Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20241220 DOCKET: COA-24-CR-0286

van Rensburg, George and Gomery JJ.A.

BETWEEN

His Majesty the King Respondent

and

Shamar Morgan Appellant

Counsel: Shamar Morgan, acting in person Dan Stein, appearing as duty counsel Kevin Pitt, for the respondent

Heard: December 5, 2024

On appeal from the sentence imposed by Justice Suzan Fraser of the Superior Court of Justice on January 10, 2024.

Reasons for Decision

[1] The appellant was convicted after trial by judge and jury of one count of sexual assault. He received a custodial sentence of three years less 183 days credit for presentence custody. He abandoned his conviction appeal and sought leave to appeal his sentence. At the hearing of the appeal the appellant was assisted by duty counsel. We granted leave to appeal sentence and dismissed the appeal with reasons to follow. These are our reasons.

[2] The subject offence occurred in January 2021. The complainant, who was 18 years old, went to a hotel room to hang out with her best friend. They were joined by the appellant (who was the friend’s boyfriend) and another male. The complainant went to sleep fully clothed on a bed next to her friend, after declaring that she was going to sleep on the bed with her best friend and no one else. She awoke to find the appellant penetrating her vagina with his fingers.

[3] Two grounds of appeal were advanced by duty counsel on the appellant’s behalf.

[4] First, duty counsel submitted that the trial judge erred in relying on R. v. A.J.K., 2022 ONCA 487, 162 O.R. (3d) 721, as authority mandating a minimum sentence of three years imprisonment for any sexual offence involving penetration, absent “highly mitigating factors”. Second, he asserted that the trial judge failed to consider relevant factors identified by the Supreme Court in R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, to determine a fit sentence, which he submitted should have been in the mid-to-upper reformatory range. Duty counsel referred to various cases where lesser sentences were imposed for the offence of digital penetration.

[5] We did not give effect to these grounds of appeal.

[6] First, the trial judge did not, as alleged, proceed on the assumption that three years was the minimum sentence she could impose because the offence involved some form of penetration. Rather, she said that, “absent highly mitigating factors, this offence [which she described as a serious sexual assault on a young vulnerable woman that had a profound impact on her] attracts at least a three-year penitentiary sentence (emphasis added). In saying this, the trial judge tracked the language of this court at para. 77 of A.J.K. where, after determining that there was no justifiable reason why sexually assaulting an intimate partner was any less serious than the sexual assault of a stranger, Fairburn A.C.J.O. recognized that the typical range for sexual assaults involving forced penetration was three to five years.

[7] In this case the Crown was seeking a sentence of four years, while the defence, relying on cases decided before A.J.K., relied on a range of 18 months to three years for a first-time offender involving a sexual assault on a sleeping or unconscious person. The trial judge, rejecting the range proposed by the defence, appropriately identified three to five years as the range for this offence, absent highly mitigating factors. As this court recently confirmed in R. v. S.W., 2024 ONCA 173, at para. 42, there is no principled reason to distinguish between sexual assaults on complainants who are awake and those who are asleep for the purpose of establishing a sentencing range. There is no indication in this case that the trial judge applied a “minimum” sentence; rather the range of sentence that she accepted reflected the seriousness of the offence.

[8] Second, the trial judge appropriately considered all relevant factors in her determination of a fit sentence. The factors set out by the Supreme Court in Friesen, namely: the likelihood to reoffend, the abuse of a position of trust, the duration and frequency of the offence, the age of the complainant, and the degree of physical interference, are grounded in the context of sexual offences against children and operate as “neither a checklist nor an exhaustive set of factors”: at para. 121.

[9] Contrary to duty counsel’s assertion, the trial judge considered several of these factors in determining a fit sentence for the appellant. She considered as aggravating factors the complainant’s age, the fact that the complainant was unconscious during the assault, and the effect of the assault on the complainant. She also considered several mitigating factors, including the appellant’s rehabilitation efforts, the support of his family, and his relative youth. She properly took into consideration the appellant’s criminal record: his conviction for having received a material benefit from sexual services. He had received a sentence of 671 days for that offence, and he was still on probation when he committed the subject offence.

[10] Nor did the trial judge, as alleged, “disregard relevant case law”. We note that in each of the three cases referred to by duty counsel, all of which were decided after A.J.K., Crown counsel, for various reasons, sought a lesser sentence than the four-year sentence sought by the Crown in this case: two years less a day to three years in R. v. De Jesus-Carrasco, 2021 ONSC 6891; 16 months in R. v. Case, 2021 ONSC 908; and 15 months in R. v. M.L., 2024 ONCJ 372. These cases do not suggest, as submitted by duty counsel, that sentences for sexual offences by digital penetration should attract a lesser sentence than sentences for sexual offences involving penile penetration.

[11] Indeed, the trial judge explicitly recognized that sexual assault by digital penetration is a serious violation of the victim’s bodily integrity. She cited to Friesen, at para. 146, where the Supreme Court confirmed that “physical acts such as digital penetration … can be just as serious a violation of the victim’s bodily integrity as penile penetration”, and to para. 77 of A.J.K., referred to above. Further, in R. v. R.S., 2023 ONCA 608, 168 O.R. (3d) 641, this court referred to A.J.K. in the context of a sexual assault involving digital penetration and concluded that the conditional sentence imposed at first instance was demonstrably unfit, indicating that a sentence of three years would have been appropriate.

[12] Following duty counsel’s submissions, the appellant made submissions about relevant factors that he suggested would have warranted a shorter sentence. He referred to the steps he had taken while incarcerated, including that he applied for all available jobs, and that he had participated in substance abuse and mental health courses.

[13] The trial judge specifically recognized the appellant’s attempts to better himself since the offence occurred and that he had the support of his family. She also recognized that the appellant was a youthful offender, that this would be his first penitentiary sentence, and that she must act with restraint. Nonetheless she imposed a three-years sentence, which was a fit sentence in all the circumstances.

[14] For these reasons we granted leave to appeal sentence and dismissed the appeal.

“K. van Rensburg J.A.”

“J. George J.A.”

“S. Gomery J.A.”

[1] This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.