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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Ontario Court of Justice

Date: 2022 09 07 Court File No.: 20-75002149

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

R.R.

Sentencing Judgment

Before: Justice B. Jones

Heard on: August 17, 2022

Reasons for sentence released on: September 7, 2022

Counsel: C. Glaister, counsel for the Crown P. Mota, counsel for R.R.

Jones J.:

Introduction

[1] In 2019, R.R. and T.L. were friends. They met online via social media and enjoyed periodically communicating with each other. They became close. On one occasion in March, they spent time together in person. Over the following months they continued to send electronic messages to each other via various apps and their relationship strengthened. Unfortunately, on August 24, 2019, R.R. betrayed that friendship. After inviting her to his private dance studio, and supplying her with alcohol, she passed out. His actions after that moment resulted in him being found guilty of sexual assault and voyeurism by this court on April 7, 2022.

[2] Following a sentencing hearing that was conducted on August 17, 2022, I reserved my decision. These are my reasons.

Facts

[3] My reasons finding R.R. guilty were previously reported at R. v. R.R., 2022 ONCJ 158. I provide the following brief summary of the facts here.

[4] T.L. was 18 years old at the time of these offences. R.R. was 27. She met R.R. through social media apps and they developed an online friendship. On August 24, 2019, they met at his dance studio around 12 a.m. He gave her a tour of the studio. They watched a movie, took photographs, and generally enjoyed each other’s company.

[5] They both drank mixed alcoholic drinks. Over the course of the evening T.L. became increasingly intoxicated. She became sick, and then fell asleep. She later awoke when she felt R.R. placing his hand under her shirt and touching her breasts. She froze out of fear and did not open her eyes. He moved his fingers down to her vaginal area. He unbuckled his pants and brought himself to an erection. He removed her pants and underwear and tried to penetrate her vagina with his penis. He did not succeed, but instead penetrated her anus momentarily. This caused her pain and she grunted. He stopped touching her at that point.

[6] T.L. did not consent to any of this activity. After he ceased the sexual assault, R.R. removed T.L.’s shirt and took a photograph, surreptitiously, of her naked breasts. Her nipples were pierced. In a series of social media message exchanges on August 29, R.R. teased T.L. about her piercings. He also apologized for his conduct and told her he deleted the photograph. Nevertheless, its very existence caused her concern.

Victim Impact Statement

[7] These crimes had a tremendous emotional impact on T.L. In her victim impact statement she describes feeling weak and embarrassed following the sexual assault. She wondered if she was responsible in some way for what happened to her. She felt stupid and questioned if she should have done something differently. While she previously thought of herself as a strong person, she doubted if that were true anymore.

[8] She tried to forget everything afterwards, but the details of the events would return to her mind randomly nearly every day. She was depressed and felt numb. She had a nightmare about having sexual intercourse with R.R. She woke up sobbing and terrified.

[9] She continues to feel like a different person. She is less outspoken. She worries that everyone in her life judges her as they know what happened. She has trouble trusting other people and no longer feels she can live her life the way she wishes. Tragically, she feels undeserving of happiness.

Background of the Offender

[10] A pre-sentence report (“PSR”) was completed. R.R. is 29 years old. He has no prior criminal record. He was born in Bangladesh and immigrated to Canada at the age of 11. He has two younger half-sisters and a younger half-brother. His parents separated when he was two years old and he was raised by his maternal grandparents until his arrival in Canada. He described his childhood as otherwise having been positive. His father passed away in Bangladesh in August 2020.

[11] His mother was able to provide for him in Canada by working and receiving some government assistance. She remarried in 2008. He has a very strong and positive relationship with his mother, step-father and siblings.

[12] He has a current romantic partner who supports him. They have been together for about 18 months. They do not currently reside together and have no children.

[13] R.R. completed high school with good grades and earned a scholarship to an undergraduate psychology program at a local university. He did not complete that program but is currently enrolled in a two-year special event planning program at a college in Toronto. He is also currently employed as a Chat Coordinator for an online enterprise. This began in March 2022. He hopes to start his own media company in the future.

[14] There is no evidence he suffers from any addiction issues with respect to alcohol or drugs. There are also no mental health concerns.

[15] Both his step-father and current romantic partner were interviewed for the PSR and confirm he is a respectful person who they consider to be a positive influence in their lives. He shows compassion to others and has been involved with charity work. He is described as patient and understanding, and someone who supports others in their endeavours.

[16] In terms of collateral consequences arising from the charges and conviction, he has lost many of his prior friends due to the allegations becoming known in his social circle. He believes the offences ruined his reputation. A friend of his, Ms. N-J B., informed the author of the PSR that some of his prior friends turned on him and “tried and convicted him on social media.” Yet she never witnessed him turn to anger or retaliate against anyone in response.

Sentencing Principles

[17] Section 718 of the Criminal Code describes the purpose of sentencing:

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

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

b. To deter the offender and other persons from committing offences;

c. To separate offenders from society, where necessary;

d. To assist in rehabilitating offenders;

e. To provide reparations for harm done to victims or to the community; and,

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

[18] A sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender”: Criminal Code s. 718.1. The degree of responsibility of the offender requires a consideration of the offender’s moral blameworthiness. Assessing that moral blameworthiness must be done through the perspective of the offender’s life experiences and personal characteristics: R. v. Morris, 2021 ONCA 680 at para. 88. This process of individualization is “central to the proportionality assessment”: R. v. Parranto, 2021 SCC 46 at para. 12.

[19] Ultimately, the sentence imposed must reflect the gravity of the offence, the offender’s degree of responsibility and the unique circumstances of the case: R. v. Lacasse, 2015 SCC 64 at para. 58.

[20] The principle of restraint must also be considered and given prominence for a first-time offender: see Criminal Code section 718.2(d). In R. v. Romano, 2021 ONCA 211, the Court of Appeal indicated that this principle requires a sentencing court to only impose a sentence of incarceration where there is simply no other reasonable alternative available and that any term of incarceration should be as short as is “reasonable given the circumstances”: see para. 64.

[21] Generally speaking, when sentencing a youthful first-time offender, a court should focus on the sentencing principles of specific deterrence and rehabilitation: see R. v. Priest (1996), 110 CCC (3d) 289 (Ont. C.A.) at pp. 543-44. Yet where the crimes committed involved significant personal violence, the sentencing objectives of denunciation and general deterrence retain their prominence: R. v. Mohenu, 2019 ONCA 291 at paras. 12-13.

Aggravating and Mitigating Factors

[22] Section 718.2 (a) of the Criminal Code requires that a "sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender." The following aggravating factors are present in this case:

• The victim was intoxicated and vulnerable at the time of the sexual assault;
• The victim was penetrated, even if it was briefly;
• The accused betrayed his friendship with the victim;
• He was considerably older and took and advantage of a teenage girl; [^1]
• The existence of the naked photograph of her breasts caused her concern and R.R. teased her about it in social media chats following the assault initially showing some lack of empathy [^2]; and
• R.R. did not wear a condom when he inserted his penis into T.L.’s anus raising the risk of spreading a sexually transmitted infection or disease.

[23] Mr. Mota submits the following mitigating circumstances should be considered:

• R.R. has no prior criminal record;
• He is a young man with great rehabilitative potential;
• He is industrious, employed, works hard and otherwise contributes positively to the community;
• He is enrolled in post-secondary education seeking to make himself a more productive and contributing citizen in the future; and
• He has the support of his family and friends.

Position of the Crown

[24] Ms. Glaister seeks a penitentiary sentence of four to five years. She asks me to condemn these crimes and recognize the great harm caused by sexual based offences. The victim in this case was tremendously impacted. She continues to live with the effects of the offences years later. The accused suffers from no mental health issues or addiction issues. Rather, he simply abused the trust the victim placed in him.

[25] The Court of Appeal has established a range of 3-5 years for an act of sexual assault involving forced penetration on a victim in the recent decision of R. v. A.J.K., 2022 ONCA 487. There is nothing about this case that should result in the court departing from that range.

[26] On the count of voyeurism, a sentence of 9 to 12 months custody, consecutive, should be imposed. The victim was treated as an object and remains fearful the image remains lost in cyberspace. She will always have to live with the constant concern that control over her bodily image was taken from her forever. While the victim’s feelings are understandable, Ms. Glaister explained there is no evidence before me that the image was ever distributed to anyone else or posted online.

Position of the Defence

[27] The position of the defence is that a sentence of 11 months custody on the sexual assault charge is appropriate, followed by a sentence of 1 month custody on the voyeurism charge. In coming to this position, Mr. Mota fairly acknowledges my finding with respect to the victim’s position of vulnerability at the time she was assaulted. He submits that if the court concludes a true jail sentence is required, this is an appropriate disposition. He also asks me to consider if a longer conditional sentence would be appropriate, in light of his client’s otherwise excellent background and prospects for the future.

[28] Mr. Mota referred to several authorities where courts have imposed sentences in the mid-upper reformatory range for offences of this nature. In R. v. Ghadghoni, 2020 ONCA 24, the appellant was convicted of initiating sexual intercourse with a sleeping woman. He was 22 years old, he immediately stopped when the victim told him to stop, and he had no prior criminal record. The Court of Appeal held a custodial sentence of two years less a day was appropriate: see para. 52.

[29] He also relies on R. v. Holland, 2022 ONSC 1540. The offender in that case sexually assaulted a young woman at a nightclub by penetrating her vagina with his finger. He used his position as a successful nightclub promoter to lure the victim into a secluded area of the club under the ruse of providing her a tour. Once there, he grabbed her and began to kiss her neck. He pulled down her pants and digitally penetrated her vagina. The victim said “stop” and he did stop. The entire incident lasted about 10 to 15 seconds.

[30] Holland was 45 years old with no prior criminal record. The Superior Court concluded a sentence of 9.5 months was appropriate prior to the granting of any credit for pre-sentence custody or difficult bail conditions. Justice Schreck imposed a conditional sentence in light of the offender’s personal circumstances: see paras. 53 and 64.

[31] In R. v. Scinocco, 2017 ONCJ 359, the offender sexually assaulted a victim while she slept. He took advantage of her while she was intoxicated and essentially stranded at his residence. He removed her underwear, touched her vagina, and attempted to put a part of himself into her vagina. He was a first time offender. The Court imposed a sentence of 12 months’ imprisonment: see para. 16.

[32] In R. v. MacKenzie 2017 ONCA 128 a nine month sentence imposed by the trial judge was upheld by the Ontario Court of Appeal. The offender committed a sexual assault on a young woman in circumstances similar to those in this case, involving partial penetration. As this case took on some prominence during the sentencing hearing, I will address the significance of this decision later in these reasons.

[33] Mr. Mota also asks me to consider that his client has already suffered greatly personally as a result of the charges and finding of guilt. He has been subject to “cancel culture” online, where his former friends and colleagues have smeared him. He has also been threatened with harm. A collateral consequence includes “any consequence arising from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence, that impacts the offender”: see R. v. Suter, 2018 SCC 34 at para. 47. Accordingly, he asks me to view this as a mitigating factor of great significance.

Sexual Assault – Sentencing Law

[34] In R. v. Goldfinch, 2019 SCC 38, the Supreme Court of Canada noted that “[s]exual assault is still among the most highly gendered and underreported crimes”: see para. 37 (emphasis in the original.) In R. v. Barton, 2019 SCC 33, at para. 1, the Court wrote: “Without a doubt, eliminating … sexual violence against women is one of the more pressing challenges we face as a society”.

[35] The moral blameworthiness of an offender convicted of sexual assault is normally high. In R. v. Friesen, 2020 SCC 9 at para. 89 the Supreme Court of Canada held:

All forms of sexual violence, including sexual violence against adults, are morally blameworthy precisely because they involve the wrongful exploitation of the victim by the offender -- the offender is treating the victim as an object and disregarding the victim's human dignity (see R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584, at paras. 45 and 48).

[36] Denunciation and general deterrence are typically the primary sentencing principles in cases of sexual assault: see, for example, R. v. Forsellino, 2022 ONSC 262 at para. 24. Furthermore Criminal Code section 718.04 requires a sentencing court to give primary consideration to the objectives of denunciation and deterrence for an offence that “involved the abuse of a person who is vulnerable because of personal circumstances – including because the person is Aboriginal and female.”

[37] Denunciation refers to the court's "communication of society's condemnation of the offender's conduct." The "denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law": see R. v. Proulx, 2000 SCC 5 at para. 102. Deterrence refers to the court imposing a sentence for the express purpose of discouraging the offender and other like-minded persons from engaging in similar criminal conduct: R. v. B.W.P.; R. v. B.V.N., 2006 SCC 27 at para. 2.

[38] Even though the principles of deterrence and denunciation must be given priority, a sentencing court may still place considerable weight on other sentencing principles, including rehabilitation: see Friesen, supra at para. 105. Yet the court’s emphasis must remain on denunciation and general deterrence, which take on increasing significance as the seriousness of the violation of the sexual integrity of the victim rises: see R. v. Thurairajah, 2008 ONCA 91 at para. 42.

[39] In A.J.K., supra, at para. 74, the Ontario Court of Appeal made the following important remarks about the nature of sexual assaults:

All sexual assaults are serious acts of violence. They reflect the wrongful exploitation of the victim whose personal autonomy, sexual integrity, and dignity is harmfully impacted while being treated as nothing more than an object. Whether intimate partners or strangers, victims of sexual violence suffer profound emotional and physical harm and their lives can be forever altered. So too can the lives of their loved ones.

[40] The Court of Appeal emphasized not only the importance of appreciating the harm done to victims of sexual assault but the courts’ continuing path to enlightenment in that regard. It referenced the Supreme Court’s remarks in Friesen at para. 118, that “our understanding of the profound physical and psychological harm that all victims of sexual assault experience has deepened.”

[41] The victim impact statement filed by Ms. T.L. explains the harm she has experienced in this case. The offences had a significant impact on her mental health and were physically violating. This must also be considered as an aggravating factor: see section 718.2 (a)(iii.1) of the Criminal Code.

[42] The Court of Appeal held that absent a highly mitigating factor, the forced penetration of another person will result in a sentence of at least three years in a penitentiary and can be as high as five years: see A.J.K. at para. 77. Not all cases of sexual assault, even those involving forced intercourse, will be entirely similar, and there may be circumstances where a departure from the suggested range is appropriate: A.J.K., supra. Where the sexual assault did not involve a fully completed act of vaginal or anal intercourse, courts have departed from the lower end of this suggested range: see, for example, R. v. McCaw, 2019 ONSC 3906 at para. 45; Forsellino, supra at para. 31.

[43] Prior sentencing decisions offer guidance as to the appropriate sentence in this case.

[44] In R. v. Booth, 2021 ONCA 80, the 19 year old offender had been drinking with the victim. They arrived at a house party where she went upstairs to sleep. She later awoke to find him on top of her. She believed she was dreaming. Another person, also asleep in the same room, turned on the lights when he thought he heard a commotion and saw the offender rolling off the victim who appeared to still be asleep. The trial judge found he penetrated the victim’s vagina with his penis just before the lights came on: see paras. 5-8. The Court of Appeal held an appropriate sentence was three years’ custody: see para. 31.

[45] In R. v. Sanderson, 2016 ONCA 866, the appellant and the victim met at a social gathering at a mutual friend’s home. She fell asleep on the couch. The appellant engaged in sexual intercourse with the victim while she slept (and therefore without her consent). A sentence of 30 months’ jail was upheld on appeal.

[46] In Forsellino, supra, the victim was at a townhouse with the offender. He sat down next to her on a bed and grabbed her breasts without her consent. She expressed her disgust and he stopped touching her. Later, she returned to her room and the offender started rubbing her back. She made it clear she would not sleep with him. He nevertheless flipped her over and inserted his penis into her vagina. She started to cry and he stopped. Justice Leibovich of the Superior Court of Justice held that an accused who forces sexual intercourse on a victim should be sentenced to either a significant reformatory sentence or a penitentiary sentence as high as five years: see para. 28. The court clarified that where the act of forced penetration is brief and the accused stops upon his own volition, that is a factor that may justify a sentencing court falling at the lower-end of the established range: see para. 31. This decision was released prior to the Court of Appeal’s decision in A.J.K. which, to repeat, held the range for an act of forced intercourse begins at three years’ incarceration. The Court imposed a sentence of 23 months’ custody.

[47] In R. v. Colbourne, 2013 ONCA 308, the appellant and the victim had been drinking at a bar. They were both heavily intoxicated by the time they arrived at the appellant’s home later that evening. He engaged in sexual intercourse with the victim. The trial judge found she was incapable of consenting. He was sentenced to 14 months’ imprisonment followed by two years’ probation. The Court of Appeal denied the offender’s sentence appeal, stating that “[i]f anything the sentence was at the low end of the range”: see para. 17. I note that this decision too was decided well before the Supreme Court’s decisions in Friesen, Barton and Goldfinch and the Court of Appeal’s decision in A.J.K.

[48] A unique result occurred in MacKenzie, supra. The 35 year old appellant was convicted of sexually assaulting his 19 year old co-worker. They were at an office Christmas party. He pulled her into a washroom where he pressed his penis against her anus. He partially penetrated her. She said “no” and the assault stopped when someone else knocked at the washroom door.

[49] The appellant was a permanent resident of Canada and he would face immigration consequences if he was sentenced to more than six months’ custody. [^3] The trial judge imposed a sentence of nine months’ imprisonment followed by two years’ probation. The Court of Appeal dismissed his appeal against sentence. The Court found that it was “doubtful” it was mitigating that only partial penetration occurred and held that the victim’s alcohol consumption, the relationship between the appellant and the victim, and the age difference between them were all elements that made the sexual assault “significant”: see paras. 21-22. Anal penetration was held to be an aggravating circumstance: see para. 22; R. v. M.R., 2014 ONCA 484 at para. 6.

[50] The nine month sentence upheld in this case was a result of the applicable standard of appellate review. The sentence was not demonstrably unfit in all the circumstances and it was the offender who appealed, not the Crown. The Court of Appeal’s decision to uphold the nine month sentence must be read in this context: see Forsellino, supra, at para. 29.

[51] Sentencing ranges established by appellate courts are not meant to be straight-jackets. R.R.’s act of anal penetration was fleeting and he stopped as soon as the victim grunted. That does not, for a moment, in anyway lessen the significance of the violation of the sexual integrity of the victim that occurred in this case. There must be a powerful message sent to R.R. and the community that this degree of sexual violence will not be tolerated by the courts. As Campbell J. held in R. v. Smith, 2015 ONSC 4304, “Men must understand that women who are deeply asleep, significantly intoxicated, unconscious, or otherwise obviously incapable of consenting to any kind of sexual activity must not be opportunistically victimized as their inert sexual playmates”: para. 39.

[52] Upon reflection, I also agree with the submission of Ms. Glaister that in the year 2022 courts should be long past drawing artificial distinctions between partial or full penetration when the very act of victimizing a woman in this manner is inherently degrading and traumatizing. As noted by Justice Akhtar in R. v. De Jesus-Carrasco, 2021 ONSC 6891, any form of unlawful penetration committed against a woman has a profound effect on the dignity and sexual integrity of the victim: see para. 40. However, I do recognize that R.R.’s conduct could have been more egregious had he not stopped when the victim grunted, and that can be considered as the lack of an additional aggravating factor.

[53] R.R.’s moral blameworthiness remains very high. He sexually assaulted T.L. when she was extremely vulnerable. She was passed out from her consumption of alcohol and was completely at his mercy. They were friends and he took advantage of her: see R. v. J.F. 2015 ONSC 5763 at para. 41. This was intolerable conduct that requires a strong denunciatory message from the court.

Voyeurism – Sentencing Law

[54] R.R. was convicted of the offence of voyeurism pursuant to Criminal Code section 162(1)(b). I found he had surreptitiously taken a photograph of T.L’s naked breasts in circumstances where she had a reasonable expectation of privacy. The offence was enacted by Parliament “to protect individuals’ privacy and sexual integrity, particularly from new threats posed by the abuse of evolving technologies”: see R. v. Jarvis, 2019 SCC 10 at para. 48. It is meant to ensure that all persons – and especially particularly vulnerable individuals – are free from sexual exploitation: see para. 52.

[55] The Supreme Court has long recognized that Canadian society places a high value on personal privacy, including visual access to one’s body: see Jarvis at para. 65. As Justice La Forest held in R. v. Dyment, [1988] 2 SCR 417, privacy serves to foster the values of dignity, integrity and autonomy in our society. The connection between personal privacy and human dignity lies at the core of our understanding of the importance of privacy as a fundamental value: see pp. 427-49.

[56] An important aspect of the purpose of s. 162(1) is therefore to protect individuals, especially vulnerable individuals, from sexual exploitation and/or devastating violations of their personal privacy. As noted by Justices Côté, Brown and Rowe JJ, even though the offence of voyeurism does not itself involve physical harm to the victim, it has a significant psychological impact, causing feelings of humiliation, objectification, exploitation, shame and loss of self-esteem: see Jarvis at para. 127. These concerns amplify every year with the continuing development of easily obtainable hand-held technological devices that enable predators to victimize the innocent by obtaining and potentially releasing photographs and videos of their bodies without their consent. The harm that can result from these actions has been characterized as nothing short of devastating, often resulting in deep, life-long emotional harm and at times resulting in suicide: see Doe 464533 v N.D., 2016 ONSC 541 at para. 16.

[57] I heard no evidence that R.R. distributed the naked photograph of T.L.’s breasts to anyone else and nor that he placed it online. Those aggravating factors are not present. However, the crime was committed, and the emotional distress caused to the victim is clear from her victim impact statement. Simply knowing that such an image of one’s body exists, was taken without your consent, and is under the control of another person who has already shown an intent to harm you, is unquestionably an emotionally traumatic experience. The damage is in some respects irreversible. As noted by the Supreme Court in R. v. J.J., 2022 SCC 28 at para. 142, once privacy is invaded, “it can seldom be regained.”

[58] Deterrence is an important consideration when sentencing an offender for the crime of voyeurism. A clear message must be sent to the community that those who would violate the sexual integrity and personal dignity of their victims by surreptitiously taking photographs or videos of their bodies will pay a significant price.

[59] In R. v. McFarlane, 2018 MBCA 48, the Manitoba Court of Appeal held that the range of sentence for a first offender who pleads guilty to voyeurism is between a discharge and 12 months’ imprisonment, recognizing the wide range of activity that can encapsulate the offence: see para. 25.

[60] R. v. Russell, 2019 BCCA 51, the British Columbia Court of Appeal held that voyeurism represents a serious invasion of personal privacy: see para. 34. The Court recognized the Manitoba Court of Appeal’s decision in McFarlane but clarified that other reported decisions revealed sentences as high as two years’ incarceration. Cases that resulted in a disposition at the higher end of the range involved more serious offences in conjunction with the offence of voyeurism, and the sentences were typically consecutive: see para. 39.

[61] Russell attended at a mall and recorded a young girl by taking an “upskirt” photograph of her as she stood in line at a food court. A mall security officer arrested him. A police investigation revealed that he had a digital camera and digital storage cards containing 64 videos of views taken in similar circumstances of 85 young women or girls. Some of these girls were wearing school uniforms.

[62] He had a significant prior criminal record including entries for similar offences and was bound by a long-term supervision order (LTSO) at the time of the offences. The Court of Appeal upheld an 18 month jail sentence consecutive to a 12 month jail sentence for breaching his LTSO: see paras. 40-41.

[63] In R. v. Argus, 2015 ONSC 5732, the offender was a male nurse in an emergency ward. He took advantage of a patient who had been there to seek medical treatment. He had her disrobe and then took photographs of her naked breasts and genitals with his personal cell phone. He convinced her this was for legitimate medical purposes and to document her injuries. A search of his cell phone revealed a photograph taken of another woman, without her lawful consent, who had also been a patient at the hospital. He was convicted of both sexual assault and voyeurism, and sentenced to 14 months custody, less five months’ credit for pre-trial custody and stringent bail conditions: see para. 40. Justice Campbell found that the accused breached a position of trust. He had no prior criminal record.

[64] In R. v. R.B., 2014 ONCA 840, the appellant was convicted of a number of child pornography offences and one count of voyeurism. He hid a video camera in his 13 year old niece’s bedroom and filmed her as she changed. On that count, he received a sentence of six months’ custody. The Court of Appeal upheld the sentencing decision and commented that consecutive sentences were appropriate as the offences engaged different legally protected interests: see para. 7.

[65] Where the act of voyeurism is inherently connected to an accompanying charge of sexual assault on the same victim that is a highly relevant factor which weighs heavily in favour of a consecutive sentence. In R. v. Percy, 2019 NSPC 12, the offender made two recordings of sexual activity with the victim without her knowledge or consent. In the second recording, he was having intercourse with her while she was not capable of consenting. He was sentenced to two years’ custody for the sexual assault and six months consecutive for the act of voyeurism: see paras. 57-59.

[66] In R. v. De Jesus Carrasco, 2020 ONSC 5308, the victim worked at a bar for the accused. One evening, he started massaging her, and she froze. He held her up against a wall and touched her vagina. She told him to stop, but he persisted. The bar had a digital video recording system which recorded her without her knowledge or consent. Justice Goldstein found he exploited an employer-employee relationship and filmed her for his own sexual gratification. He was convicted of one count of sexual assault and one count of voyeurism. He was sentenced to 12 months custody for the act of sexual assault and six months consecutive for the act of voyeurism: see para. 53.

[67] Following the decision of the Supreme Court of Canada in Jarvis, the offender was sentenced by Justice Goodman of the Superior Court of Justice: see R. v. Jarvis, 2019 ONSC 4938. Jarvis was a high school teacher who secretly recorded videos of students using a pen camera. They were mostly female students between the ages of 14 and 18. The recordings took place in various locations in the school where the students should have felt safe and secure. While the students were clothed, the videos often focused on the female students’ cleavage.

[68] Jarvis had significant family support, expressed remorse for his actions and underwent counseling prior to sentencing. Recognizing the harm he caused by his repeated acts of recording adolescent girls, Justice Goodman imposed a sentence of six months’ custody: see para. 93.

[69] In summary, the factors that a court should consider when deciding upon a sentence for a count of voyeurism under section 162(1)(b) include the following:

• The circumstances of the victim at the time of the events – including her age and whether she was in a position of vulnerability;
• The circumstances of the defendant, including his age and whether he was in a position of trust towards the victim;
• The degree of invasiveness of the crime including the extent the recordings violated the sexual integrity of the victim;
• The location of where the crime occurred;
• The number of images or videos taken;
• Whether the images or videos taken were ultimately recovered and deleted, and/or whether they were distributed to other persons including into the wider online community such that it may exist forever further harming the victim;
• The impact on the victim, including psychological harm; and
• Whether the act of voyeurism was committed in conjunction with or otherwise connected to another criminal offence such as sexual assault.

Conclusion and Dispositions

[70] R.R.’s crimes reflect a high degree of moral culpability. While his actions were not planned, when T.L. was passed out and completely vulnerable, he chose to sexually gratify himself. His actions involved touching her naked body and penetrating her, however fleetingly, with his erect penis. While he stopped the assault when she grunted in pain, that is at best the absence of a further aggravating factor. By that point, the damage to her sexual integrity had already been done.

[71] R.R.’s decision to take a photograph of T.L.’s naked breasts following his sexual assault on her amplified the harm he had already caused. The photo can only be seen as a trophy he wished to collect, that he later used to taunt her. While he ultimately apologized for his conduct and admitted he should not have taken the photograph (and promised it was deleted), these actions increase his moral blameworthiness. This was an act of objectification and humiliation done for his own amusement. T.L. lost control over her own bodily image and her sexual integrity was further undermined. The impact these crimes had on her mental health was profound and continues to affect her on a daily basis.

[72] As noted by Justice Renwick in Scinocco, supra at para. 11, “vulnerable people who are asleep and cannot consent to sexual activity deserve protection from those who prey on them as if they were their own inert sexual toys.”

[73] Balanced against the aggravating factors in this case is that R.R. is a first offender with great rehabilitative prospects. He had no further involvement with the criminal justice system since these events occurred. He has employment, is enrolled in a post-secondary educational program, and has the love and support of his family, close friends and romantic partner. He has also been subject to online reprisals and I accept this is a collateral consequence which should be considered as a mitigating factor.

[74] R.R. does not express any remorse for his actions as he continues to maintain his innocence. This is an absence of a mitigating factor, but may not be treated as an aggravating factor, even after a finding of guilt: see R. v. Reeve, 2020 ONCA 381 at para. 12.

[75] Nevertheless, both of these crimes require a significant jail sentence. Where a court determines that jail terms are required for separate offences, it may order that the sentences be served concurrently or consecutively. The decision whether to impose consecutive or concurrent sentences is a discretionary matter: see Criminal Code section 718.3(4)(b); R. v. Delchev, 2014 ONCA 448 at para. 34.

[76] The totality principles requires that if the offender is ordered to serve consecutive sentences the cumulative sentence must not exceed his overall culpability: Criminal Code section 718.2(c); R. v. Ahmed, 2017 ONCA 76 at para. 79.

[77] In Ontario, courts often follow the process outlined in R. v. Jewell, 100 C.C.C. (3d) 270 (Ont. C.A.), at pp. 14-15, and recently affirmed in R. v. Milani, 2021 ONCA 567, at paras. 37-38, which is to first identify the gravamen of the conduct giving rise to all of the offences, determine the appropriate sentence to reflect the gravamen of the overall conduct, and then determine the sentence for each offence, including whether they are consecutive or concurrent.

[78] I impose a global sentence for these offences of 36 months custody. It will be apportioned as 30 months’ custody for the sexual assault and 6 months consecutive for the act of voyeurism.

Availability and Appropriateness of a Conditional Sentence

[79] Mr. Mota asked me to consider if a conditional sentence would be appropriate. A conditional sentence of imprisonment was prohibited by Parliament for sexual assault in cases where the Crown proceeded by indictment: Criminal Code section 742.1(f)(iii). In R. v. R.S., 2021 ONSC 2263 and Holland, supra, judges of the Superior Court of Justice declared Code s. 742.1(f)(iii) of no force and effect. These decisions were based on the decision of the Ontario Court of Appeal in R. v. Sharma, 2020 ONCA 478. [^4] These Superior Court decisions are binding on me: see R. v. Sullivan, 2022 SCC 19 at para. 65. Thus, a conditional sentence is lawfully available in this case.

[80] As I have already concluded that a combined sentence of more than two years is required in this case, that is sufficient to foreclose that option. Had I been convinced that a sentence of 24 months or less was appropriate, I would still have declined to impose a conditional sentence. When an offender’s moral culpability is particularly high, and the crimes have had a significant impact on the victim, a conditional sentence is simply not a proportionate penalty that adequately reflects the sentencing principles of deterrence and denunciation: see R. v. Christink, 2012 ONCA 141 at para. 5.

[81] Such a sentence would simply not be “consistent with the fundamental purpose and principles of sentencing” contained in sections 718 to 718.2 of the Criminal Code. A conditional sentence would simply not reflect the gravity of the offences, the harm caused to the victim, and R.R.’s significant moral culpability. In R. v. Proulx, 2000 SCC 5 at para. 114, the Supreme Court held that when the sentencing principles of “denunciation and deterrence are particularly pressing, such as cases in which there are aggravating circumstances, incarceration will generally be the preferable sanction,” and this may be so “notwithstanding the fact that restorative goals might be achieved by a conditional sentence.”

[82] In Argus, supra at para. 51, and Forsellino, supra, at para. 38, Justices Campbell and Leibovich of the Superior Court of Justice held that conditional sentences were not a proportionate sentence in light of the serious nature of the sexual crimes that had occurred. As Justice Leibovich held in Forsellino, women are typically the victims of sexual assault. A term of imprisonment is necessary in such cases so that “men will understand the true meaning of consent.”

Ancillary Orders

[83] Sexual assault is a primary designated offence. Pursuant to section 487.051(1) of the Criminal Code, R.R. is ordered to provide samples of bodily substances for purposes of forensic DNA analysis. Voyeurism is a secondary designated offence, and I exercise my discretion to impose a DNA order for that offence as well pursuant to Criminal Code section 487.051(3)(b).

[84] Every crime of sexual assault is a crime of violence. There will therefore also be a weapons prohibition order pursuant to section 109(2) of the Criminal Code for a period of ten years for any firearm other than a prohibited firearm or restricted firearm, any crossbow, restricted weapon, ammunition and explosive substance. There will be an order prohibiting R.R. from the possession of any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life: see Criminal Code sections 109(2(a) and (b).

[85] While R.R. is in custody, he is prohibited from communicating directly or indirectly with T.L., pursuant to Criminal Code section 743.21(1).

[86] Pursuant to Criminal Code sections 490.012(1) and 490.013(2)(b), I make an order that R.R. be added to the Sex Offender Registry and that he comply with the Sex Offender Information Registration Act for 20 years.

[87] The victim fine surcharges will be imposed.

[88] A copy of my reasons for conviction, sentencing, the PSR, and the victim impact statement, shall all be forwarded to the Correctional Service of Canada to assist with the administering of this sentence: Criminal Code section 743.2.

Released: September 7, 2022 Signed: Justice Brock Jones

[^1]: R. v. McCaw, 2019 ONSC 3906 at para. 58; R. v. MacKenzie, 2017 ONCA 128 at para. 22. [^2]: R. v. M.R., 2014 ONCA 484 at para. 6. [^3]: Based on the law applicable at the time. [^4]: Leave to appeal to the Supreme Court granted, [2020], S.C.C.A. No. 311.