ONTARIO COURT OF JUSTICE

CITATION: R. v. I.F.L., 2022 ONCJ 311

DATE: 2022·07·06

NEWMARKET

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

I.F.L.

SENTENCING

NOTE: A s 486.31 publication ban applies prohibiting the publication of any information that could identify a witness in this case.

Heard and Delivered: July 6, 2022.

Mr. Greg Elder.......................................................................................... counsel for the Crown

Mr. Ralph Steinberg.......................................................................... counsel for the defendant

KENKEL J.:

Introduction

[1] Mr. IFL was convicted at trial of one count of sexual assault. He returned home from a work event one evening and he was intoxicated. He went to his wife’s room despite the fact that they were living apart within the same house. Over the course of 60-90 minutes several times he pulled at her trying to take off her pajama pants only to be pushed to the floor where he fell asleep. He slept on the floor for periods of 10-15 minutes but then would awake and renew his attempts to remove his wife’s pajamas. Their daughter was sleeping beside the victim in the same bed. On the last occasion when he started touching his daughter in a sexual way appearing to confuse her for her mother, the victim got up and managed to move the accused to his room. Once there he pulled her onto the bed, unbuckled his belt and pulled down her pajamas. He touched her in the vagina area over her panties that remained on. She screamed and her mother intervened.

[2] The Crown submitted that a 12-month jail sentence is required. The Defence noted that a conditional sentence is available under s 742.1(f). The defence submitted that a conditional sentence would be appropriate and the probation afterwards is not required. In the alternative, if jail is necessary the defence submits that a 90-day intermittent sentence would be sufficient.

Mitigating Factors

[3] There are several factors that mitigate sentence:

• Mr. IFL has no criminal record,
• Mr. IFL has obeyed the no-contact terms of an undertaking (which were varied) for almost two years,
• Mr. IFL has a consistent history of employment and appears otherwise to lead a pro-social life including attending to his responsibilities for childcare and support.

[4] It’s important to note too that there are a number of aggravating factors present in many cases involving similar sexual assaults that are not present here including: a prior history of domestic violence within the relationship, repeated instances of abuse and a history of drug or alcohol abuse. While the absence of those factors is not mitigating, it does differentiate this case from others where some or all of those factors were present.

Aggravating Factors

[5] The factors that aggravate sentence:

• The abuse of an intimate partner s 718.2(a)(ii),
• The abuse of trust s 718.2(a)(iii)
• The vulnerable position of the female victim who was asleep in her room up to the time the incident began s 718.201,
• The fact that their child was present at the outset of the incident,
• The significant impact of the offence on the victim as shown in the Victim Impact Statement s 718.2(a)(iii.1).

[6] The victim is entitled to be safe within her own home. She continued living with her husband despite their separation because she trusted that he would not violate her safety or the safety of her daughter. All of the factors cited above show the gravity of the offence where that trust is violated.

Analysis

[7] The circumstances of the accused’s conduct over the course of the evening ending with the forcible sexual touching over clothing had a serious impact upon the victim as shown in her victim impact statement. It’s plain things could have been worse but for the intervention of her mother. While the final touching was brief, the sentence must reflect all of the circumstances including the 60-90 minute period leading up to that point where the victim repeatedly had to resist IFL’s efforts to take off her pajamas.

[8] The victim’s evidence at trial and the accused’s conduct since release show that this was an isolated incident that occurred when the accused was intoxicated. Both agreed that was unusual for him. There’s no evidence that he had difficulties with alcohol or drug use prior to the incident or at any time since.

[9] The victim asked the Crown to convey a request that the accused not be given a jail sentence. Their arrangement for mutual custody of their child has been working well and she is concerned about the impact a jail sentence may have on their daughter. While the victim’s position on sentence is not determinative and likely outside the bounds of s 722, I find that all of the victim’s input is relevant and I commend the Crown for forwarding that further information to the court today.

[10] In setting a sentence that is proportionate to the gravity of this offence and the degree of responsibility of this offender, general deterrence and specific deterrence are important goals. There is a strong societal interest in the prevention of intimate partner sexual assaults. The sentence imposed must promote a sense of responsibility and acknowledgement of the harm done both to the victim and the community. Mr. IFL and others like him must understand that their choice to become intoxicated does not give them license to impose themselves upon their partner.

[11] Rehabilitation is also an important goal, particularly for a first offender. The evidence shows there are good prospects for rehabilitation in Mr. IFL’s case.

[12] Considering all of the circumstances, I find that a custodial sentence is required to meet the need for general deterrence, to promote a sense of responsibility in Mr. IFL and to acknowledge the harm done to the victim. I agree with the defence though that in this case service of the sentence in the community would not endanger the safety of the community and would not be inconsistent with the purpose and principles of sentencing. I find a conditional sentence appropriate here for the following reasons:

• The final vaginal touching was brief and limited, although the sentence takes into account fully the conduct that led up to it.
• Mr. IFL has no criminal record and has otherwise led a pro-social life. Three years since the incident it remains an isolated instance of serious misconduct.
• The wishes of the victim are relevant although not determinative. They reveal a relevant factor – the impact of a jail sentence on others including Mr. IFL’s daughter and his former wife as they navigate shared child custody. A jail sentence would also have an impact on the accused’s ability to continue child support.
• Mr. IFL has a consistent record of employment. Incarceration for the period suggested by the Crown or any like period could cost him his job with limited prospects for future employment given this conviction. A custodial sentence would speak to general deterrence but at the cost of interfering with rehabilitation. There are many sexual assault cases where jail is nonetheless necessary, but I find that it’s not required in this case to address the same principles.
• While neither party mentioned the COVID pandemic, the media says there is currently yet another rise in cases. That’s certainly not the factor it would have been in the earlier stages of the pandemic, but I find it has some minor relevance.

[13] I find that a custodial sentence served in the community would be the least restrictive sentence that would be proportionate to the gravity of the offence and the degree of responsibility of Mr. IFL. Mr. IFL will be sentenced to 12 months in custody to be served in the community by way of a conditional sentence. In addition to the statutory terms, he will:

• Report to a supervisor by phone or in-person within 48 hours and thereafter as required
• Obey a curfew for the first six months of the sentence to remain in your residence at all times with the following exceptions:
  • Except for the purposes of employment including direct travel to and return from employment,
  • Except for medical emergencies involving himself or any member of his immediate family
  • Except for medical or dental appointments as approved by his supervisor
  • Except to consult with his Family law counsel including direct travel to and from his lawyer’s office
  • Except for one period every Sunday between the hours of 12 noon to 4pm for the purpose of shopping for necessities
  • Except when in the immediate direct company of his daughter during child access including direct travel to and return from her residence
  • Except with the permission of his supervisor
• For the remaining 6 months you will obey a curfew to be in your residence between the hours of 10pm and 6am with the same exceptions as set out above in the previous paragraph.
• Not have any contact directly or indirectly with the victim except through counsel or pursuant to a family court order or separation agreement, or except through a mutually agreeable third party for the purposes of child access and support.
• Not to attend at the victim’s place of residence or employment except pursuant to a family court order or separation agreement, or except through a mutually agreeable third party for the purposes of child access and support.
• Not possess any weapons as defined by the Criminal Code
• Be assessed and take any counselling as may be directed by probation for alcohol use and sexual behaviour and sign any releases necessary for them to monitor your compliance with any counselling

[14] While the complainant is plainly a strong woman, the victim impact information shows the continuing impact of the offence. I find a probation order is necessary in the public interest to continue the protections provided in the conditional sentence order for a further 12-month period. The conditional sentence will be followed by a period of probation for 12 months. In addition to the statutory conditions, Mr. IFL will:

• Report to probation within 5 days of the completion of his conditional sentence and thereafter if and when required.
• Not have any contact directly or indirectly with the victim except through counsel or pursuant to a family court order or separation agreement, or except through a mutually agreeable third party for the purposes of child access and support.
• Not to attend at the victim’s place of residence or employment except pursuant to a family court order or separation agreement, or except through a mutually agreeable third party for the purposes of child access and support.
• Not possess any weapons as defined by the Criminal Code.

[15] There will be a SOIRA order for 10 years.

[16] Given the offence of violence within the domestic context and the circumstances of the offence I find it necessary to prohibit Mr. IFL from the possession of any firearms or related items set out in s 110 of the Criminal Code for a period of 5 years.

[17] This is a primary designated DNA offence. Mr. IFL will provide a sample of his DNA for registration on the national databank.

Delivered: July 6, 2022.

Justice Joseph F. Kenkel