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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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. K.S., 2023 ONCJ 548

DATE: 2023 12 06

COURT FILE No.: Brampton 2020 7451

BETWEEN:

HIS MAJESTY THE KING

— AND —

K.S.

Before Justice G.P. Renwick

Heard on 06 December 2023

Reasons for Sentence released on 06 December 2023

S. Burton............................................................................................... counsel for the Crown

No one appearing............................................................................... for the Defendant K.S.

REASONS FOR SENTENCE IN ABSENTIA

RENWICK J.:

INTRODUCTION

[1] Following a trial, on 27 February 2023, I found the Offender guilty of threatening and assaulting his former spouse in the summer of 2020, sexually assaulting her in 2014, and threatening her in 2015. The prosecutor had proceeded by Indictment.

[2] The matter was adjourned several times for a pre-sentence report to be prepared and for the parties to gather materials for a contested sentencing hearing. In October 2023, I was made aware that the Offender could not be located. Since then, I have granted an Application to have counsel removed from the record on the basis of a breakdown in the Solicitor-Client relationship and the inability to obtain instructions.

[3] Earlier today, for reasons given orally, I granted the prosecutor’s application to proceed to sentencing in the Offender’s absence, pursuant to s. 475(1)(b)(i) of the Criminal Code.

[4] The prosecutor seeks a sentence of 5 years imprisonment, globally.

GOVERNING SENTENCING PRINCIPLES

[5] The fundamental purpose of sentencing as expressed in section 718 of the Criminal Code is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation, deterring the offender and other persons from committing offences, separating offenders from society, where necessary, assisting in rehabilitating offenders, providing reparation for harm done to victims or to the community, and promoting a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community.

[6] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence. The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender.[^1]

[7] In R. v. Hamilton and Mason, Doherty J.A. distilled the fundamental principle:

The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence…

The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime.[^2]

[8] The Court quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v. Priest:

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.[^3]

[9] Section 718.1 of the Code ensures that proportionality is the fundamental principle of sentencing. However, proportionality is not the sole principle to be considered. A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.[^4]

[10] In R. v. Proulx, the Supreme Court spoke about the principle of restraint when considering imprisonment:

Parliament has sought to give increased prominence to the principle of restraint in the use of prison as a sanction through the enactment of s. 718.2(d) and (e). Section 718.2(d) provides that "an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances", while s. 718.2(e) provides that "all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders". Further evidence of Parliament's desire to lower the rate of incarceration comes from other provisions of Bill C-41: s. 718(c) qualifies the sentencing objective of separating offenders from society with the words "where necessary", thereby indicating that caution be exercised in sentencing offenders to prison...[^5]

[11] The Supreme Court has instructed that section 718 requires a sentencing judge to consider more than simply denunciation, deterrence, and rehabilitation. The court must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused by an offender, while attempting to rehabilitate or heal the offender.[^6] Our Court of Appeal has affirmed the need to “promote a sense of responsibility among spousal abusers and an acknowledgement of the harm done not only to their immediate victims, but equally to the community at large.”[^7]

[12] Although the rehabilitation of the Offender is a secondary consideration in the overall calculus of an appropriate sentence in this case (behind denunciation and deterrence and along with restraint and totality), it is still a factor I must consider.

SENTENCING SUBMISSIONS

[13] There have been no submissions made on behalf of the now self-represented Offender. I am assuming, as someone without any prior history in the Canadian justice system that the Offender would have sought a non-custodial sentence if he were present.

[14] The prosecutor has sought a prison sentence in the range of 4 to 5 years for the sexual assault and jail for six months, consecutive, for the remaining threats and assault. In considering the principle of totality, the prosecutor has asked to cap the sentence at 5 years in a penitentiary. Ancillary Orders were not mentioned. The prosecutor submits that these offences require a penitentiary sentence to achieve the goals of proportionality and parity and to give effect to the principles of denunciation and deterrence.

[15] Several cases were presented by the prosecutor to justify the sentence sought: R. v. A.J.K., 2022 ONCA 487 and R. v. A.J.B., [2006] M.J. No. 518, among others. I am satisfied that A.J.K. reflects the correct range of sentence (3 to 5 or more years imprisonment) for a violent sexual assault, whether or not the offence occurred between strangers or (former) intimate partners.[^8]

MITIGATING AND AGGRAVATING FEATURES

[16] There are few mitigating features:

i. The Offender is a first offender;

ii. The Offender is university educated and was gainfully employed; and

iii. The Offender is in his forties and he is capable of rehabilitation.

[17] The aggravating features include:

i. The context of the sexual assault, assault, and threats – an intimate partner relationship in which the Offender was jealous and controlling;[^9]

ii. The were multiple offences which occurred over a significant period of time;

iii. The complainant suffered physically, emotionally, and psychologically from these assaults;[^10] and

iv. The Offender did not participate with the attempts to prepare a pre-sentence report and has now absconded.

DISCUSSION

[18] On a continuum of sexual assaults, this is toward the far extreme. The facts that I found on the trial include the following:

i. Without any forewarning or her consent, the Offender forcefully penetrated the complainant’s anus with his penis, while she was in a position of vulnerability in the family washroom;

ii. The complainant fainted onto the floor as a result of the unprovoked attack;

iii. The complainant felt discomfort for several days;

iv. She bled from her rectum; and

v. The threats impacted the complainant’s sense of security, even at home.

[19] Fortunately, neither the assaults nor the threats were witnessed by the couple’s twin daughters, who were home during each occurrence.

[20] Lest there be any confusion respecting the gravity of the sexual assault, the words of our Court of Appeal are apposite:

A sexual assault involving forced penetration is a sexual assault involving forced penetration. An act of sexual violence perpetrated on a stranger to the accused is not necessarily worse than a similar act of sexual violence perpetrated on an intimate or former intimate partner. Any suggestion to the contrary could only rest on unacceptable myths and stereotypes, ones that a fair justice system must continuously confront and eradicate: see R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] S.C.R. 330, [1999] S.C.J. No. 10, 1999 SCC 711, at para. 82.

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.[^11]

[21] I agree that the sentencing range for this level of sexual assault begins at the penitentiary and can involve sentences upwards of six years. Though the complainant and the Offender were no longer living together as a married couple, they lived in the same home and were raising their children together. The complainant had every right to expect to be respected by the Offender, rather than physically overwhelmed and forcefully sodomized against her will.

[22] The maximum jail sentence for this offence (when tried by Indictment) is 10 years. It is trite to note that this is not the worst case, nor the worst offender, by any measure. The complainant’s physical injuries were quickly healed. The Offender expressed remorse at the time and promised not to repeat the sexual assault. He never did. Many years had lapsed before the complainant was assaulted in a minor way in July 2020.

[23] I have considered that the Offender was remorseful, although that remorse appears to have long dissipated. A penitentiary sentence can be considered to be a harsh sentence for a first-offender. Every alternative sentence that is appropriate must be fully considered to give effect to the principle of restraint. A first sentence of imprisonment must be as short as possible in the circumstances while honouring proportionality, parity, and culpability.

[24] Lastly, I have taken into account that the Offender is a first offender. He deserves the least restrictive form of punishment commensurate with his culpability. A penitentiary sentence is required for a sexual assault of this nature, however, the sentence must not be likely to crush the Offender’s spirit and hinder his rehabilitation. This court takes no pleasure in imposing a penitentiary sentence for this or any offender. There is no alternative form of punishment besides a significant penitentiary sentence that equally responds to this offence, the moral blameworthiness of this Offender, and the harm he has caused.

[25] Accordingly, a sentence of 5 years imprisonment is imposed for the sexual assault.

[26] The assault and threat charges are moderately serious. They also occurred in the context of an intimate partner/former intimate partner relationship. Each was significant in terms of the harm caused to the complainant and her sense of well-being. These offences each require a short, sharp period of incarceration to send the appropriate message of deterrence and denunciation. Consecutive sentences would be fitting given the extended period of time of the offending and the context of these offences (intimate partner violence). A total prison sentence of four months imprisonment, served consecutively to the other sentence, would be entirely appropriate for these offences.

[27] However, giving effect to the principle of totality and in light of the Offender’s prior unblemished character, it is appropriate to have all of the sentences run concurrently.

THE SENTENCE TO BE IMPOSED

[28] In my view, the only appropriate sentence for this Offender in these circumstances is a global sentence of five years imprisonment in a federal penitentiary. This is the shortest possible prison sentence which will adequately address all of the aggravating and mitigating circumstances and the Offender’s culpability for the sexual assault, assault, and threatening offences. The prison sentence is apportioned as follows:

i. For the sexual assault (count #2), 5 years imprisonment;

ii. For the assault (count #4), two months imprisonment, concurrent to all;

iii. For the threat (count #3), one month imprisonment, concurrent to all; and

iv. For the threat (count #1), one month imprisonment, concurrent to all.

[29] While in custody, pursuant to s. 487.051(1), the Offender will submit to a sampling of his deoxyribonucleic acid (“DNA”) to be analyzed and to have the results uploaded into the national DNA databank. The Offender’s DNA is to be taken by a qualified person in circumstances that are hygienic, that respect the Offender’s bodily integrity and privacy, and that respect his health and safety. Force may be used to extract the Offender’s DNA if he does not submit to the DNA sampling voluntarily.

[30] While in custody, the Offender is prohibited from contacting [the complainant, N.H.] directly or indirectly, pursuant to s. 743.21(1) of the Criminal Code.

[31] The Offender must comply with the provisions of the Sex Offender Information and Registration Act for 20 years (s. 490.013(2)(b) of the Criminal Code).

[32] Under s. 109, the Offender is prohibited from possessing listed items for 10 years.

[33] A warrant of committal (Form 21) for K.S.’s arrest shall be issued, today.

Released: 06 December 2023

Justice G. Paul Renwick

[^1]: R. v. Hamilton and Mason, 2004 CanLII 5549 (ON CA), [2004] O.J. No. 3252 (C.A.) at para. 102. [^2]: Hamilton, supra, at paras. 90-91. [^3]: R. v. Priest, 1996 CanLII 1381 (ON CA), [1996] O.J. No. 3369 (C.A.) at para. 26, as quoted in Hamilton, supra, at para. 92. [^4]: See subsection 718.2(b) of the Criminal Code. [^5]: 2000 SCC 5, [2000] S.C.J. No. 6, at para. 17. [^6]: R. v. Gladue, 1999 CanLII 679 (SCC), [1999] S.C.J. No. 19 at paras. 43 and 48. [^7]: R. v. Ibrahim, 2011 ONCA 611 at para. 15. [^8]: R. v. A.J.K., 2022 ONCA 487 at para. 68. [^9]: See subs. 718.2(a)(ii) of the Criminal Code. [^10]: See subs. 718.2(a)(iii.1) of the Criminal Code. [^11]: R. v. A.J.K., 2022 ONCA 487 at paras. 73-74.