Warning and Non-Publication Order

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: 2025-02-20
COURT FILE No.: Brampton – Central West 3111 998 22 311103022

BETWEEN:
HIS MAJESTY THE KING
— AND —
E.T.

Reasons for Sentence

Before Justice A. Neil Singh
Sentencing Submissions Heard on January 16, 2025
Reasons for Judgment released on February 20, 2025

Christina Lynch — counsel for the Crown
Edmond Brown — counsel for the accused E.T.

SINGH J.:

Introduction

[1] After a trial, I found E.T. guilty of a single count of sexual assault with a weapon. The victim of the sexual assault was his former spouse, M.S. The couple’s only child from the union, E., was also victimized by E.T. on that day. These are my reasons for sentence.

Facts

[2] I gave detailed reasons for judgment on October 16, 2024. I will try not to repeat myself, but it is essential to provide a factual overview to properly understand my reasons.

1. On the morning of Saturday, July 16, 2022, M.S. took her son to his soccer practice.
2. E.T. was planning on leaving the country. He messaged M.S. and asked her to bring their son to see him. He asked her to not bring his father R.T. who had gone to the soccer field to watch his grandson play. She agreed.
3. E.T. was home alone.
4. E.T. texted M.S. and told her to let herself into the residence as he was getting ready. She did so when she arrived.
5. E.T. came downstairs and met M.S. and their son.
6. He then went into the basement and retrieved a large hunting knife. He was paranoid. He told M.S. that someone was trying to kill him. He locked the doors, closed the windows, and shuttered the curtains.
7. He unsheathed the knife and instructed M.S. to listen to him. He directed her and their son to sit on the floor. They listened.
8. E.T. told his son that he needed to see how sex was done and tried pulling up M.S.’s shirt. M.S. told E.T. “no.”
9. E.T., while holding the knife, told M.S. to listen to him. He turned the TV on for their child and told him to stay there.
10. E.T. directed M.S. to the upstairs bedroom. He followed her upstairs, knife in hand.
11. Once in his bedroom, E.T. put the knife down on the nightstand. He closed the windows and curtains. He told M.S. to listen to him. He removed her clothes. E.T. then picked up the knife and told M.S. that she was going to follow his rules.
12. E.T. proceeded to have forced vaginal intercourse with M.S. At one point, he removed his penis from her vagina and forced it into her mouth. He then put his penis back into her vagina and continued having sex with her.
13. During the intercourse, E.T. switched between holding the knife and putting it beside M.S. while he pinned her arms to the bed.
14. M.S. told E.T. “no” and to “stop” several times during the sexual assault.
15. While he was assaulting M.S., E.T. called down to his son to come “see.” He told his son that they needed to have a threesome.
16. The child came upstairs, saw his parents in the bed naked, then ran back downstairs.
17. M.S. was able to push E.T. off her shortly afterwards. She grabbed whatever clothing she could, leaving her underwear behind, and ran out of the room.
18. While she was able to get her pants on, M.S. ran out of the residence topless. She put her shirt on outside.
19. E.T. emerged at the front door with their son. He was holding the knife. He had the tip pointed to his neck.
20. M.S. called to her son, he ran to her, and they made their escape.

[3] I found that E.T. engaged in forced sexual intercourse knowing M.S did not consent. He used the knife to enable him to commit the offence by both threatening and intimidating M.S. with it.

Circumstances of E.T.

[4] A pre-sentence report was prepared and made an exhibit on the sentencing hearing. It provided extensive background on E.T.

[5] E.T. is 37 years old. He was 32 at the time of the offence. He was born in Albania. He immigrated to Canada when he was 11 years old. His family settled in Peel Region and continue to call it home today. He has one sibling, an older brother. E.T. resides with his parents.

[6] E.T. and those close to him describe an uneventful childhood in the most positive of ways. There were no significant traumatic events in his life growing up. He grew up in a supportive and loving household. E.T. enjoys a strong relationship with his parents and brother. This is clearly a close family unit. It is also clear that E.T. benefits from a very supportive extended family network.

[7] E.T. is very intelligent. He was a strong student. He graduated high school and completed an engineering degree, both with honours. He has been known to be a leader amongst his peers throughout his education. E.T. has always maintained gainful employment in his field, although he is currently laid off due to the winter months being the “off-season” in the construction field.

[8] E.T. and M.S. met in 2010. They were married in 2015. They had their only child, a son, in 2018. The marriage did not last. After a few separations and reconciliations, they separated shortly after the birth of their son. Their divorce was finalized in 2022.

[9] E.T. and his family describe his relationship with his son positively. E.T. did not see his son after he left the country in July 2022 until May 2024 when he was granted supervised access through the Family Court. After he was convicted for this matter, a restraining order was put in place through the Family Court. He hasn’t seen him since.

[10] E.T. has no issues with substance abuse. He does however have mental health issues. He was diagnosed with bipolar disorder in 2013. After his diagnosis, his mental health was unstable. He was hospitalized many times as a result, but never for more than one night at a time. Since December 2023 however, he has been on a new course of medication to manage his mental health issues. All indications are that this has led to a significant improvement. It has stabilized E.T. E.T. continues to be compliant with this new course of treatment.

Effect on the Victim

[11] M.S. submitted a victim impact statement to the Court. While she perseveres and endures for her son’s benefit, E.T.’s crime has clearly had a significant and profound negative impact upon her.

[12] The emotional impact has been great. She is constantly “on edge.” She is wrought with feelings of shame, anger, and guilt. She is suffering from PTSD. The overall impact has left M.S. struggling to function. The crime has also affected her son as their collective sense of security has been ruptured. M.S. and her son have engaged with counselling services, which has resulted in a negative financial impact upon them. She feels isolated and vulnerable.

[13] M.S. and E.T.’s son live in fear of him. In the victim impact statement, their son drew a picture of the knife he saw his father with on the date of the assault. Perhaps most profound, is the daily fear M.S. lives with about how this crime might affect her son as he grows up.

Position of the Parties

[14] The Crown recommends a penitentiary sentence of 6½ years less time spent in presentence custody. While in custody, they seek a non-communication Order with M.S. pursuant to s.743.2 of the Criminal Code. In addition, the Crown seeks a s.109 weapons prohibition for life, a DNA databank order, and a Sex Offender Information Registration Act (hereinafter “SOIRA”) order for a period of 20 years.

[15] Mr. Brown, on behalf of E.T., concedes that a penitentiary jail sentence is appropriate. However, he asks the Court to exercise restraint. Given E.T. has no criminal record, the defence submits that the appropriate range is three to five years for an instance of forced sexual intercourse in the context of an intimate partner relationship. Mr. Brown takes issue with only one of the requested ancillary orders: the SOIRA order. Mr. Brown submits since E.T. is still relatively young, the impact that the SOIRA order is going to have on his future employment prospects would be grossly disproportionate to the public interest in making the order.

Analysis

Sentencing Objectives and Principles

[16] The goal of any criminal sentence is to protect society, contribute to respect for the law and help maintain a just, peaceful, and safe society.

[17] Every sentence I impose must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[18] In sentencing offenders, the sanctions imposed by the Court must consider the following objectives:

1. To denounce unlawful conduct
2. To deter the offender and other persons from committing similar offences
3. To separate offenders from society, where necessary
4. To assist in rehabilitating offenders
5. To provide reparations for harm done to victims or the community
6. To promote a sense of responsibility in the offenders and an acknowledgement of the harm done to victims or the community.

[19] In arriving at an appropriate sentence, I must also consider the relevant aggravating and mitigating circumstances.

[20] The aggravating factors are incredibly aggravating. They include:

1. The circumstances of the offence:

   • Forced vaginal and oral penetration;
   • The victim of the sexual assault was a former intimate partner [1];
   • The use of a knife to threaten, intimidate, and facilitate the sexual assault [2]; and
   • The involvement of E.T. and M.S.’s son in the attack by showing him the knife, telling him he needs to see how sex is done, calling him up to his bedroom where he was sexually assaulting his mother, and telling him they need to have a threesome [3].
   • The breach of trust E.T. engaged in against both M.S. and their son in committing his crime against them.

2. The profound and lasting impact the offence has had on M.S. [4]

3. While it is unknown to what extent, the impact of the offences on E.T. and M.S.’s son is aggravating. From his drawing of the knife used in the victim impact statement, I find that the impact on the child is profound and lasting. Even though he was only 4 years old at the time, this child still remembers that day approximately two and a half years later.

[21] To be clear, I find that there are two readily identifiable victims in this case: M.S. and her son. In addition to M.S., E.T. endangered, abused, and victimized his child during this protracted and horrific sexual assault. While E.T. may not have physically harmed his child, the psychological harm cannot be discounted and must be considered by this Court.

[22] The mitigating factors are:

1. E.T. has no criminal record.
2. E.T.’s background and personal circumstances:
   • E.T. has a very supportive family.
   • He had a stable and happy upbringing.
   • E.T. enjoys a close and healthy relationship with his parents, and his brother.
   • E.T. completed high school with honours and attended university graduating with a degree in civil engineering. He excelled academically in all his educational endeavours.
   • E.T. has been seen as a leader amongst his peers.
   • E.T. has maintained steady and consistent employment in his field of study for many years.
3. E.T.’s mental health issues:
   • E.T. was diagnosed with bipolar disorder in 2013.
   • His mental health status had been unstable for many years since his diagnosis.
   • Since December 2023, E.T. started a new course of treatment that has brought him the stability he previously lacked. This course of treatment has led to significant improvement regarding his mental health.
   • E.T. is compliant and willing to continue with his medical treatment for his mental health issues.

[23] One point of concern however is E.T.’s continued lack of insight into his mental health issues. His psychiatrist noted that he has a lack of “insight regarding the presence of bipolar disorder and the intermittent exacerbations of paranoia involved.” His lack of insight into his mental health is a source of concern. On the one hand, this lack of insight might call into question E.T.’s stated commitment to continuing his treatment. On the other, however, I recognize that E.T. has been compliant with this course of treatment for approximately 14 months. On a balancing, I find that E.T. is committed to continuing the treatment for his mental health issues.

[24] I also note that E.T. exercised his constitutional right to a trial in this matter. That is in no way an aggravating factor; however, the absence of a guilty plea is an absence of a mitigating factor. E.T.’s continued denial of responsibility for his criminality is relevant when considering his rehabilitative prospects.

Discussion

[25] All sentencing objectives are to be given consideration in coming to an appropriate sentence. It is well known, however, that in cases involving sexual violence, intimate partner violence, and the victimization of children, the predominant sentencing principles are denunciation and deterrence. At the same time, I recognize that E.T. is a first offender and I must consider his rehabilitation and reintegration into the community. I acknowledge that I must also exercise restraint. I must sentence E.T. to the least restrictive sentence available to meet the principles and objectives of sentencing.

[26] The Crown provided a casebook in support of their position. While the cases are helpful in establishing the appropriate range for such sentences, I recognize that sentencing is a highly individualized exercise.

[27] Absent some significant mitigating factor, the forced penetration of another person will typically attract a sentence of at least three years in jail. The typical range is one of three to five years. Of course, this is simply a range, a tool to assist sentencing judges on where to start [5].

[28] In Sutherland [6], the accused received a global 6-year sentence for sexual assault with a weapon (knife), assault causing bodily harm, theft under, and fail to comply with probation. It was after trial. The Court of Appeal found that the sentence was within the appropriate range. I note however, that the accused was convicted of two violent offences, had a criminal record, and was on probation at the time he committed the index offences.

[29] In Richards [7], the accused was sentenced to 6 years for sexual assault with a weapon. The accused had assaulted two vulnerable sex workers. He was prepared for a confrontation when he met with them. The victim of the sexual assault was orally, vaginally, and anally penetrated. The assault took place outdoors in an area frequented by other members of the public.

[30] In S.S. [8], the accused used a knife, even holding it to the victim’s throat and threatened to kill her if she didn’t submit to him. The assault included forced oral, vaginal, and attempted anal penetration. The accused also forced the victim to smoke crack cocaine against her will during the ordeal. Although not stated, it appears that this was a lengthy, drawn-out assault. The Court notes that the accused switched between forcing oral sex and attempting anal penetration approximately 8-10 times before forcing vaginal penetration on the victim. The victim was a vulnerable woman who spoke limited English and was sexually assaulted by the accused at her place of employment. Importantly, the accused pled guilty. The accused was sentenced to 6½ years in prison.

[31] While no case is exactly on point, these cases helpfully demonstrate that where the sexual violence involves the use of a weapon, the range of sentences necessarily trend upward from the low end of the three-to-five-year range I have referred to, above.

[32] In E.T.’s case, I find his mental health status an important consideration. I accept that at the time he committed his crime, he was suffering from the serious and apparent effects of mental illness. That is abundantly clear from the evidentiary record. It is also supported by his psychiatrist who stated that his illness includes the “intermittent exacerbation of paranoia.” I find that E.T.’s mental illness was a contributing factor to his behaviour and decision-making. It therefore reduces his moral blameworthiness. At the same time, and for the obvious reasons I have stated above, I find that the gravity of the offence is very high.

[33] I also find that E.T.’s lack of remorse and continued denial of responsibility for his criminality negatively impact his rehabilitative prospects. In this regard, there is a need for greater specific deterrence than might otherwise be required.

SOIRA

[34] The imposition of the requested SOIRA order is discretionary. A SOIRA order is only mandatory for this offence where the Crown proceeds by indictment, the sentence is a term of imprisonment of two years or more; and the victim is under 18 years old [9]. Alternatively, a SOIRA order is mandatory if the accused has been previously convicted of a designated offence or was previously subject to comply with a SOIRA Order.

[35] Section 490.012(3) of the Criminal Code directs me to make the a SOIRA order unless I am satisfied that accused 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 this 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 this Act.

[36] Section 490.012(4) of the Criminal Code sets out a list of factors to be considered. I have done so. I note the gravity of the offence, the use of a weapon in the commission of the offence, the fact that a child was also victimized by E.T., and that E.T. lacks insight into his mental health diagnosis and his criminality. I balance these factors against the fact that the offence was perpetrated against a victim known to E.T., along with the fact that E.T. has no criminal record.

[37] After considering all the factors at play, I find that E.T. has failed to establish either of the exceptions to the making of a SOIRA order. I will therefore impose a SOIRA order as required under s.490.012(3) of the Criminal Code.

[38] In making the SOIRA order, I recognize the collateral consequences that E.T. will face because of this requirement, particularly as it relates to employment. Because of this, a SOIRA order will assist in specifically deterring E.T to a limited degree. I have considered this in determining the appropriate length of imprisonment E.T. must serve.

Sentence

[39] When balancing all the principles and objectives of sentencing and considering the relevant aggravating and mitigating circumstances, I find that the least restrictive proportionate sentence I can impose is 5½ years jail.

[40] E.T., you will be sentenced to a term of imprisonment of 5½ years or 2008 days in a penitentiary [10]. I will deduct credit for 20 days spent in presentence custody (that is 13 real days credited at a rate of 1½ days for every day spent in custody). The remaining time to serve is 1,988 days.

[41] You will also:

1. be prohibited from possessing weapons for life pursuant to s.109 of the Criminal Code;
2. provide a sample of your DNA today while in custody pursuant to s.487.04(a) of the Criminal Code;
3. be subject to the terms of a SOIRA order for a period of 20 years pursuant to s.490.013(2)(b) of the Criminal Code; and
4. be prohibited from communicating with M.S. while in custody pursuant to s.743.21 of the Criminal Code.

Conclusion

[42] I recognize that no sentence I impose will ever make things better for M.S. or her son. I cannot make them whole again. I can never undo or fix the trauma they have been forced to grapple with. Their lives have been forever altered. I can only hope they continue to persevere. I wish them all the best in their journey to recovery and wellness.

[43] E.T., I hope that eventually you come to terms with your crime. I hope you recognize how incredibly wrong your actions were and the harm you caused on that day, and since. It is only then that you will be able to learn and grow from this experience. You are still young and there is much ahead of you. I wish you the very best going forward. Take care, sir.

Released: February 20, 2025
Signed: Justice A. Neil Singh

Footnotes

[1] See s.718.2(a)(ii) of the Criminal Code.
[2] While sexual assault with a weapon has a longer maximum available sentence than sexual assault simpliciter, there is no mandatory minimum that considers the use of a weapon in the offence. The use of a weapon is therefore appropriately considered as an aggravating factor on sentence.
[3] See s.718.2(a)(ii.1) and s.718.2(a)(iii) of the Criminal Code.
[4] See s.718.2(a)(iii.1) of the Criminal Code.
[5] R v. A.J.K., 2022 ONCA 487 at paras 76-77.
[6] Sutherland, 2016 ONCA 674; 2014 ONCJ 551.
[7] Richards, 2016 ONSC 2940.
[8] S.S., 2012 ONCJ 482.
[9] The victim, M.S., was over 18 years old at the time of the offence.
[10] To arrive at the total number of days, I multiplied 365.25 days by 5.5 years, and rounded down to the nearest whole number (365.25 x 5.5 = 2008.875, rounded down to 2008 days).