Court File and Parties

COURT FILE NO.: CR-17-385 DATE: 20181022

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty The Queen C. Hackett, for the Crown

- and -

Tarrique Gordon N. Gregson and A. Tran, for the Defence

HEARD: August 2, 2018 and October 15, 2018

REASONS FOR SENTENCE

Petersen J.

NOTICE: Any information that could identify the victim in this proceeding shall not be published in any document or broadcast or transmitted in any way.

OVERVIEW

[1] After a short trial, I convicted Tarrique Gordon of the following two offences:

i. sexual assault (contrary to s. 271 of the Criminal Code of Canada); and ii. sexual interference, specifically touching a person under the age of 16 years directly with a part of his body for a sexual purpose (contrary to s. 151 of the Criminal Code).

[2] My Reasons for Judgment were released on May 18, 2018. A Pre-Sentence Report was prepared for the Court and sentencing submissions were heard on August 2, 2018 and October 15, 2018. It is now my task to sentence Mr. Gordon.

PRELIMINARY ISSUES

Terminology

[3] I want to make some introductory remarks of more than passing importance regarding my choice of terminology in these Reasons for Sentence.

[4] In my Reasons for Judgment, I referred to the 15 year old girl who was sexually assaulted by Mr. Gordon as “AB”. These were random initials assigned to protect her anonymity. I will continue to use them for that purpose in these Reasons for Sentence.

[5] However, I will no longer refer to AB as “the complainant” in this case. The word “complainant” is defined in s. 2 of the Criminal Code as “the victim of an alleged offence”. It was an appropriate term to use in reference to AB at trial, because Mr. Gordon was presumed innocent of the charges against him until proven guilty beyond a reasonable doubt. At this stage, however, Mr. Gordon’s offence is no longer a mere allegation. He has been convicted. To continue referring to AB as “the complainant” would risk invalidating her experience by suggesting that, despite conviction of the offender, the matter at issue remains a mere “complaint” rather than a crime.

[6] In my Reasons for Judgment, when I did not employ Mr. Gordon’s name, I referred to him as “the accused”. In these Reasons for Sentence, I will refer to him as “the offender” to reflect his culpability. This change in terminology is consistent with the definition of the word “offender” in s. 2 of the Criminal Code: “a person who has been determined by a court to be guilty of an offence…” A similar change in terminology needs to be made in reference to AB, but the choice of appropriate terminology is more complicated than it is for Mr. Gordon.

[7] The term “victim” is one option that I could adopt to refer to AB. “Victim” is defined in s. 2 of the Criminal Code as: “a person against whom an offence has been committed, or is alleged to have been committed, who has suffered, or is alleged to have suffered, physical or emotional harm… as the result of the commission or alleged commission of the offence…” There is no question that AB meets this statutory definition. She suffered emotional harm as the result of the commission of an offence against her.

[8] My hesitation in referring to AB as a “victim” arises from my awareness that the term has become somewhat controversial in its application to women and girls who have been sexually assaulted. Many people involved in sexual violence prevention and recovery work have adopted the term “survivor” instead (see, for e.g., Justice Lemay’s discussion of the proposed expert’s proposed testimony in R. v. Ennis Taylor, 2017 ONSC 5797). The word “survivor” is gaining mainstream convention and has been enacted in some legislation (e.g. Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016, S.O. 2016, c. 2).

[9] This is not merely a matter of semantics. The language we choose to describe people not only reflects how we view them, it can also impact how others view them and how they see themselves. The language used by judges may be particularly impactful.

[10] The words “survivor” and “victim” have different connotations. Being a “victim” implies helplessness, whereas “survivor” implies that a person has the resources to thrive despite a devastating experience. “Survivor” connotes progression rather than stagnancy. It suggests that the person can learn (or has learned) to cope with the trauma they experienced. For these reasons, “survivor” is viewed by some as a positive term of empowerment that recognizes the ability of women to regain control of their lives after the trauma of a sexual offence. It is meant to acknowledge the personal fortitude and resilience of women who have been subjected to sexual violence.

[11] The word “survivor” does not, however, capture the devastating experience and sentiments of many women and girls (and men and boys) who have been sexually assaulted and who do not feel that they are surviving, let alone thriving. For some, a feeling of helplessness and loss of control persists long after the assault ends. For these (and other) reasons, many women who have been sexually assaulted embrace the word “victim” as a more accurate reflection of their experience and self-perception.

[12] The reality is that the experience of sexual assault and its aftermath vary from person to person. One person’s experience can also fluctuate, such that the terms “victim” and “survivor” each accurately describes their self-perception at different points in time. This fluctuation does not necessarily entail a progression from victim to survivor.

[13] I want to use language that is respectful of AB’s experience in these Reasons for Sentence. I do not know whether she has a preference for terminology at this stage. After much reflection on this issue, I have decided to use the words “survivor” and “victim” interchangeably to refer to her and to others who have been sexually assaulted. I do this to respect the fact that people are different and to recognize that it is possible to be equally a victim and a survivor.

Constitutional Invalidity of the Mandatory Minimum Sentences

[14] Both of Mr. Gordon’s offences carry a one year mandatory minimum sentence (because the Crown proceeded by way of indictment and AB was 15 years old at the time of the offences: ss. 151 and 271 of the Criminal Code). These mandatory minimum sentences have been declared unconstitutional in several cases before this Court, based on a violation of the right to be free from cruel and unusual punishment guaranteed in section 12 of the Canadian Charter of Rights and Freedoms: R. v. T. (B.J.), 2016 ONSC 6616; R. v. M. L., 2016 ONSC 7082, 367 C.R.R. (2d) 268; R. v. S. (J.D.), 2017 ONSC 1869, 378 C.R.R. (2d) 282; R. v. Hussein, 2017 ONSC 4202; and R. v. H.L., 2018 ONSC 1026 (sentence upheld at 2018 ONCA 823). The Ontario Court of Appeal has not ruled on the issue.

[15] The Crown in this case did not attempt to argue that the mandatory minimum sentences are constitutionally valid. Both the Crown and Defence counsel made their sentencing submissions based on the premise that no mandatory minimum sentences apply. Although I am not bound by the prior decisions of this Court on this issue, I find them to be persuasive. Moreover, I am of the view that the prior judgments should be followed for the reasons set out by Justice Code in Hussein, at paras. 27-29. Accordingly, the sentencing of Mr. Gordon in this case will proceed on the basis that the one year mandatory minimums are of no force or effect.

Stay of Conviction

[16] The Crown and Defence counsel jointly submitted that a stay should be entered with respect to one of Mr. Gordon’s convictions, pursuant to the principles enunciated by the Supreme Court of Canada in R. v. Kienapple, [1975] 1 S.C.R. 729. The decision in Kienapple bars multiple convictions for two or more offences arising out of the same criminal act in circumstances where the essential elements of the offences cover the same wrongdoing.

[17] In this case, both charges arose out of a single incident and the facts underlying both of Mr. Gordon’s convictions are the same. Kienapple therefore mandates that one of the convictions should be stayed.

[18] The Crown and Defence counsel jointly submitted that the Court should order a conditional stay of the conviction under s. 271 of the Criminal Code. I agree that the law in Ontario favours staying the sexual assault conviction rather than the sexual interference conviction: Hussein, at paras. 45-46; R. v. F.L., 2016 ONSC 1215, at paras. 21-25; and R. v. K.S., 2018 ONSC 5678, at paras. 21-23. A conviction for sexual interference is more appropriate in this case because it includes a recognition that the offence was committed against a victim who was under sixteen years of age. Accordingly, a conditional stay of the conviction under s. 271 will be ordered. Mr. Gordon will be sentenced only in respect of his conviction for sexual interference pursuant to s. 151 of the Criminal Code.

POSITIONS OF THE PARTIES

[19] The Crown takes the position that the Court should impose a sentence of three years’ imprisonment and should make ancillary orders pursuant to ss. 109, 161(1)(b), 161(1)(c), 487.051, 490.012(1), 490.013(2)(b) and 743.21 of the Criminal Code.

[20] Defence counsel submits that an appropriate sentence would be five and a half months’ imprisonment followed by three years’ probation. He takes no issue with the ancillary orders requested by the Crown.

FACTS

Circumstances of the Offence

[21] The facts surrounding the offence are set out in detail in my Reasons for Judgment dated May 8, 2018: R. v. Gordon, 2018 ONSC 2702. The following is a brief summary.

[22] The offence occurred in the evening on November 16, 2015. Mr. Gordon was 19 years old and AB was 15 years old at the time. In the preceding days, they had exchanged messages by text and on Facebook Messenger and had also spoken to each other on the phone. They had met in person for the first time just a few hours earlier that same day.

[23] They agreed to meet at a recreation centre near a school in AB’s neighbourhood. AB invited one of her friends to join them. The friend arrived and the three of them engaged in conversation. They moved into a small alcove on the side of the building to escape the wind and cold. After a short time, AB walked her friend part-way home, then returned to Mr. Gordon in the alcove, which is where the offence was committed.

[24] Mr. Gordon asked AB whether she would tell anyone if he touched her. He started touching her crotch, first on the outside of her clothes, then he put his hands down her leggings/pants. She told him to stop. He touched her vagina with his fingers and asked if he could put his penis inside her. She said “no”. He pleaded with her and she continued to say “no”. He told her, “no one’s coming” and asked whether she didn’t want to do it outside. She told him she didn’t want to do it at all.

[25] She moved his hands away from her body and tried to push him away. He asked her to put a condom on him. She said “no”. He then put the condom on himself, turned her around and tried to bend her over. She was saying “no” and “stop”. He pulled down her leggings/pants. He was leaning on her back. She was resisting and trying to push him off. She tried to move as much as possible. She kept telling him “no”.

[26] He was unsuccessful in his first attempt to penetrate her. He told her it was because she wasn’t bending over properly. She said she didn’t want to. He tried again and his penis entered her vagina briefly twice. He said “it keeps coming out” and then he stopped. She pulled up her leggings/pants and he got dressed.

[27] They remained in the alcove for 10 or 15 minutes. During that time, he told her he would come to her school the next day and they could go to his house where it was warmer and do it again. They parted. She texted him on her way home, stating that it would not happen again. She avoided him thereafter.

Circumstances of the Offender

[28] Mr. Gordon is now 21 years old. He has no criminal record.

[29] He was born in Jamaica and spent his early years there. His parents were never married but both were actively involved in his upbringing. He has step-siblings on both sides of his family. In early childhood, he lived between both of his parents’ residences. His father migrated to Canada when he was ten years old but continued to be involved in his life and continued to support him financially.

[30] His family life was ruptured when his youngest step-brother (on his mother’s side) died tragically in a car accident. His mother was grief-stricken and did not cope well with the loss. She was unable to care for her remaining children, so he and his siblings were sent to live with family members. He moved around a lot and ended up living with his grandparents until his father sponsored him and his older brother for immigration to Canada. Some of his family members in Jamaica were involved in gang-related activity and his father wanted to ensure that he and his brother did not go down that destructive path.

[31] Mr. Gordon arrived in Toronto in January 2012. Initially, it was a challenge for him to acclimatize to Canadian weather, diet and culture. He experienced culture-shock and felt scared and overwhelmed. He was teased because he spoke with a Jamaican accent. He found it difficult to integrate. His adjustment to life in Canada was made more challenging because of conflicts with his step-mother. He perceived that she showed preferential treatment to her biological children. Eventually, he and his brother were kicked out of his father’s home, but he maintains a good relationship with his father and a cordial relationship with his step-mother.

[32] Despite having been abandoned by his mother for a period of time during his childhood, Mr. Gordon harbours no resentment towards her. She still resides in Jamaica. Mr. Gordon and his older brother do what they can to support her financially.

[33] Over time, Mr. Gordon adapted to his new life in Canada. He graduated from high school and held several jobs, mostly in the general labour industry. His last position was with a company that builds office furniture. Unfortunately, he had to stop working in 2017 because he was injured in a car accident. He receives income-replacement benefits from his auto-insurer and intends to apply for Ontario Disability Support Program benefits because he continues to experience insomnia, headaches and back pain since the accident.

[34] Mr. Gordon has a long-term girlfriend. They have no children together, but he has an infant daughter with another woman who is a friend and occasional sexual partner. His daughter was just one month old on the date of the sentencing hearing.

[35] Mr. Gordon has lived with the mother of his child since she became pregnant. She and Mr. Gordon’s long-term girlfriend are both supportive of him. The three of them have agreed to co-parent Mr. Gordon’s daughter. He has been actively involved in his daughter’s life since her birth.

[36] With the exception of his step-mother, Mr. Gordon’s other family members are also supportive of him, though they were initially upset about his involvement with the law and at one point did not speak to him.

[37] The Probation and Parole Officer who prepared the Pre-Sentence Report interviewed (among others) Mr. Gordon’s father, the mother of his child and a close male friend. All were aware of Mr. Gordon’s conviction. All expressed surprise at having learned that he was in conflict with the law. All had positive things to say about him. They described him as helpful and quiet. They said he was not aggressive with women. His child’s mother expressed her belief in his innocence.

[38] The Probation and Parole Officer noted that Mr. Gordon continues to maintain his innocence. In the Pre-Sentence Report, she expressed concern that he “seems to lack insight on his offending behaviour and appears to have no empathy for the impact his actions has (sic) had on the victim.”

[39] Mr. Gordon’s current immigration status is that of a permanent resident. The immigration consequences of his offence are potentially extremely serious. Under current immigration law, a permanent resident who is convicted in Canada of an offence that is punishable by a maximum term of imprisonment of at least ten years is deemed “inadmissible” on grounds of “serious criminality”. Mr. Gordon’s offence is punishable by a maximum term of imprisonment of 14 years, which means that his conviction makes him vulnerable to a removal order that could result in his deportation. Moreover, he will have no right to appeal the removal order if he is sentenced to more than six months’ imprisonment: Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 36(1)(a) and 64; R. v. McKenzie, 2017 ONCA 128, 136 O.R. (3d) 614, at para. 24; and R. v. Stankovic, 2015 ONSC 6246, at para. 47.

Impact of the Offence on the Victim

[40] AB did not sustain any bruises, scratches or other physical injuries as a result of the sexual offence. The offence has, however, had a significant negative impact on her life.

[41] According to the Pre-Sentence Report, AB told the Probation and Parole Officer that she began to experience panic attacks right after the offence. She stated that the panic attacks remain ever-present.

[42] In her Victim Impact Statement, she described how she has become hyper-vigilant about her safety and distrustful of everyone. She no longer goes anywhere alone at night. She is fearful generally and also specifically of the offender. She lost her focus at school after the offence because she was afraid that Mr. Gordon would return to her school. She has seen him in her neighbourhood and, although he has never approached her, his presence heightens her anxiety.

[43] AB relayed that her anxiety is also triggered by “anything that has to do with sexual assault”, including movies and television programs with a sexual assault storyline, which make her extremely emotional.

[44] AB stated that she has tried to remain optimistic and positive, but has experienced depression since the offence. She was offered counselling through Victim Services but did not follow up because she finds it too difficult to talk about what happened.

LEGAL PARAMETERS

Purposes of Sentencing

[45] The sentence imposed on Mr. Gordon must be a just sanction that serves one or more of the following objectives set out in s. 718 of the Criminal Code:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[46] Sentences imposed on youthful first-time offenders like Mr. Gordon usually stress the objectives of individual deterrence and rehabilitation. General deterrence typically plays little, if any, role in fashioning the appropriate sentence for this category of offender: R. v. Thurairajah, 2008 ONCA 91, 89 O.R. (3d) 99, at para. 41 and R. v. Brown, 2015 ONCA 361, 126 O.R. (3d) 797, at para. 4. However, serious crimes of violence, particularly sexual offences, are an exception to that general rule. In such cases, the importance and weight of denunciation and general deterrence increase: R. v. Wells (2000), 2000 SCC 10, [2000] 1 S.C.R. 207, at para. 26; Thurairajah, at para. 41; and Brown, at paras. 4-5.

[47] The emphasis to be placed on denunciation (and to a lesser extent general deterrence) grows with the seriousness of the particular circumstances surrounding the sexual offence for which a youthful offender is being sentenced: Thurairajah, at para. 42. When the offence involves the abuse of a person under the age of eighteen years, primary consideration must be given to the objectives of denunciation and deterrence of the conduct: s. 718.01 of the Criminal Code.

[48] Rehabilitation and specific deterrence nevertheless remain important objectives in any case involving a youthful first-time offender.

Principles of Sentencing

[49] In determining the appropriate sentence for Mr. Gordon’s offence, I must take into consideration the principles enumerated in s. 718.2 of the Criminal Code. In this case, there are three applicable principles: (1) incarceration is a last resort; (2) the sentence must be tailored to the specific circumstances of the offence and offender; and (3) there should be parity in sentencing.

Incarceration is a Last Resort

[50] An offender should not be deprived of liberty if less restrictive sanctions may be appropriate: s. 718.2(d) of the Criminal Code. All available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to the victim should be considered: s. 718.2 of the Criminal Code.

[51] This principle is particularly important in cases involving youthful first-time offenders: Thurairajah, at para. 44.

The Sentence Must be Tailored to the Circumstances

[52] The sentence that I impose should account for any relevant aggravating or mitigating circumstances: section 718.2 of the Criminal Code.

[53] I have identified the following mitigating factors in this case:

a) Mr. Gordon’s relative youth and the fact that he is a first-time offender are very significant mitigating factors that demand some leniency in the sentence imposed: R. v. S.A., 2014 ONCA 266, at para. 1. b) Additional mitigating factors are that Mr. Gordon is an active co-parent to his infant daughter. His incarceration will separate him from his newborn baby at a critical bonding stage of her life. He will miss key milestones in her development. His incarceration will impede his ability to provide financial support for her, as well as for his mother in Jamaica, though his motor vehicle injuries appear to be limiting his current earning capacity in any event. c) Another mitigating factor is Mr. Gordon’s potential for rehabilitation. He has demonstrated his ability to surmount challenges in his life. Although he found the experience of immigrating to Canada to be difficult, he adapted. His childhood was marred by tragedy (his step-brother’s death) and instability, but he managed to graduate from high school and obtain steady employment. He worked until his motor vehicle accident in 2017. He has been able to maintain longstanding friendships and familial relationships. He has a small but solid support system of friends and family. There are people in his life who are prepared to assist him in making positive choices.

[54] I note, however, Mr. Gordon’s lack of insight into his offending behaviour, lack of empathy for AB and lack of remorse. Absence of remorse is not an aggravating factor in a case where the offender pleaded not guilty at trial: R. v. Nash (2009), 2009 NBCA 7, 340 N.B.R. (2d) 320, leave to appeal refused, [2009] S.C.C.A. No. 131. Mr. Gordon is entitled to maintain his innocence. His lack of remorse, however, combined with a lack of empathy for AB and lack of insight into his offending behaviour are characteristics that may detract from his rehabilitation prospects: McKenzie, at para. 22. Moreover, his absence of remorse is a factor that distinguishes his situation from other cases in which the offender’s remorse constituted a mitigating circumstance: R. v. Mitrovic, 2017 ONSC 1829, at para. 18 and Hussein at para. 32.

[55] The following are aggravating factors in this case:

a) The offence included vaginal penetration, albeit brief. b) Second, Mr. Gordon’s offence had a significant impact on AB, as described in her Victim Impact Statement and as reported by the Probation and Parole Officer who prepared the Pre-Sentence Report: s. 718.2(a)(iii.1) of the Criminal Code and R. v. G.(A.), 2015 ONCA 159, at para. 73. Mr. Gordon has robbed AB of her sense of security. She is now hyper-vigilant and distrustful. She experiences anxiety, including panic attacks, which can be triggered by ordinary events, such as watching television or a movie. She has suffered and continues to suffer emotional and psychological consequences with potential long-term impact. c) Third, during the offence, AB repeatedly told Mr. Gordon to stop, but he ignored her pleas. She tried to push his hands away and tried to move to prevent penetration, but he persisted. Such contemptuous disregard for her personal integrity has been recognized as an aggravating factor in other sexual assault cases. Subjecting a person to non-consensual sex is itself invasive and humiliating, but Mr. Gordon’s persistence renders his behaviour particularly demeaning: R. v. Garrett, 2014 ONCA 734 at para.19 and R. v. Cepic, 2018 ONSC 3346, at para. 27. d) Fourth, the offence occurred in a semi-public place. There is no evidence that anyone actually witnessed the offence but people could have passed by and could have seen what was happening. A worker was observed earlier by AB in the vicinity of the alcove where the offence took place. This is an aggravating factor (Cepic, at para. 25), although it is not as seriously aggravating as a sexual offence committed in public or in the presence of members of the offender’s or the victim’s peer group.

[56] Notwithstanding s. 718.2(a)(ii.1) of the Criminal Code, the fact that AB was under the age of 18 years at the time of the offence is not an aggravating factor in this case, because her age is an element of the offence for which Mr. Gordon is being sentenced: R. v. Lacasse, 2015 SCC 64, at paras. 42 and 83.

Parity in Sentencing

[57] The third relevant sentencing principle outlined in s. 718.2 of the Criminal Code is that the sentence I impose on Mr. Gordon should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[58] This principle has generated an approach to sentencing that involves identifying the appropriate “range” of sentence in any given case. A “range” refers to the spectrum of sentences imposed in previous cases – particularly those approved by appellate courts in previous cases – involving similar offenders and similar offences. As the Supreme Court of Canada explained in Lacasse at para. 57:

Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered "averages", let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case.

[59] A range of sentences is therefore merely a guideline. Individual cases may go above or below the range, depending on aggravating and mitigating circumstances: Mitrovic at para. 41 and Lacasse at paras. 10-11.

[60] Although parity is an important principle, the Supreme Court made it clear in Lacasse (at para. 12) that the cardinal principle of sentencing is proportionality. Proportionality means that, in order to be fit, a sentence must be proportionate to the gravity of the specific offence and the degree of responsibility of the particular offender: s. 718.1 of the Criminal Code.

[61] Collateral immigration consequences are a relevant factor that must be given serious consideration in assessing the overall proportionality of a sentence: McKenzie, at para. 35. However, immigration consequences “must not be allowed to dominate the exercise or skew the process either in favour of or against deportation”: R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at para. 16. The imposition of an artificially low sentence in order to avoid deportation would undermine Parliament's will, as expressed in s. 24 of the Faster Removal of Foreign Criminals Act, S.C. 2013, c. 16, which amended s. 64 of the IRPA. The Supreme Court of Canada has ruled that consideration of collateral immigration consequences “must not lead to a separate sentencing scheme with a de facto if not a de jure special range of sentencing options where deportation is a risk”: Pham, at para. 16 and McKenzie at paras. 26 and 34.

Selecting Comparable Cases

[62] Both the Crown and Defence counsel submitted that I should consider sexual assault sentencing cases, rather than sexual interference cases, in identifying the appropriate range of sentence for Mr. Gordon’s offence.

[63] Sexual interference cases generally fall into three categories: (1) those involving the grooming of a very young child and a significant disparity in age between the offender and the victim; (2) those involving abuse of a position of authority or trust by the offender (often also involving grooming and a disparity in ages); and (3) those involving younger offenders with a victim who consented to the sexual touching but was not legally capable of consent because of their age. Mr. Gordon’s offence does not fall into any of these categories, which is why counsel suggested that I look instead to the sexual assault case law in fashioning an appropriate sentence for him.

[64] I agree with the approach suggested by counsel. Parity will not be achieved simply by a formalistic comparison of sentences imposed on offenders with convictions under the same section of the Criminal Code. The principle of parity requires that I consider sentences imposed on offenders with backgrounds similar to Mr. Gordon’s, who committed similar offences in similar factual circumstances. The comparability of offences is to be measured by reference to the underlying facts giving rise to the convictions. The specific provision of the Criminal Code under which an offender has been convicted has little relevance provided that the facts giving rise to the conviction are similar, particularly where (as here) the maximum penalties stipulated by the Criminal Code are the same for both offences.

[65] In my review of the sexual assault sentencing cases, I will focus primarily on cases that include vaginal penetration, since that was the nature of Mr. Gordon’s offence against AB.

Preliminary Remarks

[66] I wish to make some preliminary remarks about the principle of parity before canvassing the relevant case law.

[67] Parity in sentencing is an ideal that is difficult to implement in practice because no two offenders are identical and no two offences are ever exactly the same. There are some similarities in the cases submitted by Crown counsel but none is on all fours with the case before me.

[68] In analyzing the features of other sexual offences with a view to identifying comparable cases, I must necessarily rate the seriousness of each offence. This rating is done based on the presence or absence of aggravating and mitigating circumstances recognized at law, such as a breach of trust or gratuitous violence beyond that which is inherent in the offence. I can imagine how this exercise might be perceived by AB or other sexual assault survivors as a trivialization of their personal trauma, particularly if other sexual offences are deemed to be more serious or “worse” than theirs for sentencing purposes.

[69] By distinguishing other cases in which the sexual offence was in some legal respect more egregious, I do not in any way intend to minimize Mr. Gordon’s blameworthiness or be dismissive of the harm done to AB. I recognize that every offence involving non-consensual sexual activity is inherently violent, deeply invasive and traumatic for the survivor. I also realize that an offender’s sympathetic personal circumstances or laudable personal history do nothing to mitigate the trauma suffered by the survivor or to absolve the offender of responsibility for his actions.

Case Law Submitted by the Crown

[70] Some of the cases relied on by the Crown pre-date amendments to the Criminal Code that were in effect when Mr. Gordon’s offence was committed.

[71] The mandatory minimum sentence of one year in s. 271 was introduced in 2012. There was no mandatory minimum for sexual assault prior to 2012, regardless of the age of the victim. This change in the law does not, however, affect the comparability of pre-2012 sexual assault sentencing decisions because I have deemed the mandatory minimum in s. 151 to be of no force or effect.

[72] Some of the cases relied on by the Crown and Defence counsel were decided after 2012 but prior to the enactment of the Tougher Penalties for Child Predators Act, S.C. 2015, c. 23, ss. 2 and 14, which amends s. 151(a) and 271 of the Criminal Code to increase the maximum sentences from 10 years to 14 years (when the Crown proceeds by way of indictment and the victim is under 16 years old). I have taken this into account in considering cases decided prior to the 2015 amendments.

[73] The earliest case relied on by the Crown is R. v. H.H., 158 O.A.C. 272 (C.A.). In that case, the offender sexually assaulted an 18 year old woman who was his employee. He used his position as her boss to lure her to his home, where he pressured her to consume alcohol. She became very drunk and passed out. He then carried her upstairs, undressed her and had vaginal intercourse with her while she was unconscious. She woke up to find him on top of her. She tried to push him off and told him to “get off me”. She started to cry, but he did not stop.

[74] The trial judge in H.H. imposed a conditional sentence of two years less a day. The Court of Appeal substituted a sentence of 18 months’ imprisonment, ruling that the sentence at trial was “manifestly unfit” in a case in which the offender had abused a position of authority, had taken advantage of the victim while she was unconscious and had failed to heed her plea to “stop”. In these circumstances, the Court of Appeal held (at para. 5) that “a custodial sentence was clearly called for and, in our view, a penitentiary term would have been appropriate.”

[75] The next case cited by the Crown is R. v. Quashie, 200 O.A.C. 65 (C.A.). The offender in that case was 21 years old at the time of the offence and had no criminal record. The victim was a 19 year old university student with whom he was acquainted. He forced her to have vaginal sexual intercourse on two separate occasions, first after he asked to use the washroom in her dormitory and again, a few days later, when he met with her under the pretext of apologizing for his previous actions. He used a condom during both assaults, but it broke the second time, after which he advised her that he was HIV positive. The victim suffered vaginal injuries and emotional trauma. She received prophylactic treatment for HIV infection, which caused her diarrhoea, headaches, nausea and vomiting for a month. The effects of the anti-HIV medication and of the trauma caused her to miss work and school. She performed poorly on her exams and consequently lost her scholarship.

[76] Mr. Quashie was sentenced to two years’ imprisonment for the first offence and three years’ consecutive imprisonment for the second offence. He appealed the global sentence, arguing that it was manifestly unfit for a youthful first-time offender. The Court of Appeal upheld the global sentence, ruling that the trial judge was justified in concluding that a significant period of incarceration was warranted based on the serious physical and psychological harm caused to the victim. The Court of Appeal commented that the global sentence of five years’ imprisonment for the two offences “may be at the high end of the range” but was not outside the range of appropriate sentence for two serious sexual assaults.

[77] The Crown also relies on Thurairajah, which was decided in 2008. The case involved a youthful first offender who, like Mr. Gordon, had family support and strong rehabilitative potential. He was 19 years old at the time of the offence. He and two of his male friends took two 14 year old girls for a ride in a car. They drove to a wooded area, where they consumed alcohol. One of the girls became extremely intoxicated and passed out. The offender and his friends carried her back to the car. He sexually assaulted her in the back seat of the vehicle with three other people in the car. The assault included vaginal sexual intercourse from behind. The victim was unconscious throughout.

[78] After the assault, the offender and his friends drove away. They dropped off the other girl a short distance from her home. They then drove to a schoolyard where they dumped the victim, still unconscious and only partially clad, face down in a snow bank under a tree. The offender called her brother and told him they found her drunk in the school yard. They waited in the car for her brother to arrive. She was unresponsive. They drove her to her brother’s home and took her inside. She remained unresponsive. The offender tried to convince her brother that she did not require medical attention but her brother called 911 and she was taken to hospital. The treating physician said that she was nearly comatose and only one step away from requiring life support.

[79] A positive Pre-Sentence Report was prepared for the Court in Thurairajah. Based on that report, the trial judge found that, by all accounts, the offence was very much out of character for the offender, who was described as mild mannered and who did little other than attend school and work. The offender demonstrated remorse, though only post-conviction and pre-sentence. The trial judge imposed a conditional sentence of two years less a day, to be served in the community. He put the offender on partial house arrest for the first 9 months and imposed a curfew for the second 9 months, plus he required 90 hours of community service.

[80] The Court of Appeal found that the sentence was demonstrably unfit and substituted a sentence of 9 months’ incarceration with 6 months’ probation, noting that the offender had already served many months of his conditional sentence. The Court of Appeal remarked that the appropriate range of sentence at the time of sentencing would have been between two years less a day and four years’ incarceration. It specified that a reformatory sentence of two years less a day would have been “barely” within the appropriate range of sentence in all of the circumstances of the case, justifiable only because of the offender’s age, unblemished record, strong rehabilitative potential, family support and compliance with strict bail conditions for almost three years prior to sentence.

[81] The offender’s personal circumstances in Thurairajah bore some striking similarities to Mr. Gordon’s circumstances, but I agree with Defence counsel’s submission that the offence in Thurairajah was more egregious because: the victim was extraordinarily vulnerable, in a helpless and virtually unconscious state; the offence was committed in the presence of three members of her peer group, adding to her long-term humiliation and creating a heightened need for general deterrence; the vaginal intercourse was “unprotected” (without a condom); and the offender demonstrated stunningly callous and deplorable life-threatening treatment of the victim after the assault. None of these aggravating factors is present in the case before me.

[82] In R. v. Rand, 2012 ONCA 731, 307 O.A.C. 64, the 27 year old offender had non-consensual unprotected intercourse with a 17 year old woman at an open-air rock concert. She had been flirting and dancing with him and had kissed him consensually. She consumed a lot of alcohol and became confused and incoherent. She suffered a memory gap. Her next recollection was waking up in the bushes with her pants down and the offender on top of her, penetrating her vaginally. She told him, “No. No. No. You don’t have a condom.” She kept trying to move. She rolled over and he penetrated her anally. He then left her alone in the bush, where another man sexually assaulted her. She eventually got dressed and was able to leave and walk to a friend’s house. She suffered emotional trauma and some minor physical injuries.

[83] Mr. Rand had a criminal record, including convictions for crimes of violence and domestic violence. The trial judge imposed a sentence of four years’ imprisonment. The Court of Appeal did not intervene, ruling (at para. 19) that the sentence was “well within the appropriate range”.

[84] In R. v. Garrett (2014), the offender and victim were old friends who decided to go on a date. The offence occurred in the victim’s home. After some consensual kissing, the offender became aggressive, pinned the victim down on the floor and forced vaginal sexual intercourse on her despite her verbal protestations. She had bruises on her tailbone and thighs following the assault.

[85] The offender had no criminal record. The trial judge imposed a sentence of 90 days’ intermittent imprisonment and two years’ probation. The Court of Appeal found that the trial judge erred by over-emphasizing mitigating factors and by inferring that the victim’s initial consent to kissing rendered the offender’s subsequent conduct less serious. The Court of Appeal set aside the “manifestly unjust” sentence and substituted 18 months’ imprisonment with the same probationary order. The Court noted that the sentence it imposed “should not be taken as a sentence within the appropriate or usual range” because it was constrained by the Crown’s position at trial.

[86] In R. v. Stankovic, 2015 ONSC 6246, Justice Spies found (at para. 28) that the Rand case was more serious than the case before her because the victim in her case was “not particularly young or vulnerable”, the offender wore a condom during the assault and he did not have a record of convictions for violent crimes. The victim in Stankovic did not suffer any physical injuries but she reported being psychologically traumatized. Her relationship with her husband had suffered, she became reclusive and was in therapy and on medication. The devastating impact on her was treated as an aggravating factor. Other aggravating factors included that there was anal intercourse, in addition to vaginal intercourse, and that Mr. Stankovic had ignored the victim’s plea for him to stop. Justice Spies also expressed concern about Mr. Stankovic’s risk of re-offending given his lack of insight and empathy.

[87] As mitigating factors, Justice Spies considered that Mr. Stankovic was employed, was paying child support and wanted to maintain contact with his daughter. She gave serious consideration to the fact that he was a permanent resident who would face deportation if she sentenced him to more than six months’ imprisonment. She concluded that the appropriate range of sentence in Ontario, in a case of sexual assault without gratuitous violence, is two to four years. She imposed a sentence of three years’ imprisonment, with multiple ancillary orders.

[88] The final three cases relied on by the Crown were decided in the past two years.

[89] In Mitrovic, the offender sexually assaulted the victim in her home. She had called him because she was feeling unwell and did not want to be alone. When he arrived, he made some sexual advances, which she rebuffed. She later passed out on her bed and, while she was unconscious, Mr. Mitrovic tore off her clothes and inserted his penis in her vagina. She woke up to find him naked on top of her. She screamed and pushed him away. He left the room but returned moments later to retrieve a used condom. He taunted her by saying, “Good luck with your DNA evidence” before leaving her apartment. He taunted her again in text messages on his way home. The victim was not physically injured but she suffered substantial psychological harm as a result of the offence.

[90] Justice Molloy reviewed relevant cases and found (at paras. 38 and 41) that the general range of sentence for offences of this nature is between three and five years’ imprisonment. She held that there were no mitigating factors and numerous aggravating factors, including that Mr. Mitrovic had an extensive criminal record and history of violence against women. She imposed a sentence of four years’ imprisonment, which was what the Crown was seeking in the case.

[91] The offender in the recent McKenzie case was in circumstances very similar to Mr. Gordon, except that he was older. He was a permanent resident of Canada, having emigrated from Jamaica as a young adult. He had no criminal record. He was 33 years old at the time of the offence, was the father of two children born in Canada, including a toddler, and was in a stable relationship with his youngest child’s mother. He was providing financial support to his own mother who resided in Jamaica and to the mother of his older child. A pre-sentence report was prepared for the Court. Overall, it was positive, but the author noted the offender’s lack of insight into his offence and lack of remorse. The offender continued to maintain his innocence.

[92] Mr. McKenzie and the woman he assaulted were co-workers with a superficial relationship. After dancing together at a staff Christmas party, he kissed her on the lips. She did not resist. He then pulled her into a washroom and closed and locked the door. He kissed her on the neck and pulled both of their pants down. He turned her around and forced her to have anal sex, achieving brief partial penetration. She was saying, “no, no, no”, but he did not stop. The sexual assault ended because of a knock on the door. The victim, who was 19 years old, reported feeling pain after the fact. The trial judge held that, while the offence was “significant”, the impact on her fell “lower down the scale than in other cases”.

[93] The Crown submitted that the appropriate range of sentence was two to four years’ imprisonment. Relying on the Ontario Court of Appeal decisions in Garrett, Thurairajah and Rand, the Crown sought a penitentiary sentence, whereas Defence counsel submitted that six months less a day would be appropriate.

[94] The trial judge was not persuaded that the offence was as serious as the criminal conduct in the cases cited by the Crown. Based on the partial penetration and the activity that preceded the assault, he found that the case was somewhat less serious and imposed a sentence of nine months’ imprisonment. He gave “anxious consideration” to the collateral immigration consequences for Mr. McKenzie but concluded that a sentence of less than six months’ imprisonment would be too lenient in the circumstances.

[95] A sentence appeal by Mr. McKenzie was dismissed. The Ontario Court of Appeal found that the sentence at trial was not demonstrably unfit. However, the Court of Appeal expressed doubt about the mitigating value of the partial penetration and prior consensual behaviour, particularly since the assault only came to an end when someone knocked at the bathroom door. In upholding the trial judge’s sentence, the Court of Appeal noted that there was no jurisprudential support for less than six months’ imprisonment and found that such a lenient sentence would have involved reducing the sentence solely for the purpose of avoiding deportation, which the Supreme Court in Pham held was not appropriate.

[96] In the recent Cepic case, the offence occurred in a semi-public VIP room at a male strip club. The victim was a customer who paid the offender for two lap dances. During the second dance, he forced her to perform oral sex. He then turned her over and removed her shorts, skirt and underwear. She said “no” but he penetrated her vaginally from behind. He did not use a condom. The trial judge found that the penetration was relatively brief and that the offence did not involve any additional violence beyond that which is inherent in the act of sexual assault itself.

[97] The victim in the Cepic case was required to endure painful prophylactic treatment after the assault because of the risks associated with unprotected intercourse. She indicated that her trust in humanity had been eroded by the assault. She was struggling emotionally to cope with the trauma of what happened to her. Her relationship with her boyfriend dissolved. She was unable to focus on her education and her academic progress suffered as a result.

[98] Mr. Cepic was 29 years old at the time of the offence. He had a dated and unrelated criminal record. He had the full support of his family throughout the trial. Many reference letters were filed with the Court at the sentencing hearing. All of the authors described Mr. Cepic as a man who is compassionate and kind, a diligent worker, an honest person, a loving father and the type of person who would go out of his way to assist someone in need.

[99] The trial judge ultimately acceded to the Crown’s request for a sentence of two years less a day, but noted that the facts of the case could potentially attract a penitentiary sentence in the range of three years. The judge expressed the view that any sentence below an upper reformatory sentence would not give sufficient weight to the objectives of denunciation and deterrence.

[100] The Crown also relied on the 2014 Court of Appeal decision in R. v. S.A., but I find that case to be of little assistance since it involved multiple offences against more than one victim in circumstances that are markedly different from those in the case before me.

[101] Defence Counsel did not provide me with any additional cases. He advised that he was unable to find any cases directly on point. He argued that all of the cases relied on by the Crown involved more serious offences because of aggravating factors that are absent in this case, such as a breach of trust, unprotected sex, a prior criminal record, a disparity in ages, the use of alcohol to incapacitate the victim, or the use of threats of violence. He submitted that the appropriate range of sentence in this case should therefore start at a point lower on the spectrum than the most lenient of the sentences imposed in the cases submitted by the Crown.

[102] Defence counsel argued that the case bearing the greatest factual similarity to Mr. Gordon’s case is the McKenzie decision discussed above, in which the Ontario Court of Appeal upheld a sentence of nine months’ imprisonment.

[103] I agree that, apart from his age, Mr. McKenzie had a very similar background, personal history and family situation to that of Mr. Gordon. The offence committed by Mr. McKenzie also bore many similarities to Mr. Gordon’s offence, including that the offender and victim were superficially acquainted, the offender ignored the victim’s verbal protestations, the assault lasted for only a brief time and did not involve prolonged penetration, no gratuitous violence was used beyond that which was inherent in the offence and no physical injuries were sustained by the victim.

[104] Defence counsel submits that the offence in McKenzie was, however, more egregious than Mr. Gordon’s offence because of the disparity in the ages of the offender and victim and the facts that anal penetration occurred, no condom was used, and Mr. McKenzie locked his victim in a bathroom. Defence counsel further notes that Mr. McKenzie was 33 years old and therefore not a youthful offender like Mr. Gordon. For these reasons, he argues that the principle of parity requires imposition of a sentence on Mr. Gordon that is more lenient than the nine months imposed by the trial judge (and upheld on appeal) in McKenzie.

[105] I agree that the age disparity and the act of unprotected sex were aggravating factors in the McKenzie case that are absent in this case. I have difficulty seeing how anal penetration is more serious than vaginal penetration, but I recognize that anal penetration has been treated as an aggravating factor in some cases. However, in McKenzie, it was not treated as an aggravating factor by the trial judge or Court of Appeal. On the contrary, the trial judge found that anal penetration was not completed and that the partial penetration was a mitigating factor. Indeed, the trial judge remarked that a sentence of three years’ imprisonment would have been appropriate had there been fully completed vaginal or anal intercourse.

[106] In this case, Mr. Gordon penetrated AB vaginally twice. In that regard, Mr. Gordon’s offence was more serious than the offence for which Mr. McKenzie was sentenced to nine months’ imprisonment. Moreover, AB was only 15 years old at the time of the offence, whereas the survivor of Mr. McKenzie’s assault was an adult. AB’s young age is a factor that distinguishes this case from McKenzie and calls for a lengthier sentence. I’m not suggesting that AB’s age is an aggravating factor. It is an element of the offence for which Mr. Gordon is being sentenced and therefore cannot be an aggravating factor. However, it distinguishes Mr. Gordon’s case from Mr. McKenzie’s case.

[107] Furthermore, I disagree with Defence counsel’s characterization of the facts in McKenzie. Specifically, counsel submitted that an additional aggravating factor in McKenzie was that the victim was “locked in” a bathroom by the offender. I disagree. Mr. McKenzie locked the bathroom door from the inside, where he and the victim were located. While this may have made it more difficult for the victim to leave, she was not confined in the bathroom by a locking mechanism. The locking of the door was presumably done to keep other people out. Insofar as this ensured that no one witnessed the assault, this factor renders Mr. Gordon’s actions more egregious. Mr. Gordon forced AB to have sexual intercourse outdoors in a semi-public location. This is an aggravating factor that renders his actions more serious than the offender’s conduct in McKenzie.

REASONS FOR SENTENCE IMPOSED

[108] I recognize that any term of incarceration, particularly for a youthful first offender, is a sanction of last resort. I am also mindful of the Ontario Court of Appeal’s ruling that a first sentence of imprisonment should be as short as possible: R. v. Quashie, at para. 82.

[109] I believe that Mr. Gordon has strong rehabilitative prospects, which I do not wish to hinder by separating him from his support network for a lengthy period of incarceration. However, given the serious nature of his offence, I cannot prioritize his rehabilitation to the point of undermining the important objectives of denunciation and general deterrence.

[110] I recognize the near certainty of Mr. Gordon’s deportation if I sentence him to more than six months’ imprisonment. I have given this very serious consideration. It is a collateral consequence that strikes me as excessively harsh in Mr. Gordon’s particular circumstances as a new parent, but I cannot skew his sentence for the sole purpose of avoiding his deportation. It would not be appropriate for me to use my discretion as a sentencing judge to circumvent the operation of the provisions and policies of the IRPA. A sentence of less than six months’ imprisonment, which is what Defence counsel urges me to impose, would do just that. It would not be proportionate to the gravity of Mr. Gordon’s offence and the harm he caused to AB. While it might be sufficient to deter Mr. Gordon personally from engaging in further sexual misconduct, it would not satisfy the important objectives of general deterrence and denunciation of such conduct.

[111] Based on my review of the relevant cases, I conclude that the range of sentence for a single sexual offence involving non-consensual vaginal intercourse is from 18 months to four years’ imprisonment. In light of Mr. Gordon’s rehabilitation potential and other significant mitigating factors in this case, as well as the limited number of aggravating factors, Mr. Gordon’s offence falls toward the lower end of this range, but it does not fall at the bottom of the range.

[112] For all of the above reasons, I have concluded that a sentence of two years less a day is a just sanction in the circumstances of this case.

DISPOSITION INCLUDING ANCILLARY ORDERS

[113] Mr. Gordon, would you please stand.

[114] There will be a conditional stay of your conviction for sexual assault under s. 271 of the Criminal Code.

[115] For your conviction under s. 151 of the Criminal Code, I am sentencing you to two years less a day of imprisonment.

[116] You are prohibited from communicating, directly or indirectly, with AB or AB’s mother for the period while you are in custody (pursuant to s. 743.21 of the Criminal Code).

[117] There will be an order in Form 5.03 for the taking of DNA samples from you (pursuant to s. 487.051 of the Criminal Code).

[118] There will be an order in Form 52 that your name be added to the Sex Offender Registry and you must comply for 20 years with the Sex Offender Information Registration Act, S.C. 2004, c. 10 (pursuant to ss. 490.012(1) and 490.013(2)(b) of the Criminal Code).

[119] I am also obligated to make mandatory weapons prohibition orders pursuant to s. 109 of the Criminal Code. Pursuant to s. 109(1)(a), you are forbidden to possess any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for ten years. Pursuant to s. 109(2) you are forbidden to possess any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.

[120] Pursuant to s. 161(1)(b) of the Criminal Code, you are prohibited, for a period of ten years, from being employed or becoming a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years.

[121] The Crown also requested an order pursuant to s. 161(1)(c) that you be prohibited, for ten years, from having any unsupervised contact or any communication with a person who is under 16 years of age, except for your own child. I do not consider such an order to be warranted in the circumstances of this case.

[122] Finally, I am obligated to impose a victim fine surcharge pursuant to s. 737(1) of the Criminal Code. The amount of the surcharge is $200. I will hear submissions from your counsel on the amount of time you require to pay this.

Petersen J.

Released: October 22, 2018