelling.

[43] In any event, I disagree with the appellant that the relevance of this evidence rested in impermissible myths about how sexual assault complainants behave after being attacked. To the contrary, a complainant’s emotional disintegration after an alleged offence may well be relevant to whether, as a matter of common sense and human experience, the events occurred as described by the complainant. While it would be wrong to say that all sexual assault victims would experience what the complainant experienced in this case, or that all sexual assault victims would behave as the complainant behaved in this case – an impermissible generalization about victims of sexual assault – the undisputed fact is that the complainant did behave in this way in this case. The inference to be taken from the evidence elicited at trial was that the complainant was emotionally devastated because something emotionally devastating happened to her: see R. v. J.A., 2010 ONCA 491, 261 C.C.C. (3d) 125, at paras. 16-18, rev’d on other grounds, 2011 SCC 17, [2011] 1 S.C.R. 628.

[44] This was simply part of the factual matrix that the trial judge was permitted to consider in resolving issues of credibility.

The appellant’s criminal record

[45] The appellant had a prior conviction for communicating with an underage person for the purpose of prostitution. The trial Crown asked the appellant if he knew whether communicating with an underage person for the purpose of prostitution was “against the law at the time”. The appellant waffled in answering that question. He started by saying: “I wasn’t thinking straight.” His answer then morphed to: “I don’t know how to answer that question. I guess, yeah.” He then concluded by saying: “I do … Sure. Yes.” The trial judge noted that these cascading answers were given shortly after the appellant had sworn to tell the truth in court. The trial judge observed that this meant that “from the very start” of his cross-examination, the appellant’s “credibility was suspect … and things did not get better.” The trial judge then went on to give multiple reasons for why the appellant’s credibility did not gain in strength.

[46] The appellant argues that cross-examining him as to whether he knew the offence of communicating with an underage person for the purpose of prostitution was against the law at the time that he did it, “significantly exceeded the scope” of what is permitted under s. 12(1) of the Canada Evidence Act,R.S.C., 1985, c. C-5 (“CEA”). Not only was the questioning inappropriate, but the trial judge’s reliance upon the appellant’s answers is said to have aggravated the error, particularly because the trial judge used those answers as a central prong for rejecting the appellant’s evidence.

[47] The respondent argues that there was nothing wrong in this case with the trial Crown asking the appellant if he knew that communicating with somebody under the age of 18 for the purposes of prostitution was “against the law”. After all, the whole purpose of eliciting a prior criminal record is to provide a tool by which to assess the accused’s credibility as a witness. Asking whether an accused knew that a prior offence was against the law is simply a way to explore the accused’s honesty as a witness.

[48] Where an accused testifies, their criminal record is presumptively admissible for purposes of assessing their credibility as a witness. Section 12(1) of the CEA constitutes legislative recognition of the fact that prior convictions can be relevant to a witness’ credibility: see R. v. M.C., 2019 ONCA 502, 146 O.R. (3d) 493, at para. 53. This means that the “character of the witness, evidenced by the prior conviction(s), is a relevant fact in assessing the testimonial reliability of the witness”: M.C., at para. 54; R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, at pp. 685-86.

[49] Even so, there is an accepted danger of propensity reasoning that accompanies an accused’s criminal record when it is elicited at the trial. Specifically, there is a danger the trier will reason that the accused has committed criminal offences in the past and, therefore, he is the type of person who would commit the alleged offence for which the accused is on trial.

[50] Given the dangers associated with propensity reasoning, questioning an accused regarding a criminal record is limited to three areas: (1) the fact of conviction; (2) the date and place of conviction; and (3) the punishment imposed: Corbett, at pp. 696-97; M.C., at para. 55. The Crown is not permitted to ask questions about the conduct underlying the convictions or whether the accused testified at the trials leading to those convictions: Corbett, at pp. 696-97; M.C., at para. 55.

[51] While questioning about prior convictions is strictly circumscribed, this does not mean that questioning outside of the permitted categories automatically results in reversible error.

[52] Here, all the trial Crown was exploring when he asked the appellant whether he knew that what he did was against the law was whether the appellant had knowingly breached the rules of society. While this question technically reached beyond the circumscribed three-category approach originally set out in Corbett – questioning about the fact of conviction, date and place of conviction, and punishment imposed – importantly, it did not undermine the purpose of the categories, which are to prevent propensity reasoning. Specifically, it did not involve questioning the accused about the factual underpinnings relating to the crime for which he was convicted. Nor did it probe into the prohibited area of whether the appellant had testified at his trial. Rather, the question was clearly designed to reveal the appellant’s lack of regard for the rules of society, something that would make him a less credible witness.

[53] Again, this issue must also be considered in its proper context. First, this was a judge-alone trial, where the trial judge would be less likely to fall victim to propensity reasoning than a lay trier. Second, there was no objection taken to the question when it was put, underscoring the benign nature of what was being asked. Third, and perhaps most importantly, the trial judge did not use the answers given to the now impugned question for a prohibited purpose. There is nothing in the reasons for judgment suggesting that the trial judge engaged in improper propensity reasoning. To the contrary, the trial judge used the answers given to the simple question that had been posed to conclude that the appellant did not testify in a straightforward fashion. For the trial judge, it did not matter what the subject of the question was. What mattered was that it was a simple question that resulted in a less than simple answer, one that essentially and circuitously evolved from a no to a yes.

[54] It is also noteworthy in the context of this case that the appellant opened the door to the now impugned question. It is the appellant who first raised his conviction during his examination in chief. He did not simply say that he had previously been convicted of the crime but, rather, explained his sensitivity around having been convicted of that crime and the fact that he was upset that the complainant had emphasized his conviction during what he said was their argument.

[55] The appellant testified that, after expressing his disappointment to the complainant that she had discontinued the “sex”, she became “furious” with him. According to him, the complainant “started bringing up my prior charges and was taunting me, saying ‘You’re the one that’s messed up, going to an underage escort. No other girl would want to be with you. You’re lucky I’m even with you.’ And other things.” He was asked by his own counsel, what “other things” he was referring to and responded: “Just pretty much egging on … [the] fact that I was a gross person, that I did something like that. Knowing how sensitive of a subject that was to me.”

[56] In my view, this exchange during the examination-in-chief left it open to the trial Crown to question the appellant exactly as the matter unfolded. After all, having claimed that the complainant was “egging” him on, making it appear he was “gross”, all the while knowing it was a “sensitive” subject for him, it was open to the Crown to at least ask a few questions to clarify matters. The appellant’s testimony begged the question: why was he sensitive? Was he sensitive because he had been treated unfairly by the criminal justice system? Therefore, the Crown’s follow-up question about whether he knew what he had done was against the law, was a simple follow-up to the manner in which the examination-in-chief had unfolded.

[57] Accordingly, and consistent with the defence silence at trial, the trial judge did not err in allowing the question to be asked and answered. Nor did he err in how he used the answers given.

sentence appeal

Overview

[58] The trial Crown asked for a six-year sentence. The appellant asked for a three-year sentence. The trial judge imposed a global sentence of five years: (1) five years for the sexual assault; (2) two years concurrent for the assault; and (3) six months concurrent for the breach of probation.

[59] The appellant says that the trial judge erred in two ways when imposing this sentence: (1) he relied upon a higher sentencing range than the one applicable to “forced intercourse with a … former intimate partner”; and (2) he imposed a demonstrably unfit sentence by failing to give proper effect to the principle of restraint and to the mitigating circumstances relating to the appellant’s situation. I will address the issues in that order.

Was the trial judge mistaken as to the correct sentencing range?

[60] The appellant maintains that the trial judge erred when he said that this court “has approved sentences in the range of 4 to 7 [years] imprisonment for assault and sexual assault offences of the type I have found [the appellant] guilty of.” The trial judge noted that he arrived at that range by considering the decisions that had been provided to him by trial counsel.

[61] The appellant argues that the trial judge erred in his suggestion that the sentencing range for this “type” of offence is four to seven years. To the contrary, the appellant maintains that the sentencing range for this “type” of crime, what the appellant describes as the crime of “forced intercourse with a spouse, intimate partner, or former intimate partner”, is between 21 months and four years. In support of that position, the appellant points to this court’s decision in R. v. Smith, 2011 ONCA 564, 274 C.C.C. (3d) 34, at para. 87, which states the following: “[I]n cases of sexual assault involving forced intercourse with a spouse or former spouse, sentences generally range from 21 months to four years” (citations omitted; emphasis added).

[62] The appellant emphasizes that, being a former intimate partner of his, the complainant fits within the category of complainants described in Smith and, therefore, the trial judge was wrong to conclude that the range was four to seven years, as opposed to the range of 21 months to four years set out in Smith. While the appellant accepts that the sexual assault of an intimate partner is an aggravating factor, he maintains that this aggravating factor is built into the Smith range. Accordingly, the trial judge is said to have erred when he concluded that the starting point, as opposed to the ending point, for the range was four years. This is said to have resulted in a sentence that failed to adhere to the principles of proportionality and parity.

[63] The respondent acknowledges that the appellant’s position has some support. The fact is that Smith says what it says. Further, over time, this court and others have reinforced the 21-month to four-year range for “intimate partner” sexual assaults involving penetration: see e.g., R. v. S.B., 2021 ONSC 2668, at para. 56; R. v. Studd, 2020 ONSC 2810, at para. 11; R. v. D.B., 2020 ONCA 512, at para. 9; R. v. S.M.A., 2020 ONCA 823, at para. 13; R. v. E.D., 2019 ONCJ 346, at para. 28, aff’d 2020 ONCA 633, leave to appeal refused, [2020] S.C.C.A. No. 474; R. v. D., 2018 ONSC 1198, at para. 53, aff’d 2019 ONCA 138; R. v. S.M.C., 2017 ONCA 107, at para. 6; R. v. H.E., 2015 ONCA 531, 336 O.A.C. 363, at para. 44; and R. v. Stewart, 2013 ONCA 579, 311 O.A.C. 70, at para. 5. Indeed, the Smith range is so clearly on the sentencing radar that it has been described as this court’s “seminal decision” for determining the sentencing range for “sexual assaults within a domestic relationship”: R. v. Chrystal, 2021 ONCJ 178, at para. 69.

[64] The respondent maintains that the time has come to abandon what has come to be known as the “Smith range”. It is not clear to me that Smith was ever intended to set a clear sentencing range for a particular type of sexual assault. Even so, to the extent that it has come to be understood in this way, I agree that the time has come to set it aside.

[65] To begin, it is important to understand the context for the Smith decision. It was largely a conviction appeal. At the end of the day, this court upheld only three of ten convictions. It therefore fell to this court to resentence Mr. Smith on the three offences for which he remained convicted. One of the remaining convictions arose from a sexual assault of Mr. Smith’s former partner. In a single-sentence paragraph, this court commented that the sentence for a sexual assault involving the forced penetration of a spouse or former spouse “generally range[d]” from 21 months to four years. That short sentence was followed by five citations to decisions said to support that observation: Smith, at para. 87. That was the extent of it.

[66] Over time, this single sentence from Smith gained traction and was repeatedly referred to as if it were a fixed sentencing range in the context of penetrative sexual assaults of intimate and former intimate partners. It is difficult to know whether the single sentence from Smith was intended to be treated as such, but with or without that intention, the fact is that courts have done so.

[67] Treating Smith as a sentencing range for the sexual assault of an intimate partner is disquieting because what has come to be known as the Smith range is out of sync with the sentencing range for those sexual assaults where the victim is a stranger or simply an acquaintance of the accused, but not an intimate partner or former intimate partner.

[68] One need look no further than this court’s decision in R. v. Bradley, 2008 ONCA 179, 234 O.A.C. 363, which is often cited as support for a three-to-five-year sentencing range involving non-intimate partners. This court stated, at para. 18: “We accept the Crown’s submission that, in the circumstances, the appropriate range of sentence was three to five years.” Numerous decisions from this court and others have reinforced a range of three to five years, and in some cases even higher, in the context of sexual assaults of non-intimate partners involving forced oral, vaginal, or anal penetration: see e.g., R. v. U.A., 2019 ONCA 946, at para. 11; R. v. T.W., 2019 ONSC 5596, at paras. 33, 42; R. v. McCaw, 2019 ONSC 3906, at para. 59; R. v. Johnson, 2018 ONSC 5153, at para. 34; R. v. Mitrovic, 2017 ONSC 1829, [2017] O.J. No. 1523, at para. 38; R. v. L., 2016 ONSC 733, at paras. 46, 50; R. v. Nelson, 2014 ONCA 853, 318 C.C.C. (3d) 476, at para. 60; R. v. S.A., 2014 ONCA 266, at para. 1; R. v. Rand, 2012 ONCA 731, 307 O.A.C. 64, at para. 19; R. v. Richards, 2010 ONCA 728, at para. 6; and R. v. Myers, [2000] O.J. No. 1787 (Sup. Ct.), aff’d (2002), 156 O.A.C.157.[^1]

[69] The difference between what has become known as the Smith range and what I will refer to as the “non-Smith range” has understandably caused significant expressions of concern: see e.g., R. v. P.M., 2020 ONSC 3325, at paras. 94-105, aff’d 2022 ONCA 408; R. v. O.K.S., 2019 ONCJ 482, at n. 8; R. v. W.K., 2021 ONSC 3473, at paras. 50-54. The unease arises from the obvious: the sole distinguishing feature between the two ranges is that, with the lower Smith range, the victim has been or is an intimate partner of the accused at the time that the act of sexual violence takes place.

[70] However we arrived at this place, it is time to leave this sentencing artefact behind.

[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.

[72] In some cases, appellate courts are called upon to chart a new course and bring sentencing ranges into “harmony with a new societal understanding of the gravity of certain offences or the degree of responsibility of certain offenders”: Friesen, at para. 35. See also: R. v. Wright (2006), 2006 CanLII 40975 (ON CA), 83 O.R. (3d) 427 (C.A.), at para. 22. That is what we are being asked to do here. It is right to do so.

[73] 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 CanLII 711 (SCC), 1999 SCC 711, [1999] 1 S.C.R. 330, at para. 82.

[74] 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.

[75] As the years pass, enlightenment on the implications of sexual violence continues to permeate our conscious minds. In Friesen, the court noted, at para. 118, that “our understanding of the profound physical and psychological harm that all victims of sexual assault experience has deepened” and, I would add, is continuing to deepen: see also R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3, at para. 37. As Moldaver J. stated in R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 1: “Without a doubt, eliminating … sexual violence against women is one of the more pressing challenges we face as a society” and “we can – and must – do better” (emphasis in original). This comment encapsulates why these sentencing ranges as they have come to be understood must be reconciled.

[76] There is no justifiable reason for why sexually assaulting an intimate or former intimate partner is any less serious than sexually assaulting a stranger. The fact is that a pre-existing relationship between the accused and complainant places them in a position of trust that can only be seen as an aggravating factor on sentencing: Criminal Code, R.S.C., 1985, c. C-46, s. 718.2(a)(ii). Therefore, contrary to the impression that may be left when contrasting the Smith range with the non-Smith range, the sexual assault of an intimate or former intimate partner can actually attract a greater sentence.

[77] 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.

[78] The trial judge was under no obligation to cite the actual range for this type of offence in order to invite deference in. Quite simply, there is no magic to citing the correct range of sentencing; the task is to arrive at a fit sentence through the employment of proper sentencing principles.

[79] In my view, the trial judge was doing nothing more than looking to the authorities he had been provided and commenting, in a very general way, that for offences like the ones the appellant had been found guilty of, similar cases had attracted sentences in the four-to-seven-year range. I see no error in that comment or in how the trial judge approached the sentencing exercise.

Did the trial judge impose a demonstrably unfit sentence by failing to give effect to the principle of restraint and to the mitigating circumstances relating to the appellant’s situation?

[80] When imposing a sentence, the goal is always to impose a fair, fit, and principled sanction: Parranto, at para. 10. Proportionality is key to this determination, focussing as it does on the gravity of the offence and the degree of responsibility of the offender: Friesen, at para. 30; Parranto, at para. 10. Indeed, proportionality is described in the heading above s. 718.1 of the Criminal Code as being the “[f]undamental principle” of sentencing.

[81] The principle of parity is a tool that helps calibrate proportionate sentences because, at its core, parity is about treating similar offenders who commit similar offences in similar circumstances in a similar way: Friesen, at para. 31; Parranto, at paras. 10-11. Therefore, parity exists as an expression of proportionality, providing the court with a means by which to fix proportionate sentences by reference to sentences that have been imposed in other cases: Friesen, at para. 33; Parranto, at para. 11.

[82] The principle of individualization is yet another tool designed to help calibrate proportionate sentences. Individualization is central to the assessment of proportionality in that it demands focus upon the individual circumstances of each offender: Parranto, at para. 12; Lacasse, at para. 58.

[83] The trial judge demonstrated his command of each of these sentencing principles. He carefully reviewed the factual underpinnings of the offence, the appellant’s personal circumstances, including his criminal record, and the impact of the offence on the complainant. He also considered the overarching sentencing principles that were operative in this case, both denunciation and deterrence.

[84] The trial judge was entirely alive to the principle of restraint. At the same time, he noted the numerous aggravating factors at work. Those included the fact that this was not the appellant’s first offence and that he was on probation when he committed this crime.

[85] I see no error in how the trial judge proceeded. Sentencing is a highly subjective process and trial judges are in the best position to determine what is fit in all of the circumstances: see R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227, at para. 46. As noted by Moldaver J.A. (as he then was) in R. v. D.(D.) (2002), 2002 CanLII 44915 (ON CA), 58 O.R. (3d) 788 (C.A.), at para. 33: “[J]udges must retain the flexibility needed to do justice in individual cases.” They must be left in a position to individualize the sentence to the offender before the court. What is critical is that the trial judge imposed a sentence that is fit, in other words one that is not clearly unreasonable, and properly applied the principles of sentencing in exercise of his discretion: Shropshire, at para. 46; Friesen, at para. 162.

[86] Aside from listing the fact that the offences occurred in the context of an intimate relationship of trust as an aggravating factor, the trial judge did not focus upon whether this was an intimate-partner or stranger attack. Nor should he have. He focussed upon the actual attack. The seriousness of this offence is clear. As she begged to be released, the appellant took the complainant to a secluded area, choked her, penetrated her vaginally from behind, pinned her down, punched her, beat her, and then left her alone in the dark. She had a concussion. She had bruising. She had swelling. And when she recovered from those physical injuries, she and her family had a lengthy and difficult journey of mental recovery, a journey that the trial judge observed was still ongoing at the time of trial.

[87] The gravity of the offence and the appellant’s responsibility for that offence is plain on its face. A five-year sentence was entirely fit.

conclusion

[88] The conviction appeal is dismissed. Leave to appeal sentence is granted and the sentence appeal is dismissed.

Released: “June 24, 2022 JMF”

“Fairburn A.C.J.O.”

“I agree. E.E. Gillese J.A.”

“I agree. G.T. Trotter J.A.”

[^1]: Two of these cases, Johnson and Richards, involved sexual assaults against an intimate partner or former intimate partner. In Johnson, the sentencing judge did not cite Smith. Richards was decided prior to Smith.