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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(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) 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 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.

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: 2018-08-07

Court File No.: Central East Region: Oshawa Courthouse 16-37828-00

Between:

Her Majesty the Queen

— AND —

Christopher Delaney

Before: Justice Peter C. West

Guilty Plea entered: April 17, 2018

Sentencing Submissions Heard: May 30, 2018

Oral Reasons for Sentence given: July 3, 2018

Sentence Imposed: August 7, 2018

Counsel:

• Mr. D. Slessor — counsel for the Crown
• Mr. B. Scott — counsel for the defendant

Reasons for Sentence

WEST J.:

Introduction

[1] The accused was charged with sexually assaulting RD on December 17, 2016. He pleaded guilty to this charge on April 17, 2018. The Crown proceeded by way of summary conviction in respect of this matter.

[2] The Crown submitted a custodial sentence in the reformatory of 9 to 12 months, to be followed by three years' probation, will address the sentencing principles of denunciation and deterrence. Mr. Scott, on behalf of the accused, submitted the appropriate sentence would be a conditional sentence, although he did not indicate the length, or in the alternative an intermittent sentence, which would be served on weekends. I advised defence counsel it was my view that an intermittent sentence, the maximum length allowed being 90 days, would be completely inappropriate having regard to the factual circumstances of this case and would not adequately address the principles of deterrence and denunciation.

[3] The only issue to be determined on this sentencing is whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code, a prerequisite of s. 742.1.

[4] An agreed statement of facts was read into the record by the Crown on April 17, 2018 after the accused entered his plea of guilty. A Presentence Report (PSR) was ordered and sentencing was adjourned to May 30, 2018. The PSR was marked as Exhibit 1. A victim impact statement was provided by RD and marked as Exhibit 2. A psychological report by Dr. George Stones, dated May 21, 2017, was filed by Mr. Scott and marked as Exhibit 3. A number of photographs of the accused were filed as Exhibit 4. A number of character letters (5) were collectively marked as Exhibit 5. The accused read a letter of apology he had written to RD, which was marked as part of Exhibit 5. The defence filed a casebook, containing 14 sentencing decisions. The Crown provided two cases.

Factual Background

[5] The accused and his girlfriend of three years, Ashley Skiffington, were invited to a Christmas party hosted by MD and RD. The accused was not a friend of theirs, rather he and his girlfriend had previously met MD's brother, LD. LD's house apparently adjoins MD's home. The party was held on the two properties that had several trailers on them, as some of the guests were staying the night and sleeping in the trailers.

[6] The accused drank an excessive amount of alcohol over the course of the evening and was intoxicated. As the evening wound down people began to go home or go to sleep in the trailers or available bedrooms. When the facts were read by the Crown an additional fact was included, not in the Agreed Statement of Facts, namely, that powdered cocaine was also consumed by the accused during this evening.

[7] The accused made several sexual advances towards women who were at the party and/or who had gone into one of the trailers to sleep. He went into a trailer in which JJ was sleeping. He told her to move over twice and tried to climb into bed with her. She woke up and told him to leave, which he did. He then approached TK and told her that he and his wife were swingers and he wanted to take her into a room and have intercourse with her (his language was much more explicit and graphic, however it was not included in the agreed statement of facts). When she told him "No," he offered to perform oral sex on her. She told that was not going to happen and for him to go away. The accused left her.

[8] RD was asleep in her bed when she was awakened by the accused sticking his fingers in her vagina. She immediately pushed him away and told him to leave. He persisted. He grabbed her buttock and said, "Come on, I just want to get it on." RD pulled the blankets over her shoulder in an effort to put something between herself and the accused. His reaction was to say he would just "eat her" instead. RD then heard a sound in the hallway outside her bedroom, which she believed startled the accused, as he immediately left the bedroom.

[9] RD lay in her bed in shock and then got up to find her husband. She told him what happened. As a result of what his wife told him had happened, MD found the accused sleeping in a bedroom with Ms. Skiffington. He told them to get up and leave their home. MD had a children's plastic bat, which he used to strike the accused several times, as well as using his fists. He caused a black eye to the accused. Three photographs of the accused were marked as Exhibit 4, which depict a bruise around his left eye and a thin cut about 1 ½ to 2 inches long on his forehead between his two eyebrows. The agreed statement of facts indicated a witness who observed the accused immediately after this assault, described his face as "mangled," although this description does not really accord with the photographs. No medical reports were filed by the defence and the accused declined to pursue assault charges against MD.

[10] In the days following the accused's sexual assault of RD, Ms. Skiffington sent her a text message, which read, "Hey so sorry about the other night. Chris feels terrible. It was a shitty situation." The accused also sent a text to RD, "I just wanted to say that I'm sorry for sat night ! I was totally fucked up and off side. There is no excuse for it!!" There were no dates on the text messages.

[11] The above facts were contained in the Agreed Statement of Facts as well as in comments made by the Crown as he related the facts supporting the charge of sexual assault. I also received the psychological report of Dr. Stones, Exhibit 3, which included a significantly different version of the facts according to the accused, which in a number of aspects could be read as the accused attempting to justify or mitigate his behaviour towards RD. In my view there was a significant omission in respect of his attempts to have sexual relations with two other women before he went into RD's bedroom. He did not advise Dr. Stones of these exploits prior to his entering RD's bedroom. Further, he told Dr. Stones when RD requested that he leave her room he left immediately. I will discuss in greater detail my concerns surrounding this different version of the events of the early morning on December 17, 2016, later in my reasons for sentence.

Victim Impact Statement

[12] RD read her victim impact statement in court and it was marked as Exhibit 2. She recounted how she and her husband hosted a Christmas party at their home and the accused and his girlfriend attended as friends of her brother-in-law. She had very little interaction with the accused or his girlfriend during the evening. To her horror and surprise she was awakened by "Chris Delaney shoving his fingers inside of [her] vagina and talking about fucking [her]." Part of her continuing fear was the assault could have easily been rape if someone in the hallway had not distracted him.

[13] She described feeling helpless and how the accused's actions shattered her belief in herself as a "strong person." She is no longer trusting of people and has withdrawn from her children, her husband and family and friends. She does not feel comfortable in her own home. She continues to suffer from depression as a result of the accused's actions. She was not able to be intimate with her husband for eight months and it is still difficult.

[14] The fact this matter has dragged on for over 17 months has been very difficult for RD. The fact it was not convenient for him to enter his guilty plea earlier is "sickening" to her. RD described how she was upset by the fact the accused was able to almost immediately fall asleep after sexually assaulting her in her bedroom. She still is uncomfortable sleeping in her own bed.

[15] RD described the roller coaster ride of preparing for trial because trial dates were set and then being told the accused was going to plead guilty but having to wait months for that to occur. She is currently behind on completing her degree and has had difficulty in her job performance because of how the accused's actions impacted her. She missed school concerts for her children because she found it difficult to be at social events.

[16] RD described feeling she was serving a 17 month sentence from the night she was sexually assaulted because of the delay. The accused's conduct has had and continues to have a significant impact on RD.

[17] RD was also contacted by the probation officer and she advised "her victimization has impacted her mentally, emotionally and psychologically. She has difficulty trusting others. She has experienced 'depressed states' and is currently been prescribed anti-depressants by her family doctor." She said she knew of the accused's swinging lifestyle but has no explanation for why the accused would assume it was okay to conduct himself as he did towards her as she and her husband have a monogamous lifestyle.

Personal Background of the Offender

[18] Christopher Delaney is 45 years of age, separated from his first wife, with whom he has a son. He is currently in a common law relationship with Ashley Skiffington for the past three years. Ms. Skiffington has a 14 year old daughter from a previous relationship.

[19] The accused and Ms. Skiffington, at the time of the offence, were actively involved in a swingers lifestyle and belonged to a "swinger's club" whereby they swapped intimate partners and engaged in group sex. Both described how they have not had any recent involvement in this lifestyle and no longer plan to partake in any future activities. The accused expressed to the probation officer that he recognized the offence occurred as a result of his involvement in the swinger's lifestyle and his use of alcohol and drugs, namely cocaine, on the night in question.

[20] The accused did not complete high school and started to work at a young age. The accused now owns his own roofing company, CD Roofing and Construction Limited since 1994 and employs over 40 employees and sub-contractors.

[21] The accused described himself as a social drinker, however, he conceded alcohol played a role in his offending and claimed to the probation officer he has not consumed any alcohol since the incident. He claimed alcohol has never been a problem but described his father as an alcoholic and binge drinker. He also described his brother as a heavy drinker.

[22] He denied using any illicit substances since the date of the offence but admitted he had a history of using marihuana from ages 18 to 21 and has used cocaine. He maintained his use of cocaine played a role in the commission of this offence. Ms. Skiffington also confirmed their consumption of alcohol and cocaine on the night in question. She maintained it was the accused's consumption of these substances and his lack of judgment that contributed to his committing the sexual assault.

[23] The accused told the probation officer he made "a poor choice" and he "should never have conducted himself in such a manner." He accepted responsibility for his actions and expressed empathy for the victim.

[24] The accused advised the probation officer he had his first sexual encounter at age 13. He told her he has had approximately 100 sexual partners, including one night stands and casual encounters. He admitted viewing sexual material online and has attended adult entertainment venues in the past. He has engaged in threesomes and group sex.

[25] The accused advised he had seen a psychologist, Dr. George Stones, for an assessment and according to the report that was prepared he did not meet the criteria of any psychopathology, including major mental disorders, personality disorders or paraphilia. The probation officer quoted from Dr. Stones' report: "while the index offence was clearly hurtful and represented grossly impaired judgment and a breach of trust, his behaviour appears to have been an anomalous break from an otherwise fundamentally prosocial lifestyle anchored by a psychological healthy personality profile."

[26] The accused has no criminal record and is a first time offender. He has lived as a productive, contributing member of the community for all of his life until this incident occurred.

Sentencing Principles to be Applied

[27] The purpose of sentencing is set out in s. 718 to 718.2 of the Criminal Code. I am of the view it is important to indicate what these sections set out because I believe this is where the applicable principles of sentencing are defined for criminal cases.

[28] 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.

[29] 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.

[30] 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.

[31] Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances (s. 718.2(a)). A number of statutorily deemed aggravating circumstances are set out in this section, some of which are applicable to the factual circumstances of the charge the accused was convicted of.

[32] Section 718.2(a)(iii) provides that evidence the offender, in committing the offence, abused a position of trust or authority in relation to the victim is statutorily an aggravating circumstance of the offence.

[33] Finally, s. 718.2(a)(iii.1) provides that evidence the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, is statutorily deemed to be an aggravating circumstance for the purposes of sentencing.

[34] Section 718.2 also requires that a sentence be similar to other sentences imposed on similar offenders in similar circumstances (s. 718.2(b)), that the combined duration of consecutive sentences not be unduly long (718.2(c)), that an offender not be deprived of liberty if less restrictive sanctions may be appropriate (s. 718(d)), and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders (s. 718.2(e)).

Mitigating Circumstances

[35] The accused eventually accepted responsibility for his actions by pleading guilty on April 17, 2018, 16 months after he sexually assaulted RD. This is therefore not an early guilty plea. The information reveals trial dates were set and RD spoke in her victim impact statement of having to relive the horror of the early morning hours when she was awakened by the accused sexually violating her. The presentence author accepted that the accused had accepted responsibility for his actions and was remorseful. It is my view his guilty plea can be viewed as a demonstration of remorse and acceptance of responsibility, however, the lateness of his guilty plea, to some extent, reduces the amount of mitigation to be considered. There was also the fact that the accused delayed his guilty plea because the timing was not convenient for him, as he had a house he needed to finish building. The other side of the coin was RD had to wait 16 months before she knew she would not be testifying at a trial and this increased the impact of the accused's conduct on her life.

[36] The accused provided a letter of apology for his conduct towards RD, which expresses his remorse for the pain he caused her. He indicated in this letter he knew that he had to take responsibility for his criminal offence and accept the outcome and face the consequences. He further indicated he recognized that the swinger lifestyle, drugs and alcohol were a recipe for disaster.

[37] In the end, it is my view the accused is entitled to some mitigation for his guilty plea and I accept the probation officer's opinion that he has accepted responsibility for his actions. Unfortunately, there is still an element of selfishness on the accused's part, which ran through his actions on the early morning of December 17, 2016, as well as his acceptance of responsibility occurring when it was best for him, without much thought concerning how the delays would impact RD.

[38] The accused is a first offender, although he is not a youthful offender at the age 45. It is my view this is an important mitigating circumstance, which brings into play the sentencing principle of restraint (s. 718.2(e)).

[39] The accused has been a contributing member of the community. He began fulltime employment when he was still of high school age and has built up a roofing and construction company, which employs over 40 employees and sub-contractors. He started this business in 1994. This is a mitigating circumstance.

[40] Several letters of good character were provided on behalf of the accused, which all attest to his being an honest, successful businessman, who can be trusted by his word. He is described as being generous and charitable. He is also described as a devoted father and family man. A number of the letters indicate he is genuinely remorseful for his actions. These letters from his friends and business associates expressed disbelief that the accused faced a charge of sexual assault and that it was out of character.

[41] The accused attended for a psychological assessment with Dr. George Stones. He was administered a comprehensive test battery consisting of numerous psychological tests. Dr. Stones determined that the accused was not suffering from any psychopathology, including major mental disorders, personality disorders or paraphilias. The results of his testing established the accused's actuarially determined risk for general, sexual and violent recidivism to be very low.

[42] Finally, the accused was struck repeatedly by RD's husband, causing a black and bruised left eye and a 2 inch laceration in the middle of his forehead. I find this is also a mitigating factor that I should take into account.

Aggravating Circumstances

[43] The circumstances surrounding the accused's sexual assault of RD exhibit a number of aggravating features.

1. Nature of the Sexual Assault

The sexual assault involved the accused using his fingers to digitally penetrate RD's vagina. The accused's sexual assault involved penetration, which is far more intrusive than touching or fondling.

2. Victim Was Asleep

RD was asleep in her bed. In my view this was a serious aggravating circumstance because someone who was not conscious cannot consent to sexual activity. She was not in a position to say no. RD was therefore a vulnerable victim as she was unable to protect herself from the accused's sexual assault. The accused did not wake up RD and ask if she was interested in engaging in sexual activity. When she was awakened by his sexual assault she heard him telling her he was "going to fuck her." In my view this is a further aggravating circumstance in terms of the horror and trauma caused to RD.

3. Location in Victim's Home

The sexual assault occurred in the sanctity of RD's bedroom, in her home. This was a place where RD had every right to feel safe and protected.

4. Persistence Despite Refusal

The accused persisted in sexually assaulting RD by grabbing her bare buttocks, despite expressing to him to stop what he was doing and leave her bedroom. When she told him again to stop touching her and to leave her bedroom, the accused did not leave and instead asked RD if he could "eat her out." In my view this sequence of events demonstrated the accused's selfishness.

5. Lack of Prior Relationship

It is also aggravating that the accused did not know RD and had not really interacted with her during the evening before she left the party to go to her bedroom to go to sleep. The accused knew she had gone to her bedroom to go to sleep. This was a Christmas party where the accused and his girlfriend had been invited by RD's brother-in-law. Yet he went into the hostess' bedroom, where he knew she was asleep because she had retired sometime earlier.

6. Breach of Trust

The Crown argued the accused had been invited into the D's home and by his actions of entering RD's bedroom he breached the trust placed in him by the Ds. While I do not believe this is, strictly speaking, a breach of trust as contemplated by s. 718.2(a)(iii), there is certainly a level of trust given to a guest who is invited into someone's home. To that extent the accused breached this implied trust given to anyone invited into a person's home. It is interesting to note that Dr. Stones referred to the accused's conduct as being a breach of trust in his report. This is an aggravating circumstance.

7. Pattern of Sexual Advances

A further aggravating circumstance is the fact the accused attempted to have sex with two other women before entering RD's bedroom. In the first bedroom he entered he found a woman sleeping and he attempted to get into bed with her but she awoke and told him to leave immediately, which he did. He approached a second woman in the house and told her that he and his wife were swingers and he wanted to take her to a room and have sexual intercourse with her. When she told him she was not interested he persisted and asked her to let him perform oral sex on her. Once again she told him this was not going to happen and for him to leave her alone, which he finally did.

8. Significant Impact on Victim

Finally, this has had a significant and continuing impact on RD. She no longer trusts people. The accused's actions have caused her to be depressed, unable to pursue her schooling and her job performance has suffered. It has affected her relationship with her children and husband in every aspect of her life. She does not feel comfortable in her own home and has not slept in her bedroom since this incident occurred. The mental and emotional toll has been and continues to be immeasurable. It is clear the impact on RD has been significant and this is an aggravating factor I must consider pursuant to s. 718.2(a)(iii.1) of the Code.

Sentence Imposed

[44] I was provided with numerous cases by the defence and the Crown respecting offences involving sexual assault, in an attempt to establish an appropriate range of sentence for similar offenders in similar circumstances.

[45] It is important to note however, that no two cases are exactly alike, and as emphasized by Chief Justice Lamer in R. v. M. (C.A.), at paragraph 92:

Sentencing is an individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise or academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the "just and appropriate" mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred.

[46] Consequently, a proportionate sentence in each case, in large measure, is determined by the specific and unique facts and circumstances surrounding the offender and the commission of the offence.

[47] Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant sentencing principles and objectives. Individual cases may fall within or outside the range. To consider a range of sentence as creating a de facto minimum sentence misses the point and ignores the fundamental principle of proportionality because individual circumstances matter. There is no "one size fits all" and sentencing is not an exact science. It is an individualized process (see R. v. D.D., at para. 33; R. v. Jacko, 2010 ONCA 452, at para. 90 and R. v. Lacasse, 2015 SCC 64, at paragraphs 57 to 58 and 60 to 61).

[48] As I noted earlier, the Crown is seeking a custodial sentence in the range of 9-12 months, followed by probation and the defence is seeking a conditional sentence but did indicate the length of that sentence. Before dealing with the appropriate sentence to be imposed in this case I want to address the cases provided by counsel.

[49] Mr. Scott provided me with 14 cases dealing with a wide variety of sexual assault conduct involving intercourse (R. v. Nikkanen, where a custodial sentence of 18 months was varied to a conditional sentence and R. v. Killam, where the Court of Appeal did not overturn the conditional sentence because it was at the low end of the range, at that time), digital penetration of the vagina or fondling of the vagina, over clothes (R. v. P.R.) or skin on skin (R. v. Barnes). A number of the decisions in the defence casebook dealt with cases decided prior to the introduction of mandatory minimum sentences or when conditional sentences were still available for indictable offences (R. v. Nikkanen and R. v. Killam, where Justice Doherty afforded deference to the sentencing judge but indicated "a period of incarceration would have been more appropriate.") and frankly, many of the cases were prior to the escalating concerns about the prevalence and seriousness of sexual abuse where the complainant is incapacitated by alcohol/drugs or is asleep and unable to consent. The following summarizes the cases I have not referred to above:

a) R. v. A.A.

21 year old accused, who was dating the older sister of the victim, approached victim's bed while she was sleeping and twice rubbed his hand up and down the victim's back before running two fingers from her back to her front touching her vagina over her underwear. The sentencing judge imposed a suspended sentence and probation because she was told by counsel a conditional sentence, under s. 742.1, was legally unavailable at the time even though it was available. Summary conviction appeal judge did not interfere with the sentence based on fresh evidence. It should be noted a conditional sentence would not be available today because of the minimum mandatory sentences whether Crown proceeds summarily or by indictment and the current precedents dealing with sexual assaults involving children.

b) R. v. Pecoskie

A conditional sentence would no longer be available given the current s. 742.1 of the Code. Further, there are no facts provided in the Court of Appeal judgment but the Court indicated at para. 15, "While we would not necessarily have imposed a conditional sentence at first instance, we are of the view that, having regard to the very restrictive conditions that formed part of this sentence, the narrow circumstances in which appellate intervention is warranted and the delay in the perfection and hearing of this appeal…we would not interfere with the appellant's sentence."

c) R. v. Akbari

This case involved the accused attempting to touch the 13 year old victim's genitals but she pushed his hand away several times. He then moved his hand to her chest and rubbed it. She fled where she was sitting on a couch to her bedroom. As noted earlier a conditional sentence is no longer available because there is a mandatory minimum sentence whether the Crown proceeds summarily or by indictment and precedents dealing with sexual assaults involving children.

d) R. v. Smith

This was an appeal of an 16 month conditional sentence imposed by the sentencing judge on a 25 year old accused who sexually assaulted an 18 year old homeless victim when she was asleep and he had intercourse with her. Justice Campbell overturned the conditional sentence and imposed a nine month custodial sentence. I will deal with this case in greater detail later in my reasons.

e) R. v. Giovanelli

In this case, after a trial, the accused, the owner of the restaurant where the victim worked, at a Christmas party accosted the victim outside the women's washroom in the basement of the restaurant and kissed her, touched her breasts over her clothing and inserted his fingers into her vagina without her consent. The Crown proceeded by summary conviction. The sentencing judge rejected a conditional sentence as not properly addressing the principles of denunciation and deterrence and imposed a 90 day intermittent jail sentence.

f) R. v. Scinocco

After a trial the trial judge found the accused had expressed interest throughout a night of consuming alcohol of having sex with the victim. When she was asleep he removed her underwear, touched her vagina and attempted to put something or a part of himself into her vagina. Had she not awakened and verbally and physically resisted the accused, the sexual assault would have continued. The sentencing judge declined to impose a conditional sentence due to the aggravating circumstances, lack of remorse and the absence of personal mitigating circumstances that might have supported a conditional sentence. A custodial sentence of 12 months was imposed.

g) R. v. S.C.

After a trial, accused finally recognized victim could not consent when she was asleep. The accused and the victim were long-time friends, he assisted the victim in her move to a new house, after the move they were watching TV, the victim asked accused to massage her feet and legs with cream she provided. The victim was tired and fell asleep and the accused massaged victim's buttocks and digitally penetrated her vagina causing the victim to awaken. Accused stopped his assault immediately when victim told him to stop and he left the house. He sent a number of texts apologizing for his conduct. A 12 month conditional sentence was imposed with probation to follow.

h) R. v. Wong

Guilty plea to assault, sexual assault involving digital penetration while she was asleep and cunnilingus, and forcible confinement. Sentences imposed for assault, suspended sentence and three years' probation; for sexual assault 77 day intermittent sentence and 13 days credit pre-trial custody and a 12 month conditional sentence for forcible confinement to be served concurrently with the intermittent sentence.

[50] The Crown submitted two cases:

a) R. v. M.R.

After trial, trial judge found 64 year old accused, owner of aviation-related businesses at Oshawa airport, the victim worked for one of businesses, made number of mistakes and job security in jeopardy. Accused invited the victim to a meeting at the accused's residence, which involved dinner and drinks. Victim became drunk and threw up on his clothes. His clothes ended up in the laundry, the victim passed out on the couch, when he woke up and discovered underwear around his knees. Accused was standing beside him fondling victim's genitals and squeezing his buttocks, the accused penetrated the victim's anus with something, presumably a finger. Crown had proceeded by indictment and sought 18 months to two less a day in reformatory. Defence sought nine to twelve month sentence. Trial judge imposed 14 month sentence; a conditional sentence was not available because Crown proceeded by indictment.

b) R. v. Micula

Accused spent an evening with victim drinking and using cocaine. The victim passed out. The accused undressed her and performed oral sex on her. The accused was 46, the victim was 21. Crown sought a custodial sentence of 12 to 14 months and defence submitted a conditional sentence was appropriate. Crown must have proceeded summarily given a conditional sentence was not available if proceeded by indictment. Sentencing judge imposed 12 month custodial sentence and three years' probation.

[51] As can be seen from the cases, each case turns on its own unique facts and circumstances. What the cases demonstrate is that there are a wide range of proportionate and fit sentences available depending on the particular facts of each individual case. As I have indicated, sentencing is an individualized process and "one size does not fit all."

[52] As a result of the Crown proceeding by way of summary conviction a conditional sentence is an available sentence in this case. The accused was assessed for his suitability for the Electronic Supervision Program, which only signifies he has a landline phone or cell phone that can be monitored. He was accepted. The issue that must be determined is whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code.

[53] It is my view the other four prerequisites of s. 742.1 of the Code have been met by the accused:

i. The offence is not an offence punishable by a minimum term of imprisonment;

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

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

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

[54] There is no mandatory minimum sentence for a sexual assault on the facts of this case where the Crown proceeds by summary conviction. The maximum sentence is 18 months. It is also my view having regard to the accused's background and the mitigating circumstances present in this case that the safety of the community would not be endangered by the accused serving the sentence in the community. The sole remaining issue is whether the accused's moral blameworthiness and the aggravating circumstances present in this case, which relate to the gravity of the offence make a conditional sentence inappropriate.

[55] In R. v. Proulx, 2000 SCC 5, 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.

[56] 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, 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, at para 71).

[57] However, in R. v. Killam, 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 when dealing with sexual offences. "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 Court of Appeal did not overturn the conditional sentence despite the facts in Killam involved the accused having intercourse with the victim while she was sleeping. Justice Doherty expressed considerable doubt as to whether a conditional sentence could adequately reflect the gravity of this offence and send the proper denunciatory message to the public (see para. 14). The refusal to overturn the conditional sentence occurred because of the limited scope of appellate review and the fact an appellate court must give deference to the sentencing judge's decision unless the sentence imposed was unfit. Justice Doherty, however, made it very clear it was the Court's view a period of incarceration would have been the more appropriate sentence.

[58] It is important to note that since R. v. Proulx, there have been at least three major amendments to s. 742.1, which governs the imposition of conditional sentences and numerous sections of the Code are now specifically excluded from consideration in the imposition of a conditional sentence, whereas previously Proulx indicated no offence was excluded from consideration as long as the three original criteria were met. Further, it is my view there has been a recognition in the jurisprudence of escalating concerns about the prevalence and seriousness of sexual abuse where the complainant has been incapacitated by alcohol/drugs or was asleep and therefore unable to consent.

[59] The nature of the sexual assault committed by the accused upon RD involved the accused digitally penetrating her vagina using his fingers, which was clearly more intrusive and serious than a touching of the vaginal area, for example over clothing, as in R. v. P.R. or skin to skin contact with no penetration, as in R. v. Barnes. The accused's sexually assaultive behaviour continued by his grabbing RD's buttocks after being told to stop what he was doing and for him to leave but instead of leaving he asked if he could perform cunnilingus on RD. He finally left her bedroom but only after RD told him to get out and stop what he was doing three times.

[60] Further, it is my view his conduct was significantly aggravated by the fact that his sexual assault occurred while RD was asleep in her bedroom in her home. There can be no doubt that sexually assaulting a victim who is utterly defenceless due to her being asleep attracts a higher degree of moral blameworthiness, particularly where RD was asleep in her bed, in her own home. As I expressed earlier in my reasons, this was a serious aggravating circumstance given every person is entitled to feel safe in the sanctity of their own home. When one adds the aggravating circumstances that the accused, for all intents and purposes, did not even know RD, he was not a friend of hers or her husband, and he was an invited guest in her home, which in my view adds an element of trust that the accused would respect the sanctity of her home and the heightened privacy the closed door to her bedroom implied.

[61] As a result of the more serious nature of the sexual assault I recognize the sentencing principles of deterrence and denunciation become more significant, if not the paramount sentencing principles. However, I am also mindful of the fact Christopher Delaney is a first offender, although not a youthful first offender, and as a result it is my view, the principle of rehabilitation is also a sentencing principle I cannot ignore in this case (see R. v. Priest; 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). Consequently, in order to determine a fit and proportional sentence I must consider the whole panoply of sentencing principles, including denunciation and deterrence, both general and specific, as well as rehabilitation and the principle of restraint given the accused is a first offender.

[62] An important decision in assessing whether a conditional sentence can appropriately reflect the sentencing principles of denunciation and deterrence in a case of sexual assault where the victim is asleep or otherwise incapacitated is the decision of Justice Campbell in R. v. Smith. Justice Campbell indicated where the accused has been prosecuted by indictment, the usual range of sentence for an invasive assault involving intercourse on a sleeping or unconscious victim is somewhere between an upper reformatory term of imprisonment and a lower penitentiary term of imprisonment (18 months to 3 years). He cites numerous examples in the Ontario Court of Appeal and Superior Court (see paras. 32-33).

[63] Justice Campbell continued in Smith to address cases where the Crown elected to proceed summarily and indicated jail sentences were still imposed because conditional sentences, even those with significant restrictions on liberty and punitive terms, did not have the same denunciatory effect as a period of actual imprisonment, citing the Court of Appeal in Killam.

[64] As I have indicated above, in this case there are significant and serious aggravating circumstances given RD's inability and incapacity to consent to the sexual contact because she was asleep. The fact the accused knew RD had gone to bed to go to sleep, did not really know her, entered her bedroom through the closed door, saw she was asleep, did not attempt to wake her but instead committed a gross and reprehensible violation of RD's dignity, security and sexual autonomy, all of these aggravating circumstances point to the serious gravity of this sexual assault and given those same aggravating circumstances attracts a high level of moral blameworthiness on the accused's part.

[65] Further, the fact he had consumed alcohol to excess and had ingested cocaine does not in any way excuse his conduct. Sexual assault is a general intent offence and drunkenness, intoxication or being under the influence of an illicit substance does not provide a defence. In fact, the evidence does not support the inference the accused's intoxication was that extreme, given his previous attempts to have sexual intercourse with two other women just before he entered into RD's bedroom. The accused clearly understood their refusal to engage in sexual intercourse or have him perform oral sex on them because he immediately stopped his pursuit and left. The facts clearly indicated the accused persisted with RD and engaged in a further sexual assault, grabbing her bare buttocks, in an attempt to gain her consent to at least let him perform cunnilingus on her.

[66] Another issue I raised with Mr. Scott and referred to earlier in my reasons was the fact that the accused had told the psychologist, Dr. George Stones, a completely different version of the events, which, from the accused's viewpoint, might provide some mitigation concerning his conduct towards RD. In addition, the accused omitted advising Dr. Stones of his earlier attempts to engage in sexual intercourse with two other women who were at this party, although Dr. Stones was provided the statements of these two other women. As I indicated above, the fact the accused had earlier attempted to engage in sexual conduct with two other women was an aggravating circumstance to be considered on sentence. It is my view, these omissions and the different sequence of underlying events calls into question the validity of Dr. Stones' psychological report as it relates to his prognosis of future risk. He found the accused was "a truthful personal historian, volunteering inculpatory information that included details that he acknowledged cast him in an unflattering light." I did not receive a satisfactory response from Mr. Scott for the stark differences between the two versions of what happened during the early morning hours of December 17, 2016. Suffice it to say, I am of the view that these differences and omissions likely mean I cannot give much weight to Dr. Stones' opinions because the underlying factual foundation is not in accordance with the facts admitted to by the accused on his plea of guilty.

[67] Further, whether the accused is a low risk to re-offend is not the deciding issue as to whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code. Obviously, if the psychological report found the accused was a high risk to re-offend that would be a further aggravating circumstance to consider on sentence. It is my view the cumulative effect of the aggravating circumstances of this case, which I have outlined above, require a custodial sentence served in a reformatory.

[68] In all of the circumstances of this case it is my view the appropriate and fit sentence is a custodial sentence of nine months to be followed by three years' probation. I am of the view that on a careful balancing of all of the relevant sentencing principles and objectives a conditional sentence cannot properly address the principles of denunciation and deterrence, both specific and general.

[69] I am mindful this will be a first jail sentence for the accused. I have considered his rehabilitation and have exercised restraint in the imposition of a jail sentence in what I believe is at the low end of the appropriate range of sentence. Nine months is at the low end of the appropriate range of jail sentence for an invasive sexual assault involving digital penetration on a sleeping or incapacitated victim. It is my view such a sentence is proportionate to the gravity of the egregious and callous sexual offence committed and the degree of responsibility or moral blameworthiness of the accused, having regard to the aggravating circumstances I have outlined above. He breached the trust placed in him as an invited guest to this Christmas party. His offence continues to have a significant and debilitating impact on RD and her continued enjoyment of life. Every aspect of her life has been impacted, including her relationship with her husband, her children, her family and her friends. She has been depressed and it has impacted her job performance and the completion of educational studies she commenced before the accused's conduct. In my view, this statutorily aggravating circumstance also demonstrates and supports the need to impose a sentence that denounces and deters other like-minded individuals. It is also my view this sentence should also bring home to the accused the seriousness of his conduct and the significant impact his actions caused to RD.

Ancillary Orders

[70] In addition, in my view the following ancillary sentencing orders are appropriate in the circumstances of this case.

[71] First, pursuant to s. 487.051(1) of the Criminal Code, I make an order requiring that samples of bodily substances be taken from the accused for purposes of forensic DNA analysis. The sexual offence committed by the accused is a "primary designated offence" as defined in s. 487.04(a) of the Criminal Code and, accordingly, such an order is statutorily mandated in the circumstances.

[72] Second, as the accused has been convicted of one "designated offences," pursuant to the combination of ss. 490.012(1) and 490.013(2.1) of the Criminal Code I make an order requiring the accused to comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10, for 10 years.

[73] Third, pursuant to s. 743.21(1) of the Criminal Code, I make an order prohibiting the accused from communicating, directly or indirectly, with RD or any member of her immediate families during his custodial sentence.

[74] Fourth, pursuant to ss. 110(1)(a) of the Criminal Code, there shall be an order prohibiting the accused from the possession of any firearm, cross-bow, prohibited firearm, restricted firearm, prohibited device, ammunition, prohibited ammunition and explosive substance for a period of five years after the accused is released from the period of imprisonment imposed today.

Collateral Consequences

[75] The matter had to be adjourned until August 7, 2018, when both counsel were available to make further submissions respecting what impact the Supreme Court decision in R. v. Suter, in respect of collateral consequences of physical assault on the accused on the night of the sexual assault by RD's husband should have on the accused's sentence.

[76] The facts in R. v. Suter involved the accused driving his car into a patio, killing a two year old child. The police demanded a breath sample after the accident but Suter refused, on the advice of a state-provided lawyer to whom he spoke after his arrest. He was charged with refusing to provide a breath sample after causing an accident resulting in a death, under s. 255(3.2) of the Criminal Code, and with impaired driving causing death and impaired driving causing bodily harm. Sometime after being charged, Suter was abducted by vigilantes who cut off his thumb with pruning shears for his role in the child's death. Suter eventually pleaded guilty to the s. 255(3.2) offence and the other charges were withdrawn.

[77] Justice Moldaver for the majority dealt with the effect or impact the collateral consequences of the physical assault on Suter by vigilantes and held:

[45] The sentencing judge found, correctly in my view, that the vigilante violence experienced by Mr. Suter could be considered -- to a limited extent -- when crafting an appropriate sentence. With respect, the Court of Appeal erred in concluding otherwise. This error also contributed to the 26-month custodial sentence it imposed.

[46] As I have observed, sentencing is a highly individualized process: see Lacasse, at para. 54; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 82; Nasogaluak, at para. 43. In R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, this Court stated that a sentencing judge must have "sufficient manoeuvrability to tailor sentences to the circumstances of the particular offence and the particular offender" (para. 38). Tailoring sentences to the circumstances of the offence and the offender may require the sentencing judge to look at collateral consequences. Examining collateral consequences enables a sentencing judge to craft a proportionate sentence in a given case by taking into account all the relevant circumstances related to the offence and the offender.

[47] There is no rigid formula for taking collateral consequences into account. They may flow from the length of sentence, or from the conviction itself: see R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at para. 11; R. v. Bunn (1997), 118 Man. R. (2d) 300 (C.A.), at para. 23; R. v. Bunn, 2000 SCC 9, [2000] 1 S.C.R. 183 ("Bunn (SCC)"), at para. 23; Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, [2017] 2 S.C.R. 289. In his text The Law of Sentencing (2001), Professor Allan Manson notes that they may also flow from the very act of committing the offence:

As a result of the commission of an offence, the offender may suffer physical, emotional, social, or financial consequences. While not punishment in the true sense of pains or burdens imposed by the state after a finding of guilt, they are often considered in mitigation. [Emphasis added; p. 136.]

I agree with Professor Manson's observation, much as it constitutes an incremental extension of this Court's characterization of collateral consequences in Pham. In my view, a collateral consequence includes any consequence arising from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence, that impacts the offender.

[48] Though collateral consequences are not necessarily "aggravating" or "mitigating" factors under s. 718.2(a) of the Criminal Code -- as they do not relate to the gravity of the offence or the level of responsibility of the offender -- they nevertheless speak to the "personal circumstances of the offender" (Pham, at para. 11). The relevance of collateral consequences stems, in part, from the application of the sentencing principles of individualization and parity: ibid.; s. 718.2(b) of the Criminal Code. The question is not whether collateral consequences diminish the offender's moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances. Like offenders should be treated alike, and collateral consequences may mean that an offender is no longer "like" the others, rendering a given sentence unfit.

[49] Collateral consequences do not need to be foreseeable, nor must they flow naturally from the conviction, sentence, or commission of the offence. In fact, "[w]here the consequence is so directly linked to the nature of an offence as to be almost inevitable, its role as a mitigating factor is greatly diminished" (Manson, at p. 137). Nevertheless, in order to be considered at sentencing, collateral consequences must relate to the offence and the circumstances of the offender.

[56] I agree with the Court of Appeal that the fundamental principle of proportionality must prevail in every case -- collateral consequences cannot be used to reduce a sentence to a point where the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender. There is, however, no requirement that collateral consequences emanate from state misconduct in order to be considered as a factor at sentencing…

[57] As such, the violence suffered by Mr. Suter at the hands of non-state vigilante actors can be considered when determining an appropriate sentence. The violent attack was related to Mr. Suter's role in Geo Mounsef's death, and both the permanent physical injury and psychological trauma resulting from this attack necessarily form part of Mr. Suter's personal circumstances. In light of the sentencing principles of individualization and parity, the vigilante attack against Mr. Suter was a relevant collateral consequence to consider at sentencing.

[58] That said, this particular collateral consequence should only be considered to a limited extent. Giving too much weight to vigilante violence at sentencing allows this kind of criminal conduct to gain undue legitimacy in the judicial process. This should be avoided. Vigilantism undermines the rule of law and interferes with the administration of justice. It takes justice out of the hands of the police and the courts, and puts it into the hands of criminals. As a general rule, those who engage in it should expect to be treated severely.

[78] With respect to the facts of this case I set in my reasons for judgment, which I read on July 3, 2018. A proportionate sentence having regard to gravity of the offence and the degree of responsibility of the accused was a nine month sentence in custody – not as a conditional sentence was the appropriate sentence to be imposed. I do not condone the attack on him with a plastic bat occasioned MD while the accused was asleep in one of the bedrooms in the home, however, it is my view, I agree with the Supreme Court of Canada and Justice Moldaver – this collateral consequence should only be considered to a limited extent. Giving too much weight to this kind of vigilante violence at sentencing allows this kind of criminal conduct to gain undue legitimacy in the judicial process. Further, it is my view in this case if I gave too significant a recognition of – by way of a reduction of sentence – I would be affecting the fundamental principle of proportionality, which the Supreme Court has indicated in numerous cases, as well as in Suter, that it must prevail in every case as it is the fundamental principle of sentencing. It is my view the most I could attribute to reduction of this sentence of nine months would be seven (7) days, to give recognition of something that ought not to have happened, to give recognition of somebody taking the law into their own hands. I am also recognizing the fact that the accused did not want to press charges but as I have indicated in my reasons there were serious aggravating circumstances that attracted a high level of moral blameworthiness on the accused's part. In all those circumstances I do not believe the nine month sentence should be reduced in any great significance and I am bound by the comments of the Supreme Court of Canada to limit any credit I grant to the collateral circumstance to his being assaulted after he sexually assault RD.

[79] Consequently, after the credit of seven (7) days is given the sentence remaining is 8 months and 24 days. The 3 photographs of the accused's injuries were marked as Exhibit 7a-c. The jail sentence was to be followed by a two (2) year probation period. Terms of probation are to be discussed with counsel.

Oral Reasons Released: July 3, 2018

Custodial Sentence Imposed: August 7, 2018

Signed: Justice Peter C. West