COURT FILE NO.: CR16400006670000 DATE: 20190625

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Crown - and - CAMERON MCCAW Defendant

Counsel: Patricia Garcia, for the Crown Daniel Rechtshaffen, for the Defendant

HEARD: February 4, April 25, and May 31, 2019

RESTRICTION ON PUBLICATION

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner.

SPIES J. (orally)

REASONS FOR SENTENCE

Overview

[1] By reasons released on January 7, 2019; R. v. McCaw, 2019 ONSC 53, I found that the defendant, Cameron McCaw, sexually assaulted K.B. in the early morning hours of July 12, 2015. He is now before me for sentencing.

Circumstances of the Offence

[2] Mr. McCaw was 26 at the time and Ms. K.B. was 18. The sexual assault occurred in the living room on the ground floor of a two-story apartment Mr. McCaw shared with Ms. K.B.’s then boyfriend, S.L. I found that in the hours before the sexual assault, Ms. K.B. was lying on the coach in the living room, passed out, having consumed a great deal of alcohol over the course of the evening and night of July 11, 2015. She was under the influence of alcohol to the point that when she was outside the apartment she needed to be carried upstairs to the ground floor of the apartment by her friend M.H. He lay her down on the coach in the living room where she lay passed out. Shortly thereafter, Mr. S.L., who had also had a great deal to drink, needed help going upstairs to his bedroom on the second floor of the apartment where he was put to bed. Mr. McCaw was aware of the inebriated state of both Ms. K.B. and Mr. S.L. and as such knew that she was in a vulnerable position and that Mr. S.L. was also passed out in his bed obviously not in a position to help her after Mr. M.H. left the apartment, leaving Mr. McCaw alone in the living room with Ms. K.B.. Nevertheless Ms. K.B. was in the safety of her boyfriend’s apartment and she had every right to feel safe, regardless of the state of her sobriety.

[3] I found that in the early morning hours of July 12th, Mr. McCaw removed all of Ms. K.B.’s clothing as she lay on the coach and he began to kiss her breasts and then engaged in vaginal intercourse with her. Ms. K.B. came to when Mr. McCaw said that he was going to come and she realized then that Mr. McCaw was having sexual intercourse with her. There is no doubt that this intercourse was without her consent and that she was incapable of consenting.

[4] Mr. McCaw testified that he had no memory of having sex with Ms. K.B. until the point when he ejaculated inside her. It was his position at trial that he was in a state of automatism having used marijuana and having consumed alcohol and GHB and that he was not acting intentionally or voluntarily. I did not accept that evidence and found that Mr. McCaw had not consumed any GHB and that he had only consumed some alcohol and marijuana. I found that Mr. McCaw exaggerated the amount of beer that he said he consumed that night and that he was not in fact extremely intoxicated at the time he had intercourse with Ms. K.B.. He was not so intoxicated that he did not know what he was doing.

[5] When Ms. K.B. realized what had happened, she picked up any clothes she could find at a moment’s notice and ran upstairs, naked, to Mr. S.L. She was frantic and scared and Mr. S.L. tried to comfort her. She wanted Mr. S.L. to get all her things so they could leave. I described Mr. McCaw’s reaction in my Decision. Mr. McCaw testified that he assumed the intercourse was consensual and that they had both made a horrible mistake. Mr. McCaw admitted that his primary concern was his relationship with Mr. S.L. and that he was afraid that his relationship with him as a roommate would be over. When Mr. S.L. saw Mr. McCaw a second time he appeared to be asleep or passed out, grasping a pair of scissors on his chest. Mr. McCaw testified that he did not remember this and he denied having a concern for his safety and grabbing the scissors for that reason.

[6] Ms. Garcia submitted that Mr. McCaw was putting on a show, and he knew what he did when he picked up the scissors. His priority was not Ms. K.B., but rather to fend off a confrontation. Ms. Garcia also argues that after the assault, Mr. McCaw grabbed a pair of scissors and feigned sleep. I did not make a finding about this and although I agree this is likely, I could not find this to be an aggravating factor proven to the standard of beyond a reasonable doubt.

Impact on the Complainant

[7] Ms. K.B. had to go to the hospital and be examined as part of a sexual assault kit, she gave a statement to police, testified at the preliminary inquiry and again at trial where at times she was visibly upset. Ms. K.B. also provided a written Victim Impact Statement (“VIS”). Her VIS shows that this sexual assault has had a profound impact on her. She states that after the assault she kept telling herself that she did not need to talk to anyone about this and that she resorted to drinking and that she sank deeper and deeper into a dark hole. She explains how every time she hears the name Cameron it brings tears to her eyes. She used to be a very happy person but now is depressed and has terrible anxiety. She has serious trust issues and feels unsafe no matter where she is or what she is doing. She speaks of how difficult it was to testify at the trial with Mr. McCaw staring at her. She ends her VIS with the statement that it does not feel like a relief to write it because what Mr. McCaw did will never go away and will be with her forever until she is an old woman.

Circumstances of Mr. McCaw

[8] Mr. Rechtshaffen provided a brief of character reference letters on behalf of Mr. McCaw. Ms. Garcia took no issue with the veracity of the letters, save for one, which I will come to. She did submit however that there is an element of denial on the part of family members although she admitted that Mr. McCaw’s family is well intentioned and wants to support him. Mr. Rechtshaffen submitted that he did not read the character reference letters as the authors being in denial as submitted by Ms. Garcia. They all address Mr. McCaw’s drug abuse issues but also state that he has taken personal responsibility for what has happened. Many of the letters describe a young man who is very intelligent and has a lot to offer as a productive member of society upon his release from the sentence I impose. I will review each of the letters.

[9] The first letter comes from Steve Holdt, an Addiction Counsellor at the Renascent Continuing Care Programs dated May 29, 2019. His letter confirms that Mr. McCaw completed their Continuing Care program, which consists of two phases. The first, Protecting Our Sobriety, meets two times per week for five weeks; and the second, Living Sober, meets once a week for ten weeks. Mr. McCaw participated in all 15 weeks and completed the program on November 25, 2015. Mr. Rechtshaffen advised me that Mr. McCaw entered this program immediately after he was granted bail. Mr. Holdt states in his letter that Mr. McCaw participated well and maintained excellent attendance. Mr. Holdt concludes his letter with his opinion that Mr. McCaw will “continue to remain clean and sober as long as he willingly practices the principles of the program to which he was introduced here at Renascent.”

[10] Ms. Garcia questioned what Mr. McCaw has done since completion of the Renascent program. I note that Mr. Holdt states that Mr. McCaw has also attended the bimonthly alumni meetings since the completion of this program. In addition, Mr. Rechtshaffen advised that after the Renascent program was completed Mr. McCaw went to Alcohol Anonymous (“AA”) for about two years but he had difficulty connecting with the curriculum because it has a religious component to it, and he had become an atheist.

[11] The second letter comes from Joey Brandt, the General Manager of PlusOne Inc. This is a company that is owned by Mr. McCaw’s parents. This business operates as in-building messengers and has some very established clients although all of their contracts are 30-day contracts. Mr. Brandt states that Mr. McCaw worked under him in several roles from 2011 until 2018 but that they negotiated a separation then when this court case became public knowledge. Ms. Garcia suggested that this could not be true, since Mr. McCaw’s parents own the company. Mr. Rechtshaffen advised that Mr. McCaw’s employment with the family company was terminated just prior to my Decision as the family was concerned about the press coverage, which could be a problem for their clients. I accept what Mr. Brandt states in his letter. In any event the only significance of this is whether or not to accept Mr. Brandt’s description of Mr. McCaw as an employee. He states that although in the beginning there were problems with lateness and absenteeism Mr. McCaw was good at his job and “a valuable team member when present”. In 2016 he began to improve and was rarely late. This would have coincided with the steps Mr. McCaw took to overcome his drug and alcohol addictions.

[12] Mr. Rechtshaffen advised that after Mr. McCaw lost the job with his parents’ company, he worked in small renovation jobs, but once the owner of the company found out about his conviction, the owner was no longer comfortable with Mr. McCaw going into people’s homes. He also lost a part-time job in a scrap yard. He has not worked since December 2018.

[13] There are also letters from Mr. McCaw’s father, mother, younger brother, younger sister and an aunt and uncle. I agree with Mr. Rechtshaffen that these letters demonstrate very, very strong family support for Mr. McCaw, and that he obviously has a great social network of support that he had earned. The letters from his family members and particularly his parents’ letters, go into the problems Mr. McCaw has had with drugs and how his parents attempted to deal with that. They do not sugar coat what his life was like once he turned 14.

[14] Mr. McCaw’s parents also speak to how Mr. McCaw was transformed in a major way after he entered the Renascent House treatment program. His father states that his personality has been transformed in a major way. In situations that were tense or emotionally fraught, he remained calm and he goes out of his way to be helpful in practical ways. He is more understanding of others and less judgmental. His baseline outlook is now positive, cheerful and empathic.

[15] Mr. McCaw’s mother states that she too has seen an amazing transformation in her son and describes in detail how he is now supportive of his family and helpful to all of them. She recognizes that sobriety is a huge and lifelong pursuit but that he is making such progress and that the difference in him is “uncanny”.

[16] Mr. McCaw has been in a long term relationship with Elisabeth (“Lissy”) Sanio since 2017 and since 2018 it has been a long distance relationship as she had to move home to Germany because her work permit had expired. Mr. McCaw’s father describes Ms. Sanio as an impressive young woman and states that the fact this relationship has survived despite what Mr. McCaw has been found guilty of and despite the fact that they are now apart is to him the best evidence of the changes he has witnessed in his son.

[17] Mr. McCaw’s younger brother John, is clearly very close to his brother Cameron. He describes in his letter, the “tectonic shift” and transformation that he has seen in his older brother’s personality since he returned from Renascent. John McCaw also describes the difficulties his brother experienced when their parents separated in 2011 and in the years that followed up to the time of this offence. He states that he noted that his brother had a “newfound sense of responsibility and acknowledgment in Cameron’s depictions of his actions” and that he is filled with remorse for the crime he committed and all who were impacted by it. John McCaw also explains his observations of how his brother can now cope in healthy ways with triggers that in the past led him to his destructive behaviours and that he has seen a huge growth in his brother’s level of empathy, sense of responsibility and concern for others.

[18] Mr. McCaw’s younger sister, Lucy, also speaks to the amazing changes she has seen in her brother and how she too has a close relationship with him.

[19] In the letter from Mr. McCaw’s aunt, Sheila Malins, she too describes a close relationship and how Cameron has been doing well since he went into rehab. His uncle, Larry Cusimano, also speaks of the great strides that Mr. McCaw has made to put his life in order. Mr. Cusimano states that although Mr. McCaw’s actions in terms of the sexual assault were completely out of character for him he does not deny or try to evade responsibility and that he does not believe there is any danger that his nephew would ever repeat this offence.

[20] Mr. McCaw’s girlfriend, Ms. Sanio, states that when Mr. McCaw disclosed the charges to her that he did not deny or defend himself and that he took responsibility for what had happened.

[21] Some of Mr. McCaw’s close friends also provided character references. Rachel Luu, who has known Mr. Cameron for six years, describes how Mr. McCaw has avoided parties and events to avoid places where there is easy access to drugs so that he does not slip back into his destructive habits. Chris Gauvin has known Mr. McCaw for 15 years and states in his letter that he is like a brother. He states that Mr. McCaw has stuck with the concepts that he has learned to keep himself “clean”. Mr. McCaw’s friend Carlie McGuinness also states that Mr. McCaw, whom he has known for ten years, continues to “stick to this new lifestyle”.

[22] In terms of the concern raised by Ms. Garcia, I agree that to some extent the family believes that Mr. McCaw’s actions in sexually assaulting Ms. K.B. were caused, as his father put it “from the path he was on”. His younger sister states that her only way of understanding what happened is that her brother “was so intoxicated that he wasn’t really in control of himself”. His aunt Ms. Malins states that she “knew that drugs/alcohol had to have been involved” and that a sober Cameron would never have committed this offence. His friend Ms. Luu states in her letter that she understands that “heavy intoxication as a result of GHB was a huge factor to take into account with respect to the incident”.

[23] Mr. Rechtshaffen submitted that although Mr. McCaw has had a drink here and there and still consumes some marijuana, he is not out of control now. He is confident that he will be able to remain sober while in custody.

[24] At the outset of the sentencing submissions, Ms. Garcia asked that page 74 of the medical records of Mr. McCaw from the Toronto Rehabilitation Institute that had been provided to her at trial, by the defence, as part of the Peel Centre Medical Records, be marked as an exhibit on sentencing as a business record. This page sets out notes dictated by Dr. Silverman for the Attending/Staff Dr. Kumbhare for a visit on March 19, 2018 to the EMG Clinic for recurrent hand and finger numbness. There is no evidence as to whether or not Dr. Silverman was present when this report by Mr. McCaw was allegedly made. Ms. Garcia wished to rely on part of the social history set out that Mr. McCaw reported consuming between 0-7 alcoholic beverages per week and that he rarely used recreational drugs. Essentially she wanted this report of what Mr. McCaw was drinking in a week to contradict the rehabilitation evidence that he had filed on the sentencing hearing.

[25] Mr. Rechtshaffen objected and took the position that was that this was not permissible as Ms. Garcia was trying to impeach Mr. McCaw by using this report as a prior inconsistent statement and that she should have put this record to him during the trial. He also advised me that Mr. McCaw was not saying that he has never taken a drink. Mr. Rechtshaffen, who was not trial counsel, also stated that he learned for the first time at the outset of the sentencing hearing that Ms. Garcia wished to introduce this record.

[26] Ms. Garcia admitted that she had not formally given notice to Mr. Rechtshaffen of her intention to introduce this record as a business record, which in itself presents a problem given the objection. She argued however that it should not have been a surprise to Mr. Rechtshaffen that she was intending on using this document. Her position was that it was not necessary for her to use this record to impeach Mr. McCaw at trial because when Mr. McCaw testified at trial he made great pains to say that his rehabilitation is complete, but at the time of the trial the truthfulness of this statement was not an issue because the issue was whether or not he had sexually assaulted Ms. K.B.. It is her position that impeaching Mr. McCaw on this issue only became relevant now.

[27] I admitted the document as an exhibit but advised counsel that I would consider what weight to give to it. I have decided to give the record no weight. The fact that a hospital record is a business record does not mean that the document can simply be filed and relied upon for the truth of any statements set out that are attributed to the patient; in this case Mr. McCaw. In fact when these records were put to Dr. Gojer, one of the defence experts on the trial, by Ms. Garcia, she asked that the Peel Centre notes be admitted as a business record and marked as an exhibit. I allowed the records to be marked as an exhibit at trial on the basis Ms. Garcia proffered them, namely a record that Dr. Gojer chose not to include in his report that is inconsistent with what Mr. McCaw told him. I made it clear that these records were not being admitted as a record for Mr. McCaw.

[28] In so far as the weight I should give this record now, in my view, the law is clear that even as a business record that does not mean that all of the contents of the record are admitted for their truth. In this case, this report is unlike the recording of a blood pressure or temperature and as it is a prior statement that Mr. McCaw is alleged to have been made, in my view, before it can be used to impeach him it had to be put to him so he could be asked whether or not he made that statement to the doctor. Without having proven the statement, I am not able to ascertain if the record is accurate. For these reasons I find the record and alleged prior inconsistent statement to be of no value.

[29] Finally, Mr. McCaw provided his own letter to me. He states that he is truly sorry for the impact his actions have had on Ms. K.B. and that “she absolutely deserves to be able to feel safe at social gatherings or anywhere else she happens to be”. He states that he sincerely appreciates and respects women and so this has affected him deeply. Mr. McCaw also describes his relationship with his girlfriend who has promised to wait for him. She has been a huge support and a big part of the positive changes that he has made. He looks forward to building a new life with her once he is released.

Legal Parameters

[30] The conviction for sexual assault carries a maximum sentence of ten years in these circumstances, pursuant to s. 271 (a) of the Criminal Code. There is no minimum sentence.

Positions of Crown and Defence

[31] Ms. Garcia seeks a custodial sentence of four years, as well as ancillary relief, including an order that Mr. McCaw’s name be added to the Sex Offender Registry for ten years, pursuant to section 490.012 of the Criminal Code, and a mandatory DNA order pursuant to section 487.051(1) of the Criminal Code, on the basis that this offence is a primary offence. She also seeks an order that Mr. McCaw have no contact with Ms. K.B., Mr. S.L. and Mr. M.H. pursuant to section 743.21 of the Criminal Code.

[32] Mr. Rechtshaffen submitted that the appropriate sentence would be one year of custody. He took no issue with the ancillary orders requested by Ms. Garcia.

The Case Law

[33] Both counsel provided case law to me in support of their respective positions.

The Crown’s Cases

[34] Ms. Garcia submitted that I should not rely on the cases from the Ontario Court of Justice as they are in a “different wheelhouse”. I agree that is true in those cases where the Crown proceeded summarily as in that event the maximum sentence pursuant to s. 271 (b) of the Criminal Code is only 18 months.

[35] Ms. Garcia also submitted that I should rely on cases where the Court of Appeal has established what the range should be. In that regard she submitted that I should not rely on those cases from the Court of Appeal where deference was given to the sentencing judge as those decisions do not necessarily reflect the Court’s views on what an appropriate sentence should have been in that the Court can only intervene if the sentence imposed is “demonstrably unfit”. I agree that this is a factor to consider when determining the views of the Court of Appeal as to what would have been an appropriate sentence at the time of sentencing.

[36] Ms. Garcia submitted that the appropriate range of sentence for this case is three to five years. The cases provided by Ms. Garcia in support of her position are as follows:

R. v. Thurairajah, 2008 ONCA 91, 229 C.C.C. (3d) 331 Doherty, Gillese, Sharpe JJ.A.

• The 19 year old offender sexually assaulted the 14 year old complainant in the back seat of a car after she and her friend agreed to join him and his friends in skipping school to go drinking. She had become very drunk and was unconscious. The offender did not use a condom. Afterwards, the offender and his friends dumped her in a snow bank under a tree, and called her brother to say that they had found her there. When her brother took her to the hospital, she was hypothermic and near comatose.
• The offender had no criminal record, strong rehabilitative potential, and his family’s support. The Court of Appeal also considered it mitigating that he had complied with strict bail conditions for almost three years prior to sentence: para. 38.
• Aggravating factors were the age and vulnerability of the victim, that the crime occurred in the presence of other members of the victim’s peer group, the significant emotional harm to the victim, which was made worse by ostracization by her ethnic community, and the offender’s stunningly callous and highly life-threatening treatment of her after the rape. Doherty J.A. stated at para. 43 that these aggravating factors were such that the fundamental purpose of sentencing could only be properly served by a sentence that place a heavy emphasis on general deterrence and particularly denunciation.
• The Court of Appeal found that the trial judge put too much weight on certain claimed mitigating factors – the offender’s “emotional upset” and his “awkwardness” around girls, as well as on his remorse, which only appeared after conviction and before sentence.
• The Court of Appeal found that the non-custodial sentence imposed of two years less a day to be served in the community was demonstrably unfit. At para. 38 Doherty J.A. stated that he was initially inclined to the position that a penitentiary term was required in all the circumstances of this case but that upon further consideration he had come to the view that a sentence of two years less a day was “within, albeit barely, the appropriate range of sentence given the offender’s age, his otherwise unblemished record, his strong rehabilitative potential, his family’s support and his compliance with strict bail conditions for almost three years prior to sentence.” [emphasis added]
  • Given that the offender had completed sixteen months of his sentence, the Court of Appeal imposed nine months’ imprisonment, but Doherty J.A stated at para. 48 that “the appropriate range at the time of sentencing was between two years less a day and four years’ incarceration.”

[37] As I will come to, it is difficult, if not impossible, to reconcile this statement of the appropriate range with the Bradley decision that was released only a month later. Furthermore, there have been decisions of the Court of Appeal since then, which I will come to, that suggest that this is not the appropriate range of sentence for serious sexual assaults where there has been vaginal or anal penetration.

R. v. Bradley, 2008 ONCA 179, 234 O.A.C. 363 Gillese, Blair and Armstrong JJ.A.

• The appellant was a police officer who had befriended and mentored the complainant, an aboriginal woman who wanted to become a police officer. The sexual assault occurred in 1992, many years prior to trial, after the complainant invited the appellant to her home. He sexually assaulted her vaginally and anally, and demanded oral sex from her. There was no violence “apart from that which is inherent in such an offence”. He made degrading comments to her and told her she “owed this” to him.
• At the time of the assault, the appellant was 39 and the complainant was 21. The appellant had no prior criminal record and there was much evidence on his otherwise good character and positive role as a father.
• The appellant was sentenced to four years’ imprisonment by the trial judge.
• The Court of Appeal found that the trial judge erred in treating what he found to be the appellant’s fabricated evidence as an aggravating factor: para. 15.
  • The Court of Appeal stated that “in the circumstances, the appropriate range of sentence was three to five years”: para 18, emphasis added. It varied the appellant’s sentence to three years’ imprisonment because there was no violence apart from that which is inherent in such an offence, the offence has occurred many years prior to trial, the offender was in his early 50’s with no criminal record, had an otherwise unblemished character and a positive role as a father to his two youngest children, at para. 18.

[38] Mr. Rechtshaffen submitted that this case is distinguishable from the case at bar for a number of reasons including the fact that the offender was a police officer, acting as a mentor to the complainant, he engaged in both vaginal and anal sex with the complainant, she was a vulnerable aboriginal woman and the offender was almost twice her age. He submitted that in light of these facts and the sentence imposed, that it is hard to imagine how the sentence proposed by Ms. Garcia is remotely reasonable. I agree that there are a number of aggravating factors in this case that do not apply to the case at bar, but Bradley is support for the position of the Crown that in the case of completed acts of sexual intercourse, considered to be a serious sexual assault, the range of sentence is three to five years.

R. v. Khan, 2015 ONSC 4325 A.J. O’Marra J.

• The offender sexually assaulted two fellow students at Seneca College. He groped the vaginal area of one complainant and vaginally penetrated the second, ejaculating inside her. Both complainants said to him throughout that they did not want to have sex with him and the second complainant specifically told him that she did not want to get pregnant.
• The assaults had serious impacts on both complainants. One underwent HIV treatment to ensure that she did not have HIV which resulted in considerable debilitating side effects for the month of treatment.
• The offender was 20 at the time of the offences, and visiting Canada from Saudi Arabia on a student visa. He had no criminal record, good potential for rehabilitation, and strong family support: para. 43.
• The fact that the offender acted as a “predator of opportunity”, seeking out intoxicated female students when they were alone and vulnerable was an aggravating factor. So too was the fact that the intercourse was unprotected and subjected the complainant to fears of pregnancy or disease: paras. 39-40.
  • The offender was sentenced to three years’ incarceration for the intercourse and six months’ incarceration for the groping, to be served consecutively.

[39] As Mr. Rechtshaffen submitted, in this case the offender was being sentenced to two sexual assaults, with two complainants, committed on two different days. He was considered a predator who was looking for vulnerable, intoxicated women. Nevertheless in the case of the unprotected vaginal intercourse of one of the complainants he was sentenced to three years.

R. v. M.M., 2017 ONSC 1829 Molloy J.

• The complainant had called the offender to come make sure she was alright after she had consumed a large quantity of alcohol, cocaine, an antidepressant and a sleeping pill. The two were friends. After he arrived, he made sexual advances towards her, which she rebuffed. She passed out shortly afterwards. She woke up to find him naked in her bed with his penis inside her. Her tights and bra had been ripped. She pushed him away and he left, but then returned to retrieve a used condom, saying “Good luck with your DNA evidence.” He also sent her similar taunting texts.
• The offender was 45 at the time of sentencing. He had a “lengthy and alarming criminal record”. There were some property crimes, but the vast majority were crimes of violence against women who were ex- or current girlfriends. He was on probation for his most recent domestic assault conviction at the time of the offense.
• Justice Molloy found it an aggravating factor that the victim suffered serious psychological trauma. She also noted his “swaggering pompous attitude in the courtroom” as well as his smirking during portions of the complainant’s testimony, as the absence of any mitigating remorse. The vulnerable state of the victims was also an aggravating factor, as was his callous attitude afterwards.
• Molloy J. rejected defense counsel’s suggestion that the sentence should keep the offender out of the federal penitentiary system so that he could have access to rehabilitative programming, finding that those programs were available in the federal penitentiary system: paras. 24-29.
• Molloy J. found that the “general range for offences of this nature is between three and five years”: paras. 38-39 [emphasis added], relying on Bradley, supra. Sentences of less than three years were only for exceptional circumstances, and the trend in more recent years was towards longer sentences in cases of serious sexual assault: para. 41. She did not refer to Thurairajah in her reasons.
• At para. 42, Justice Molloy referred to another decision of our Court of Appeal, R. v. Rand, 2013 ONCA 731, a case where the 27 year old offender was convicted of sexually assaulting a very intoxicated 17-year-old at an open air concert. He had both unprotected vaginal and anal intercourse with her without her consent as well as forcing her to perform oral sex on him. He had a criminal record including two assault convictions for domestic violence. In brief reasons upholding the four year sentence imposed by the trial judge the court stated that it was “well within the appropriate range”.
• Molloy J. at paras. 44-46 also referred to R. v. A.(S.), 2014 ONCA 266 where the Court of Appeal upheld the trial judge’s five year sentence for sexual assault where the offender had committed two sexual assaults on two different complainants. In each case the offence was premeditated and the offender knew the complainants and took them to secluded locations where he threatened them and forced them to perform oral sex on him. He did not use a condom and ejaculated on the complainants. He threatened vaginal penetration but was unable to maintain an erection. The trial judge reviewed cases going back to 2000 and concluded that the range accepted by the Court of Appeal for serious sexual assaults involving a single complainant goes from mid-reformatory to at least six years; see 2013 ONSC 1961 at para. 19. Molloy J. noted at para. 45 that there were considerable mitigating factors, most notably that the offender was only 23 years old at the time and had no prior criminal record. She stated at para. 46 that the Court of Appeal upheld the five year sentence as appropriate but specifically disavowed of the trial judge’s suggest range. The Court of Appeal held at para. 1 that the trial judge erred in suggesting that the range for these types of offences could be as low as reformatory sentences and held that the offences involved in that case required a penitentiary sentence “of some length”.
• Justice Molloy found that on balance the Rand case was similar to M.M. and she imposed a sentence of four years’ imprisonment.

[40] Although M.M. is distinguishable from the case at bar for a number of reasons including the fact there was both anal and vaginal penetration and forced oral sex, the offender’s criminal record for similar offences and his callous conduct following the sexual assault and in court, the review of other Court of Appeal cases by Justice Molloy is of great assistance and her conclusion as to the appropriate range of sentence is of assistance and again provides support for the Crown’s position. The case of A.(S.) from the Court of Appeal in 2014 supports the proposition that the range of sentence for a serious sexual assault is not as low as a reformatory sentence and suggests that Thurairajah does not set out the appropriate range of sentence.

The Defence Cases

[41] Mr. Rechtshaffen submitted that the range of sentence is actually two to four years as set out in the Thurairajah but for the reasons stated I do not agree. I do accept, however, as he submitted that the range is just a guideline and that Mr. McCaw is a tremendous candidate to give a less punitive sentence to and that that would meet the ends of justice. He provided the following cases for my consideration:

R. v. Colbourne, 2013 ONCA 308 Weiler, Gillese and Hoy JJ.A.

• The offender was sentenced to 14 months’ imprisonment followed by two years’ probation for sexually assaulting the complainant after she passed out from drinking too much. The complainant was confused and groggy throughout the assault and afterwards, and the trial judge found she was incapable of consenting.
  • The Court of Appeal declined to vary the sentence after the offender appealed, stating at para. 17 that the trial judge was alive to the offender’s health condition and personal circumstances [which are not specified in the appeal decision] and that the trial judge had not shown any error in principle that would warrant interference with the sentence. The Court stated at para. 17 that “if anything the sentence was at the low end of the range.”

[1] This case has been considered an outlier; see for example M.M. supra at para. 39 and I did not find it of much assistance.

R. v. Gandhi, 2015 ONCA 660 Doherty, Benotto and Miller JJ.A.

• The offender trapped his girlfriend in his car, choked her, removed her clothes and forced her to perform oral sex. She managed to escape, partially clothed, and the offender chased her and slammed her against a glass wall. Two bystanders intervened.
  • The Court of Appeal saw no basis to interfere with the sentence of 18 months minus a day, as it was within the appropriate range, credit was given for bail conditions and there was no error in principle.

[42] Mr. Rechtshaffen did not agree that this case was less serious than the case at bar and in fact submitted that the facts were horrifying and that it was a worse offence. I do not agree. The fact that the complainant was trapped in the offender’s car was of course a horrifying experience but I would not say that the fact that Ms. K.B. was passed out for most of Mr. McCaw’s sexual assault diminishes the fact that this was a rape to the point of ejaculation. In my view Gandhi is clearly distinguishable from the case at bar, for a number of reasons including the fact that there was no vaginal penetration.

R. v. H.H., 2002 ONCA 100, 158 O.A.C. 272 (C.A.) Charron, Moldaver and Armstrong JJ.A.

• The victim, 18, was the employee of the offender. He told her to come to his house during the lunch hour, ostensibly to retrieve something she needed for work. On the way there, he bought alcohol and gave some to her when they arrived. She was uncomfortable and told him so, but did not push the matter because he had a temper and did not like to be questioned by his employees. She eventually passed out, and he carried her upstairs, undressed her, and had vaginal intercourse with her. She woke up, and tried to push him off, saying “get off me”. He continued.
• The Court of Appeal found at para. 5 that the conditional sentence of two years less a day imposed by the trial judge was manifestly unfit given his abuse of his position of authority, the fact that she was unconscious, and his failure to heed her plea to stop. The Court stated at para. 5 that a custodial sentence was clearly called for and a penitentiary term would have been appropriate.
  • The Court imposed a sentence of 18 months’ incarceration, recognizing that the offender had already served the better part of the conditional sentence imposed but noted that the delay in the appeal was attributable solely to him and the terms of the conditional sentence were not onerous, at para. 6.

[43] Mr. Rechtshaffen submitted that the fact that the complainant told the offender to stop and that he continued make this offence worse than the sexual assault of Ms. K.B.. He agrees as a result of that fact that a penitentiary sentence in that case would have been appropriate.

R. v. McKenzie, 2017 ONCA 128, 136 O.R. (3d) 614 Weiler, Pepall and Trotter JJ.A.

• The offender and the complainant were co-workers. The offender partially penetrated the complainant’s anus with his penis in the bathroom of a work Christmas party, after she said “no, no, no”. The penetration lasted for 20-35 seconds, and stopped when someone knocked on the bathroom door.
• The offender was 35 at the time of sentencing. He had strong family relationships, including with a common law wife and two children.
• The offender continued to maintain that the act was consensual, and so showed no remorse.
• The trial judge imposed nine months’ imprisonment. The offender was a permanent resident, and this sentence rendered him unable to appeal the result that he was inadmissible to Canada on the grounds of serious criminality. The offender appealed.
• At para. 20, the court noted, without comment, that the trial judge found that three years imprisonment would have been “appropriate” had there been a fully completed act of vaginal or anal intercourse. The court however did state at para. 22 that given various factors the sexual assault was “significant”.
• The Court of Appeal stated that the mitigation the trial judge found in the fact that there was not a “fully completed act of vaginal or anal intercourse” was “doubtful”, given that the offender did not stop when the complainant said no, but only stopped when the knocking occurred: paras. 20-21. Mr. Rechtshaffen argues that as a result the fact that Mr. McCaw completed the act of sexual intercourse is not an aggravating factor.
• He also relies on the fact that the Court of Appeal stated that the sexual offence was serious in that it involved anal penetration, which is generally treated as an aggravating circumstance: para. 22.
  • The Court of Appeal held at para. 23, that the trial judge imposed a sentence that was supported by other decisions of the court and the court declined to find that the sentence was demonstrably unfit and so did not alter the sentence imposed by the trial judge, on its merits alone or on the immigration consequences.

[44] Mr. Rechtshaffen places a lot of reliance on this decision in support of his position that a 12 month sentence in this case would be appropriate. He submitted that because this was attempted anal intercourse that this was an aggravating factor and the assault was arguably worse than the case at bar. He also submitted that there was a larger age gap (33 verses 19) in McKenzie and that the biggest distinguishing factor from the case at bar was that the offender in that case had no insight into the offence or harm caused to the complainant and that his only remorse was for the effect his cheating on his spouse had had on his relationship with his spouse.

[45] The offender in McKenzie was maintaining his innocence and although the trial judge found this resulted in a lack of remorse, he ascribed no weight to it as an aggravating feature. Although I accept that in the case at bar Mr. McCaw has shown remorse, this is not the key distinguishing factor. As the trial judge stated in McKenzie had there been a fully completed act of vaginal or anal intercourse a three year sentence would have been appropriate. In the case at bar, although I accept Mr. Rechtshaffen‘s submission that we do not know how long the act of vaginal intercourse occurred, it was completed to the point of ejaculation and Mr. McCaw was not wearing a condom.

R. v. Smith, 2015 ONSC 4304 Campbell J.

• The complainant was an 18-year-old homeless crystal meth-addict who had just been evicted. The offender was the cousin of her boyfriend, who was in jail, and offered to let her stay with him for the night. He was aware that she was physically exhausted from a crystal meth binge. She told him that nothing was going to happen between them, and that she was just going to sleep. The trial judge accepted her testimony that she woke up with her clothes half-removed, and the offender told her that they had had sex. She responded that that wasn’t possible, as she never had sex, even with her boyfriend.
• The impact on the victim was serious, as she had been sexually abused in the past and had chosen not to have sex as a rule. She felt that she would “never fully heal” from the offense.
• The offender was 25 at the time of the offense, he had no criminal record, and was from a stable background with a supportive family. He lacked insight into his actions, but the offense was “out of character” for him, as he had had many relationships in which he had not been sexually aggressive: para. 30.
• The trial judge imposed a conditional sentence of 16 months. On appeal, Justice Campbell found that the trial judge had failed to consider the importance of denunciation and overemphasized the significance of rehabilitation: paras. 37-38. Campbell J. stated that “Men must understand that women who are deeply asleep, significantly intoxicated, unconscious, or otherwise obviously incapable of consenting to any kind of sexual activity must not be opportunistically victimized as their inert sexual playmates”: para. 39.
• Campbell J. stated at para. 32 that generally speaking in cases where a defendant has been prosecuted by indictment the usual range of sentence for this type of invasive sexual assault on a sleeping or unconscious victim is somewhere between 18 months and three years. He noted however that where the Crown elects to proceed by way of summary conviction, as occurred in this case, somewhat lesser sentences are required.
  • Justice Campbell imposed a sentence of nine months’ imprisonment and a three-year term of probation, stating that this was a somewhat lenient sentence, and a longer term of imprisonment would have been appropriate at the time of sentencing: para. 44.

[46] Ms. Garcia submitted that this case is an outlier and I agree, particularly in light of the fact that the Crown proceeded summarily, the factors making the nine-month sentence appropriate included the fact that the Crown had only suggested a sentence at the upper end of the range of six to nine months’ imprisonment, that the accused had had the matter hanging over his head since his sentencing in June 2013, and that the accused had already served approximately two months of his conditional sentence and Campbell J. was not satisfied that a custodial sentence would not interrupt the rehabilitative progress of the offender. As for his statement that an appropriate range would be between 18 months and three years, that is at odds with the authorities from the Court of Appeal that I have set out.

R. v. D.D., 2015 ONSC 1312 Lalonde J

• The offender was a friend of the complainant, and she had invited him to her new apartment late at night. Both consumed alcohol and marijuana. She fell asleep on a futon in her living room, and the offender was given a mattress on the floor in front of the futon. The complainant woke to find the offender behind her, penetrating her with his penis. She shook him off, and he masturbated while standing at the end of the futon.
• The offender was 26 years old at the time of sentencing. He had no criminal record, positive educational and work experience and the support of his family and friends. The offence was said to be out of character for him. Although the offender did not express remorse when he testified at trial, he showed remorse in the Pre-Sentence Report and acknowledged the harm that he had done to the complainant He had fully complied with his bail conditions.
• The devastating impact on the victim was an aggravating factor. She had been diagnosed with post-traumatic stress disorder as a result of the assault, ultimately ending up in the emergency room due to a suicide attempt. Also aggravating was the fact that she was semi-conscious: para. 28.
  • Lalonde J. stated that denunciation was very important in this case, but that the remorse shown by the offender allowed the court to impose a lesser sentence. Lalonde J. found that a period of incarceration was necessary, but that the offender was not a predator – he had misread the complainant’s intentions, at para. 36. His Honour imposed 12 months’ imprisonment followed by two years’ probation.

[47] I agree with Ms. Garcia that it is impossible to reconcile the finding that the complainant was asleep at the outset of the sexual assault and the offender misreading her intentions. A woman who is asleep cannot consent to any form of sexual touching. This case is distinguishable in that it seems that the offender did not complete the sexual assault to ejaculation inside the complainant.

R. v. Mangal, 2016 ONCJ 18 Bacchus J.

• The offender was a frequent visitor to a long-term care facility. He digitally penetrated the vagina of a 62-year-old woman who did not have the use of her legs and only limited use of one arm, for about 30 seconds. He had also previously touched her on her stomach and breast. Each time, she had told him to stop.
• The offender was 65 years old, with no criminal record. He was actively involved in a number of church groups and social agencies, and a number of witnesses testified to his good character. He had lived in the shelter system for many years and his background was a mystery.
• It was aggravating that the offender had exploited the physical vulnerability of the complainant, and left her feeling unsafe in a place that is her home. The offender also displayed little to no insight into the wrongfulness of his conduct, and continued to believe that she wanted the sexual contact. The lack of personal background information about the offender only amplified concerns regarding risk and specific deterrence.
  • The appropriate sentence was a custodial sentence of 12 months, followed by two years of probation.

[48] This case is clearly distinguishable from the case at bar, for a number of reasons including the fact that there was only brief digital penetration of the complainant’s vagina.

R. v. Micula, 2016 ONCJ 467 Sparrow J.

• The 46 year old offender met the 21 year old victim in a bar, where she told him that she was trying to stop using cocaine. Eventually, she agreed to go to his apartment to share his cocaine. After they used his cocaine, the offender went out to get more and the complainant passed out or fell asleep heavily, being intoxicated. She awoke two hours later to find her underclothes removed and felt a strange sensation in her vaginal area. A rape kit and the offender’s own evidence showed that he had performed oral sex on her.
• The offender was 48 at the time of sentencing, with only a minimal, dated criminal record for theft under. He could not work due to epileptic seizures, and was single and not close to family members.
• The complainant was diagnosed with post-traumatic stress disorder after the incident.
• Justice Sparrow found that the offender did not deliberately lure the complainant to his apartment to take advantage of her, but that he was well aware of her intoxication, relative youth, drug problem, and inability to defend herself. The fact that there was no penetration did not make the act less intrusive.
  • The appropriate sentence was 12 months in custody and probation for three years.

[49] This case is clearly distinguishable from the case at bar for a number of reasons including the fact that there was no penetration.

R. v. Scinocco, 2017 ONCJ 359 Renwick J.

• The complainant and offender were friends. They consumed alcohol together at his residence. She was clear that she did not want any sexual contact with him. He would not be deterred, attempting to kiss and hug her, exposing himself to her, and eventually sexually assaulting her while she slept by touching her vagina and attempting to put something or a part of himself into her vagina. She awoke and resisted this.
• The offender was almost 39 at the time of sentencing. He had only a dated, unrelated prior criminal record, so the sentencing judge treated him as a first offender: para. 5. He had the support of family and friends, and his employer. He had very good prospects for rehabilitation: paras. 9-10.
• It was aggravating that the offender ignored the complainant’s clear verbal and physical expressions that the sexual contact was unwanted, that he took advantage of the fact that she was essentially stranded at his residence and could not drive home, that she was asleep, that it was an extreme violation of her bodily integrity, and that she had to verbally and physically repel the offender to bring the sexual assault to an end: para. 3. The offender also showed a lack of remorse: para. 15.
• It was mitigating that the complainant was only partially penetrated for a very brief period of time, and that minimal force was used during the sexual assault: para. 4.
• Justice Renwick considered the range for this type of sexual assault involving a sleeping complainant to be from nine months’ to three years’ imprisonment. Mr. Rechtshaffen conceded that nine months would be too low for the case at bar.
  • Renwick J sentenced the offender to 12 months’ imprisonment followed by two years’ probation.

[50] This case is clearly distinguishable from the case at bar for a number of reasons including the fact that there was only partial penetration.

Other Authorities

[51] In addition to these cases on sentencing in sexual assault cases, I must also consider the direction from the Court of Appeal in R. v. Priest (1996), 110 C.C.C. (3d) 289 (ONCA) at p. 296 that “a first sentence of imprisonment should be as short as possible and tailored to the individual circumstance of the accused rather than solely for the purpose of general deterrence”. However, in Thurairajah, supra. at para.41 Doherty J.A. observed that while generally speaking sentences imposed on youthful first offenders will stress individual deterrence and rehabilitation, for serious crimes of personal violence, particularly sexual assaults, while rehabilitation and other sentencing objectives remain important, denunciation and general deterrence “gain prominence”.

Analysis

Principles of Sentencing

[52] The fundamental purpose of sentencing, as set out in s. 718 of the Criminal Code, is to ensure respect for the law and the maintenance of a just, peaceful and safe society. The imposition of just sanctions requires me to consider the sentencing objectives referred to in that section, which the sentence I impose should attempt to achieve. These are denunciation, deterrence; both specific and general, separation of offenders from society when necessary, rehabilitation, reparation for harm done and the promotion of a sense of responsibility in offenders and acknowledgment of the harm which criminal activity brings to our community. In addition, in imposing sentence I must take into account the principle of proportionality and the applicable aggravating and mitigating circumstances relating to the offences as set out in s. 718.

Mitigating Factors

[53] I find that the mitigating factors are as follows:

(a) Mr. McCaw has no criminal record; this is his first offence; (b) Mr. McCaw has no outstanding charges and he complied with the terms of his bail although it was not suggested that those terms were particularly onerous; (c) Mr. McCaw was a relatively youthful offender as he was 26 at the time; (d) There are some aggravating factors that are not present. There was no gratuitous violence in this case apart from the violence that is inherent in the case of a sexual assault; (e) Although it is not unusual for individuals who commit this kind of offence to otherwise be of apparent good character, it appears that this offence was out of character for Mr. McCaw. In light of the other factors I have referred to, in my view there is good reason to believe that the risk of Mr. McCaw reoffending is low; (f) Mr. McCaw has taken serious steps to overcome his addiction to drugs and alcohol and although this will be a lifelong journey there is reason for optimism that he will remain sober; (g) Based on the character reference letters from family, his girlfriend and friends that I have reviewed, Mr. McCaw has made important strides in improving his behaviour and relationships and he clearly now has a very loving and supportive network of family and friends who no doubt will help him stay on the path of sobriety; (h) Mr. McCaw has expressed what I believe to be genuine remorse for his actions and the harm that they caused Ms. K.B. and others. This is evident from his letter to this Court and the statements in some of his character reference letters.

[54] Mr. Rechtshaffen submitted that I cannot hold it against Mr. McCaw that he did not admit that he sexually assaulted Ms. K.B. or that he ran an aggressive defence. I agree. Clearly Mr. McCaw cannot be penalized for insisting on his right to a trial, but he does not get the benefit of a reduced sentence because of a guilty plea. This is a neutral factor.

[55] I am concerned about the fact, as I have identified, that some of Mr. McCaw’s family and friends continue to believe that he committed this offence because of alcohol and drugs. In fact in terms of his moral blameworthiness, Mr. Rechtshaffen submitted that although I found that Mr. McCaw intended his actions, his consumption of drugs and alcohol were “clouding his judgment”. He referred to paragraph 164 of my Decision where I stated that:

Mr. McCaw was fair in admitting that he had no idea whether his actions were made in an automatic state or that he was just drunk and can’t recall making a bad decision. He testified that he could not believe that in any state that he would have taken advantage of Ms. K.B. but he could not rule it out.

[56] By “fair” in this passage I meant that Mr. McCaw was at least prepared to admit that he was drunk enough that his memory was adversely impacted but that he could still complete the act. Although there is no doubt that at the time Mr. McCaw was suffering from a serious drug and alcohol problem, given my findings that he did not consume GHB and only consumed a modest amount of alcohol and marijuana, in my view he cannot attribute his decision to sexually assault Ms. K.B. to being intoxicated or out of control. Although I accept that Mr. McCaw may have been somewhat less inhibited by the alcohol and marijuana that he consumed, he made a deliberate decision to take advantage of Ms. K.B.’s vulnerable state and the fact that he could rely on Mr. S.L. not becoming aware of what he was doing. In my view the degree of Mr. McCaw’s moral blameworthiness is high.

[57] Ms. Garcia also submitted that I should rely on the conduct of Mr. McCaw immediately after the assault in that he got a pair of scissors and feigned sleep. Certainly some of the cases I have been referred to consider what the court has found to be callous or more serious conduct by the offender towards the complainant following the sexual assault. As I have already stated however I did not make any factual findings in this regard and so I have not considered this submission.

Aggravating Factors

[58] I find that the aggravating factors are as follows:

(a) The impact on Ms. K.B. from this sexual assault has been significant and I have no doubt that she will feel the emotional impact of this assault for the rest of her life. As Cory J. stated for the Supreme Court of Canada in R. v. McGraw, [1991] 3 S.C.R. 72 at p. 83, “the psychological trauma suffered by rape victims has been well documented. It involves symptoms of depression, sleeplessness, a sense of defilement, the loss of sexual desire, fear and distrust of others, strong feelings of guilt, shame, sense and loss of self-esteem. It is a crime committed against women which has a dramatic, traumatic impact. …” ; (b) The gap in age between Mr. McCaw, who was 26 at the time and Ms. K.B. who was only 18 at the time is significant. Mr. McCaw would have known that Ms. K.B. was a teenaged girl, and that made her all the more vulnerable even without considering the fact that she had consumed a great deal of alcohol; (c) Mr. McCaw knew and was relying on the fact that Ms. K.B. was “dead to the world”, and that she would keep her eyes closed and remain passed out while he sexually assaulted her. Mr. McCaw also knew that in any event Mr. S.L. was in no shape to help her as he was passed out upstairs in his bedroom; (d) Mr. McCaw had unprotected vaginal intercourse with Ms. K.B.. He ejaculated inside her exposing her to the risks of pregnancy and sexually transmitted diseases. There is no evidence that either possible consequence occurred, but the risks were serious.

Appropriate Sentence

[59] I turn then to what is an appropriate sentence in this case. The first question is what range of sentence for this type of behaviour has been established by the Court of Appeal. In my view, given this was a single offence of sexual assault that was a completed act of unprotected vaginal intercourse the range of sentence as established by the Court of Appeal in Bradley is three to five years and this was reaffirmed at least in A.(S.), supra. I agree however that this is a guideline and sentences outside this range may be fit, depending on the circumstances. The sentencing of an offender is a highly individualized exercise.

[60] In my view the sentence proposed by Mr. Rechtshaffen of one year would be manifestly unfit and well outside the guideline established by the Court of Appeal. Given this was a serious sexual assault, given the direction stated by Doherty J.A. in Thurairajah, supra at para. 42, in light of the aggravating circumstances and in particular the high degree of Mr. McCaw’s moral blameworthiness, there is a need for a strong denunciatory sentence. I must ensure that there is a strong message of general deterrence to express society’s abhorrence of this despicable conduct by Mr. McCaw of taking advantage of a very young woman who was passed out and incapable of even knowing at first that he was sexually assaulting her.

[61] I accept however that specific deterrence is not a concern. This was conduct that was out of character for Mr. McCaw and given the positive steps he has taken I do not believe there is a risk of him reoffending. In addition there are many positive mitigating circumstances to consider and in that Mr. McCaw is a youthful first offender who has excellent prospects for rehabilitation.

[62] It is difficult to determine a fit sentence that balances these competing consideration. Certainly the sentence of four years proposed by Ms. Garcia is not unreasonable. However, considering all of the aggravating and mitigating factors, I have concluded that a fit sentence is 40 months for Mr. McCaw’s sexual assault of Ms. K.B..

Disposition

[63] Mr. McCaw would you please stand.

[64] With respect to your conviction on count # 1, I sentence you to a term of imprisonment of 40 months.

[65] In addition, there will be a mandatory weapons prohibition order pursuant to section 109(1)(a) of the Criminal Code for ten years and a mandatory DNA order pursuant to section 487.051(1) of the Criminal Code authorizing the taking of a DNA sample.

[66] In addition, pursuant to sections 490.011, 490.012(1) and 490.013(2)(b) of the Criminal Code, I make an order that your name be added to the Sex Offender Registry and that you comply with the Sex Offender Information Registration Act for 20 years. My reason for making this order is that you have been convicted of sexual assault which is a designated offence under section 490.011(1)(a)(xvi) and your counsel has not suggested that this order would have a disproportionate impact on your privacy or liberty interests.

SPIES J.

Released: June 25, 2019 Edited Decision Released: Jul 2, 2019