DATE: 2021.11.24 COURT FILE Nos.: St. Catharines- SD19-2824; S20-2123; S20-2755 ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

JACOB CLARKE

Before Justice Fergus ODonnell Reasons for sentence delivered on 24 November, 2021

Todd Morris.............................................................................................................. for the Crown Sara Ramalho……………………………...………………………for the defendant, Jacob Clarke

Fergus ODonnell J.:

Overview

1. Jacob Clarke appears before me for sentencing today on three charges, namely:[^1] a. A domestic assault on J.H. on 10 June, 2019. b. Failure to comply with terms of release, namely failure to report to the John Howard Society in July, 2019. c. A sexual assault causing bodily harm to D.B. on 18 June, 2020.[^2]

What Happened?

The Domestic Assault

2. Mr. Clarke was in an intimate relationship with J.H. for about a year and she gave birth to their son on 20 May, 2019. That child is in the care of J.H.’s mother. Mr. Clarke’s relationship with J.H. ended just after their son was born. On 10 June, 2019 J.H. told Mr. Clarke that she did not want to see him, but he went over nonetheless. They argued about their relationship and she told him to leave. He put light pressure on her neck and they continued to argue. A witness told them to stop arguing because it would disturb the neighbours, but when the witness left Mr. Clarke grabbed J.H.’s throat, applying pressure. J.H. struggled to breathe and lost her vision. Mr. Clarke threw her to the ground, causing her to bite her lip. Her screams caused the witness to intervene again. Mr. Clarke surrendered to the police a few hours later. A photograph of J.H. shows injury to her neck.

The Breach of the Release Order

3. Mr. Clarke was released the next day with a requirement to report to the John Howard Society, which he did six times. He failed to report twice in July, 2019 and a courier letter from the John Howard Society to his last address was returned to sender on 18 July. A bench warrant was issued for his arrest on 13 August, 2019 when Mr. Clarke failed to attend court.

The Events of 18 June, 2020

4. On 18 June, 2020 P.O. was out running on the Merritt Trail in St. Catharines. She saw Mr. Clarke approaching. He stepped out and squatted down, got in her way and reached out with both hands towards her hip. P.O. screamed, flung her arms about, ran and then called 911, giving them a description of her assailant.

5. Around noon on the same day, D.B., a seventy-five year old woman, was walking along the south side of Lockhart Drive in St. Catharines, several kilometres away from where P.O. encountered Mr. Clarke. The south side of Lockhart Drive is forested. The street was atypically quiet. Mr. Clarke jumped out from the forest, grabbed D.B. and dragged her into the woods, causing her shoes to come off by the roadway. She struggled and told him that she was seventy-five and not to do this, but Mr. Clarke dragged her further and said that he had a gun and would shoot her. D.B. screamed and shouted so Mr. Clarke covered her mouth. When she grabbed a canister of dog-spray, he threw it aside. He then pulled down his pants and underwear and got on top of D.B. and thrust his genitals into the area of her vagina for a few minutes. Afterwards, she stumbled to the road and called 911. She provided a description of her assailant.

6. The police obtained nail clippings from D.B. Because the police considered Mr. Clarke to be of interest to the investigation, they followed him and recovered a water bottle that he had drunk from and discarded. The results of the DNA examination of the bottle and the nail clippings matched, which led to the issuance of a DNA warrant to take a sample directly from Mr. Clarke, which also matched. The probability ratio provided by the Centre of Forensic Sciences between the DNA sample taken under the DNA warrant and both the discarded water bottle and a semen sample from D.B.’s external genitalia was that the DNA was one trillion times more likely to come from Mr. Clarke than it was to come from someone else who was unrelated to him.

7. In terms of physical injury, D.B. suffered scrapes to several areas of her body and head and a laceration to her head that required two staples. They are addressed in more detail below.

The Victim Impact Statement

8. D.B.’s victim impact statement set out concisely and cogently the impacts of Mr. Clarke’s offence on her, both physical and emotional. She dispassionately outlined what happened that day and the physical impacts, including deep gouges from being dragged along the ground into the woods, bruises on her back and neck, the laceration to her head, a sore jaw that made chewing difficult for a while and “extremely sore ribs” that made it hard to breathe properly for weeks. Many of the gouges and scratches are still present.

9. Unsurprisingly, it is the emotional impact that most concerns D.B. Her escarpment walks were part of her life for twenty years, but she can no longer enjoy walking in that area. More generally, she tends to be nervous and on-guard, on the lookout for danger, particularly if approached by a male. She even feels stress when alone at home. Previous habits such as driving downtown at night to meet friends and see a show or taking the train to Toronto by herself to visit the AGO are no longer within her comfort zone. In her own words:

   This is not the way I envisioned my “Twilight Years”. You changed all that. I have been robbed of my dignity, independence, my joy of life and nature, especially the escarpment, and so much more.

10. There is, however, obvious strength in the way D.B.’s victim impact statement is written, perhaps best characterized by her dry observation about what Mr. Clarke said to her as he dragged her, “like a sack of potatoes”, into the woods. When she told him her age, Mr. Clarke said that he was not going to do anything. Commenting on that in light of what happened, D.B. noted: “Your definition of not doing anything and mine are vastly different.” One can only hope that the resilience that is bespoken in D.B.’s victim impact statement allows her to regain more of her cherished independence over time.

Mr. Clarke’s Background

11. I obtained a pre-sentence report on Mr. Clarke as well as an assessment under s. 22 of the Mental Health Act. Mr. Clarke spent sixty days under examination for the s. 22 report at St. Joseph’s Hospital in Hamilton.

12. Mr. Clarke is a first offender. He was twenty-seven years old at the time of the domestic assault and breach offences and twenty-eight when he sexually assaulted D.B. He has recently turned thirty. His parents separated when he was about nine or ten and his mother described her husband as an abuser of drugs and alcohol who subjected her to emotional and physical abuse and who treated the children poorly and uncaringly. Mr. Clarke recalled daily fighting between his parents and a complete lack of structure or discipline in the house. Mr. Clarke said that around the age of four or five years old, he was sexually abused by a friend of his father, which he said his father dealt with, without police involvement. He has not discussed this abuse before. He said that he was also sexually abused by older students at school, that he was exposed to inappropriate behaviour by babysitters and that he had witnessed his sister being sexually abused. The frequency of occasions where Mr. Clarke reported having been abused as a child was very significant. It was also all dependent on Mr. Clarke’s reliability as a historian.

13. Because of the family’s financial straits they were evicted often, including as many as seven moves before the age of nine years old, meaning that Mr. Clarke attended a lot of different schools, with concomitant difficulty establishing friendships. As reported to the psychologist, he attended nine elementary schools and six secondary schools, as a result of a combination of residential moves and conflict with teachers. From nine to thirteen years old he lived with his father and stepmother but left due to conflict with her and returned to live with his mother. His mother said that he seemed withdrawn and suffered from low self-esteem. He was resistant to counselling. Around this age he became more argumentative and began lying and stealing. He moved out around the age of seventeen and moved among friends’ houses and has occasionally returned to live with his mother but does not follow her rules.

14. Mr. Clarke completed grade nine and dropped out in grade eleven; he said he had trouble concentrating. He was prescribed Concerta for Attention-Deficit/Hyperactivity Disorder but did not like how it made him feel. It calmed him but did not help his focus so his father discontinued it. Mr. Clarke said he plans to complete his GED online and wants to study to be a mechanic. His work history is limited according to the pre-sentence report, the author of which noted that Mr. Clarke said that hanging out with friends was more important to him than maintaining employment. He told the psychologist at St. Joseph’s Hospital that he had trouble keeping employment because he saw it as secondary to doing drugs and socializing. Ms. Ramalho clarified at sentencing that Mr. Clarke does have a limited history of formal employment but advised that he has a long history of work under the radar, such as landscaping and roofing and that he says he is very good in both of those trades.

15. Mr. Clarke started drinking at thirteen years old, originally only socially, but escalating to daily use. He stopped drinking when he started to feel physical consequences, although he has started drinking casually again, i.e. very rarely. He started smoking marihuana at twelve years old and has continued to do so until the present. He feels that marihuana helps him cope with his Attention Deficit Disorder and he does not take his prescribed medications. Mr. Clarke described himself as “dangerously suggestible” while high on crystal methamphetamine and says that J.H. introduced him to crystal methamphetamine and fentanyl; he sold marihuana to support his own habit, he says. He began his daily crystal methamphetamine usage around 2017 (one to two grams per day) and daily fentanyl use around 2018 (three to five points per day). He says he was under the influence of drugs at the time of his offences. In particular, he says he was high at the time of the attack on D.B. and has no recollection of it, but accepts his responsibility and feels terrible about what he did.[^3] His mother confirms he suffered from a drug dependency and says he was reaching out for help around the time he was arrested.

16. There is a reported family history of autism and other mental health issues including bipolar and schizophrenia. As noted earlier, he was diagnosed with ADHD. His mother reported that he has always had trouble expressing emotions, has had fluctuating energy levels and has had trouble sleeping.

17. The St. Joseph’s report presented to me is, typically, very thorough, including very detailed background history, psychological testing, psychiatric investigation, diagnosis and risk analysis. One feature that arises repeatedly is a concern for malingering or exaggeration, potentially with an aim to exaggerate mental health and other issues in order to minimize or evade responsibility. The concern is not expressed as an absolute dismissal of Mr. Clarke’s assertions about his history, and it does not arise in every context, but it does serve as a yellow cautionary signal. Accordingly, where historic background details are not confirmed by sources independent of Mr. Clarke, I cannot necessarily place full weight on them in terms of mitigation or explanation of his behaviour.

18. That being said, Mr. Clarke does have significant issues. One part of the report notes as follows:

    He was referred to a psychosexual and risk assessment and participated in all aspects of the assessment. However, he also appeared to deflect or minimize his responsibility by exaggerating or even feigning symptoms of psychopathology and memory impairment. Notwithstanding his approach and the necessary caution in interpreting the findings, Mr. Clarke appears to be an intelligent and neurocognitively intact individual, whose deficits if they exist are likely exacerbated by, if not secondary to, chronic substance abuse. Mr. Clarke’s primary problems are drug and personality related. He has a longstanding pattern of problematic drug abuse which has caused relationship and occupational problems in his life even before the last few years. Mr. Clarke’s substance use likely interacts with characterological issues, such that substance use may reflect symptoms of impulsivity and sensation seeking, and/or efforts to cope with stress and emotion dysregulation, but ultimately his use exacerbates underlying psychopathology.

19. The St. Joseph’s analysis included the following conclusions: a. His diagnoses included cannabis, stimulant (methamphetamine) and opioid (fentanyl) use disorders. His substance abuse issues, “will require high intensity intervention”. He has made some efforts in the past, but has lacked motivation. b. He demonstrates, “Antisocial, Borderline and Narcissistic Personality Disorder traits.” c. He requires treatment for both domestic and sexual violence, but that treatment will be complicated by his pattern of minimization and limited or non-existent insight. d. He is at high risk for both domestic and sexual violence reoffending. e. He needs treatment for dealing with relationship conflict. f. His unstable and irresponsible lifestyle of the past is a known concomitant of criminal offending and educational and vocational training would improve his situation, as would stable housing and mental health interventions.

The Principles of Sentencing

20. The sentence I impose on Mr. Clarke must reflect both the seriousness of his offences and his personal moral culpability. That sentence must aim to make society safe by denouncing absolutely what he has done and by sending a message that will deter him from re-offending and deter other people in the community from engaging in domestic or sexual violence. Deterrence and denunciation must be the primary drivers of sentence here. However, the law also says that I must keep one eye on Mr. Clarke’s rehabilitation because a sentence must look not only backwards at what he has done but forward to minimizing his risk of reoffending. The Criminal Code provides judges with a variety of tools to achieve the objectives of sentencing. One of them, obviously is jail. While the Code clearly states that judges must avoid jail where possible, it is obvious that a significant period of imprisonment is unavoidable here. There is some gap between the positions of Mr. Morris for the Crown and Ms. Ramalho on Mr. Clarke’s behalf. I must keep in mind that the principle of restraint in the use of jail not only applies to whether or not to use jail as a sentencing tool, but also restraint in the duration of the sentence, a factor that takes on some additional relevance for a first offender like Mr. Clarke.

21. In terms of the seriousness of the offences, the failure to comply charge is obviously the least serious, but it is not trivial. Judges and justices of the peace try to ensure that defendants can obtain bail wherever possible in order to minimize the extent to which people awaiting trial are kept in custody for very long times, be they guilty or innocent. However, that desire is built on the expectation that people granted bail will take their release conditions seriously because those release conditions are intended to minimize risk to society. A failure to report as required on bail means that one very important mechanism for public safety has been ripped out of the bail plan.

22. The domestic assault charge is serious. Conflict in intimate relations is fairly common, but there is a bright yellow line between conflict and violence, a line that nobody is entitled to cross. The family unit is supposed to be a place of safety and security, not a source of fear, insecurity and harm.

23. The sexual assault causing bodily harm charge is extremely serious. All persons are entitled to have their physical and sexual integrity respected. It is not just a question of the impact of the offence on D.B., although that concern is of tremendous importance. It is also that violence in the community, particularly violence of a sexual nature such as this, makes all members of the community feel less safe, particularly women who are the most frequent victims of sexual violence. The further danger lies in the risk that if an area takes on a reputation for danger, fewer people may frequent it, which makes it more isolated, and which deprives it of safeguards such as passersby, thus rendering it even more dangerous than before when it was better travelled. None of us wants to, or deserves to, live in a society where we scurry nervously home through streets that we see as threatening, feeling safe only within the four walls of our homes. If that happens, we all become to some measure prisoners in our own homes.

24. Obviously, Mr. Clarke’s level of moral blameworthiness is high. He was the offender. These are not the sorts of offences where he played some minor role in a larger scheme created by someone more sophisticated. All of what happened to D.B. and J.H. lies at Mr. Clarke’s feet. I have heard what Ms. Ramalho has said about how Mr. Clarke feels about what happened and I hope that that is sincere and that those feelings of regret are perpetual, but I have also read about times when he has minimized what happened, for example, in relation to his assertions that J.H. was toxic. Leaving is an acceptable response to feeling that one is in a toxic relationship (if it was that); violence is never acceptable.

25. Even allowing for the real risk of some malingering or exaggerating in Mr. Clarke’s description of his previous live experiences and abuse, it seems clear that he did have a significantly disadvantaged upbringing, possibly including sexual abuse and has been diagnosed with significant substance abuse and mental health issues. These may have some potential to reduce Mr. Clarke’s moral blameworthiness, although I note that where there has been voluntary consumption of alcohol or drugs and/or where a person has failed to take steps to address such issues any degree of mitigation will be diluted.

26. In determining what sentence to impose I must consider a series of negatives and positives. On the negative side are included the following: a. The assault on J.H. was in a domestic environment. That is an aggravating factor in the Criminal Code. b. That assault included choking. c. J.H. had just given birth. d. Mr. Clarke desisted from that assault when the witness intervened but then resumed it when he left. e. The assault on D.B. was against someone who was particularly vulnerable because of her age, an aggravating factor under the Criminal Code. The actual impact on D.B., as noted above, is as significant as it is unsurprising. It can only have been truly terrifying for her. f. Mr. Clarke threatened D.B. that he had a gun. If he actually had a gun, that would be even worse, but even the threat is an aggravating factor as that sort of threat is meant solely to instill fear in the hope of overcoming resistance. g. He committed the sexual assault on D.B. while he was on release from the domestic assault.

27. On the positive side: a. Mr. Clarke is a first offender. This is not a trivial consideration. b. Mr. Clarke has pleaded guilty.[^4] A guilty plea is relevant in several ways. Most importantly, it saves witnesses from testifying. Where those witnesses are the victims and where their experiences were traumatic, that is particularly important. A guilty plea also saves court resources, which are always limited, but all the more so as the court system tries to dig its way out of its Covid-generated backlog. Finally, depending on the offender, a guilty plea may reflect genuine remorse.

The Range of Sentence

28. There are so many permutations and combinations of facts of an offence and personal characteristics of an offender that every sentence for a criminal offence must be tailor-made. To do otherwise would be to violate the cardinal principal of proportionality in sentencing.

29. Although it may seem contradictory, while every sentence must be tailor-made for the offender and his crimes, there is no such thing as one correct sentence. For every offender and his offences there will be a range of sentences, varying in length, format and features, all of which could be a “fit” sentence. The sentencing judge’s role is not only to sort out what the available appropriate outcomes are but also what is the option that best achieves the competing objectives of sentencing set out in the Criminal Code.

30. The concept of the sentence range is a helpful marker in the search for an appropriate sentence. While the sentence imposed must be specific to offences and offender, it would be foolhardy to ignore the path trodden by other judges dealing with similar offences or similar offenders. Those previous decisions, whether by other trial courts or appellate courts, give a sense of roughly where a fit sentence might lie. The idea of the range is also important because basic fairness demands that two people with similar issues who have committed similar offences should not received drastically different sentences. The devil, of course, is in the details because no two offenders and their crimes are likely to be exactly the same. It must also be kept in mind that the overarching principle of proportionality means that there will be some cases where a fit sentence will fall outside a generally appropriate range.

31. Mr. Morris provided me with a series of cases to help in this task, for which I thank him. The cases to which he adverted were R. v. Myers, [2000] O.J. No. 1787 (Langdon J.), R. v. Trumpa, 2017 ONSC 5966 (Goldstein J.) and R. v. Beauvais, [2021] O.J. No. 609 (Berg J.) These cases provide a good canvas of sentences based on their own facts and on the facts of other cases referred to therein. Of course, they are not all of the decisions that matter. There is a wide body of authority demonstrating the seriousness of the offences before me, as there is for each of the competing and complementary principles of sentencing that must be applied, in varying measure, in every sentencing decision. And every case is different. For example, in the selection Mr. Morris gave to me two were convictions after trial, one involved a somewhat calculated home invasion, one involved a significant pattern of previous offences involving women as victims and so on.

32. In the present case, Mr. Morris says the range of sentence is from four to six years and Mr. Clarke’s offences should lead to a sentence in the upper half of that range, with Mr. Morris stressing an actual six-year sentence, less credit for pre-sentence custody. Ms. Ramalho asks for a sentence of two years less a day, but in addition to pre-sentence custody. Mr. Clarke’s pre-sentence custody up to yesterday (today being the first day of his sentence does not count) amounts to 25.6 months once credit is given at the usual 1 ½ : 1 ratio to reflect the fact that pre-sentence custody does not attract remission, whereas a forward-looking sentence does earn remission. At this point, Ms. Ramalho’s submission falls towards the bottom of the range suggested by Mr. Morris. I note, however, that it falls within the middle of the range accepted by Justice Goldstein in Trumpa, namely three-to-five years. (Mr. Trumpa, convicted of a stranger-on-stranger sex assault in a public place was, like Mr. Clarke, a first offender. Although his victim was much younger, Mr. Trumpa’s sentence was imposed after trial which is a material difference. Justice Goldstein sentenced Mr. Trumpa to four years’ imprisonment).[^5]

33. It is important to keep in mind that Mr. Clarke is being sentenced for three different offences, not one offence, so I must look at all three matters separately. However, I must ultimately look at the total result, to ensure that the overall sentence is not excessive. This is always true, but it is particularly true when imposing a significant term of imprisonment on a first offender. Even where a first offender’s crime is serious and where the principal drivers of sentence are denunciation and deterrence, it would be an error to ignore the goal of rehabilitation. There may be a certain sense of gratification for some in a harsher sentence, but it would be short-sighted and ultimately damaging to public safety to overlook the need for rehabilitation, especially for a first offender who was in his twenties at the time of his offences. It would, indeed, be an error in law: R. v. Disher, [2020] O.J. No. 4849 (ONCA).

34. Looking at Mr. Clarke’s offences individually, the domestic assault with choking would be a first offence for a twenty-seven year old offender with substance abuse issues. Standing alone, on a guilty plea this would likely have earned either a non-custodial disposition or a short period of jail (real or conditional), either outcome involving probation and counselling. The breach charge would have led to a similar outcome. Without wishing to appear to diminish the assault on J.H., it is very much the sexual assault on D.B. that drives the total sentence here.

35. Looking at the sex assault causing bodily harm to D.B. independently, I would consider the appropriate sentence to be somewhere in the four to five year range when one takes into account all of the facts and the aggravating and mitigating circumstances. I am of the view that the six-year sentence sought by Mr. Morris is a bit high in light of the guilty plea. (When I ask myself if Mr. Clarke, as a first offender, would have received a sentence in the range of eight years after trial, I doubt that he would.)

36. The sentence sought by Ms. Ramalho does fall within the range I have identified, although I could also impose a somewhat longer sentence on Mr. Clarke without going outside what I consider to be the appropriate range. Accordingly, it would, in my opinion be entirely within the fit range of sentence for me to impose the sentence sought by Ms. Ramalho, in which case the remnant after pre-sentence custody would be served in the reformatory, or a sentence in which the remnant would fall in the two to three year range.

37. I am of the view that the most appropriate sentence for Mr. Clarke and his offences, the one that gives appropriate weight and balance to each of the relevant sentencing objectives, is a sentence of two years less a day on top of pre-sentence custody. In reaching that conclusion, the factors I include, in no particular order of priority, are: a. A sentence of two-years-less-a-day, on top of Mr. Clarke’s “normal” credit for pre-sentence custody is the rough equivalent of a total sentence of 49 ½ months, or slightly more than four years. b. Mr. Clarke has served all of his pre-sentence custody during Covid-19, a time when custodial conditions were somewhat more harsh than they normally would be. There have been many, many decisions of many, many courts using up many, many, many days of court time to address the issue of additional Covid-19 credit for pre-sentence custody conditions. I cannot endorse the conspicuous generosity reflected in many of those decisions. After all, it is not as if life was a bowl of cherries for people who were out of custody during Covid-19 and it bears noting that Mr. Clarke’s most serious offence was committed during Covid-19 at a time when custodial conditions were already known to be more restrictive. Ms. Ramalho, to her credit, does not ask for any overly generous credit, only that I recognize the Covid-19 reality, which I think I must, to some extent. If I were to quantify the allowance for Covid 19 conditions over Mr. Clarke’s time in pre-sentence custody, I would peg it around two to three months, making his sentence the equivalent of about fifty-two months in total. c. Any sentence remnant of more than two years (which is the minimum penitentiary sentence), would eliminate the option of putting Mr. Clarke on probation. Mr. Clarke’s issues are not likely to resolve during a two-year or three-year sentence in the penitentiary. Obviously, there are programmes for Mr. Clarke’s issues (including substance abuse, sexual offending, intimate partner violence and on and on) in both the federal and provincial systems, but a three-year probation period combined with a two-year-less-a-day reformatory sentence would, in my view, have greater potential to keep society safe than would a slightly longer penitentiary sentence without probation. The longer Mr. Clarke is under the supervision and programming of the state, the better the likely long-term outcomes for everyone. An effective sentence of about fifty-two months already carries sufficient denunciatory and deterrent clout to recognize the primacy of those objectives for these offences, particularly for a first offender, while not throwing rehabilitation out with the bath-water. d. As a sort of reliability check for one’s conclusions it is sometimes helpful to look in the decided cases for a case that is most comparable to the case one is being asked to decide. In that respect, I note that in Trumpa, to which I adverted earlier, Justice Goldstein of the Superior Court imposed a sentence of four years imprisonment for an offender with somewhat lesser challenges than Mr. Clarke who committed a stranger-on-stranger sexual assault that was somewhat less aggravated than Mr. Clarke’s attack on D.B.[^6] Trumpa was not on release at the time of the sexual assault, but did accrue new charges afterwards. Looking at what is the same in Trumpa and what is different, I am reassured that the sentence I have fixed for Mr. Clarke is apt.

38. Accordingly, the sentence I impose is as follows: a. On the sexual assault causing bodily harm, the equivalent of twenty-eight months of pre-sentence custody will be noted and Mr. Clarke will be sentenced to an additional two-years-less-a-day in the reformatory. b. On the domestic assault against J.H., the sentence will be thirty days’ imprisonment, to be served concurrently. c. On the failure to comply, the sentence will be thirty days’ imprisonment to be served concurrently to the other two sentences. d. On all offences Mr. Clarke shall be on probation for three years after he completes his sentence.

39. I also make the following additional orders: a. Mr. Clarke shall provide a sample of his DNA for inclusion in the DNA databank on the primary designated offence of sexual assault causing bodily harm and on the secondary designated offences of assault and failure to comply. b. There will be a s. 109 order for ten years on the sexual assault causing bodily harm charge. c. There will be a non-communication order under s. 743.21 of the Criminal Code, in relation to D.B., J.H. and P.O. d. Mr. Clarke shall comply with the requirements of the Sex Offender Information Registration Act for twenty years.

40. I recommend in the strongest possible terms that Mr. Clarke serve his sentence at the St. Lawrence Valley Correctional Centre, which has the optimal capacity to address his complex issues.

Released: 24 November, 2021

Probation Terms—Jacob CLARKE

• report within three days of release from custody and thereafter as required
• live at an address approved of by probation; do not change your address without the prior approval of your probation officer
• no contact with J.H. or D.B or P.O. and not to be within 50m of them or any place they live, work, attend school or religious observance or are known by you to be, other than being within 50m of J.H. where necessary for any family court proceedings involving child access/support. Any contact with J.H. for family court issues shall be only in writing and shall relate only to the family court issues.
• no weapons
• attend for assessment and counselling as directed by probation including but not limited to the following areas:
  • sexual offending
  • domestic violence including PAR
  • substance abuse issues
  • mental health issues
  • psychiatric/psychological issues
• sign releases/provide proof
• make reasonable efforts to attend school, skills upgrading and/or obtain and maintain suitable employment

[^1]: Mr. Clarke pleaded guilty to the first two charges. He said he had no recollection of the third and most serious charge and so pleaded not guilty but admitted facts that he agreed would prove his guilt beyond a reasonable doubt. For all intents and purposes the sentence to be imposed on him for all three charges should reflect the societal and individual benefits that accrue from a guilty plea. [^2]: One of Mr. Clarke’s offences is a sexual assault charge. There is a publication ban in relation to the victim’s identity and to any information that could divulge the victim’s identity. It is a criminal offence, punishable by imprisonment, for any person to violate that publication ban. [^3]: The psychological report from St. Joseph’s Hospital says Mr. Clarke said he had no recollection of that day or about a month preceding it. The same report casts doubt on Mr. Clarke’s reliability in this (and other) regards, raising the concern that he may be denying recollection of the events in order to minimize his culpability. There is ultimately no way to determine how much of Mr. Clarke’s history as recounted by him is reliable when there is no external corroboration, although the fact that an assertion is not corroborated does not mean that it was untrue. [^4]: In the circumstances where he claimed no recollection of the offence against D.B. the fact that he pleaded not guilty to that offence but admitted the facts would be proved beyond a reasonable doubt is a distinction without a difference. [^5]: Although neither Mr. Trumpa nor Mr. Clarke had a previous record, Mr. Trumpa did not have any previous charges, unlike Mr. Clarke. Mr. Trumpa accumulated some subsequent charges. Both are to be treated as first offenders. As shall be seen later, I do not believe that Mr. Clarke’s domestic assault charge or fail to comply changes the analysis materially. [^6]: Trumpa was convicted after trial of sexual assault, while Mr. Clarke has been found guilty without a trial of sexual assault causing bodily harm. The standard of “bodily harm” is not a particularly grievous standard, so that distinction between the cases is not enormous. Given her age, however, the impact of the physical injuries on D.B. would realistically be more enduring than those same injuries on a younger person. That being said, the time has passed when we measured the seriousness of a sexual assault principally by physical acts or injuries because the most grievous harm in these offences is the devastating impact on victims’ sense of sexual integrity, safety, independence and dignity. These harms are common to both D.B. and Trumpa’s victims.