WARNING

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

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

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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

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

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

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

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

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

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

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

Court Information

Ontario Court of Justice

Date: June 17, 2019

Court File No.: Central East Region: Oshawa Court 17-22359-00

Between:

Her Majesty the Queen

— and —

Trevor Andrews

Before: Justice Peter C. West

Sentencing Submissions Heard: April 18, 2019

Reasons for Judgment Released: June 17, 2019

Counsel:

• F. Stephens, counsel for the Crown
• K. Mitchell-Gill, counsel for the accused Trevor Andrews

Reasons for Judgment

Introduction

[1] Trevor Andrews was charged with committing a sexual assault on his girlfriend on July 28, 2017 and he pleaded not guilty before me. On February 6, 2019, I convicted Mr. Andrews of this offence, reported at [2019] O.J. No. 600. Sentencing was adjourned and a Pre-sentence Report was ordered, Exhibit 1 and the victim, S.M., read her Victim Impact Statement, which was filed as Exhibit 2.

[2] The Crown is seeking a custodial sentence of 9 to 12 months to be followed by 2 years of probation. The Crown also sought a SOIRA order for 10 years given the Crown's election to proceed by summary conviction. Further, the Crown sought a 10 year weapon's prohibition pursuant to s. 110 and a DNA order pursuant to s. 487.04. The Crown submitted the custodial sentence was an appropriate sentence having regard to the aggravating circumstances and the impact the offence has had on the victim. The Crown argued a conditional sentence would not be an appropriate sentence given the nature of the offence and the fact Mr. Andrews took advantage of his girlfriend when she was in a vulnerable state, when she was asleep.

[3] Mr. Mitchell-Gill submitted an intermittent sentence of 90 days or a conditional sentence of 6 to 9 months was the appropriate sentence having regard to the findings of fact made at the conclusion of the trial.

Factual Background

[4] The facts surrounding the commission of the sexual assault are set out in detail in my reasons for judgment, dated February 6, 2019. For the purposes of sentencing I will highlight key facts, which relate to the sexual assault committed by Trevor Andrews to provide a factual background.

[5] S.M. and Trevor Andrews dated as boyfriend and girlfriend for approximately three years and according to S.M. their relationship went from platonic, to friends with benefits and to what she called a romantic relationship. On July 28, 2017, they were not living together and each had their own residence. At some point in the afternoon, A.B., a young friend of S.M., arranged to stay at S.M.'s apartment because his mother had kicked him out of the house and he had nowhere to stay. This circumstance caused S.M. to be anxious and she wanted to speak to Mr. Andrews about the situation.

[6] Mr. Andrews showed up at S.M.'s apartment with some beer and it was evident he had already been drinking beer. During the course of the evening Mr. Andrews expressed to S.M. his desire to have sex with S.M., which she told him she did not want because she was too stressed over A.B. S.M. testified she told Mr. Andrews each time he asked her to have sex that it was not going to happen because A.B. was staying in the apartment and would be sleeping in the living room on the couch. S.M. told Mr. Andrews he could stay over at her apartment that night because he was not in any condition to go home given the amount of beer he had consumed but there would be no sex as she was tired and had taken her night meds. I accepted S.M.'s evidence that she told Mr. Andrews on numerous occasions there would be no sex if he stayed over as she wanted to go to bed to sleep.

[7] S.M. testified when they went into the bedroom Mr. Andrews took off his clothes to his boxers and she told him he would be sleeping against the wall as she was sleeping on the outside. She changed into pajama bottoms and a t-shirt and got into the bed. Within two minutes Mr. Andrews was cuddling and spooning her, grabbing her breasts and putting his hands on top of her vagina, on top of her clothes. She told him to stop and pushed him away. She told him to leave her alone and go to sleep. He was trying to persuade her to have sex but she was firm she did not want to because she was exhausted and A.B. was just outside.

[8] S.M. believed she fell asleep and then she felt pressure down by her stomach and her legs and between her thighs. She woke up with a start, the blankets were pulled down and her pajama bottoms were down to her knees and Trevor was on top of her. Her pajama bottoms had an elastic waistband and she had not pulled them down. She sat up and pushed him off her and asked, "What the fuck do you think you're doing?"

[9] She told him to get out of the fucking bed, get dressed and get out. Mr. Andrews kept asking what was wrong and she kept telling him to get out and leave. He kept saying to her, "Come on babe, you know you wanted it, it's okay." She testified she told him, "Are you fucking kidding me? Are you serious? This is not happening." He kept saying, "Oh come on babe, you're just stressed, you know you want it." She said, "No." Trevor kept coming towards her, saying the same thing so she slapped him across his face and said, "No, I didn't want to have sex while I was sleeping." She testified he looked "dumbfounded" and he said, "What the – what the hell is your problem?" He kept saying they had sex before and she had loved it. She told him she did but it wasn't going to happen that night. S.M. pushed him out the bedroom door into the hall. Trevor kept saying to her, "You know you wanted it, our sex is great, you weren't sleeping, you know you wanted it." When they were out in the hallway S.M. pinned Trevor Andrews against the wall and he started to struggle with her. She called to A.B. to call the police and Mr. Andrews let go of her and she threw Trevor's shoes down the stairs and he followed them and after he went out the front door she locked it. S.M. collapsed on the floor and A.B. helped her to sit on the couch.

[10] The defence called A.B. as a witness and he testified Mr. Andrews had told him the only reason he came to S.M.'s apartment was to have sex with her. At some point S.M. said to Mr. Andrews she wanted to go to bed to sleep and went in her bedroom. 10-15 minutes after they went into the bedroom the door flew open and S.M. was pushing Mr. Andrews into the hallway, "freaking out, saying that he (Trevor) tried to sexually assault her." They were struggling in the hallway and then Mr. Andrews left and S.M. collapsed to the floor crying. A.B. testified he helped her get onto the couch and they watched a movie together. I found A.B.'s evidence confirmed and corroborated S.M.'s evidence.

[11] I accepted S.M.'s evidence that throughout the evening S.M. had told Mr. Andrews they were not going to have sex, she was exhausted, A.B. was staying in her apartment and she was anxious and stressed because of that. I found Mr. Andrews' conduct, as described by S.M., together with the corroborating evidence of A.B. as to Mr. Andrews purpose for coming over and the altercation that occurred just after S.M. and Mr. Andrews went to bed, proved beyond a reasonable doubt Mr. Andrews squeezed S.M.'s breasts and nipples and put his hand over her vagina on top of her pajama bottoms for a sexual purpose without her consent when they first got into bed and further, that he pulled the blankets off S.M., pulled her pajama bottoms down to her knees while she was asleep and then got on top of her for the purpose of sexual intercourse when she awoke because of feeling pressure between her thighs and she stopped him from continuing by pushing him off of her. I found both incidents were sexual assaults by Mr. Andrews although there was no penetration, either digitally or with his penis, as testified to by S.M. I found there was a reasonable inference on S.M.'s evidence, which I accepted, that Mr. Andrews would have engaged in sexual intercourse if S.M. had not awakened.

Background of the Offender

[12] Mr. Andrews is currently 32 and was 30 at the time of the commission of this offence. He is single and is currently in a relationship with Taegan Bradley (age 19) for a year. They are currently living together for the past six months. Mr. Andrews and Ms. Bradley share a number of common interests, including car repair. Ms. Bradley is currently completing an auto-mechanic apprenticeship.

[13] Mr. Andrews works fulltime as a heavy equipment operator for a large sand and gravel company. After high school Mr. Andrews completed a Heavy Equipment Operator training program and in 2008 he was hired by Oshawa Sand and Gravel. He saved money and currently owns his own home. Mr. Andrews is described as a hard worker with a great positive attitude, someone the company relies upon because of his knowledge of the equipment. The probation officer spoke to one of the owners who indicated an expensive crusher was purchased that only Mr. Andrews has the knowledge and skills to operate and the company would be affected if he was unable to work. Further, Mr. Andrews took the initiative to learn how to fix all of the equipment, which made him even more valuable to the company. His employer indicated that Mr. Andrews would not lose his employment because of his conviction, although the company might have to hire a replacement if he was sentenced to a period in institutional custody. Mr. Andrews expressed his concern to the probation officer of not being able to meet his mortgage obligations if he was jailed for an extended period of time.

[14] Mr. Andrews has a prior conviction from July 7, 2016 for driving with more than 80 mgs of Alcohol in 100 mL of blood for which he received a $1750.00 fine. He was also placed on probation for 1 year.

[15] One area of concern indicated in the PSR relates in my view to his prior record as well as from the evidence of S.M. and A.B. and information provided by Mr. Andrews' mother and that deals with Mr. Andrews' consumption of alcohol. Certainly both S.M. and A.B. described Mr. Andrews as being intoxicated on the night of the offence being committed. The conviction for over 80, the elevated fine, which would be directly related to the level of Mr. Andrew's breath reading and the fact he was placed on probation indicate a concern about Mr. Andrew's alcohol consumption. It is my view, as I will discuss later in my reasons for sentence, Mr. Andrews consumption of alcohol on the July 28, 2017, was a contributing factor in his commission of the sexual assault on S.M.

[16] The PSR, for the most part, in my view, is very positive and reflects Mr. Andrews is a suitable candidate for future supervision. One other concern noted in the PSR related to a breach of undertaking and recognizance charges laid after Mr. Andrews was charged with the sexual assault. The first charge, breach of undertaking not to have contact with S.M. arose about a month after Mr. Andrews was charged with sexual assault where he attended S.M.'s residence in a highly intoxicated state. Mr. Andrews advised the probation officer he had attended there hoping to reason with S.M. as he believed the charge was a "false allegation." He was released on a recognizance to remain 100 metres away from S.M.'s residence and in May 2018 Mr. Andrews was observed walking with a friend in the parking lot behind S.M.'s apartment building. In February 2019, Mr. Andrews was convicted of both breaches and sentenced. There were no further breaches after May 2018.

[17] Those convictions arose after Mr. Andrews was charged with sexual assault and consequently, I have not considered this record in terms of assessing an appropriate sentence for Mr. Andrews. The importance of this conduct relates to what I perceive to be Mr. Andrew's difficulties with alcohol consumption and also in my assessment of whether Mr. Andrews is a good candidate for a conditional sentence, which I will address later in these reasons.

Victim Impact Statement

[18] As I indicated S.M. provided the court with a VIS, marked as Exhibit 2. She described the significant impact Mr. Andrews conduct had on her emotional well-being. Her anxiety and panic attacks, which she had experienced prior to Mr. Andrews' sexual assault, have increased. The medications she had been prescribed prior to Mr. Andrews' sexual assault had to be increased by her doctors and she has been attending counselling sessions to assist her in dealing with her increased anxiety and depression. She described how she has been unable to work because of how she has been affected emotionally and is currently on a leave of absence. It is her hope to be able to return to work in the near future. This in turn has caused S.M. financial difficulties in terms of her bills.

Mitigating and Aggravating Circumstances

[19] At the time of the commission of this offence Mr. Andrews had a criminal record for an Over 80 charge in 2016, however, apart from this, he has led a pro-social life, is gainfully and steadily employed and is a contributing member of the community. His employer values his contribution and indicates he plays a significant role in her company's success. All of the secondary sources contacted by the probation officer expressed their shock at Mr. Andrews being charged with sexual assault and indicated this was out of character. It is clear he has a positive relationship with his parents and has their support. Mr. Andrews has been living in a common law relationship with his current girlfriend who described their relationship in very positive terms. It is my view his employment record and his commitment to establish himself in his community through the purchase of a home are mitigating circumstances to be considered in the determination of an appropriate and proportionate sentence.

[20] The pre-sentence report reflected that Mr. Andrews intended to appeal his conviction for sexual assault as he believed he had done nothing wrong towards S.M. He adamantly denied culpability for the offence and stated to the probation officer, "I was dating her. We had sex all the time." It is my view Mr. Andrews has the right to dispute the findings of fact I made at the conclusion of his trial. However, the mitigation that is reflected by an offender's guilty plea and their acceptance of responsibility for their conduct is not available to an offender who proceeds to trial. Conversely, I do not view Mr. Andrews' maintaining his innocence as an aggravating circumstance.

[21] The aggravating circumstance in this case is that the sexual assault occurred in the context of a domestic intimate relationship. While Mr. Andrews and S.M. were not living in a common law relationship, the evidence disclosed they had been dating for approximately three years and their relationship had developed into an intimate one.

[22] Further, Mr. Andrews took advantage of S.M. while she was in a vulnerable state, asleep in bed after she repeatedly told him throughout the evening that she did not want to have sex with him. Despite that Mr. Andrews initially tried to initiate sexual activity with S.M. when they first went to bed and he then waited until she fell asleep when he attempted to have sexual intercourse with S.M. In my view this was an aggravating circumstance because S.M. had trusted Mr. Andrews would not continue his pursuit of initiating sexual activity after she fell asleep because of their relationship. Mr. Andrews was aware S.M. had taken her nighttime medications, which included sleep medication, as I accepted her evidence this was something she advised him of in terms of another reason she did not want to engage with him in sexual activity.

[23] Finally, another aggravating circumstance is the significant impact Mr. Andrews' conduct has had on S.M. In my view Mr. Andrews was fully aware of S.M.'s difficulties with PTSD, anxiety, fibromyalgia and depression and as a result was aware of the potential impact his conduct could have on her.

What is a Proportionate and Fit Sentence?

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

[25] Nothing I do in terms of Mr. Andrews' sentence will in any way undo what was done by him towards S.M. on July 28, 2017. Mr. Andrews' behaviour towards S.M. occurred and it cannot be undone. It is my hope, as I expressed to S.M., that she can move forward from today, put aside what Mr. Andrews did to her and not allow his actions to continue to affect her life adversely.

[26] 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.

[27] 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

[28] 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.

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

[30] It is important to note that the Crown elected to proceed by summary conviction respecting the single charge of sexual assault facing Trevor Andrews. This opens up the availability of all sentencing options for Mr. Andrews that would not otherwise be available had the Crown proceeded by indictment. Originally Mr. Andrews was released on a Promise to Appear and an undertaking before the officer in-charge of the station. This was upgraded to a recognizance with a surety as a result of Mr. Andrews breaching the no contact clause shortly after he was charged with sexual assault.

[31] Mr. Stephens submitted a conditional sentence was not appropriate in the circumstances of this case. He pointed to the fact the offence was a sexual assault and he also argued Mr. Andrews breached two releases.

[32] Mr. Mitchell-Gill submitted the factual circumstances of Mr. Andrews' sexual assault did not involve digital penetration and Mr. Andrews is in no way the worst offender. He argued a conditional sentence would be an appropriate disposition having regard to Mr. Andrews background, the nature of Mr. Andrews conduct towards S.M. and the fact that even though Mr. Andrews breached his undertaking (contacting S.M. when he was intoxicated) and his recognizance (walking in the parking lot of S.M.'s apartment building with a friend who lived close by) Mr. Andrews has complied with his current recognizance since September 9th, 2018 and there have been no further breaches.

[33] As a result of the Crown electing to proceed by summary conviction, if I determine a period of incarceration is appropriate, any sentence I impose will be below 18 months or less. Indeed, the Crown is only seeking a nine (9) to twelve (12) month sentence. Consequently, I must consider the appropriateness of a conditional sentence pursuant to s. 742.1 of the Criminal Code.

[34] There are five prerequisites for the imposition of a conditional sentence.

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

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

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

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

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

[35] The first three pre-conditions are met in this case. There is a slight concern in respect of the fourth pre-condition as to whether the safety of the community would be endangered by Mr. Andrews serving his jail sentence in the community. I have referred to the two breaches Mr. Andrews was charged with. Obviously it is very important for an offender to comply with the terms of a conditional sentence order. Offences involving a breach of a court order certainly raise the issue of whether an offender will comply strictly with the terms of the conditional sentence. In February 2019, Mr. Andrews received a sentence of 10 days intermittent, which in my view would have certainly confirmed for Mr. Andrews the seriousness of breaching a court order and the consequences that follow a breach. Mr. Andrews complied with his last recognizance strictly for 9 months from September 2018, without any breaches. Breach of a conditional sentence's terms and conditions could result in the offender serving the remainder of the sentence in real jail, in addition to any other sentence imposed for the breach. I am also of the view the imposition of a requirement to wear a bracelet under the Electronic Supervision Program during the house arrest portion of the conditional sentence effectively ensures in the case of an offender with Mr. Andrews' background that the safety of the community would not be endangered. It is therefore my view that Mr. Andrews meets the fourth pre-condition as well.

[36] In R. v. Proulx, 2000 SCC 5, at para. 127, #7, the Supreme Court directed that sentencing judges must give serious consideration to community based sentences. The only pre-condition remaining therefore is whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.

[37] I was provided with a number of cases by the Crown as support for his position as to sentence. Of course each case will be determined by its particular facts and the unique circumstances respecting the offender's background. Imposing a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime (see R. v. M. (C.A.), at para. 92). 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.

[38] In R. v. Wark, [2006] O.J. No. 3303 a sentence of six months was imposed for an assault where the offender slapped one complainant on the buttocks and where he digitally penetrated the other complainant while she slept. Justice Brophy declined to impose a conditional sentence because he believed denunciation could not be achieved. In R. v. Giraldo-Vargas, [2016] O.J. No. 6677 on a Crown summary conviction appeal from a 5.5 month conditional sentence where the complainant was intoxicated, fell asleep and was awaken by the accused digitally penetrating her. The sentencing judge imposed the conditional sentence even though the defence counsel had made submissions for a custodial sentence. Justice Then allowed the appeal and imposed a sentence of 5.5 months in real jail because he was of the view the principle of denunciation could not be adequately reflected by a conditional sentence. However, Mr. Giraldo-Vargas the offender had served the 5.5 month conditional sentence and consequently, Justice Then held he was not required to be reincarcerated.

[39] In R. v. Micula, [2016] O.J. No. 4108 imposed a 12 month custodial sentence for an offender performing cunnilingus on the victim after she had passed out for consuming cocaine and alcohol. A rape kit and the accused's evidence demonstrated he had performed oral sex on the victim while she was passed out. The sentencing judge found the accused's conduct to be callous, frightening and hugely intrusive. Although there was no penetration, it is my view the nature of the sexual assault was extremely invasive and significantly interfered with the sexual integrity of the victim. Further, the accused was much older than the victim and influenced her to use cocaine, which she had expressed she was trying to quit taking and which ultimately led to her incapacitated state.

[40] In R. v. R.D., [2017] O.J. No. 2075 imposed a nine month jail sentence on a 46 year old accused who sexually assaulted his sister's 17 year old step-daughter, who was home alone. The sexual assault involved the accused touching the victims' naked breast and vagina while she was sleeping. The accused had smoked marihuana with the victim prior to her going to bed and later waking up to find the accused in her bedroom touching her and told him to stop. The accused told her it was okay and asked her to give him five minutes and just let him do it. The victim told him to leave and pushed him away. The sentencing judge found the sexual assault was a significant breach of trust given the victim was part of the accused's extended family, she was home alone with her parents away and the accused lived on a shared family property. Further, the victim was under the age of 18, which was also a significant aggravating factor.

[41] In all of the above cases provided by the Crown the sentencing judges declined to impose a conditional sentence as the objectives of the principles of deterrence and denunciation would not be able to be adequately met. The conduct in each case was held to demand a custodial sentence to be served in a correctional facility. It is my view the conduct in each of these cases is more serious than the facts in Mr. Andrews' case.

[42] The Crown also included one of my sentencing decisions, R. v. S.C., [2017] O.J. No. 6867 where, after a trial, I imposed a 12 month conditional sentence where S.C., a first offender, in the process of massaging the victim's feet and legs after a moving day, digitally penetrated her vagina after she had fallen asleep. S.C. and the victim were platonic friends for over 13 years. When the victim awakened she told him to stop, which he did immediately. The victim asked him to leave her house, which he did. It was my view that although the relationship between S.C. and the victim did not strictly fall within the statutorily aggravating breach of trust described in s. 718.2(a)(iii), S.C.'s behaviour did breach the trust the victim placed in him because of their close friendship and I did consider that to be an aggravating circumstance on sentence. The victim had been significantly affected by S.C.'s conduct towards her because of their close friendship. I found S.C.'s behaviour to be quite invasive and intrusive. The defence relied upon my reasoning in this case to argue for a conditional sentence for Mr. Andrews if I was of the opinion an intermittent sentence of 90 days was not an appropriate sentence.

[43] One feature in the case of R. v. S.C. that was not present in Mr. Andrews' case was the fact that S.C., as a result of discussions he had with his new defence counsel on the sentencing hearing, fully accepted responsibility for his actions towards the victim and now admitted he had sexually assaulted her. S.C. accepted he had violated the victim's sexual integrity without her consent by digitally penetrating her while she was asleep. His counsel also indicated S.C. recognized he was giving up his right to appeal by this admission. S.C. also confirmed this when I gave him an opportunity to address the court prior to sentence being imposed.

[44] There is no doubt that the paramount principles of sentencing in a case involving a sexual assault are deterrence and denunciation. In R. v. Proulx, supra, at para. 22, the Supreme Court held a conditional sentence is a "punitive sanction capable of achieving the objectives of deterrence and denunciation." In para. 127, #8, the Court held:

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

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

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

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

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

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

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

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

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

[51] 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, 2015 ONSC 4304, a summary conviction appeal decision. 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).

[52] Justice Campbell continued in Smith to address cases where the Crown elected to proceed summarily and indicated jail sentences were often 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 R. v. Killam.

[53] The facts in Smith involved the accused, a youthful first offender, having sexual intercourse with a victim while she was in a deep sleep induced by a recent crystal meth binge. The victim had been sexually abused as a child and told the accused, who was her boyfriend's cousin, she was a virgin and nothing was going to happen between them that night. The accused was aware of her drug binge and knew she had not slept for several days. Justice Campbell imposed a nine month custodial sentence replacing the 16 month conditional sentence imposed by the trial judge after a trial because the although the trial judge addressed the sentencing principles of general deterrence and rehabilitation, she did not address the important sentencing principle of denunciation, which he found to be particularly significant having regard to the aggravating circumstances present. The accused had only served two months of his conditional sentence before being granted bail pending appeal and the Crown only sought a 6-9 month custodial sentence.

[54] In a recent sexual assault sentencing case, R. v. Delaney, unreported July 3, 2018, I declined to impose a conditional sentence where the accused had been invited to a Christmas party at a couple's home. The accused was a friend of the husband's brother, who lived close by, and did not know the couple whose house the party was at. The accused and his partner were "swingers" and apparently there were others in attendance at this party who were also "swingers." At a point where the party was ending the victim indicated she was tired and was going to bed to sleep. She went to bed. The accused approached two woman at the party, one who had gone to bed in a trailer on the property, he told her he wanted to have intercourse with her and tried to get into bed with her but she told him no and he left. He approached another woman and told her he wanted to have intercourse, when she said no he offered to perform oral sex, again she said no and he left. He then went into his friend's sister-in-law's bedroom where she was asleep. She awoke to find the accused on her bed with his fingers digitally penetrating her vagina. She pushed him away and he then grabbed her buttocks and told her she wanted to get it on. She told him to leave and he then offered to perform oral sex. She again told him to leave and he finally did. This was a guilty plea. It was my view the aggravating circumstances, which included: i) the accused attempting to have sex with two other women he did not know; ii) the accused sexually assaulted the victim in her bedroom in her home; iii) he did not know the victim; iv) even when she said no he persisted two further times; v) the sexual assault involved penetration of the victim's vagina and vi) the sexual assault occurred when the victim was asleep, could not adequately reflect the sentencing principle of denunciation. I recognized the accused was a first offender the principle of rehabilitation could not be ignored and after balancing all of the appropriate sentencing principles I imposed a 9 month custodial sentence to be served in a real jail.

[55] 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).

[56] 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."

[57] Mr. Andrews was in a long-term, intimate relationship with S.M. The PSR was very positive concerning Mr. Andrews' work history and the effort he put into his employment. His employer spoke in extremely glowing terms of his value and dedication to her company. He has strong support from his family and current partner and has led a pro-social life as a contributing member of the community. He started working in his current employment at a young age, saved his money and bought his own home. The only negative aspect of his background relates to his consumption of alcohol, which in my view was a significant contributing factor in the commission of the offence against S.M. The fact he was intoxicated the night of the offence was testified to by S.M. and A.B. His criminal record, which consisted of a conviction for over 80, reflects his problems with alcohol.

[58] As I indicated earlier in my reasons Mr. Andrews is entitled to maintain his innocence respecting the charge of sexual assault I found him guilty of. His comment to the probation officer, "I was dating her. We had sex all the time," in my view, reflects perhaps a faulty perception and attitude on Mr. Andrews' part in not recognizing that intimate partners can say they are not interested in having sex and the other partner must respect that by not pressuring or forcing sex or waiting till their partner falls asleep. It is my view based on the totality of the evidence that at the time of the commission of the offence Mr. Andrews was under the influence of alcohol, which clouded his judgment and led to his first attempting to persuade S.M. to have sex with him and when she continued to refuse he took advantage of her when she fell asleep. He told A.B. just before going to bed he had come over to see S.M. in order to have sex with her.

[59] I do not agree however with the Crown's submission, based on the cases he provided and others I am familiar with, some of which I have referred to, that the appropriate sentence having regard to the specific circumstances of this case is 9-12 months. In my view, based on the caselaw and the fact that there was no penetration of any kind alleged by S.M., an appropriate range of jail sentence to be served in a custodial facility would be 4 to 6 months. This does not resolve the issue of whether a conditional sentence, with the appropriate restrictive conditions and lengths, could meet the sentencing principle of denunciation.

[60] I am of the view that on a careful balancing of all of the relevant sentencing principles and the mitigating and aggravating factors present in this case, neither a custodial sentence of 4 to 6 months served in a reformatory nor a conditional sentence with restrictive and onerous conditions served in the community can be said to be unfit. It is my view the principle of denunciation can be adequately reflected in a custodial sentence served in the community where the Electronic Supervision Program (ESP) is a significant feature of the conditional sentence. In those circumstances, what tips the balance between the two alternatives is the important principle of restraint that underlies s. 742.1, (see R. v. Wismayer, at paragraphs 67-68 and R. v. Proulx, at para. 100). Mr. Andrews has never served a custodial sentence. It is my view the principles of general deterrence and denunciation can be properly addressed by a nine (9) month conditional sentence, with restrictive conditions involving house arrest with ESP and community service, so that it is not "life and business as usual" for the Mr. Andrews (see R. v. P.R., [2013] O.J. No. 1330, at para. 124, where on appeal a 6 month conditional sentence was substituted for a 60 day sentence imposed after trial). Finally, it is my view the principle of rehabilitation in the form of counselling and in making reparations to the community through community service together with the promotion of a sense of responsibility on Mr. Andrews' part, can be best addressed through a custodial sentence served in the community as opposed to an actual jail sentence. It is my view a 9 month conditional sentence is a proportionate sentence having regard to the gravity or serious of this offence and Mr. Andrews' degree of responsibility or moral blameworthiness.

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

Conditional Sentence Conditions

[62] Mr. Andrews will be subject to the following Statutory Conditions:

1. Keep the peace and be of good behaviour;

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

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

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

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

[63] Additional conditions:

1. Residence

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

2. Reporting

You must report immediately to the supervisor and thereafter as required by your supervisor or any person designated to assist in your supervision;

3. House Arrest

This home confinement condition will be in effect for the entire 9 months of the sentence;

4. Electronic Supervision Program

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

EXCEPT

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

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

iii. for purposes of employment at Oshawa Sand and Gravel, Ontario (days and times to be confirmed by supervisor);

iv. for travel directly to and from or being at Oshawa Sand and Gravel or working for Oshawa Sand and Gravel;

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

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

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

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

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

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

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

5. Home Confinement Compliance

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

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

6. Electronic Supervision Program Details

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

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

3. You shall be placed on Electronic Supervision for the period of nine (9) months;

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

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

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

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

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

7. No Contact/Communication/Attendance

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

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

8. Counselling and Treatment

1. Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the supervisor and complete them to the satisfaction of the supervisor, including but not limited to:

   • Alcohol abuse;
   • Programs addressing sexual violence and understanding of consent; or
   • Any other reason your supervisor deems appropriate.

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

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

9. Community Service

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

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

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

2. Report to probation officer as required;

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

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

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

6. Continue counselling if not yet completed;

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

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

9. Complete remainder of community service hours commenced during conditional sentence order, if necessary, and, remaining community service hours must be completed within first twelve (12) months of commencement of probation.

Additional Orders

[65] There will also be a SOIRA order 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.

[66] There will also be an order pursuant to s. 110 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.

[67] There will also be a DNA order 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.

Released: June 17, 2019

Signed: Justice Peter C. West