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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: 2023 06 30 Court File No.: Toronto 21-75002495

Between:

His Majesty the King

— And —

Cody Rodgers

Sentencing Judgment

Before: Justice B. Jones

Heard on: July 26 and November 4, 2022; May 5 and June 21, 2023 Reasons for Judgment released on: June 30, 2023

Counsel: C. Langdon........................................................................................... counsel for the Crown D. Maubach........................................................................................ counsel for C. Rodgers

Jones J.:

Introduction

[1] On May 30, 2021, Ms. A.C. was in the lobby of her apartment building. She encountered a man she had never seen before. After he directed a crude gesture toward her, she sought to escape him in an elevator. Yet he followed her. Once the elevator arrived on her floor she attempted to retreat into the safety of her apartment. She opened the door and went inside, hoping she was safe. But the man pursued her, and she was not fast enough. He forced open the door and proceeded to assault her until she was rendered unconscious. While she was defenceless, he sexually assaulted her. When he was finished, he left her there, lying on the apartment floor, alone.

[2] After she regained consciousness, she called 911. Ms. A.C. suffered serious physical injuries that required immediate treatment at a hospital. The psychological impact these events had on her remains immeasurable.

[3] Cody Rodgers entered guilty pleas to one count each of aggravated sexual assault (Criminal Code section 273(1)) and being unlawfully in a dwelling-house with intent to commit an indictable offence (Criminal Code section 349) on July 26, 2022.

[4] Following a sentencing hearing, I reserved my decision.

The Agreed Statement of Fact

[5] The parties filed an agreed statement of fact. I have summarized the crucial parts for these reasons.

[6] On Sunday May 30, 2021, at approximately 4:44 p.m., Cody Rodgers entered […] Sherbourne Street. Mr. Rodgers was not a resident of the building. He was let into the building when another resident exited the building. He attended on the 7th floor.

[7] For the next hour, he was observed on surveillance video loitering between the northeast and southeast stairwell. He masturbated on several different occasions during this time period.

[8] At 5:48 p.m. he approached Ms. A.C. in the lobby area outside the 2nd floor elevator. They were strangers to one another. He engaged in a brief conversation with her and made a hand gesture simulating masturbating with his right hand.

[9] Ms. A.C. was holding a white fan and struck Mr. Rodgers in his chest, causing him to momentarily step backwards. She entered the elevator to distance herself from him. He threw an alcoholic beverage he was holding at Ms. A.C., striking her in the back of her head.

[10] He followed her into the elevator. Ms. A.C. struck him in the face with her right hand two times and once in the lower stomach area.

[11] She exited the elevator on the 6th floor. He pursued her and tried to engage her in conversation. She ignored him as she made her way directly to her apartment. When she arrived, she opened the door, entered and tried to shut the door behind her. She could not. Mr. Rodgers forced his way into her apartment.

[12] Inside, he choked, kicked and hit Ms. A.C. multiple times. She lost consciousness due to the intensity of the assault. Mr. Rodgers forcefully vaginally penetrated her with his penis, without wearing a condom. He then fled her apartment.

[13] Ms. A.C. called 911. First responders located her and noticed she was visibly distraught and had significant injuries to her face. She had no pants on. She was immediately transported to Mount Sinai Hospital.

[14] Once at the hospital, she was diagnosed with the following injuries:

(1) Significant bruising and lacerations to the front of her face, ear line, inner and outer ear, and hairline;

(2) Deep bruising to both of her upper arms;

(3) Prominent wrist swelling; and

(4) A non-displaced comminuted fracture of the posterior aspect of her left maxillary sinus.

[15] A sexual assault evidence kit was completed. Swabs were taken from her vagina. Those swabs were sent to the Centre for Forensic Sciences. A male DNA profile was located that was suitable for comparison.

[16] On November 19, 2021, Mr. Rodgers provided a sample of his DNA for comparison purposes. That sample was compared to the male DNA profile retrieved from the vaginal swabs taken from Ms. A.C. Mr. Rodgers could not be excluded as the source of the DNA profile.

[17] At the time of these offences, Mr. Rodgers was subject to a judicial interim release order for another charge of sexual assault. He was subsequently convicted of that offence as well.

[18] A search warrant was executed at Mr. Rodgers’ residence. Toronto Police Service officers located the clothing Mr. Rodgers was wearing as captured on the surveillance video from […] Sherbourne Street on May 30, 2021.

[19] Mr. Rodgers was arrested and taken into custody on May 31, 2021.

Victim Impact Statement

[20] Ms. A.C.’s, daughter, N.C., completed a victim statement in which she explained the toll this crime has taken on them both. [1]

[21] A.C. came to Canada from El Salvador to escape the violence that was gripping that country. Her journey was long and arduous. She brought N.C. with her, who was only a baby at the time, as well as another daughter who was five years old. They arrived in Canada ultimately with the assistance of the Red Cross. She hoped for a better life for herself and her family.

[22] When N.C. was ten years old her father was murdered. A.C. was left as the sole caregiver to three daughters.

[23] Despite these enormous challenges, N.C. explained that her mother “always maintained her light of faith.” Until that light was taken away the day Mr. Rodgers sexually assaulted her.

[24] N.C. explained that her mother simply cannot relive the trauma of what she experienced by completing her victim impact statement. N.C. described learning of what happened to her mother as something from a horror movie, and that it “shattered her heart to pieces.”

[25] Her mother could barely walk after the assault and required care at home. She awakes in the night regularly with nightmares. N.C. prays no other woman ever experiences a crime like this as it has made her mother struggle with the desire to keep living.

Background of the Offender

[26] Mr. Rodgers is 25 years old. He was born and raised in Toronto. He lived with his parents, and three siblings, happily, until his parents separated when he was 15. He remains close with his mother and was close with his father until his death in May 2021.

[27] His mother, Ms. Sherri Rodgers, reported that she had a stable relationship with her ex-husband for about twenty years. She admitted she drank occasionally and used cocaine. She and her husband also used pills. Both were able to overcome any substance dependence issues and took part in methadone treatment. She confirmed that neither she nor her husband indulged in the use of these substances in the presence of their children.

[28] Ms. Rodgers believes the death of Mr. Rodgers’ father had a significant impact on him.

[29] Mr. Rodgers reported to the author of a pre-sentence report (“PSR”) he was “never the victim of any form of abuse be it physical, emotional or sexual in nature.” Yet he also reported that he was molested by a family friend at the age of 14. No specific evidence was presented as to the effect, if any, this incident had on him. His mother did not provide further details.

[30] Mr. Rodgers moved in with his uncle in December 2020 and then his grandmother in February 2021 until his arrest on May 31, 2021.

[31] He has a daughter born in January 2021 with his ex-partner. His daughter was apprehended by a child welfare agency in December 2021 but is now in the care of his mother (Ms. Sherri Rodgers). Upon his release from custody, Mr. Rodgers hopes to obtain employment and housing and regain custody of his daughter.

[32] Mr. Rodgers did not graduate high school but since he has been in custody he completed the Amadeus program and has now achieved his high-school diploma. He also enjoys reading. He has been employed in a variety of jobs including as a dishwasher and prep cook in restaurants, cleaning office buildings and halls, construction, landscaping, and stocking shelves at a local store.

[33] He reports no past or current issues with addictions. However, he also admitted he would drink to the point of intoxication and would not recall what happened when he was intoxicated. He recognizes this is problematic. He described his current use of alcohol as “social”. He clarified for the PSR author that “I don’t drink a lot but when I do drink, I drink everything”. He stated he can consume a 26 oz bottle of alcohol and a case of beer (24-28 bottles) in one sitting. He knows he can become angry when drinking. While he claimed to have ceased drinking when his ex-partner was pregnant, his mother reported that he was drinking more at his uncle’s place at the time.

[34] Mr. Rodgers also admitted to using cocaine in 2020-2021. He has not taken any counselling for alcohol or drug use.

[35] When asked about the offences, he expressed remorse for the victim. He claimed the offences only happened “because I was drinking.”

[36] Regarding his Indigenous heritage, he remembered attending counselling at an Indigenous agency in Toronto over approximately four years. Once he felt secure enough to speak openly, he found this to be very helpful. No further details were provided.

[37] On November 1, 2021, he was sentenced for another offence of sexual assault. He was sentenced to 117 days in custody on top of 3 days of pre-trial custody, and 36 months’ probation. He was subject to a release order for this sexual offence charge at the time of the index offences.

[38] Since he has been in custody, Mr. Rogers has completed several rehabilitative programs, including a life skills course focused on being a good father, some focused on his religion, and one on overdose prevention.

CAMH Report

[39] Dr. Amina Ali is a forensic psychiatrist with the Centre for Addiction and Mental Health (“CAMH”). She interviewed Mr. Rodgers and prepared a report dated April 26, 2023.

[40] Mr. Rodgers reported that a babysitter sexually assaulted him regularly when he was 10-11 years old. This information was not provided to the author of the PSR. No further details about the impact of this abuse on Mr. Rodgers’ development were provided.

[41] When describing his relationship with the mother of his child, he stated that they broke up due to infidelity. His partner hit him sometimes, but he did not consider this to be a form of abuse. He did not have any other significant prior relationships.

[42] After his arrest, he met with a psychiatrist at the Toronto South Detention Centre (“TSDC”). He was prescribed an antidepressant.

[43] Mr. Rodgers expressed some remorse for what happened to Ms. A.C. and explained his alcohol consumption likely contributed to his lack of memory. He reported binge drinking once or twice a week and sometimes daily. He was frequently intoxicated. Dr. Ali noted there was evidence of Mr. Rodgers having a problematic pattern of alcohol use for several years. This has resulted in increased dependence and persistent use of alcohol despite “recurrent social, psychological, and legal problems caused by its effects”. She diagnosed him with alcohol use disorder.

[44] Mr. Rodgers reported smoking cannabis daily before his arrest. He did not view this as a problem. He reported using cocaine once or twice a month for three years. This calmed him down. He also does not perceive any negative impact from his consumption of cocaine.

[45] Mr. Rodgers has never undergone treatment for sexual behaviours in the past.

[46] Dr. Ali interviewed Mr. Rodgers’ mother who noted that her son was having a difficult time because his father had recently passed away. Mr. Rodgers also reported that he witnessed a friend being killed in front of him in the past. As a result, he has nightmares regularly.

[47] Dr. Ali further diagnosed Mr. Rodgers with post-traumatic stress disorder and cannabis and cocaine misuse.

[48] Dr. Ali applied several well-known actuarial methods of risk analysis during her examination of Mr. Rodgers. On the PCL-SV diagnostic, which screens for psychopathy (or antisocial) disorders, Mr. Rodgers received a total score of 4 out of a possible 24 points. His score on this diagnostic was not indicative of significant psychopathic traits.

[49] On the Static-99R diagnostic, which is intended to determine an adult male offender’s relative degree of risk for sexual recidivism, Mr. Rodgers scored at an above-average risk for being convicted of another sexual offence.

[50] She also employed the Stable-2007 tool, which measures empirical risk factors that are routinely addressed as part of correctional rehabilitation. His score was 8 out of a possible 24 points, which placed him in the moderate density range of criminogenic needs. Clinically significant concerns included social influences, hostility towards women, and impulsive acts.

[51] Based on the totality of information and the scores provided by the risk assessment tools, Dr. Ali’s opinion was that his risk of sexual recidivism was moderate. She recommended he be monitored and assessed concerning substance abuse. He would benefit from treatment for his trauma symptoms.

Position of the Parties

[52] Ms. Langdon submits a sentence of nine years is appropriate. She argues that the brutal nature of the sexual assault, including the severe injuries to Ms. A.C., calls out for a denunciatory sentence. Ms. A.C. was assaulted in her own home, by a stranger, in a seemingly random act of brutal sexual violence. These are highly aggravating factors.

[53] A sentence as high as 10 years could be justified. However, she acknowledges Mr. Rodgers’ youth and efforts at rehabilitation while in custody. Even considering these factors, the need to protect society – including future vulnerable female victims – must take priority.

[54] Mr. Maubach submits the appropriate range is between 6-7 years. His client remains a very young man with impressive rehabilitative potential. Mr. Maubach does not diminish the “horrible” offences Mr. Rodgers committed. He does ask me to consider the context in which they arose. Mr. Rodgers’s father passed away on May 27, 2021, which affected him greatly. That was likely what precipitated his decision to begin binge drinking just before the offences occurred.

[55] Mr. Rodgers is amenable to treatment. Rehabilitation remains an important consideration. He cautions me against a sentence that would be disproportionate to his client’s moral culpability, especially due to his early plea that spared the victim from having to relive the crimes.

[56] Counsel provided me with many prior authorities. I will address some of those authorities in these reasons.

Sentencing Law

[57] Criminal Code Section 718 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 the community; and,

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

[58] As with all crimes of serious personal violence, denunciation and general deterrence are to be given paramountcy in cases of sexual assault: R. v. Wells, 2000 SCC 10, at para. 26. Criminal Code section 718.04 further 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.”

[59] A sentence must be proportionate to “the gravity of the offence committed and the moral blameworthiness of the offender”: Criminal Code section 718.1. The more serious the crime and its consequences, or the greater the offender’s degree of responsibility or moral blameworthiness, the heavier the sentence required: see R. v. Lacasse, 2015 SCC 64, at para. 12.

[60] While the nature and circumstances of the offence must be given great weight, the personal characteristics of the offender must be carefully considered as well. This forms part of the proportionality analysis. An individualized approach to sentencing is therefore required: see R. v. Parranto, 2021 SCC 46, at para. 12.

(i) Aggravating and Mitigating Factors

[61] Criminal Code section 718.2(a) 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:

• Mr. Rodgers assaulted the victim with a bottle initially, striking her in the head;
• He followed her throughout her building and into her apartment despite the fact it was abundantly clear she wanted him to leave her alone;
• He sexually assaulted her in her apartment;
• He beat her so violently she suffered a broken bone in her face and lost consciousness; and
• He vaginally penetrated her without wearing a condom, exposing her to the risk of disease or infection.

[62] The following mitigating circumstances must also be considered:

• Mr. Rodgers is a young man;
• He entered a relatively early guilty plea before the victim would have been required to testify at either a preliminary inquiry or a trial; and
• He has saved the court the considerable amount of time required for a trial.

(ii) Mr. Rodgers’ outstanding charge of sexual assault

[63] Ms. Langdon submits that it is an additional aggravating factor that Mr. Rodgers was subject to a release order at the time of these offences for another case of sexual assault. Mr. Maubach cautions me against this reasoning. On one appearance, he cited the Coke principle. In R. v. R.M., 2020 ONCA 231, the Court of Appeal explained this principle as a common law rule applicable to sentencing proceedings. It holds that subsequent convictions cannot be relied upon to aggravate the sentence imposed for a prior offence. [2] The Court did accept that a subsequent conviction may be lawfully used to assess an offender’s rehabilitative prospects, however.

[64] In my view, Ms. Langdon’s argument is more nuanced and draws an important distinction from what the Coke principle is meant to address. While I agree with Mr. Maubach that it would be unlawful to consider Mr. Rodgers’ subsequent conviction for sexual assault as an aggravating factor, that is not the same as properly weighing the fact he was subject to a release order for another crime of sexual assault at the time he assaulted Ms. A.C. [3] When Mr. Rodgers committed the index offences he was awaiting the conclusion of a case involving another crime of sexual violence committed against another female victim. He had been brought before the Ontario Court of Justice and placed on a release order. He was aware that his conduct in the community was subject to supervision and potential judicial review. That is entitled to some consideration when determining the appropriate sentence in this case even if he did not violate a specific term of his release order: see R. v. Blake, 2016 ONCA 508, at para. 7.

(iii) Sentencing for Sexual Assault / Home Invasions

[65] In R. v. D.A.I., 2012 SCC 5, the Supreme Court of Canada stated succinctly that sexual assault “is an evil”: see para. 1. In R. v. Barton, 2019 SCC 33, the Supreme Court wrote that “[w]ithout a doubt, eliminating … sexual violence against women is one of the more pressing challenges we face as a society”: see para. 1.

[66] Mr. Rodgers’ offences can only be described as acts of unimaginable terror for vulnerable women living in this city. Ms. A.C. was sexually assaulted in her own home, while utterly defenceless, in an extremely violent manner. Her physical injuries required immediate hospitalization and treatment. Her psychological injuries may haunt her for the rest of her life. [4]

[67] 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).

[68] In R. v. A.J.K., 2022 ONCA 487, the Ontario Court of Appeal held that an act of forced penetration will result in a sentence of at least three to five years: see para. 77. The Court also made the following remarks about sexual assault at para. 74:

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.

[69] Every sexual assault is a crime that robs a victim of her dignity, self-worth and bodily integrity. Sexual assaults that occur in the sanctity of a victim’s own home stand out as particularly heinous and require forceful and emphatic denunciation from the courts. Mr. Rodgers’ actions bear all the hallmarks of a home invasion as that term has been applied in the case law. It is a very significant aggravating factor.

[70] In R. v. J.S., [2006] O.J. No. 2654 (C.A.) at paras. 32-34 Blair J.A. described the features and significance of a home invasion as follows:

[32] …there appears to be general agreement in these authorities that the main features of home invasion include breaking and entering a dwelling place for purposes of committing a theft or robbery, knowing that (or being reckless as to whether) the home is being occupied, and using or threatening to use violence. The presence of weapons is often a factor, as is the confinement of the occupants of the home in some fashion.

[33] For the offence to qualify as a home invasion, I would add to the foregoing that the entry to the dwelling need not be only for the purposes of robbery or theft -- or result in those offences being committed. The crimes committed within the dwelling may include other offences involving violence against the person, such as, for example, assault, sexual assault or unlawful confinement. [5]

[34] There is also widespread agreement in the authorities that such offences are very serious because they represent a violation of the sanctity of the home and of the sense of security people feel when in their homes -- highly cherished values in our society -- and because they are frequently perpetrated against vulnerable individuals. As Nordheimer J. observed, in R. v. H. (P.), supra, at para. 72:

Home invasions are particularly threatening to individuals, because such robberies strike at the fundamental and natural desire and expectation that every person has, that is, to feel safe and secure in their own homes. Whatever may happen in the outside world, people have an innate feeling that their homes are their one inviolate sanctuary.

[71] In the subsequent case of R. v. Wright (2006), 83 O.R. (3d) 427, the Ontario Court of Appeal again noted that home invasion offences are particularly troubling: see para. 14. A review of the jurisprudence at that time lead the Court to conclude that sentences ranging from four or five years to as high as eleven to thirteen years were appropriate. Even higher sentences could be imposed “for situations involving kidnapping, the infliction of serious injuries, sexual assault or death”: see para. 23.

[72] Importantly, the Court was clear that determining a fit penalty in such cases requires a particularly nuanced approach on behalf of the sentencing court. It demands “a careful examination of the circumstances of the particular case in question, of the nature and severity of the criminal acts perpetrated” and “of the situation of the individual offender”: see para. 24. General deterrence and denunciation should be given priority by the sentencing court, but rehabilitation must also be considered.

[73] Prior sentencing decisions involving sexual assaults committed against a victim in her own home provide guidance as to the appropriate sentence in this case.

[74] In R. v. Corbiere, 2012 ONSC 2405, an Aboriginal offender was sentenced to nine years’ incarceration for a robbery and sexual assault committed against a 62-year-old woman. The offender entered the victim’s home demanding money and jewelry. After committing the theft, he ordered the victim to perform fellatio on him. He then forced her to engage in acts of sexual intercourse.

[75] Pomerance J. wrote at para. 44:

…This was a callous attack on a vulnerable victim. The sexual acts demanded by the offender were highly invasive. He ordered that she perform fellatio and raped her, penetrating her on more than one occasion. The sentence imposed must reflect the court’s abhorrence for the offence and society’s denunciation of crimes of sexual violence. The targeting of the victim in her own home is a significant aggravating factor exacerbating the trauma and impact on the victim. The home is a protective haven; a place where we should all expect to feel safe. The actions of the offender have destroyed the victim’s sense of security in her home and have left her feeling unsafe everywhere.

[76] In R. v. P.A.N., 2002 NSSC 112, an offender was sentenced to eight years’ incarceration for a break and enter and sexual assault committed against a 74-year-old woman. The victim was sleeping in her own home at 1:30 am. She awoke to find the offender on top of her holding her down. She screamed and her granddaughter ran to assist her. The offender was heavily intoxicated at the time.

[77] Significant penitentiary sentences have been imposed for cases even involving a first-time offender. In R v. Hejazi, 2018 ONCA 435, the appellant committed a planned home invasion robbery that transformed into an unplanned sexual assault against two women. The Court described it as a “frightful” home invasion. A nine-year sentence was upheld.

[78] In R. v. Rading, 2017 ONSC 7020, the offender pleaded guilty to breaking and entering a dwelling house, robbery, uttering threats to cause bodily harm and sexual assault. The victim was an 84-year-old woman who lived alone. She awoke at 4 a.m. to find the offender by her side with his penis exposed. He forced her onto her back and put his penis in her mouth while she cried. He moved her to another location and forced her to perform fellatio on him. She feared for her safety. After he was finished, he threatened her and her daughter if she phoned the police. Justice Ratushny found the offender planned to sexually assault the victim before entering her residence. He imposed a nine-year sentence for all the charges: see para. 84.

[79] Crimes involving outright cruelty or the infliction of gratuitous violence have warranted even sterner penalties. For example, in R. v. D.A.W., 2002 BCCA 336, the appellant and his co-accused entered a home and demanded money from an elderly couple at knife-point. A physical struggle ensued with the female victim. The appellant sexually assaulted her by fondling her breasts while she resisted him in the presence of her husband. She suffered injuries including bruises and loosened teeth. The British Columbia Court of Appeal upheld a thirteen-year sentence for the co-accused and a ten-year sentence for the appellant. The Court noted the “terrifying ordeal” of victims having to experience such crimes.

(iv) Gladue Principles

[80] Mr. Rodgers is an Aboriginal Canadian. I was provided with very little information about his heritage. Neither party requested the opportunity to obtain a Gladue report.

[81] After I made some inquiries, Mr. Maubach submitted that his client was previously engaged with his Indigenous community, but he was not making detailed submissions regarding this aspect of his client’s background.

[82] The Supreme Court of Canada’s decisions in R. v. Gladue, [1999] 1 SCR 688, and R. v. Ipeelee, 2012 SCC 13, have made it clear that the overrepresentation of Indigenous people in Canadian prisons is at a crisis level. When determining a proportionate sentence, courts must consider the personal and background circumstances of an Indigenous offender.

[83] There was no evidence presented to me that Mr. Rodgers experienced dislocation from his identity or culture coinciding with his involvement in the criminal justice system: see R. v. F.H.L., 2018 ONCA 83, at para. 51.

[84] Additionally, Mr. Rodgers’ offences demand the court place considerable emphasis on deterrence and denunciation. This was a terrifying sexual assault committed against a vulnerable woman in her own home. In cases of extreme violence, the objective of protection of the public may limit the weight to be placed on the effect of any potential Gladue considerations: F.H.L. at paras. 47 and 50.

[85] I find the case submitted by Ms. Langdon of R. v. Brown, 2020 ONCA 657, to be particularly instructive. The appellant had been drinking excessively. He located a random woman on the street. She was walking home when he suddenly attacked her. He grabbed her by the neck and bashed her head against some rocks. He choked her to the point of unconsciousness and raped her.

[86] The Court of Appeal noted she suffered “horrible injuries” and long-lasting trauma. The appellant was of Inuit heritage and had a “chaotic childhood” and a “traumatic upbringing”. His mother suffered from alcoholism and he had an alcohol problem himself. His father was absent for most of his life and his mother was involved with a series of abusive partners. The trial judge applied Gladue principles yet nevertheless imposed a sentence of 12 years incarceration. The Court of Appeal upheld the ultimate sentence noting that “[t]he impact of the appellant’s Inuit ancestry on his moral blameworthiness does not outweigh the egregious nature of the appellant’s attack on a vulnerable, unsuspecting stranger”: see para. 47.

[87] Mr. Rodgers’ childhood was far healthier than the appellant’s in Brown. While his Indigenous heritage must be considered when assessing his moral blameworthiness, I am unable to give this factor much weight due to the limited information available to me. In this case, as in Brown, given the severity of the crimes, that factor cannot overshadow the sexual and physical violence that occurred.

(v) Substance Abuse and Mental Health Considerations

[88] Mr. Maubach submitted that his client’s alcohol use disorder and post-traumatic stress disorder constitute mitigating factors. Even if it is difficult to draw a direct connection between the post-traumatic stress disorder in particular and the index offences, they form part of the constellation of factors that explain Mr. Rodgers’ conduct.

[89] In R. v. Fabbro, 2021 ONCA 494, the Ontario Court of Appeal held at para. 25 that for mental health to be considered a mitigating factor in sentencing, the offender must show:

(1) A “causal link between their illness and their criminal conduct”; and

(2) There must also be some evidence that a lengthy sentence of incarceration would have “a serious negative effect on the offender such that it should be reduced on compassionate grounds”.

See also R. v. Megill, 2021 ONCA 253, at para. 171.

[90] In his interview with Dr. Ali, Mr. Rodgers admitted he drank to the point of “blacking out” but offered no explanation for his subsequent criminal actions. Nothing in the report links his prior traumatic experiences with why these offences occurred.

[91] Mr. Rodgers lacks insight into the severity of his alcohol abuse. He described himself as a “social” drinker yet consumes an extremely large amount of alcohol in a single sitting on his own admission. He drinks to the point of not remembering what he has done. He also uses cocaine. Without addressing this troubling substance abuse disorder he remains a high risk to re-offend in the future violently.

[92] I do accept as genuine Mr. Rodgers’ commitment to rehabilitating himself. I also do not wish to minimize, whatsoever, the emotional toll that befell Mr. Rodgers when his father died. Nevertheless, much work remains to be done with regard his substance abuse problems.

[93] I am not satisfied based on this evidence that the requirements contained in the Fabbro decision have been met. There is no individualized evidence that the negative impact of a prison sentence would reach the level required to justify a reduced sentence. Furthermore, substance abuse, by itself, is not a mitigating factor: see R. v. Ayorech, 2012 ABCA 82, at para. 10. To the contrary – for violent crimes, intoxication due to alcohol is generally considered an aggravating factor: see R. v. L.P., 2020 QCCA 1239, at para. 111. Even where an offender’s “drinking problems and associated violent behaviour cannot be disassociated from… Gladue considerations”, consumption of alcohol should be considered an aggravating factor, and the degree of intoxication is at best a neutral factor: see L.P. at para. 113.

(vi) Pre-Sentence Custody

[94] Mr. Rodgers has been in custody since his arrest on May 31, 2021. He has spent 759 days in pre-sentence custody. He is entitled to a credit at the standard rate of 1.5:1, for a total of 1,139 days, or approximately 3 years, 1 month and 14 days: R. v. Summers, 2014 SCC 26.

[95] However, Mr. Rodgers was sentenced by Moore J. on another charge of sexual assault on November 1, 2021, to 117 days incarceration. Ms. Langdon submitted that I should reduce his amount of pre-sentence custody by 78 days to reflect the fact he was serving a sentence for this period and would have obtained statutory release at the two-thirds marks. I agree. His total amount of credit for pre-sentence custody is therefore reduced to 681 days. At 1:5:1 credit, that results in 1,022 days or approximately 2 years, 9 months, and 22 days.

[96] Mr. Rodgers was incarcerated at the TSDC. Mr. Maubach filed records from the TSDC establishing that Mr. Rodgers has been subject to 91 days of partial lockdowns and 43 days of full lockdowns. The detrimental effects of lockdowns are well documented: see R. v. Bristol, 2021 ONCA 599, at para. 11.

[97] I will reduce Mr. Rodgers’ sentence imposed today by another four months accordingly.

Conclusion

[98] Nothing I write in this judgment could adequately describe what Ms. A.C. endured physically and psychologically from these crimes. Her life will be forever altered. Sexual assaults always have specific victims. Their pain and suffering is an essential factor for a sentencing court to consider: Criminal Code section 718.2(a)(iii.1). But it must never be forgotten that these crimes also harm all of society, tearing at the fabric of our collective sense of safety and security and our shared values. That must also be reflected in the sentence I impose: see Brown at para. 62.

[99] Mr. Rodgers entered a guilty plea and spared the victim having to testify at a trial, as well as saving limited court resources. For that, he is entitled to some consideration. Nevertheless, sometimes a guilty plea is simply an acceptance of the inevitable. The evidence against Mr. Rodgers was overwhelming: see F.H.L., supra, at para. 22. While I hope that this is truly a positive first step towards his long-term rehabilitation, the crimes he committed require a clear and emphatic message from this court that sexual assaults committed against a victim in her own home will result in very significant penitentiary sentences.

[100] The principle of restraint would normally militate against a sentence that the Crown suggests. Mr. Rodgers is a young man who has rehabilitative potential. He has not yet undergone treatment for sexual behaviours and the successful completion of appropriate programming may reduce his risk of re-offending. However, he requires intense treatment for his alcohol abuse disorder and sexual behaviours. Unless and until Mr. Rodgers meaningfully addresses these concerns, he remains a significant risk to re-offend sexually and violently in the future.

[101] Given the nature of the violence and the random attack on a vulnerable woman in her own home, deterrence and denunciation simply must be given the utmost priority: see Brown at paras. 67-8.

[102] I have also considered that any term of imprisonment will separate Mr. Rodgers from his daughter. Family separation is a significant collateral consequence to consider. He wants to be a good father and stay involved in his daughter’s life. Even if I were to accept the position of the defence, Mr. Rodgers will require a sentence of several more years in a penitentiary. There is no avoiding this outcome.

[103] Additionally, in R. v. Hills, 2023 SCC 2, the Supreme Court of Canada held that a sentencing court should consider how the conditions of incarceration will affect an individual offender: see para. 135. I must consider Mr. Rodgers’ vulnerability given his relative youth, and the realities of systemic racism that exist in prison, especially for an Aboriginal offender.

[104] Even with these factors considered, a sentence of 9 years is appropriate. After deducting the applicable credits, Mr. Rogers will be sentenced today to a sentence of 5 years and 318 days (or approximately 10 months and 18 days). [6]

[105] The following ancillary orders are not disputed:

• Weapons prohibition order under section 109 of the Criminal Code for life;
• DNA order pursuant to section 487.051(1) of the Criminal Code (primary designated offence); and
• Mr. Rodgers is prohibited from communicating directly or indirectly with Ms. A.C. or any member of her family, while in custody, under Criminal Code section 743.21(1).

[106] Mr. Rodgers will be ordered to comply with the Sex Offender Registry for life under sections 490.012(1) and 490.013(2)(c). [7] I agree with the Crown’s submissions and have concluded I have no discretion to order otherwise.

[107] The victim fine surcharges are waived.

Released: June 30, 2023 Signed: Justice B. Jones

[1] N.C. is also a “victim” as defined by the Victims Bill of Rights, S.C. 2015, c. 13, s. 2. [2] The Court of Appeal noted that an issue that has divided appellate courts in Canada is whether the Coke principle applies to subsequent convictions in sentencing generally, or whether its application is restricted to situations where a penal statute imposes a harsher sentence for a second or subsequent offence. It has not yet formally decided that issue. [3] Mr. Rodgers pleaded guilty to this other charge of sexual assault on January 28, 2020, but had been sentenced by the time of the index offences. [4] In addition to the victim impact statement filed by Ms. N.C., I take judicial notice that the level of sexual violence present in this case would inevitably cause extreme psychological trauma to anyone who experienced it: see R. v. McCraw; R. v. Laliberte, 2000 ABQB 662, at para. 24; R. v. J.W., 2017 NWTTC 20, at para. 16. [5] My emphasis added. [6] 9 years is the equivalent of 3,285 days (using 365 days per year). After subtracting credit for 1,022 days, the net amount to serve is 2,263 days. I reduce this by another four months (120 days) for a final total of 2,143 days or 5 years and 318 days. [7] While this is his second conviction for sexual assault, the automatic lifetime registration previously required by section 490.013(2.1) was struck down as unconstitutional by the Supreme Court of Canada in R. v. Ndhlovu, 2022 SCC 38. Mr. Rodgers was convicted of aggravated sexual assault, and the maximum sentence for that crime is life imprisonment. Therefore, the lifetime SOIRA order must still be imposed.