WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. —(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

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

(2) Mandatory order on application. — 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 complainant of the right to make an application for the order; and

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

486.6 Offence. —(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.

Court Information

Ontario Court of Justice

Date: 2017-06-29

Court File No.: 4911-998-14-06739-00; Central East - Newmarket

Between:

Her Majesty the Queen

— AND —

S.C.

Before: Justice Peter C. West

Sentencing Submissions Heard: May 29, 2017

Reasons for Sentence Released: June 29, 2017

Counsel:

• Mr. R. Scott — counsel for the Crown
• Mr. D. Basile — Counsel for the defendant S.C.

Reasons for Sentence

WEST J.:

Conviction and Background

[1] On September 20, 2016, after a two day trial, I found S.C. guilty of sexually assaulting N.T. on September 7, 2014. The Crown had proceeded by way of summary conviction prior to the dates for trial being set down. The matter was adjourned on a number of occasions as S.C., shortly after delivering my judgment finding him guilty, discharged trial counsel and retained new counsel, Mr. D. Basile, to represent him on sentence.

[2] A pre-sentence report was ordered on February 10, 2017, and sentencing submissions were scheduled to be heard on May 29, 2017. After hearing submissions I advised counsel I would be reserving my reasons for sentence until June 29, 2017.

[3] The victim, N.T., provided a Victim Impact Statement (VIS), which was filed as Exhibit 1. The PSR was marked as Exhibit 2. Mr. Basile filed a number of character letters written on behalf of S.C., which were marked as Exhibit 3.

[4] The facts surrounding the commission of the sexual assault are set out in detail in my reasons for judgment, dated September 20, 2016. For the purposes of sentencing I will highlight key facts, which relate to the sexual assault committed by S.C. to provide a factual background.

Facts of the Offence

[5] S.C. first met N.T. when she was working as an exotic dancer over 13 years ago. A friendship developed over time and S.C. and N.T. saw each other at their homes and at S.C.'s restaurant. Their relationship was purely platonic. N.T. has been working as a real estate agent since 2010.

[6] N.T. lived with her mother and in 2014 she had purchased a new home. This new home was not completed when her existing home closed and S.C. invited N.T. and her mother to move into his home. She and her mother lived with S.C. from June 2014 until they moved into their new home on September 7, 2014.

[7] On September 7, 2014, N.T. moved into her new home with the assistance of family and friends. S.C. assisted moving boxes from his house to the movers' truck until he left for work around 11 a.m. S.C. had food delivered for lunch to the new house for N.T. and those helping her move. After S.C. finished work he went to N.T.'s new house with more prepared food from his restaurant for dinner and a bottle of champagne to celebrate the move.

[8] Later in the evening after N.T.'s family and friends had left and N.T.'s mother had gone to bed, N.T. and S.C. were sitting together on a love seat in the living room watching TV. N.T. was tired from the move so she put her head on one of the armrests of the couch and put her feet on S.C.'s lap. S.C. was massaging her feet. At some point she fell asleep.

[9] N.T. was awakened by feeling S.C.'s finger being in her vagina. N.T. and S.C. had never engaged in any kind of sexual behaviour or activity previously and there had never been any discussion between them previously or on this particular day about having any sexual contact. N.T. had not asked S.C. to touch her anywhere else than massaging her feet. S.C. had done this before.

[10] When she awoke her pants were down at her thighs and S.C. was on top of her with his finger in her vagina. She was shocked by what he was doing and told him to stop, which he did immediately. N.T. then asked S.C. to leave her house, which he did.

[11] At the time of the assault N.T. was 37 and S.C. was in his 50s. N.T. could not recall how many years she worked as an exotic dancer but she had worked as an E.A. in an advertising firm and as a teller at a bank before starting to work as a real estate agent. There had been occasions when she was short of money and S.C. would help her out financially. After the sale of her house she paid some money back to S.C., $2000 and she and her mother paid rent when they were staying with S.C. waiting for her new house to be finished.

[12] S.C. had massaged N.T.'s feet and her shins and legs previously. She could not recall if she had given him cream to massage her feet on this occasion but she had done so previously.

[13] N.T. did not complain to the police about S.C. sexually assaulting her until September 10, 2014. N.T.'s mother did not want N.T. to complain to the police. N.T.'s close friend was encouraging her to file a complaint. N.T.'s mother began to text S.C. about how she did not want N.T. to go to the police and there must be another way to resolve this issue. N.T.'s mother suggested to N.T. perhaps S.C. would pay for therapy with a psychologist. Prior to attending the police station N.T. and her mother met S.C. in the parking lot of Walmart and her mother asked S.C. for $10,000 to help cover the cost of a psychologist. S.C. refused to pay this money and later that day N.T. attended at the police station and filed a complainant.

[14] When S.C. was arrested he told the police officer, "I know why you're here, I made a mistake. I'm sorry. I called my lawyer already." S.C. provided a lengthy statement to the police where he admitted to massaging N.T. He told the police he was massaging "her tailbone, like her assbone – her ass – her cheekbones…her ass...it was kind of moist,… and my fingers were, like, going in there." When she told him he had to leave he said, "I'm sorry, Like, I don't know – I don't know what got into me." He told the police when he got home he sent her a text and said, "I'm so, so sorry" He later said in his statement, "Maybe I was tired. I wasn't maybe thinking. I don't know." Towards the end of his statement he told the officer, "I wasn't – I wasn't there – I wasn't there long. It's not that – it's not that I was there – I was there, like – like goin' at it, goin' at it and then she said, "Stop"…I just got there, you know what I mean,…it's not like I was, like, playing around in there and, you know what I mean, it was – it was in there and then it stopped there."

[15] S.C. did not testify on the trial but relied on his statement to the police, which was entered as a voluntary statement by the Crown. I found there was one act of digital penetration by S.C. of N.T.'s vagina, after N.T. had fallen asleep. When she awoke and told him to stop he did so immediately.

Position of the Parties

[16] The Crown is seeking a 9 month reformatory jail term to be followed by 18 months' probation. He is also requesting a 10 year SOIRA order and DNA order.

[17] Mr. Basile is seeking a conditional sentence of 6-9 months as the Crown proceeded by way of summary conviction or in the alternative, a 90 day intermittent sentence. The defence has no difficulty with the probation order or any of the ancillary orders being requested by the Crown.

Background of the Offender

[18] S.C. is 56 years of age, currently single, with no dependents. He has been previously married twice. His first marriage ended as a result of his wife committing suicide. His second marriage ended in divorce after he discovered his wife had been unfaithful.

[19] He has no criminal record. The character letters provided reflect this criminal behaviour on S.C.'s part is out of character and those who provided letters were shocked by his being found guilty of sexual assault.

[20] S.C. is described by family members, friends and co-workers as a hard-working, dedicated, caring and generous individual, who often goes out of his way to help others.

[21] S.C. is co-owner of a family run restaurant business located in York Region, which was started by his father in 1976. He has been in partnership of the business with his brothers since 1987. S.C.'s responsibilities are to procure the raw materials, prepare the sauces, pastas, dough and hand-cutting all of the meat. S.C. is described as an integral, irreplaceable and vital part of the daily operations of the business. S.C.'s brother, F.C., describes in his letter, part of Exhibit 3, how S.C. works seven (7) days a week in the business, commencing work at 8 a.m. preparing food before the restaurant opens at 10 a.m.

[22] S.C. was co-operative with the police upon his arrest although he did attempt to argue his conduct towards N.T. was accidental in that his fingers slipped while he was massaging N.T. I will deal with this aspect later in my reasons for sentence.

[23] The probation officer describes S.C.'s mental health not to be an area of concern as reported by S.C. and his family and friends. Based on the interview for the PSR, the probation officer advised he did not believe S.C. suffered from any sexual deviances, although S.C. indicated he was amenable to attend for counselling for sexual offending. It was the conclusion of the probation officer that S.C. is a manageable risk and someone who would likely benefit from community supervision.

Victim Impact Statement

[24] N.T. described how S.C.'s conduct has continued to act upon her, even 27 months later. She described how she trusted S.C. and he broke that trust. She has difficulty being alone, suffers from anxiety and has difficulty sleeping in her own home. Her lack of focus has caused her real estate practice to suffer.

[25] N.T. described being under the care of her doctor and she indicated she is slowly healing through therapy. N.T. has no plans or wish to re-establish her friendship with S.C. given his breach of trust towards her. N.T. expressed to the probation officer she had safety concerns about S.C. and commented she was "unsure of what was going on in his mind." She very much wanted him to process what he did to her was wrong and "would like for this not to happen to anyone again."

[26] Mr. Scott refers to N.T. still experiencing the fallout from S.C.'s behaviour towards her and submits this is an aggravating factor to consider on sentencing.

Mitigating and Aggravating Circumstances

[27] S.C. has strong family supports in place and a solid work history working in a family-owned restaurant business.

[28] He has never been in trouble or in contact with the police previously. The conduct he engaged in was described by those who know him well, family and close friends, as being out of character.

[29] Mr. Scott submits S.C.'s conduct towards N.T. is a breach of trust, given his close friendship with N.T. and the fact the sexual assault occurred in N.T.'s house. He argues this is an aggravating factor. Section 718.2(a)(iii) provides:

A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim.

[30] Strictly speaking, the conduct of S.C. does not fall squarely within the statutorily aggravating breach of trust described in s. 718.2(a)(iii) because when S.C. committed the offence he was not in the kind of position of trust discussed in the caselaw, such as, employer/employee; parent/child; doctor/patient. Nonetheless, S.C.'s behaviour did breach the trust N.T. placed in him because of their close friendship and I do consider this to be an aggravating circumstance.

[31] It is my view the reason it has been so difficult for N.T. to get past S.C.'s conduct toward her is because of the closeness of their friendship and the trust S.C. breached by violating N.T.'s sexual integrity.

[32] The fact N.T. was digitally penetrated by S.C. using one of his fingers while she was asleep is also aggravating, as this conduct is quite invasive and intrusive.

Sentence Imposed

[33] An important consideration is S.C.'s acceptance of responsibility for his actions towards N.T. As indicated at the outset of these reasons, S.C. pled not guilty to the charge of sexual assault he faced. After a two day trial I found Mr. C. guilty of that charge. Throughout the PSR the probation officer makes reference to S.C. denying responsibility for his actions and maintaining his touching N.T. in circumstances that violated N.T.'s sexual integrity was only an accident. Mr. Basile, on behalf of S.C., explained that S.C. did not appreciate his actions towards N.T. amounted to sexual assault. This was why there were a number of references in the PSR concerning S.C.'s lack of remorse. Mr. Basile wanted the Court to understand that S.C. now fully accepted responsibility for his actions towards N.T. and admits he sexually assaulted her. Mr. Basile submitted S.C. is not a sophisticated man and did not complete high school.

[34] I indicated during submissions it is my view the probation officer's comments were not appropriate given S.C. had pleaded not guilty to the charge, which was his right to have the Crown prove the charge against him beyond a reasonable doubt. I further advised Mr. Basile and S.C., it was my view S.C. could maintain his innocence at his sentencing hearing as he had a right to appeal my decision finding him guilty. However, it was Mr. Basile's position S.C. now acknowledges he touched N.T. in a manner that violated her sexual integrity without obtaining her consent in advance. S.C. recognizes N.T. could not consent to what he did when she was asleep. Mr. Basile indicated S.C. recognized he was giving up his right of appeal by admitting responsibility for his actions. When I asked S.C. if he had anything to say before I passed sentence, although he did not have to say anything, S.C. advised he wanted to address the court. S.C. apologized to N.T. and to her mother for his actions. He accepted what he did was wrong and he advised he had been in denial for a long time. After speaking at length with Mr. Basile, S.C. indicated he now knows what he did was wrong and he is sorry.

[35] This is a significant change in attitude on S.C.'s part. Having listened to Mr. Basile's submissions and from my observations of S.C., taking into account what he said, it is my view his acceptance of responsibility is sincere, as is his remorse for his actions towards N.T. It is my hope that if N.T. is advised of S.C.'s expression of remorse and his acceptance of responsibility, as she was not present on the date counsel's sentencing submissions were made, this will hopefully assist in her healing process.

[36] It is important to note that the Crown elected to proceed by summary conviction respecting the single charge of sexual assault facing S.C. This opens up the availability of all sentencing options for S.C. that would not otherwise be available had the Crown proceeded by indictment. Further, the police released S.C. on a Promise to Appear and an Undertaking from the officer in charge of the police station, with terms he was not to contact or communicate with the victim or attend within a certain distance of the victim's known place of residence, employment or education. In my view, this demonstrates the view of the police concerning the seriousness of the allegation against S.C. There have been no breaches by S.C. respecting any of the terms of his undertaking for more than 2 years and 9 months.

[37] Mr. Basile submits that the fact scenario in this case is not the worst and S.C. is clearly not the worst offender. He argues S.C. is not even a low risk to re-offend based on the PSR and the character letters filed. It is Mr. Basile's position all of the appropriate sentencing principles can be addressed by a conditional sentence. Based on S.C.'s background, lack of record and the fact he has strictly complied with the conditions of his undertaking, it is my view, S.C. is a low-risk to re-offend in the future.

[38] Mr. Scott argued in reply that a conditional sentence was not appropriate because of the aggravating circumstances which exist in this case.

[39] As a result of the Crown electing to proceed by summary conviction, if I determine a period of incarceration is appropriate, any sentence I impose will be below 18 months or less. Indeed, the Crown is only seeking a nine (9) month sentence. Consequently, I must consider the appropriateness of a conditional sentence pursuant to s. 742.1 of the Criminal Code.

[40] There are five prerequisites for the imposition of a conditional sentence:

1. The offender must be convicted of an offence that is not specifically excluded (e.g. sexual assault, when prosecuted by indictment).

2. The offender must be convicted of an offence that is not punishable by a minimum term of imprisonment.

3. The court must impose a sentence of imprisonment that is less than two years.

4. The safety of the community would not be endangered by the offender serving the sentence in the community.

5. The conditional sentence must be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.

[41] The facts of this case meet the first four pre-conditions. The Crown did not proceed by indictment, there is no minimum sentence applicable, the Crown is seeking a nine (9) month sentence and the safety of the community would not be endangered by S.C. serving the sentence in the community. It is my view the safety of the community would not be endangered by permitting S.C. to serve a custodial sentence in the community for the following reasons. S.C. has no criminal record and is currently 56 years of age. He has been gainfully employed for over 30 years in the same business of which he is a part-owner. Consequently, where the first four pre-conditions are met, in R. v. Proulx, 2000 SCC 5, at para. 127, #7, the Supreme Court directed that sentencing judges must give serious consideration to community based sentences. The only pre-condition remaining therefore is whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.

[42] The purpose of sentencing is set out in s. 718 of the Criminal Code. I am of the view it is important to indicate what this section sets out and the sections that follow because I believe this is where the applicable principles of sentencing are defined for criminal cases. I will preface what these sections set out by indicating in Canada revenge is not an appropriate sentencing principle. Offenders are not incarcerated for the purpose of establishing an equivalence between the loss of the victims and the sanction imposed by the Court. Rather, the Court is required to recognize the inherent worth and dignity of the offender and, having balanced the principles provided by the Criminal Code, determine a fit sentence in the circumstances of the case. This is our tradition in Canada, a tradition which has a long and respected history both in Canada and other free and democratic societies throughout the world.

[43] Nothing I do in terms of S.C.'s sentence will in any way undo what was done on September 7, 2014. S.C.'s behaviour towards N.T. occurred and it cannot be undone. It is my hope N.T. can move forward from today, put aside what S.C. did to her and not allow S.C.'s actions to continue to affect her life adversely.

[44] Under s. 718 of the Criminal Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing a just sanction. Any sanction imposed must be the result of a fair and balanced consideration of the need to:

(a) Denounce the unlawful conduct;

(b) Deter the offender, and others, from committing such an offence;

(c) Separate the offender from society, where necessary;

(d) Assist in the rehabilitation of the offender;

(e) Provide reparation for harm done to "victims", or the community; and

(f) Provide a sense of responsibility in the offender, while acknowledging the harm done to the "victims" and the community.

[45] The "fundamental principle" of sentencing pursuant s. 718.1 of the Code is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender." In R. v. Nasogaluak, 2010 SCC 6, the Supreme Court explained the dual role of restraint and censure that proportionality plays in sentencing offenders:

[42] For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. In this sense, the principle serves a limiting or restraining function. However, the rights-based, protective angle of proportionality is counter-balanced by its alignment with the "just deserts" philosophy of sentencing, which seeks to ensure that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused...Whatever the rationale for proportionality, however, the degree of censure required to express society's condemnation of the offence is always limited by the principle that an offender's sentence must be equivalent to his or her moral culpability, and not greater than it. The two perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary.

[46] As Rosenberg J.A. held in R. v. Priest, at para. 26:

The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.

[47] Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances, which I have set out above. This section also requires that a sentence be similar to other sentences imposed on similar offenders in similar circumstances, that the combined duration of consecutive sentences not be unduly long, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered.

[48] The nature of the sexual assault committed by S.C. upon N.T. involving digital penetration by S.C. on one occasion was clearly intrusive and more serious than a touching of the vaginal area, for example over clothing as in R. v. P.R., [2013] O.J. No. 1330 (O.S.C., Durno J.) or R. v. Barnes, (O.C.J., West J.), unreported January 8, 2014. As a result of the more serious nature of the sexual assault I recognize the sentencing principles of deterrence and denunciation become more significant. However, I am also mindful of the fact S.C. is a first offender, although not a youthful first offender, and as a result it is my view, the principle of rehabilitation is also an important sentencing principle in this case (see R. v. Priest, supra; R. v. Stein; and R. v. Dubinsky, at para. 1-2). The Ontario Court of Appeal has held "it is an error to focus almost exclusively on general deterrence and fail to consider individual deterrence and rehabilitation, especially when sentencing a first offender" (R. v. Batisse, [2009] O.J. No. 459 (C.A.) at para. 34).

[49] In R. v. Proulx, supra, at para. 22, the Supreme Court held a conditional sentence is a "punitive sanction capable of achieving the objectives of deterrence and denunciation." In para. 127, #8, the Court held:

A conditional sentence can provide significant denunciation and deterrence. As a general matter, the more serious the offence, the longer and more onerous the conditional sentence should be. There may be some circumstances, however, where the need for denunciation or deterrence is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct or to deter similar conduct in the future.

[50] A conditional sentence is in principle, although not always in practice, available for all offences where the prerequisites are met, no specific or category of offence is presumptively excluded from the conditional sentence option: R. v. Proulx, supra, at paras. 79-81 (see also R. v. Jacko, 2010 ONCA 452, at para. 69). Therefore, a conditional sentence, depending on the severity of the conditions, may nonetheless be consistent with the fundamental purpose and principles of sentencing, even where deterrence and denunciation are the predominant sentencing principles (see Jacko, supra, at para 71).

[51] Lamer C.J., in Proulx, supra, at para. 100, explained that a conditional sentence can achieve both punitive and restorative sentencing objectives:

To the extent that both punitive and restorative objectives can be achieved in a given case, a conditional sentence is likely a better sanction than incarceration. Where the need for punishment is particularly pressing, and there is little opportunity to achieve any restorative objectives, incarceration will likely be the more attractive sanction. However, even where restorative objectives cannot be readily satisfied, a conditional sentence will be preferable to incarceration in cases where a conditional sentence can achieve the objectives of denunciation and deterrence as effectively as incarceration. This follows from the principle of restraint in s. 718.2(d) and (e), which militates in favour of alternatives to incarceration where appropriate in the circumstance.

[52] The principle of restraint set out in s. 718(2)(d) and (e) has taken on a new prominence as a result of the introduction of conditional sentences pursuant to s. 742.1. In R. v. Gladue, at para. 40, Cory J. said:

... The availability of a conditional sentence of imprisonment, in particular, alters the sentencing landscape in a manner which gives an entirely new meaning to the principle that imprisonment should be resorted to only when no other sentencing option is reasonable in the circumstances. The creation of the conditional sentence suggests, on its face, a desire to lessen the use of incarceration. The general principle expressed in s. 718.2(e) must be construed and applied in this light.

[53] As I indicated above, S.C. has been subject to conditions of release on an undertaking and he has had no further involvement with the police since his arrest in September of 2014. He has not had any contact with the victim or her mother. In my view, this demonstrates the fact he is very likely to comply with a court order, such as a conditional sentence. Further, this supports the PSR assessment that S.C. is a low risk to re-offend.

[54] Based on the victim impact statement of N.T., Exhibit 1, S.C.'s conduct towards N.T. continues to impact her life as she continues to receive therapy and indicates she is afraid to be alone. She described S.C.'s conduct as breaching her trust, which has continued to affect her ability to trust others and to develop long lasting relationships. As discussed above, this is an aggravating circumstance of S.C.'s sexual assault, along with the intrusiveness of his conduct.

[55] I was provided a number of sentencing cases involving sexual assault, which reveal sentences ranging from conditional discharges to suspended sentences and probation to conditional sentences, some involved employers, where there was a position of trust in existence (R. v. Kang, [2004] O.J. No. 3629 (O.C.J.) and R. v. Pecoskie, [2000] O.J. No. 1421 (S.C.J.), upheld on appeal) and some where the conduct was significantly more serious that the instant case, which involved sexual intercourse (R. v. Killam, R. v. Sampson, [2008] O.J. No. 209 (O.S.C.) and R. v. Nikkanen). Other decisions provided for short reformatory sentences, R. v. Thiara, [2004] O.J. No. 730 (S.C.J.) and R. v. Rae, [2007] O.J. No. 1832 (S.C.J.)).

[56] In R. v. Killam, supra, Doherty J. held that generally speaking conditional sentences, even those which impose significant restrictions on the offender's liberty, do not have the same denunciatory effect as a period of incarceration. "Incarceration remains the most formidable denunciatory weapon in the sentencing arsenal" (see Killam, at para. 13). In Killam, a number of young adults were partying at a small cabin on a beach. The accused was permitted to sleep in the cabin because he was known to everyone and was trusted. On the second night the victim awoke to discover the accused having sexual intercourse with her. She had not consented. The sentence imposed was a conditional sentence of two years less a day. The facts in Killam are significantly more serious than in this case yet the Court of Appeal did not overturn the conditional sentence.

[57] It is important to note that a conditional sentence can be of longer duration than a jail sentence and impose restrictions for a longer period of time. In fact, in Proulx the Supreme Court indicated where a conditional sentence is consistent with the fundamental purpose and principles of sentencing and the more serious the offence and the greater the need for denunciation, "the longer and more onerous the conditional sentence should be" (at para. 106).

[58] I take into consideration the letter from S.C.'s brother, Exhibit 3, Tab 1, which sets out the detrimental impact to the family run restaurant business if S.C. is sentenced to a period of incarceration. S.C. is described as being "vital, irreplaceable and necessary part of the business." He is the Head Chef, who is responsible for the daily operations of the restaurant, in charge of food and supply purchases, organizing catering orders and large party events, He also is responsible for hand cutting the meat on a daily basis.

[59] I am of the view that on a careful balancing of all of the relevant factors neither a community based sentence with onerous conditions nor a custodial sentence as proposed by the Crown can be said to be unfit. In those circumstances, what tips the balance between the two alternatives is the important principle of restraint that underlies s. 742.1, (see R. v. Wismayer, at paragraphs 67-68 and R. v. Proulx, at para. 100). Further, it is my view the principles of general deterrence and denunciation can be properly addressed by a 12 month conditional sentence with restrictive conditions involving house arrest and community service, "so that it is not 'life and business as usual' for the offender" (see R. v. P.R., supra, at para. 124). Finally, it is my view the principle of rehabilitation and reparations to the community together with the promotion of a sense of responsibility on S.C.'s part, can also be best addressed through a conditional sentence as opposed to a jail sentence. As I indicated above, it is significant that S.C. has had a substantial change in his mindset respecting his actions towards N.T. His acceptance of responsibility and what I found to be sincere remorse through his recognition of how he violated N.T.'s sexual integrity by engaging in sexual behaviour after she had fallen asleep demonstrates and supports what the PSR describes as there being a low risk to re-offend.

[60] Consequently, it is my view a conditional sentence in the circumstances of this case can and does meet all of the five prerequisites set out in s. 742.1 of the Criminal Code. I will discuss with counsel the restrictive conditions I anticipate imposing respecting this conditional sentence.

Conditional Sentence Conditions

[61] S.C. will be subject to the following statutory conditions:

1. Keep the peace and be of good behaviour;

2. Appear before the Court when required to do so;

3. Report in person to a supervisor immediately and thereafter report when required by the supervisor and in a manner directed by the supervisor;

4. Remain in Ontario unless you have prior written permission from the Court or the supervisor to leave the province;

5. Notify the Court or supervisor in advance of any change of name or address and promptly notify the Court or supervisor of any change in employment or occupation.

[62] Additional conditions:

1. Residence

Live at a place approved of by the supervisor and not change that address without obtaining the consent of the supervisor in writing in advance.

2. House Arrest

This home confinement condition will be in effect for the first 6 months of the sentence.

The Electronic Supervision program has been ordered during your home confinement and you are to remain in your residence at all times:

EXCEPT

i. for three hours on Sundays between 1 p.m. to 4 p.m., in order to acquire the necessities of life;

ii. for any medical emergencies involving you or any member of your immediate family (father, siblings);

iii. for purposes of employment at San Antonio Foods, Woodbridge, Ontario, Monday to Friday, between hours of 8 a.m. and 4:30 p.m., and on Saturday, between hours of 8 a.m. and 12 a.m.;

iv. for travel directly to and from or being at San Antonio Foods and when at work not to leave the restaurant;

v. for travel directly to and from or being at religious services;

vi. for travel directly to and from or being at assessment, treatment or counselling sessions;

vii. for travel directly to or from and performing community service;

viii. for travel directly to and from or at scheduled meetings with your supervisor;

ix. for travel directly to and from or at scheduled medical or dental appointments;

x. you will confirm your schedule in advance with the supervisor setting out the times stipulated above or those agreed to with your supervisor, which will be put into a letter by your supervisor and you will carry it on your person when outside your residence; and

xi. with the prior written approval of your supervisor respecting anything not covered by the above conditions, which arise unexpectedly.

3. Home Confinement Compliance

During your period of home confinement:

a. Do not change your place of residence without first obtaining the written permission of your supervisor;

b. you must present yourself at your doorway upon the request of your supervisor or a peace officer for the purpose of verifying your compliance with your home confinement condition.

4. Electronic Supervision Program

1. You shall report immediately to Supervisor office in the courthouse for the purpose of arranging your enrollment in the Electronic Supervision Program;

2. You shall participate and abide by the rules and regulations of that program as required by your Conditional Sentence Supervisor and/or designated Electronic Supervision Resource Officer for the purpose of monitoring your house arrest, residence restriction, etc;

3. You shall be placed on Electronic Supervision for the period of six (6) months;

4. You shall permit the Ministry of Community Safety & Correctional Services staff and/or persons who are authorized by the Ministry of Community Safety and Correctional Services associated with the Electronic Supervision Program to enter your residence for the purpose of setting up, installing, maintaining, repairing or removing the Electronic Supervision Program equipment;

5. You shall make yourself available by phone or in person as may be required at any time during house arrest/home confinement;

6. You shall reside at an address approved by your Conditional Sentence Supervisor and/or designate and not change your address without prior written permission of your Supervisor;

7. You shall permit Ministry of Community Safety & Correctional Services staff and/or police services in your residence during the investigation of any alerts; either technical or compliance issue, generated while on the Electronic Supervision Program;

8. You must remain in your own residence except for purpose of employment, medical appointments, dental appointments, medical emergencies involving yourself, siblings or father, religious services and legal obligations regarding compliance with this conditional sentence (counselling, community service, court attendances or meetings with your supervisor).

5. Curfew

Following your home confinement you will be subject to a curfew for the remainder of this Conditional Sentence:

Remain in your residence or on the property of your residence daily between the hours of 9 p.m. and 6 a.m.

EXCEPT

1. for any medical emergency involving you or any member of your immediate family (father, siblings);

2. The period of curfew is not subject to the Electronic Supervision Program.

6. No Contact/Communication/Attendance

1. Do not contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means, with N.T. or her mother, V.T. EXCEPT: in the presence of or through legal counsel and court proceedings.

2. Do not be within 100 metres of any place where you know any of the persons named above to live, work, go to school, worship, frequent or any place you know them to be EXCEPT for required court attendances.

7. Counselling and Treatment

1. Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the supervisor and complete them to the satisfaction of the supervisor. (Consideration should be given to programs addressing sexual violence and understanding of consent.)

2. You shall sign any release of information forms as will enable your supervisor to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed.

3. You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed.

8. Community Service

Perform 150 hours of community service work on a rate and schedule to be directed by the supervisor. The community service is to be started during the conditional sentence and must be completed within the first nine months of the start date of your probation order, which follows the conditional sentence order.

Probation Order

[63] The Conditional Sentence order is to be followed by two (2) years of probation with the following terms:

1. Statutory terms, including keep the peace and be of good behaviour;

2. Report to probation officer as required;

3. The reporting condition under the probation order ends when you have satisfied your probation officer that you have completed all your counselling and completed all of your community service hours;

4. Do not contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means, with N.T. or her mother, V.T. EXCEPT in the presence of or through legal counsel or court proceedings;

5. Do not be within 100 metres of any place where you know any of the persons named above to live, work, go to school, worship, frequent or any place you know them to be EXCEPT for required court attendances;

6. Continue counselling if not yet completed;

7. You shall sign any release of information forms as will enable your supervisor to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed;

8. You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed;

9. Complete remainder of community service hours commenced during conditional sentence order, if necessary, and, remaining community service hours must be completed within first nine (9) months of commencement of probation.

Ancillary Orders

[64] There will also be a SOIRA order for 10 years.

[65] There will also be a s. 110 weapons probation for a period of 5 years.

[66] Finally, this is an appropriate case for a DNA order as the offence of sexual assault is a "primary designated offence" pursuant to ss. 487.04 and 487.051.

Released: June 29, 2017

Signed: Justice Peter C. West