Court File and Parties

Court File No.: CR-15-40000309 Date: 2018-08-31 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – A.J.

Counsel: Paul Leishman and Geleta McLoughlin, counsel for the Crown Margaret Bojanowska, counsel for the Accused

Heard: August 30, 2018

M.A. Code J.

Reasons for Sentence

A. Overview and Procedural History

[1] This case has a long and unfortunate procedural history. After four years of delay, the case finally arrived at a sentencing hearing which proceeded yesterday.

[2] The history of the case began with the events of August 28, 2014, which led to the accused A.J. (hereinafter, A.J.) being arrested and charged with six separate offences, including sexual assault and forcible confinement. A.J. was not released on bail. The victim of these offences was his common law partner, M.S.. The police investigation led to the discovery of two earlier incidents, on March 19th and 20th, 2014. As a result, A.J. was charged with four additional offences, namely, sexual assaults on both of these dates and surreptitiously video-taping the assaults on both of these dates. Once again, his partner Ms. M.S. was the victim.

[3] After a preliminary inquiry in May 2015, at which Ms. M.S. recanted her police statement, A.J. was nevertheless committed for trial in this Court on a ten count Indictment relating to both the March and the August 2014 incidents. He remained in custody. A trial date was set for March 29, 2016, and the trial proceeded on that date. The trial judge, S. Goodman J., ordered severance of the March 2014 incidents from the August 2014 incidents. The trial proceeded, with a jury, on the six counts relating only to the events of August 28, 2014. Ms. M.S. testified and she recanted her previous recantation at the preliminary inquiry. On April 22, 2016, the jury convicted A.J. of sexual assault, forcible confinement, assault, and theft of a cell phone, all in relation to Ms. M.S. as the victim.

[4] The case was adjourned for a sentencing hearing to July 19, 2016. On that date, A.J. appeared before S. Goodman J., re-elected trial by judge alone, and entered guilty pleas to the four severed counts relating to the events of March 19 and 20, 2014. At this point, A.J. had been in custody for almost two years and he was now facing sentencing for eight separate offences, including three sexual assaults. The Crown gave notice of a potential Dangerous Offender/Long Term Offender Application and the case was adjourned to September 16, 2016, to await the Crown’s decision concerning an anticipated application, pursuant to s. 752.1 of the Criminal Code, for a psychiatric assessment. On September 16, 2016, the Crown had still not filed any s. 752.1 Application and S. Goodman J. granted a further adjournment, to December 8, 2016, and ordered that the matter would proceed on that date as either an ordinary sentencing hearing or as a s. 752.1 Application for a psychiatric assessment, if the Crown decided to file such an Application.

[5] On December 8, 2016, S. Goodman J. did not appear. The Court was advised that she was on a “medical leave”. It was anticipated that she would return to work within a reasonable time and so the case was adjourned for a further month to January 12, 2017. The Crown had not filed any s. 752.1 Application and so the matter was scheduled as a one day sentencing hearing before S. Goodman J. Further remands ensued, granted by various judges of this Court, on January 12, February 10, February 24, March 28, and May 26, 2017, all due to S. Goodman J.’s ongoing “medical leave”. At the end of this six month period of delay, there were two new developments. First, the Crown finally filed its s. 752.1 Application on May 19, 2017, together with a large supporting Record, having deliberated on the matter since July 19, 2016, that is, for exactly ten months. Second, McMahon J. asked me to replace S. Goodman J. as there was now no reasonable prospect that she would return to work from her “medical leave”.

[6] On July 28, 2017, I appeared on the case for the first time, while in the midst of hearing pre-trial Motions in a murder case. I made an order pursuant to s. 669.2 of the Criminal Code, replacing S. Goodman J. on the basis that she was apparently “unable to continue”. At the same time, A.J. discharged his trial counsel, who was then removed from the record on the basis that there had been an irreconcilable breakdown in the solicitor-client relationship. A.J. anticipated retaining Ms. Bojanowska as counsel but he had not yet completed the new retainer, and she also required time to prepare for the Crown’s s. 752.1 Application. I adjourned the matter to September 6, 2017, to hear the Crown’s Application. On September 5, 2017, the matter was brought forward by the defence in order to seek a further adjournment. The retainer of new counsel, Ms. Bojanowska, had been successfully completed in early August 2017 and trial counsel’s file has been transferred to her in late August 2017, but she was not yet prepared for the Crown’s s. 752.1 Application. I adjourned the matter to October 19, 2017. It was conceded that these most recent delays were “defence delay”, for purposes of s. 11(b) of the Charter.

[7] On October 19, 2017, I heard argument and granted the Crown’s s. 752.1 Application, delivering short oral Reasons that same day. I concluded that the Crown had met the statutory test for a psychiatric assessment – “might be found to be a dangerous offender under s. 753 or a long term offender under s. 753.1” – but only in relation to the s. 753.1 standard for a long term offender and not in relation to the s. 753 standard for a dangerous offender. In particular, I relied on the five following circumstances: A.J.’s most recent commission of three crimes of violence; an apparent escalation of violence in this regard, compared to his past criminal record; his very poor correctional record; his anger management issues; and his history of minimizing and rationalizing his offences. I named Dr. Philip Klassen, as the forensic psychiatrist, given his strong reputation with the Court and given Ms. Bojanowska’s agreement not to seek a separate defence assessment if Dr. Klassen was the nominated psychiatrist. Dr. Klassen was not available to conduct the assessment until January 2018. Accordingly, the 60 day statutory period set out in s. 752.1(1) was ordered to run from January 8 until March 8, 2018. The case was remanded to March 7, 2018. On that date, the assessment period ended and I ordered that Dr. Klassen’s report was to be filed by April 4, 2018, within the 30 day period provided for in s. 752.1(2). The lengthy report took slightly longer and it was filed on April 10, 2018.

[8] On April 11, 2018, the Crown responsibly agreed to re-evaluate its position concerning a Dangerous Offender/Long Term Offender Application, having now received Dr. Klassen’s report. I gave the Crown one month to advise whether it would be pursuing a Dangerous Offender/Long Term Offender Application. On May 9, 2018, Mr. Leishman advised that the Crown was not pursuing a Dangerous Offender/Long Term Offender Application. Accordingly, May 29, 2018 was set as the date for an ordinary sentencing hearing. On May 28, 2018, defence counsel advised that she was seeking an adjournment of the sentencing hearing as she needed time to subpoena certain jail records and to order transcripts from the jury trial that had proceeded before S. Goodman J., as she was not trial counsel. In addition, I was not the trial judge and had not heard the evidence. The jail records subpoena was made returnable on June 20, 2018 and, on that date, I made various orders concerning the materials to be filed for the sentencing hearing, in particular, S. Goodman J.’s charge to the jury and counsel’s closing addresses, so that I could then make findings pursuant to s. 724(2) of the Criminal Code as to those facts that must have been “essential to the jury’s verdict of guilty”. I set August 30, 2018 as the date for A.J.’s sentencing hearing. That date was almost exactly four years after his arrest and his original detention in this matter.

[9] Although A.J. has now been in custody for four years, since his arrest on the present charges, there is one further development in the case that is relevant to this much delayed procedural history. It will be recalled that the jury convicted A.J. on April 22, 2016 and that he was remanded for sentencing to July 19, 2016. In between these two dates, in June 2016, A.J. was charged with the offence of assault with a weapon in relation to a jail house knife assault on another inmate at the Metro East Detention Centre. As a result, he was detained on this new charge during three of the periods of delay in the present case, that is, during the indefinite period of S. Goodman J’s “medical leave”, during the period of the Crown’s ten month long deliberation on its s. 752.1 Application, and during the four month period of “defence delay” when Ms. Bojanowska perfected her retainer and prepared for the s. 752.1 Application. The new charge of assault with a weapon was tried in the Ontario Court of Justice during August and September of 2017. On September 26, 2017, A.J. was convicted by Cleary J. and he was sentenced to a 15 month period of imprisonment on December 22, 2017. Accordingly, A.J. has been serving a sentence for the final eight months of delay in this matter, while Dr. Klassen conducted the psychiatric assessment and prepared his report and while the parties prepared for the sentencing hearing. A.J.’s mandatory parole date, after serving ten months of his 15 month sentence, will be in the fall of 2018.

[10] In light of the above history, the parties are agreed that A.J.’s period of pre-trial custody, from August 2014 until December 2017, should be credited to the present sentencing proceedings. Cleary J. did not credit or deduct any of this pre-trial custody against the sentence that he imposed on December 22, 2017. In addition, on March 20, 2017, A.J. pleaded guilty in this Court before Clark J. to disobeying a court Order not to communicate with Ms. M.S. while awaiting trial in the present case. A.J. was sentenced to 30 days in jail. Accordingly, A.J. is entitled to credit for 39 months of pre-trial custody (the 40 months from late August 2014 until late December 2017, less the one month sentence imposed by Clark J.). When calculated pursuant to the Summers ratio of 1.5:1, he has already served the equivalent of a 59 month jail sentence, that is, just under five years.

B. Facts Relating to the Offences

[11] As noted above, there are two separate sets of offences that are before me for sentencing: the August 2014 offences that led to A.J.’s arrest; and the earlier March 2014 offences that were discovered during the police investigation. I will address the March 2014 offences first. They are the earlier offences chronologically and they are much easier to describe and assess, for purposes of sentencing, because they were the subject of guilty pleas and agreed facts. The August 2014 offences are more challenging, in terms of fact finding, as they were the subject of a jury trial at which I was not the presiding judge. Accordingly, I can only make findings of fact that were essential to the jury’s verdicts and cannot make any further findings that require credibility assessments. See: [R. v. Dorsey (2009), 86 W.C.B. (2d) 81 (Ont. S.C.J.)](R. v. Dorsey (2009), 86 W.C.B. (2d) 81 (Ont. S.C.J.)).

[12] There are four counts in the Indictment relating to the events of March 2014. The accused A.J. pleaded guilty to all four counts on July 19, 2016, as follows: a sexual assault on M.S. on March 19, 2014 contrary to s. 271 of the Criminal Code; surreptitiously making a visual recording of Ms. M.S. engaged in sexual activity on March 19, 2014, contrary to s. 162(1)(b) of the Criminal Code; and two similar counts of sexual assault and surreptitious visual recording on the next day, that is, on March 20, 2014. These offences came to light when the police seized A.J.’s phone, after his August 2014 arrest, and forensically searched the phone. They found one video clip that captured part of the events of August 28, 2014, including part of the sexual assault. They also found two further video clips relating to the earlier events in March 2014.

[13] The parties negotiated an Agreed Statement of Facts concerning the March 2014 offences. It was read into the court record and admitted by A.J., after his guilty pleas on July 19, 2016. It states the following:

The video clips from March 19th, 2014 and March 20th, 2014 depict Mr. A.J. repeatedly pushing his erect penis into Ms. M.S.’ mouth. In these clips, Ms. M.S. is obviously asleep or otherwise unconscious and demonstrably incapable of consenting to sexual activity. Despite knowing this, Mr. A.J. repeatedly performed these sex acts, and in one of the video clips, Mr. A.J. ejaculated in Ms. M.S.’ mouth.

Following the events of August 28th, 2014, Mr. A.J. posted two images on Ms. M.S.’ Instagram account and changed her Instagram account name to “C.M.B.”. The posting of these images and changing her account name was done without Ms. M.S.’ knowledge or consent. One of the posted images was from the August 28th, 2014 video, which was the subject of part of the sexual assault allegation, and one was from one of the March, 2014 surreptitiously recorded videos. Both images show Mr. A.J.’s penis inserted into Ms. M.S.’ mouth.

[14] The facts relating to the subsequent August 28, 2014 offences are more difficult to state because they emerged at the jury trial. However, the Agreed Statement of Fact, negotiated after the trial and read in at the July 19, 2016 guilty pleas, did address the August 2014 events to some extent. In particular, it stated the following:

Following a statement provided to police by M.S., a warrant was executed at the Toronto apartment where the offences had taken place, and several items were seized, including phones belonging to Mr. A.J. and Ms. M.S.. Also seized was a black shirt with an owl on it. Ms. M.S. had been wearing that shirt during the sexual assault and described it in her detailed statement to police. She had described being forced by Mr. A.J. to fellate him several times, over several hours, and reported that he had ejaculated in her mouth. Subsequent forensic testing found that Mr. A.J.’s semen and Ms. M.S. saliva were present on the shirt. A forensic examination of the phones revealed a video clip that captured part of the events of August 28th, 2014, including part of the sexual assault.

[15] The complainant, Ms. M.S., testified at trial consistently with her police statement, to the effect that A.J. stole her telephone, forcibly confined her and punched her over a period of time in their apartment, forced his penis into her mouth several times, ejaculated in her mouth, recorded these images, and then posted the images on her Instagram account. The accused A.J. denied these allegations. He testified that the sexual activities in August 2014 were consensual and involved role-playing, and that the video recording of their consensual sexual activities was a normal consensual practice during their relationship. The Crown’s theory of motive, based on Ms. M.S.’ testimony, was that A.J. had learned of alleged infidelity by Ms. M.S., when he took her phone and found messages from her to another boyfriend, that he flew into a rage, and that he committed the various sexual offences and posted the images on her Instagram account in order to humiliate her and end her relationship with the other boyfriend.

[16] The jury’s verdict, convicting A.J. of four offences – sexual assault, forcible confinement, theft of the telephone, and a separate common assault – necessarily means that they rejected A.J.’s defence of consent. It also means that they accepted Ms. M.S.’ account, at least to the extent that there was no consent to what must have been enforced fellatio and there was no consent to what must have been forcible confinement. In addition, they must have found that A.J. stole her telephone and also committed a separate physical assault that was unrelated to any violation of her sexual integrity.

[17] It can be seen that the main difference between the August 2014 events and the March 2014 events is that, in the former case, non-consent was due to force whereas in the latter case non-consent was due to unconsciousness or sleep. It can also be seen that A.J. made video tapes of all three sexual assaults but he was only charged with making these video images in relation to the two March 2014 assaults. He went on to post two still photographs from two of the videotapes on the internet but he was not charged with these acts of publication of the still photographs. The photographic images of the sexual assaults were taken down from Ms. M.S.’s Instagram account within 24 hours. She was readily identiable in these images.

[18] The Crown summarized Ms. M.S.’s Victim Impact Statement during submissions. She experienced fear and humiliation due to the posting of images of two of the sexual assaults on the internet. In addition, the sexual assaults themselves were painful, embarrassing, and humiliating to both her and her family. She fears subsequent contact from A.J.. However, she has been doing better recently. She asserts that A.J. did not “break” her and she looks forward to her future without him.

C. Facts Relating to the Offender

[19] There is a great deal of evidence before the Court concerning A.J.’s background, antecedents, and future prospects. Indeed, I have much more information about the accused than I would normally have at the time of sentencing. That is because the Crown initially considered bringing a Dangerous Offender/Long Term Offender Application and filed a substantial three volume record in support of its s. 752.1 Application. That record includes a lot of detail about A.J.’s prior criminal record, his correctional history, a Pre-Sentence Report prepared in July 2016 after the jury trial, a provisional assessment by Dr. Woodside prepared in September 2016 in advance of the s. 752.1 Application, and the final assessment by Dr. Klassen completed in April 2018.

[20] I will attempt to summarize the essential information relevant to sentencing that I have derived from this very large volume of material.

[21] A.J. is now 33 years old. He was 29 years old at the time of the offences. He was born and raised in Toronto by his mother and father, until they separated when he was age 8. Thereafter, he was raised by his mother. He had a close relationship with his mother, and still does today. She has a post-secondary education and works with the mentally ill. There is some evidence to suggest that, on occasion, she may have lied and rationalized for him. A.J. is not particularly close to his father, although they remain in contact. A.J. has two sisters and he is close to them. He had behavioural problems in school, perhaps due to ADHD according to his mother. In grade 10 he was arrested and charged with his first offence. Since then, he has never returned to school. He has either been employed at various jobs, received welfare, or been in jail, since the time he left high school. His income tax returns were filed at the sentencing hearing. They indicate that he has worked reasonably consistently when not in jail.

[22] At age 19, A.J. met C.W. and formed a relatively successful relationship with her. They moved in together, lived together for four to five years, and had a child. There was no physical abuse, according to Ms. C.W.. She reports that A.J. was hard working and he was a good father. However, he was unfaithful to Ms. C.W. and, after a number of years, they ended the relationship and he moved out. It was an amicable separation and he remains close to his son. A.J. then began a six year long relationship with the complainant, M.S., beginning when he was about age 23. They lived together off and on throughout the relationship, until his arrest due to the events of August 2014. A.J. acknowledged believing that Ms. M.S. was unfaithful to him. The relationship was unstable, by all accounts, as they would separate for a period of time and then resume cohabitation.

[23] A.J. has no significant substance abuse issues, according to all accounts. He also has no history of mental illness. However, he does appear to have significant anger management issues, which he acknowledges to some extent. He also has a history of hostility towards correctional authorities and he has consistently minimized and rationalized his criminal offences.

[24] A.J.’s criminal record is as follows:

• in January 2000 he was convicted of theft under in Youth Court. He would have been 15 at the time. A.J. was with three other youths, they approached the young victim and stole his bank card. A.J. was sentenced to two days time served and one year probation;
• in May 2001, at age 16, A.J. was convicted of assault with a weapon in Youth Court. It appears that he was dating a girl and was at her home when the girl’s step-father told him to leave. A.J. resisted and a fight ensued in which A.J. swung a knife and threatened the step-father. A.J. states that there was an element of self-defence in this incident. He was sentenced again to 12 months probation;
• in January 2003, at age 18, A.J. was convicted in Youth Court of possession under. He was arrested for this incident involving a stolen car in August 2002, when he was 17. He was sentenced to 22 days time served;
• in June 2003, at age 18, A.J. was convicted of his first adult offence. It appears to be his most serious prior offence. He was convicted of robbery, use of an imitation firearm, and disguise with intent. The offence was a home invasion where A.J. and an accomplice went to the apartment of a 64 year old man, while masked and armed. The victim was tied up and assaulted and some money and some property was stolen. A.J. lived in the same building as the victim and knew him. When A.J. was arrested, he gave the police a statement and cooperated with their investigation. A.J. was sentenced to two years imprisonment in addition to six months pre-trial custody. As a result, his first jail sentence was effectively three years and it was served in the federal penitentiary system at Joyceville, while A.J. was age 18 and 19. He responded poorly to federal correctional programs;
• in April 2008, at age 23, he was convicted of failing to comply with a recognizance. He was on a house arrest term of bail and breached the bail order. Sentence was suspended and he was placed on 18 months probation;
• in May 2008, also at age 23, he was convicted of uttering threats. He left voice messages on the phone of a former girlfriend named L.L., one of which stated “I’ll slap you”. He was no longer involved with her and he did not act upon the threat. He was sentenced to a conditional discharge and five months probation, after serving five days pre-trial custody. A.J. states that L.L. was interfering in his relationship with C.W. when he left these messages on Ms. L.L.’ phone;
• in July 2008, also at age 23, he was convicted of trafficking cocaine to an undercover officer. He was sentenced to eight months imprisonment and two years probation in addition to one month pre-trial custody. As a result, he served a provincial jail sentence at age 23 and 24. He did not respond well to provincial correctional programs;
• in April 2011, at age 26, he was convicted of disobeying a court Order. This offence related to the present complainant, M.S., who A.J. had been seeing for a year or two. She was 18 years old at the time and made serious allegations of assault and forcible confinement, all of which were withdrawn. A.J. was convicted of breaching a “no contact” Order when she came and visited him in jail. He was sentenced to 16 days pre-trial custody and one day in jail;
• in April 2014, at age 29, A.J. was convicted of assault after a trial in which he was acquitted of most of the charges. The offences all related to an escalating confrontation with another man in a rooming house. There were no weapons or injuries. The assault conviction involved knocking a glass out of the other man’s hand. Sentence was suspended and A.J. was placed on 15 months probation after serving two days pre-trial custody;
• in March and August 2014, at age 29, A.J. committed the present sexual assault offences relating to M.S., for which he is still awaiting sentencing before me;
• in July 2016, at age 31 and while awaiting sentencing after the jury trial in the present case, A.J. was charged with assaulting another inmate with a knife. Video surveillance evidence shows A.J. preparing for the assault with a home-made knife and then stabbing at the other inmate. As noted previously, he was convicted in September 2017 and sentenced in December 2017 by Cleary J. to 15 months in prison. He is presently serving that sentence; and finally,
• in March 2017, at age 32, A.J. was convicted of disobeying a court Order. Like the previous case in April 2011, this offence involved A.J. breaching a “no contact” Order with Ms. M.S., while awaiting trial. He was sentenced by Clark J. to 30 days in jail.

[25] Dr. Klassen reviewed the above history and he interviewed A.J. twice, in February 2018, for a total of three and a half hours. Dr. Klassen also interviewed one of A.J.’s sisters, his former girlfriend C.W., and his mother. Finally, he performed various tests relating to risk assessment. Dr. Klassen concluded his diagnosis as follows:

In my opinion, this gentleman likely meets criteria for antisocial personality disorder, albeit only just; he would appear to meet the criteria for conduct disorder, insofar as there’s a history of aggressive behaviour, duplicity, rules violations, and theft (but again his conduct disorder would be described as mild, in terms of severity). This gentleman does appear to meet the adult criteria for antisocial personality disorder, albeit again I would not describe his antisociality as severe and his adult criminal record, until latterly, has been relatively modest, in terms of both frequency, and severity, of offending behaviour.

This gentleman does not appear to meet criteria of any other diagnoses. He does not appear to meet criteria for a substance use disorder. I would not make a clinical diagnosis of a sexual behaviour disorder.

Dr. Klassen’s risk assessment prognosis was as follows:

Taken together, I would submit that this gentleman is likely at moderately high risk of future sexual violence (but not necessarily likely to recidivate sexually); if this gentleman recidivates sexually it seems likely to again take place in the context of intimate partner violence. This gentleman is at moderately high risk of any violent recidivism. This gentleman is at high risk of intimate partner violence with respect to Mr. S., should they reunite. This gentleman’s risk of intimate partner violence with a future, as yet unidentified, partner is more difficult to appraise; I would submit that this risk is likely, in terms of actuarial appraisal, moderately high, albeit victim characteristics are known to be quite salient to whether IPV takes place, and this gentleman’s history would appear to exemplify that.

Clinical judgment should be introduced into the probabilistic portion of the risk assessment process only when deemed absolutely necessary, lest one risk degrading the accuracy of one’s risk assessment. I believe a few comments are in order. This gentleman would appear to be at risk of aggressive behaviour, primarily, toward other inmates (this gentleman has somewhat of a suspicious and mistrustful nature, and in close confinement with other inmates, and given his defensiveness, and attunement to perceived threat, this is an at-risk scenario for this gentleman) and also with a particular intimate partner.

Finally, Dr. Klassen’s treatment recommendations were as follows:

The dynamic or criminogenic variables that would appear to be most salient in this case include, in no particular order:

• some problematic values and attitudes on Mr. A.J.’s part, rooted in personality
• relationship instability
• possibly alcohol and/or drug use
• possibly family enablement

If this gentleman is to reoffend it would appear that the pathway to that re-offense might begin with an unstable relationship, in particular destabilized by infidelity on the part of one or both partners; it’s my understanding that Ms. M.S. is a good deal younger than Mr. A.J. and its possible that a relationship with a partner in a different phase of life, and with different interest or priorities, may have contributed to conflict.

In terms of risk management, I would submit that, given this gentleman’s treatment history, he may benefit from external controls in addition to the development of any further internal controls. I would recommend the following:

1. Mr. A.J. may benefit from further psychological treatment regarding both anger and emotions management, more generally, and intimate partner violence, more specifically. Addressing vulnerabilities has not, historically, been one of this gentleman’s strengths.
2. At such time as this gentleman returns to the community he should maintain as structured a daily routine as possible. He should maintain employment, and should be involved in parenting, and ideally structured leisure/recreational activities.
3. It’s not clear to the undersigned whether alcohol or drug use played a meaningful or salient role in this gentleman’s offending; contact with Ms. M.S. might have been of value, in attempting to address this question. Depending on the outcome of further, serial, evaluations of this gentleman’s recent IPV, a condition requiring him to abstain, and requiring verification of abstinence through samples of breath or urine, may be of value.
4. This gentleman should be required to report any potential or actual intimate relationships to those supervising him. Of course, in practice, this can be a challenging condition to operationalize.

In terms of “reasonable expectation that a lesser measure”, or “reasonable possibility of eventual control of the risk in the community” I would note that while this gentleman has not been treatment-responsive, and while he presents similarly now, until his relationship with the current complainant began there would have been little in this gentleman’s criminal record to suggest that he might be a candidate for sentencing under Section 753 of the Criminal Code. It appears that this gentleman’s comportment in his most recent relationship has revealed some deficits in terms of interpersonal relatedness and adaptation (in addition to those demonstrated in custody). It does appear that he’s previously had far more success in intimate partner relationships that have not been marked by violent behaviour. The key variable going forward would appear to be identifying, understanding, and addressing issues related to partner choice, and associated relationship stresses. Accordingly, this gentleman’s potential victim pool would appear to be relatively more limited [not all partners]. It’s not clear to me what length of additional fixed sentence, if any, this gentleman might receive; risk of IPV will need to be managed until (approximately) age 50, when age-related decline in propensity for such aggressive behaviour might be expected to reach a point (on average) that unique controls may not be needed. Identifying which intimate partners are at greater, or lesser, risk of violence may be a challenge, in real time, and it is not clear that collateral contacts could be anticipated to be of assistance.

[26] A number of letters from family members were filed at the sentencing hearing. The authors speak positively about A.J.’s character and express their ongoing support. In particular, his mother and father have visited and spoken to him in custody during the past four years. They have noted increased maturity in A.J., a willingness to change, and some regret for his actions. Perhaps most poignantly, C.W. describes A.J.’s ongoing relationship with his 11 year old son in very positive terms. A.J. appears to have made a real effort to be a good father to his son, both prior to his present incarceration and during his incarceration.

[27] The defence also filed various correctional documents showing that A.J. has completed courses in substance abuse, harm reduction, life skills, anger management, self‑esteem, family dynamics, supportive relationships, effective parenting, cognitive skills, and anti‑criminal thinking during his time in pre-trial and pre-sentence custody. He has also worked hard towards completing his high school equivalency. The extent of A.J.’s involvement in these programs, while in a remand centre, is quite exceptional in my experience.

[28] Finally, correctional institution reports were filed at the sentencing hearing. They indicate that A.J. has been held in “lockdown” conditions at Maplehurst C.I. and the Toronto East Detention Centre for fully one third of his time in custody. In addition, he has been “triple bunked” for one fifth of his time.

D. The Positions of the Parties

[29] The Crown and the defence have sensibly arrived at a joint submission as to the appropriate total sentence for all offences relating to the events in both March and August 2014. They submit that A.J. is entitled to 59 months credit for 39 months pre-trial custody, as explained above, pursuant to the normal Summers ratio. In addition, they submit that A.J. is entitled to an additional six months enhanced credit due to the particularly harsh “lock down” and “triple bunking” conditions summarized above. In other words, they submit that he has already served the equivalent of a 65 month jail sentence. Finally, they submit that he should now serve a further six month jail sentence followed by three years probation on relatively strict terms. The total custodial sentence would, therefore, be 71 months which is one month short of a six year sentence.

E. Analysis

[30] The principles of sentencing are set out in ss. 718, 718.1 and 718.2 of the Criminal Code and I am bound by those principles. The most fundamental principle of sentencing is “proportionality”, as set out in s. 718.1, namely that the sentence “must be proportionate to the gravity of the offence and the degree of responsibility of the offender”.

[31] In my view, the aggravating circumstances in this case include the following:

• the fact that Ms. M.S. was asleep or unconscious during the March sexual assaults is aggravating because she was vulnerable and defenceless;
• the considerable force used during the August sexual assault is aggravating. In addition, it included a collateral assault. A.J.’s history of anger management difficulties is troubling in this regard;
• making a video record of the August sexual assault and then publishing it on Instagram is particularly aggravating because it creates a humiliating and potentially long-lasting public record of the offence;
• the impact on the victim, although apparently not the most severe that is sometimes seen, is nevertheless serious, particularly due to the humiliating internet publication;
• the invasiveness of the three assaults, involving full penile penetration of the victim’s mouth, situates these offences at the more serious end of the range;
• the repetition of the offences on three separate occasions is aggravating;
• finally, the accused’s criminal record, although not the most serious, has been persistent.

[32] I have not considered the video recording of both March sexual assaults, and the Instagram posting of one image from those assaults, as an aggravating factor in relation to those particular sexual assault offences. That is because A.J. was charged separately and convicted of two s. 162 offences in relation to the March events. I intend to impose consecutive sentences for the s. 162 offences and so their aggravating effect should not be considered twice. However, A.J. was not charged with any s. 162 offence in relation to the August events. It is, therefore, appropriate to consider the making and publishing of images relating to the August sexual assault as an aggravating factor, when determining an appropriate sentence for that offence.

[33] On the other hand, the mitigating circumstances in this case include the following:

• A.J. pleaded guilty to the March offences, saving Ms. M.S. from having to testify again and saving court resources;
• A.J. has the support of his family and his former common law partner, Ms. C.W., who all intend to help him upon his return to the community;
• A.J. has worked, has responsibly paid taxes, and has contributed to society for some significant parts of his life. In addition, he has been a good father to his son. Finally, he has completed a significant number of useful correctional programs while in custody awaiting trial and sentencing. All of this gives hope for his rehabilitation;
• perhaps most significantly, A.J. has proved that he is capable of forming non-abusive relationships with women. His first common law partner, C.W., has consistently described their relationship in positive terms. She remains supportive of A.J. and she asserts that there was never any abuse in their relationship. In this regard, A.J.’s criminal record does not disclose a past history of sexual assault or domestic violence until he commenced his relationship with Ms. M.S.. In other words, there is some basis for believing that the offences in this case were situational or were specific to the particularly volatile relationship that existed between A.J. and Ms. M.S.;
• the considerable delays in this case, while A.J. was in custody in relatively harsh conditions, are mitigating. A.J. was responsible for some of these delays but not all of them. Delay that falls short of constitutional violation, nevertheless, can have a mitigating effect on sentence. See: R. v. Symes (1989), 49 C.C.C. (3d) 81 at 96-7 (Ont. C.A.); R. v. Boucher (2004), 186 C.C.C. (3d) 479 at para. 33 (Ont. C.A.); R. v. Bosley (1992), 18 C.R. (4th) 347 (Ont. C.A.); R. v. Sheng, 2010 ONCA 296, 254 C.C.C. (3d) 153 at para. 60 (Ont. C.A.); R. v. Williams, 2009 ONCA 342, 244 C.C.C. (3d) 138 at paras. 29-32 (Ont. C.A.);
• finally, the accused A.J. has conducted these proceedings responsibly through his counsel. In particular, he agreed with the Crown to the appointment of Dr. Klassen, to conduct a single joint psychiatric assessment, and he negotiated a sensible joint submission as to the appropriate sentence. These steps significantly expedited what would otherwise have been an even more difficult and more protracted proceeding.

[34] In my view, the case law in this province is to the effect that three to five years is the appropriate range of sentence for a serious sexual assault against an adult victim, such as the ones committed in this case. Exceptional cases can fall either above or below that range. See: R. v. A. (S.), 2014 ONCA 266, affirming 2013 ONSC 1961; R. v. Mitrovic, 2017 ONSC 1829; R. v. D.L., 2016 ONSC 733; R. v. Rand, 2012 ONCA 731; R. v. Bradley, 2008 ONCA 179.

[35] Given that the accused in the present case committed three separate and equally serious sexual assaults, a lengthy total sentence of six or seven years could be justified for these offences. However, given that I intend to impose consecutive sentences for the s. 162 offences, and in light of the totality principle and the mitigating circumstances set out above, a sentence of five years concurrent for the three sexual assaults is the appropriate sentence. The sentences for the other August 2014 offences – forcible confinement, theft of the phone, and assault – should be shorter and they should be concurrent.

[36] The two offences of surreptitiously making a video recording of the March 2014 sexual assaults, contrary to s. 162(1)(b) of the Criminal Code, require a consecutive sentence. They protect a different societal interest, mainly privacy, whereas the sexual assault offences protect bodily integrity. The maximum sentence on indictment under s. 162 is five years. These offences are relatively new and there is not a lot of appellate guidance as to appropriate sentencing ranges. However, reformatory sentences have been frequently imposed. These offences were aggravated by the fact that A.J. both made the images surreptitiously and he then published them on the internet. See: [R. v. Berry (2015), 122 W.C.B. (2d) 296 (B.C.C.A.)](R. v. Berry (2015), 122 W.C.B. (2d) 296 (B.C.C.A.)); R. v. J.S., 2018 ONCJ 82.

[37] A consecutive total sentence of 11 months, for the two offences contrary to s. 162, is appropriate in light of the totality principle. It also achieves the 71 month total sentence that the Crown and the defence have agreed to in their joint submission. Needless to say, considerable deference is owed to the agreement of counsel who have negotiated a joint submission. I also agree with the parties that three years probation is appropriate, on relatively strict terms, given the concerns identified in Dr. Klassen’s report.

F. Conclusion

[38] For all the reasons set out above, the accused A.J. is sentenced as follows:

• on Counts 1, 8 and 10 in the Indictment, which are the three counts of sexual assault, the sentence is five years in jail on each count, with the sentences to run concurrently;
• on Count 3 in the Indictment, on which the jury convicted the accused of theft of Ms. M.S.’ phone, the sentence is six months concurrent;
• on Count 4 in the Indictment, the sentence is six months concurrent for the collateral assault on Ms. M.S.;
• on Count 5 in the Indictment, the sentence is one year concurrent for forcible confinement of Ms. M.S.; and
• on Counts 7 and 9 in the Indictment, which are the s. 162 offences, the sentence is 11 months in jail on each count, concurrent to each other but consecutive to the sentences for sexual assault.

[39] In the result, the total sentence is 71 months or five years and eleven months. The remanet to be served is six months, in light of credit for pre-trial and pre-sentence custody. In this regard, the Indictment and the Warrant of Committal should note that all five years, or 60 months, of the sexual assault sentences have already been served. In addition, five months of the s. 162 sentences have already been served, leaving six months still to be served in relation to the s. 162 sentences.

[40] Finally, the sentences recorded on the Indictment and the Warrant of Committal should make it clear that all of these sentences are consecutive to the 15 month sentence imposed by Cleary J. on December 22, 2017 for the offence of assault with a weapon. The present six month remanet only commences once the previous 15 month sentence has been served.

[41] At the conclusion of A.J.’s custodial sentences, there will be a three year period of probation. The parties substantially agree on the terms of probation, which are as follows:

• keep the peace and be of good behaviour;
• report to a probation officer as required;
• reside at an address approved by probation services;
• not to possess any weapons;
• not to apply for possession or acquisition of a firearm;
• not to have any contact, direct or indirect, with M.S.;
• not to be within 500 metres of Ms. M.S.’s residence, place of work, school, or any place where she attends;
• seek and maintain employment or attend a job training program;
• take anger management counseling;
• take any counseling related to domestic violence recommended by probation services; and
• sign all necessary releases so that probation services can monitor compliance with these terms.

[42] In addition, there are three ancillary orders: a s. 490.012 SOIRA Order for life; a s. 109 Order for life; and a s. 743.21 Order not to communicate with Ms. M.S. while serving the custodial portion of this sentence.

[43] Finally, I am grateful to counsel for all their assistance in this relatively complex and difficult proceeding.

M.A. Code J. Released: August 31, 2018