COURT FILE NO.: CR-18-841
DATE: 2019 02 05
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
DANIEL GALLUZZO, for the Appellant/Crown
Appellant
- and -
JACOB BERSETH
STEPHEN WHITZMAN, for the Respondent
Respondent
REASONS FOR JUDGMENT
[On appeal from the judgment of the Honourable A.R. MacKay,
dated December 15, 2017]
DURNO, J.
[1] On his trial date Jacob Berseth pled guilty to sexual assault. The Crown (not Mr. Galluzzo) sought 60 days in jail and 18 months’ probation as well as ancillary orders. Mr. Berseth sought a conditional discharge.
[2] The trial judge imposed a conditional discharge with 15 months’ probation including terms that the respondent undergo an assessment and counseling if the probation officer deemed it necessary, actively participate in the “Who Will You Help?” campaign, and complete 50 hours of community service.
[3] The Crown appeals contending the trial judge erred in principle and that the sentence is demonstrably unfit. The respondent submits the trial judge appropriately considered the relevant factors and the sentence reflects no errors.
[4] For the following reasons the appeal is dismissed.
The Admitted Facts
[5] The appellant personally entered his guilty plea and the Crown read the following from an incident at a University of Toronto – Mississauga (UTM) athletic banquet:
On March 31, 2016, at approximately 11:30 p.m. the victim [S.E.] was at the Apollo Banquet Hall at 6591 Innovator Drive, Mississauga. While the victim was dancing with her boyfriend she was approached from the front by the accused, who was a stranger to her at the time. As the accused passed the victim, he reached out and groped her vagina, trying to finger her through her clothing. The accused did not touch her skin, but the victim could feel his fingers pull in an upward direction through her clothing. The victim and her boyfriend saw the accused laugh and gesture with his hands to a friend immediately following.
The victim was not injured as a result of the assault. The victim and her boyfriend alerted security personnel and police were called at approximately 12:20 a.m.
On March 31, 2016 the accused was arrested for sexual assault, read his rights to counsel and cautioned.
[6] The respondent did not admit the facts. Rather, his trial counsel (not Mr. Whitzman) said, “My client accepts those facts as accurate. Alcohol was a factor in this matter and he is not wishing to challenge any of those facts as relayed to the court by my friend.”
[7] Her Honour made a finding of guilt. The respondent was remanded for sentence and a pre-sentence report ordered.
[8] During sentencing submissions, it was agreed that the touching was momentary with defence counsel submitting he would say the incident took five seconds.
The Letters from the Victim and Her Father
[9] At the sentencing hearing, the Crown filed letters[^1] written by the victim and her father to the respondent. Both refer to the respondent’s conduct as a serious error in judgment.
[10] The victim wrote of anxiously anticipating the UTM Athletic Banquet and spending the evening dancing with her boyfriend. She had “no idea that within our small athletic community, we had a predator among us.” She wrote of hearing the Crown read out the facts on the guilty plea and “feeling like my skin was crawling away” from her as she sat at the back of the courtroom with her boyfriend “reliving every ounce of distress” the respondent caused her that night.
[11] The respondent’s conduct took away her innocence and managed to change the way she lived her life. She had to defer her final exams at a cost of $225. In part, as a result of seeing the respondent a few times at school in the next year, she transferred schools at a cost of $1,100 in travel fees. On one occasion, the respondent smirked at her when they passed each other at school.[^2]
[12] The victim attended counselling, worked on safety plans and how to deal with anxiety. The respondent affected her desire and focus to learn and study, especially after dealing with court proceedings throughout a year and one half. She felt the respondent insulted and belittled her boyfriend by assaulting her, noting her boyfriend’s strength in not knocking the respondent “into next week.”
[13] The victim queried, “How would you feel if you were having the time of your life and a stranger walks past you to touch your most intimate parts on a passing whim and jokes about it with his friends behind you?
[14] The victim’s father wrote of being devastated when he learned of the offence and of his initial desire to confront the respondent and “take matters into his own hands.” He also wrote of the respondent taking away his daughter’s innocence and independence, noting he had to drive her to school daily and watch her walk into the school for months after the offence. She felt anxious she would see the respondent and texted her father to pick her up early. He concluded that after the respondent served his sentence, he was willing to give him a second chance if he proved himself worthy.
The Pre-sentence Report and Material Relied Upon by the Respondent
[15] The offender was 23 years old when sentenced. Having recently graduated from the University of Toronto with his Honour’s Bachelor of Science in math and economics, he was working as a landscaper and planning to take his actuarial exams in 2018.
[16] The respondent had a good work record as well as working with an adult autistic person. His parents, sister and girlfriend felt he did not have any substance abuse issues.
[17] With regards to the offence, because his intoxication on the night of the incident resulted in him not recollecting the events clearly, he “accepted the version of events” presented in court while still trying to accept the allegations. He would never do something like that to anyone. He was remorseful for how the victim was affected by his conduct.
[18] The respondent also relied upon a letter he had written which outlined his remorse and family challenges after the incident, including his mother’s cancer diagnosis and surgery for an aneurism. His former landlord wrote in glowing terms of his character. His brother-in-law and employer wrote of his reliability, being chivalrous, a gentleman, and doing volunteer work. There was an email referring to his character in positive terms, and a letter from the mother of the autistic man for whom the respondent provides care. She wrote of his wonderful character. Another employer wrote that he was an intelligent, mature and responsible young man. A university classmate wrote of the respondent paying his own tuition, his intelligence, being earnest, respectful, hardworking, thoughtful, bright, selfless, dependable, talented, and humble.
The Reasons for Sentence
[19] The trial judge briefly outlined the facts, that the respondent without warning groped the victim’s vagina through her clothing. She saw that immediately after he touched her he laughed with his friends appearing to be laughing about what happened. Her Honour noted that after his arrest, the police were unable to interview the respondent because of his state of intoxication.
[20] Her Honour reviewed the Victim Impact Statements, noting the impact the offence had on the victim and her father.
[21] The trial judge reviewed the respondent’s circumstances including that he had no record, was 23 at the time of sentence and 22 when the offence occurred, had completed a four year Bachelor of Science degree, intended to write actuary exams, had worked since he was eight years old and paid for his post-secondary education. He tutored students in math and physics. He was working for a landscaping company and also worked with a 22 year old autistic man, partially paid and partially volunteer time. The offender admitted being extremely intoxicated when he committed the offence. He did not usually drink to excess according to his family members. He had shown a great deal of remorse and had a difficult time coming to terms with the fact “he committed this terrible offence.” While he accepted the facts, he did not clearly recall the incident.
[22] When speaking to the court, the respondent recognized what the victim had gone through, that she must have gone through some humiliation as a result of the court process. Through counseling he had learned that alcohol can contribute to making a person do things that they would never dream of doing in a sober state. He had three sisters and would not want anything like this to happen to them. He admitted harming the victim although he respected women and would never want to harm a woman. The respondent wanted to do a video or presentation that would be used to show young persons the dangers of over consumption of alcohol.
[23] The trial judge noted that family and friends interviewed for the pre-sentence report said he was generally quiet and respectful.
[24] Her Honour found the range of sentence for the offence varied significantly. Conditional discharges were not commonly imposed. However, there were cases where after a careful review, conditional discharges were granted. The trial judge referenced the following cases which were provided by defence counsel: R. v. Burton, 2012 ONSC 5920, where an absolute discharge was upheld on appeal where a 49 year old put his hand up the victim’s skirt and ran it along her right leg while they sat on a bus, R. v. Tillman, 2010 SKPC 2, 2010 SKPC 002, where the same sentence was imposed for grabbing a 16 year old babysitter from behind and pulling her towards him in a sexual manner, R. v. J.W., 2010 NSPC 40, where a conditional discharge was upheld for an “intimate, forceful touching of the victim’s breast, genital area, and forcing the victim to touch his penis, and R. v. M.J., [2007] O.J. No. 163 (S.C.J.) where a conditional discharge was upheld on a Crown appeal for charges of assault and sexual assault on the respondent’s wife.[^3]
[25] Her Honour noted the following aggravating factors: the victim was blindsided by what the respondent did. The effect on her had been devastating. The trial judge continued, “[a]lthough the touching was over the clothes and was momentary, it nonetheless was a touching of the vagina area and it affected her dignity and her feeling of being secure.” It was a brazen act on a complete stranger.
[26] In mitigation, the respondent had no record, he had just turned 22 and it was an isolated incident. He made a choice to accept responsibility for what he had done. He had lived a pro-social life except for the “momentary incident.” By all accounts he was a very caring, kind and helpful person. His good character was supported by the probation officer’s interviews with family members and friends.
[27] The respondent expressed genuine remorse to those close to him and in court. He apologized to the victim. He had been greatly impacted by what he did, being filled with much guilt and shame. His studies were affected during an important year. His letter that was introduced expressed how he had overburdened his parents who were already dealing with difficult issues. His mother had been diagnosed with breast cancer and had surgery for an aneurism this year. His grandmother had to move in with the respondent’s family as a result of her illness. He felt guilty he had taken his dad’s focus away from his mother who required his complete attention.
[28] The trial judge found a jail term was not appropriate as the Criminal Code directed that offenders should not be deprived of their liberty if less restrictive sanctions were appropriate. It was not in society’s interest to incarcerate the respondent.
[29] After referencing R. v. Sanchez-Pino, 1973 794 (ON CA), [1973] O.J. No. 1903 (C.A.) and R. v. Fallofield (1973), 1973 1412 (BC CA), 13 C.C.C. (2d) 450 (B.C.C.A.), the trial judge turned to the s. 730 criteria for imposing a discharge. Her Honour found the respondent was a person of good character and a conviction would have serious repercussions for him as he was embarking on a career in which a criminal record would prevent him from securing employment in his field.
[30] Turning to whether a discharge would be contrary to the public interest, Her Honour referenced R. v. Menesee 1974 1659 (ON CA), [1974] O.J. No. 736 (C.A.) where Dubin J.A. found the public interest was broader than the need for general deterrence. Deterrence could be achieved by the offender’s arrest, compelled court appearances, the notoriety and stigma of being charged, and the fulfillment of judicially imposed probation conditions.
[31] Her Honour continued:
All sexual assault charges are serious, and this clearly was a serious matter. However, some fall at a much more serious end, and this obviously would include forced sexual intercourse with gratuitous violence. At the other end of the spectrum would be a brief touching over clothing. And despite the very serious impact on the victim and her family, I would objectively characterize the sexual assault as being at the lower end of the range of sexual assaults.
[32] The trial judge concluded “a conditional discharge would be consistent with the purposes and principles of sentencing, to contribute to respect for the law, and public safety in these unique circumstances.” The objectives of sentencing could be achieved through a discharge with probation, 50 hours community service and counseling for 15 months.
The Positions of Counsel on the Appeal
[33] The appellant/Crown contends Her Honour made the following errors in principle that led her to impose a demonstrably unfit sentence:
i) Failing to properly consider the need for general deterrence and denunciation in light of the seriousness of the offence,
ii) Relying on case law that was not analogous,
iii) Placing undue emphasis on the respondent’s intoxication as a mitigating factor, and
iv) Minimizing aggravating and amplifying mitigating factors while considering factors that were irrelevant.
[34] The respondent submits the trial judge made no errors. Where it is alleged that a sentence is demonstrably unfit, the appellant faces a very high threshold. Finally, the respondent submits the trial judge reserved judgment, delivered thoughtful and reasonably extensive reasons and weighed the relevant aggravating and mitigating factors before imposing a sentence that was not demonstrably unfit.
Sentence Appeals
[35] In R. v. Lacasse, 2015 SCC 64, the Supreme Court of Canada outlined appellate courts’ authority on sentence appeals. In summary, it is important that wide latitude be given to sentencing judges (at para. 11). Appellate courts may not intervene lightly (at para. 39), nor should they be given free rein to modify a sentence simply because the reviewing court feels a different order ought to have been made (at para. 40). Further, an appellate court may not intervene simply because it would have weighed the relevant factors differently (at para. 48-9). Deference should be shown to the sentencing judge’s exercise of discretion (at para. 48). The appropriate use of judicial resources must also be acknowledged. Having an appellate court repeat the trial judge’s exercise of discretion is a misuse of judicial resources (at para. 48)
[36] An appellate court may intervene if the sentence is not fit in that it is clearly unreasonable (at para. 40) or where the sentencing judge makes an error of law or in principle that has an impact on the sentence. (at para. 42). An error in principle, the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor can justify appellate intervention, permitting that court to inquire into the fitness of the sentence and replace it with the sentence it considers appropriate.
[37] However, every such error will not necessarily justify appellate intervention regardless of its impact on the trial judge's reasoning (at para. 43). The failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor will justify appellate intervention only where it appears from the trial judge's decision that such an error had an impact on the sentence (at para. 47).
Demonstrably Unfit
[38] An appellate court may not intervene on the ground that it would have put the sentence in a different range or category. It may intervene only if the sentence the trial judge imposed is demonstrably unfit (at para. 67).
[39] Various expressions have been used to describe a "demonstrably unfit" sentence - "clearly unreasonable", "clearly or manifestly excessive", "clearly excessive or inadequate", or representing a "substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes": R. v. Rezaie, 1996 1241 (ON CA), 31 O.R. (3d) 713 (C.A.), at p. 720. All reflect the very high threshold that applies to appellate courts when determining whether they should intervene when reviewing the fitness of a sentence (at para. 52).
[40] As the Court held in Lacasse:
53 This inquiry must be focused on the fundamental principle of proportionality stated 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". A sentence will therefore be demonstrably unfit if it constitutes an unreasonable departure from this principle. Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances. Individualization and parity of sentences must be reconciled for a sentence to be proportionate: s. 718.2(a) and (b) of the Criminal Code.
54 The determination of whether a sentence is fit also requires that the sentencing objectives set out in s. 718 of the Criminal Code and the other sentencing principles set out in s. 718.2 be taken into account. Once again, however, it is up to the trial judge to properly weigh these various principles and objectives, whose relative importance will necessarily vary with the nature of the crime and the circumstances in which it was committed. The principle of parity of sentences, on which the Court of Appeal relied, is secondary to the fundamental principle of proportionality. This Court explained this as follows in M. (C.A.):
It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime... . Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction. [para. 92]
[41] A sentence can be demonstrably unfit even if the judge made no error in imposing it (at para. 52).
Discharges
[42] Section 730(1) of the Criminal Code provides:
Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).
[43] In terms of the first prong, it presupposes that specific deterrence is not a relevant consideration, except to the extent required in a probation order, nor is the offender’s rehabilitation through correctional or treatment centres required, except to the same extent. Normally, the offender is a person of good character, without previous conviction, it is not necessary to enter a conviction to deter him or her from future offences or to rehabilitate them and, while not essential, that the entry of a conviction may have significant adverse repercussions: R. v. Sanchez-Pino (1973), 13 C.C.C. (2d) 53 (Ont.C.A.); R. v. Fallofield (1973), 1973 1412 (BC CA), 13 C.C.C. (2d) 450 (B.C.C.A.); R. v. Myers (1997), 1977 1959 (ON CA), 37 C.C.C. (2d) 182 (Ont.C.A.)
[44] As regards the public interest prong, while the concern for general deterrence must be given due consideration, that does not preclude the judicious use of the provision: Fallofield, at para. 21(6). However, if there is a necessity for a sentence that will deter others, it is a factor telling against a discharge.
[45] This view was reiterated in R. v. Lu, 2013 ONCA 324,
48 … In determining whether it would be contrary to the public interest, one consideration is whether the sentence will be a deterrent to others who might be minded to commit a like offence.
[46] In Sanchez-Pino, the Court of Appeal held:
18 Obviously the section is not confined to "simple cases of possession of marijuana". It is not confined to any class of offences except to the extent I have noted. On the other hand, it is only common sense that the more serious the offence, the less likely it will appear that an absolute discharge, or even a conditional one, is "not contrary to public interest". In some cases, the trivial nature of the offence will be an important consideration; in others, unusual circumstances peculiar to the offender in question may lead to an order that would not be made in the case of another offender.
[47] In R. v. Hayes, [1999] O.J. No. 938 (S.C.J.), Hill J. provided the following summary with regards to discharges. Discharges are not restricted to trivial matters. Where an offender has acted out-of-character, perhaps in the context of unusual pressure or stress a discharge may be fit. Where a criminal record will have a tendency to interfere with employment or perhaps important travel, a discharge may be given serious consideration. A suspended sentence is not necessarily a greater deterrent than a discharge.
The Grounds of Appeal
Did the trial judge fail to properly consider the need for general deterrence and denunciation in light of the seriousness of the offence?
[48] The appellant submits the trial judge erred by giving undue prominence to the respondent’s best interests and failed in her assessment of whether a conditional discharge was contrary to the public interest. While Her Honour noted that the pubic interest entailed more than general deterrence, this was a case that required on emphasis on general deterrence and denunciation having regard to the nature and gravity of the offence. A reasonable member of the public would expect a brief jail sentence, or at least a conviction.
[49] Further, the Crown contends that Her Honour’s finding that an employer would take great pause before hiring someone with a sexual assault record was indicative that a discharge would be contrary to the public interest. Yet, Her Honour only regarded that factor as supporting a discharge being in the respondent’s best interest.
[50] Further, the Crown argues the trial judge erred in putting this offence on the lower end of the spectrum of sexual assaults because it failed to recognize that sexual assaults can be made out without any touching. Accordingly, a brief touching over the clothes does not represent the opposite end of the spectrum from a rape with additional gratuitous violence. The conduct the respondent engaged in was not at the lower end of the spectrum.
[51] Finally, Her Honour minimized and misapprehended the egregiousness of the offence by over-emphasizing that the contact was not skin-to-skin, minimizing the respondent’s post-offence conduct explaining that the victim believed the respondent was laughing or that he appeared to be laughing when the admitted facts included that he was laughing. Her Honour failed to address the incidence of sexual violence in the community, public attitudes toward sexual violence and the public’s expectations courts will repudiate this kind of conduct by at a minimum imposing a conviction.
[52] The respondent counters that the trial judge addressed all of the relevant factors and did not error in her analysis or weighing of the factors.
[53] I would not give effect to this ground of appeal for the following reasons.
[54] With regards to the purposes and principles of sentencing, Her Honour noted:
The applicable principles of sentencing are set out in sections 718, 718.2 and 718.2 of the Criminal Code. The objectives of sentencing include denunciation of an unlawful act, specific and general deterrence, and rehabilitation of offenders. I must increase, or reduce, the sentence, or take into account aggravating and mitigating circumstances relating to the offender or the offence. I must consider the impact the offence has had on the complainant and the community. A sentence should be similar to a sentence imposed on similar offenders, for similar offences in similar circumstances.
[55] The most important considerations for this offence are general deterrence and denunciation. Since Her Honour noted the appropriate areas for consideration without assigning a weight to the factors, the appellant’s submission amounts to the trial judge must have given insufficient weight to general deterrence and denunciation because of the sentence she imposed. This is despite the trial judge saying all sexual assaults are serious matters and this offence was clearly a serious matter.
[56] Her Honour considered and acknowledged the relevant principles, the facts noting that it was a serious matter as well as the impact on the victim and the offender. While it might have been helpful for the reasons to include the weight attached to at least some of the factors considered, that general deterrence and denunciation are the most important factors is well-known.
[57] During her submissions, the trial Crown repeatedly noted the serious nature of the offence and the “strong need for denunciation and general deterrence,” “sexual assault allegations are quite serious … at the forefront of the media attention these days” and “sexual assault is a very big societal concern.”
[58] On the date of sentencing, another Crown Attorney appeared and reiterated the opposition to a conditional discharge as it was not in the public interest, “especially given the current climate and public awareness surrounding these issues.” It would “severally undermine public confidence in the criminal justice system.”
[59] Defence counsel noted the behaviour was disgusting and horrific. He acknowledged what he termed the “elephant in the room,” that this type of offence is “top of mind as a public matter and it’s something that, appropriately so, is receiving an awful lot of attention.”
[60] The nature of the offence, the public concern for this offence and its impact on the victim were front and centre before Her Honour. She was well aware of them. A sentencing judge is not required to repeat or address every submission of counsel. Her Honour engaged in the required balancing of all the interests she was required to address. While others might have weighed the factors differently, that is not a basis to alter the sentence. In these, circumstances, I am not prepared to draw the inference the appellant seeks.
[61] With regards to the appellant’s submission about Her Honour’s reference to the potential employment difficulties that could flow from a conviction, the leading authorities noted earlier place the adverse consequences of a conviction in the first question – whether a discharge is in the offender’s best interest. The trial judge cannot be faulted for following binding precedents.
[62] As regards the spectrum of sexual assaults, I do not read Her Honour as saying that this was the least serious sexual assault. The trial judge has a wealth of experience in criminal law. The trial Crown noted that an unwanted kiss or a touching of a buttocks would be less serious. Defence counsel referred to the offence as “much closer to the one end of the scale.” The trial judge concluded that this offence was “at the lower end of the range of sexual assault.” I do not read Her Honour as saying that this was the least serious sexual assault. It was at the lower end of the range, not the bottom of the range.
[63] The trial judge did not overemphasize that the touching was over the skin. She appropriately mentioned the nature of the touching. That is a relevant factor. Other appellate authorities have noted whether the touching was over or under the clothing: R. v. L.T., [2011] O.J. No. 1650 (C.A.); Sazant v. College of Physicians and Surgeons, 2011 ONSC 323, [2011] O.J. No. 192 (Div.Ct.), at para. 279; R. v. Escobar, [2008] O.J. No. 1232 (S.C.J.) and R. v. R.R., 2013 ONSC 1517, at para. 93. Her Honour did the same. That a sentencing judge mentions that the sexual touching was “through” or over the clothing is not giving undue emphasis to one of many considerations on sentence.
[64] Finally, as regards the appellant’s assertion Her Honour ignored the agreed facts by finding that after the respondent sexually assaulted the victim, the victim believed the respondent was laughing or that he appeared to do so when the accepted facts were that those events occurred, I am not persuaded a review of the agreed facts and reasons supports the Crown’s submission.
[65] When the plea was entered the admitted facts included, “The victim and her boyfriend saw the accused laugh and gesture with his hands to a friend immediately following.” There was no reference to the laughing being about the incident.
[66] In sentencing, the trial judge said, “She saw that immediately after the incident he laughed with his friends; appearing to be laughing about what had just happened.” The trial judge did not say the victim believed he was laughing. She said he was laughing. That he appeared to her to be laughing about what happened, was a reasonable statement of what occurred and does not conflict with anything admitted on the plea.
Did the trial judge rely on case law that was not analogous?
[67] The appellant submits the trial judge relied on cases that were not analogous to the facts in this case. The respondent argues the cases upon which Her Honour relied were appropriate ones to consider.
[68] The respondent filed a casebook on sentencing. The Crown filed no cases, indicating that the problem was finding a similar fact situation. During the sentencing submissions, Her Honour provided the Crown with a further opportunity to provide cases. During those submissions, the trial Crown addressed Burton, infra specifically and the other defence cases generally.
[69] On the sentencing date, another Crown told the trial judge the first Crown was unable to find any cases that were directly on point with this particular fact scenario.
[70] The words of Lamer, J. in R. v. M.(C.A.), [1996] 1 (S.C.R.) 500, some of which were referenced earlier in Lacasse, are appropriate in regards to this case:
- ……. It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime. Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the "just and appropriate" mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred. …
[71] First, with regards to the cases relied upon by the trial judge, I agree with the Crown that they were all distinguishable. However, no one suggested that they were not distinguishable. No one, including the trial judge suggested that discharges were commonplace for sexual assaults. What the cases established was that discharges have been imposed for sexual assaults where the Crown proceeded summarily and the facts are not as serious as many sexual assault cases. They establish nothing more and nothing less.
[72] On appeal, Mr. Galluzzo referenced several cases, submitting they are more appropriate cases from which to establish the appropriate range. He submits the cases involve circumstances “similar to the offence and the respondent’s personal background or circumstances that are less aggravating.” I have reviewed and consider them all and agree that two, in particular have some similarities.
[73] In R. v. Hilan, 2015 ONCA 338, the offender touched a woman seated next to him on a bus and moved her skirt up her leg. The Court of Appeal upheld the conviction but reduced the sentence from 6 months to a suspended sentence and two years’ probation, concluding that given the circumstances of the offence and the appellant, “and particularly in light of 13 days of pre-sentence custody,” that a jail sentence was not required. There are however, distinguishing factors. First, Hilan was a trial, not a guilty plea. Second, since there is no reference to leave to appeal, the Crown proceeded by indictment in Hilan and summarily here. Finally, there was no evidence of intoxication in Hilan.
[74] In R. v. Zacarov, 2011 ONCJ 25, the 29 year old intoxicated offender came up to woman outside a bar and firmly grabbed her breasts for 5 to 6 seconds. The judge gave no weight to the offender’s intoxication. After a trial, not a guilty plea, the sentence was 30 days served intermittently and 18 months’ probation.
[75] What also has to be kept in mind is what ranges are and what ranges are not. They are nothing more than summaries of the minimum and maximum sentences imposed in the past, serving as guides for the application of all the relevant principles and objectives. They are primarily guidelines, neither averages, straitjackets, nor hard and fast rules. Instead, they should be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case. Determining a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 57, 58 and 60.
[76] Wagner J. continued at para. 58:
58 There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender's degree of responsibility and the specific circumstances of each case. LeBel J. commented as follows on this subject:
A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred. (Nasogaluak, at para. 44)
[77] While I agree with the Crown that Her Honour relied on cases which were all distinguishable from this case, and on appeal, the Crown referenced some cases with some similar factors, it is difficult to see how the trial judge could be faulted for not considering cases that were never provided despite the Crown having two opportunities to provide cases. I am not being critical of the trial Crown in these circumstances, but she had the respondent’s authorities and told the trial judge that she had done a lot of research and finding a similar fact situation where the Crown proceeded summarily was “near impossible.” The Crown agreed with the trial judge that was to be expected. On the sentencing date, similar comments were made by another Crown Attorney.
[78] No doubt, counsels’ casebooks do not preclude judges from doing their own research. Indeed in some cases it is prudent. In others, it is essential given the cases filed, if any. However, it is trial counsel’s obligation to the court to provide the relevant cases. Here, it appears the Crown on the plea was not the assigned Crown from the outset and took the understandable position that she could not find similar cases. That could be viewed as supporting Her Honour’s conclusion the case was unique.
[79] Harkening back to cases referenced earlier, parity is but one factor in assessing the fitness of a sentence. As noted above, parity is secondary to proportionality. Even assuming one could find identical facts with an identical offender, the direction in s. 718.2 (b) that similar offenders who commit similar offences in similar circumstances should receive similar sentences does not mean the sentences have to be identical: R. v. Jacko (2010), 2010 ONCA 452, 101 O.R. (3d) 1 (C.A.). On every sentencing there is a range of appropriate sentences.
[80] In these circumstances, I am not persuaded the trial judge erred in referencing the cases she did. She did not place undue weight on the authorities provided by the respondents’ counsel. Those authorities were used for nothing more than that a conditional sentence was a legal sentence and had been imposed on sexual assaults were the Crown proceeded summarily in the past.
Did the trial judge place undue emphasis on the respondent’s intoxication as a mitigating factor and inappropriately consider the respondent’s intoxication as a mitigating factor?
[81] There was no dispute that the respondent was highly intoxicated at the time of the offence. The investigating officer told the probation officer the respondent went with the police willingly although he seemed bewildered and confused. His level of intoxication made it impossible to interview him at the station.
[82] The appellant submits the trial judge erred in placing excessive emphasis on the respondent’s level of intoxication and in relying on it as a mitigating factor. Contrary to the submissions of the trial Crown, on appeal the appellant submits an offender’s intoxication is irrelevant in sentencing for this offence.
[83] The respondent submits that the trial judge did not place excessive emphasis on his intoxication. As the respondent noted in his factum, “when a defendant commits an offence that is out-of-character in part because his inhibitions were lowered by alcohol consumption, this is routinely taken as a mitigating factor on sentence even when it does not provide a defence.”
[84] This ground involves three questions. First, did Her Honour find the respondent’s intoxication was a mitigating factor on sentence? Second, if so, was it an error in principle to do so? Put differently, is self-induced intoxication a mitigating factor on sentence for sexual assault? Third, did the trial judge place excessive weight on the respondent’s intoxication?
[85] The starting point for this ground is s. 718.2 of the Criminal Code that provides that a sentence should be increased or reduced for any relevant aggravating or mitigating circumstance relating to the offence or the offender. Without limiting the generality of that statement, Parliament provided seven factors that would be aggravating on sentence. They provided no guidance on mitigating factors.
[86] However, the Supreme Court of Canada referenced aggravating and mitigating factors in R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, when considering immigration consequences as follows:
11 … the collateral consequences of a sentence are any consequences for the impact of the sentence on the particular offender. They may be taken into account in sentencing as personal circumstances of the offender. However, they are not, strictly speaking, aggravating or mitigating factors, since such factors are by definition related only to the gravity of the offence or to the degree of responsibility of the offender (s. 718.2(a) of the Criminal Code). Their relevance flows from the application of the principles of individualization and parity. [emphasis added]
[87] While strictly speaking aggravating and mitting factors only relate to the gravity of the offence and the offender’s degree of responsibility, in practice many mitigating factors are unrelated to the offence or the offender. For example, a guilty plea can be a most significant mitigating factor as well as time spent in pre-trial custody.
[88] I turn next to the three questions posed earlier.
Did the trial judge rely on the respondent’s intoxication as a mitigating factor?
[89] Three times in the reasons for sentence, the trial judge referenced the respondent’s intoxication. First, in reciting the facts, Her Honour noted the police were unable to interview him because of his state of intoxication. Second, that he admitted being extremely intoxicated on the night of the offence but family members said he did not usually drink to excess[^4] and third, that he expressed some gratitude that he had learned, through counseling that alcohol can contribute to making a person do things that they would never dream of doing in a sober state.
[90] Her Honour listed the mitigating and aggravating factors. The respondent’s intoxication was in neither list. In this context, the Crown basis his submissions that Her Honour erred in finding the respondent’s intoxication was a mitigating factor and in giving it too much mitigation on the following exchange during the Crown’s sentencing submissions. Her Honour referred to the investigating officer telling the probation officer the respondent was so intoxicated he could not be interviewed. The Crown responded:
THE CROWN: … I take no issue with the fact that he was extremely intoxicated and as a general intent offence it’s not a defence …
THE COURT: Oh, it’s not a defence, but, but certainly, you know, it, it’s, it has to factor in, right?
MR. DALEY: … I have seen the video ….. 10 is the most intoxicated, this gentleman was a nine point eight. He was, as the officer described him, he was completely obliterated …
THE CROWN: It’s certainly up to Your Honour to consider his level of intoxication, but while it doesn’t afford a defence …
THE COURT: Well, I, I would have to because if he was sober, I can tell you if he was absolutely sober, the sentence would be much different.
THE CROWN: Certainly.
THE COURT: You can appreciate that.
THE CROWN: Yes. … in my respectful submission, it’s still aggravating and … I don’t’ take as much comfort in the fact that he was intoxicated, given that to get to that state is voluntary consumption of alcohol at a social event. I’m not as, again, I’m not as comforted by the fact that he was that intoxicated though.
THE COURT: Well, I don’t’ think … anyone would be comforted by it.
THE COURT: … it’s a question I have to consider, you know, how he, how he was. We know, for instance, women who are, who are that intoxicated and unfortunately find themselves in a situation where they are so intoxicated courts have found they, they’re not in a position to make rational decisions and in fact, intoxication will vitiate consent … in those circumstances, so … it is a factor I have to look at. I’m not saying in any way it, it doesn’t make him not guilty. He’s still guilty and if … if I was to make such a finding men would think that they could drink and do whatever they … want, which is completely not true. But on the other hand, I can’t … treat him the same way I would treat someone who was sober and making this decision, right?
THE CROWN: Certainly, the only … thing that I would provide an analogy is drinking and driving where we have the voluntary consumption of alcohol, intoxication is not a defence, and a sober person wouldn’t get in their car in any sort of reduced capacity state. They are still held accountable for their activity while intoxicated. …
THE COURT: Are, are you saying that I should be treating him the same way I would treat an individual who was sober and not obliterated?
THE CROWN: No, I, I’m … saying that it is consideration and a valid consideration for … Your Honour, but how much that mitigates things ultimately is up to Your Honour, but from the Crown’s perspective it is not overly mitigating given the voluntary … consumption.
THE COURT: I wouldn’t characterize it that way either. I agree with you there. [emphasis added]
[91] From that exchange, Her Honour said the respondent’s intoxication was an issue that she would have to consider. The Crown agreed. The trial judge viewed the case as different from one where the offender did what the respondent did while sober. The Crown agreed. The prosecutor first mentioned mitigation and agreed that the respondent’s intoxication was mitigating. The issue was the amount of mitigation. The trial judge agreed that it would not be “overly mitigating,” apparently agreeing with the Crown that self-induced intoxication could be mitigating on sentence for sexual assault.
[92] On occasion, during appeals a trial judge’s comments during submissions can assist. But only in limited circumstances as the Court of Appeal held in R. v. Tiffin, 2008 ONCA 306 at para. 31:
Using a trial judge’s utterances made during the hearing to interpret statements made in the decision is only helpful where there is ambiguity in the reasons for decision. The statements made and questions asked by a trial judge during the hearing should not, as a general rule, supplement the content of the trial judge’s decision.
[93] I find this is one of those limited circumstances. Her Honour made the above noted comments regarding the respondent’s intoxication during submissions. While the reasons do not say that intoxication was or was not mitigating, from the comments made during submissions, the references in the reasons to the respondent’s intoxication and the sentence imposed, it is implicit in the reasons that intoxication was considered. While not listed as a mitigating factor, it would not be mitigating about the seriousness of the offence. For reasons to be developed, intoxication was relevant to his moral culpability.
Is self-induced intoxication a mitigating factor on sentence for sexual assault?
[94] At trial, the Crown and the trial judge said that an offender’s self-induced intoxication was a mitigating fact on sentence, albeit “not overwhelmingly mitigating.” Defence counsel did not directly address the issue in terms of mitigation.
[95] Contrary to the trial Crown’s position, on appeal the Crown submits that the offender’s intoxication is irrelevant on sentence. The appellant’s factum notes that since intoxication does not provide a defence to sexual assault, “[i]t stands to reason that no offender guilty of sexual assault ought to be able to look toward his/her voluntary consumption of alcohol as a factor that mitigates his/her degree of responsibility.” On appeal, the Crown relies on R. v. Tatton, 2015 SCC 33, R. v. C.V., [1998] O.J. No. 5987 (Gen. Div.) and s. 33.1 of the Criminal Code.
[96] Perhaps the conflicting views on this issue are not surprising given the case law. In R. v. Shanower, [1972] O.J. No. 772, (C.A.), the Court of Appeal reviewed a suspended sentence and probation disposition for the rape of a 15 year old by an intoxicated offender. In increasing the sentence to 3 years, the Court held:
Doubtless there are exceptional cases where even after a conviction on a charge of rape, the Court would be justified in suspending sentence, but we do not think that this is such a case. The accused pleaded guilty to raping a 15-year-old virgin, following a struggle in which she put up as much resistance as she could, even to the extent of breaking a glass bottle over his head in her efforts to avoid his obvious purpose. She had been engaged as a baby-sitter for the accused's children, and thus was under his protection. She made known the fact that she was a virgin, but despite that he persisted and accomplished his purpose. So far as the offence itself is concerned, the only thing that can be said in mitigation is that he had consumed a large quantity of alcohol before he embarked upon the attack on this young girl. [emphasis added]
[97] In Tatton, the Supreme Court of Canada was considering whether drunkenness should be a defence to a general intent offence. Writing for the Court, Moldaver J., without referencing mitigating factors, considered the Supreme Court’s judgment in R. v. Daviault, [1993] 3 S.C.R. 63 as follows:
27 Justice Sopinka specified that general intent crimes involve "the minimal intent to do the act which constitutes the actus reus": Daviault, at p. 123. Because such crimes involve minimal thought and reasoning processes, even a high degree of intoxication short of automatism is unlikely to deprive the accused of the slight degree of mental acuity required to commit them (ibid.). In his view, this feature alone provided a sound policy basis for precluding reliance on the defence of intoxication (ibid.). Bearing in mind the common sense inference that a person intends the natural consequences of his or her actions, one can typically infer intent from the performance of the act. It is therefore logical that for crimes involving a minimal mental element, intoxication short of automatism will have no role to play. Moreover, as Sopinka J. observed, general intent crimes tend to be "offences that persons who are drunk are apt to commit" (ibid.). It followed, in his view, that allowing intoxication to operate as a defence would contradict the social policy underlying these crimes.
42 However, if an examination of the mental element does not provide a clear answer, policy considerations may help resolve the question. In the main, the policy assessment will focus on whether alcohol consumption is habitually associated with the crime in question. If it is, then allowing an accused to rely on intoxication as a defence would seem counterintuitive. For example, intoxication is often associated with the crime of sexual assault. Allowing self-induced intoxication to provide an accused with a defence would be to endorse, if not promote, the very behaviour that has historically proved to be a root cause of the problem.1 And while the law and common sense may not always coincide, we should not be looking for ways to send them scurrying in opposite directions. By the same token, where self-induced intoxication rarely, if ever, plays a role in the commission of a particular crime, preventing an accused from relying on it makes less sense from a policy perspective.
45 In addition, the presence of judicial sentencing discretion may be a factor to consider. If the crime is one for which the accused will receive a heavy minimum sentence upon conviction, it may be unduly harsh to preclude consideration of intoxication. However, if the judge has discretion to tailor the sentence to the facts of the case and to consider the accused's intoxication as part of that assessment, precluding the accused from advancing a defence of intoxication is less worrisome: Daviault, at p. 124. [emphasis added]
[98] When Moldaver J. made the underlined comments after referencing heavy minimum sentences, the only minimum sentence for sexual assault was where the victim was under 18 years of age. While said in the context of heavy minimum sentences, the judgment refutes the Crown’s argument that the offender’s intoxication is never a relevant factor when sentencing for sexual assault. It is difficult to see how intoxication could only be a relevant factor if the offender faced a minimum and/or lengthy sentence.
[99] Further, later in Daviault, at para. 107, Sopinka J., in dissent on other issues, wrote without reference to minimum sentences:
By contrast, sexual assault does not fall into the category of offences for which either the stigma or the available penalties demand as a constitutional requirement subjective intent to commit the actus reus. Sexual assault is a heinous crime of violence. Those found guilty of committing the offence are rightfully submitted to a significant degree of moral opprobrium. That opprobrium is not misplaced in the case of the intoxicated offender. Such individuals deserve to be stigmatized. Their moral blameworthiness is similar to that of anyone else who commits the offence of sexual assault and the effects of their conduct upon both their victims and society as a whole are the same as in any other case of sexual assault. Furthermore, the sentence for sexual assault is not fixed. To the extent that it bears upon his or her level of moral blameworthiness, an offender's degree of intoxication at the time of the offence may be considered during sentencing. [emphasis added]
[100] In a case relied upon by the Crown, R. v. C.V., [1998] O.J. No. 5987, at para. 3, when sentencing for sexual assault Stach J. noted:
It is plain, however, that neither this offender nor others can look to the voluntary consumption of alcohol as a mitigating factor a court will take into account on the sentencing process. It is clearly not a mitigating factor.
[101] Finally, in Professor Hamish Stewart’s text, Sexual Offences in Canadian Law, Thomson Reuters, 2018, Toronto, the author provides a list of factors that often play a significant role in ascertaining the gravity of sexual offences and the degree of responsibility of the offender. Included in that list is “the presence of underlying sexual pathology or other contributing conditions (eg. Alcohol or drug use) and its amenability to treatment.”
[102] Dealing with sentencing intoxicated offenders for non-sexual assault offences, in R. v. Dunn [2002] O.J. No. 864, (C.A.) when reviewing an aggravated assault sentence, the Court of Appeal held:
Although the appellant was intoxicated at the time, the trial judge found that the appellant "knew what he was doing" and explicitly rejected the appellant's evidence that he was unable to remember the events of the night due to his intoxication. Violence occurring while under the influence of alcohol is not usually a mitigating factor: R. v. Dennis, [1993] M.J. No. 104 at 2 (C.A.)[^5]. [emphasis added]
[103] In R. v. Mochka, 2000 4070 (ON CA), [2000] O.J. No. 1069, (C.A.), in converting a 12 month jail sentence to a 13 month conditional sentence for aggravated assault, the Court of Appeal considered the offender’s intoxication without referring to it as mitigating, concluding:
2 Although this was a very serious offence, the appellant was a young first offender with an unblemished background. The material in the record establishes the following:
(a) the offence was entirely out of character;
(b) the appellant is a follower;
(c) he was influenced to participate in this crime by a negative peer group;
(d) when he committed the offence he was, for the first time in his life, extremely intoxicated; and
(e) he was extremely remorseful for what he had done. [emphasis added]
[104] As far as I can determine, Shanower has not been mentioned in a reported decision by Court of Appeal in the 46 years since it was released. It has been questioned in light of the passage of s. 33.1 of the Criminal Code: R. v. P.H.H., [1997] O.J. No. 4234 (C.J.). However, s. 33.1 and Tatton deal with intoxication as a defence, not as a mitigating fact on sentence. They are not the same. For example, an accused may fail in asserting a duress defence because there was a safe avenue of escape. That does not preclude the offender from advancing compulsion short of duress as a mitigating factor on sentence: R. v. Foster, 2018 ONCA 53. Further, while the Court of Appeal has not addressed the issue, s. 33.1 has twice been held to be unconstitutional in Superior Court judgments: R. v. Dunn, 1999 36525 (ON SC), [1999] O.J. No. 5452 (S.C.J.) and R. v. McCaw, 2018 ONSC 3464.
[105] Considering this survey of case law, and applying the Supreme Court of Canada’s finding that strictly speaking aggravating and mitigating factors relate only to the gravity of the offence or the degree of responsibility of the offender, in summary, first, an offender’s self-induced intoxication is irrelevant to the gravity of the offence. The gravity of the offending is not impacted by the offender’s self-induced intoxication. Second, the offender’s intoxication is relevant to his or her moral culpability, a component of the proportionality assessment. It is not one that has any significant effect. It is minimally mitigating at its highest in some cases and has little, if any mitigating impact in others. In others, it could be aggravating if there is a history of intoxicated offending.
[106] Clearly, not all aggravating and mitigating factors are of equal weight on sentencing. Some merit little weight while others deserve significant weight. The weight to be attached to a mitigating factor is a valid consideration: R. v. Suter 2018 SCC 34, at para. 77 and following.
[107] In Jacko, Watt J.A. wrote at para. 62
62 The appropriateness of a sentence depends on the particular circumstances of the offence, the offender and the community in which the offender committed the offence. Predictably, this individualized focus in sentencing decisions spawns disparity among sentences for similar crimes: Gladue, at para. 76; M. (C.A.), at para. 92.
[108] Why an offender committed an offence and what steps have been taken or can be taken to attempt to avoid a repetition of the offence are valid considerations on any sentencing. If an offender committed an offence because he or she was intoxicated, it is a relevant consideration with regards to the offender’s moral culpability, the need for specific deterrence, future public safety, whether there is need to remove the offender from society, the prospects of rehabilitation, whether counseling should be included in community supervision orders or while in custody, and in regards to the offender’s potential for rehabilitation.
[109] While intoxication does not excuse the respondent’s conduct in any way nor mitigate the seriousness of the offence, on this record, it explained his actions. It was a significant factor in contributing to his offending.
Did the trial judge give too much weight to the respondent’s intoxication?
[110] I find that the trial judge considered the respondent’s intoxication as a mitigating factor in the context just reviewed. Her Honour did not say she was giving his intoxication significant weight. It is an inference the Crown seeks to be drawn. I am not prepared to do so. The trial Crown agreed his intoxication was mitigating but not “overly mitigating.” I cannot conclude on this record that Her Honour placed undue emphasis on the respondent’s intoxication.
Did the trial judge minimize aggravating and amplify mitigating factors while considering factors that were irrelevant?
[111] The appellant submits Her Honour gave too much weight to mitigating factors, minimized the impact of aggravating ones, and considered irrelevant factors. The respondent submits the trial judge considered all the relevant factors and appropriately weighed those considerations.
[112] The trial judge listed the factors in aggravation as well as those in mitigating without referencing the weight that she gave to them. While the appellant suggests there should be a different weighing, subject to the later comments, I am not persuaded Her Honour gave too much weight to the factors in mitigation and insufficient weight to those in aggravation. That others may have or would have weighed the factors differently, is not the test.
[113] The trial judge mentioned the respondent’s grandmother’s ill health and his mother’s cancer diagnosis and surgery in mitigation. On reviewing the Reasons, I am not persuaded Her Honour regarded them as mitigating factors. The trial judge was assessing the respondent’s view that he had placed additional burdens on his family at a time when they were dealing with the illnesses noted. The comment placed the respondent’s remorse in context.
[114] If I am wrong in that assessment and Her Honour did regard those factors as mitigating she erred in so doing. Both occurred while he was awaiting trial. While both were most unfortunate and understandably upsetting for the respondent and his family, neither was mitigating. However, neither relate to the gravity of the offence or the respondent’s degree of responsibility. They may have had some relevance as to whether a jail term was imposed with family commitments but they would have been wrongly included in the mitigating factors.
[115] However, even if they were included in the mitigating considerations, I am not persuaded the error had any impact on the sentence. As noted earlier, it is not every error that permits appellate interference. It is only errors that impacted on the sentence. I am not persuaded that the illness of two members of the respondent’s family, were significant in Her Honour’s disposition.
Was the sentence demonstrably unfit?
[116] As noted earlier, even without a finding of an error in principle, an appellate court may intervene where the court finds the sentence was demonstrably unfit. Since I am not persuaded Her Honour erred in principle, to succeed on the appeal the Crown must show the sentence imposed was demonstrably inadequate: R. v. Hernandez-Mejia, 2019 ONCA 16. The respondent says it was not.
[117] The analysis starts with the range of sentence. While I appreciate that in Lacasse the Supreme Court of Canada found sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, if that was simply the highest and lowest sentence ever imposed for sexual assaults proceeded summarily, the range would be from an absolute discharge to 18 months in jail, the maximum sentence. The case law shows sentences throughout that range. For example, in addition to the cases noted earlier, in R. v. J.J.W.L.L., [2004] O.J. No. 3137 (C.J.), a conditional discharge was imposed on a guilty plea. In R. v. Sears, [1992] O.J. No. 3059 (Gen.Div), R. v. P.R., [2013] O.J. No. 1330 (S.C.J.) and R. v. J.B., [1996] O.J. No. 4011 (Gen.Div.) suspended sentences were imposed. In R. v. W.S., 2005 ONCJ 278 15 months was imposed. And in R. v. J.M., [2003] O.J. No. 3494 (C.J.), 18 months was imposed.
[118] That is a relatively large range. And appropriately so, given the wide range of conduct within sexual assaults.
[119] Last year the Supreme Court provided further assistance in R. v. Suter, 2018 SCC 34 as follows:
4 Sentencing is a highly individualized process. A delicate balancing of the various sentencing principles and objectives is called for, in line with the overriding principle that a "sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender" (s. 718.1 of the Criminal Code). Accordingly, there will be cases where the particular circumstances of the offence and/or the offender call for a sentence that falls outside of the normal sentencing range. This is one such case. [emphasis added]
[120] Given the normal sentencing range for this offence, this sentence is low, for this offence. It might even be said that it is outside the normal sentencing range. But that is not determinative. In order to grant the appeal in this area, I would have to find that on these specific facts the conditional discharge was clearly unreasonable or a substantial or marked departure from similar sentencings. I would have to find it is an unreasonable departure from the proportionality principle keeping in mind that individualized sentences and parity have to be reconciled.
[121] As Her Honour noted a person who is granted a conditional discharge has been arrested, brought to court and gone through the court process, been found guilty in a public courtroom, and sentenced to community supervision. Here, that community supervision included reporting, 50 hours of community service, counseling if directed and participation in the “Who Will You Help?” campaign.
[122] Further, as Sopinka J. noted those found guilty of sexual assault are rightly submitted to a significant degree of moral opprobrium. Not misplaced opprobrium, opprobrium to those who deserve to be stigmatized. Finally, a member of the public considering a sentence, must be a reasonable and informed member of the public with full knowledge of the offence, the impact on the victim, the offender and the impact on him or her and steps taken after offending.
[123] While it is a close call, in all the circumstances, I am not persuaded the sentence is demonstrably unfit. What leads me to dismiss this appeal is the required deference to trial judge’s sentencing decisions. Our Court of Appeal summarized the role of deference as follows in R. v. Ramage, (2010), 2010 ONCA 488, 257 C.C.C. (3d) 261:
70 Appellate deference to the trial judge's sentencing decision makes good sense. Sentencing is a fact-specific exercise of judicial discretion. It is anything but an exact science. In the vast majority of cases, there is no single sentence that is clearly preferable to all others. Instead, there is a range of reasonable options from which the trial judge must make his or her selection. That selection is driven by the judge's evaluation of the sentence that best reflects his or her assessment of the combined effect of the many variables inevitably at play when imposing a sentence. Absent the discipline of deference, sentence appeals would invite the appellate court to repeat the same exercise performed by the trial judge, with no realistic prospect that the appellate court would arrive at a more appropriate sentence. Appellate repetition of the exercise of judicial discretion by the trial judge, without any reason to think that the second effort will improve upon the results of the first, is a misuse of judicial resources. The exercise also delays the final resolution of the criminal process, without any countervailing benefit to the process.
71 A deferential standard of review on sentence appeals also recognizes that a trial judge has an advantage over the appellate court when it comes to balancing the competing interests at play in sentencing. The trial judge gains an appreciation of the relevant events and an insight into the participants in those events - particularly the accused - that cannot be revealed by appellate review of a transcript. For example, in this case, the appellant's remorse was accepted as genuine; however, at no time did he offer any explanation for what had happened. The trial judge was much better positioned than this court to evaluate these arguably inconsistent features of the appellant's response to the tragic events.[^6]
[124] I find that a conditional discharge was a reasonable option open to Her Honour, albeit not one I would have chosen. In Ramage, Doherty J.A. concluded the judgment with words that if they were appropriately modified, accurately reflect my position on this appeal. Modifications in Doherty J.A.’s comments would be required as His Lordship would have reduced the sentence had he been the trial judge:
80 Initially, I was inclined to the view that the sentence appeal should be allowed on the basis that the appellant's exemplary life, other than this event, entitled him to the lowest possible period of incarceration that would adequately reflect the need for general deterrence and denunciation. I thought that a penitentiary sentence of less than four years would achieve that purpose. Further consideration has, however, led me to conclude that were I to take that approach, I would not be giving the trial judge's decision the deference it is due. There is no error in principle here. Nor, in light of McVeigh and the relevant jurisprudence, can it be said that a four-year sentence is manifestly unreasonable. This court must yield to the trial judge's determination as to the appropriate sentence absent an error in principle or a manifestly unreasonable decision. I would add that deferring is made much easier by the trial judge's thorough reasons, which demonstrate a keen appreciation of all of the factors relevant to the determination of the appropriate sentence in this very difficult case.
Conclusion
[125] The appeal is dismissed.
DURNO, J.
Released: February 5, 2019
COURT FILE NO.: CR-18-841
DATE: 2019 02 05
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
JACOB BERSETH
REASONS FOR JUDGMENT
DURNO J.
Released: February 5, 2019
[^1]: While referred to at the sentencing hearing as Victim Impact Statements, the letters did not comply with s. 722 of the Criminal Code: R. v. P.R., [2013] O.J. No. 1330 (S.C.J.); R. v. McDonough (2006), 2006 18369 (ON SC), 209 C.C.C. (3d) 547 (S.C.J.) A Victim Impact Statement is directed to the court in the required form, not letters to the offender. In the absence of any arguments in regards to the letters at trial or on appeal, I will proceed on the basis that they were properly considered as Victim Impact Statements.
[^2]: From the material filed, the respondent had no recollection of the events or what the victim looked like.
[^3]: The trial judge mischaracterized the offence in M.J. That offender was acquitted of sexual assault.
[^4]: The respondent admitted in the pre-sentence report that he “drank to excess” on a few previous occasions and his trial counsel referred to him as a binge drinker.
[^5]: The offence in Dennis was aggravated assault.
[^6]: Doherty J.A. provided a third rationale that does not apply here - the benefit the trial judge has sitting in the community in which the sentence was imposed.