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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. N.J., 2024 ONCJ 67

DATE: February 5, 2024

COURT FILE No.:18-9240

BETWEEN:

HIS MAJESTY THE KING

— AND —

N.J.

Before Justice Angela L. McLeod

Sentencing hearing held January 19, 2024

JENNIFER AMENISE.......................................................................... counsel for the Crown

JOHN RAFTERY......................................................................... counsel for the Defendant

McLeod J.:

OVERVIEW

[1] Mr. N.J. was convicted at trial on September 6, 2023. The matter of sentencing was adjourned to allow for the authoring of a presentence report.

[2] I rejected Mr. N.J.’s evidence and found the complainant’s evidence to be “clear, concise and cogent”. The parties were known to each other and had a casual, intimate relationship. J.H. had been in a car accident and was suffering from a back injury. She was in pain and had been resting in bed when N.J. attended at her apartment which was located above her place of employment.

[3] She repeatedly told him that she did not want to engage in sexual activities, that she was in too much pain. I found that he ignored her words. He forced vaginal and anal intercourse with J.H.

AGGRAVATING AND MITIGATING FACTS

[4] N.J.’s assault upon J.H. was particularly demeaning. J.H. told him that she was in pain from the car accident. He said, “don’t worry, I will make it feel good” and began to ‘dry hump’ her.

[5] She again told him that she did not want to engage in sexual activities. During the assault she screamed out. He ignored her cries. She told him that he was hurting her. He again ignored her cries. She screamed and tried to push him off, squeezing and pinching his stomach. He responded by saying, “wait a minute, let me finish”.

[6] She told him to stop. She was bleeding. He responded by saying “let me finish”.

[7] She tried to move her hips anyway that she could. He responded by “ramming” his penis inside her anus.

[8] She told him that she had blood on her hand after touching her vagina. He responded by saying, “blood is a good lubricant”.

[9] The parties were in an intimate relationship which is statutorily aggravating. N.J. was in a position of trust toward J.H. in that respect.

[10] The impact upon J.H. has been tremendous. Her victim impact statement (Exhibit #1) spoke to the trauma of having to participate in the trial process and the delay in her healing. She had to move, to buy a new bed. Her home, her place of refuge was the place of her assault. It took years to find a new place to live and during the time in the apartment she had to sleep in the livingroom.

[11] J.H. sunk into a depression. She found it hard to leave her residence. Her apartment was located above her place of employment. When she moved out of her apartment she nonetheless had to return daily for work.

[12] She stated that it has “been awful recovering” … “It’s been scary, triggering and heart racing almost everyday for 5 years”.

[13] Mitigating is the lack of a criminal record.

[14] There were several character letters filed by the defence, however, I find that they are of little value to the court in determining the appropriate sentence as the were written in 2019 and 2020, before the trial.

POSITION OF THE PARTIES

[15] The Crown seeks a penitentiary sentence in the range of 3 to 5 years, a SOIRA order for 20 years, a DNA order, a s. 109 order for 10 years and a s. 743.21 order while in custody.

[16] The defence seeks a conditional sentence in the range of 1.5 to two years less a day. The Crown acknowledges that a conditional sentence is available as a sentencing option but argues strenuously that it is not appropriate in all the circumstances.

CIRCUMSTANCES OF THE OFFENDER

[17] A presentence report was filed as Exhibit #2. As noted above, Mr. N.J. does not have a criminal record. He was born in Antigua and moved to Canada when he was 11 years old. He lives with his mother, and they share expenses. She lives in subsidized housing. His mother describes him as a good son who is helpful to her and who was well liked throughout school.

[18] Mr. N.J. reports that he has had and is currently involved in healthy intimate relationship.

[19] He works at a local restaurant and has had that position for some eight years. He is well thought of by his employer.

[20] He has neither drug nor alcohol issues. There are no mental health issues.

[21] Mr. N.J. is currently 26 years of age.

[22] He maintains his innocence, which he is entitled to do.

CASELAW

[23] In A.J.K., 2022 ONCA 487, Justice Fairburn addressed the often relied upon sentencing range for offences of forced intercourse with a spouse, intimate partner, or former intimate partner. At paragraph 63, she identified the many cases wherein courts have imposed or upheld the range as being between 21 months and 48 months custody. However, at paragraph 68, the court contrasted this range to that for non-intimate partner sexual assault as being between three- and five-years custody, and “in some cases even higher, in the context of sexual assaults of non-intimate partners involving forced oral, vaginal, or anal penetration”.

[24] Justice Fairburn boldly stated that the dichotomy was outdated and “it is time to leave this sentencing artefact behind”, para. 70.

[25] The court highlighted (at para. 71) many pronouncements of the Supreme Court of Canada in respect of sentencing ranges, summarized below:

(1) Sentencing ranges are not ‘straightjackets’ and can be departed from as societal understanding of offences and the severity of harm arising from those offences deepens. R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089

(2) It is not unusual “for sentences to increase and decrease as societal and judicial knowledge and attitudes about certain offences change.” R. v. Parranto, 2021 SCC 46, [2021] S.C.J. No. 46

(3) In some cases [there is a need to] bring sentencing ranges into “harmony with a new societal understanding of the gravity of certain offences or the degree of responsibility of certain offenders.” R. v. Friesen, 2020 SCC 9, [2019] S.C.J. No. 100

[26] Gone are the days of creating a hierarchy within the offence of sexual assault. The focus has moved away from specific acts or body parts to the ultimate impact or harm caused by the assault.

[27] Justice Fairburn’s decision underscores the modern understanding and appreciation of that harm. In summary, she wrote (at para 76):

(1) A sexual assault involving forced penetration is a sexual assault involving forced penetration [whether upon a stranger or upon an intimate partner].

(2) All sexual assaults are serious acts of violence.

(3) Whether intimate partners or strangers, victims of sexual violence suffer profound emotional and physical harm and their lives can be forever altered.

(4) There is no justifiable reason for why sexually assaulting an intimate or former partner is any less serious than sexually assaulting a stranger.

[28] Ultimately, the court holds that while “there will be circumstances where a departure from the range, either above or below the range, is entirely appropriate absent some mitigating factor, the forced penetration of another person will typically attract a sentence of at least three years in the penitentiary” (para. 77).

CONCLUSION

[29] Mr. N.J. has no criminal record, is regularly and consistently employed. He has otherwise led a pro-social lifestyle. There are no addiction or other mental health issues to consider.

[30] In sum, there are no factors which would bring this case out of the range clearly established by the Ontario Court of Appeal, noted above.

[31] Given the aggravating factors, balancing the need for restraint, and considering that N.J. is a first-time offender, the appropriate sentence is forty-two months custody, a s. 109 order for 10 years, a DNA order, a SOIRA order for 20 years, and a s. 743. 21 order.

Released: FEBRUARY 5, 2024

Signed: Justice Angela L. McLeod