COURT FILE AND PARTIES

COURT FILE NO.: 86/13

DATE: 20150703

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Her Majesty The Queen v. Christopher Smith

BEFORE: Mr. Justice K.L. Campbell

COUNSEL: Darren Hogan, for the Crown

Christopher Smith, the unrepresented accused

HEARD: June 12, 2015

Subject to any further Order of a court of competent jurisdiction, an Order has been made in this proceeding, pursuant to s. 486.4 of the Criminal Code, directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast or transmitted in any way.

REASONS FOR DECISION

[Summary Conviction Appeal]

A. Overview

[1] The accused, Christopher Smith, was charged with allegedly sexually assaulting a young female complainant on the night of February 13, 2012, while she slept in his basement apartment in Toronto. The Crown elected to proceed by way of summary conviction. The accused was tried by the Honourable Mr. Justice J. Ritchie of the Ontario Court of Justice.

[2] The complainant and the accused were the main witnesses heard in this case. Essentially, the complainant testified that the accused raped her while she slept. The accused, on the other hand, testified that the complainant initiated and consciously consented to all of the sexual activities that took place between them. The trial judge accepted the evidence of the complainant, rejected the testimony of the accused and concluded that he was satisfied of the accused’s guilt beyond a reasonable doubt.

[3] At the sentencing hearing, the Crown sought the imposition of a sentence at the “higher” end of the range of six to nine months of incarceration and a period of probation. Defence counsel, on the other hand, maintaining the innocence of the accused, urged the trial judge to either stay the sentencing proceedings or impose an absolute discharge. In the result, however, the trial judge sentenced the accused to a 16 month conditional sentence. The trial judge also made the requested ancillary sentencing orders.

[4] The accused now appeals against his conviction, while the Crown appeals against the sentence imposed. For the reasons that follow, the appeal against conviction is dismissed, but the appeal against sentence is allowed, and the accused is sentenced to a nine-month reformatory term of imprisonment and a three-year term of probation.

B. The Relevant Facts

1. The Agreed Background Facts

[5] At the time of the alleged offence, the complainant was 18 years old, homeless, living on social assistance, and abusing “crystal meth.” Her boyfriend had been sent to jail, and had been incarcerated for approximately one month. The accused was 25 years of age, and was also living on social assistance. He was related to the complainant’s boyfriend, in that they were cousins. The accused had known the complainant for some time, and he offered to let the complainant stay in his apartment for the night. The complainant had just been evicted from the place at which she had temporarily been staying, and she needed a place to stay. The complainant’s boyfriend had told the accused to take care of her while he was in jail. Her daily use of crystal meth over the previous weeks had kept her stimulated and awake, and had left her physically exhausted. The accused was aware that the complainant had been on a crystal meth binge, and knew that she was very tired as a result.

[6] Late on the night of the alleged offence, when the accused and the complainant finally arrived at the small, one-room basement apartment where the accused lived, they both got dressed for bed. The complainant was wearing long johns and a t-shirt. The accused was wearing boxer shorts and a t-shirt. They both had something to eat, talked together, and then got under the covers of the twin-sized futon, which was the only place to sleep in the apartment. Earlier that night, the complainant had told the accused that nothing was going to happen between them, and that she was just going to sleep. The complainant had been sexually abused as a child and, as a result, had difficulty with sexual intimacy and had remained a virgin. Sex had always been a “really rough area” for her. That night, the complainant also made sure that the accused told his own girlfriend that the complainant was staying over at his apartment.

[7] As to the events that took place later that night, the testimony of the complainant and the accused sharply diverged.

2. The Complainant’s Version of the Events

[8] According to the complainant, she went to sleep around midnight, but was awakened later by the accused. He was standing next to the bed and seemed to be “freaking out” about something. He was pacing, tugging at his hair, and seemed “frantic.” Upon waking, the complainant was disoriented, but realized that the long johns that she had been wearing when she went to bed had been partially removed. They had been pulled down halfway to her knees, and one pant leg was completely off. Her sock on that same leg had also been removed. The complainant asked: “What happened?” In response, the accused said: “Oh, you don’t remember what happened? Alright, never mind, nothing happened.”

[9] When the complainant persisted in questioning the accused as to what happened, the accused aggressively told her: “We had sex.” According to the complainant, she responded, “What do you mean we had sex? I don’t even have sex with [my boyfriend].” The accused then told the complainant, “You can’t say I raped you, they’ll put me in jail.”

[10] When the complainant said that she had to tell her boyfriend about the incident, the accused tried to convince her that this was not necessary and that it could remain a secret. The complainant made it clear that she was not hiding anything from her boyfriend, and was going to tell him what had happened. The accused reacted angrily to this news. The complainant then locked herself in the bathroom, separating herself from the accused, and only later left the apartment after the accused had gone to sleep.

[11] Later that morning the complainant, still in a very distraught and “horrible” emotional condition, crying and hyperventilating, contacted a female friend and complained about the sexual assault. Her friend confirmed that when the complainant called, she was “incredibly distressed,” and was so upset and crying so heavily that she was “not very coherent.” She had never before seen the complainant so distraught.

[12] The complainant testified that she “felt kind of sore” in her vaginal area. Subsequently, with the encouragement of her friend, the complainant went to the hospital to have a “rape kit” performed, and contacted the police. She wanted to try to ensure that the accused never assaulted anyone else. Throughout her trial testimony, the complainant maintained that she had not engaged in consensual intercourse with the accused, but rather had been raped by him while she was asleep.

3. The Testimony of the Accused

[13] According to the testimony of the accused, at approximately 1:00 a.m., as he and the complainant were under the covers together on the futon, the complainant started to “come on” to him sexually. She cuddled up to him, started “spooning” with him, and pressed her buttocks against his groin. Initially, the accused moved away and repositioned himself so that he could sleep comfortably. However, some 15 minutes later, the complainant started to press up against him again. She started to move her buttocks against his groin. The accused responded by rubbing her leg.

[14] In his testimony, the accused described an escalating series of sexual activities between the parties that culminated in an act of consensual sexual intercourse. According to the accused, the complainant was not only conscious during these activities, but was an enthusiastic and active participant. She made eye contact with him, kissed him, rubbed his back and legs, removed her own pants (at his request), spread her legs and engaged in fully consensual sexual intercourse with the accused for some three to five minutes.

[15] According to the accused, the complainant was at no point asleep or unconscious, but rather was at all times fully awake and very receptive to these sexual activities, as evidenced by her “pleasurable noises” throughout. Indeed, the accused testified that he was “just giving her what she wanted.” After he ejaculated, the complainant pulled her tights back on and they stayed on the futon together. Shortly thereafter, the accused received a text message from his girlfriend. He phoned her back, and they had a brief conversation.

[16] According to the accused, when he later raised the subject of whether they should tell the complainant’s boyfriend about what had happened, the complainant seemed confused and started asking “what happened?” When the accused reminded her that they “had sex,” the complainant professed no recollection of that incident, and said “No, I don’t do that sort of stuff.” The accused was “confused” and somewhat “panicked” by this, as their sexual intercourse had happened just five minutes earlier and was “pretty fresh in [his] mind,” and the complainant had been “awake and participating.” The complainant also mentioned that she had been “raped before.” This comment scared the accused as it insinuated that he had raped her.

[17] According to the accused, it was at that point that the complainant went to the bathroom and closed the door. The accused asked her if she was “okay” as she was acting “very erratic” and was saying things that did not make much sense. The accused then told the complainant that she should not tell her boyfriend about what had happened as he was a jealous, violent person. Eventually, the accused left the complainant in the bathroom and went to sleep. When he awoke the next morning at about 7:00 a.m., the complainant was no longer in the apartment.

[18] The accused maintained throughout his trial testimony that the complainant was conscious and had consented to all of the sexual activity that took place between them, and he denied that he had taken advantage of the complainant while she was asleep or unconscious. Indeed, at one point in his evidence, the accused testified that the complainant’s boyfriend had told him, on the day that he offered to have the complainant sleep at his apartment, that if he and the complainant ended up having sex, he would be “fine” and “alright” with that happening. The accused did not understand this to be an “invitation” to have sex with the complainant, but he maintained that the complainant’s boyfriend had told him that he would be “okay” with them having sex if that was what ended up happening.

C. The Appeal Against Conviction

[19] The accused was unrepresented on the appeal, and argued his appeal against conviction on his own behalf. He maintained that he was innocent of the alleged offence, and he argued that it was wrong and unfair for the trial judge to accept the evidence of the complainant, while rejecting his testimony as to what took place. Essentially, the accused attacked the reasonableness of the verdict reached by the trial judge. Having reviewed the entire transcript of the trial proceedings in this case, I see no proper justification, factual or legal, for interfering with the verdict reached by the trial judge.

[20] In his reasons for judgment, Ritchie J. fully and accurately reviewed the important evidence. He correctly noted that the burden of proof was, at all times, upon the Crown, and he expressly referred to the application of the “formula” articulated by the Supreme Court of Canada in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, at pp. 757-758.

[21] In his reasons, the trial judge detailed the “main factors” that convinced him that “the incident took place exactly as [the complainant] described.” The trial judge concluded that it would have been impossible for the complainant to have concocted such a “highly detailed” and “intricate story” and remained “consistent” in her answers throughout her testimony, and remained so “unshaken” in cross-examination. The trial judge described the complainant, in part, as an intelligent young woman, who was impressive in her honesty and sincerity, and who testified to “many believable details” and who gave many answers that had “a strong ring of truth.” The trial judge provided numerous examples from the evidence in this regard. The trial judge also noted the evidence concerning the emotional demeanour of the complainant following the alleged offence, and the corroborative testimony of the complainant’s friend who saw her some hours later. The trial judge rejected the suggestion that the complainant had a motive to lie, concluding that there was “no credible evidence supporting the defence theory” that the complainant “made a false allegation of sexual assault” against the accused “because she feared her boyfriend.” In summary, the trial judge accepted the complainant’s evidence, finding that it “made complete sense and was entirely believable,” that the complainant gave “compelling and convincing testimony,” and that she was a “credible witness who gave truthful and reliable evidence.”

[22] In his reasons for judgment, the trial judge concluded that the testimony of the accused was “not truthful.” He based this conclusion on the accused’s “demeanour” in the witness box, and upon consideration of his testimony in light of all of the evidence. In this regard, Ritchie J. cited the decision in R. v. R.D. (2004), 2004 32144 (ON CA), 186 C.C.C. (3d) 351, 186 O.A.C. 388, at para. 13, in support of the proposition that the testimony of an accused must “be assessed having regard to all of the evidence, and not just in isolation,” and that this “correct approach” to assessing the credibility of an accused requires that his evidence not be “viewed in isolation, divorced from the context or other evidence in the case.” The trial judge then detailed the various considerations that caused him to disbelieve and “reject” the testimony of the accused as “not truthful or credible.” The trial judge also expressly indicated that the testimony of the accused did not leave him with a reasonable doubt.

[23] Ritchie J. stated that, after carefully considering all of the evidence, he found, amongst other things, the following facts:

• The complainant was in an unconscious state (sleeping or otherwise) during the course of the sexual activity. The complainant did not participate in the sexual activity as the accused alleged, but rather simply remained on the bed either unconscious or in a very deep and sound sleep.

• The complainant was a virgin at the time that the accused engaged in sexual intercourse with her.

• The complainant did not know that the accused had sexual intercourse with her until she awoke to find that her clothing had been removed and, in response to her inquiries, the accused told her that he had sex with her.

• The accused told the complainant that she could not say that he “raped” her or he would be jailed.

• The complainant had, on an earlier occasion, rejected an effort by the accused to kiss her, and she had told him, earlier on the day of the sexual assault, that she “wouldn’t do anything” with him, and insisted that he tell his girlfriend that she was staying at his apartment.

[24] In ultimately concluding that the accused was guilty of the alleged offence, Ritchie J. accurately reiterated the burden of proof on the Crown to prove the alleged guilt of the accused beyond a reasonable doubt, observing that if, at any time, there was a reasonable doubt, then the accused must be found not guilty. The trial judge concluded, however, that on the totality of the evidence, he was satisfied that the Crown had discharged its burden of establishing the guilt of the accused beyond a reasonable doubt.

[25] In my view, the trial judge was entitled to draw the conclusions he did regarding the credibility and reliability of the complainant and the accused, and to reach the verdict he did regarding the alleged offence. In short, applying the governing standard of appellate review, the verdict reached by the trial judge, that the appellant was guilty of sexual assault, was a reasonable verdict. See R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168, at p. 185; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at paras. 36, 40; R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, at para. 28; R. v. Tomlinson, 2014 ONCA 158, 307 C.C.C. (3d) 36, at para. 175; R. v. Wills, 2014 ONCA 178, 308 C.C.C. (3d) 109, at para. 29, affirmed, 2014 SCC 73; R. v. Magno, 2015 ONCA 111, [2015] O.J. No. 725, at paras. 71-74; R. v. Dodd, 2015 ONCA 286, [2015] O.J. No. 2129, at paras. 55-60. Accordingly, the appeal by the accused against his conviction must be dismissed.

D. The Appeal Against Sentence

1. Introduction

[26] The Crown appeals against the 16 month conditional sentence imposed by the trial judge. The Crown argues that the trial judge erred in failing to impose the sentence sought, namely, a custodial term at the higher end of the range of six to nine months imprisonment.

2. The Deferential Standard of Appellate Review

[27] Sentences imposed by trial judges are, of course, entitled to great deference. In the absence of some error in principle, a failure to consider a relevant factor, or an over-emphasis of appropriate factors, the sentence imposed by a trial judge should not be interfered with on appeal. Indeed, sentences imposed at trial should only be altered on appeal when they are clearly unreasonable, demonstrably unfit, or a substantial and marked departure from sentences customarily imposed for similar offenders committing similar crimes. See R. v. Shropshire, 1995 47 (SCC), [1995] 4 S.C.R. 227, at paras. 46-50; R. v. C.A.M., 1996 230 (SCC), [1996] 1 S.C.R. 500, at paras. 89-94; R. v. G.W., 1999 668 (SCC), [1999] 3 S.C.R. 597, at paras. 18-19; R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at paras. 14-15; R. v. Ramage, 2010 ONCA 488, 257 C.C.C. (3d) 261, at paras. 69-73; R. v. H.S., 2014 ONCA 323, [2014] O.J. No. 1974, at para. 23.

[28] This same deferential standard of appellate review applies not only to the duration of the sentence imposed, but also to the type of sentence imposed. Accordingly, the decision of a trial judge regarding whether to impose a conditional sentence of imprisonment or an actual term of imprisonment upon an accused must be viewed through this same highly deferential lens of appellate review. See R. v. McDonnell, 1997 389 (SCC), [1997] 1 S.C.R. 948, at paras. 14-17, 46; R. v. J.C.T. (1998), 1998 17661 (ON CA), 124 C.C.C. (3d) 385 (Ont.C.A.), at paras. 12-14.

3. Additional Facts Relevant to Sentencing

[29] In her victim impact statement, the complainant described how this crime had affected her emotionally. She stated that being raped in her sleep sent her already brewing trust and intimacy issues, as well as her sleep problems, spiraling downward. Noting that her relationship with her boyfriend had ended, the complainant stated that the offence had caused other problems to “boil over.” She stated that she was “broken hearted and empty,” and lacking ambition to do anything positive. The complainant indicated that, no matter what sentence was imposed, the accused had “won” because he “got what he wanted.” She stated that she thought that she would “never fully heal” from this offence, as anytime she finds herself in an intimate situation she becomes “tense.” The complainant explained that the accused “ruined a big part” of her and her life, and stated that she would “never truly be happy or okay.” She stated that she truly loathed the accused, was scared of him and his family, and did not want to have contact with him ever again.

[30] The pre-sentence report summarized the following circumstances relevant to the sentencing of the accused:

• While he is now nearly 29 years of age, at the time of sentencing the accused was almost 27 years of age, and had no criminal record.

• The accused grew up in a stable and loving home environment. Once the accused began attending high school, he began to associate with a “negative peer group” and frequently skipped classes. He also began to experiment with various illicit drugs. Ultimately, the accused was expelled from school in grade 11 for various behavioural issues. He has no plans to pursue further education, but would like to acquire a skilled trade, and has held a series of “odd jobs” and part-time and “seasonal employment” since leaving high school. He appears to be a responsible employee. At present, however, he is unemployed.

• The accused is single and without dependents. He has had long term relationships with women in the past. His mother believes that he makes poor decisions when it comes to romantic relationships, and that he needs to “grow up and become more responsible.”

• The accused claims that he has been diagnosed as manic-depressive, and he periodically contemplates suicide. He has a “negative outlook” on everything and imagines the “worst possible scenarios for his future.”

• At the time of sentencing, the accused was required, by the terms of his judicial interim release order, to live with his parents. However, their relationship has become strained and unpleasant.

• The accused told the author of the pre-sentence report that he acknowledges responsibility, however, does not see his actions in this event as criminal. While expressing his awareness that “non-consensual sex is wrong,” the accused explained that he had no intention of harming the complainant. The accused appears to “lack insight regarding his actions that led to his conviction.”

• The offence appears to be “out of character” for the accused, and he has had many relationships with women in which he has not been sexually aggressive towards his partners.

4. Analysis

[31] This case presented a difficult sentencing problem for the trial judge. The sexual offence committed by the accused was a very serious one. Essentially, the accused raped a virginal and vulnerable young woman in his home, while she was in a deep sleep due to her recent drug binge. The accused took sexual advantage of a homeless young woman, who trusted him as a friend and as a relative of her jailed boyfriend. The offence had a predictably traumatic emotional impact upon the complainant. The gravity of the offence required the imposition of a proportional sentence that effectively denounced the crime committed by the accused, and which generally deterred men from sexually assaulting defenceless and vulnerable women who are soundly asleep, significantly intoxicated, unconscious or otherwise incapable of providing any consent to sexual activities. At the same time, the accused was a relatively youthful first offender. He had no prior criminal record, and the offence seemed entirely out of character. The pre-sentence report favourably portrayed the accused in a relatively positive light, and caused the trial judge to conclude that this was a case involving “a good person who did a bad thing.” In these circumstances, the principle of rehabilitation was of primary importance. In sentencing the accused, the trial judge was obliged to carefully balance all of these competing considerations.

[32] Generally speaking, in cases where the accused has been prosecuted by indictment, the usual range of sentence for this type of invasive sexual assault on a sleeping or unconscious victim is somewhere between an upper reformatory term of imprisonment and a lower penitentiary term of imprisonment (i.e. between 18 months and three years). For example, in R. v. Shalley, 2005 MBCA 150, 201 Man.R. (2d) 142, Twaddle J.A., delivering the judgment of the Manitoba Court of Appeal, stated, at para. 15:

The appropriate range of sentences for “sexual assault involving non-consensual intercourse with a woman asleep or unconscious, assuming an offender of previous good character who pleads guilty and expresses remorse, is two to three years imprisonment” per Vertes J. in R. v. B.A.M., 2004 NWTSC 74, at para. 18.

[33] Many other judicial authorities similarly support this general range of sentence. See also R. v. Kennedy, 1999 3808 (ON CA), [1999] O.J. No. 4278, 140 C.C.C. (3d) 378 (C.A.), at paras. 2-6, 23 [maximum reformatory term of imprisonment imposed on appeal]; R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, at paras. 7-8, 10-12, 47-48 [a 20 month reformatory term of imprisonment was fit; the conditional sentence request was rejected]; R. v. H.H., 2002 41397 (ON CA), [2002] O.J. No. 1509, 158 O.A.C. 272 (C.A.), at paras. 1-6 [conditional sentence set aside; accused sentenced to 18 months imprisonment]; R. v. J.R. and J.D., 2008 ONCA 200, 59 C.R. (6th) 158, at paras. 2, 21-26 [two years penitentiary imprisonment; conditional sentence request rejected]; R. v. Colbourne, 2013 ONCA 308, [2013] O.J. No. 2095, at paras. 1-5, 17 [14 months reformatory imprisonment was at the “low end of the range”]; R. v. Rand, 2012 ONCA 731, 307 O.A.C. 64, at paras. 3-9, 19 [four year penitentiary sentence was well within the appropriate range]; R. v. Ouellet, 2014 ONSC 5387, [2014] O.J. No. 4942, at paras. 12-18, 25, 29, 33-40, 43-45 [30 months imprisonment].

[34] Where the Crown elects to proceed, however, by way of summary conviction, against an accused charged with such a sexual assault offence, somewhat lesser sentences are required. According to s. 271(b) of the Criminal Code, the maximum potential sentence for any sexual assault where the Crown proceeds by summary conviction is 18 months imprisonment. At the same time, where the Crown elects to proceed by way of summary conviction, the sentencing principles outlined in Part XXIII of the Criminal Code still apply, and the court is obliged to determine the appropriate sentence for that offence for that mode of procedure. Importantly, the “worst offender committing the worst offence principle” does not operate to constrain the imposition of the maximum sentence in summary conviction matters where the maximum sentence would otherwise be appropriate having regard to the principles articulated in Part XXIII of the Code. See R. v. Solowan, 2008 SCC 62, [2008] 3 S.C.R. 309, 237 C.C.C. (3d) 129, at paras. 3, 10, 15-16.

[35] For example, in R. v. J.W.M., [2004] O.J. No. 1295, [2004] O.T.C. 290 (S.C.J.), the accused was convicted, in summary conviction proceedings, of sexually assaulting a younger co-worker following a staff Christmas party. The female complainant had become very intoxicated and the accused eventually took her to his home, undressed her and had sexual intercourse with her while she was unconscious. The complainant remembered nothing of the sexual activities, but woke up naked the next morning in the accused’s bed. The accused, who had a relatively minor narcotics record, was given the maximum sentence of 18 months imprisonment. Defence counsel had sought the imposition of a conditional sentence, but the trial judge rejected that submission. On summary conviction appeal, the sentence appeal was dismissed. The court concluded that the maximum sentence was fit and appropriate notwithstanding the fact that the accused was not the “worst offender” and the sexual assault was not the “worst offence.”

[36] Conditional sentences have, on occasion, and in exceptional circumstances, been imposed for offences of sexual assault committed upon unconscious or semi-conscious complainants. See, for example R. v. Killam (1999), 1999 2489 (ON CA), 126 O.A.C. 281, 29 C.R. (5th) 147 (C.A.); R. v. Nikkanen (1999), 1999 7339 (ON CA), 125 O.A.C. 353, 140 C.C.C. (3d) 423 (C.A.); R. v. Pecoskie, 2002 41523 (ON CA), [2002] O.J. No. 4056, 170 O.A.C. 396 (C.A.). There is, however, no gainsaying the reality that conditional sentences, even those with significant restrictions on liberty and punitive terms, do not have the same denunciatory effect as a period of actual imprisonment. Accordingly, it is not surprising that, in the great majority of cases, a significant term of actual imprisonment is imposed upon an accused in such circumstances.

[37] In my view, the trial judge erred in principle in failing to appropriately balance all of the relevant sentencing considerations, and this led him to impose an unfit sentence. More particularly, in my view, the trial judge failed to consider the importance of denunciation, and overemphasized the significance of rehabilitation. This led to the imposition of a sentence that was not proportionate to the gravity of the offence and the degree of responsibility of the offender.

[38] In his reasons for sentence, the trial judge properly considered the nature of the offence, including its many aggravating circumstances and its impact upon the complainant. The trial judge also properly considered the personal circumstances of the accused, including his positive prospects for rehabilitation. However, when he outlined the relevant sentencing factors that needed to be balanced, the trial judge failed to consider the importance of denunciation. He made no mention of it anywhere in his reasons. He noted that specific deterrence was “not a significant factor.” He stated that “general deterrence” was “obviously” an “important consideration.” The trial judge acknowledged that he had “started from the same position as the Crown” thinking that an offence of this nature “called for three years in jail, or at least a very significant penalty in terms of jail time,” but that the positive pre-sentence report had a “strong impact” on his thinking and had “turned [his] thinking around completely.” He then concluded that the accused was a good candidate for a conditional sentence, imposing that sentence in spite of the fact that neither of the parties had suggested this as an appropriate disposition. In so doing, the trial judge stated that he was “not at all convinced that jail would serve any useful purpose” in the circumstances of this case.

[39] In failing to mention denunciation, the trial judge failed to consider one of the most important sentencing considerations in these types of cases. As s. 718(a) of the Criminal Code makes clear, one of the critical objectives of sentencing is “to denounce unlawful conduct.” This objective is especially important in sexual assault cases like the present one, where the accused took advantage of a vulnerable young virgin, and had unprotected sexual intercourse with her, to ejaculation, while she slept in his home. Robbing her of her virginity in this sordid fashion had predictably traumatic and long-term emotional consequences for the complainant. In such circumstances, the courts are obliged to clearly denounce this kind of serious criminal conduct by the imposition of sentences that are proportional to the gravity of the offence and the degree of responsibility of the offender. Men must understand that women who are deeply asleep, significantly intoxicated, unconscious, or otherwise obviously incapable of consenting to any kind of sexual activity must not be opportunistically victimized as their inert sexual playmates. Accordingly, the sentences imposed in such cases must send that clear and unmistakable message.

[40] That is not to say that denunciation is the only important sentencing consideration, or that it somehow trumps the other relevant sentencing principles. It is only to say that, in these types of cases, denunciation is of critical importance, and it must find effective expression in the sentence that is ultimately imposed. In my view, that important sentencing objective was not expressed by the trial judge in his reasons, and was given no effective voice through the conditional sentence that was imposed.

[41] There is no doubt that the rehabilitation of the accused, a relatively youthful first offender, was a factor of great importance in sentencing. The trial judge was obliged to consider it and to give it full weight. In my view, however, in his reasons for sentence and in the conditional sentence ultimately imposed, the trial judge permitted the rehabilitation of the accused to dwarf all of the other relevant sentencing considerations, and singularly dictate the outcome of the sentencing hearing. This is evident from the trial judge’s acknowledged 180 degree about-face from initially believing that the offence “called for three years in jail, or at least a very significant penalty in terms of jail time” to concluding that a 16 month conditional sentence was appropriate. As the trial judge acknowledged, this abrupt turn-around in his thinking was the result of the “strong impact” of the pre-sentence report. In imposing the conditional sentence, the trial judge stated that he was “not at all convinced that jail would serve any useful purpose” in the circumstances of this case. This reveals, in my view, the trial judge’s near-exclusive focus on the rehabilitation of the accused, and his failure to appreciate that the imposition of a significant jail term would effectively denounce the crime committed by the accused, and would deter others from the commission of such crimes.

[42] As a result of these errors in principle, appellate interference is justified in the circumstances of this case notwithstanding the great deference that would ordinarily be due and appropriate to the sentencing decision of the experienced trial judge. In my view, the appeal should be allowed, the conditional sentence set aside, and the accused sentenced to nine months imprisonment and a three-year term of probation.

[43] The accused was sentenced on June 12, 2013. While nearly two years have passed since that date, the accused has only served approximately two months of his 16 month conditional sentence. He was granted bail pending appeal on June 14, 2013, just two days after the imposition of sentence, and he remained on bail until his surety (his mother) was relieved of her obligations as surety on April 24, 2015 (the accused was subsequently convicted of an assault offence, and now faces other outstanding criminal charges).

[44] Given the gravity of the sexual offence committed by the accused, and the need to denounce and deter such serious criminal activity, in my view the nine month term of imprisonment that is now imposed upon the accused is still a somewhat lenient sentence that fully takes into account the other sentencing principles, including the rehabilitation of the accused. At the time of sentencing, in June of 2013, a longer term of imprisonment would have been appropriate. However, in all of the circumstances, at this point in time a nine month term of imprisonment is appropriate. In this regard, it is important to recall that: (1) the Crown only suggested a sentence at the upper end of the range of six to nine months imprisonment; (2) the accused has had this matter hanging over his head since he was sentenced in June of 2013 and, for most of that time, the accused was on bail pending appeal; and (3) the accused has already served approximately two months of his conditional sentence. I am also satisfied that, having regard to his current circumstances, this custodial sentence will not interrupt the rehabilitative process of the accused. See R. v. Dufour, 2015 ONCA 426, [2015] O.J. No. 3087.

[45] Following the nine month term of reformatory imprisonment, the accused shall be placed on probation for a period of three years. Such a term of probation will be in the best rehabilitative interests of the accused, as it will provide him with the necessary structure and support for his rehabilitative efforts. This probation order will include the statutory terms outlined in s. 732.1(2) of the Criminal Code, namely, that the accused shall: (a) keep the peace and be of good behaviour; (b) appear before the court when required to do so by the court; and (c) notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation. The accused shall also be subject to all of the following additional conditions pursuant to s. 732.1(3) of the Code, namely:

• The accused shall report to a probation officer within two working days of the conclusion of the custodial portion of his sentence, and thereafter when required by the probation officer and in the manner directed by the probation officer.

• The accused shall remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the probation officer.

• The accused shall abstain absolutely from the possession and consumption of any drugs except in accordance with a medical prescription.

• The accused shall abstain absolutely from owning, possessing or carrying any weapon.

• The accused shall perform 240 hours of community service over a period not exceeding 18 months, as directed by his probation officer. This community service shall commence within two months of the date that the accused is released from the custodial part of his sentence, and shall take place at a rate of not less than 15 hours per month until its completion.

• The accused shall seek and maintain gainful full-time employment or continue his education on a full-time basis.

• The accused shall not associate or communicate, directly or indirectly, with the complainant, or be within 100 meters of the complainant, her residence, school, or place of e