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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: 2020-09-18

Court File No.: Central East Region: Oshawa Courthouse 18-45566-00

Between:

Her Majesty the Queen

— AND —

C.G.

Before: Justice Peter C. West

Written Submission by Counsel Provided on: June 22, 2020

Oral Reasons for Sentence Provided on: September 18, 2020

Counsel:

Ms. D. Portolese — counsel for the Crown

Mr. S. Fraser — counsel for the accused C.G.

WEST J.:

INTRODUCTION

[1] C.G. was charged with the following offences in respect of C.P.:

i) Sexual Assault, 271 of the Criminal Code of Canada;

ii) Assault, contrary to s. 266 of the Criminal Code of Canada;

iii) Forcible Confinement, contrary to 279(2) of the Criminal Code of Canada; and

iv) Utter forged document, (Manulife Financial Home Line of Credit) between March 1 and March 31, 2018, contrary to s. 368(1)(a) of the Criminal Code of Canada.

[2] The Crown elected to proceed summarily in respect of the four charges before the court. C.G. pleaded not guilty to the first three charges on the Information. Mr. Fraser advised that C.G. would plead guilty to the charge of utter forged document because he signed C.P.'s signature on the Manulife Financial Home Line of Credit and used this document as if it was genuine thereby committing the offence. C.G. was not prepared to admit however that he coerced or misled C.P. to get her to provide documents or to sign certain documents or that she signed documents as a result of any duress exerted by C.G. It was C.G.'s position C.P. was fully aware why he needed her to provide documentation to Manulife and she was aware he signed her name to the document and provided her consent. Mr. Fraser indicated the facts respecting the signing of this document would be presented in the evidence of the witnesses and whether C.P. signed under duress or coercion would have to be a finding by the court at the conclusion of the case. As a result, no facts were provided after C.G. entered his plea of guilty, following my plea inquiry. The defence was requiring the Crown to prove beyond a reasonable doubt the aggravating circumstances surrounding his commission of the offence of utter forged documents.

[3] The presentation of evidence occurred over 3 days in December 2019. At the conclusion of the trial the Crown requested that the charge of forcible confinement be dismissed, as the evidence did not support proof of that charge beyond a reasonable doubt. I found that the aggravating circumstances alleged by the Crown respecting the charge of utter a forged document that C.G. pleaded guilty to were proven beyond a reasonable doubt and therefore will be considered by me in determining an appropriate and fit proportionate sentence on that charge. I found that although I had suspicions concerning the assault charge the Crown had not proven this charge beyond a reasonable doubt and as a result, I dismissed it.

[4] I found C.G. guilty of the charge of sexual assault beyond a reasonable doubt for the reasons set out in my judgment dated March 5, 2020.

FACTUAL BACKGROUND

[5] I do not intend to go through my factual findings in detail as they are extensively set out in my reasons for judgment. I will provide only the essential findings of fact, which relate to the imposition of a proportionate, fit sentence.

[6] C.G. and C.P. had previously been involved in boyfriend/girlfriend relationship in 2012 for approximately a year. They lived together for about eight months during that year. They reconnected in April 2017, as a result of C.G. reaching out to C.P. through Instagram. C.P. discovered she was pregnant in May 2017 and she and C.G. decided to proceed with the pregnancy. C.P. moved into C.G.'s home again and their daughter was born January 3, 2018.

[7] The birth and delivery of C.P.'s daughter was very difficult, and I accepted her evidence that she was in considerable, continuing pain and discomfort as a result of certain medical procedures performed during the birth. This circumstance lasted for several months. I found C.G. was fully aware of C.P.'s pain and difficulties following the birth and delivery of their child. I found from the text messages entered between C.G. and C.P. during the trial that C.G. had been persistently pressuring C.P. to engage in sexual activities and to have sexual intercourse with him. I further found C.G.'s denial of putting pressure on C.P. to engage in sexual intercourse after the birth of their child to be completely inconsistent with C.G.'s demands together with his sentiments and attitudes expressed in these text exchanges. I found C.G. was persistently demanding sex from C.P. and that he told her in the texts that she was being selfish, they could do other things and they all had to make sacrifices. He told her that he had never had to ask for sex previously. I found C.G.'s evidence to be internally inconsistent, inconsistent with the clear text messages he had sent to C.P., evasive and vague in his answers to the Crown's questions as to his conduct and his memory about events, which were clearly important to him. His answers were often selective and deliberately designed to mislead. I found the text messages reflected someone who viewed sexual relations with his partner as his right – something he expected to happen when he requested it. I found C.P.'s eventual consent to have sexual intercourse with C.G. was conditional upon whether engaging in intercourse caused her pain or discomfort. I accepted C.P.'s testimony that as soon as C.G. began to engage in intercourse with her, she told him to stop, as it hurt and was causing her pain, but C.G. ignored her request to stop, intentionally disregarded her withdrawal of consent and continued having intercourse until he finished by ejaculating.

[8] I further accepted C.P.'s evidence that on numerous earlier occasions C.G. grabbed her breasts when she was about to breast feed their daughter or when she had just finished breast-feeding. I found there were occasions C.G. grabbed her vaginal area over her clothes from behind when she was doing dishes or some other household chore. C.G. admitted in his evidence that he would caress C.P.'s buttocks when he came up behind her, trying to get her interested in engaging in sexual activities. I accepted C.P.'s evidence that she would repeatedly tell C.G., "No," that she was not interested in engaging in sexual activities. I accepted C.P.'s evidence of C.G. "dry humping" her on two occasions when he was trying to get her to engage in sex and she told him she was not interested. I found C.G. had the fallacious belief his conduct would get C.P. to acquiesce and engage in sexual relations with him. I also found C.G. was fully aware C.P. did not want to engage in sexual relations of any kind after the birth of their child but he was persistent in requesting she do so.

[9] On the occasion C.G. engaged in sexual intercourse with C.P., I did not accept C.G.'s evidence that he and C.P. discussed having intercourse and she simply agreed. C.G.'s evidence on this issue was inconsistent and evasive. He ultimately agreed in cross-examination that C.P. had voiced concerns about whether having intercourse would hurt her and cause her pain. I found on the evidence C.P.'s agreement to participate in the intercourse was conditional. I accepted C.P.'s testimony that as soon as C.G. began having intercourse with her, she immediately told him to stop because it hurt and was causing her pain. I found that C.G. should have immediately stopped what he was doing but he continued until he ejaculated. I found that C.G. did not take reasonable steps to ensure C.P. was in fact continuing to communicate consent to have intercourse. I found there was no air of reality to the defence of honest but mistaken belief in communicated consent. C.G. ultimately agreed in cross-examination C.P.'s consent to have intercourse was premised on her saying she was prepared to try it out, to see if it caused her pain. He knew her communicated consent was conditional. I found C.G. despite being told to stop by C.P. because of the pain she was experiencing continued to have intercourse with her, telling her, "It will be quick, I need this." I found he told C.P. it would only be a minute and shortly after saying this he ejaculated. He did not accede to her withdrawal of consent and I found his continued conduct was a sexual assault.

[10] As a result of my factual findings, I concluded the Crown had proven the charge of sexual assault beyond a reasonable doubt as it related to the instances of C.G. touching C.P. in a sexual manner without her consent and not stopping sexual intercourse when she withdrew her consent.

[11] Respecting the uttering forged document charge I found in addition to C.G.'s admission by his guilty plea that he signed C.P.'s name on the mortgage documents and presented it to Manulife Financial as if it were genuine, as well, I found C.G. misled and coerced C.P. to provide documents and sign documents. C.G. continually referred to C.P. as being a "guarantor" in his testimony, however I found by signing the documents C.G. provided her, she was in fact a co-applicant on the application for a line of credit on his house's equity. As a co-applicant C.P. was at risk, if C.G. defaulted on his line of credit payments, and that Manulife could look to her for reimbursement. C.G.'s actions caused C.P. to have to retain a lawyer to have her name removed as a co-applicant on C.G.'s mortgage.

[12] I found the Crown proved the aggravating circumstances in respect of this charge and was therefore permitted to refer to them in determining an appropriate sentence.

POSITION OF THE PARTIES

[13] It is the Crown's position that the appropriate sentence for the offence of sexual assault is 18 months imprisonment to be followed by 3 years' probation with conditions. The Crown submitted, while a custodial sentence might have been appropriate for the uttering of a forged document, it would not be necessary over and above the 18 month custodial period the Crown was seeking for the sexual assault having regard to the sentencing principles of totality and restraint. The Crown further submitted the paramount principles of sentencing were denunciation and deterrence.

[14] The defence sought a 12-15 month conditional sentence on the sexual assault charge and a suspended sentence on the charge of utter forged document. The defence argued, in the alternative, if a conditional sentence alone was unable to properly address all of the relevant sentencing principles then a conditional sentence of 12-15 months on the sexual assault charge could be coupled with a 60 day intermittent sentence in relation to the utter forged document charge. The defence submitted this alternative would "address any concerns regarding a conditional sentence comprising a fit sentence under the present circumstances." The defence argued C.G. has no prior criminal record and consequently, rehabilitation and restraint were important sentencing principles to consider.

VICTIM IMPACT STATEMENT

[15] A victim impact statement (VIS) was provided pursuant to s. 722(1) of the Criminal Code by the victim, C.P.

722 (1) When determining the sentence to be imposed on an offender or determining whether the offender should be discharged under section 730 in respect of any offence, the court shall consider any statement of a victim prepared in accordance with this section and filed with the court describing the physical or emotional harm, property damage or economic loss suffered by the victim as the result of the commission of the offence and the impact of the offence on the victim.

[16] Mr. Fraser, in his written submissions, highlighted s. 722(8), which reads:

(8) In considering the statement, the court shall take into account the portions of the statement that it considers relevant to the determination referred to in subsection (1) and disregard any other portion.

[17] It was defence counsel's concern that C.P. referred to allegations against C.G. that she had not expressed in her testimony. Pursuant to s. 722 a victim is entitled to express the emotional impact an offender's conduct had on themselves. Mr. Fraser objected to C.P.'s assertion that C.G.'s intimidation – "the weapons, manipulation and threats worked to control" her. The only weapon referred to by C.P. was an item she believed was a "taser" that she testified she found in the kitchen and later C.G. demonstrated to her in the spare room. I am not influenced in any way by any comments made by C.P. in her Victim Impact Statement that were not testified to by her in the witness stand.

[18] I am instructed to treat as an aggravating factor the fact that the conduct of C.G. had a significant emotional impact on C.P., as attested to in her VIS. In her evidence C.P. maintained that after the birth of their daughter C.G. intimidated and manipulated her to get her to engage in sexual relations with him. The "taser," which was not produced during the trial, C.P. described as being used by C.G. to intimidate and threaten her and I do not agree with Mr. Fraser's characterization of C.P.'s evidence regarding the taser. The Crown did not make any submissions respecting the "taser" incident but rather focused on the significant impact C.G.'s conduct had on her, in terms of her having to deal with anxiety and depression. What is abundantly clear from the victim impact statement and C.P.'s testimony in court is that C.G.'s sexual conduct towards her, after the birth of their daughter, had a significant impact on her emotional wellbeing up to the time of her writing the VIS. C.P. advised the probation officer that she has sought therapy and counselling to assist her with anxiety, trauma, stress and panic attacks she attributes to C.G.'s actions.

[19] Mr. Fraser was also concerned about C.P.'s attempts to influence C.G.'s sentencing by expressing to the probation officer that "a period of incarceration would make her feel safe" or her comment in her VIS that "As long as [C.G.] is walking freely on the streets, I will not be able to move forward with my life." As I expressed during counsels' submissions, the fundamental principle of sentencing is proportionality, which refers to the seriousness of the offence and the moral blameworthiness of the offender. Although C.P. is entitled to her belief as to what she believes an appropriate sentence should be, as the sentencing Judge, I am bound to be guided by the sentencing principles set out in the Criminal Code, which I will set out later in these reasons. C.P.'s comments respecting C.G. being sentenced to a custodial sentence have not played any role in my determination of a proportionate offence.

[20] C.P. described continuing to experience fear as to what C.G. might do in the future. She described constantly looking over her shoulder, not leaving her house without her cellphone and telling a friend or family member where she is going. She has installed security cameras around her house and advised she has put safety plans in place respecting her daughter's daycare. She advised she continues to experience nightmares, flashbacks, panic attacks, anxiety and fear. It is clear from C.P.'s VIS that C.G.'s conduct had a significant impact on her at the time and subsequently after she and C.G. separated.

[21] It is my hope that C.P. will be able to overcome these feelings and move forward with her life through the counselling she has undertaken. It will be up to the Unified Family Court to work out access respecting C.P. and C.G.'s daughter and it is also my hope that C.P. and C.G. will be able to work out with the Family Court how both parents can be involved in their daughter's future.

CIRCUMSTANCES OF THE OFFENDER

[22] C.G. is 39 years of age. He is not married and has a daughter, age two and a half, with the complainant, C.P. A temporary Family Court order was put in place after a section 30 custody assessment was ordered sometime in 2019. Prior to the Covid-19 pandemic, C.G. could see his daughter for a period of two hours a week at an alternative supervised access centre while awaiting Family Court proceedings. Due to Covid-19, those visits have been suspended and C.G. has not seen his daughter for several months. This circumstance has caused C.G. to not be involved in any way, even supervised access, with his daughter, which is unfortunate. This will have to be addressed and resolved by the Unified Family Court.

[23] He has no previous criminal record. He was previously employed at a car manufacturing plant for 10 years. He left this job to return to College for firefighting training and education, successfully graduating from that program. Currently, he has completed three years of a five-year apprenticeship to become a licensed fire sprinkler technician. He has worked as a fire sprinkler technician for multiple companies for periods of three to seven months. C.G. advised the probation officer his reasons for leaving some of these companies were due to his taking paternity leave after his daughter was born, being laid off and he was let go from one company due to a judgment filed against him. C.G. told the probation officer he was let go from this job because of C.P.'s mother calling his employer repeatedly to have his wages garnished. C.G. is currently employed with Classic Fire Protection Inc since November 2019, as a sprinkler apprentice but is currently only working four hours per week due to Covid-19. He is also doing construction work and is the owner of the Durham Region soccer centre. C.G. purchased his own home when he was 27 years of age and it is clear from the PSR he has been a contributing member of the community by being steadily employed since completing high school.

[24] C.G. denies having any issues with alcohol, although the section 30 assessment caseworker suggested C.G. attend an educational program (Pathways program) on substance abuse at Pinewood, which he completed on February 5, 2020. The probation officer spoke to the police officer in charge of the case who suggested alcohol was involved in the incident, however, this was not disclosed in any evidence led by the Crown during C.G.'s trial. C.P. did not allege C.G. was under the influence of alcohol during any of the occasions of sexual assaultive conduct. I do not place any reliance on the officer's opinions, expressed in the PSR, in my assessment of C.G. The doctor involved in the section 30 assessment, Dr. Marcoux, C.G.'s doctor, provided information in a letter dated October 9, 2019, which reflected random drug screening urine tests were completed pursuant to the section 30 assessment. The drug screens were conducted as a result of an allegation by C.P. that C.G. was a drug addict, and according to Dr. Marcoux, the random drug screening tests were all negative for drug use.

[25] I received several character letters from friends and family members on behalf of C.G., who advised they were shocked by the charges facing C.G. These character letters describe C.G. as a good friend, who is supportive and caring and a hard worker. A letter from a former girlfriend, now friend, was provided and his current girlfriend was interviewed by the probation officer for the PSR. Both women indicated having a positive intimate relationship with C.G., however, the probation officer expressed a concern about conflicting reports with regards to his relationships with romantic partners. The probation officer noted that while C.G. denied inflicting harm to his partners, the probation officer believed there was a pattern of abusive behaviours which required further exploration. No evidence was led by the Crown respecting this issue and as a result, it does not factor into my determination of a proportionate sentence.

[26] C.G. maintains his innocence, which he is entitled to do. As I will discuss later in my reasons, C.G. is entitled to maintain his innocence and is not required to accept my findings on his trial. I do not consider this to be an aggravating circumstance on sentence. However, some of C.G.'s comments to the probation officer were inconsistent with his testimony at the trial and as I discussed in my reasons for judgment, one aspect of C.G.'s testimony, which would have required a s. 276 application and which was not brought by the defence, continued to be asserted by C.G. in his interview for the pre-sentence report. C.G. asserted in his interview with the probation officer that "before the victim got pregnant, they would be intimate roughly once or twice a week and had a healthy sexual relationship." He added, "they both initiated sex equally and that the victim enjoyed sex as much as he did." This is similar to his testimony at the trial where he stated C.P. was a sexual person and asserted they had intercourse twice after their daughter was born. As I indicated in my reasons for judgment, the defence did not bring a s. 276 application respecting C.G.'s and C.P.'s sexual relationship leading up to the allegations or whether they had sexual intercourse on another occasion after the occasion testified to by C.P. I did not consider C.G.'s comments at the trial and it is my view they do not in any way lessen the seriousness of C.G.'s sexual assault.

MITIGATING CIRCUMSTANCES

[27] C.G. does not have a criminal record, and this is his first criminal conviction, although at the age of 39, he is not a youthful first offender. It is my view this is a mitigating circumstance, which brings into play the sentencing principle of restraint in s. 718.2(e).

[28] He is currently employed and has led a pro-social life as a contributing member of the community. He owns his own home, which reflects his being steadily employed. It was a line of credit involving his house that was the subject of the utter forged document offence that C.G. pleaded guilty to. All of the secondary contacts expressed their belief he is a hard-working individual and were shocked by the fact he was convicted of the offence of sexual assault, indicating this was out of character. He has the support of his parents and is currently in a new relationship with a young woman. These are all mitigating circumstances to be considered in determining an appropriate and proportionate sentence.

[29] As indicated C.G. maintains his innocence in respect of the sexual assault charge, which he is entitled to do. This cannot be viewed as an aggravating circumstance, however, C.G. does not have available the mitigation that would be available to an individual who pleads guilty, accepts responsibility and expresses remorse for their actions, as well as demonstrating insight into the underlying cause(s) of their conduct. As expressed by the Ontario Court of Appeal in R. v. Shah, 2017 ONCA 872, at para. 8:

Lack of remorse is not ordinarily a relevant aggravating factor on sentencing: R. v. Valentini, at para. 82. It cannot be used to punish the accused for failing to plead guilty or for having mounted a defence: Valentini, at para. 83; R. v. J.F., 2011 ONCA 220, at para. 84, 105 O.R. (3d) 161; aff'd on other grounds in 2013 SCC 12, [2013] 1 S.C.R. 565. Absence of remorse is a relevant factor in sentencing, however, with respect to the issues of rehabilitation and specific deterrence, in that an accused's absence of remorse may indicate a lack of insight into and a failure to accept responsibility for the crimes committed, and demonstrate a substantial likelihood of future dangerousness: Valentini, at para. 82; R. v. B.P., 190 O.A.C. 354 (C.A.), at para. 2.

[30] As indicated in Shah, C.G.'s potential for successful rehabilitation is directly related to his level of insight and awareness into what precipitated his sexual assault of C.P. As I indicated in my reasons for judgment, C.G.'s comments and demands to C.P. in his text messages reflect an individual who views sexual relations with his common-law partner as his right – something he expects to happen when he requests it. In my view this attitude reflected by these text messages raises concerns for C.G.'s future rehabilitation and whether he will be specifically deterred. Engaging in sexual relations with your spouse or common-law partner is not a right simply because of the existing intimate relationship – "No does not mean yes." C.G. was required to stop when C.P. told him to stop and he was required to obtain a clear and unequivocal "yes" before continuing (see R. v. Ewanchuk, at paras. 51-52).

AGGRAVATING CIRCUMSTANCES

[31] One of the aggravating circumstances in this case is that the sexual assault occurred in the context of a domestic intimate relationship where C.P. and C.G. were living together and ultimately had a daughter together. Section 718.2(a)(ii) provides that "evidence that the offender, in committing the offence, abused the offender's spouse or common-law partner" shall be deemed an aggravating circumstance. It is my view C.G. and C.P. were in a common-law relationship having regard to the circumstances surrounding their relationship, (see R. v. McLeod, at para. 17).

[32] It is my view s. 718.2(a)(iii) is applicable to this case having regard to the intimate common-law relationship that existed between C.G. and C.P for close to a year. Even where the defendant does not occupy a traditional position of trust in relation to the complainant, the Ontario Court of Appeal has held that s. 718.2(a)(iii) is engaged if the offence consisted of abusing the element of trust that formed the basis of the intimate relationship between the defendant and the complainant, (see R. v. R. (C.), 2010 ONCA 176, at paras. 84-86, and R. v. McGregor, 2008 ONCA 831, at paras. 30-31; more recently in R. v. Kormendy, 2019 ONCA 4374, at para. 28, Feldman J.A. for the court stated that domestic partner victims are "uniquely vulnerable because they are in a relationship of trust with the perpetrator"; see also R. v. P.M., 2020 ONSC 3702, at paras. 111-115).

[33] A further aggravating circumstance arising from my findings of fact relates to C.G.'s persistence in attempting to get C.P. to agree and consent to engaging in sexual relations with him after the birth of their daughter. C.G. eventually admitted in cross-examination he was aware of C.P.'s continuing pain and discomfort caused by the difficult birth and delivery, which he was present for and which he described as C.P. being "ripped." Many of the earlier instances of sexual assault relate to C.G. grabbing C.P.'s breasts when she had just finished breast-feeding their daughter or when she was getting ready to commence breast-feeding. I found C.G. also sexually assaulted C.P. by grabbing her buttocks or grabbing her vaginal area over her clothes and on two occasions, grabbing her from behind and "dry humping" her. I found his text messages to C.P. clearly demonstrated his frustration and anger, as a result of her repeated refusal to engage in any type of sexual relations after their daughter's birth.

[34] I found C.G.'s texts corroborated C.P.'s evidence that C.G. demanded sex from her on a frequent basis. Those texts are completely inconsistent with his assertion in the PSR that after C.P. had their baby he asked her "if she was ready to be intimate again – he never forced her to be intimate – it was her body and her right to say no." C.G. made similar assertions during his testimony during the trial, which I found were inconsistent with his many texts demanding sex from C.P., who he claimed was being selfish and not prepared to sacrifice herself for him. I do not accept his assertions both during the trial or in the PSR. His statement to the probation officer, "They did eventually become intimate, but it was not as often as he wished" (p.10), in my view reveals C.G.'s true attitude concerning this issue, as I found in my reasons for judgment. C.G. told the probation officer he believed "there are instances where a woman will say things just to get a man into trouble," and he knew this from personal experience and believed this was the case regarding C.P.'s allegations against him. As I found in my reasons for judgment, C.G. was not concerned about C.P.'s medical condition after the birth and delivery, his only concern was whether C.P. would engage in sexual activities with him to satisfy his wants and desires. This fallacious attitude was directly responsible for his not discontinuing intercourse with C.P. when she told him to stop just after he commenced because it was causing her pain and discomfort. C.G. ultimately agreed in cross-examination he knew C.P.'s consent was conditional on whether she experienced pain.

[35] The fact C.P. initially consented to try engaging in sexual intercourse with C.G. did not mean she could not change her mind. C.G. clearly does not understand this part of the definition of consent. The fact C.G. and C.P. were in a common-law intimate relationship did not mean there was a presumption of ongoing or continuous consent to sexual engagement. Section 273.1(2)(e) provides: "No consent is obtained, for the purposes of section 271, where (e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity." I found C.G. knew that C.P.'s consent was conditional on the intercourse not causing her pain or discomfort. I found C.G. to be evasive and equivocal on this issue with a selective memory and I accepted C.P.'s evidence that when she told C.G. to stop because it was causing her pain, C.G. told her, "It will be quick, I need this," telling her it would only be a minute and shortly after saying this he ejaculated. It is my view the prolonged and repeated sexual assaults by C.G. towards C.P. after the birth of their daughter, when C.P. was clearly communicating to C.G. that she did not want to engage in sexual activity of any kind, is an aggravating circumstance in this case.

[36] Finally, another aggravating circumstance is the significant impact of C.G.'s persistence in pressuring C.P. to engage in sexual relations when she was recovering from the birth and delivery of their daughter. I found C.G. was fully aware of C.P.'s decision not to engage in sexual activities with C.G. due to her continuing pain and discomfort, yet he frequently demanded she should give into his demands because he needed sex. Pursuant to s. 718.2(a)(iii.1) the significant impact on C.P., as reflected in her testimony and in her VIS is to be considered as an aggravating circumstance.

SENTENCING PRINCIPLES TO BE APPLIED

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

[38] 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.

[39] 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.

[40] 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.

[41] 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.

[42] The Ontario Court of Appeal has made it clear that the sentencing principles of denunciation and deterrence take on increased importance in cases involving domestic violence, (see R. v. Boucher, at para. 27). In R. v. Thurairajah, 2008 ONCA 91, at para. 41, Doherty J.A. observed that for serious crimes of personal violence and sexual assaults in particular, while rehabilitation and other sentencing objectives remain important, denunciation and general deterrence "gain prominence".

[43] It is important to note that the Crown elected to proceed by summary conviction respecting the single charge of sexual assault facing C.G. This makes available to C.G. the sentencing option of a conditional sentence that would not otherwise be available had the Crown proceeded by indictment. As a result of the Crown electing to proceed by summary conviction the maximum custodial sentence I can impose is 18 months or less. The Crown is seeking the maximum sentence of 18 months in "real" jail and the defence is seeking either a conditional sentence of 12 to 15 months for both offences or a conditional sentence of 12 to 15 months for the sexual assault "coupled with a 60 day jail sentence to be served on an intermittent basis in relation to the charge of utter forged document.

[44] Consequently, I must consider the appropriateness of a conditional sentence pursuant to s. 742.1 of the Criminal Code. The issue that must be determined is whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code.

[45] 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.

[46] It is my view the first four prerequisites are met in the circumstances of C.G.'s case. The Crown elected to proceed by summary conviction and consequently, sexual assault is not an excluded offence, there is no minimum sentence provided and the maximum sentence is 18 months. C.G. is a first offender and has been on bail since his arrest without any further involvement with the police by way of breach of his release conditions or being involved in new offences. The only issue remaining is whether in the factual circumstances of C.G.'s case a conditional sentence is consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code.

DETERMINATION OF A PROPORTIONATE SENTENCE

[47] I was provided with four cases by the defence to support their position a conditional sentence was an appropriate sentence, although counsel conceded, "these cases do not bear much of a factual resemblance to that of the matter before the Court:"

a. R. v. L.F.W., 2000 SCC 6 – This was a 20 year historical allegation of indecent assault and gross indecency (9-10 occasions) when the victim was between 6 and 12 years of age and the accused was between 22-28 years of age. The sentencing judge imposed 21 month conditional sentence and probation. It should be noted that considering the recent decision of the S.C.C. in R. v. Friesen, it is difficult to see how this case would be decided in the same way given this case dealt with sexual offences involving children;

b. R. v. A.C., 2012 ONCA 608 – This case involved the historical sexual assault of a teenaged relative by the accused. The sentencing judge imposed a two year less a day conditional sentence with a three year probation order. Again, this case was decided prior to Friesen and prior to the Ontario Court of Appeal case of R. v. Rafiq, 2015 ONCA 768, at para. 27 where the Court of Appeal held that a conditional sentence should rarely be imposed in cases involving the sexual touching of children by adults, particularly where the sexual violation is of a vulnerable victim by a person in a position of trust;

c. R. v. M.B., 2006 ONSC 5876 – This case was decided prior to the amendments to s. 742.1 of the Criminal Code barring conditional sentences where the Crown elected by indictment in respect of offences of sexual assault, s. 742.1(f)(iii). Further, the 18 month conditional sentence imposed in R. v. M.B., would not likely be imposed today having regard to the numerous decisions in the Ontario Court of Appeal, which indicate the range of sentence for a sexual assault involving intercourse where the victim, a spouse or ex-spouse, was asleep or incapacitated is 21 months to 4 years, see R. v. Smith, 2011 ONCA 564, at para. 87, R. v. H.E., 2015 ONCA 531, at para. 44. Further, in R. v. Bradley, 2008 ONCA 179, the court indicated 3 to 5 years was the appropriate range of sentence in a sexual assault case involving intercourse between strangers. In addition, there are additional cases in the Ontario Court of Appeal, which indicate a conditional sentence would not be able to properly address the sentencing principles of denunciation and general deterrence and proportionality where the Crown has proceeded by summary conviction, see R. v. Killam, at paras. 13-16, R. v. Thurairajah, 2008 ONCA 91, at paras. 43-46 and R. v. Macintyre-Syrette, 2018 ONCA 706, at paras. 19-21;

d. R. v. P.D., 2002 ONSC 5260 – This case involved the uncle of the victim, who was under the influence of alcohol, having sexual intercourse with his niece, who was also under the influence of alcohol and was awakened when her uncle penetrated her vagina. He did not stop what he was doing despite her telling him to. After a trial, the trial judge imposed a 15 month conditional sentence despite noting the offender breached a position of trust in respect of the victim, who was less than half the age of the offender. The trial judge also commented that the victim had minor physical injury and no evidence of psychological injury. It is my view in light of the Supreme Court's recent decision in R. v. Friesen and the Ontario Court of Appeal decisions of R. v. D.D. and R. v. Woodward, 2011 ONCA 610 and the amendments that have been made to s. 718.2 respecting aggravating factors (s. 718.01, 718.2(a)(ii.1) and 718.2(a)(iii.1)), I cannot conceive of such a sentence being imposed today. Finally, a conditional sentence would not be permitted today for a sexual assault proceeded by way of indictment pursuant to s. 742.1(f)(iii).

[48] The Crown provided me with cases involving a sexual assault towards an intimate partner, submitting if the Crown had proceeded by indictment in this case the Ontario Court of Appeal has established a range of three to five years in the penitentiary as being the appropriate range for a single offence of sexual assault that involves a completed act of unprotected vaginal intercourse, citing R. v. McCaw, 2019 ONSC 3906, at paras. 59-60. Justice Spies referred to the decision of R. v. Bradley, supra, to support this sentencing range. The Crown submitted this sentencing range for a sexual assault involving sexual intercourse justified her submission that C.G. should be sentenced to the maximum allowable sentence of 18 months. In a subsequent case decided by Justice Spies, R. v. P.M., 2020 ONSC 3702, she referred to the decision of the Court of Appeal in R. v. Smith, 2011 ONCA 564, (referred to above) where the Court held the appropriate sentencing range for a single forced intercourse of a spouse or former spouse was 21 months to four years. In P.M., Justice Spies was not able to reconcile the differences between the Bradley and Smith line of cases and imposed a three year sentence.

[49] The Crown also referred to two sentencing decisions of mine, R. v. Andrews, [2019] O.J. No. 3351 and R. v. Delaney, [2018] O.J. No. 7191. I do not intend to discuss either of these cases in detail, as they were decided on the peculiar and unique factual circumstances present in each case. In Andrews, where there was no digital penetration of any kind, I determined that the principles of denunciation and deterrence could be properly addressed by a conditional sentence with restrictive conditions. In Delaney, it was my view the aggravating circumstances significantly increased the seriousness of the sexual assault, as well as Mr. Delaney's moral blameworthiness such that the principles of denunciation and deterrence could only be properly addressed by a custodial sentence to be served in "real jail."

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

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

[51] 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.

[52] 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).

[53] 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." The sole remaining issue respecting the imposition of a conditional sentence is whether C.G.'s moral blameworthiness and the aggravating circumstances present in this case, which relate to the gravity of the offence make a conditional sentence appropriate.

[54] In R. v. Proulx, 2000 SCC 5, at para. 22, the Supreme Court held a conditional sentence is a "punitive sanction capable of achieving the objectives of deterrence and denunciation." In para. 127, #8, the Court held:

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

[55] When conditional sentences were first added to the Criminal Code in 1995, it was in principle, although not always in practice, available for all offences where the prerequisites were met and no specific or category of offence was 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). At that time, therefore, a conditional sentence, depending on the severity of the conditions, might nonetheless be consistent with the fundamental purpose and principles of sentencing, even where deterrence and denunciation were the predominant applicable sentencing principles (see Jacko, supra, at para 71).

[56] However, in R. v. Killam, Doherty J. held that conditional sentences, even those which impose significant restrictions on the offender's liberty, do not have the same denunciatory effect as a period of incarceration when dealing with sexual offences. "Incarceration remains the most formidable denunciatory weapon in the sentencing arsenal" (see Killam, at para. 13). In Killam, a number of young adults were partying at a small cabin on a beach. The accused was permitted to sleep in the cabin because he was known to everyone and was trusted. On the second night the victim awoke to discover the accused having sexual intercourse with her. She had not consented. The sentence imposed was a conditional sentence of two years less a day. The Court of Appeal did not overturn the conditional sentence despite the facts in Killam involved the accused having intercourse with the victim while she was sleeping. Justice Doherty expressed considerable doubt as to whether a conditional sentence could adequately reflect the gravity of this offence and send the proper denunciatory message to the public (see para. 14). The refusal to overturn the conditional sentence occurred because of the limited scope of appellate review and the fact an appellate court must give deference to the sentencing judge's decision unless the sentence imposed was demonstrably unfit. Justice Doherty, however, made it very clear it was the Court's view a period of incarceration would have been the more appropriate sentence. In my view it is important to note that the original sentencing decision in Killam was over 20 years ago and the precedents respecting an appropriate, proportionate sentence for a sexual assault involving sexual intercourse or digital penetration have increased significantly.

[57] It is important to note that since R. v. Proulx was decided, there have been at least three major amendments to s. 742.1, which restrict the imposition and availability of conditional sentences. Currently, numerous sections of the Criminal Code, including sexual assault where the Crown proceeds by indictment, are now specifically excluded from consideration in the imposition of a conditional sentence, whereas previously Proulx indicated no offence was excluded from consideration as long as the three original criteria were met. In this case the Crown has proceeded by summary conviction, which means a conditional sentence is available if the current five prerequisites are met.

[58] 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 Crown proceeds by summary conviction is the decision in R. v. Smith, 2015 ONSC 4304, a summary conviction appeal. 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) where custodial sentences were imposed.

[59] Justice Campbell continued in Smith to address cases where the Crown elected to proceed summarily and indicated somewhat lesser sentences were required. He referred to the maximum sentence pursuant to s. 271(b) was 18 months, however, the sentencing principles outlined in Part XXIII still apply. He also noted that the "worst offender committing the worst offence principle" does not operate to constrain the imposition of the maximum sentence in summary conviction matters where the maximum sentence would otherwise be appropriate having regard to the principles articulated in Part XXIII of the Code. See R. v. Solowan, 2008 SCC 62, at paras. 3, 10, 15-16. Justice Campbell provided the case of R. v. J.W.M., 2004 ONSC 1295 as an example where the maximum sentence of 18 months was upheld on a summary conviction appeal where Justice Hill held the maximum sentence imposed by the trial judge was a fit and appropriate sentence notwithstanding the fact that the accused was not the "worst offender" and the sexual assault was not the "worst offence." The facts in J.W.M. are instructive in assessing when a maximum sentence, where the Crown proceeded by summary conviction, might be a proportionate sentence. In that case the trial judge found the accused had sexual intercourse with a co-worker who was intoxicated and unconscious. After reviewing the findings of fact by the trial judge, Justice Hill held:

68 …the worst offender/worst offense principle is inapplicable to imposition of the 18-month maximum allowable punishment for sexual assault of this severity in a summary conviction proceeding for sexual assault.

69 The appellant raped an extremely intoxicated 20-year-old at a time when she was in his charge because she could not look after herself. This is a gross abuse of trust. Eighteen months' incarceration is a fit sentence quite apart from consideration that the appellant is not a first offender, has already been the beneficiary of a conditional sentence, fared poorly under community supervision, and is disentitled to the leniency associated with a guilty plea. These additional factors simply underline the correctness of the trial court's exercise of discretion.

In my view the position of the Crown for the maximum sentence of 18 months is disproportionate where the facts and circumstances in this case do not come close to the severity of the sexual assault perpetrated by J.W.M. This does not mean that C.G.'s conduct towards C.P. was not serious - it was; however, the maximum sentence would be excessive, particularly having regard to the fact C.G. is a first offender.

[60] Justice Campbell also held conditional sentences, even those with significant restrictions on liberty and punitive terms, often did not have the same denunciatory effect as a period of actual imprisonment, citing the Court of Appeal in Killam. The 16 month conditional sentence imposed by the sentencing judge in Smith was overturned and Justice Campbell imposed a nine month custodial sentence, which he indicated was a somewhat lenient sentence, but he considered the two months spent on house arrest before receiving bail pending the appeal and other sentencing principles, including the rehabilitation of the accused. It was Justice Campbell's view that at the time of sentencing in 2013, the appropriate sentence would have been longer.

[61] Since Killam, the Ontario Court of Appeal has addressed the appropriateness of a conditional sentence for sexual assaults involving sexual intercourse in other cases. In R. v. Thurairajah, 2008 ONCA 91, Justice Doherty again considered the appropriateness of a conditional sentence where the sexual assault involved sexual intercourse. In that case, the 19 year old accused was convicted of sexual assault after a trial, of a 14 year old girl, and was sentenced to a two year less a day conditional sentence and 6 months probation. The facts found the accused had raped the victim while she was unconscious as a result of the consumption of alcohol. The victim was left, partially clad, in a snowbank, ultimately taken to the hospital comatose, with a blood alcohol concentration of more than three times the legal limit. The conditional sentence was set aside, and a nine month custodial sentence was imposed because of the accused's positive antecedents and his having completed sixteen months of the conditional sentence. Justice Doherty found:

43 The aggravating circumstances surrounding this offence were such that the fundamental purpose of sentencing could only be properly served by a disposition that placed a heavy emphasis on general deterrence and particularly denunciation. I recognize that a conditional sentence can in some circumstances adequately address these objectives, particularly where the conditions imposed have a significant punitive element: Proulx, supra, at para. 41; R. v. Ijam, supra, at p. 94. However, there will be circumstances in which the demands of denunciation and/or general deterrence are so pressing that incarceration is the only suitable disposition: Proulx, supra, at para. 106; Wells, supra, at para. 34.; R. v. Killam, 29 C.R. (5th) 147 at 151 (Ont. C.A.). (Emphasis added)

44 I am satisfied that the objectives of denunciation and to a lesser extent general deterrence required the incarceration of the respondent despite his many positive features. Any other disposition would not only fail to reflect those objectives, but would, in my view, be disproportionate both to the gravity of the offence and the respondent's degree of responsibility: Criminal Code s. 718.1. In coming to this conclusion, I recognize that incarceration, particularly for young first offenders, is a sanction of last resort: s. 718.2(d)(e).

[62] In a recent Court of Appeal decision, R. v. Macintyre-Syrette, 2018 ONCA 706, an Aboriginal first offender, who had been swimming with the complainant later attempted to force intercourse with her in the changeroom, but she was able to resist the attack. The accused was convicted after a trial and the sentencing judge refused to impose a conditional sentence after considering it in light of R. v. Gladue and s. 718.2(e) because of the primacy of denunciation and deterrence having regard to the circumstances of the offence. The Court of Appeal held:

19 The scope of s. 718.2(e) restricts the adoption of alternatives to incarceration to those sanctions that are "reasonable in the circumstances": see Wells, at para. 39. In keeping with this principle, there are circumstances in which the need for denunciation and deterrence is such that incarceration is the only suitable way to express society's condemnation of the offender's conduct: Proulx, at paras. 106-107. As Doherty J.A. noted in R. v. Killam, 126 O.A.C. 281, at para. 13, "a conditional sentence...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."

20 Ultimately, after considering the requirements of s. 718.2(e) and the information provided in the two Gladue reports, we conclude, as did the sentencing judge at first instance, that denunciation must be a primary sentencing objective in the context of this offender and this offence. As the sentencing judge found, the sexual assault committed by the appellant was forceful, involved confinement, and has had a significant impact upon the complainant.

21 We directed inquiries into whether resources exist to fashion some non-custodial disposition that would nevertheless satisfy this objective and have the added benefit of promoting reconciliation between the appellant and his community. From the information we received, we conclude that such an option is not available in the appellant's community. A conditional sentence served in the community with individual counselling, as proposed by the appellant and supported by the Gladue reports, would not be a reasonable or proportionate sentence for this offence. This offence requires denunciation, as an affirmation of the dignity of the complainant, and no appropriate sentencing proposal or sanction, short of a custodial disposition, appears to be available.

[63] The nature of C.G.'s sexual assaults of C.P. after the birth of their daughter involved him repeatedly grabbing her for a sexual purpose despite being fully aware of her refusal to engage in sexual relations because of pain and discomfort caused by the delivery. C.G.'s persistence in engaging in this sexually abusive behaviour towards his partner is a serious aggravating circumstance. C.G. obtained C.P.'s consent for him to engage in sexual intercourse, which he knew was conditional on it not causing her pain and discomfort, yet he continued to penetrate her vagina despite C.P. telling him to stop because of the pain. In my view this was a notable aggravating circumstance because of his knowledge that her consent was conditional. Further, C.G. ignored C.P. telling him to stop because of the pain, which he knew she had been experiencing for several months and he made a deliberate decision to continue having intercourse until ejaculation. C.G. sexually abused his common-law partner, who as a domestic partner was "uniquely vulnerable because she was in a relationship of trust with the perpetrator" (see Kormendy, supra, at para. 28). C.G. was fully aware of C.P.'s physical condition after the delivery and in my view, this increases C.G.'s moral culpability and blameworthiness. It also increases the seriousness or gravity of the sexual assaults he committed.

[64] Although the factual circumstances of this case are perhaps not quite as serious as an individual who forces sexual intercourse on their spouse or partner, without obtaining even conditional consent, it is the combination of C.G.'s repeated sexual assaults on C.P., knowing she was not interested in having sexual relations, together with his refusal to stop having intercourse with her despite the pain he was causing her, in order to satisfy his desires and wants.

[65] As a result of these findings, I recognize the sentencing principles of deterrence and denunciation become more significant, if not the paramount sentencing principles to be applied in determining a proportionate sentence in this case. However, I am also aware of the fact C.G. is a first offender, although not a youthful first offender, and as a result it is my view, the principle of rehabilitation and restraint are sentencing principles I cannot ignore in this case (see R. v. Priest, supra; R. v. Stein; and R. v. Dubinsky, at para. 1-2). The Ontario Court of Appeal has held "it is an error to focus almost exclusively on general deterrence and fail to consider individual deterrence and rehabilitation, especially when sentencing a first offender" (R. v. Batisse, 2009 ONCA 459 at para. 34). Consequently, in order to determine a fit and proportionate sentence I must consider the whole panoply of sentencing principles, including denunciation and deterrence, both general and specific, as well as rehabilitation and the principle of restraint given C.G. is a first offender.

[66] As I indicated previously, it is my view C.G.'s absence of remorse reflects a lack of insight on his part concerning his conduct towards his common-law spouse, which in turn raises concerns for his future rehabilitation and potential to engage in similar conduct in the future.

SENTENCE IMPOSED

[67] It is my view the cumulative effect of the aggravating circumstances I have outlined above require a custodial sentence served in the reformatory. I find on a careful balancing of all the relevant sentencing principles and objectives a conditional sentence cannot properly address the principles of denunciation and deterrence, both specific and general. This is one of those cases where the demands of denunciation and/or general deterrence are so pressing that incarceration is the only suitable disposition (see Killam, Thurairajah, Macintyre-Syrette (Ont. C.A.) and Smith (Campbell J., SCJ). The sexual assault in this case involved intercourse by C.P.'s common-law partner, as such she was uniquely vulnerable because of the trust relationship, C.G.'s conduct was deliberate as he knew C.P.'s consent was conditional and his sexually abusive conduct throughout the months after the birth of their child, as well as the one instance of intercourse, had a significant impact on her. In all of the circumstances of this case, it is my view the proportionate sentence having regard to the seriousness of the offence and C.G.'s moral blameworthiness and culpability is a reformatory sentence of fifteen (15) months to be followed by three (3) years' probation. It is my view the period of probation is necessary to assist with C.G.'s rehabilitation by requiring him to engage in sex offender counselling and treatment to address the erroneous attitudes and beliefs he expressed in his texts to C.P. and to specifically deter him from engaging in similar conduct in the future.

[68] C.G., your probation will commence after you are released from custody. During that time, you will abide by the statutory terms set out in s. 732.1(2) of the Criminal Code, namely,

1. Keep the peace and be of good behaviour;

2. Appear before the court when required to do so by the court;

3. Notify the court or the probation officer in advance of any change of name or address; and

4. Promptly notify the court or probation officer of any change of employment or occupation.

[69] In addition, you will also abide by the following terms and conditions of probation:

1. You will report to probation in person or by telephone, as directed, within working 5 days after your release from custody, and after that as directed by your probation officer or anyone authorized to assist in your probation by your probation officer.

2. Your reporting condition will end when your probation officer has determined you have completed all your counselling.

3. You are not to communicate or associate with C.P. or any member of her family, directly or indirectly, except through counsel, except through Family Court proceedings, or except pursuant to a Family Court Order for the purposes of exercising access to your daughter.

4. You will not attend within 100 metres of any known place of residence, employment, school or any place you know C.P. frequents or you know her to be, except through a Family Court proceeding, or except pursuant to a Family Court Order for the purposes of exercising access to your daughter;

5. You will attend for such assessment, treatment or counselling for sex offender treatment or such other counselling as recommended by your probation officer;

6. You shall sign a release of information form to your counsellor/therapist, in favour of your probation officer, so they can discuss your progress; and

7. You shall provide proof of the completion of any assessments, counselling or treatment to your probation officer.

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

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

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

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

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

[75] As indicated previously, C.G. pleaded guilty to the charge of utter forged document at the outset of the trial. I found, after the completion of the evidence, that the Crown proved beyond a reasonable doubt the aggravating circumstances she wanted the court to consider on sentence respecting that charge. C.G. owned his home and had a mortgage with Manulife Financial and was applying for a home line of credit based on the equity in his home, in order to do certain renovations. C.G. signed C.P.'s name on the application and presented it to Manulife as if it were genuine. I found C.G. kept C.P. in the dark as to the true nature of the application to which he affixed her signature to and as to what her financial obligation and risk was. The document he signed her name on included a statement that C.P. did not wish to receive any of the documentation sent to her, which I found was added by C.G. in order to keep C.P. in the dark. C.P. ultimately determined after she separated from C.G. that she was in fact a co-applicant on the home line of credit and was responsible for the repayment of any advances made pursuant to it, if C.G. defaulted in his payments. She was not a co-owner of the house. After their separation, C.G. continued to keep C.P. in the dark and refused to provide her with the documentation relating to the home line of credit. C.P. ultimately had to hire a lawyer to have her name removed from the documentation as a co-applicant by Manulife Financial. There was no request for reimbursement of any expenses generated as a result of C.P. hiring this lawyer and no invoices were submitted for restitution. As a result, I am not in a position to make any order for restitution.

[76] Although there was the risk of financial obligation to C.P., she did not suffer any loss as a result of C.G. uttering the forged document. If there had there been any financial loss to C.P. as a result of C.G.'s conduct, it is my view a short custodial sentence would have been an appropriate sentence if this was the only charge facing C.G. An aggravating circumstance respecting this charge is the fact C.G. was in a position of trust towards C.P. because of their relationship at the time the application was made.

[77] Taking into consideration the sentencing principle of totality (s. 718.2(c)), and the 15 month jail sentence I have imposed respecting the sexual assault, it is my view a concurrent three (3) year term of probation is the appropriate and proportionate sentence respecting the offence of utter forged document and there will be a suspended sentence on this charge.

Released: September 18, 2020

Signed: Justice Peter C. West

Footnote

[1] Recently the Ontario Court of Appeal has held in R. v. Sharma, 2020 ONCA 478, that the provisions of s. 742.1, which restrict the availability of conditional sentences for Aboriginal offenders, for offences where the maximum penalty was 14 years or life or 10 years in the case of offences involving the import, export, trafficking or production of drugs are contrary to ss. 7 and 15 of the Canadian Charter of Rights and Freedoms and are not saved by s. 1. The majority of the Court of Appeal determined that the restriction on offences on which a conditional sentence could be imposed in cases involving an Aboriginal offender, prevented sentencing judges from giving effect to the mandate of s. 718.2(e). As a result, the majority found that ss. 742.1(c) and 742.1(e)ii of the Criminal Code unjustifiably infringed ss. 7 and 15 of the Charter and are, therefore, of no force or effect. Section 742.1(f)(iii), which involves the offence of sexual assault where the Crown proceeds by indictment was not addressed by the Court of Appeal in Sharma and is therefore still in force.