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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: 2025-01-20
COURT FILE No.: Newmarket 23-91103344
Between:
His Majesty the King
— AND —
K.B.
Before Justice M. Townsend
Sentencing Submissions Heard on October 10, 2024
Reasons for Judgment released on January 20, 2025
M. Henry — counsel for the Crown
P. Sherman — counsel for the accused K.B.
Townsend J.:
Overview of the Facts
[1] On August 16th, 2024 I acquitted K.B. of two counts of assault on his former spouse H.B., but convicted him of one count of sexual assault of H.B. on May 29th, 2021.
[2] Sentencing submissions were heard on October 10th, 2024, and the matter was adjourned to January 20th, 2025 for sentence as K.B. was expecting a baby with his new partner, and he wished to be present for the birth of that child, and be with his new child over the holiday season.
[3] Mr. and H.B. met in July or August 2018, and progressed quickly to moving in together in November 2018. About a year later in November 2019, H.B. became pregnant with their daughter Ha.
[4] H.B. is 34 years of age, she works for a healthcare union, and she has one child which she shares with K.B., their now 5-year-old daughter Ha. The two of them married in March of 2020 and Ha. was born in August of 2020.
[5] In February 2019, H.B. said that the stress in their relationship led to some violence. There was constant fighting, H.B. threatened to move out, and apparently that is when K.B. started to “relapse” with cocaine use. H.B. testified that in February 2019, K.B. would throw things, there was a lot of yelling, and at times it got physical. According to H.B., K.B. would apologize for relapsing, and then guilt her into staying in the relationship.
[6] I acquitted K.B. of two counts of assault on H.B., alleged to have happened in February and March 2019.
[7] The pregnancy with Ha. was not easy for H.B., she was frequently sick, and again, this put a strain on the relationship. Ha. was born in August 2020 and according to H.B. in November 2020 their relationship was essentially over. Despite this they tried to attend couples therapy together in December 2020, and then in February 2021 – because H.B. was still on maternity leave – they moved into K.B.’s parents’ house.
[8] In May of 2021 K.B. was living in the basement. He would come upstairs every now and then to their shared room for shower and clothes, etc., but for all intents and purposes H.B. and Ha. were living upstairs in the house, and K.B. was living in the basement. Also in May 2021 almost everyone in the house got sick with COVID, so people were trying to isolate from one another.
[9] On May 29th, 2021, Ha. was in her room sleeping and H.B. was in her room taking her makeup off and getting ready for bed. She said that K.B. was standing in her room demanding to have sex with her and told her to take her clothes off. She said no to the sex, he got mad, called her a name and then left. This was around 9:30 pm or 10:00 pm.
[10] This interaction made H.B. quite mad. Apparently, K.B. had been disrespecting her all day, and then he demanded to have sex with her. Not something that H.B. was interested in at all.
[11] H.B. closed the door, put her earplugs in and went to sleep. The next thing she remembers is being awoken while K.B. is on top of her. She was sleeping on her stomach with one knee up to her side.
[12] She realized when she woke up that K.B. had his penis inside her and was having sex with her. She said, “what are you doing,” to which he replied by telling her to shut up, that she liked it, and he kept going. H.B. said that it was over “in like two minutes”. She also felt his hands on her back.
[13] When it finished, H.B. asked K.B., “What the hell was that?” K.B. just left. H.B. said that she could smell on his breath that he appeared to be intoxicated.
[14] Early the next morning H.B. confronted K.B.. She challenged him on what happened the night before, that they had not been intimate together in months and that she did not consent to what had happened. She said, “you don’t just come into my room and especially do that – when I already told you no.” K.B.’s reply – according to H.B. – was that he was drunk and “you were just a hole.”
[15] That day, H.B. told her mother-in-law, and her best friend M. about the sexual assault. H.B. did not call the police that day, but instead called the police about a year later, in April 2022. She attributes this delay in reporting to the break-up in the relationship, her postpartum, and her journey through therapy. After the sexual assault, she eventually moved out of K.B.’s parents’ place.
[16] K.B. testified that the sex between the two was consensual. I rejected this submission as outlined in my Reasons for Judgment and convicted K.B..
Victim Impact Statement
[17] H.B. provided a victim impact statement that was read onto the record. In that statement H.B. provides that the emotional impact that this incident has had on her has been significantly damaging. She indicates that as a result of the relationship that she was in with K.B., she lost a lot of the support that she had in her friends and family members. She tried to leave the relationship, but when she found out that she was pregnant she decided to stay.
[18] After giving birth to their daughter, H.B. suffered extreme postpartum, and has been on medication for anxiety and panic ever since.
[19] Since the assaults, H.B. has described being fearful in many situations, has difficulty trusting people, is constantly on edge and worried that assaults of this nature may happen again. H.B. indicates that intimacy, both physical and emotional, is difficult, and she feels distant from loved ones.
[20] She described the very negative relationship that she had with K.B. and said that when with K.B. she was “treated worse than dirt on the ground”. The sexual assault at the hands of K.B. has affected almost every facet of her daily life. She noted that “the trauma from the assault has created a deep fear in me”.
Circumstances of the Offender and Pre-Sentence Report (“PSR”)
[21] Generally speaking, the pre-sentence report prepared on behalf of K.B. is a positive one. It outlines the very positive relationships that he has with his current partner, his family, and his past and current employers. K.B. is employed with Terra Cotta Construction full-time, and his employer is quite happy with him.
[22] While all individuals – inclusive of K.B. – all indicate that there are no concerns, or they are unaware of any substance use issues for K.B., this issue came up in the trial. Eventually in the PSR K.B. admitted that he had an issue with drugs in the past, to the extent that he utilized his Employee Assistance Program in 2017 and entered a 5-week treatment centre.
[23] K.B.’s use of alcohol and drugs is something that he and H.B. fought about in their relationship frequently. Alcohol and drugs played a role in the sexual assault. K.B.’s current partner indicates that their home is an “alcohol-free” home, and there are no concerns on her, K.B.’s, or his family’s part with respect to the use of any illegal drug.
[24] K.B. was diagnosed in the past with ADHD and is on medication for that. There are no mental health concerns for K.B.
[25] K.B. continues to proclaim his innocence and blames H.B. as being responsible for his involvement in these offences. Lack of remorse, and an inability to accept responsibility for his actions are not aggravating factors on sentence, simply lack of these as mitigating factors. K.B. is willing however to acknowledge the tumultuous nature of the relationship with H.B., regrets any role he played in that, but denies any sexual assault.
[26] K.B. is 33 years of age and appears to be in a very positive new relationship with his partner Ms. E. She is very supportive of him and is confident in their ability to raise their new baby alongside the daughter that K.B. shares with H.B.
[27] K.B. has no prior criminal record, and no past history of violence. Ms. E. reports no violence in their relationship.
[28] When asked if there is anything he wished to say prior to sentencing, K.B. indicated that he does not want this incident to define him, he wants to be a good father to his children and wants to be there for his family and his partner in the best way that he can.
Positions of the Parties
[29] The Crown position is that a sentence of 4 years in the penitentiary is appropriate in the circumstances. This should be accompanied by a SOIRA order for 20 years, a DNA Order and a section 109 Order for 10 years.
[30] Counsel for K.B. submits that a conditional sentence of 18 months to 2 years is appropriate given the circumstances of the offence and the circumstances of the offender.
[31] Counsel for K.B. submits that this offence was carried out more by stealth than by force, and there was a very low level of violence. There was no significant force, or the existence of threats.
[32] By way of mitigation, K.B. comes before the Court with no record, and no prior history of violence. Despite being in arrears on his child support payments, and court costs, K.B. is an otherwise contributing member of society. He is employed, he has a very supportive family, and he has displayed considerable strength in overcoming his past substance and alcohol abuse issues. He has been on release since his arrest without incident. He has a new partner, and a new baby.
[33] In terms of significant aggravating factors, this sexual assault took place in a domestic relationship. It occurred while H.B. was sleeping. They were separated at the time, living in different areas of the residence. This was a penetrative sexual assault.
Analysis and the Law
[34] Section 718 of the Criminal Code of Canada instructs that the goal of any criminal sentence is to protect society and to contribute, along with crime prevention initiatives, the respect for the law and the maintenance of a just, peaceful, and safe society through the imposition of just sanctions.
[35] As a sentencing judge, I attempt to achieve this goal by imposing a sanction that addresses one or more of the traditional sentencing principles as further outlined in section 718 the Criminal Code. These include denunciation, general and specific deterrence, rehabilitation, making reparation to victims of crime, and promoting a sense of responsibility in offenders and an acknowledgment of the harm they have caused the community, and specific victims in our community.
[36] One of the fundamental principles of sentencing is to impose a sentence that is proportionate to the gravity of the offence committed, and the degree of responsibility of the person who committed it. This means that, for the sentence I impose to be appropriate, it must be tailored to K.B.’s personal circumstances, and the circumstances of the offence he committed.
[37] The following principles as outlined in section 718.2 of the Criminal Code are particularly relevant to sentencing individuals convicted of sexual assault:
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family,
(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,
(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,
shall be deemed to be aggravating circumstances;
[38] Courts have repeatedly stated that the principles of denunciation and deterrence are paramount objectives for offenders who have been convicted of sexual assault. The Supreme Court of Canada in R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579 recognized the devastating effects that instances of sexual violence have on women.
[39] Given that K.B. is a first-time offender, I must also consider his prospects for rehabilitation and the principle of restraint.
[40] Courts of Appeal across the country have repeatedly upheld sentences imposed by trial courts and continued their recognition of the seriousness of these offences, and the devastating effect that these crimes have on victims.
[41] In R. v. A.J.K., 2022 ONCA 487, [2022] O.J. No. 2862 (CA), the Ontario Court of Appeal stated:
[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.
[75] As the years pass, enlightenment on the implications of sexual violence continues to permeate our conscious minds. In Friesen, the court noted, at para. 118, that "our understanding of the profound physical and psychological harm that all victims of sexual assault experience has deepened" and, I would add, is continuing to deepen: see also R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3, at para. 37. As Moldaver J. stated in R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 1: "Without a doubt, eliminating ... sexual violence against women is one of the more pressing challenges we face as a society" and "we can - and must- do better" (emphasis in original). This comment encapsulates why these sentencing ranges as they have come to be understood must be reconciled.
[76] There is no justifiable reason for why sexually assaulting an intimate or former intimate partner is any less serious than sexually assaulting a stranger. The fact is that a pre-existing relationship between the accused and complainant places them in a position of trust that can only be seen as an aggravating factor on sentencing: Criminal Code, R.S.C., 1985, c. C-46, s. 718.2(a)(ii). Therefore, contrary to the impression that may be left when contrasting the Smith range with the non-Smith range, the sexual assault of an intimate or former intimate partner can actually attract a greater sentence.
[42] In R. v. Maslehati, [2024] B.C.J. No. 1000 (CA) the British Columbia Court of Appeal stated at paragraph 72 that all sexual assaults are "serious". The Saskatchewan Court of Appeal in R. v. Merasty, [2023] S.J. No. 92 (CA) stated at paragraph 23"[no] matter what form it takes, a sexual assault is a forceful subjection of the victim to their assailant's sexual desires." There must be a reflection in contemporary sentencing judgments of our "deepening understanding" surrounding the harm caused by sexual assaults: see R. v. Bunn, 2022 MBCA 34, [2022] M.J. No. 96 (CA).
[43] Counsel for K.B. relies on the cases of R. v. Holland, 2022 ONSC 1540, [2022] O.J. No. 1611 (SCJ), R. v. Browne, [2011] O.J. No. 5258 (SCJ), R. v. Killam, 1999 ONCA 2489, [1999] O.J. No. 4289 (CA), and R. v. Nikkanen, 1999 ONCA 7339, [1999] O.J. No. 3822 (CA).
[44] In each of these cases, a conditional sentence of imprisonment was imposed. I note however that each of these cases can be distinguished on the basis of their facts and the personal circumstances of the offender. As well, each of these cases was decided before the decision of the Ontario Court of Appeal in R. v. A.J.K.
[45] In R. v. Killam, Justice Doherty made the following comments with respect to the appropriateness of a conditional sentence for sexual assault offences:
[13] That leaves for consideration the principles of general deterrence and denunciation. I am particularly concerned about denunciation. As indicated in R. v. Wismayer (1997), 1997 ONCA 3294, 115 C.C.C. (3d) 18 (Ont. C.A.), a conditional sentence, if properly understood, can adequately address the needs of denunciation and general deterrence even in cases where those principles are paramount. I think, however, it must be acknowledged that a conditional sentence, even one like this one which imposes some significant restrictions on the offender's liberty, does not, generally speaking, have the same denunciatory effect as a period of imprisonment. Incarceration remains the most formidable denunciatory weapon in the sentencing arsenal.
[14] I admit to considerable doubt as to whether a conditional sentence could adequately reflect the gravity of this offence and send the proper denunciatory message to the public. I am, however, satisfied that the case law commands that my doubt yield to the deference that must be afforded to the decision made by the trial judge. As Lamer C.J.C. put it in R. v. M.(C.A.), 1996 SCC 230, [1996] 1 S.C.R. 500 at 566:
The sentencing judge still enjoys a position of advantage over an appellate judge in being able to directly assess the sentencing submissions of both the Crown and the offender. A sentencing judge also possesses unique qualifications of experience and judgment from having served on the front lines of our criminal justice system. Perhaps most importantly, the sentencing judge will normally preside near or within the community which has suffered the consequences of the offender's crime. As such, the sentencing judge will have a strong sense of the particular blend of sentencing goals that will be "just and appropriate" for the protection of that community.
[16] I must stress, I am not suggesting that a conditional sentence should become the norm in cases like this one. Far from it. My reasons should be taken only as indicating that in the circumstances of this case, a conditional sentence was not outside the broad range of sentences available to the trial judge. I do not suggest that other sentences, particular a significant term of imprisonment, would have been inappropriate. Indeed, I might even go so far as to say a period of incarceration would have been more appropriate. That is, however, a basis upon which I cannot vary a sentence under s. 687 of the Criminal Code.
[46] With respect to the sentencing range in cases involving the penetrative sexual assault of an intimate partner, R. v. A.J.K. is particularly instructive:
[71] The Supreme Court recently reiterated that ranges and starting points are malleable products of their time. They are "historical portraits" that provide insight into the operative precedents of the day, but they are not "straitjackets" and can be departed from as societal understanding of offences and the severity of harm arising from those offences deepens: see R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 57; R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1, at para. 108. To that end, 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, 436 D.L.R. (4th) 389, at para. 22, citing R. v. Smith, 2017 BCCA 112, at para. 36, citing R. v. Nur, 2011 ONSC 4874, 275 C.C.C. (3d) 330, at para. 49; Friesen, at para. 108.
[76] There is no justifiable reason for why sexually assaulting an intimate or former intimate partner is any less serious than sexually assaulting a stranger. The fact is that a pre-existing relationship between the accused and complainant places them in a position of trust that can only be seen as an aggravating factor on sentencing: Criminal Code, R.S.C., 1985, c. C-46, s. 718.2(a)(ii). Therefore, contrary to the impression that may be left when contrasting the Smith range with the non-Smith range, the sexual assault of an intimate or former intimate partner can actually attract a greater sentence.
[77] The fact that the complainant had a relationship or prior relationship with the accused cannot serve to justify a sentencing range below a range for non-intimate partner sexual violence. To the extent that the Smith has been interpreted as suggesting otherwise, it is no longer to be understood this way. Absent some highly mitigating factor, the forced penetration of another person will typically attract a sentence of at least three years in the penitentiary. While Bradley and the cases following it suggest that the range is three to five years, this is of course just a range, a quantitative sentencing tool designed to assist busy trial judges with where to start: Parranto, at paras. 15-17. Accordingly, there will be circumstances where a departure from the range, either above or below the range, is entirely appropriate.
Conclusion
[47] K.B. has been convicted of the offence of sexual assault. This was one instance of penetrative sexual assault on his former spouse. They were going through a separation at the time, living in the same residence, the sexual assault started while H.B. was sleeping, and prior to the sexual assault H.B. clearly told K.B. that she was not interested in any type of sexual contact.
[48] K.B. demonstrated a callous disregard for H.B., and his comments to her upon confrontation demonstrate this - “you were just a hole”. This offence has had a significant impact on H.B. There are no mitigating factors like those present in the cases I received or alluded to in R. v. A.J.K. that would allow for a reduction in sentence. This is a serious offence and K.B.’s moral culpability is high despite the fact that he is a first-time offender.
[49] General deterrence and denunciation are paramount principles of sentencing. The sexual assault of a current or former intimate partner is a serious offence that ought to attract a significant sentence. Vulnerable victims need to be protected. Society needs to know that these offences are taken seriously, offenders will be held accountable, and sentences imposed will reflect the serious harm that these offences have on victims.
[50] I have turned my mind to all the principles of sentencing as set out in the Criminal Code, as well as the principle of restraint given that K.B. has no prior criminal record. I have taken into account all the aggravating and mitigating factors, as well as the particular circumstances of K.B., and the impact of this offence on H.B.
[51] Sentencing someone to a period of imprisonment is not an easy task. Lives are disrupted, relationships are tested. I find that K.B.’s prospects for rehabilitation are high. However, I am unable, given all that I have heard about K.B., unable to reduce what would be a fair and fit sentence to a sentence below two years to consider a conditional sentence. To do so on these facts would be to impose a sentence well below other offenders in similar circumstances, resulting in an unreasonable sentence.
[52] In all the circumstances, the sentence imposed today will be one of three years in the penitentiary.
[53] There will also be a DNA Order, a section 109 Order for 10 years, and a SOIRA Order for 20 years.
Released: January 20, 2025
Signed: Justice M. Townsend