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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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
DATE: 2025-05-14
COURT FILE No.: Central West Region 998 23 11100450
BETWEEN:
HIS MAJESTY THE KING
— AND —
F. (D.)
Before Justice J. De Filippis
Heard on April 11, 2025
Reasons for Sentence released on May 14, 2025
Mr. W. Milko — counsel for the Crown
Mr. D. Paquette — counsel for the accused
De Filippis, J.:
Introduction
[1] The defendant was found guilty, after trial, of sexually assaulting his wife.[1] These reasons explain why I conclude that the appropriate sentence is three years in the penitentiary.
[2] The following excerpts from my earlier reasons will suffice to give context to this decision:
[1] Sometime between August 1 and October 31, 2020, the complainant awoke to the sensation of a penis in her mouth and another one in her rectum. She has no memory of how this happened. The defendant, her husband, is charged with sexual assault. She met the defendant in 2012. They married in 2017 and have two children – an 11-year-old and a 10-year-old. The parties separated in 2021, several months after the incident in question. She reported it about three years later, on September 30, 2023, after going to the police about a separate complaint against her husband.
[30] It is not in dispute that sexual activity occurred involving the complainant, defendant and a third party in a shed at the matrimonial home in late summer or early autumn 2020 and that the complainant has no memory of how these events began and developed. That the complainant suddenly awoke and bolted from the scene in a state of shock and distress was not seriously or successfully challenged. At issue is whether the Crown has proven she did not consent to the sexual activity given her lack of memory about it. In this regard, the Crown did not assert the complainant lacked the capacity to consent. Moreover, notwithstanding the defendant’s comments in the online conversation and the complainant’s trial testimony that he subsequently told her she appeared to enjoy the threesome, this case was not argued on the basis that the defendant had an honest but mistaken belief in communicated consent. The Defence position is that I cannot conclude, based on all the evidence, that the Crown has proven an essential element of the offence, non-consent.
[33] There is no question the complainant was intoxicated. That she awoke means at some point she fell asleep or passed out and I conclude from this that she was severely intoxicated. Her first memory upon awakening is vivid and compelling; a strong and disgusting odour, immediately followed by the sensation of a penis in her mouth, hearing the words, “no teeth, no teeth”, and the awareness of being anally penetrated. The complainant quickly ran out into the night, without pants, and without any words being spoken. I agree with the Crown that this emotional and physical response is relevant to the issue of consent. Significantly, the parties had discussed a threesome – at least to the extent that the defendant revealed he would enjoy watching his wife have sex with other men – early in their relationship and the complainant had refused to participate. Moreover, after the events in question at this trial, when the parties engaged in sexual activity, the defendant suggested it be repeated. Again, the complainant rejected this. The Defence suggestion that the fact the complainant knew her husband always wanted this experience and, therefore, she might have changed her mind about a threesome is speculation. To have a doubt based upon this would not be one based on reason and common sense that is logically based on the evidence or lack of evidence.
[34] The complainant’s adamant refusal to participate in this type of sexual activity, expressed before and after it occurred, and her palpable reaction after awakening from her stupor is compelling proof and permits an inference to be drawn with respect to the issue of consent. This mostly uncontested circumstantial evidence persuades me that the complainant did not voluntarily agree to the sexual activity. In this regard, the fact that the complainant has had other incidents of memory gaps, including not remembering several people present in the shed on September 6, 2020, a possible date for the events in question, does not cause me to doubt my conclusion. Moreover, while Defence counsel suggested she does strange things while intoxicated the only evidence on point is that she would sometimes reveal her buttocks in private places. The complainant attributed this to her weird sense of humour. This does not trouble me and is not relevant to the issue of consent. I now consider two final pieces of evidence, one of which, as already noted, is relied upon by the Defence in support of the submission that, at very least, it should raise a reasonable doubt about a finding of non-consent.
[42] The defendant penetrated the complainant’s anus with his penis while another man put his penis in her mouth. That these acts occurred was never seriously in question. The circumstantial evidence proves, as asserted by the complainant in trial testimony, that she did not consent to what either man did to her. The online conversation does not raise a reasonable doubt this. The Crown has discharged its burden of proving that the defendant directly, and as a party, engaged in sexual activity with the complainant knowing of, or being reckless of or wilfully blind to, a lack of consent on her part.
Victim Impact Statement
[3] The following excerpts from a written statement provided by the victim demonstrate the harm she has suffered:
The trauma of this event has affected my relationships with friends and family…. A lot of people are upset that I spoke up about what happened…. I am unable to have contact with most of my family members, and I no longer make plans with friends, or go out and do the things I used to enjoy. I feel like I no longer know who I am…... Since this event, I have felt an overwhelming sense of fear, shame, guilt, disgust, and confusion. My life has changed in ways I never imagined. I struggle emotionally with constant anxiety and depression, which became extremely heightened when everything happened…. The stress has caused my hair to fall out, drastic weight loss, constant nightmares, as well as left me completely worn out both physically and mentally.
I have had to seek professional help (on a long term basis) to help me cope with what happened… I have been through many different medications and counselling sessions. These have all been out of pocket costs, as I do not have insurance…. I have missed a lot of work due to everything. I had to take a 3 month stress leave and returned to work prematurely against the advice of my doctor. I needed to get back to work to support my children.
Near the beginning of everything after I reported the event I was so scared for myself and my children…. I live in fear of retaliation constantly….
Presentence Report
[4] The defendant cooperated in the preparation of the presentence report. The author of that report provided the following assessment of him:
[Omitted] is a 40 year old repeat offender awaiting sentencing before the Court having been convicted of two counts of Sexual Assault, Mischief Under $5000, Assault with a Weapon, Publish Intimate Image Without Consent and Voyeurism, all contrary to the Criminal Code of Canada.[2]
It was reported the subject enjoyed a positive childhood and adolescence, having been predominantly raised by his mother following his parents’ divorce. He recalled having frequent contact with his father and noted he was brought up in an environment free of any harm or abuse, with all his basic needs catered for. Collateral sources reveal the subject continues to enjoy close familial relationships.
The subject relayed he met the victim in 2012 and they married in 2017. They have two daughters together. He disclosed his relationship with the victim was “up and down”, noting his substance use was a contributing factor to their relationship ending. In addition, he alleged he did not have a good understanding of the victim’s mental health. The victim shared the significant negative impact the offences have had on her. She described her relationship with the subject in negative terms, labelling the subject as “controlling in many ways”. Presently, the subject has access to his children every other weekend. Both the subject and collateral sources note they enjoy a positive relationship.
Following the subject’s completion of high school he trained as an iron worker. For the last 22 years, the subject has been employed as an iron worker with [omitted]. He has held a variety of roles during this period, most recently in [omitted]. The subject highlighted the physical cost of his career on his health, but reported plans to continue working in this field for a further 12 years.
The subject identified previous concerns with alcohol, noting it became a habitual problem for him to the point where he was unable to limit his consumption. Furthermore, the subject acknowledged consuming alcohol on a frequent basis during the time the matters before the Court occurred. In addition, the subject described frequent periods of cocaine use. The victim asserted substance use was problematic for the subject for large parts of their relationship. In April 2024, the subject indicated he recognized the need to address his substance use and attended a drug and alcohol rehabilitation facility in [omitted] for 35 days. He noted this came at a time when he had not seen his children for eight months. The subject reported he learned new skills and gained perspective on the type of lifestyle he wished to lead.
Although the subject denies culpability for the matters before the Court, he identified a willingness to comply with the Court’s disposition. It is assessed he would be a suitable candidate for community supervision, should this be a sentencing option. The subject would benefit from a structured rehabilitative environment and programming to develop his victim awareness and insight into his offending behaviour.
Submissions
[5] Defence counsel acknowledged the people in the courtroom present to offer support to the defendant, including the victim’s father. Counsel added that the defendant has a minor criminal record and described the presentence report as positive. Counsel asserted that he was challenged in what to say and explained this by questioning my guilty verdict. In doing so, he repeated some submissions made at the conclusion of evidence at the trial. I interrupted this and invited counsel to offer sentencing submissions based on my verdict and added that his challenge to it properly belongs in another forum. Defence counsel suggested I impose a conditional sentence order.
[6] The Crown referenced the leading case on intimate partner sexual assault; namely, R v A.J.K., 2022 ONCA 487 which established a range of three to five years. Counsel submitted that this case involves a breach of trust by a husband towards his intoxicated and vulnerable wife. While acknowledging the inherent violence of sexual assault, counsel submitted that there is no evidence of additional violence or other aggravating factors. In these circumstances, the Crown suggested a sentence at the lower end of the range established by the Court of Appeal for Ontario.
[7] In concluding his submissions Crown counsel pointed out, “as a matter of fairness to the accused” that at the judicial pretrial in this matter, the Crown proposed a sentence of two years less one day in the reformatory in the event of a guilty plea. It appears counsel brought this to my attention in the event I wished to consider a conditional sentence order. Such an order, of course, can only be considered if a jail sentence below two years is otherwise appropriate.
Applicable Legal Principles
[8] The applicable sentencing principles are set out in Part XXIII of the Criminal Code. Section 718.1 provides that the cardinal principle of sentencing is proportionality. This means that the severity of a sentence will depend on the seriousness of the offence (and its consequences) as well as the moral blameworthiness of the offender; R v Lacasse, 2015 SCC 64. With respect to the seriousness of the present offence, I note that section 718.2(a)(ii) directs that a Court shall consider evidence that the offender in committing the offence abused an intimate partner.
[9] R v A.J.K., supra, is an important decision with respect to sentencing for sexual assaults committed against an intimate partner. The Court of Appeal for Ontario noted that the Criminal Code treats such relationships as an aggravating factor. This follows from the fact that people are vulnerable in domestic relationships and a sexual assault in this context results in profound violation. The Court of Appeal identified the starting point range for sexual assaults with forced intercourse as three to five years in jail.
[10] There is nothing about this offence or offender that takes this case out of the range established by the Court of Appeal. As such, I cannot accept the Defence submission that a conditional sentence order be imposed. In this regard, I am not dissuaded by the Crown sentencing position before trial. Assuming the maximum reformatory sentence was appropriate following a guilty plea, it is not a fit sentence now. This is not to suggest that the defendant is to be penalized for asserting his right to be presumed innocent and electing to proceed to trial. Going to trial is not an aggravating factor. However, it is well settled that a guilty plea is a mitigating factor to be considered in arriving at a proper sentence. A person who is prepared to acknowledge responsibility for wrongdoing is further along in the rehabilitative process. Moreover, a guilty plea saves limited judicial resources and avoids inconvenience or distress to witnesses.[3]
[11] The presentence report is positive in the sense that it shows the defendant has been a productive member of society and presently understands the need to address substance abuse issues. I also consider the fact that he has strong support in the community. However, this is a significant crime. The sexual acts profoundly violated the victim’s body and dignity. She has suffered, and continues to suffer, substantial harm. The defendant’s moral blameworthiness is high. He had been aware for years that the victim opposed participation in these sexual acts. That the defendant’s heavy consumption of alcohol and cocaine may have contributed to his decision to ignore her enduring objections and act out his fantasy does not diminish blameworthiness.
[12] The defendant is sentenced to three years in the penitentiary.
[13] I also issue these ancillary orders: The defendant will provide a sample of his DNA and pay a victim fine surcharge in the amount of $200.00. He is prohibited from possessing the weapons and devices described in s. 109 of the Criminal Code for 10 years. He is subject to the sex offender registry (SOIRA) for 20 years. Pursuant to s. 743.21, he is prohibited from communicating with the victim while in custody.
Released: May 14, 2025
Signed: Justice J. De Filippis
[1] See R v F.(D.), 2025 ONCJ 15.
[2] The defendant is a “repeat offender” only in the sense that he has a prior conviction for operating a motor vehicle while his blood alcohol level exceeded the legal limit (“over 80”). Moreover, the presentence report notes the defendant was found guilty of the several listed offences. That is not correct. The Crown withdrew all charges except the one count of sexual assault that is the subject of this decision.
[3] The significance and proper treatment of a guilty plea is fully discussed in the Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions, Queen’s Printer for Ontario, 1993, beginning at p. 309.