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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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

(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 victim of the right to make an application for the order; and

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

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

ONTARIO COURT OF JUSTICE

CITATION: R. v. T.M., 2023 ONCJ 131

DATE: 2023 03 22

COURT FILE No.: Niagara Region 998 21 S0554

BETWEEN:

HIS MAJESTY THE KING

— AND —

M. (T.)

Before Justice J. De Filippis

Heard on January 31 and March 2, 2023

Reasons for Sentence released on March 22, 2023

Mr. M. Eshuis....................................................................................... counsel for the Crown

Mr. V.J. Singh............................................................................................ for the defendant

De Filippis, J.:

INTRODUCTION

[1] The defendant was found guilty of sexual assault (reported at R v T.M. 2022 ONCJ 489). In my reasons, I explained why I accepted the victim’s version of events as truthful and accurate. For the purposes of sentencing, it will be useful to reproduce these passages from my decision:

[38] In the present case, the defendant and complainant had both consumed alcohol and marihuana. This significantly affected the defendant. It is less clear to what extent the complainant was intoxicated. The defendant initiated sexual activity with the complainant while she slept. She awoke and said the activity should not continue (by repeatedly telling him to stop on her version and by stating “we should not be doing this” according to him). This verbal rejection was followed by a physical gesture (in pushing him back according to the complainant and by brushing his hand away on the defendant’s version). The defendant continued to touch her for a sexual purpose (by fondling her breast on his version and, according to her, by also biting her breast, inserting his finger in her vagina and masturbating). On this common ground, the defendant’s assertion that the complainant consented or that he honestly believed this, cannot be accepted. However, the defendant adds that he initially touched the complainant thinking she was his wife and that the words and deeds he attributes to her were accompanied by a smile and the parting of her legs, signifying a consenting partner “playing hard to get”.

[39] The subsequent conversations involving the defendant undermine the Defence position. For example, the defendant told the complainant that “I shouldn’t have projected my personal problems into physical action” and told A.M. he might have “let the alcohol and weed get the best of me” and “I made a poor decision and regret it”. The defendant explained such admissions as referencing guilt for cheating on his fiancé. He added that by apologizing he also hoped that the affair would not be disclosed to his fiancé. I have little doubt the defendant felt guilty and was concerned his fiancé would learn what he did. But these factors have no necessary implications with respect to the issue of consent or his belief in it. His feelings of guilt and concern are also consistent with having committed a sexual assault. A fair reading of the social media exchanges, the defendant’s statement to the police, and his trial testimony show that his contrition went far beyond the issue of consensual infidelity. He was worried that the line he had crossed in forcing himself upon the complainant had jeopardized long lasting and important relationships he had with her and A.M.

[40] On all the evidence before me, I cannot accept the defendant's testimony that the complainant consented to sexual activity. Moreover, I reject the suggestion that the defendant honestly and mistakenly believed in communicated consent. In this regard, it is worth repeating that at the time of the incident, the defendant was intoxicated and, later, he conceded his perception of events was impaired. On his own version of events, it cannot be said that he took reasonable steps to determine consent.

[2] In accepting the victim’s version of events, I found that the defendant fondled and bit her breast and inserted his finger in her vagina. This began when the victim was sleeping. When she pushed the defendant away, he stood up and masturbated. The defendant had consumed alcohol and marihuana. Sentencing proceeds on these facts.

[3] The Crown submits that the appropriate sentence is nine months in jail, followed by probation for two years, and these ancillary orders; SOIRA, DNA, and weapons prohibition. The Defence submits that a conditional sentence order (CSO) is appropriate and accepts the ancillary orders, except for SOIRA. The Defence filed a Notice of Constitutional Question seeking an exemption from SOIRA.

[4] I have concluded that a fit sentence is one of four months custody, followed by probation. I agree that the ancillary orders sought by the Crown should be issued. These are my reasons.

THE APPLICABLE PRINCIPLES OF SENTENCING

[5] The Criminal Code provides as follows:

718 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.

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

718.2 A court that imposes a sentence shall also take into consideration the following principles……….(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under section 742.3, if

(a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2;

(b) the offence is not an offence punishable by a minimum term of imprisonment;

(c) the offence is not an offence under any of the following provisions:

(i) section 239, for which a sentence is imposed under paragraph 239(1)(b) (attempt to commit murder),

(ii) section 269.1 (torture), or

(iii) section 318 (advocating genocide); and

(d) the offence is not a terrorism offence, or a criminal organization offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years or more.

THE VICTIM

[6] I have the benefit of a victim impact statement. She expressed shock that her best friend would do this to her and notes that, after two years, she continues to have flashbacks of the event. Included in her comments are these:

This crime has left me feeling completely powerless. He has made me feel worthless. He has taken a piece away from me, which I’ll never be able to mend or get back. He has made me unbelievably angry and upset with myself. I’m completely disgusted in myself that he still has that much power over my emotions. And, in that moment during fight or flight, where you think your instincts would kick into fight mode, I froze, and because of that, I feel like a failure. That will be a burden I will carry with me for the rest of my life.

THE DEFENDANT

[7] I also have the benefit of a pre-sentence report. The defendant is 31 years old and gainfully employed. He does not have a criminal record. His childhood appears to be free of any adverse experiences and he had a close relationship with his parents and siblings. The defendant is married with children. The defendant noted that he was intoxicated at the time of the offence and added the following comments (which are the subject of submissions by counsel):

The subject does not report culpability for the offence before the Court and maintains it was a consensual act; however, also noted acceptance of the finding of guilt. The subject indicated the friendship with the victim, which began in high school, has always had a history of “sexual tension”. The subject noted following the offence before the Court he had a lot of guilt for being unfaithful towards his wife and stated this has been the worst two years of his life. [The defendant’s wife] noted this has been a shock to everyone and she does not believe the circumstances as they have been portrayed, stating this would be out of character for the subject. She indicated the subject has never displayed any unusual or inappropriate sexual behaviours in the past. The subject indicated he has had 18 sexual partners and denied any pre-occupation with thinking about sex or using sex as a coping mechanism. The subject indicated a willingness to comply with a community supervision order, including attending for counselling relating to sexual offending.

[8] The Defence provided me with seven letters; they are from his wife, mother, brother, friends, and employer. All speak highly of the defendant.

SUBMISSIONS

[9] The Crown points out that this offence continues to affect the victim, two years after the events. Moreover, the PSR shows that the defendant still does not understand the wrongfulness of his conduct. In these circumstances it is argued that a CSO cannot properly serve to denounce and deter. In any event, it is submitted that such a sentence is only available in exceptional circumstances for this type of offence.

[10] In advocating for a nine-month prison sentence, the Crown relies primarily on R v Smith 2015 ONSC 4304. In that case, the 29-year-old first offender was found guilty, after trial, of a sexual assault that was described as “rape”. The trial judge imposed a 16-month CSO. The summary conviction appeal by the Crown was allowed and the sentence was varied to one of nine months in jail. In so doing, the Court held as follows:

[36] Conditional sentences have, on occasion, and in exceptional circumstances, been imposed for offences of sexual assault committed upon unconscious or semi-conscious complainants. See, for example R. v. Killam (1999), 1999 CanLII 2489 (ON CA), 126 O.A.C. 281, 29 C.R. (5th) 147 (C.A.); R. v. Nikkanen (1999), 1999 CanLII 7339 (ON CA), 125 O.A.C. 353, 140 C.C.C. (3d) 423 (C.A.); R. v. Pecoskie, 2002 CanLII 41523 (ON CA), [2002] O.J. No. 4056, 170 O.A.C. 396 (C.A.). There is, however, no gainsaying the reality that conditional sentences, even those with significant restrictions on liberty and punitive terms, do not have the same denunciatory effect as a period of actual imprisonment. Accordingly, it is not surprising that, in the great majority of cases, a significant term of actual imprisonment is imposed upon an accused in such circumstances.

[37] In my view, the trial judge erred in principle in failing to appropriately balance all of the relevant sentencing considerations, and this led him to impose an unfit sentence. More particularly, in my view, the trial judge failed to consider the importance of denunciation and overemphasized the significance of rehabilitation. This led to the imposition of a sentence that was not proportionate to the gravity of the offence and the degree of responsibility of the offender.

[38] In his reasons for sentence, the trial judge properly considered the nature of the offence, including its many aggravating circumstances and its impact upon the complainant. The trial judge also properly considered the personal circumstances of the accused, including his positive prospects for rehabilitation. However, when he outlined the relevant sentencing factors that needed to be balanced, the trial judge failed to consider the importance of denunciation. He made no mention of it anywhere in his reasons. He noted that specific deterrence was “not a significant factor.” He stated that “general deterrence” was “obviously” an “important consideration.” The trial judge acknowledged that he had “started from the same position as the Crown” thinking that an offence of this nature “called for three years in jail, or at least a very significant penalty in terms of jail time,” but that the positive pre-sentence report had a “strong impact” on his thinking and had “turned [his] thinking around completely.” He then concluded that the accused was a good candidate for a conditional sentence, imposing that sentence in spite of the fact that neither of the parties had suggested this as an appropriate disposition. In so doing, the trial judge stated that he was “not at all convinced that jail would serve any useful purpose” in the circumstances of this case.

[39] In failing to mention denunciation, the trial judge failed to consider one of the most important sentencing considerations in these types of cases. As s. 718(a) of the Criminal Code makes clear, one of the critical objectives of sentencing is “to denounce unlawful conduct.” This objective is especially important in sexual assault cases like the present one, where the accused took advantage of a vulnerable young virgin, and had unprotected sexual intercourse with her, to ejaculation, while she slept in his home. Robbing her of her virginity in this sordid fashion had predictably traumatic and long-term emotional consequences for the complainant. In such circumstances, the courts are obliged to clearly denounce this kind of serious criminal conduct by the imposition of sentences that are proportional to the gravity of the offence and the degree of responsibility of the offender. 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. Accordingly, the sentences imposed in such cases must send that clear and unmistakable message.

[11] The Crown argues that this is not an appropriate case for a SOIRA exemption because the public is entitled to the protection it offers. Counsel put it this way:

The Applicant does not accept responsibility for the offence. He maintains that the sexual acts were consensual. In other words, he maintains that he did nothing wrong. In his mind, other than for infidelity concerns, there was nothing wrong with what he did. Presumably there would be nothing wrong in his mind (other than for infidelity concerns) if he repeated these actions in the future.

Despite the Applicant’s firmly held view that the sexual acts were consensual he also noted in the Pre-sentence Report his “acceptance of guilt”. The Applicant, for sentencing purposes, is playing both sides of the fence.

[12] The Defence suggests that the PSR is a positive one. The defendant has been in a relationship with his partner for nine years. They have a 5-year old son and are expecting another child in May 2023. The defendant also has a 10-year old daughter from a prior relationship who he sees on weekends. The defendant is in an amicable co-parenting relationship with the mother of his daughter. The defendant is steadily employed and is the sole provider for his family. Counsel added that the defendant maintains a pro-social support system of family and friends. Many character letters have been provided on the defendant’s behalf outlining his kindness and generosity. This offence is described as out of character.

[13] The Defence submits that the sexual assault in R. v. Smith, supra, is far more aggravating than the case before this court. Moreover, it is important to keep in mind that the Supreme Court in R. v. Parrranto, 2021 SCC 46, [2021]S.C.J. No. 46, stated at para. 40:

[40]…We emphasize, however, that it is inappropriate for appellate courts to “artificially constrain sentencing judges’ ability to impose a proportionate sentence” by requiring “exceptional circumstances” when departing from a range (Friesen, at paras. 11-12; R. v. Burnett, 2017 MBCA 122, 358 C.C.C. (3d) 123, at para. 26). Departing from a range or starting point is appropriate where required to achieve proportionality.

[14] The Defence concedes that a proportionate sentence for a sexual assault must give significant emphasis to denunciation and general deterrence. However, a properly structured CSO can satisfy these objectives. It is submitted that in this case, the main consideration is whether a CSO would endanger the safety of the community and would be consistent with the fundamental purposes and principles of sentencing set out in sections 718 to 718.2. In this regard, it is noted that the defendant is a first offender, with family support and no substance abuse concerns. Moreover, the probation officer stated he would be a candidate for community supervision. Although that officer also noted that the defendant lacks remorse and insight, it is suggested that the text messages following the offence demonstrate that he regretted his actions. According to the PSR, the defendant also expressed a willingness to participate in counselling related to sexual offending.

[15] It is submitted that the moral culpability of the defendant is relatively low. There was no indication or suggestion that this offence was pre-planned. Both individuals willingly consumed alcohol and marijuana as part of their holiday celebrations. The defendant was at a low-point in his relationship with his current partner. While the victim trusted the defendant and had the right not to be sexually interfered with while she was sleeping, it is likely that the sexual assault occurred as a result of a lack of understanding regarding the law of consent and through impaired judgment caused by alcohol and marijuana consumption. It should be noted that this was the first time the accused experimented with marijuana.

[16] Among the precedents relied upon by the Defence in support of a CSO, two are emphasized; R v Cacdac 2022 ONCJ 492 and R v S.C. 2017 ONCJ 891 The Defence and Crown also provided fulsome submissions with respect to the constitutional issue. The arguments of both parties proceeded on the assumption that the request for a CSO and SOIRA exemption are linked; that is, whether the safety of the community would be compromised.

CONCLUSION

[17] The cardinal principle of sentencing is proportionality. In R. v. Nasogaluak, 2010 SCC 6, the Supreme Court of Canada 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 the sentence properly reflects and condemns their role in the offence and the harm 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.

[18] I accept the Defence argument that the facts of the Smith case, relied upon by the Crown, are worse than those I am dealing with. However, the general principles that emerge from Smith are relevant to my decision in that they properly reflect the doctrine of proportionality. I have considered the cases relied upon by the Defence, including Cacdac and S.C.. In Cacdac, the Court cited Smith; the imposition of a CSO appears to be grounded in the early guilty plea by the defendant and the sincere apology he offered to the Court. S.C. is a case with similar facts to the present one with respect to both the offence and the offender except that the Court noted the defendant was remorseful “at the time of sentencing”. Smith is not cited in the decision to impose a CSO.

[19] The seriousness of this case is reflected by the fact that the sexual assault began while the victim was sleeping and continued notwithstanding her protest. I reject the suggestion that a mitigating factor is that the defendant may have misunderstood the law of consent. In the circumstances of this case there could be no doubt that the victim did not consent. Moreover, it is troubling that the defendant continues to be in denial. His moral blameworthiness is high.

[20] I conclude that an appropriate sentence is four months in jail. This will be followed by a period of probation for two years. During that time, the defendant must keep the peace and be of good behaviour and he is prohibited from associating or communicating, directly or indirectly, with the victim. The defendant will provide a sample of his DNA. He is prohibited from possession of weapons as defined in s. 110 of the Code for a period of five years. He will pay a victim fine surcharge of $100.00.

[21] What remains is the issue of SOIRA.

[22] In R v Ndhlovu 2022 SCC 38, the Supreme Court of Canada struck down s. 490.012 of the Code under s. 7 of the Charter. The Court suspended the declaration of invalidity for one year. The Court also held that the declaration would operate prospectively only. Generally, declarations of invalidity operate retroactively. However, in Ndhlovu the Court found that the retroactive application of the declaration at the conclusion of the suspension could frustrate the “compelling public interests” that justified suspending the declaration.

[23] The Supreme Court granted an individual exemption to the defendant in that case. The Court did not explicitly find that other offenders seeking to avoid inclusion on the registry could bring an application under s. 24(1) of the Charter for an exemption. However, the Crown accepts that the defendant may do so in this case.

[24] The Crown submits that exemptions should only be granted in exceptional cases. The defendant bears the burden of establishing that inclusion on the registry breaches his right under s. 7 of the Charter. In order to establish a breach, he must show (1) that the imposition of a SOIRA order deprives him of liberty; and (2) that that deprivation does not accord with the principles of fundamental justice. The Crown accepts that SOIRA amounts to a deprivation of liberty but argues that the defendant has not shown that his inclusion on SOIRA “bears no relation to” the purpose of the registry. Having regard to the defendant’s moral culpability, I agree.

[25] A SOIRA order will issue for a period of five years.

Released: March 22, 2023

Signed: Justice J. De Filippis