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) and subsection 486.5 of the Criminal Code. These sub­sections and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under either subsection, 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct 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 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.

486.5 (1) Unless an order is made under section 486.4 , on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

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: 2024 08 01

COURT FILE No.: Toronto, 22-70008242

BETWEEN:

HIS MAJESTY THE KING

— AND —

M. L.

Before Justice Brock Jones

Heard on June 12 and July 2, 2024

Reasons for Judgment released on August 1, 2024

J. Howard............................................................................................. counsel for the Crown L. Shafran........................................................................................................ counsel for M. L.

Jones J.:

Introduction and Background Facts

[1] This case demonstrates the difficulty of adjudicating an appropriate sentence for a relatively young, first-time offender found guilty of multiple acts of intimate partner violence (“IPV”) against a vulnerable partner.

[2] Following a trial, I found M.L. guilty of the following offences:

• Assault x 5
• Sexual Assault x 1; and
• Mischief Under $5000 x 2

[3] Additionally, he entered a guilty plea at the start of the trial to one count of uttering threats.

[4] The facts for these findings of guilt were detailed in my trial judgment. I provide a summary of them here.

[5] M.L. and S.A. met in December 2019 while residing at a shelter. They began a relationship that eventually produced one child, L. They were of limited means and struggled financially. They moved from one residence to another as they pursued different employment opportunities. Their relationship was tumultuous and, unfortunately, plagued by constant arguments about infidelity.

[6] During the summer of 2020, they resided at an apartment in downtown Toronto. M.L. regularly accused S.A. of being unfaithful. One day, while they were both in the apartment, he stood over her while she was on their bed. He punched her, grabbed her by the neck, and held her down, choking her. He only stopped when she told him she was “a whore”, as he demanded to hear.

[7] Following another argument on a subsequent date that summer, S.A. went into the kitchen to be left alone. M.L. followed her, took a pan with which he had been cooking onions in oil, and poured its contents over her head and torso. The oil was still warm, although it did not burn S.A. He walked away. When he was gone, she filmed herself to record what he had done to her. The video was filed as an exhibit during the trial.

[8] On a third date that summer, they had an argument wherein M.L. told S.A. she would “be dead.” She asked him, “Because you’re going to kill me?” and he replied, “Yes.”

[9] At a birthday party at Christie Pitts Park in August 2020, S.A. spoke to another man who was friends with her sister. This angered M. L., who suspected her of betraying him. S.A. left the park for some time. When she returned, she sought out M.L. to discuss what occurred. When she approached him, he punched her in the face. That evening, when they were at their apartment, he called her a “whore” and “slut”. The unknown man S.A. had spoken to earlier that evening was present for this argument and came to S.A.’s defence. However, that man left their apartment when he thought she was safe. Then, M. L. dragged S.A. about the apartment by her hair and pushed her against a glass-panelled window in their washroom. He threw her to the ground.

[10] S.A. was pregnant for these assaults. Their daughter, L., was born in December 2020.

[11] In May 2021, the family moved to a shelter in Scarborough. They shared a single room. M.L. accused S.A. of wanting to sleep with a male staff member. Their relationship remained volatile, and his jealousy continued. S.A. testified that she felt trapped and could not leave their unit without his permission. While I acquitted M.L. of forcible confinement after the trial, I accept S.A.’s testimony that she felt afraid to even leave the unit at times due to his obsessive and controlling behaviour.

[12] One evening, S.A. returned from a party in another unit. M. L. accused her of being intoxicated and forcibly took L from S.A.’s hands. He then punched S.A. in the face, striking her in the upper cheekbone area. She left the room and began to cry. Someone informed the shelter staff what they heard, and she told the staff he assaulted her. He was forced to leave.

[13] In November 2022, S.A. moved to a new residence. M.L. visited her periodically. She accepted he should be involved in L’s life as he was her father. He attended there on a day that month and laid down on S.A.’s bed next to her. She was holding L. He indicated he wanted to stay over, and she asked him to stay in a different room. He refused.

[14] He wanted to have sex. He was trying to get into or under her pants (she was wearing either pyjamas or a thin cloth outfit). He put his hands on her genital area and eventually was able to insert part of a finger into her vagina. She told him, “No.” He did not stop. She kicked and tried to get him off her body. He told her she was his baby's mom and he could do what he wanted. They struggled until he passed out from exhaustion. They did not have sexual intercourse.

[15] The next day, M.L. continued to refuse to leave. He became angry and punched her legs as well as a television. He smashed her phone by holding it above his head and bringing it down to the ground.

[16] M.L. accepted responsibility at the trial for sending threatening text messages to S.A. after their relationship concluded. They were filed as an exhibit. These messages included an image of a handgun and a magazine loaded with bullets. They included a threat that S.A. would regret “crossing” him. I concluded beyond a reasonable doubt they were meant to convey a threat of death.

Victim Input

[17] S.A. provided a moving victim impact statement. Her relationship with M.L. changed her. She lost her confidence and independence. She had constant anxiety as she was fearful of how he might react to anything she did that offended him. She continues to fear for her safety.

[18] She has sought therapy. She feels paranoid, secluded and has lost trust in everyone around her. She had a panic attack once when she had an encounter with a man who reminded her of M.L.

Background of the Offender

[19] A pre-sentence report (“PSR”) was prepared for the sentencing hearing. M.L. is 29 years old. He does not have a prior criminal record. He has two children, aged 7 and 3, from two different relationships (including the child he shares with S.A.).

[20] He was born in Canada. His parents separated when he was three or four years old. He recalls them having a “rough” relationship and has not had much contact with his father since the separation. He does not recall any specific incidents of domestic abuse, however.

[21] He has a good relationship with his mother, with whom he has been residing since his arrest on the charges before the court. He has two sisters: one younger, and one older. He has no contact with his younger sister but described a positive relationship with his older sister.

[22] He has a grade 10 education. In August 2020, he was a passenger in a company vehicle for his employer at the time that was involved in an accident. He received WSIB benefits for injuries he sustained. He was last employed with a furniture rental company in October 2023. Currently, he is unemployed. He hopes to re-enter the workforce once his case has concluded. He has “lost motivation” presently.

[23] Regarding the findings of guilt, he only expressed his remorse for the text messages which he sent while intoxicated. He had no comment on the other charges or findings that I made at the conclusion of the trial.

[24] Two reference letters were provided to the author of the PSR. The first letter was from Ms. J. Bailey of The Salvation Army, and it reports she has known him for two years as his caseworker. She wrote about his good character and integrity. He actively worked with staff. Ms. N. George, a case worker, authored the second letter. She has known M.L. for two years. He is a “polite and respectful young man” with an ”optimistic perspective on life.” He is always willing to help others.

[25] While in custody prior to being released on bail, he completed a “supportive relationships” life skills program.

[26] M.L.’s family members provided three letters of support for him. His mother, A.L., described him as a kind man. She loves and supports him. She believes he is a doting father to his daughters, and he wants to be involved in their lives. They have a closely knit family and she has faith that her son can yet be a productive member of society.

[27] M.L.’s sister, M.B., also wrote a strong letter of support. She knows her brother to be polite, caring, and deeply committed to raising his two daughters. M.L. is bright and gifted, especially with respect to computers and technical matters.

[28] C.C., his aunt, described M.L. as well-mannered and friendly. While he has struggled to find full-time employment due to not completing high school, he has spoken of returning to school in the future as a mature student. She, too, believes in M.L.’s capacity for rehabilitation and offers her support.

[29] Every one of M.L.’s family members who wrote a letter of support condemned violence against women. Nevertheless, they asked me to consider the other, positive side of M.L. that they know.

Position of the Parties

[30] On behalf of the Crown, Mr. Howard submits a global jail sentence of 15 months custody is appropriate. This was a case of intimate partner violence, which is aggravating. The abuse lasted years. It involved acts of physical violence, threats, and sexual assault. The breach of trust must be given great weight.

[31] He provided several authorities respecting an appropriate sentence for the sexual assault count. In R. v. Chamberlain, 2017 ONSC 5089, the offender owned a photography studio. He sexually assaulted two young models. Justice Brown found that he took advantage of the inexperienced victims who trusted him. Regarding the second victim, Justice Brown found as a fact that he touched her breasts, thigh and digitally penetrated her vagina while she attended his studio for a photo shoot: see paras. 28-29.

[32] He was 42 with no prior criminal record. The offences had a devastating impact on this victim in particular. A sentence of one year in jail was imposed.

[33] In R. v. Kowba, 2020 ONSC 6890, the offender was found guilty of two counts of sexual assault against two different victims. Regarding the first victim, Justice Broad found that he touched her back and upper buttock while she was sitting on his knee on a balcony at his apartment and that he digitally penetrated her while she was sleeping. Regarding the second victim, Justice Broad found that he touched or grabbed her buttock while he was following her into the apartment, and he kissed her arm and touched her left breast while she was sleeping: see para. 5.

[34] Both victims were deeply affected by the assaults.

[35] The offender was 29 years old and had no prior criminal record. A 15 month jail sentence followed by two years probation was imposed, reflecting the need to emphasize deterrence and denunciation, while also recognizing the offender’s rehabilitative prospects and the principle of restraint: see para. 62.

[36] Ms. Shafran submits a conditional sentence of two years less a day is appropriate. [1] M.L. has complied with his bail conditions. He enjoys a positive relationship with his seven-year-old daughter, whom he shares with another woman. He has no prior criminal record, making him a prime candidate for a conditional sentence.

[37] Several authorities were presented in support of this position. In R. v. Dickson, 2023 ONSC 2776, the offender pleaded guilty to sexual assault. He was in a dating relationship with the victim and they had two children together. At the time of the offence, the victim was pregnant with their child. Mr. Dickson attended the victim's home and had sexual intercourse with her despite her resistance. The victim attended a medical clinic and discovered that she had contracted chlamydia as a result of the assault.

[38] Himel J. imposed a conditional sentence of two years less a day. The victim relied upon Mr. Dickson for financial support and did not want to see him incarcerated for the sake of their child, whom he continued to actively support.

[39] In R. v. Browne, 2021 ONSC 6097, the offender was convicted of sexual assault with a weapon after a trial. Browne briefly inserted a vibrator in the victim's vagina or anus while she was either unconscious or asleep and incapable of consenting. They were not in an intimate partner relationship but had a long-standing friendship.

[40] He was 27 years old at the time of the incident. He was a first offender and the father of a four-year-old child. He demonstrated insight into the harm he caused the victim and was truly remorseful. He was also in ongoing therapy. McArthur J. imposed a conditional sentence of two years less a day.

[41] In R. v. J.A., 2024 NSPC 5, the offender sexually assaulted the victim when she was asleep. They were in an intimate partner relationship and she had just given birth to their child. He touched her vagina when she could not consent. Another incident involved penile penetration.

[42] The offender was 19 years old at the time of the offences. He had a grade nine education. He had been in a relationship with the victim since she he was 16. He had no prior criminal record. By the date of sentencing, he was 22 and had a new, disabled partner who resided with him. She was very supportive. He was also seeing a psychiatrist.

[43] Justice Van den Hoek imposed a conditional sentence of two years less a day.

[44] Ms. Shafran seeks an exemption for her client from the sex offender register as well. She submits there is no connection between making the SOIRA order and the purpose of helping police services prevent or investigate crimes of a sexual nature. She further submits that the impact of the order on M.L. would be grossly disproportionate to the public interest in protecting society.

Sentencing Law

[45] A sentence must be proportionate to “the gravity of the offence committed and the moral blameworthiness of the offender”: see Criminal Code section 718.1; R. v. Suter, 2018 SCC 34, at para. 4. The more serious the crime and its consequences, or the greater the offender’s degree of responsibility or moral blameworthiness, the heavier the sentence: see R. v. Lacasse, 2015 SCC 64, at para. 12.

[46] Generally speaking, sentences imposed on young first offenders [2] will stress individual deterrence, where necessary, and rehabilitation. General deterrence will play little, if any, role in fashioning the appropriate sentence in this category of offender: R. v. Ijam (2007), 2007 ONCA 597, 87 O.R. (3d) 81, [2007] O.J. No. 3395 (C.A.), at pp. 93-94 O.R.

[47] Serious crimes of violence provide an exception to this general rule. While all of the principles of sentencing remain important, including rehabilitation, for crimes involving significant personal violence, the objectives of denunciation and general deterrence gain prominence, even for first-time offenders: R. v. Thurairajah, 2008 ONCA 91, at paras. 41-42.

Intimate Partner Violence

[48] It is an aggravating factor that an offender, when committing an offence, abuses the offender’s intimate partner: Criminal Code section 718.2(a)(ii). When an offence involves the abuse of a victim who was vulnerable due to her personal circumstances, such as S.A., a sentencing court “shall give primary consideration to the objectives of denunciation and deterrence”: Criminal Code section 718.04. When sentencing an offender for a crime of intimate partner violence, a court “shall consider the increased vulnerability of female persons who are victims, giving particular attention to the circumstances of Aboriginal female victims”: Criminal Code section 718.201.

[49] The Ontario Court of Appeal commented on the severity of intimate partner violence last year in Ahluwalia v. Ahluwalia, 2023 ONCA 476. The Court wrote the following in para. 1:

Intimate partner violence is a pervasive social problem. It takes many forms, including physical violence, psychological abuse, financial abuse and intimidation. In Canada, nearly half of women and a third of men have experienced intimate partner violence and rates are on the rise. What was once thought to be a private matter is now properly recognized for its widespread and intergenerational effects.

[50] In R. v. Cunningham, 2023 ONCA 36, the Court of Appeal described the effects of intimate partner violence as “heinous” and reiterated the importance of courts prioritizing general deterrence and denunciation in the sentencing process: see para. 26. Offenders who commit these offences abuse a position of trust concerning their victims, which is an additional aggravating factor: see Cunningham at para. 27; Criminal Code section 718.2(a)(iii).

[51] Cunningham noted that the amendments to the Code contained in Bill C-75 in 2019 called for enhanced penalties for offenders who commit crimes of intimate partner violence. As stated by Justice Benotto, the amendments supported “changes in sentencing ranges to reflect societal awareness and knowledge of the damage to society, as well as victims, caused by domestic violence”: see para. 52.

[52] Similar sentiments were expressed by the Alberta Court of Appeal in R. v. A.D., 2024 ABCA 178. The Court held that cases decided prior to the amendments contained in Bill C-75 may have less precedential value. It also stated the following at para. 57:

The Criminal Code provisions regarding domestic violence, abuse of trust positions, and the vulnerability of certain populations are reminders to sentencing courts to recalibrate and to overcome the underreaction to family violence cases that might result from familiarity. Family violence, like violence in any other context, should be shocking every time.

Sexual Assault

[53] In R. v. Barton, 2019 SCC 33, at para. 1, the Supreme Court of Canada wrote: “Without a doubt, eliminating … sexual violence against women is one of the more pressing challenges we face as a society.” In R. v. Friesen, 2020 SCC 9, the Court emphasized that “our understanding of the profound physical and psychological harm that all victims of sexual assault experience has deepened”: see para. 118.

[54] In R. v. A.J.K., 2022 ONCA 487, the Ontario Court of Appeal also recognized the continuing evolution of our collective understanding of the devastating harms associated with sexual assaults. The Court wrote 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.

[55] Sentencing for sexual assault must emphasize deterrence and denunciation accordingly: R. v. Williams, 2023 ONSC 6127, at para. 11.

[56] The range of sentences for sexual assault will depend, in part, on the severity of the act itself. In R. v. Lannard, 2018 ONSC 7355, Justice Code, sitting as a summary conviction appeal court, established a range of six to twelve months in jail for sexual assaults in the “mid-range” of gravity. Where there was a breach of trust component to the assault, even higher sentences might be justified: see para. 29.

[57] All sexual assaults are violent, demeaning, highly damaging to victims, and objectively serious. S.A.’s victim impact statement demonstrated that these offences continue to have a profound impact on her.

[58] In R. v. Maslehati, 2024 BCCA 207, the British Columbia Court of Appeal held that all sexual assaults are “serious” and that determining the gravity of a particular sexual assault “requires an individualized and contextual assessment”: see para. 75. The Court further held at para. 83 that:

…the penalties imposed for sexual assault against adults must reflect society’s contemporary understanding of the harmfulness and the wrongfulness of sexual violence, generally. It is not enough to simply acknowledge these harms. The sentences must actually take them into account, recognizing that the harmfulness and the wrongfulness of sexual assault impact both the gravity of the offence and the offender’s personal responsibility. [3]

[59] Furthermore, M.L.’s moral culpability is high, given the breach of trust associated with the sexual assault. He was S.A.’s former intimate partner and the father of their child. She let him into her residence as L’s father. He took advantage of her faith in him.

Aggravating Factors

[60] I find the following additional aggravating factors are present in this case:

(1) The domestic abuse spanned nearly the entirety of the parties’ relationship, which lasted for almost three years;

(2) The assaults included punches to the face, choking, and dragging;

(3) M.L.’s jealousy and insecurity animated the acts of violence, and they often involved vitriolic insults which demeaned S.A. as a woman;

(4) Some of the acts of abuse were cruel and committed intentionally to humiliate S.A., such as the act of pouring cooking oil over her;

(5) At least one assault, and the sexual assault, were committed in the presence of their child;

(6) M.L. threatened that he would make S.A.’s life “a living hell” in the text messages, and included an image of a handgun with bullets, suggesting he would never stop abusing her and would continue to exert control over her in the future; and

(7) The offences had a significant impact on S.A.

Mitigating Factors

[61] There are several mitigating factors to consider. M.L. is a relatively young man with no prior criminal record. He has letters of support from the community demonstrating he is otherwise of good character. He has two young children and wishes to maintain a relationship with them. They, too, will experience some hardship if they lose access to their father for any period of time: see R. v. Kanthasamy, 2021 ONCA 32, at paras. 7-8.

[62] The PSR was generally positive, and I have no reason to doubt he will comply with community-based orders including any rehabilitative programming I impose. He has not breached his bail conditions since his arrest on the charges before the court.

Analysis

[63] Crimes of intimate partner violence call out for a message from the courts that assaultive behaviour by men towards vulnerable female victims will not be tolerated.

[64] M.L. was S.A.’s partner and the father of their daughter. She trusted him and wanted to make their relationship succeed. He betrayed that trust repeatedly. As their disputes escalated and his level of frustration rose, he could have always summoned up the maturity to walk away from the relationship and leave S.A. if he knew he could not control his anger. Instead, he chose to offend against her repeatedly.

[65] The acts of intimate partner violence, in this case, demand a custodial sentence, even for a first-time offender. M.L. committed multiple acts of violence against S.A. throughout their relationship. They included acts of physical abuse, outright cruelty, and intimidation. He was obsessed with ensuring S.A. did not have a relationship with any man he disapproved of and would not tolerate any defiance of his perceived authority. Nearly all of the abuse S.A. endured occurred when she was pregnant or caring for their young child. The breach of trust was serious, and the impact these offences caused to S.A. was profound.

[66] Viewed cumulatively, the crimes of intimate partner violence were unquestionably acts of coercive control. Coercive control, as I use that term, refers to a pattern of behaviour meant to create an unequal power dynamic in a relationship, which enables the abuser to control his victim through isolation, fear, humiliation and dominance. It can include emotional, verbal and physical abuse. Victims are deprived of their liberty and autonomy. The perpetrator’s goal is to exercise such complete control that their victim is left feeling as if they have no choice but to submit. [4]

[67] S.A., in her victim impact statement, describes her ongoing anxiety and fear even though the relationship with M.L. has ended. Physical suffering, as terrible as it is, represents only one part of the devastating harm caused by constant intimate partner violence. The intermittent acts of assaultive and threatening behaviour create a constant state of fear in victims, as S.A. described. The detrimental long-term impact of such abuse may be difficult to ascertain as S.A. has just begun her healing process, but it is unquestionably severe. These psychological effects must be considered as well.

[68] Cunningham was a clarion call for sentencing courts to appreciate the need for more denunciatory sentences that reflect our enhanced understanding of the harms associated with intimate partner violence. For all offences other than the charge of sexual assault, I find that a total sentence of at least six months of custody is required.

[69] The offence of sexual assault falls into the mid-range of gravity as defined by Justice Code in Lannard and, therefore, demands a sentence by itself of six to twelve months custody. Given the aggravating factors present, including that the offence took place in an intimate partner relationship following a long period of physical abuse, the parties’ child was present, and M.L. assaulted S.A. in her own home, a sentence of twelve months is warranted. This is entirely in keeping with the authorities cited by Mr. Howard on behalf of the Crown.

[70] But I cannot ignore that a jail sentence for a young man such as M.L. presents particular hardships. The principle of restraint “ requires a sentencing judge to consider all sanctions apart from incarceration, especially for first offenders”: R. v. Ali, 2022 ONCA 736, at para. 40. In those cases, general deterrence should be afforded less weight than would otherwise be appropriate. If a custodial sentence is imposed, it should be the minimum required to adequately reflect the appropriate sentencing principles.

[71] In R. v. Hills, 2023 SCC 2, the Supreme Court reminded sentencing courts of the following at para. 101:

Incarceration entails not only a complete removal of an offender’s liberty, it also has a ripple effect that touches nearly every aspect of the offender’s life and physical and mental health, employability, children, and community.

[72] M.L. is a Black man. In R. v. Morris, 2021 ONCA 680, the Ontario Court of Appeal held that courts should take judicial notice of the “well-established over-incarceration of Black offenders, particularly young male offenders”: see para. 123. Ms. Shafran brought my attention to Justice Ducharme’s decision in R. v. Marfo, 2020 ONSC 5663, where the court found that Black inmates in Toronto often experience harsher conditions of incarceration including the increased use of disciplinary charges; placement in maximum security; were disproportionately involved in use of force incidents; and were subject to stereotyping about lifestyle choices: see para. 52, cited in Hills at para. 135.

[73] A potentially appropriate alternative to a jail sentence for M.L. would be a conditional sentence order (“CSO”). Section 742.1 of the Criminal Code lists the criteria a court must consider before imposing a CSO. These include that the term of imprisonment must be less than two years, the community's safety must not be endangered by the offender serving a sentence in the community, and a conditional sentence must be consistent with the fundamental purpose and principles of sentencing contained in sections 718 to 718.2.

[74] A CSO will not always be appropriate for a sexual assault committed in a domestic context. The physical and emotional harm inflicted is typically very significant, and the breach of trust is so severe that jail will often be required.

[75] In his concurring reasons in R. v. R.S., 2023 ONCA 608, Justice Paciocco of the Ontario Court of Appeal held that “[i]t would be an error in principle to hold that conditional sentences are not available in sexual offence cases because denunciation and deterrence are the primary sentencing goals, or based solely on the kind of sexual intrusion that has occurred”: see at para. 78. While the majority of the Court of Appeal granted the Crown’s sentence appeal and substituted a three-year prison sentence for the CSO imposed by the trial judge, the facts of that case were objectively more severe than those before me and involved a particularly violent sexual assault. I also do not understand the majority’s decision to disagree with Justice Paciocco’s concurring reasons on the general availability of CSOs for sexual assault while acknowledging that each case turns on its facts.

[76] Ms. Shafran submitted that a jail sentence would also negatively affect M.L.’s family, including both his children, who would lose the love and support of their father while he was held in custody. While I did not hear extensive evidence about his relationship with his older child, I accept he genuinely desires to be present as a father to both children. He has impressive community support and has strong potential for rehabilitation.

[77] M.L.’s refusal to comment on the charges for which I found him guilty after a trial is not to be considered. He is entitled to maintain his innocence and dispute my findings: R. v. Reeve, 2020 ONCA 381, at para. 12.

[78] I note as well a strictly formulated CSO, including house arrest, has been recognized by the Supreme Court of Canada to carry with it a significant stigma, arguably appropriately reflecting the gravity of the offences that have been committed: see R. v. Proulx, 2000 SCC 5, at para. 105.

[79] I have considered the good character evidence presented. That evidence has limited significance when sentencing someone for a sexual offence: see R. v. B.R., 2024 ONCA 424, at para. 19. I have no doubt his family members love M.L. and that there is another positive side of him that stands in contrast to the crimes I found he committed. But that sentiment does not alter the fact that M.L. repeatedly abused the trust placed in him as S.A.’s partner when he physically assaulted her. Nor does it diminish that he committed a sexual assault on someone who trusted him in her home where she should have felt safe and secure. Furthermore, I find it to be nothing short of appalling that S.A. was holding their daughter when she was sexually assaulted. Exposing a child to an act of violence against their mother is a stark aggravating factor.

[80] The authorities cited by Ms. Shafran are of limited assistance. In J.A. and in Browne, the offenders showed remorse and took their rehabilitation prior to sentencing seriously. Regarding Dickson, the decision appears to have placed considerable weight on the guilty plea and ongoing support the offender had shown to his victim and their child prior to sentencing. Those mitigating factors are simply not present in this case.

[81] The sentencing principles that apply to this case pull in different directions. On balance, I conclude a CSO would fail to give sufficient weight to general and specific deterrence and denunciation. The aggravating factors are too significant, and M.L.’s moral culpability is too severe. Notably, the sentence imposed must reflect the gravity of the harm caused to S.A. from these repeated acts of intimate partner violence and the sexual assault in particular. As stated by the British Columbia Court of Appeal in Maslehati, [5] “ in cases involving an adult sexual assault with aggravating circumstances, a conditional sentence will rarely be available, even for offenders without a criminal record”: para. 11.

[82] A jail sentence is required.

Conclusion

[83] A combined sentence as high as 18 months could have been justified. Considering the principle of restraint and the totality principle (Criminal Code section 718.2(c); R. v. Ahmed, 2017 ONCA 76, at paras. 79-85), I conclude that the Crown’s position of a global sentence of 15 months custody is appropriate.

[84] I reduce that by 55 days of pre-sentence custody, credited at 1.5:1 for 83 days: Criminal Code section 719(3.1). I award another 30 days credit for the difficult conditions he experienced in pre-trial detention, including lockdowns. [6] I therefore impose an additional sentence of 11 months jail.

[85] The sentence will be apportioned in the following manner. I have made sexual assault the index offence. While consecutive sentences would otherwise have been justified, I have determined concurrent sentences are the appropriate means by which to respect the totality principle.

• Assault (count 3) (cooking oil) = 30 days jail, concurrent;
• Assault (count 6) (punching, grabbing and choking) = 55 days PSC noted, credited for 83 days jail + 1 day concurrent;
• Assault (count 8) (punch at the park) = 30 days jail concurrent;
• Assault (count 9) (assault at the apartment) = 60 days jail, concurrent;
• Assault (count 14) (punch at the shelter) = 90 days jail, concurrent;
• Sexual Assault (count 16): 11 months jail;
• Threatening Death (count 19): 30 days jail, concurrent;
• Mischief Under $5000 x 2: suspended sentence.

[86] Following the custodial sentence, M.L. will be placed on probation for 24 months, concurrent on all counts. Promoting his long-term rehabilitation remains an important goal. By connecting him to appropriate counseling, programming and employment opportunities he can successfully reintegrate with the community.

Ancillary Orders

[87] Sexual assault is a primary designated offence. Assault and threatening death are secondary designated offences. I exercise discretion to impose a DNA order for those offences under Criminal Code section 487.051(3)(b).

[88] These crimes were acts of violence. I impose a ten-year weapons prohibition order under Criminal Code section 110.

[89] The parties differed on whether an order to comply with the federal sex offender registry (“SOIRA”) was appropriate. On October 26, 2023, Bill S-12 received Royal Assent. It contained amendments to the sex offender registration regime that responded to the Supreme Court of Canada’s decision in R. v. Ndhlovu, 2022 SCC 38.

[90] Section 490.12(3) states (my emphasis added):

(3) Subject to subsection (5), when a court imposes a sentence on a person for a designated offence in circumstances in which neither subsection (1) nor (2) applies, or when the court renders a verdict of not criminally responsible on account of mental disorder for a designated offence, it shall make an order in Form 52 requiring the person to comply with the Sex Offender Information Registration Act unless the court is satisfied the person has established that

(a) there would be no connection between making the order and the purpose of helping police services prevent or investigate crimes of a sexual nature by requiring the registration of information relating to sex offenders under that Act; or

(b) the impact of the order on the person, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under that Act.

(4) In determining whether to make an order under subsection (3) in respect of a person, the court shall consider

(a) the nature and seriousness of the designated offence;

(b) the victim’s age and other personal characteristics;

(c) the nature and circumstances of the relationship between the person and the victim;

(d) the personal characteristics and circumstances of the person;

(e) the person’s criminal history, including the age at which they previously committed any offence and the length of time for which they have been at liberty without committing an offence;

(f) the opinions of experts who have examined the person; and

(g) any other factors that the court considers relevant.

[91] Neither subsection (1) nor (2) applies to this case, and therefore, the order is mandatory unless M.L. meets his onus and satisfies me that the order should not be issued. On his behalf, Ms. Shafran focused her submissions in oral argument on whether the order would be “grossly disproportionate to the public interest” in light of the impact of the order on her client’s privacy and liberty.

[92] The purpose of the sex offender registry is to capture information about convicted sexual offenders that may assist police in preventing and investigating sexual offences. Offenders required to report must keep their personal information up to date with the police. This includes that they report their plans for any travel lasting seven or more consecutive days and any change to their home or employment address. [7] A registered offender may be among the first persons investigated by police when future sexual offences occur, generating further interactions with the police, even those that ultimately result in his exoneration: see Ndhlovu at para. 5.

[93] Considering the factors listed in subsection 490.12(4), I have found this was a case of intimate partner violence, which is an aggravating factor and renders the nature of sexual assault more serious. There was a breach of trust. S.A. was a young woman who was particularly vulnerable and financially dependent upon M.L. at times. At the same time, he is a relatively young man, has not re-offended, and has no prior criminal record.

[94] I find he is at low risk to re-offend if he engages with the counselling and programming I will include as part of the sentence. I am confident he will comply and meaningfully participate.

[95] In Ndhlovu, the Supreme Court of Canada noted that the reporting requirements associated with SOIRA are demanding and that courts should be aware that “the cost of compliance varies from offender to offender based on their life circumstances”: see para. 46. In all cases, SOIRA compels offenders to structure their travel and residency on an ongoing basis to remain in compliance. This creates a significant burden on any offender, who is faced with the spectre of imprisonment for failing to comply. For a young man of marginalized status, such as M.L., placing this burden on him for ten years, therefore, represents a serious hardship that may interfere with his own rehabilitation and future goals.

[96] It is vital to remember that the reporting requirements in SOIRA are not imposed as a punishment. Rather, they are imposed to assist the police with the investigation and prevention of sexual-based crimes: G. v. Ontario (Attorney General), 2019 ONCA 264 at para. 81. The jail sentence I impose today is the punishment. It will have a deterrent effect on M.L. and send a clear message to other like-minded offenders of the consequences they will face if they were to commit a similar offence.

[97] I heard no evidence on how including M.L. in the sex offender registry would advance the prevention or investigation of these crimes. In Ndhlovu, the majority of the Supreme Court found that mandatory registration under the prior legislative regime was overbroad and, therefore, unconstitutional because it demanded the registration of offenders who were not at an increased risk of committing a future sex offence. Registering such offenders “bears no connection to the purpose of capturing information about offenders that may assist police prevent and investigate sex offences”: see para. 83.

[98] Indeed, the majority stated at para. 36 that despite the 20-year history of the database, “there is little or no concrete evidence of the extent to which it assists police in the prevention and investigation of sex offences.”

[99] Not all sexual offenders need to be placed on the sexual offender registry. A SOIRA order is a grave matter. It should not be made lightly for an offender who has demonstrated he will comply with court orders and is committed to engaging with community-based programming. Subjecting M.L. to these reporting and disclosure requirements for ten years for this offence would be grossly disproportionate to the public interest associated with the need to protect society through the effective prevention or investigation of crimes of a sexual nature. In particular, I am concerned a prolonged period of intense state supervision will have a detrimental impact on his ability to successfully reintegrate into society.

[100] Other courts have also found inclusion on the registry is grossly disproportionate for a first-time offender with strong rehabilitative prospects: see, for example, R. v. A.R., 2024 ONSC 3786, at para. 103; R. v. Menezes, 2024 BCSC 448, at para. 92; R. v Maslehati, 2024 BCSC 121, at paras. 59-60; R. v. CRN, 2024 ABKB 15, at paras. 114-117; Godbout c. R., 2023 QCCS 4373.

[101] I therefore grant an exception from the order that would otherwise be required. [8]

[102] I waive the imposition of the victim fine surcharge.

Released: August 1, 2024 Signed: Justice Brock Jones

[1] The maximum CSO I could impose is approximately 21 months. M.L. will be awarded credit of nearly three months for the pre-sentence custody he already experienced. After accounting for credit for pre-sentence custody, the total sentence imposed cannot exceed two years less a day for a CSO to remain lawful: see R. v. Fice, 2005 SCC 32. [2] A relatively youthful first offender is 25 years of age or less: see R. v. Arbuthnot, 2009 MBCA 106, at para. 37. M.L. is now 29. However, the offences stretch back to early 2020, when he was 25. [3] My emphasis added. [4] The Shadow Pandemic: Stopping Coercive And Controlling Behaviour In Intimate Relationships, Reporting of the Standing Committing on Justice and Human Rights, April 2001, 43rd Parliament, 2nd Session – available online: https://www.ourcommons.ca/DocumentViewer/en/43-2/JUST/report-9/; see also Dichter, M.E. et al., “Coercive Control in Intimate Partner Violence: Relationship with Women's Experience of Violence, Use of Violence, and Danger” (2018) 5: Psychol Violence 596-604 at 2. [5] The appellant was convicted of sexually assaulting a close friend. The trial judge imposed an 18 month CSO. The Crown successfully appealed, and the Court of Appeal held a 28 month jail sentence was required. [6] When he was held in pre-trial detention, M.L. endured 17 lockdown days and also had a mouth infection that went untreated. [7] https://www.rcmp-grc.gc.ca/en/sex-offender-management [8] In Ontario, Christopher’s Law requires those convicted of a sexual offence to have their personal information added to the province’s sex offender registry. Registrants must continue to report in person at least once a year and every time certain information changes. An offender convicted of sexual assault must comply for 10 years. I have no authority over this; it happens automatically upon conviction. I am not aware of any reported decisions addressing the constitutionality of Christopher’s Law subsequent to the Supreme Court’s decision in Ndhlovu.