ONTARIO COURT OF JUSTICE

CITATION: R. v. Hartman, 2019 ONCJ 148

DATE: 2019 03 20

COURT FILE No.: Brockville 11-0341

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

RYAN HARTMAN

Before Justice Kimberly E.M. Moore

Heard on March 20, 2019

Reasons for Judgment released on March 20, 2019

C. Breault.............................................................................................. counsel for the Crown

Ms. Bojanowska ............................................ counsel for the defendant Ryan Hartman

MOORE J.:

[1] In the early morning hours of February 12, 2011, Rebekah D’Aoust went to sleep. She was sleeping beside her boyfriend, and in the home of a very close friend. Other friends were asleep nearby. She and her boyfriend knew that they were too intoxicated to drive. Ms. D’Aoust had no reason to suspect, when she cuddled against her boyfriend on a small air mattress in a tiny kitchen and fell asleep, that a few hours later Mr. Hartman would climb onto the air mattress behind her, and anally penetrate her while she slept.

[2] The history of these proceedings is set out in R. v. Hartman, [2015] O.J. No. 3554 (C.A.):

The appellant, Ryan Hartman, was charged with sexually assaulting R.C.[^1] The Crown proceeded summarily. The appellant testified and denied that he had sexually assaulted R.C. The trial judge convicted. The appellant appealed to the Summary Conviction Appeal Court alleging various errors in the trial judge's reasons. That court dismissed the appeal. The appellant was subsequently sentenced to 14 months' imprisonment and 3 years' probation by the trial judge.

The appellant seeks leave to appeal the decision of the Summary Conviction Appeal Court. His position has changed dramatically. He now admits, contrary to his evidence at trial, that he sexually assaulted R.C. as she alleged, but contends that he was asleep when it happened. Relying on expert evidence developed by new counsel retained after the failed first appeal, the appellant submits that he was in a parasomnic state when he sexually assaulted R.C. and should be found not criminally responsible on account of mental disorder ("NCR-MD").

New defences advanced years after the relevant events, only when other defences have been tried and failed and the convicted offender stands at the prison gate, must be viewed with considerable judicial suspicion. However, there will be cases in which the interests of justice require that an appellant be allowed to present a new defence on appeal. For the reasons that follow, this is one of those rare cases. I would grant leave to appeal, admit the fresh evidence, allow the appeal and order a new trial. I would direct that the new trial be limited to a determination of whether the appellant is NCR-MD or guilty (para 1-3).

[3] Mr. Hartman did not appeal his sentence. However, I note that at the time of his conviction, a conditional sentence was not available to Mr. Hartman. The law has changed since 2011.

[4] The Court of Appeal ordered the new trial on July 6, 2015. Mr. Hartman’s re-trial before me commenced on April 10, 2017. I found Mr. Hartman guilty on November 10, 2018. Mr. Hartman then made an application under section 11(b) of the Charter of Rights and Freedoms seeking a stay of proceedings. I dismissed that application today, and provided written reasons. Sentencing submissions then proceeded.

POSITIONS OF THE PARTIES

[5] Both counsel set out their positions as to sentence in a very professional manner, and provided caselaw to support their positions.

Crown

[6] On behalf of the Crown I am asked to find that the sentence imposed by Anderson, J. was an appropriate sentence, although at the bottom of the range, for the offence before me.

[7] Ms. Breault submits that the continued impact upon the victim should be considered in determining whether the sentence imposed should be increased.

[8] Ms. Breault submits that a conditional sentence would not adequately reflect the principles of sentencing set out in the Criminal Code, and points not only to the facts of the case, and the caselaw provided, but also to the offences committed while Mr. Hartman was on release.

Defence

[9] Ms. Bojanowska acknowledged the serious nature of this offence, but urged the Court to consider the impact of the offences on Mr. Hartman and his family, and specifically the impact that actual incarceration would have on Mr. Hartman and his family.

[10] Ms. Bojanowska provided caselaw that supported conditional sentences being imposed in very serious sexual offences, including one against a child.

[11] Ms. Bojanowska also asked that I consider that while the impact on Ms. D’Aoust has been significant, I also consider the words of Ms. D’Aoust today, and in particular that she is thankful for what has happened as it has made her a stronger person, and permitted her to be an advocate for others.

EVIDENCE CONSIDERED

[12] The Crown filed the Victim Impact Statement prepared by Ms. D’Aoust at the first sentencing hearing in 2013.

[13] The Crown also filed a certified copy of the information from the first trial, and Mr. Hartman’s criminal record.

[14] Ms. Bojanowska filed letters of support prepared by:

• Heather Childs, Mr. Hartman’s fiancé;
• Marsha Hartman, Mr. Hartman’s mother;
• James Nobbs, Mr. Hartman’s uncle;
• Shauna Keil, Mr. Hartman’s aunt; and
• Daniel Keil, Mr. Hartman’s cousin.

[15] I was also asked to consider the evidence given by Mr. Hartman’s sister, Kristin Albert, at Mr. Hartman’s first sentencing hearing. Tragically, Ms. Albert is no longer with us. I have reviewed her evidence from that hearing.

[16] I also reviewed the evidence given by Mrs. Hartman, Mr. Hartman’s mother, at the first sentencing hearing.

[17] Rebekah D’Aoust addressed the Court and read into the record a very poignant and illuminating Victim Impact Statement.

[18] Mr. Hartman chose, as is his right, to not address the Court upon sentencing.

PRINCIPLES OF SENTENCING

[19] The purpose, principles and objectives of sentencing are set out in Part XXIII of the Criminal Code. I will address a number of these at this time.

General Principles

[20] section 718 of the Criminal Code is the starting point for all sentencing matters. This section states as follows:

The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

Statutory Objectives and Principles

[21] Sections 718.2(a)(iii.1) of the Code, states as follows:

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.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,

[22] Further sentencing principles that I must consider in this matter include those of proportionality, parity and restraint.

Proportionality

[23] The principle of proportionality is set out in section 718.1 of the Code, wherein Courts are reminded that, “[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

[24] The Supreme Court of Canada addressed the issue of proportionality, which is defined in the Criminal Code as the fundamental principle of sentencing, in R. v. Ipeelee, 2012 SCC 13, [2012] S.C.J. No. 13, at paragraph 37:

The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing -- the maintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord to the various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle of proportionality. Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system. As Wilson J. expressed in her concurring judgment in Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486, at p. 533:

It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a "fit" sentence proportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender "deserved" the punishment he received and feel a confidence in the fairness and rationality of the system.

Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other.

[25] The principle of proportionality reminds Courts that they have an obligation to assess not only the offence, but also the specific offender being sentenced. Sentencing is neither scientific nor formulaic. It requires a careful balancing of factors.

[26] As I will refer to below, the gravity of this offence cannot be overstated. The moral blameworthiness of the Mr. Hartman’s actions is very high.

Parity

[27] Section 718.2(b) of the Criminal Code reminds the Court of this important sentencing principle.

[28] In R. v. Macri, [2012] S.J. No. 386 (Prov. Court), the Court stated, at paragraph 40, that, “[t]he principle of parity is embodied in section 718.2(b) of the Criminal Code. It dictates that an offender's sentence should be similar to sentences imposed on similar offenders, for similar offences, committed in similar circumstances. Parity, however, does not mean uniformity. The proportionality principle, and the individual nature of sentencing means that disparity can exist where circumstances warrant. Such disparities, however, should not be egregious, or unjustified.”

[29] In R. v. Katsnelson, [2010] O.J. No. 1601 (S.C.J.), a sexual assault case, the Court made similar comments. In that case the Court stated that nineteen cases had been provided to the Court in support of the respective positions taken by the parties, and stated as follows:

The exercise of reviewing those cases is helpful, but one must be cautious in attempting to fit the circumstances of one case into the factual footprint of another. Sentencing remains pre-eminently a case-specific exercise. In R. v. L.M., 2008 SCC 31, at paragraph 36, LeBel J. stated:

Owing to the very nature of an individualized sentencing process, sentences imposed for offences of the same type will not always be identical. The principle of parity does not preclude disparity where warranted by the circumstances, because of the principle of proportionality. As this Court noted in M. (C.A.), at para. 92, 'there is no such thing as a uniform sentence for a particular crime'. [emphasis in the original]

While sexual assaults that involve rape can only be characterized as serious, the wide range of sentences imposed for such offences reflects the diversity of the circumstances in which the offence can be committed and the great variety of offenders who may commit it. Accordingly, it is important to carefully consider the particular circumstances of both the offence and the offender in attempting to fashion a fit sentence.(para 35-36)

[30] Counsel provided caselaw to me, in support of their respective positions in this case. These positions varied from conditional sentences to 4 years in the penitentiary. The Crown proceeded summarily in this case, and thus the maximum sentence I may impose is that of 18 months.

Restraint

[31] I have been asked by Mr. Hartman to consider a conditional sentence in this case.

[32] A conditional sentence is available when the sentence to be imposed is less than 2 years, there is no minimum sentence requirement, and the maximum sentence does not exceed 10 years. Those criteria are met in the case at bar.

[33] The Court must also consider whether the service of the sentence in the community would endanger the community and whether it would be consistent with the fundamental purpose and principles of sentencing.

[34] In R. v. Proulx, 2000 SCC 5, [2000] S.C.J. No. 6, the Court stated as follows at paragraph 17:

Parliament has sought to give increased prominence to the principle of restraint in the use of prison as a sanction through the enactment of s. 718.2(d) and (e). Section 718.2(d) provides that "an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances", while s. 718.2(e) provides that [page80] "all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders". Further evidence of Parliament's desire to lower the rate of incarceration comes from other provisions of Bill C-41: s. 718(c) qualifies the sentencing objective of separating offenders from society with the words "where necessary", thereby indicating that caution be exercised in sentencing offenders to prison…

[35] The Court in Proulx addressed the issue of denunciation, stating as follows:

Where punitive objectives such as denunciation and deterrence are particularly pressing, such as cases in which there are aggravating circumstances, incarceration will generally be the preferable sanction. This may be so notwithstanding the fact that restorative goals might be achieved by a [page121] conditional sentence. Conversely, a conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of diminished importance, depending on the nature of the conditions imposed, the duration of the conditional sentence, and the circumstances of the offender and the community in which the conditional sentence is to be served.

Finally, it bears pointing out that a conditional sentence may be imposed even in circumstances where there are aggravating circumstances relating to the offence or the offender. Aggravating circumstances will obviously increase the need for denunciation and deterrence. However, it would be a mistake to rule out the possibility of a conditional sentence ab initio simply because aggravating factors are present. I repeat that each case must be considered individually.

Sentencing judges will frequently be confronted with situations in which some objectives militate in favour of a conditional sentence, whereas others favour incarceration. In those cases, the trial judge will be called upon to weigh the various objectives in fashioning a fit sentence. As La Forest J. stated in R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, at p. 329, "[i]n a rational system of sentencing, the respective importance of prevention, deterrence, retribution and rehabilitation will vary according to the nature of the crime and the circumstances of the offender". There is no easy test or formula that the judge can apply in weighing these factors. Much will depend on the good judgment and wisdom of sentencing judges, whom Parliament vested with considerable discretion in making these determinations pursuant to s. 718.3. (para 114-116)

[36] It is for this reason that the Court must carefully balance all of the principles of sentencing, as well as the facts of the offence and the background of the offender. In assessing the appropriate range of sentence, the Court must also consider the mitigating and aggravating factors.

MITIGATING FACTORS

[37] While Mr. Hartman had a criminal record prior to the commission of this offence, it was for a Controlled Drugs and Substances Act offence, committed when he was in his early 20’s and for which he received a fine. Otherwise, up to the time of the offence he was a very pro-social member of the community.

[38] I also considered Mr. Hartman’s diagnosis of Asperger’s Syndrome, as well as his OCD and ADHD.

[39] Since the commission of the offence Mr. Hartman has maintained employment, continued in a very pro-social and loving relationship with his fiancé, and he has emotionally supported his family. Mr. Hartman has suffered two major losses in his life, those of his father and his sister.

[40] The letters of support, as well as the evidence heard by Anderson, J. in 2013, all strongly support that this offence was completely out of character for him, and also refer to the traumatic impact that custody would have on Mr. Hartman. In addition, if incarcerated, Mr. Hartman could lose his home as his fiancé is unable to work due to medical reasons, and there would be no family income.

[41] These letters of support set out the impact that incarceration would have on a Mr. Hartman’s autistic nephew, who shares a very close bond with Mr. Hartman.

[42] Ms. Childs’ letter says that they have delayed starting a family due to uncertainty of these court proceedings, but further states that they have been trying to conceive for the past two years, but have been unsuccessful due to the stress of these proceedings.

[43] Marsha Hartman filed a letter of support setting out that, at age 71, she relies on her son quite a bit as things are more difficult with aging. I wish to read a portion of this letter:

Ryan is always there for me, especially now that I am getting older and need his help more often. He helps me on a regular basis and without his help I would be in dire straits. My husband’s sudden passing and then his only sister’s passing five years ago from a rare and horrible cancer has left a great void in both our lives. Our relationship has become very close and I have learned to lean on him for so many things. I call him to help me with many things around my condo; fixing shower rods, fixing DVD players and tvs when I have unknowingly pushed a wrong button, painting room as I now feel uncomfortable climbing ladders, changing ceiling lights, getting a Christmas tree and decorating the higher parts which include putting lights on the tree, helping me when my car is a problem, and carrying things up and down the stairs for me. The list goes on.”

[44] Two years ago Mrs. Hartman testified before me, when she was 69 years of age, and the following evidence was given in examination-in-chief:

Q. Now that you’re retired, how do you generally spend your time?

A. I’m pretty busy with my grandson. I have partial custody of him, and he is a special needs child. He has ASD. So he takes up a lot of time. I volunteer in his school also. Not this year in his classroom, because in grade four, they don’t want you around, but I do other things in the school, like field trips and reading to other kids.

I have...I spend a lot of time with Beth Donovan Hospice and I volunteer there. I work with the day hospice clients, and I also drive clients to and from appointments. The hospice has a van and I use that, and I also drive them to and from the hospice. I’m on the advisory council of the hospice.

Hmm, I have a 99-year-old mother that needs a fair amount of assistance when she goes from place to place. She’s pretty independent, but her eyesight is going and her hearing is going. And she has doctors’ appointments, or we sometimes like to take her out of where she is, the residence, like for a dinner or lunch out, or just to browse around the stores. That keeps me pretty busy.

[45] I have seen Mrs. Hartman in court on a number of occasions during this trial, and have not noted any significant frailty. However, I do not doubt that Mrs. Hartman does rely on the assistance of her son, as many mothers do.

[46] The most significant mitigating factor in this case is the support that Mr. Hartman has of his family, and the strong personal connections he has formed.

AGGRAVATING FACTORS

[47] Mr. Hartman’s criminal record pre-dating this offence is of little consequence to the court. The criminal offences committed while on release, however, are significant. I agree that the possession of marijuana is not the most serious of offences. And while I do not recall the facts behind the weapons charge, I am clear that it was not used in a violent way. However, this was not just an ordinary release. Mr. Hartman had signed this recognizance before the Court of Appeal only months before he was charged with these offences. In addition, his surety, Ms. Childs, was also charged.

[48] There was no breach of trust in this case, as Ms. D’Aoust had never even met Mr. Hartman before this night. However, I do find it aggravating that Mr. Hartman was an invited guest in this home – that of Ms. McDonald and Mr. Gordon – when he sexually assaulted the friend of his hosts.

[49] The facts of this case themselves are extremely aggravating. This offence took place in a location where Ms. D’Aoust should have felt safe. This offence took place when she was laying beside her boyfriend, the person who should make her feel safe. This offence took place when she was both intoxicated and asleep – the level of her vulnerability cannot be emphasized enough. Finally, there is the nature of the sexual assault. This was not a kiss. This was not a caress. This was not a touching or a digital penetration. This was a penetration of Ms. D’Aoust’s anus by Mr. Hartman’s penis.

[50] Equally aggravating is the impact on the victim in this case. Ms. D’Aoust’s Victim Impact Statement was insightful and compelling. Through her eyes, we are able to see what her life has been like for her these past 8 years. I wish to read from portions of that Victim Impact Statement.

Imagine you are holding a plate in your hands, now firmly grip it and smash it on the ground below you. You are the holder, I am the plate. The plate was my life. Over the years I have tried to glue the pieces back together. Take a look at the plate now, does it look the same? You have no idea, because you can’t see it. You are not faced each day with my battles, You do not wake up every morning and look through my eyes at the woman I have become, the pieces that are dangling, lost, and barely held together.

You took something from me that I have tried years to replace. I live every day with an empty void that I am afraid will never be filled. I face choices everyday that shouldn’t be so difficult to make. But you have also given me something that most do not have. That is why today, I do not want to speak to you in anger, I want to tell you thank you.

Thank you for changing my life forever. Thank you for opening my eyes to the world I truly live in. Thank you for making me realize the strong, loving, ambitious, thoughtful and caring woman I am and have become over the years. Thank you for making me doubt myself every single day, because of that I am always striving to understand my emotions, find myself and be a better person.

I am unsure if there is help out there for you. I do know that your sentence is yours, mine is mine. My sentence is for life – I will forever be affected by this. I will live with these scars for eternity. The greatest difference between your sentence and mine – I know that mine will promote positive change. I promise you that I will do what I can to help others. I will do everything I can, for the rest of my days on this earth, to prevent this heinous crime from affecting other lives around me. I will do everything I can to help piece back together other victims lives.

Eight years ago you made a choice that changed my life forever. Today, I am letting go of that. Today – I am moving forward free of this hanging on my shoulders. Today I am making a choice to live the nest life I can despite the choice you made. Today, I am no longer just a victim, a survivor, no – today I am an advocate. You no longer have a hold on my life, Today, I am free.

NEUTRAL FACTORS

[51] I place no weight on Mr. Hartman’s decision to file an appeal and request the opportunity to advance a new defence. This was absolutely his right to do so. However, in making that decision, Mr. Hartman had to know that there would be a further passage of time. No one would have expected that it would be this much time, but it was to be expected that there would be a passage of time. As indicated in my 11(b) judgement released on today’s date, I find that much of the delay in this case resulted from decisions made by the defence. I do thus consider the impact that the passage of time has had on Mr. Hartman, but do not find it to be a mitigating factor.

[52] I have considered Ms. Bojanowska’s submission that I should consider the conditions of Mr. Hartman’s release, and specifically that he cannot consume alcohol, and that he had to report monthly to the police.

[53] In R. v. Downes, [2006] O.J. No. 55 (C.A.) the Court set out the factors to consider when looking at time spent on restrictive bail conditions:

In summary, credit for pre-trial bail conditions should be approached in the following manner:

• Time spent on stringent pre-sentence bail conditions, especially house arrest, is a relevant mitigating factor.

• As such, the trial judge must consider the time spent on bail under house arrest in determining the length of sentence.

• The failure of the trial judge to explain why time spent on bail under house arrest has not been taken into account is an error in principle.

• The amount of credit to be given for time spent on bail under house arrest is within the discretion of the trial judge and there is no formula that the judge is required to apply.

• The amount of credit will depend upon a number of factors including, the length of time spent on bail under house arrest; the stringency of the conditions; the impact on the offender's liberty; the ability of the offender to carry on normal relationships, employment and activity.

• Where the offender asks the trial judge to take pre-sentence bail conditions into account, the offender should supply the judge with information as to the impact of the conditions. If there is a dispute as to the impact of the conditions, the onus is on the offender to establish those facts on a balance of probabilities in accordance with s. 724(3) of the Criminal Code.

[54] I do not find that Mr. Hartman’s conditions were restrictive. There was no house arrest. There was not even a curfew. I have not heard any evidence that complying with the conditions caused any hardship. In fact, as referred to above, it is clear that Mr. Hartman breached his conditions by possessing drugs and a weapon. The conditions breached were from a recognizance entered into before the Court of Appeal.

[55] I considered Ms. Bojanowska’s submission that the offence did not continue once Ms. D’Aoust placed her hand behind her. Had the assault continued, this would be an aggravating factor. An absence of an aggravating factor does not make this a mitigating factor.

[56] As to the issue of remorse, I accept that Mr. Hartman regrets his actions, but I am unable to find that there is genuine remorse. I do not find that his utterances made following the sexual assault are, in any way, indicative of remorse.

[57] I made the following factual findings in this matter, pertaining to the time immediately after Ms. D’Aoust discovered she had been raped:

• Ms. D’Aoust was in the hallway near the stairs, and she was yelling and crying and telling her boyfriend that she woke up with that man’s dick in her ass and that he had raped her while sleeping. Mr. Hartman came out into the corridor and walked past them. As he did, he said to Ms. D’Aoust’s boyfriend, “I’m sorry man, I think I just woke up making out with your girlfriend.”
• Ms. D’Aoust’s friend, Ms. McDonald came out from her room and joined them.
• Ms. D’Aoust told Ms. McDonald that she woke up with that guy’s dick in her ass.
• Ms. D’Aoust and her boyfriend left. At the time they left, Mr. Hartman was sitting in the garage holding his head in his hands.
• Ms. McDonald went up to the garage and Mr. Hartman was there. Ms. McDonald asked him what the fuck had happened and he replied, “I don’t know. I woke up to your friend making out with me.”

[58] Nothing about these utterances suggests remorse to me. In fact, as I held, these utterances were Mr. Hartman’s way of trying to inject an element of consent into what had happened. Mr. Hartman testified that he had awoken with erection and his zipper down, in bed beside the victim. That his reaction would be to apologize to Ms. D’Aoust’s boyfriend, not to Ms. D’Aoust, and then to say to Ms. MacDonald that he woke up to Ms. D’Aoust making out with him, cannot be seen as remorse. I must be clear. This absence of remorse is not an aggravating factor. It is simply an absence of a mitigating factor.

CONCLUSION

[59] This was a re-trial. As stated by the Ontario Court of Appeal in R. v. Precup, [2016] O.J. No. 4687:

The appellant appeals his sentence. His principal submission is that the sentencing judge failed to apply the principle well established in this court that after a re-trial, the sentencing judge should not consider the sentence de novo but must take into account the fitness of the original sentence. Otherwise an accused might legitimately have a sense of grievance: see R. v. B.(L.) (1997), 1997 CanLII 3187 (ON CA), 35 O.R. (3d) 35, 116 C.C.C. (3d) 481 at p. 512 (C.A.). In R. v. Harriott (2002), 2002 CanLII 23588 (ON CA), 58 O.R. (3d) 1, our colleague MacPherson J.A. put the principles succinctly at para. 52:

It is true that the imposition of a sentence imposed after a re-trial should not be regarded as a matter entirely de novo. If the trial judge at the second trial decides to impose a greater sentence than the original sentence, he or she must first determine that the original sentence was unfit, or that new facts have emerged, and then consider all the relevant factors before imposing the new sentence: see R. v. B. (L.) (1997), 1997 CanLII 3187 (ON CA), 35 O.R. (3d) 35, 116 C.C.C. (3d) 481 at p. 512 (C.A.).(para 3)

[60] However, there is a distinction that must be drawn in regards to the case before me. At the time Mr. Hartman was originally sentenced, a conditional sentence was not available. Such a sentence is now available, and I am obliged to consider same.

[61] I have reviewed the decision of Anderson, J. in this matter, pertaining to the first sentencing hearing.

[62] I have also reviewed the caselaw provided by counsel.

[63] I found the decision of R. v. Akbari, [2014] O.J. No. 422 (S.C.J.) to be of little assistance as it is so factually distinct.

[64] The case of R. v. Nikkanen, 1999 CanLII 7339 (ON CA), [1999] O.J. No. 3822 (C.A.) was factually similar, in that the accused had engaged in sexual intercourse with the complainant, a friend, when she was on medications that had sedative effects. The Court relied upon the accused’s time of release both after charge and appeal, and the impact that a period of custody would have on the offender’s family, and determined that this would be an appropriate case for a conditional sentence. The Court of Appeal also noted that this information was not known to the trial judge at the time of sentencing.

[65] I have also considered the following cases:

[66] R. v. M.J.H., [2004] S.J. No. 812 (Sask. C.A.)

• The Aboriginal offender pulled down the pants and removed the clothing if his sleeping half sister and humped her
• There was no attempt at intercourse
• He was found guilty after trial
• The trial judge imposed a conditional sentence of 20 months
• The Court of Appeal overturned the sentence and determined that a sentence of 30 months in custody was warranted. As the offender had served a portion of his conditional sentence, the Court reduced this to 24 months

[67] R. v. S.G., [2014] O.J. No. 5224 (S.C.J.)

• The Aboriginal offender had intercourse with an adult niece while she was passed out as a result of drug use
• The offender plead guilty and was extremely remorseful
• A sentence of 2 years less a day was imposed
• The Court indicated that the sentence would be higher but for Gladue factors

[68] R. v. Mitrovic, 2017 ONSC 1829, [2017] O.J. No. 1523 (S.C.J.)

• The offender was convicted after trial of having intercourse with a passed out friend who had asked him to come stay over with her as she did not want to be alone
• The Court held that the appropriate range of sentence was 3-5 years and based on the aggravating factors, imposed a sentence of 4 years

[69] R. v. W.F.G., [2013] B.C.J. No. 2405 (B.C. P.C.)

• The Aboriginal offender attempted to sodomize his step-daughter while she was passed out due to alcohol consumption
• The offender was very intoxicated and had no memory of the incident – it had been witnessed by his children
• He plead guilty and was extremely remorseful
• He participated in residential treatment in advance of sentencing and also participated in restorative justice
• He was sentenced to 12 months in custody

[70] I recognize that in many of those cases there are aggravating factors that are not present in this case, given that there is a familial breach of trust. However, in many of those cases there are also Gladue factors considered, and also guilty pleas in some cases.

[71] Ms. Bojanowska submitted the case of R. v. Killam, 1999 CanLII 2489 (ON CA), [1999] O.J. No. 4289 for my review. Paragraph 1 of that case sets out the facts as follows:

This was a serious crime. The respondent and the victim were part of a group of young adults who were partying at a beach over the weekend. The victim and her friends had rented a small cabin. They allowed the respondent to sleep in the cabin because he was known to them and trusted by them. On the second night the respondent slept in the cabin, the victim awoke to find the respondent having sexual intercourse with her. She had, of course, not consented and had done nothing to suggest to the respondent that she was prepared to have sexual intercourse with him.

[72] The trial judge imposed a conditional sentence of two years less a day, emphasizing the positive changes he had made in his life since he was a youth, and also that he was now a new father. Mr. Killam was found guilty after trial and expressed no remorse. He was only 20 years old when he committed this offence.

[73] Doherty, J.A. declined to interfere with the conditional sentence, but stated the following:

There is no doubt that incarceration at this time would have significant negative effects on the respondent's continued progress and on the lives of those around the respondent, particularly his young daughter. In my view, there was ample reason to conclude that a conditional sentence posed no danger to the safety of the community. Further, in my view, there was ample reason to conclude that the principle of specific deterrence did not demand incarceration.

That leaves for consideration the principles of general deterrence and denunciation. I am particularly concerned about denunciation. As indicated in R. v. Wismayer (1997), 1997 CanLII 3294 (ON CA), 115 C.C.C. (3d) 18 (Ont. C.A.), a conditional sentence, if properly understood, can adequately address the needs of denunciation and general deterrence even in cases where those principles are paramount. I think, however, it must be acknowledged that a conditional sentence, even one like this one which imposes some significant restrictions on the offender's liberty, does not, generally speaking, have the same denunciatory effect as a period of imprisonment. Incarceration remains the most formidable denunciatory weapon in the sentencing arsenal.

I admit to 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. I am, however, satisfied that the case law commands that my doubt yield to the deference that must be afforded to the decision made by the trial judge. As Lamer C.J.C. put it in R. v. M.(C.A.) 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500 at 566:

The sentencing judge still enjoys a position of advantage over an appellate judge in being able to directly assess the sentencing submissions of both the Crown and the offender. A sentencing judge also possesses unique qualifications of experience and judgment from having served on the front lines of our criminal justice system. Perhaps most importantly, the sentencing judge will normally preside near or within the community which has suffered the consequences of the offender's crime. As such, the sentencing judge will have a strong sense of the particular blend of sentencing goals that will be "just and appropriate" for the protection of that community.

The words of the Chief Justice have strong application here. Given this direction from the Supreme Court of Canada, I cannot say that the sentence imposed was demonstrably unfit. I would not interfere with the conditional sentence imposed by the trial judge.

I must stress, I am not suggesting that a conditional sentence should become the norm in cases like this one. Far from it. My reasons should be taken only as indicating that in the circumstances of this case, a conditional sentence was not outside the broad range of sentences available to the trial judge. I do not suggest that other sentences, particular a significant term of imprisonment, would have been inappropriate. Indeed, I might even go so far as to say a period of incarceration would have been more appropriate. That is, however, a basis upon which I cannot vary a sentence under s. 687 of the Criminal Code. (para 12-16)

[74] I have carefully considered the submissions of counsel, the caselaw, the facts of this case, the circumstances of Mr. Hartman (including, but not limited to the impact his incarceration may have on his family), the mitigating factors and the aggravating factors.

[75] I find that permitting Mr. Hartman to serve a conditional sentence would not endanger the community. If this re-trial has not sufficiently deterred Mr. Hartman, then no jail sentence is going to be more effective.

[76] However, I find that to impose a conditional sentence would be inconsistent with the fundamental purpose and principles of sentencing.

[77] As such, I decline to impose a conditional sentence.

SENTENCE

[78] Please stand.

[79] Mr. Hartman I find that you have served 33 days of real custody. This is the equivalent of 50 days, and will be reflected on the record as same.

[80] I impose a period of 12 months further custody.

[81] This will be followed by 3 years’ probation with the following conditions:

• Keep the peace and be of good behaviour
• Report to probation officer within to working days of your release from custody
• Attend for any assessment, treatment and counselling as recommended by the probation officer, and complete this this to their satisfaction, not discontinue this without their consent, and sign any releases required
• No contact directly or indirectly with Rebekah D’Aoust or any member of her family and stay 200 metres from them, and any place of residence, employment or schooling known to you

[82] I make an order for you to provide a sample of your DNA, pursuant to s. 487.051 of the Criminal Code.

[83] Pursuant to s. 110 of the Criminal Code, I am prohibiting you from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance, for a period of 5 years.

[84] Pursuant to s. 743.21 of the Criminal Code, I am prohibiting you from having any contact or communication, directly or indirectly, with Rebekah D’Aoust or any member of her family, while serving your custodial sentence.

[85] You will be noted as a person convicted of a SOIRA-designated offence pursuant to s. 490.012 of the Code, for a period of 10 years.

Released: March 20, 2019

Signed: Justice Kimberly E.M. Moore

[^1]: On March 4, 2019, at the request of Rebekah Church, who is now Rebekah D’Aoust, the ban of publication was lifted.