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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

St. Catharines

DATE: 2023.07.04

ONTARIO COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

— AND —

K.B.

Before Justice Fergus ODonnell

Reasons for sentence imposed on 26 June, 2023

Ms. A. Galea........................................................................................................... for the Crown Mr. J. Lefurgey........................................................................................ for the defendant, K.B.

Fergus ODonnell J.:

Overview

[1] On a Friday night in October, 2021 K.B. (“Mr. B.”) attended a house party with a group of his friends. Everyone was drinking. The party broke up in the wee hours as people went home. Some of the attendees stayed over, including Mr. B. and two women, who were all told to sleep on various couches. Later in the morning one of the women woke up and felt Mr. B.’s hand on her breast and under her waistband. She pushed that hand away and went to get their host. In the meantime, the other woman felt pressure on her chest from Mr. B.’s hand on her nipple and after that she felt his finger in her vagina. When challenged, Mr. B. behaved as if he did not know what had happened.

[2] Mr. B. initially pleaded guilty to sexual assault. During the plea, however, it became apparent that he did not actually remember sufficient of the details for a valid guilty plea. However, insofar as he trusted and believed the women, who were his friends, he was found guilty after a plea of not guilty, but with his formal admission that those events had happened and could be proved beyond a reasonable doubt. With little or no memory of what he had done, Mr. B. simply accepted his friends’ assertions as true.

[3] Mr. B. was twenty-seven years old at the time. He has no criminal record.

The Positions on Sentence

[4] The Crown seeks a sentence of six months of real jail, followed by two years of probation and ancillary orders. There is nothing inherently unreasonable in this position. She says that a conditional sentence would not be fit in this case. Mr. B. seeks a conditional sentence. There is nothing inherently unreasonable in this position. Mr. Lefurgey says the sentence should be in the range of 6-12 months, split half and half between house arrest and curfew and including community service.

Principles of Sentence

[5] The purpose of sentencing is defined in section 718 of the Criminal Code, which says that a sentence must protect society, generate respect for the law and help to maintain a “just, peaceful and safe society”. The sanctions imposed must be “just sanctions” and they must achieve objectives such as denunciation, deterrence of the individual and of other potential offenders, rehabilitation, reparations and the development of a sense of responsibility and acknowledgement of harm.

[6] The same section of the Criminal Code also recognizes the separation of an offender from society as a legitimate objective of sentencing, but specifically qualifies that by the limiting phrase, “where necessary”. This is part of a general philosophy in the current reality and historic development of the Criminal Code that seeks to recognize the limited utility of jail as a means of advancing society’s interests through the criminal law. A similar caution can be found in section 718.2 (b) and (c), which say an offender should not lose his liberty if other sanctions are appropriate and that every reasonable option other than jail should be considered so long as it is consistent with the harm done by the offender.

[7] This philosophy of reducing dependence on real jail is also part of the DNA of Canada’s conditional sentence regime, now in place for a quarter century, which created the “house arrest” option in sentencing, i.e. an option that restricts liberty significantly but does not subject an offender to the realities of a reformatory or penitentiary and avoids society paying the price for the anti-social lessons an incarcerated offender might learn while in jail. Parliament’s repeated directives to the courts to use restraint in the imposition of real jail are further emphasized in the most recent amendments to the Criminal Code, which significantly widen the availability of conditional sentences by almost completely eliminating automatic exclusions from the conditional sentence regime other than sentences that are two years or longer. This does not mean that a conditional sentence will be fit for every offence leading to a sentence of under two years, but it does demonstrate Parliament’s clear view that almost no offence types are inherently ineligible for a conditional sentence. This is not a trivial change in the sentencing landscape; it is a dramatic change from the much more restrictive conditional sentence framework established by Parliaments between the inception of conditional sentences and now.

[8] Overlying any discussion of an appropriate sentence is one of the shortest provisions in the Criminal Code, nineteen words in s. 718.1: “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” This is the first commandment or “prime directive” of Canadian sentencing law; indeed the Supreme Court says it has quasi-constitutional status. It mandates the individualization of sentence to reflect the seriousness of the offence (including any aggravating or mitigating circumstances [2] and any harm done) balanced with a consideration of the individual offender and his or her circumstances.

Mr. B.’s Background and the Pre-Sentence Report

[9] As noted earlier, Mr. B. was twenty-seven at the time of the offence and has no previous record. He is the youngest of three sons in a stable family structure, albeit one that has suffered an abnormal level of misfortune, the lion’s share of the burden of which has fallen on Mr. B.’s shoulders as a teenager and through his twenties and undoubtedly into the future. As of last week, Mr. B.’s father was in hospital awaiting a determination of how severe a leg amputation he should be subjected to.

[10] Mr. B.’s father has suffered from neuropathy and chronic pain since Mr. B. was seven years old; he has suffered from diabetes since Mr. B. was fifteen years old. Mr. B’s mother was employed as a nurse, but suffered from a breakdown due to her work and her husband’s needs when Mr. B. was seventeen years old. Mr. B., in his mother’s words, has “picked up the pieces” and has taken on the role of his father’s primary caregiver ever since. His mother is somewhat better now and has part-time employment, but still suffers from bipolar disorder. Mr. B. has only ever lived in his parents’ home as a result. He also shares that home with one of his elder brothers, who suffers from schizophrenia and bipolar disorder. The eldest brother is married with a child and lives in Welland.

[11] Mr. B. completed high school but did not do particularly well. There were no discipline issues but his preoccupation with his father’s care meant he did not have time for homework. It also meant he was not able to engage in any extracurricular activities. Mr. B. had hoped to become a personal support worker and ultimately a registered practical nurse, careers for which his life experience would have prepared him well, but this conviction will likely block off that career avenue.

[12] Mr. B.’s employment opportunities have been greatly constrained by the demands of his father’s care although a partial improvement in his mother’s health might create limited room for him to obtain part-time employment.

[13] Mr. B. reported that he only drank on social occasions and did not generally have a problem with alcohol. However, the night of the party he had consumed a 720 ml bottle of alcohol. He had also used cocaine for the first time that night, on three occasions. Before being prescribed medication for anxiety, Mr. B. had typically drunk once a week just to cope with the burden of his father’s care. He uses marihuana intermittently to help him deal with the stress of his home and life situation.

The Defence Submissions on Sentence

[14] Mr. Lefurgey says that a conditional sentence would be appropriate here. While he accepts that offences of this nature will very often lead to real jail, he says real jail is not justified here and that many of the cases generally reflect worse offences, a sentence imposed after trial and/or an offender with a previous record.

[15] Mr. Lefurgey suggests that there is absolutely no need for specific deterrence here, namely, that this conduct was so out of character that there is no basis to fear its repetition. As for general deterrence, Mr. Lefurgey questions the rationality of basing general deterrence on such a peculiar set of facts.

The Crown Submissions on Sentence

[16] Ms. Galea recognizes that a conditional sentence is legally available, but disputes that it would be appropriate, even allowing for the mitigating factors she recognizes, such as Mr. B.’s guilty plea, the absence of any previous record, his empathy for his victims and the stress and anxiety he experiences as a result of the burdens his life has imposed on him. She fairly stresses, however, the fact that there were two victims, that they were asleep, that there was digital penetration of one victim.

[17] In support of her position, Ms. Galea provided a helpful sampler of sentencing decisions. I do not propose to catalogue all of them here and I do not suggest for a moment that they are an unfair selection. As Mr. Lefurgey said, however, many of them, in his opinion most, are sufficiently factually divergent as to not be determinative of what should be done with Mr. B.. I note that the range of sentences imposed in the cases filed (and in additional cases referred to in those case), is broad.

[18] I note that some of Ms. Galea’s cases focused on the concept of a “major sexual assault”. Without embarking on a wholesale discussion of the merits or demerits of that characterization, I am inclined to say that judges’ insertion of labels such as that into the analysis does not strike me as being of any assistance at all in defining the appropriate range of sentence or actual sentence for a particular offender, quite apart from whether one agrees with every type of conduct that some judges have swept into that definition. What matters in the present case is that Mr. B.’s conduct was a serious violation of the sexual integrity of two sleeping victims and would have affected their dignity and emotional well-being as well as their sense of safety and security. [3]

[19] I would also strike a cautionary note about over-reliance on sentencing decisions from other provinces. While such decisions may be helpful for discrete purposes, it has long been recognized that deference to trial judges’ sentencing decisions, even within a province, is rooted in their awareness of local circumstances. The sentence ranges and even the analytical tools used in sentencing do vary materially from province to province in many cases, so this is an area where prudence is justified.

[20] I was struck by one of the cases provided by the Crown, namely, R. v. Zarpa, 2009 N.J. No. 312 (NLSC-TD), which involved a repeat offender who had pleaded guilty to fondling a fellow rooming house guest’s vagina while she was sleeping. On that offence, Mr. Zarpa, who was indigenous received a sentence of six months in jail despite “almost continuous contact with the criminal justice system during the past 15 years…” Of particular note there was the trial judge’s observation about the apparent total lack of emotion, apology or remorse on Mr. Zarpa’s part. Mr. B. is the polar opposite of Mr. Zarpa with respect to both his background and his attitude. [4] Mr. B. has sacrificed much of his teens and all of his twenties—and all that those years would entail to the average teen or young adult-- to his father’s care and has no criminal record whatsoever. Rather than demonstrating no emotion, apology or remorse, Mr. B. feels the pain that he has inflicted and carries himself as if that pain weighs on him physically, as does the shame he feels for having inflicted harm on his victims. I doubt that I have ever seen more genuine remorse.

What is the Appropriate Sentence?

[21] I must determine an appropriate sentence for Mr. B. by applying the principles of sentence set out earlier in these reasons to the specific details of his offence and of Mr. B.’s character and background.

[22] The seriousness of the offence here is obvious: it involves an intrusion on the sexual integrity of two sleeping victims, behaviour that can have serious and long-term consequences for victims. Although there is not necessarily a link between particular forms of sexual violation and the emotional consequences for the victim, the penetrative nature of his conduct with one of the victims is aggravating.

[23] As for Mr. B., he has effectively pleaded guilty. Neither of the unwilling victims was required to attend at a trial or preliminary inquiry. Although this behaviour is entirely out of character, he unflinchingly accepted the victims’ description of what had happened. As I say elsewhere in these reasons, his remorse is palpable. His pre-sentence report is extremely favourable and he has demonstrated remarkable selflessness and a powerful sense of duty for many, many years. His offence is demonstrably out of character.

[24] It is my duty, when imposing a sentence on a first offender to give less weight to the concept of general deterrence than one might do with a repeat offender. Closely tied to the approach for sentencing a youthful offender, this rule for first offender sentencings is a bedrock principle of sentencing, finding compelling expression twenty-seven years ago in the judgment of the Court of Appeal for Ontario in R. v. Priest, a panel composed of Laskin, Rosenberg and Moldaver [5], JJ.A.:

First Sentence of Imprisonment

Even if a custodial sentence was appropriate in this case, it is a well-established principle of sentencing laid down by this court that a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence. In R. v. Vandale (1974), 21 C.C.C. (2d) 250 (Ont. C.A.), …. Martin J.A. adopted the following statement of principle from R. v. Curran (1973), 57 Cr. App. R. 945, per MacKenna J. at pp. 947-48:

As a general rule it is undesirable that a first sentence of immediate imprisonment should be very long, disproportionate to the gravity of the offence, and imposed as this sentence was, for reasons of general deterrence, that is as a warning to others. The length of a first sentence is more reasonably determined by considerations of individual deterrence; …

Martin J.A. also stated that this emphasis on individual deterrence rather than general deterrence was particularly applicable in the case of a youthful first offender. Those statements of principle were binding on the trial judge in this case and should have been applied. He should not have imposed a sentence, to paraphrase MacKenna J., that was very long, disproportionate to the gravity of the offence, and imposed as a warning to others.

Proportionality

In the recently proclaimed s. 718.1, Parliament sets out the fundamental principle of sentencing:

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

Although only now codified, this principle is well established in this country. Chief Justice Lamer in R. v. M. (C.A.), [1996] 1 S.C.R. 500 at p. 530, 105 C.C.C. (3d) 327 at p. 349, noted that this principle now has a constitutional dimension:

Within broader parameters, the principle of proportionality expresses itself as a constitutional obligation. As this court has recognized on numerous occasions, a legislative or judicial sentence that is grossly disproportionate, in the sense that it is so excessive as to outrage standards of decency, will violate the constitutional prohibition against cruel and unusual punishment under s. 12 of the Charter.

The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good. (Emphasis added)

This does not mean that the seriousness of Mr. B.’s conduct is to be minimized; it simply emphasizes that the objectives sought to be achieved in the sentence imposed on him must focus on him rather than some theoretical, future putative offender who might learn a lesson from Mr. B.’s sentence.

[25] There is no reason why the wisdom of Priest in relation to sentencing first offenders to real jail should not inform a sentencing judge’s assessment of whether or not a conditional sentence might be the better option, so long as the sentence otherwise fits the statutory criteria for a conditional sentence. I also note that the Supreme Court of Canada has recognized in Proulx, 2000 SCC 5:

22 The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration. Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence. It is this punitive aspect that distinguishes the conditional sentence from probation, and it is to this issue that I now turn.

67 … a properly crafted conditional sentence can also achieve the objectives of general deterrence and denunciation…..

107 Incarceration, which is ordinarily a harsher sanction, may provide more deterrence than a conditional sentence. Judges should be wary, however, of placing too much weight on deterrence when choosing between a conditional sentence and incarceration: see Wismayer, supra, at p. 36. The empirical evidence suggests that the deterrent effect of incarceration is uncertain: see generally Sentencing Reform: A Canadian Approach, supra, at pp. 136-37. Moreover, a conditional sentence can provide significant deterrence if sufficiently punitive conditions are imposed and the public is made aware of the severity of these sentences. There is also the possibility of deterrence through the use of community service orders,

[26] The Crown points to the decision in R. v. Giovannelli, 2017 ONCJ 408 in support of its opposition to a conditional sentence for Mr. B.. After dismissing a suspended sentence as a viable sentencing option, the trial judge went on to consider whether or not a conditional sentence would be suitable. The judge in Giovannelli looked to the fact that the defendant there worked long hours and often weekends in the restaurant business and concluded that a conditional sentence with a work exception would affect his life minimally, proceeding to impose a ninety-day sentence, which could be served intermittently.

[27] The Crown here relies on Giovannelli in this way: Mr. B.’s indentured life as effectively the full-time caregiver for his father is such that he has no freedom, so imposing a conditional sentence would be no sentence at all.

[28] I have a number of concerns with the Crown’s reliance on Giovannelli. First, I would have thought there was a number of more pressing objections to Mr. Giovannelli receiving a conditional sentence than the nature of his employment, including perhaps the fact that his was: (a) a conviction after trial; (b) for a sexual assault; (c) involving digital penetration; (d) by a fifty-year-old offender; (e) with four previous albeit relatively minor convictions; (f) who committed a breach of trust against an employee; (g) that caused demonstrated long term trauma for the victim and other serious long-term impacts on the victim and her fiancé, including the postponement of their wedding. The points of difference between Mr. Giovannelli, whose victim’s trauma was undoubtedly exacerbated by having to testify, hugely outweigh the points of similarity.

[29] As for the concern that a defendant’s work-life pattern might dilute the force of a conditional sentence, there are other alternatives. One of the beauties of the conditional sentence regime is its remarkable flexibility to be moulded and tweaked and, dare I say, individualized for the particular offender, his offences and his circumstances. In employment circumstances similar to Giovannelli, I have specifically limited an offender’s hours of work because, in totality, that was required to retain the legitimacy of a conditional sentence for that offender and his crimes and circumstances.

[30] Lastly, it is important to be aware of the potential consequences of pursuing the Giovannelli line of thinking without sufficient individualization of the assessment, individualization being central to the sentencing process. In the present case, as I delve into later, I have absolutely no doubt that Mr. B. is a prime candidate for a conditional sentence. All of the relevant or dominant objectives of sentencing in this case can be achieved through the means of a conditional sentence. A conditional sentence also maximizes his future potential as a contributing member of society. However, if I were to apply the Giovannelli reasoning to this very different offender, I would be required to deny Mr. B. a conditional sentence because he has sacrificed at least a dozen years of his life by providing care for his father, care that no other member of his family is in a position to provide. Had Mr. B. instead ignored his father’s and mother’s needs and his brothers’ inability to help out and had simply enjoyed the last dozen years like a typical teenager or young adult, he would have qualified for a conditional sentence? I hope that, worded that way, my complete disinclination to apply the Giovannelli concern to this very different offender will be self-explanatory.

[31] I stress that I do not attribute any malice or impropriety to Ms. Galea’s submission because experience shows that those attributes are as alien to her as I am from wearing a Stanley Cup ring. It is simply that sometimes all of the consequences of a given line of thought are not immediately obvious.

[32] As Ms. Galea concedes, a conditional sentence is an available option: the appropriate sentence is under two years, there is no mandatory minimum sentence of imprisonment and it is not an excluded offence. Ms. Galea, however, disputes that a conditional sentence would be a fit sentence in light of Mr. B.’s offence.

[33] I disagree. In light of decisions such as R. v. Proulx, 2000 SCC 5, and ensuing cases, I am satisfied that a conditional sentence is capable of meeting the requirements of denunciation and general deterrence in many cases. I am also reminded that any offence type that Parliament has not excluded from the conditional sentence regime will be eligible, although certain offence types may be less likely to qualify. That last comment must always be read with the caveat that proportionality is the cardinal principle of sentencing so sentencing and reviewing courts should always be careful that they do not indirectly create excluded offence types by overlooking the pre-eminent role of proportionality in punishment.

[34] I am satisfied that a properly crafted conditional sentence is entirely appropriate here. It would not endanger the safety of the community as that concept is defined in Proulx and it would be entirely consistent with the principles and purposes of sentencing set out in the Criminal Code, taking into account the nature and circumstances of the offence and Mr. B.’s personal background. He is a penitent first offender of otherwise good character who committed a serious offence while under the influence of alcohol and his first-time use of cocaine. The pre-sentence report shows that this behaviour is uncharacteristic. The likelihood of there being any repetition of misconduct here is infinitesimal. He has lived a blame-free, selfless and even devoted life before and since the offence. To the extent that any message needs to be sent to Mr. B. personally, a conditional sentence and probation will place him under supervision and provide an opportunity for him to make reparations to society, all while avoiding any danger of his path being compromised by even a brief period of real jail. When Parliament leaves the possibility of conditional sentences open for sexual assault offences, offenders like Mr. B. are precisely the kind of offender who meets the criteria.

Conclusion

[35] Mr. B. will serve a twelve-month conditional sentence, with nine months of house arrest and three months on curfew, followed by eighteen months of probation, along with a community service requirement and the usual ancillary orders.

Released: 4 July, 2023 Justice Fergus ODonnell

[1] There is a ban on publication of any information that could identify the victims. It is a criminal offence to violate that order.

[2] See, for example, sections 718.01, 718.02, 718.03, 718.04 and 718.2 of the Criminal Code.

[3] The victims were not keen to testify, but were willing to do so if necessary. Neither of them exercised their right to provide a victim impact statement.

[4] Also of interest in the Crown’s cases is the Ontario case of R. v. Thiara, 2004 O.J. No. 730 (SCJ), a summary conviction appeal of an eight-month sentence of real jail imposed after trial in a case involving a breach of trust sexual assault by a thirty-two-year-old manager against a sixteen-year-old employee victim. On the summary conviction appeal, Speyer, J dismissed Thiara’s appeal. In R. v. Barnes, 2014 O.J. No. 6676, West, J of this court stated that even after trial (albeit for a non-penetration offence, but in a breach of trust context), he would have given Mr. Barnes a conditional sentence except that the legislative environment at that time did not allow such a sentence because the Crown had proceeded by indictment in light of the complainant’s delay in reporting. The sentence ultimately imposed was sixty days to be served intermittently.

[5] As he then was.