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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 07 03
Toronto Region
Between:
His Majesty the King
— and —
Kelvin Atta
Before Justice F.M. Finnestad
Heard on May 2, 2025
Reasons for Sentence released on July 3, 2025
Mr. Bloch ............................................................................................... counsel for the Crown
Ms. Shafran ............................................................. counsel for the defendant Kelvin Atta
FINNESTAD, J.:
[1] On October 16, 2024, Kelvin Atta was found guilty of an October 2022 sexual assault on Ms. S-S. Sentencing was adjourned so that the defence could produce a forensic psychological report, which was dated April 20, 2025, or six months later. Submissions were heard and the matter adjourned for this decision. It is thus that sentence is now to be imposed over a year since the first days of trial.
[2] The offence of which Mr. Atta was convicted involved two acts of forced intercourse on the premises of an adult high school, at which both parties were attempting to complete their grade 12 credits. Ms. S-S was 17. Mr. Atta, aged 19, had come to Canada from Ghana the year before, and was doing this education in a language that was not his first. While there was no additional violence, Mr. Atta pressed intercourse on an unwilling Ms. S.-S. during what began as a friendly meet-up in the school gym and moved to a changeroom.
Position of the parties
[3] The Crown proceeded by way of summary conviction and sought a sentence of 18 months, with 2 years of probation and various ancillary orders. The defence sought a conditional sentence of imprisonment of 9–12 months, to be followed by probation. No issue was taken with the requested ancillary orders.
[4] Where the Crown proceeds by summary conviction, the maximum of 18 months is not reserved for the “worst offence, worst offender” scenario. The sentence should be proportionate to the offence and the offender in all the circumstances.
[5] A conditional sentence of imprisonment is available within the sentence range proposed by both parties. Once an appropriate sentence is determined, it is necessary to determine whether a conditional sentence would meet the principles and purpose of sentencing.
Factors in aggravation and mitigation
[6] The aggravating factors are as follows. Ms. S-S was 17 years old. The offence involved two completed acts of forced intercourse, which was a significant violation of her physical and sexual integrity. Her evidence and her brief victim impact statement indicated long-term consequences of these acts. She testified to having difficulty returning to school afterwards. She described becoming emotionally closed off and “having my guard up in every way”. She struggled with depression and feels like she still has a healing process in front of her.
[7] Two neutral factors are as follows. There was no physical violence beyond that implicit in forced intercourse. This absence of an additional aggravating factor does not constitute a mitigating factor. Similarly, the fact that Mr. Atta had a full trial does not constitute an aggravating factor but denies him the mitigation that would have arisen from the indication of remorse implicit in a guilty plea.
[8] The mitigating factors are as follows. Mr. Atta was 19 years old at the time. He was a newcomer to Canada with some of the struggles that involves. He was expelled from the school as a result of this offence. He had no criminal record before these charges, nor has he incurred any new charges in the 2.5 years he has been on bail. The psychological report filed described cognitive and functional impairments but indicated no evidence of mental illness or personality disorder. He has no substance abuse issues. He has a social support network including friends, family and a girlfriend of over 8 months. Letters were filed by some of those people in his support. He appears to have otherwise led a pro-social life.
Mr. Atta’s background
[9] Mr. Atta was born in Ghana to a family in which he had 16 siblings, all of whom now live in Canada. His parents separated years ago and his mother still lives in Ghana. He reported that his mother had described him as a “slow learner” and that he struggled in school in Canada. However, he achieved both Grade 11 and 12 credits, thanks in part to a teacher who provided some after school one-on-one help for several months. He currently lives with his father and youngest brother. The family seems to be supportive and law-abiding, and despite some financial and other challenges, has provided a relatively secure upbringing for Mr. Atta and his siblings.
[10] Mr. Atta has a peer support group of about 5 friends who are other Ghanaians he met in Canada. He was in a relationship for about 2 years with a woman, which apparently ended “due to his busy work schedule”. He has been in a relationship with another woman for the past 8 months or more. She is a 19-year-old studying psychology, holding down a part-time job and managing her own hair business. She wrote an articulate and supportive letter, which was filed as an exhibit on sentence.
Defence materials filed on sentence
[11] The Psychological Assessment Report filed was written by psychologist Dr. N. Vitopoulos. She spent 8 hours interviewing Mr. Atta with the assistance of interpreters. He often began the sessions alert but became tired and inattentive when they exceeded an hour. She noted that due to the language difficulties, “many assessment tools that are frequently used in court-related assessment could not be used. In particular, standardized measures of intellectual functioning and cognitive abilities could not be conducted, and there are no statistical norms upon which (his) data could be accurately and appropriately interpreted. This is also the case with other psychometric tools typically used in forensic assessment, thus, as a result, this assessment relies heavily on interview, observational and historical data to draw inferences on (his) cognitive functioning, socio-emotional functioning and understanding of his legal involvement”. This significant limitation is highlighted again at a later point in the report and concluded “this provisional diagnosis should be interpreted with caution and re-assessed if culturally and linguistically appropriate tools become available”. This is important as the major finding of the report was that Mr. Atta suffers from deficiencies in intellectual functioning and cognitive abilities, two areas about which caution is repeatedly urged.
[12] In the assessment process Mr. Atta described difficulties in concentration and attention, and needing information repeated multiple times before he could absorb new concepts. Despite these self-reported and observed difficulties, school documentation did not identify concerns related to attention or concentration in particular, although they did disclose significant academic difficulties.
[13] Dr. Vitopoulos noted that over the course of the assessment Mr. Atta required regular assistance from others to complete basic tasks, including calling for transportation, handling money and following directions in unfamiliar environments. He was “confused at how to physically open a simple rotating knob once a clinician found him, even after having been to the office multiple times”.
[14] In his evidence at trial, it was clear that Mr. Atta was able to do his homework on his cellphone, knew how to use Google Translate for both oral and written communication, and had a facility with Snapchat both in written communications and telephone use within the app. He did not present as a person who did not know how to use a doorknob.
[15] Dr. Vitopoulos concluded that despite limitations preventing a more comprehensive assessment, Mr. Atta “presented with cognitive and functional impairments which appear to significantly impact his ability to understand and navigate daily life”.
[16] I would note that this was not manifested during his trial; there were no indications that interpreters had difficulty making Mr. Atta understand the questions he was asked, that they had to repeat or simplify questions, or that his answers were confused or simple. However, I would note my impressions during the trial process suffered from the same challenges the assessment did, in that all communications to and from Mr. Atta passed through interpreters.
[17] I accept that observations of the psychologist suggested that Mr. Atta has some cognitive and functional impairments. He clearly had academic difficulties which were documented. However, I also accept that he is able to interact with same and older-aged peers and has a supportive circle of friends, and that he has maintained relationships with two women over a significant period of time. The current relationship appears to be with an intelligent, articulate and ambitious young woman. Letters of support written by two of his friends were impressive in the message of understanding and support they conveyed, but also in being both intelligent and articulate. None of the three letters filed referred to his having cognitive difficulties, or of the relationship being between intellectual unequals. Clearly, while there are apparently some limitations, Mr. Atta does not function at the level of a child and is capable of sustaining adult relationships of both platonic and romantic natures.
[18] In conclusion while I share concerns about the value of the assessment that was done, I accept that Mr. Atta had academic limitations of longstanding, and that he presented to the psychologist as having some cognitive impairments. While I have reservations about those conclusions, I am not prepared to discount them entirely on the basis of my own limited observations and the information I have been provided about Mr. Atta’s background and life circumstances.
[19] Quite understandably, Mr. Atta exhibited anxiety about his future as a result of this conviction.
Crown submissions
[20] Mr. Bloch noted that where the Crown proceeds by way of indictment, sentences for forced intercourse fall within the range of 3–5 years. Where the Crown proceeds by summary conviction, the maximum is not reserved for both worst offender and worst offence. The Supreme Court of Canada noted in R v Solowan, 2008 SCC 62 that a fit sentence on a summary conviction offence is neither a function nor a fraction of the sentence that might have been imposed had the Crown proceeded by indictment. The sentence should not be “scaled down” from the maximum on summary conviction simply because the maximum would not have been imposed had the Crown proceeded by indictment. Rather the fundamental purpose of sentencing is that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[21] The principle of restraint in s. 718.2(d) means that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances. Those must be reasonable in the circumstances and consistent with the harm done to victims or the community. Any sentence I impose must have these principles in mind and consider the objectives of denunciation and deterrence, separation from society where necessary, rehabilitation, making reparations for harm done, and promoting a sense of responsibility and acknowledgment of the harm done. All alternatives to incarceration that are consistent with this should be considered.
[22] The Crown referenced the Ontario Court of Justice decision in R v L.H., 2024 ONCJ 103, noting circumstances with similarities to that of Mr. Atta, in that the victim simply stopped resisting after it proved futile. The Crown proceeded summarily in that case of forced intercourse. The accused in L.H. was 25 years old with no record, despite having a turbulent and difficult childhood. He entered a guilty plea. Like Mr. Atta he had a support system, no substance abuse issues, a good work ethic and a willingness to take counselling if directed. The sentencing judge found that notwithstanding the strongly mitigating factors present, a sentence of 18 months was appropriate. It was noted that while L.H. was a first offender, a conditional sentence would not be proportionate to the gravity of the offence, nor adequately fulfil the principles of denunciation and deterrence. The seriousness of the offence, the significant violation of the victim’s sexual and physical integrity and the impact on the victim required a custodial sentence, notwithstanding that the accused was a first offender with no identifiable risk to the community.
[23] In R v S.W., (2024) O.J. No 1224 and R v R.S., 2023 ONCA 608, both referenced by the Crown, the Court of Appeal for Ontario dealt with Crown appeals from conditional sentences imposed on a sexual assault where the Crown proceeded by indictment. In both cases the Court found conditional sentences to be unfit as not falling within the sentencing range appropriate for such offences, which was 3–5 years. While these must be considered in the context of indictable offences, some principles emerge with respect to sexual assault sentences generally.
[24] In R.S. at para 24 the Court noted that while conditional sentences are now available for charges of sexual assault, proportionality remains key to sentencing. Further, at para 27 that “it may be that, in some circumstances, a conditional sentence is appropriate for sexual assault at the lowest end of the range of wrongful conduct. But there is no basis to suppose that it is appropriate for sexual assault at the higher end of that range”.
[25] The Court of Appeal noted in S.W. that “forced penetration” refers to a lack of consent and does not require a further element of violence in an offence that is inherently violent. Justice Fairburn was cited as noting in A.J.K., 2022 ONCA 487 at para 74 that sexual assaults are “serious acts of violence”. That decision made clear that in cases of sexual assault sentences, denunciation and deterrence are paramount. At para 22 of R.S. the Court of Appeal noted that “the evolution of the law is plainly in the direction of better appreciating the profound physical and psychological harm caused by a sexual assault.” Sentencing decisions which pre-date A.J.K. are to be considered with caution.
[26] The Crown position in light of these sentencing principles, was that the maximum sentence available on summary conviction was called for. While a summary conviction proceeding is reserved for offences at the lower end of the range of wrongful conduct, forced intercourse is at the upper end of the range for such prosecutions.
Defence submissions
[27] Ms. Shafran referred to the decision of the Ontario Superior Court in R v Browne, (2021) O.J. No 5258. In that case the accused briefly inserted a vibrator into the victim’s vagina or anus while she was unconscious or asleep. The decision dealt in large part with whether Justice Nakatsuru’s decision in R v R.S., 2021 ONSC 2263 was in error. Justice Nakatsuru had found the Criminal Code sections prohibiting conditional sentences for sexual assault to be unconstitutional and of no effect. He found a conditional sentence to be both available and appropriate, imposing a conditional sentence of 2 years less a day. Justice MacArthur followed Justice Nakatsuru’s decision in her own finding that a conditional sentence was both available and appropriate, and imposed a conditional sentence of two years less a day for Browne.
[28] Since that time the Criminal Code was amended to make conditional sentences available for sexual assault.
[29] Since that time the sentence imposed in R.S. was found to be manifestly unfit by the Court of Appeal, noting that the conditional sentence imposed was inadequate to give effect to the primacy of denunciation and deterrence, and finding a sentence of 3 years to be appropriate.
[30] Since that time the decision in R v A.J.K., (supra) was rendered by the Court of Appeal. In light of the comments made by the Court in that case, and in R.S. about the precedent value of cases which precede it, I think it highly unlikely that the decision in Browne would withstand appellate scrutiny today. I do not find that decision of the 2021 trial level Ontario Superior Court to be an appropriate precedent on sentence in 2025, given the development of the law since that time.
[31] The defence cited the decision of the Ontario Court of Justice in 2017 in R v S.C., (2017) O.J. No 6867. In that case a 56-year-old man put a finger in the vagina of a sleeping friend. The Crown sought a sentence of 9 months and the defence a conditional sentence of 6–9 months. A 12-month conditional sentence was imposed. I do not accept this 8 year old decision as representing the current law in Canada with respect to sentencing for forced acts of intercourse.
[32] The defence filed a decision of the Ontario Court of Justice from 2022, R v Cacdac, (2022) OJ No 4770. While this decision was released after that in AJK it makes no reference to the principles discussed therein and relies exclusively on a number of sentencing decisions which predate it. It refers to the sentencing range set out in R. v Smith, 2015 ONSC 4304, which was specifically re-considered in AJK. The sentencing judge distinguished a number of cases cited by the Crown wherein non-conditional sentences of imprisonment were imposed, noting that those sentences were imposed after trial. A significant factor cited by the sentencing judge in this case of the vaginal insertion of the accused’s finger, was the fact that a guilty plea had been entered. I do not consider this decision to reflect the current state of the law of sentencing with respect to forced acts of intercourse, let alone those where there was no indication of remorse.
Conclusion
[33] I consider the fact that Mr. Atta is a youthful first offender. His prospects for living a pro-social life are good. He has some intellectual challenges and struggles with school. Notwithstanding this he wants to continue with his education and find good employment. I do not find him to be a danger to the public. Nonetheless this is one of the most serious offences which may be prosecuted on summary conviction.
[34] A sentence of the maximum of 18 months is not inappropriate. However in giving consideration to the mitigating factors set out, including the difficulties he may experience in prison which may be disproportionate to those experienced by others, including his youth, some cognitive difficulties and reduced English language abilities, I am persuaded that a sentence of 16 months can be imposed on this summary conviction offence and still reflect the harm done to the victim, and to hold Mr. Atta accountable.
[35] The issue then becomes whether it is appropriate to order that the 16 months be served as a conditional sentence of imprisonment. I consider that the least restrictive sentence should be imposed which is reasonable in the circumstances, and consistent with the harm done to the victim and the community by this offence.
[36] The Court of Appeal has noted that the offence of sexual assault encompasses a broad range of unlawful acts. A conditional sentence may be appropriate for offences at the lowest end of the range of unlawful conduct. Two acts of forced intercourse with a 17-year-old are not at the “lowest end of the range of unlawful conduct”. They are at the upper end, if not the actual ultimate, of unlawful conduct that would be prosecuted by summary conviction.
[37] This offence has had a significant impact on Ms. S-S. It was a serious violation of this teenager’s physical and sexual integrity.
[38] I find that in this case a conditional sentence of imprisonment would fail to meet the requirement for a conditional sentence set out in s 742.1(a), that such be consistent with the fundamental purpose and principles of sentencing set out in section 718 to 718.2. It would not be proportionate to the gravity of the offence, nor adequately meet the need for denunciation and deterrence. It would not be consistent with the law of sentencing for forced sexual intercourse as that has developed over recent years, with an increased awareness of such as an act of violence, and one with profound consequences for the victim. The seriousness of the offence and the violation of her sexual and physical integrity require a custodial sentence and would not be reflected in a sentence to be served in the community.
[39] Mr. Atta is sentenced to 16 months imprisonment.
[40] This will be followed by two years of probation. The only conditions of such beyond the statutory conditions are to report within 2 working days of release and thereafter as required, to take assessment and counselling as directed by his probation officer, to sign releases as necessary to monitor his compliance, and to have no communication directly or indirectly with Ms. S-S, including not to be within 50 m of anywhere he knows her to live, work, go to school or happen to be.
[41] Pursuant to s 110 he is prohibited from possessing any weapons for a period of 10 years.
[42] An order is made that Mr. Atta comply with the requirements of the Sex Offender Information Registry Act for a period of 10 years.
[43] As this is a primary designated offence, an order is made for the taking of bodily samples for forensic DNA analysis.
Released: July 3, 2025
Signed: Justice F.M. Finnestad