COURT FILE NO.: CR-16-3710 DELIVERED ORALLY AND MADE AN EXHIBIT: Tuesday, June 18, 2019

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – T.D.

Counsel: Timothy M. Kavanagh, for the Crown Kenneth S. Marley, for the Defence

HEARD: April 3, 2019

REASONS FOR SENTENCE

Howard J.

Overview

[1] Mr. T.D. was charged in a seven-count indictment with three counts of sexual assault, contrary to s. 271 of the Criminal Code[^1]; three counts of extortion, contrary to s. 346(1.1)(b) of the Code; and one count of assault, contrary to s. 266 of the Code.

[2] The charges arose out of Mr. T.D.’s former relationship with his then newly-wedded spouse, who was the complainant in respect of all charges before the court. As the complainant is shielded from identification in this proceeding by reason of a publication ban, I refer to her as “the complainant” or by the initials “T.K.”

[3] Mr. T.D. pled not guilty to all charges against him.

[4] On January 25, 2019, following a five-day trial held without a jury, during which I heard evidence from six witnesses, including the complainant and Mr. T.D., I found Mr. T.D. guilty of one count of sexual assault and one count of extortion.[^2]

[5] In particular, I found Mr. T.D. guilty of:

a. committing a sexual assault on T.K., contrary to s. 271 of the Criminal Code, as charged in count 1 of the indictment; and

b. committing extortion by inducing T.K. to perform sexual acts on him by threatening to withdraw the immigration sponsorship application and have her deported, contrary to s. 346(1.1)(b) of the Code, as charged in count 2 of the indictment.[^3]

[6] Mr. T.D. is now before me for sentencing, the sentencing hearing having been held on April 3, 2019.

Factual Background

Circumstances of the Offence

[7] Mr. T.D. and the complainant, who came to Canada in 2013 from Nigeria, met through an online dating service in or about April 2015. They met in person on May 2, 2015, in Brampton, where the complainant was then living. Five days after they met in person, they obtained a marriage licence on May 7th. They subsequently moved the complainant to Windsor, where Mr. T.D. resides, and were married in Windsor on May 28, 2015.

[8] Problems in their precipitous marriage soon arose. There were five separate calls to the police of domestic incidents between their marriage on May 28, 2015, and Mr. T.D.’s ultimate arrest on July 30, 2015. Ultimately, their marriage lasted only nine weeks.

[9] A critical thread running throughout the couple’s relationship – and throughout the proceedings before this court – was the issue of the complainant’s immigration status. The complainant had immigrated to Canada in January 2013, when she was then 30 years of age. She left behind a daughter who remains in Nigeria and who had just turned 8 years of age the month before the complainant arrived in Canada.

[10] The complainant arrived in Canada at Montréal, where she presented with falsified documentation. She had purchased a visa that bore an accurate photograph of herself but did not bear her correct legal name. Upon arrival in this country, the complainant immediately disclosed the falsified information to Canadian immigration authorities, and she then claimed refugee status.

[11] The complainant’s evidence was that she came to Canada as a refugee because she was concerned for her life and the life of her daughter. To paraphrase the complainant, her evidence was that the family of the biological father of her daughter in Nigeria observed a practice of female circumcision and intended to carry out this genital mutilation on her daughter. However, the circumcision ceremony required the presence of the complainant and, in particular, the use of the mother’s blood. The complainant maintained that she left Nigeria in order to save the life of her daughter because in the absence of the complainant and the unavailability of her blood, the father’s family would be unable to complete the ceremonial female genital mutilation on her daughter.

[12] I concluded that it was not necessary to make a specific finding as to the veracity of the complainant’s account of the circumstances of her daughter in Nigeria.[^4] However, I did find, accepting the evidence of Mr. T.D. on this point, that when the complainant explained the circumstances of her background and her daughter in Nigeria to Mr. T.D., he genuinely believed the complainant as to why she could not return to Nigeria.[^5] Moreover, I also found that, for whatever reason, it was clear on the evidence presented at this trial that the complainant was genuinely terrified of the prospect of returning to Nigeria.[^6]

[13] The evidence before me was that the complainant’s claim for refugee status was denied by a Canadian immigration review tribunal and two appellate bodies. As such, the complainant was in an extremely vulnerable position and was at risk of being deported at any time.

[14] It is common ground that when the couple first met in person on May 2nd, the complainant told Mr. T.D. about her past and her immigration difficulties.[^7] Indeed, Mr. T.D. confirmed in his own evidence that the complainant explained the difficulties she was having with the immigration system during their very first meeting. The evidence of Mr. T.D. was that he believed both the complainant’s account of the situation with her daughter in Nigeria and the complainant’s immigration difficulties.[^8]

[15] As such, Mr. T.D. knew of the complainant’s precarious status in this country from the first day he met her.

[16] In or about the end of May 2015, following the complainant’s receipt of a letter from the Canadian Immigration authorities that essentially threatened her with deportation, Mr. T.D. and the complainant travelled to Toronto in order to retain an immigration lawyer, where they discussed Mr. T.D. commencing a sponsorship application concerning the complainant.[^9] Indeed, the evidence of Mr. T.D. was that it was his idea to commence the sponsorship application,[^10] and the immigration lawyer’s legal assistant, who testified at trial, recalled that Mr. T.D. was initially quite eager about the sponsorship application and indicated that he wanted it done immediately.[^11]

[17] However, it is common ground that Mr. T.D. contacted the immigration lawyer’s office several times over the following weeks in order to cancel the sponsorship application, only then to contact their office again shortly thereafter to have the application reinstated.[^12]

[18] The evidence of the legal assistant concerning what she called the “constant back and forth” of Mr. T.D. calling to cancel the sponsorship application, only to call back days later or even hours later and reinstate the application,[^13] was that it was so unusual that she had never seen the like in her nine years’ experience. She said that it happened several times, “more than ten,” over the course of the retainer. Indeed, it happened so often that, in their frustration, the lawyers fired Mr. T.D. and the complainant as clients. I found that given the independent and unchallenged evidence of the legal assistant, which I accepted, that it happened more than ten times during the course of the retainer, which essentially covered the entire period of the marriage, and given further that the marriage itself lasted only nine weeks, it was clear that Mr. T.D. was calling the law office to have the sponsorship application cancelled and reinstated more than once a week on average.[^14]

[19] I found that the only reasonable explanation for this curious “constant back and forth” behaviour on the part of Mr. T.D., and the only one available on the evidence before me, was that Mr. T.D. used the threat of withdrawing the sponsorship application to induce the complainant to perform sexual acts. The gravamen of the threat was that if Mr. T.D. withdrew the application, the complainant would likely be deported from Canada. And that is certainly what the complainant believed, as I found.[^15]

[20] The incidents of sexual assault occurred during that nine-week period when Mr. T.D. was married to T.K. The conviction for sexual assault was grounded on my finding that there were multiple incidents of fellatio and full vaginal intercourse to which the complainant did not consent.[^16] The evidence of the complainant was that Mr. T.D. demanded that she perform oral sex on him, which she otherwise did not want to do, as her evidence was that she regarded it as a sin. She had refused to perform oral sex before they were married. I accepted her evidence in that regard. I also accepted her evidence that there were occasions when she did not wish to have sexual intercourse with Mr. T.D. because she was tired and that the only reason she did engage in intercourse was because of the threat of deportation.[^17]

[21] I found that Mr. T.D. induced the complainant to engage in the sexual activities in question by way of his repeated threats to take advantage of her immigration status as a failed refugee claimant.[^18] While not every act of sexual intercourse between the couple was a product of Mr. T.D.’s threats, I accepted the complainant’s evidence that she was extorted to have sexual intercourse with Mr. T.D. on multiple occasions.

[22] I also found that, within the context of s. 273.1(2)(c) of the Code, Mr. T.D. abused his position of trust and power when he threatened to withdraw the complainant’s immigration sponsorship application for his own personal sexual gratification and for no reasonable justification or excuse.[^19]

[23] Having regard for the fact that count 1 in the indictment covers the period from May 28, to July 30, 2015, essentially spanning the entire period of the couple’s marriage, I found that these events did not happen on only one isolated occasion. Rather, I found that Mr. T.D. committed sexual assault on the complainant on more than one occasion during the period specified in the indictment, but I was unable to determine precisely how many times it occurred.[^20]

[24] The conviction for extortion was grounded on my finding that Mr. T.D. used the “constant back and forth” threats of cancelling the immigration sponsorship application in order to induce the complainant to perform sexual acts that she otherwise would not have performed.[^21] Indeed, Mr. T.D. admitted in cross-examination that at least, as he put it, “a small part” of his reason for cancelling the sponsorship application was because the complainant had refused to perform the sexual favours that he wanted.[^22]

[25] I found that there was no doubt that by making these threats, Mr. T.D. intended to obtain sexual favours from his wife, and that the threats were specifically directed to induce the complainant to perform oral sex on him or have intercourse with him when she otherwise did not want or consent to do so.[^23]

[26] Again, I found that this happened on more than one occasion during their relationship, but I was unable to determine the precise number of occasions.[^24]

Circumstances of the Offender

[27] A pre-sentence report was prepared on March 21, 2019, and marked as exhibit no. 1 on the sentencing hearing.

[28] Mr. T.D. was born on [...], 1968, and is currently 50 years of age. At the time he met the complainant in the spring of 2015, he was 46 years old; hence, there was an age difference of some 14 years between Mr. T.D. and the complainant. At that time, he was residing in Windsor and attending trade school, studying to graduate as a journeyman insulator heat and frost.

[29] Prior to his relationship with the complainant, Mr. T.D. had never been married before. He has no children or other dependents.

[30] As reflected in the pre-sentence report, Mr. T.D. experienced a traumatic and challenging upbringing. His parents divorced when he was quite young, and his mother remarried when he was six-years-old; he and his mother moved in with his step-father and four step-siblings, and subsequently a fifth step-sibling was born to his mother’s new union. Sadly, his mother died by suicide when he was 11-years-old. As well, I understand from the letter dated February 21, 2019, written in support of Mr. T.D. by his uncle, J.P., that Mr. T.D.’s grandfather also died by suicide when he was young. Following the passing of his mother, Mr. T.D. remained in the care of his step-father, who had legally adopted him, but advised that he felt like an “outsider” within his step-family because of his parentage.[^25]

[31] That said, the pre-sentence report indicates that Mr. T.D. has reportedly dealt with the grief associated with the loss of his mother, and he does not believe he struggles with bereavement issues at this time.[^26]

[32] At the age of 18 years, Mr. T.D. moved in with his own father, with whom he maintains a close relationship, and at age 29 he started living on his own.

[33] Mr. T.D. maintains regular contact with his own father, one of his step-brothers, and some contact with a maternal uncle. He described his relationship with his step-father and other siblings as strained.

[34] It appears that Mr. T.D. has been relatively successful in his schooling. Although Mr. T.D. reported that he attended multiple elementary and secondary schools because his family moved around a lot, he completed Grade 13 in 1988, and there are no indications of behaviour, attendance, or learning difficulties during his schooling.

[35] Further, Mr. T.D. has been involved in several post-secondary programs. He started in a political science program at a local university but did not complete the program. He then went on to complete a two-year college-level culinary arts diploma. Mr. T.D. is currently attending Motive Power Technician courses at the college level, and he expects he will complete the classroom portion of the program in 2020. Mr. T.D. advises that he is required to complete three years of apprenticeship work repairing cars once his coursework is completed.

[36] Mr. T.D. is currently unemployed and supports himself through his savings. His most recent period of employment was part-time work as an Auto Bay Technician at a local retail store. He held this position for about 18 months before his employment was terminated. His previous positions of employment include working in a kitchen at a restaurant, a tire store, and in construction.

[37] The pre-sentence report indicates that there are no reported concerns with substance abuse, companions, use of leisure time, or physical health issues.[^27] Mr. T.D. himself advises that he has never struggled with addiction issues, and substance use was not a factor in the offences.[^28]

[38] Mr. T.D. reported that some 20 years ago he participated in a men’s support group for social reasons and for mental health support. In 2002, Mr. T.D. was reportedly assessed by a psychiatrist, but apparently he did not identify with the diagnosis and, as a result, he did not pursue treatment at that time. Mr. T.D. advised that his mood has been depressed since his arrest, and he has been experiencing ongoing feelings of shame and disconnection. He advised that he has attended one or two counselling appointments at a local walk-in service, but he does not attend regular appointments. More significantly, Mr. T.D. was hospitalized for psychiatric observation in January 2019 after he expressed thoughts of suicide to a worker he was meeting with. Mr. T.D. denied any attempt or intention to harm himself and indicated that he does not have any such thoughts at this time.

[39] The pre-sentence report indicates that Mr. T.D. “appeared to accept some responsibility for his actions which led to the current offence and to express some remorse for the impact on the victim.”[^29]

[40] The pre-sentence report also reflects some indication of self-awareness on the part of Mr. T.D. regarding his marriage with the complainant. He described their relationship as complicated and unhealthy. He described some of his decisions as “impulsive and immature, in hindsight.”[^30] He surmised that many of his arguments with the complainant within the context of the marriage “were due to the impulsivity of their marriage and an ongoing ‘attachment’ he maintained with his ex-girlfriend.” The pre-sentence report indicates that the status of Mr. T.D.’s relationship with his ex-girlfriend is “unclear at this time.”

[41] As reflected in the pre-sentence report, Mr. T.D. described himself as responsible, helpful, and hard-working. I note that the latter description of Mr. T.D. is consistent with many of the letters of support filed before me from friends and colleagues, many of which describe Mr. T.D. as hard-working.

[42] The pre-sentence report indicates that Mr. T.D. appears before this court as a “repeat offender.”[^31] However, it appears that Mr. T.D.’s previous record entails only one conviction for failure to comply with recognizance, on or about April 20, 2016, in Windsor, for which Mr. T.D. received a conditional discharge and 12 months of non-reporting probation.

[43] The pre-sentence report indicates that areas of concern for Mr. T.D. include the domestic and sexual nature of the offence, as well as anger, mental health, unemployment, and the history of failure to comply with conditions.

[44] At the conclusion of the sentencing hearing on April 3rd, the court stood down to provide Mr. T.D. with some time to consider whether he wished to make any statement to the court to speak to the question of sentence, as contemplated by s. 726 of the Code. When court resumed, defence counsel advised that Mr. T.D. did not wish to make a statement at that time.

Impact on the Victims

[45] Subsection 722(1) of the Code directs a court to consider any statement of a victim prepared in accordance with that section.

[46] I am advised by Crown counsel that the Crown did invite the complainant T.K. to provide a victim impact statement if she wished. However, apparently no response was received from her.

Legal Parameters

[47] At the time of the offence, the provisions of s. 271 (a) of the Criminal Code relevant to count no. 1 in the indictment provide that everyone who commits a sexual assault is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years.

[48] At the time of the offence, the provisions of s. 346(1.1)(b) of the Code relevant to count no. 2 provide that everyone who commits extortion is guilty of an indictable offence and liable to imprisonment for life.

[49] I pause to note that extortion is a crime prosecuted only by indictment, carrying a maximum sentence of life in prison. As such, it is readily apparent that Parliament views extortion to be one of the most serious offences under Canadian criminal law. The specific intent requirement confirms that extortion is a crime of high moral blameworthiness.

Positions of Crown and Defence

[50] I have carefully considered the submissions of counsel for both parties. Mr. Kavanagh submitted on behalf of the Crown that an appropriate sentence in the circumstances of the instant case would be imprisonment for a term of three-and-a-half years (i.e., 42 months) on the conviction for sexual assault, as well as a further term of 12 to 14 months for the conviction on the charge of extortion.

[51] In the latter regard, Mr. Kavanagh submitted that having regard for the particular circumstances of Mr. T.D. and his traumatic and challenging upbringing, which, as Crown counsel said, may well have affected his mental state, and then consequently making some accommodation in respect of the conviction for extortion, which is an offence of specific intent, the appropriate sentence on the conviction for extortion would be 12 to 14 months, consecutive to the sentence on the sexual assault.

[52] As such, Crown counsel sought a global sentence in the range of 54 months to 56 months, or four years and six to eight months.

[53] Mr. Marley submitted on behalf of Mr. T.D. that, given what he submitted were the unique circumstances of the case before the court, including the impulsivity, immaturity, and unsophistication of the offender, this court should consider a global sentence of less than two years in a reformatory, followed by three years’ probation upon completion of the custodial sentence.

[54] Further, Mr. Marley asked the court to recommend that Mr. T.D. be permitted to serve his reformatory sentence at the Ontario Correctional Institute in Brampton, Ontario, so that Mr. T.D. might take advantage of the counselling opportunities available there. Mr. Marley submitted that his proposal would maximize the opportunities for rehabilitation for Mr. T.D. and would also maximize the benefits that community supervision might provide.

[55] I have considered the submissions of counsel for both the Crown and the defence, as well as the cases relied upon by both counsel, and their submissions on each other’s authorities. While a sentencing judge must respect the parity principle embodied in s. 718.2(b) of the Code and acknowledge that similar cases decided by other courts are useful for certain purposes, one must also recognize that because of the inherently individualized process of sentencing, the decisions in other cases turn on their own particular circumstances.

Analysis

Principles of Sentencing

[56] The Supreme Court of Canada has said that the sentencing of an offender is “one of the most delicate stages of the criminal justice process in Canada.”[^32] It requires “the exercise of a broad discretion by the courts in balancing all the relevant factors in order to meet the objectives being pursued in sentencing.”[^33]

[57] The notion of proportionality is the fundamental principle in sentencing, and that important principle is enshrined in s. 718.1 of the Criminal Code, which provides that:

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[58] In its seminal decision in R. v. Lacasse, the Supreme Court of Canada described proportionality as “the cardinal principle” that must guide sentencing courts in considering the fitness of a sentence imposed on an offender. As the Supreme Court explained, “[t]he more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime’s consequences, but also on the moral blameworthiness of the offender.”[^34]

[59] In Lacasse, the Supreme Court observed that determining “a proportionate sentence is a delicate task.”[^35] Indeed, the Court described how an unfit sentence can undermine public confidence in the administration of justice:

The credibility of the criminal justice system in the eyes of the public depends on the fitness of sentences imposed on offenders. A sentence that is unfit, whether because it is too harsh or too lenient, could cause the public to question the credibility of the system in light of its objectives.

One of the main objectives of Canadian criminal law is the rehabilitation of offenders. Rehabilitation is one of the fundamental moral values that distinguish Canadian society from the societies of many other nations in the world, and it helps the courts impose sentences that are just and appropriate.[^36]

[60] Section 718 of the Code sets out certain objectives of sentencing and provides that:

The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(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.

[61] Section 718.2 of the Code sets out other sentencing considerations, including the following:

A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, …

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[62] The Supreme Court has also repeatedly recognized that sentencing is an “inherently individualized process.”[^37] In R. v. Nasogaluak, the Supreme Court described this individualized process in the following terms:

The determination of a “fit” sentence is, subject to some specific statutory rules, an individualized process that requires the judge to weigh the objectives of sentencing in a manner that best reflects the circumstances of the case. … No one sentencing objective trumps the others and it falls to the sentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case. The relative importance of any mitigating or aggravating factors will then push the sentence up or down the scale of appropriate sentences for similar offences. The judge’s discretion to decide on the particular blend of sentencing goals and the relevant aggravating or mitigating factors ensures that each case is decided on its facts, subject to the overarching guidelines and principles in the Code and in the case law.[^38]

[63] My task is to impose a sentence that is appropriate for Mr. T.D. “based on the particular facts of the offence and of the offender within the applicable principles of law.”[^39]

Mitigating Factors

[64] I consider the following mitigating factors:

Lack of convictions

[65] Mr. T.D. was 46 years of age at the time of the offences and his criminal record is minimal. I appreciate that after the events in question here occurred, there is the one conviction in April 2016 for failure to comply with recognizance, but certainly as of the time of the offences, Mr. T.D. had no criminal record at all. These considerations are deserving of significant weight.

Personal circumstances

[66] As I have referenced, the pre-sentence report indicates that Mr. T.D. experienced a traumatic and challenging upbringing, including the passing of his mother by suicide when he was 11-years-old and his strained relationships with his step-family. The Crown has acknowledged these mitigating circumstances, in that, as I have said, Mr. Kavanagh made some reduction in respect of the length of sentence sought by the Crown in respect of the extortion conviction. I acknowledge them as well.

Support of the community

[67] It appears that Mr. T.D. has certain support in the community, and that is a mitigating factor. In this regard, I have had the benefit of reviewing and considering eight different letters of support from Mr. T.D.’s family and friends. One cannot read the heart-felt letter dated February 27, 2019, from Mr. T.D.’s father, Mr. A.W., and fail to be moved by it. I understand that Mr. A.W. has been a constant support to Mr. T.D. throughout these difficult proceedings. As Mr. A.W. has observed, this case “is a very sad story all the way around.” As well, as I have already referenced, I have also read the letter of support from Mr. T.D.’s uncle, Mr. J.P., as well as the other letters from Ms. C.H., Ms. G.F., Mr. J.T., Mr. L.M., Ms. L.E., and Mr. M.V.. Many of these letters of support describe Mr. T.D. as a hard-working man and a person whom the authors believe to be a good man. Many of the letters express their surprise upon learning of the charges against Mr. T.D., as that was not the man they knew. I would also note that, apart from Mr. T.D.’s father, three of the persons who wrote letters of support were in attendance in court on the day of the sentencing hearing.[^40]

Considerations of remorse

[68] While the pre-sentence report does indicate that Mr. T.D. “appeared to accept some responsibility for his actions which led to the current offence and to express some remorse for the impact on the victim,”[^41] I note the guarded nature of the statement. In the circumstances, I agree with the submission of Mr. Kavanagh that Mr. T.D. has not truly expressed or exhibited any real remorse for his conduct and the impact it has had on the victim. Certainly, there was nothing in his evidence at trial to that effect and, as I have said, Mr. T.D. elected not to exercise his right of allocation. Therefore, I give the statement in the pre-sentence report very little weight as a mitigating factor. That said, while an offender’s expression of remorse is a mitigating factor, the failure to express remorse is not an aggravating factor.[^42] Thus, the failure of Mr. T.D. to express any real remorse is simply a neutral factor.

Aggravating Factors

[69] There are also a number of aggravating factors present in this case, some of which have been codified in the Code, and thus I have considered the following:

Abuse of spouse

[70] Clause 718.2(a)(ii) of the Code requires the court to take into consideration as an aggravating factor “evidence that the offender, in committing the offence, abused the offender’s spouse or common-law spouse.” Again, it is common ground that all of the offences in question took place during Mr. T.D.’s marriage to the complainant. Sexual assault is a crime of violence, and domestic violence is a profound problem. Our Court of Appeal has said that “the extent of domestic violence is a serious social concern.”[^43]

Abuse of position of trust or authority

[71] Clause 718.2(a)(iii) of the Code requires the court to take into consideration as an aggravating factor “evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim.” In my Conviction Decision, I made a specific finding that Mr. T.D. induced the complainant by abusing a position of trust and power.[^44] I found that Mr. T.D. stood in a position of trust and power, not because he was married to the complainant, but because of the particular context of her immigration circumstances. I reasoned as follows:

On his own evidence, Mr. T.D. was the one who had the idea of the sponsorship application. He went with the complainant to the lawyers to instruct them to prepare the application. The evidence of Ms. Yoganath [the legal assistant to the immigration lawyer] was that he wanted it done immediately. He served as the sponsor for the complainant. As is obvious from his “constant back and forth”, he exercised control over the application: he could cause it to proceed or to be withdrawn.

Further, even on his own evidence, Mr. T.D. admitted that he knew the complainant was extremely vulnerable in Canada given her immigration status. He certainly knew that the complainant did not wish to be deported and, on his own evidence, he believed her explanation of the circumstances she was facing in Nigeria.

… I find that Mr. T.D. abused his position of trust and power when he threatened to withdraw the sponsorship application for his own personal sexual gratification and for no reasonable justification or excuse.[^45]

Pattern of abuse

[72] Mr. T.D.’s sexual assaults on his wife in this case were not isolated events. The assaults were repeated numerous times and involved full vaginal intercourse. As I said in my Conviction Decision, I am satisfied that the assaults did not happen on just one isolated occasion but were repeated throughout the marriage; however, the evidence did not permit me to make a specific finding as to the precise number of incidents. It is clear, however, that Mr. T.D. engaged in a pattern of abuse against his spouse.

[73] Further, Mr. T.D. required the complainant to perform oral sex on him, even though she did not consent because, as she testified, such an act was contrary to her beliefs. Her evidence was that she explained this to Mr. T.D. on the first night that they met when he attempted to persuade her to perform oral sex on him that night. As such, Mr. T.D. specifically knew of her beliefs, and hence his decision to force the complainant by threat to perform oral sex when he knew she regarded it as incompatible with her beliefs is of concern. I agree with Mr. Kavanagh’s submission that such behaviour demonstrates a keen disregard for the feelings and personal dignity of the victim. I regard that as an aggravating circumstance.

Appropriate Sentence

[74] Turning to the appropriate sentence for the sexual assault conviction, I begin by noting that the Ontario Court of Appeal has held that in cases of sexual assault involving forced intercourse with a spouse or former spouse, sentences generally range from 21 months to four years.[^46]

[75] Mr. Marley seeks a custodial sentence of 24 months, that is, towards the lower end of the applicable range.

[76] However, our Court of Appeal has held that cases at the lower end of the range involve single events.[^47] The case at bar is not a case involving a single incident; the case at bar is a case involving a repeated pattern of abuse by Mr. T.D. of his then wife.

[77] In a similar vein, in the case of R. v. N.H., Allen J. of our court reviewed some of the relevant authorities in cases of sexual assault committed within the context of a marriage or domestic relationship and concluded that:

The cases with lower sentences than four years involve circumstances not present in the case at hand such as: a guilty plea and a show of remorse; fewer incidents of sexual abuse; less violent and controlling relationships; an abusive upbringing; psychiatric and drug addiction problems; and good prospects for rehabilitation.[^48]

[78] Almost all of those same enumerated circumstances that render appropriate a sentence at the lower range are also not present in the case at bar. Certainly, there was no guilty plea and a show of remorse here. Nor is this a case of a few incidents of sexual abuse; I have found that there were repeated assaults. There is no evidence of any psychiatric or drug addiction problems. Moreover, I would not call Mr. T.D.’s an abusive upbringing. I have accepted that, as reflected in the pre-sentence report, Mr. T.D. experienced a traumatic and challenging upbringing. I wholly accept that, from the perspective of an 11-year-old boy, the loss of one’s mother by suicide would be nothing less than traumatic and devastating. And I also accept the perspective offered by Mr. T.D.’s uncle J.P. that young T.D. “was left alone to deal with his issues at an early age.” However, that is different than saying Mr. T.D. suffered an “abusive relationship.” There is no evidence before me that Mr. T.D. was abused during his upbringing.

[79] In terms of whether there is evidence here of “less violent and controlling relationships,” I accept Mr. Marley’s submission that, generally speaking, this case does not involve the type of added physical violence that one commonly sees in some other sexual assault cases; but that said, I do not think this is a case where one can fairly say there was no controlling relationship. On the contrary, in my view, this case very clearly demonstrates a controlling relationship, in which Mr. T.D. repeatedly abused his position of trust and power and repeatedly made threats to have his wife deported from this country in order to induce her to engage in various sexual acts that she did not otherwise wish to perform. To my mind, it was very much a controlling relationship. Indeed, that is one of the most troubling aspects to this case.

[80] With his usual deftness, Mr. Marley argues that this court should find that Mr. T.D.’s circumstances constitute a unique case justifying a lenient sentence at the lower end of the appropriate sentencing range. Counsel points to features of Mr. T.D.’s relationship with T.K. that were marked by impulsivity, immaturity, and unsophistication. Mr. Marley asks for a sentence that is predominantly driven by the sentencing objective of rehabilitation and seeks to maximize the opportunities for counselling in order to address certain underlying issues, which Mr. Marley argues are reflected in the pre-sentence report, of emotional and/or psychological health issues, which issues, it is said, might explain the things that Mr. T.D. did. To that end, Mr. Marley argues for a reformatory sentence at O.C.I. in Brampton, where Mr. T.D. may pursue appropriate counselling, followed by a three-year probation order providing for community supervision. Mr. Marley reminds the court that under s. 731(1)(b) of the Code, a probation order may be imposed only where the sentence is for two years or less.

[81] All of those considerations are encapsulated in the poignant expression in the letter of support from Mr. T.D.’s father, where Mr. A.W. observes that: “T.D. is truly at a crossroads in his life and I’m hoping that with probation and counselling it will be a life worth saving.”

[82] I feel the force of the father’s observation and Mr. Marley’s submissions – indeed, I have struggled with the question of what constitutes a fit and proportionate sentence for Mr. T.D. – however, at the end of the day, I cannot accept that the sentence proposed on behalf of Mr. T.D. constitutes a just, fit, or appropriate sentence in the circumstances of this case.

[83] I am not persuaded that this is such a “unique case” justifying such a lenient sentence. I appreciate that the offences were committed when Mr. T.D. was 46 years of age with no criminal record. But that feature does not make this case unique.

[84] Further, for present purposes, I am also prepared to accept Mr. Marley’s characterization that the conduct of the parties in this case – and I pause to make clear that I include both “parties” and not just Mr. T.D. – can fairly be said to be marked by impulsivity, immaturity, and unsophistication. (The difference between them, of course, is that while the complainant may have engaged in behaviour that was impulsive, immature, and unsophisticated, she did not engage in behaviour that was criminal, unlike her then husband.) In any event, I do not believe it can be fairly said in the circumstances of the instant case that impulsivity, immaturity, or unsophistication implicate or immunize the offender’s moral blameworthiness.

[85] As well, it is not clear to me that whatever suggested mental health issues raised in the pre-sentence report may truly be said to explain the things that Mr. T.D. did. I appreciate that some 20 years ago, Mr. T.D. participated in a men’s group for mental health support. However, it appears that was not something that Mr. T.D. continued or felt the need to continue. I also appreciate that in 2002, Mr. T.D. was assessed by a psychiatrist, but he did not “identify with the diagnosis” and did not pursue treatment. On the face of the material before me, one cannot be satisfied that these dated episodes explain or excuse Mr. T.D.’s conduct in 2015 towards his then wife.

[86] In a similar vein, the most distressing aspect of the pre-sentence report is that Mr. T.D. was hospitalized in January 2019 for psychiatric observation “after he expressed thoughts of suicide to a worker he was meeting with.” However, I note that my Conviction Decision was delivered on January 25, 2019. Thus, it is not clear to me, on the material before me, whether the episode of Mr. T.D.’s hospitalization and suicide ideation in January 2019 was a function of his reaction to these criminal proceedings and/or being convicted for these offences. If that were the case, then the suggested mental health issues would not explain at all Mr. T.D.’s behaviour towards his former wife in the spring of 2015. In this regard, I note the pre-sentence report’s observation of the reaction of Mr. T.D.’s father: “Mr. A.W. expressed concern about the offender attempting suicide as a means of dealing with his current situation.”[^49]

[87] In sum, in my view, the suggestions raised in the pre-sentence report that Mr. T.D. may be dealing with some mental health issues have not been sufficiently established or even developed in the evidence so as to permit me to conclude that they account for or implicate the reasons why Mr. T.D. engaged in the criminal behaviour in issue.

[88] In any event, it is clear that there is no evidence that the suggested mental health issues raised in the pre-sentence report would have impaired his decision-making ability or, by extension, the moral blameworthiness of the offender. There is simply no evidence of that.

[89] In the instant case, the overriding concern that, for me, outweighs the compelling considerations of Mr. T.D.’s minimal criminal record or any undeveloped suggestion of mental health aspects to his behaviour is Mr. T.D.’s repeated and concerted abuse of his position of authority and trust and his consequent victimization of a person who knew full well to be vulnerable and who was his married spouse.

[90] In our society, we take it as a given that a spouse is entitled to assume that her partner will have her best interests at heart. Quite apart from traditional marriage vows in which the one spouse promises to “protect” the other spouse, our society’s mores assume that one’s spouse is the one person above all else who will protect our body, person, and interests.

[91] That is most definitely not what happened here.

[92] In this case, on his own evidence, Mr. T.D. admitted that he knew that the complainant, his wife, was extremely vulnerable in Canada given her immigration status. He certainly knew that the complainant, his wife, did not wish to be deported and, on his own evidence, he believed her explanation of the circumstances she was facing in Nigeria.[^50]

[93] Further, on his own evidence, Mr. T.D. was the one who had the idea of the immigration sponsorship application. He went with the complainant to the office of the immigration lawyer to instruct them to prepare the application. The evidence of the legal assistant was that he wanted it done immediately. He served as the sponsor for the complainant. As is obvious from his “constant back and forth”, he exercised control over the application: he could cause it to proceed or to be withdrawn.[^51]

[94] It will also be remembered that Mr. T.D. admitted in cross-examination that at least, as he put it, “a small part” of his reason for cancelling the sponsorship application was because the complainant had refused to perform the sexual favours that he wanted.[^52]

[95] On the evidence before me, I found that the only reasonable and available explanation for Mr. T.D.’s “constant back and forth” behaviour was that Mr. T.D. used the threat of withdrawing the sponsorship application to induce the complainant, his wife, to perform sexual acts. The gravamen of the threat, of course, is that if Mr. T.D. withdrew the sponsorship application, his wife would likely be deported from Canada and returned to Nigeria. That is certainly what the complainant believed.[^53] As I have said, I also found that the complainant was genuinely terrified of the prospect of being returned to Nigeria. And Mr. T.D. knew this.

[96] But armed with this knowledge of his wife’s extreme vulnerability, what did Mr. T.D. do? What Mr. T.D. did was he used his knowledge of his wife’s extreme vulnerability in order to make threats that he knew would exploit her vulnerability so as to induce his wife to perform sexual acts that she otherwise would not have performed.[^54]

[97] I found that there is no doubt that by making these threats, Mr. T.D. intended to obtain the sexual favours from his wife.[^55]

[98] In my view, the abuse of trust and authority features of this case and the conscious decision to exploit the circumstances of a person one knows to be of extreme vulnerability – especially where that person is one’s own spouse – mandates the strong censure of the court.

[99] Even absent considerations of abuse of trust or authority, our court has held that primary consideration should be given to the principles of denunciation and deterrence when sentencing an offender who has committed domestic violence.[^56]

[100] As such, in my view, the appropriate sentence in this case is one that should act as a specific deterrence for Mr. T.D. and a general deterrence for other men as well, reflecting society’s revulsion and unequivocal disapproval of the offender’s conduct.

[101] In particular, I am of the view that any sentence akin to an upper reformatory sentence would not give sufficient weight to denunciation and deterrence on the facts of this case.

[102] Consequently, despite the very able submissions of Mr. Marley for the defence, I am unable to find that the circumstances of this case are so unique as to allow me to impose a lower sentence. In my view it is not possible for me to do so while also appropriately reflecting the required sentencing values of denunciation and deterrence in an appropriate manner.

[103] In all of the circumstances of this case, I have come to the conclusion that a just, fit, and proportionate sentence for Mr. T.D. is a term of imprisonment for three years and four months, or 40 months.

[104] Turning to the appropriate sentence for the extortion conviction, I accept the Crown’s submission that the sentence for extortion is wide-ranging and dependent on the associated criminal activity. It is fairly routine for a sentence for extortion to be ordered to run consecutively to the sentence for any other related offence arising from the same transaction.

[105] The defence made no specific submissions on the appropriate range of sentence for the extortion conviction.

[106] In the circumstances, for the reasons set out in the Crown’s submissions, I accept that the appropriate range of sentence on the extortion conviction is between 10 and 27 months’ imprisonment.

[107] As referenced above, in the instant case, the Crown seeks a sentence of imprisonment on the extortion conviction of between 12 and 14 months.

[108] Given my concerns, as expressed above, for the conduct of Mr. T.D. in the instant circumstances, which involved repeated threats made to his wife to have her deported back to Nigeria, in exploitation of her position of extreme vulnerability, and in order to serve only his own personal sexual appetites, I am satisfied that a sentence of imprisonment of 14 months is just, fit, and proportionate.

Concurrent versus Consecutive Sentences

[109] It is well established that where there are multiple offences, a sentencing judge should impose sentence on a concurrent basis where “the acts constituting the offences were part of a linked series of acts within a single endeavour.”[^57] This is a factual assessment.

[110] That said, consecutive sentences may be imposed where the offences are temporally linked but constitute invasions of different legally-protected interests.[^58]

[111] The totality principle – reflected in s. 718.2(c) of the Code – requires that a sentencing judge who orders an offender to serve consecutive sentences for multiple offences must ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender.[^59] In short, the sentencing judge must craft a global sentence that is not excessive.[^60] In such circumstances, the sentencing judge should follow the approach endorsed by our Court of Appeal that one should “first determine a global sentence and then assign sentences for each offence and designate each as concurrent or consecutive to fit within the global sentence.”[^61]

[112] In the case at bar, I am satisfied that the sentence on the count of extortion should be served concurrently with the sentence on the count of sexual assault. In my view, in the circumstances of the instant case, it is clear that “the acts constituting the offences were part of a linked series of acts within a single endeavour.”

[113] In the circumstances of the instant case, the offences for sexual assault and extortion involved the same complainant, occurred during the same time period, and were part of the same linked series of acts within a single endeavour. There is an undeniable close and inextricable nexus between the two offences on the facts of the instant case.

[114] The single endeavour of Mr. T.D. was to obtain sexual favours from the complainant. That is made clear by the indictment itself, count 2 of which charges that Mr. T.D. “without reasonable justification or excuse, and with intent to obtain sexual acts, did induce [T.K.] by threatening to have her deported.”

[115] Indeed, given my findings of fact in this case, it would not have been possible to convict Mr. T.D. on the charges of extortion without also convicting him of the charges of sexual assault. That is, there was no evidence before me that permitted me to conclude that the threats and extortion of the complainant actually occurred on particular dates or incidents in the absence of a sexual assault also occurring on those same occasions.

[116] Clearly, this is not a case like that in R. v. Smith (the Court of Appeal decision that established the range of 21 months to four years for domestic sexual assault), where there was a significant length of time between the offences committed, where the offences involved two different complainants, or where there was a lack of any other relevant nexus between the offences.[^62]

[117] Further, as I said in my Conviction Decision, this is not a case where Mr. T.D. used his threats to, say, extort money from the complainant or get her to perform other chores around the house.[^63] The threats of Mr. T.D. were specifically directed to induce the complainant to perform oral sex on him or have intercourse with him when she otherwise did not want or consent to do so – and that was the very same subject-matter of the sexual assault conviction.

[118] For all of these reasons, I would impose the sentence on the extortion conviction concurrently with the sentence on the sexual assault conviction.

Final Disposition

[119] Mr. T.D., would you please stand.

[120] With respect to your conviction on count no. 1 for committing sexual assault on T.K., contrary to s. 271 of the Criminal Code, I sentence you to a term of imprisonment for three years and four months, or 40 months.

[121] With respect to your conviction on count no. 2, committing extortion by inducing T.K. to perform sexual acts on you by threatening to withdraw the immigration sponsorship application and have her deported, contrary to s. 346(1.1)(b) of the Code, I sentence you to a term of imprisonment for 14 months to be served concurrently with your sentence on count no. 1.

[122] In addition, I make the following ancillary orders.

[123] Sexual assault is a designated offence under s. 490.01(1)(a)(xvi) of the Criminal Code for the purposes of the provisions dealing with sex offender information. Pursuant to ss. 490.012(1) and 490.013(2)(b) of the Code, I make an order in Form 52 that your name be added to the Sex Offender Registry and that you comply with the provisions of the Sex Offender Information Registration Act[^64] for a period of 20 years.

[124] As sexual assault and extortion are each a “primary designated offence” under s. 487.04 of the Code for the purposes of DNA collection and storage, the making of such a DNA order is mandatory. Accordingly, in respect of your conviction on count no. 1 for sexual assault, pursuant to s. 487.051(1) of the Code, I make an order in Form 5.03 authorizing the taking of the number of samples of your bodily substances that is reasonably required for the purposes of forensic DNA analysis. I make a similar order in respect of your conviction on count no. 2 for extortion. I also make an order in Form 5.041 requiring you to attend forthwith to give such samples.

[125] Pursuant to s. 743.21(1) of the Code, you are hereby prohibited from communicating, directly or indirectly, including any communication through electronic means or social media, with the complainant T.K. or any member of her family during your time in custody. Failure to comply with this order is a crime in itself.

[126] For the reasons set out in the Crown’s sentencing submissions,[^65] I find that the cellphone that was used by Mr. T.D. to video-record the act of sexual intercourse with the complainant in Algonquin Park, which intercourse and recording the complainant advised Mr. T.D. she did not consent to, constitutes “offence-related property” within the meaning of s. 490.1(1) of the Code. The cellphone was seized by the Ontario Provincial Police in the course of the investigation and was entered into evidence on the trial as exhibit no. 1. Pursuant to ss. 490.1(1)(a) of the Code, I make an order that the cellphone be forfeited to Her Majesty the Queen in Right of Ontario and be disposed of in accordance with that provision.

[127] Finally, pursuant to s. 109(1)(a) of the Code, you are hereby prohibited from possessing any firearm or codified weapon or device beginning today and ending ten years from your release from imprisonment.

Original signed by Justice J. Paul R. Howard

J. Paul R. Howard Justice

Delivered Orally: June 18, 2019

COURT FILE NO.: CR-16-3710 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN – and – T.D. REASONS FOR SENTENCE Howard J.

Delivered Orally: June 18, 2019

Footnotes

[^1]: Criminal Code, R.S.C. 1985, c. C-46. [^2]: R. v. T.D., 2019 ONSC 682 (S.C.J.) [“Conviction Decision”]. [^3]: Ibid., at paras. 239-240. The charges against Mr. T.D. in counts 3, 4, 5, 6, and 7 of the indictment were dismissed. [^4]: Conviction Decision, at para. 162. [^5]: Ibid., at para. 165. [^6]: Ibid., at para. 166. [^7]: Ibid., at para. 29. [^8]: Ibid., at para. 30. [^9]: Ibid., at para. 44. [^10]: Ibid., at para. 45. [^11]: Ibid., at para. 47. [^12]: Ibid., at para. 48. [^13]: Ibid., at para. 207. [^14]: Ibid., at para. 133. [^15]: Ibid., at para. 208. [^16]: Ibid., at paras. 215-216. [^17]: Ibid., at para. 209. [^18]: Ibid., at paras. 208-212 and 217. [^19]: Ibid., at para. 221. [^20]: Ibid., at para. 225. [^21]: Ibid., at para. 209. [^22]: Ibid., at para. 206. [^23]: Ibid., at para. 210. [^24]: Ibid., at para. 214. [^25]: Pre-Sentence Report dated March 21, 2019, exhibit no. 1, at p. 3. [^26]: Ibid., at p. 5. [^27]: Ibid., at p. 6. [^28]: Ibid., at p. 4. [^29]: Ibid., at p. 5. [^30]: Ibid., at p. 3. [^31]: Ibid. [^32]: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, 333 C.C.C. (3d) 450, at para. 1. [^33]: Ibid. [^34]: Ibid., at para. 12. [^35]: Ibid. [^36]: Ibid., at paras. 3-4. [^37]: R. v. M. (C.A.), [1996] 1 S.C.R. 500, at p. 567. [^38]: R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, 251 C.C.C. (3d) 293, at para. 43, citing R. v. L. (T.P.), [1987] 2 S.C.R. 309; R. v. M. (C.A.); and R. v. Hamilton (2004), 72 O.R. (3d) 1 (C.A.). [^39]: R. v. Johnson, 2016 ONSC 6656 (S.C.J.), at para. 18. [^40]: Those three persons are Ms. C.H., Mr. L.M., and Ms. G.F.. [^41]: Pre-Sentence Report, at p. 5. [^42]: R. v. Rockey, 2016 ONCA 891, 3 M.V.R. (7th) 1, at para. 31. [^43]: R. v. Pitkeathly, [1994] O.J. No. 546, 29 C.R. (4th) 182 (C.A.), at para. 15. [^44]: Conviction Decision, at para. 218. [^45]: Ibid., at paras. 219-221. [^46]: R. v. Smith, 2011 ONCA 564, 274 C.C.C. (3d) 34, at para. 87. See also R. v. Stewart, 2013 ONCA 579, 311 O.A.C. 70, at para. 5; R. v. E. (H.), 2015 ONCA 531, 336 O.A.C. 363, at para. 44; and R. v. R.C., 2018 ONSC 2114 (S.C.J.), at para. 8. See also R. v. S. (M.), 2008 ONCA 616, where the Court of Appeal upheld a sentence of eight years for repeated sexual violence against a spouse. [^47]: R. v. E. (H.), at para. 44. [^48]: R. v. H. (N.), 2017 ONSC 2493, at para. 31. [^49]: Pre-Sentence Report, at p. 5. [Emphasis added.] [^50]: Conviction Decision, at para. 220. [^51]: Ibid., at para. 219. [^52]: Ibid., at para. 206. [^53]: Ibid., at para. 208. [^54]: Ibid., at para. 209. [^55]: Ibid., at para. 210. [^56]: R. v. H. (N.), at para. 21, citing R. v. Jackson, 2010 ONSC 3910 (S.C.J.). See also R. v. D. (D.), 2015 ONSC 5865, at para. 56 per Fairburn J. (as she then was). [^57]: R. v. Saccoccia, 2017 ONSC 5531 (S.C.J.), at para. 36, citing R. v. W. (G.P.) (1998), 106 B.C.A.C. 239, [1998] B.C.J. No. 838 (B.C.C.A.), at para. 35, and R. v. Li, 2009 BCCA 85, 267 B.C.A.C. 77 (B.C.C.A.), at para 47. See also R. v. Goulding, 2017 ONSC 4376 (S.C.J.), at para. 17; R. v. Soon, 2017 ONSC 2037 (S.C.J.), at para. 24; and R. v. Sadikov, 2015 ONSC 4447 (S.C.J.), at para. 9. [^58]: R. v. Houle, 2008 ONCA 287, at para. 4, citing R. v. Gummer, [1983] O.J. No. 181, 38 C.R. (3d) 46 (C.A.), at p. 49 [cited to C.R.]: “We do not consider the rule that sentences for offences arising out of the same transaction or incident should normally be concurrent necessarily applies where the offences constitute invasions of different legally-protected interests, although the principle of totality must be kept in mind.” See also R. v. Sadikov, at para. 10. [^59]: R. v. M. (C.A.), at p. 531; R. v. Gummer, at p. 49; and R. v. J.S., 2018 ONCA 675, at para. 65. [^60]: R. v. Saccoccia, at para. 37. [^61]: R. v. B. (R.), 2014 ONCA 840, 327 O.A.C. 20, at para. 8, followed in R. v. J.S., at para. 66. [^62]: R. v. Smith, at para. 88. [^63]: Conviction Decision, at para. 210. [^64]: Sex Offender Information Registration Act, S.C. 2004, c. 10. [^65]: Her Majesty’s Sentencing Submissions filed March 27, 2019, at p. 10. I note that neither the Crown’s request nor the reasoning for same was challenged by the defence.