COURT FILE NO.: CR- 19-7-125

DATE: 2020/07/15

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

P.M.

Defendant

Andrew Max, for the Crown

Not present and not represented

Richard Litkowski, Amicus Curiae

HEARD: by video conference on May 29, June 5 and 22, 2020

SPIES J.

Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way.

Ruling under s. 475 of the Criminal Code and Reasons for Sentence

Overview

[1] Following a trial before me without a jury, the defendant, P.M., was convicted of committing a sexual assault on N.D. on November 30, 2017, contrary to s. 271 of the Criminal Code, R.S.C., 1985, c. C-46, committing an assault on N.D. contrary to s. 266 of the Criminal Code on November 15, 2017, and on the same date knowingly uttering a threat to her to cause her bodily harm, contrary to s. 264.1(1)(a) of the Criminal Code. I read the salient parts of my Reasons for Judgment in the presence of P.M. That decision is reported at R. v. M.(P.), 2019 ONSC 6476 (“Reasons for Judgment”).

[2] P.M. was represented at trial by Fielding Burgoyne. His sentencing hearing was scheduled on consent to take place on January 24, 2020. On that date P.M. did not attend. I could not proceed with the sentencing hearing in any event due to a conflict with an ongoing trial and so I issued a discretionary bench warrant and adjourned the sentencing hearing to March 2, 2020. On March 2nd, P.M. did not attend, and Mr. Burgoyne advised me that he had not been able to contact him despite numerous attempts. Mr. Max asked that I proceed with the sentencing hearing in the absence of P.M. I decided to give P.M. one further opportunity to attend his sentencing hearing and so I issued a bench warrant for his arrest, noted P.M.’s bail in default and adjourned the sentencing hearing to March 25, 2020. In the interim, the COVID-19 pandemic intervened and by order of Morawetz C.J. dated March 15, 2020 the sentencing hearing was adjourned to June 2, 2020.

[3] By email dated May 13, 2020, I contacted counsel and suggested that since P.M. had not been arrested, his sentencing hearing could be brought forward and I could decide, after hearing any evidence the Crown wished to call, whether or not to find that he has absconded and proceed with his sentencing hearing in his absence. Both counsel were in agreement and it was decided that the matter would be dealt with on May 29, 2020 by video conference.

The Crown’s Application pursuant to s. 475 of the Criminal Code

[4] Section 475(1) of the Criminal Code provides that if P.M. has absconded, he has waived his right to be present at his trial and that I may impose a sentence on him in his absence. Pursuant to s. 475(4) of the Criminal Code, Mr. Burgoyne is entitled to continue to act for P.M. even if he has absconded, but he advised me that based on advice he received from the Law Society and senior defence counsel, given that he has no instructions from P.M. with respect to sentencing, his only recourse is that he be removed from the record.

[5] Mr. Burgoyne filed an affidavit sworn by Jacob Downs, in-house counsel at Valencia LLP Advisors Limited. Mr. Downs deposed that he has been advised by Mr. Burgoyne and verily believes that Mr. Burgoyne has not been able to get instructions from P.M. on how to proceed with his matter, and that he has no instructions from P.M. on how to proceed on sentencing. He deposed that despite best efforts made by Mr. Burgoyne, Mr. Burgoyne has not been able to get in contact with P.M. since January 17, 2020 and that Mr. Burgoyne mailed a letter to P.M.’s last known address on February 18, 2020 advising him of his next court date, requesting that P.M. contact Mr. Burgoyne with instructions as soon as possible. In this letter, Mr. Burgoyne informed P.M. that if he did not contact Mr. Burgoyne with updated instructions, Mr. Burgoyne would not be able to continue to represent him on this matter. Mr. Burgoyne advised me that he had made further efforts over the past week without success.

[6] As a result, I granted Mr. Burgoyne’s request that he be removed from the record as counsel for P.M.

[7] Mr. Max confirmed that the Crown was formally bringing an application seeking a finding that P.M. has absconded and that in accordance with s. 475 of the Criminal Code I should exercise my discretion in favour of proceeding with his sentencing hearing in his absence.

[8] Mr. Max relied on the affidavit of Mr. Downs and called Detective Nair who gave evidence about his failed efforts to locate P.M. Detective Nair advised that the bench warrant I issued was added to CPIC on March 6, 2020 Canada-wide, and that P.M. has not been apprehended under that warrant. Detective Nair arranged for officers to speak to P.M.’s surety on March 1, 2020. Although the terms of P.M.’s bail require that he live with his surety, his surety advised that he did not know where P.M. was and that he had not heard from him since January 27, 2020. Detective Nair spoke to an Immigration Response Officer from Canada Border Security Agency (“CBSA”) who informed him that P.M. was required to report to the CBSA monthly, that he had last reported on January 10, 2020 and that he did not report as required on February 15, 2020. A warrant was to be sought, and, while I presume it was, P.M. has not been apprehended by the CBSA. Detective Nair was advised that there is a moratorium with respect to deportations to the Democratic Republic of Congo and so if P.M. is arrested by the CBSA, he would not be deported. Detective Nair also advised that during an investigation in March 2020, P.M.’s fingerprints were found in the City of Toronto. No details of the circumstances were provided to ensure no prejudice to P.M. Finally, Detective Nair advised that P.M. left a voice mail message on N.D.’s phone on April 12, 2020 wishing her a happy Easter.

[9] The word “absconds” imports that P.M. has voluntarily absented himself for the purpose of avoiding the consequences of the trial and the findings of guilt: see R. v. Garofoli (1988), 1988 CanLII 3270 (ON CA), 41 C.C.C. (3d) 97 (Ont. C.A.), rev’d on other grounds, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421.

[10] Having heard the evidence summarized above, it is clear that P.M. is alive and well and has consciously decided not only to not continue reporting to the CBSA but also to not contact his counsel and attend court as required for his sentencing hearing. I am satisfied that P.M. has voluntarily absented himself for the purpose of avoiding the consequences of the trial and the findings of guilt, and I find, pursuant to s. 475 of the Criminal Code, that he has absconded.

[11] The question then is whether or not I should exercise my discretion in favour of conducting P.M.’s sentencing hearing in his absence. Mr. Max provided a number of authorities that have considered this question, including R. v. A.K.K., 2017 ONCJ 694, a decision of Bhabha J. who reviewed a number of cases that considered when a court should proceed to sentence a defendant in absentia, notwithstanding a finding that the defendant absconded. One of the decisions he referred to was R. v. Singh, 2015 ONSC 904, where Pomerance J. decided not to proceed with sentencing in the absence of the defendant because she found that she had no information about the circumstances of the defendant save that he had no criminal record. As well, she was particularly troubled that the Crown was seeking a “double digit” sentence, in part because the defendant had absconded. That case is easily distinguishable from the case at bar.

[12] Bhabha J. also referred to R. v. Correa, 2011 ONCJ 409, where Caldwell J. of the Ontario Court of Justice granted the Crown’s application to sentence the defendant who had been found guilty of two counts of sexual assault, in absentia. One of the reasons that she gave, which I agree with, is that sexual assaults are very serious and that the complainant should have some sense of finality at the end of the proceedings. I am sure that N.D. needs this finality in order to move on. She spoke of the stress and uncertainty of the last two years and the impact these assaults have had in her Victim Impact Statement (“VIS”). She should be able to put this matter behind her and not worry about when she will be called upon to give her VIS in years to come, which would no doubt re-open old wounds and bring back all of the difficult emotions she is feeling now as a result of these assaults.

[13] The ultimate question is whether the court is of the view that it has enough information about the defendant in order to determine a fit sentence. In this case, both N.D. and P.M. testified at the trial and so I heard their respective personal circumstances: their ages, backgrounds, how they met, what they did for a living, their living arrangements, and their relationships with the children. Furthermore, P.M. did meet with a probation officer and a Pre-Sentence Report (“PSR”) has been prepared. For these reasons, I concluded that I have enough information about P.M.’s background in order to determine a fit sentence in this case. Furthermore, as Mr. Max submitted, it is hard to imagine that I would be in any better position if years from now P.M. were found and I was required to sentence him. Accordingly, I proceeded with the sentencing hearing in his absence.

Appointment of Amicus Curiae

[14] After hearing Mr. Max’s submissions on sentence, the matter was adjourned to June 5, 2020 for my decision. As I considered the Crown’s submissions, I decided that it would be of assistance if amicus curiae were appointed to make submissions on one discrete issue: in determining the appropriate range of sentence in this case, how should the decisions of the Court of Appeal in R. v. Smith, 2011 ONCA 564, 283 O.A.C. 18 and R. v. Bradley, 2008 ONCA 179, 234 O.A.C. 363 be interpreted and/or reconciled? As I will come to, Mr. Max argued that this court should not apply the sentencing range established in Smith. This appeared to be the first time that this argument was made, and given its importance, I appointed Richard Litkowski as amicus curiae to assist on this discrete issue so that I could determine the appropriate range of sentence in this case. Both counsel provided very helpful submissions for me to consider on this difficult issue and I heard their oral submission by way of teleconference on June 22, 2020.

The Facts

Circumstances of the Offences

[15] The facts relevant to this offence are set out in detail in my Reasons for Judgment. In summary, N.D. and P.M. met in 2008 and thereafter had an on and off again relationship. At the time of these offences, N.D. was living with her 14-year-old son from a former relationship, and her six-year old son who she had with P.M. Although there was a dispute as to whether N.D. and P.M. were ever living together, there was no dispute that they were not living together in 2017 or at the time of the alleged assaults. N.D. did say that they might live together for 60 days or so in the sense that P.M. “stayed” with her. After a period of time, they would always have a major break up and P.M. would leave and not show up again for four to six months.

[16] N.D. referred to what she called “protocols” in her evidence which she made in order to keep P.M. away and out of the apartment when he showed up unannounced, as I describe in my Reasons for Judgment. N.D. also complained that P.M. would not leave when she wanted him to.

[17] During a fight on November 15, 2017, in the downstairs of N.D.’s apartment, P.M. became upset that N.D. was filming him with her phone. They were in the entrance hall of her apartment. P.M. started to yell at N.D. and he attempted to take it from her by grabbing her wrist and taking her hand and pushing it down so she could not film him. He backed N.D. through the kitchen and into the corner of her dining room. There he grabbed her by the collar of her shirt and her bra and pushed her up against the wall while she was trying to block him with both of her hands. While P.M. had N.D. trapped in the corner of her dining room, he was furious and shouting at her. He was grabbing her and pushing her over a table and pressing down on her. P.M. finally let go of her shirt and backed away from her, but he continued to yell at her.

[18] When P.M. had N.D. trapped in the corner of the dining room, he was shouting and asking N.D. if she wanted to “mess” with him, he repeatedly told her that she knew him and he asked if she wanted him to “lose” it on her and whether she wanted him to show her just how much he did not care about her. These words were spoken when he was clearly furious. N.D. testified that when P.M. asked her if she wanted him to “lose it on you”, she took that to mean that he would unleash greater anger and violence on her. She thought he already lost it given what he had done to her to that point. When asked if she knew what P.M. was capable of, N.D. said that she understood that he would “show her” how much he could erase her from his memory and never show up for J.

[19] With respect to the sexual assault conviction, the facts in summary are as follows. After waking N.D. and attempting without success to get her to let him into her apartment late on the night of November 29, 2017, P.M. followed her into her apartment the following morning uninvited. Once inside, he dragged her upstairs into her bedroom by her wrists. N.D. told him repeatedly that she was not going to sleep with him although she was prepared to let P.M. sleep in the apartment because he said he had nowhere to go. However, when she tried to leave the bedroom, P.M. pushed her down on the bed and despite her continued protests that she did not want to have sex and her attempts to sit up, he undressed her and forced oral sex on her, then penetrated her vagina with two of his fingers and finally forced her to have vaginal intercourse with him, without wearing a condom, until he ejaculated inside her. N.D. testified that when P.M. began to penetrate her vaginally, she told him no again, that “this needs to stop”, “this is not a relationship” and “this aspect of the relationship is over”.

[20] N.D. testified that as he was having sex with her, P.M. was asking her to do various things such as kiss him, touch his bum and suck his lips. N.D. testified that when P.M. asked her to do these things, she hated it and that she was going through the motions, but her feelings were not genuine. She was wondering how long it would take and if she should fake a moan. She did not want to do the things he asked. She said that it felt like a “snake between her legs;” “like slime”. After she did these things, P.M. pulled out, massaged himself and went back in. Eventually it appeared to her that he climaxed, and he pulled out. As soon as P.M. let go of her, N.D. grabbed a towel off the door and went to take a shower.

[21] When N.D. was examined by a Registered Nurse, she was found to have a .5 cm tear below her vagina which N.D. attributed to P.M.’s fingers scratching her.

Circumstances of P.M.

[22] P.M. testified at the trial and I received a PSR dated January 16, 2020 and so I have information about P.M.’s background and his circumstances at the time of these offences.

[23] P.M. has no criminal record. He was born in Kinshasa, Democratic Republic of Congo on March 2, 1983 and so he is currently 37. He immigrated to Canada in December 2004 as a refugee and has since resided in both Montreal and Toronto. The author of the PSR was advised by the Canada Border Services Agency that he is presently under Foreign National Status and has been placed in the Removal Stream pending deportation.

[24] P.M.’s mother presently resides in Paris, France. His father passed away in 2006. P.M. is the eldest of seven siblings. He has six sisters who reside in France with his mother. Although his parents separated when he was nine years-old, P.M. told the author of the PSR that he had a good upbringing and he denied any history of emotional, physical or sexual abuse.

[25] P.M. had a good relationship with his father who provided him with both emotional and financial support. P.M. advised the author of the PSR that he and his mother get along well and that she has been very supportive. He said that she is aware of his current involvement in the criminal justice system and he keeps in regular contact with her. As for his sisters, they have a good relationship and he keeps in touch with them. The author of the PSR was not able to verify this information with the family as P.M. did not provide their contact information and none was available on file.

[26] P.M. advised the author of the PSR that N.D. has full custody of their son and he is required to pay an amount of $183 per month for child support. N.D. provided a copy of the Family Court order issued on June 2, 2014 to the author of the PSR and it provides that P.M. will be allowed access to his son at the discretion of N.D., and only on the basis specified by her. P.M. is interested in maintaining a relationship with his son and would like access to him.

[27] N.D. met with the author of the PSR. She advised that she co-habited with P.M. since 2008 but were not “common-law” as he never provided financial support. For the purpose of sentencing I do not consider N.D.’s legal characterization of the relationship to be relevant. The PSR also states that N.D. advised that P.M. only provided child support on two occasions since the Family Court order was made in 2014. I will not consider this information in sentencing P.M.

[28] P.M. advised the author of the PSR that he was in his second year of university for economics when he had to flee the Congo for England due to security issues in the country. He stated that he has no plans to continue with his education at this time.

[29] He told the author of the PSR that at the time of their meeting he was unemployed and has been in receipt of social assistance for the past 7 years. P.M. advised the author of the PSR that he cannot obtain employment at this time as he does not have a work permit. However, he did state that he was last employed in 2012 at a telemarketing company for which he worked for almost 2 years. He also worked for a local telephone company in technical support for a few months and did some volunteer work with the Francophone Community.

[30] In regard to mental health, P.M. did not report any past or present issues. He did report that he drinks alcohol socially and denied abusing drugs. However, N.D. told the author of the PSR that she believes P.M. has an issue with alcohol as he had been consuming a high amount of alcohol. I have considered that information. However, I have not considered the information in this regard set out in the PSR from DC Nair and have ignored his opinion that if P.M.’s alcohol use is not managed, it could place him at risk of re-offending. I do not believe that DC Nair has the expertise to provide this sort of opinion and he is conflicted in any event in giving such an opinion as he is the officer in charge of this case.

[31] N.D. described her relationship with P.M. to the PSR as very abusive and stated that he would get upset if she refused to have sex with him. I have not considered this information as there was only one charge of sexual assault before the court.

[32] N.D. advises the author of the PSR that P.M. has a very bad temper and that although he apologizes for his behaviour he does not take any responsibility for his actions and never changes. She believes he has unresolved anger issues and would benefit from some anger management counselling. I do find this information relevant as N.D. does know P.M. well.

[33] As for the children, N.D. did not express any concerns regarding their safety and well-being, and she told the author of the PSR that they have never been abused by P.M. in any manner. N.D. told the author of the PSR that she does not believe P.M. would ever hurt the children and that she would like her son to have a relationship with his father.

[34] In discussion with P.M. regarding his involvement in the offences before the courts, P.M. took responsibility for the assault and uttering threats, but he denied the sexual assault and said that it was consensual. Nevertheless, P.M. told the author of the PSR that he was willing to attend counselling as recommended by the court.

Circumstances of N.D.

[35] N.D. attended court on January 24, 2020, the day scheduled for sentencing, so that she could read her VIS to me and so it could be heard by P.M. That did not happen as the hearing did not go ahead then.

[36] In her VIS, not surprisingly, a lot of N.D.’s remarks focus on how her entire relationship with P.M. changed her life for the worse as opposed to how the specific offences he committed have impacted her. She states that he put her through “hard lessons” and that she does not know who she is anymore. She no longer feels untouchable - P.M. broke through the strongest part of her - her will, her pride, her physical strength, her health, her understanding of who she is, her know it all attitude, her belief in where she is going, that she has control in life and that she has what it takes to get to where she wants to go.

[37] N.D. states that she now keeps her lifestyle and activities to a minimum, that she is now cautious about personal goals, that her relationship with her friends has suffered and that her ability to cope with work and school has diminished with the additional stress and uncertainty of the past two years.

[38] The last part of N.D.’s VIS is aimed at P.M. and she states that if she could tell him just one last thing, it would simply be “I forgive you”. She goes on to speak of what their relationship was and what it could have been.

Legal Parameters

[39] The convictions for assault and uttering a threat to cause death each carry a maximum sentence of five years. The conviction for sexual assault carries a maximum sentence of ten years. There are no minimum sentences for any of the convictions.

Position of the Crown

[40] Mr. Max requested that a global sentence of three and one-half years be imposed. He suggested that this be apportioned with three years being allocated to the sexual assault, six months consecutive for the assault and six months for uttering a threat, concurrent. He also requested various ancillary orders; namely, a s. 109 order for ten years, a DNA order on the primary ground pursuant to section 487.051(1) and an order that P.M. be registered under the Sex Offender Information Registration Act, S.C. 2004, c. 10 for 20 years. He further requested a non-communication order with N.D. while P.M. is incarcerated, pursuant to s. 743.21 of the Criminal Code.

[41] P.M. was arrested on November 30, 2017 and he was released on bail on December 5, 2017. Having spent six days in jail, on a 1 to 1.5 basis he is entitled to a pre-sentence credit of nine days.

Principles of Sentencing

[42] 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 and aim to achieve same with the sentence I impose. The objectives are denunciation, specific and general deterrence, 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. 718.2.

[43] By virtue of s. 718.2 (a)(ii), if I find that N.D. was a common law partner, the fact that P.M. abused N.D. is a statutory aggravating feature. Furthermore, if I characterize the relationship between P.M. and N.D. as one of trust or authority, then pursuant to s. 718.2 (a)(iii) the fact P.M. abused that trust or authority is also a statutory aggravating feature.

[44] As I will come to, the Court of Appeal has made it clear that the principles of denunciation and deterrence are of particular importance in cases involving domestic violence.

[45] In R. v. Boucher (2004), 2004 CanLII 17719 (ON CA), 186 C.C.C. (3d) 479 (Ont. C.A.), at para. 27, the court stated that it has repeatedly emphasized that the principles of denunciation and deterrence, both general and specific, are of paramount importance in cases involving domestic violence, and that sentences “must be such that they will foster an environment in which individuals can feel free to leave romantic relationships without fear of harassment or harm, and without fear of violence aimed at forcing a return to a no longer wanted relationship”.

[46] Finally, as this will be the first time P.M. is sentenced to a custodial sentence, I must also consider R. v. Priest (1996), 1996 CanLII 1381 (ON CA), 30 O.R. (3d) 538 (C.A.), in which the court held, at para. 23, that even where a custodial sentence is appropriate, a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the defendant rather than solely for the purpose of general deterrence. I note, however, that in R. v. Thurairajah, 2008 ONCA 91, 89 O.R. (3d) 99, at para. 41, Doherty J.A. observed that for serious crimes of personal violence and sexual assaults in particular, while rehabilitation and other sentencing objectives remain important, denunciation and general deterrence “gain prominence”.

Sentencing Case Law

[47] In Smith, the Ontario Court of Appeal quashed a number of convictions and allowed a sentencing appeal. On the conviction for sexual assault of the offender’s wife, the court imposed a two-year sentence and stated at para. 90 that the “main aggravating factor” was that the appellant’s acts were of spousal abuse. In arriving at this sentence, the court stated at para. 87 that sexual assault involving forced intercourse with a spouse generally attracts a sentence in the range of 21 months to four years. This range for sexual assault was reaffirmed in R. v. H.E., 2015 ONCA 531, 336 O.A.C. 363, at para. 44, where Justice Benotto for the court added that cases at the lower end of the range of 21 months to four years involve single events.

[48] Mr. Max also relied on the decision of Molloy J. in R. v. Mitrovic, 2017 ONSC 1829, which was a case of sexual assault of a friend, not of a domestic partner. Molloy J. reviewed cases from the Court of Appeal and found that the “general range for offences of this nature is between three and five years”: paras. 38-39 [emphasis added], relying on Bradley. She went on to state at para. 41 that 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.

[49] I came to the same conclusion in R. v. McCaw, 2019 ONSC 3906, where at para. 59 I held that the range of sentence as established by the Court of Appeal in Bradley is three to five years for a single offence of sexual assault that was a completed act of unprotected vaginal intercourse.

[50] Mr. Max made the very compelling argument that the Bradley range of sentence should also apply in the case of a sexual assault of a domestic partner as there is no basis upon which the court could legitimately suggest that the range of sentence in the case of sexual assault of a domestic partner should be lower than that of a friend or stranger. For reasons I will come to, I decided that N.D. and P.M. were in an intimate relationship and that ss. 718.2(a)(ii) of the Criminal Code applies. I also found that this was a relationship of trust and that given the serious breach of this trust, s. 718.2 (a)(iii) of the Criminal Code requires that I consider this fact as an aggravating factor. As a result, the apparent conflict between Smith and Bradley was an issue that I had to determine as stated above. After considering Mr. Max’s submissions I decided to appoint Richard Litkowski amicus curiae to assist.

Is Smith dispositive as to the sentencing range for domestic sexual assault in light of Bradley

Positions of counsel

[51] Mr. Litkowski submits that the Crown’s argument that the Bradley decision has significant precedential value, thus creating a conflict and/or incongruity between that decision and the subsequent judgment of the Court of Appeal in Smith is based on a false premise. It is the position of amicus that Bradley, as an endorsement from the Court of Appeal, has limited, if any, precedential value in establishing a range of sentence for sexual offences. In particular, Mr. Litkowski points out that the entirety of the court’s position on this issue in Bradley is one sentence in the endorsement, that accepts a submission by the Crown on appeal: “We accept the Crown's submission that, in the circumstances, the appropriate range of sentence was three to five years.” There is no discussion of, or reference to, any cases in support of this range; there is no elucidation of the specific “circumstances” or specific categories of cases that this range applies to; and the decision has not been subsequently referred to by the Court of Appeal as having precedential value in respect of the “range” cited therein. He submits that by contrast, in Smith, a written judgment, the court identifies the specific category of case that the range of 21 months to four years applies to and the court refers to a number of cases to support the parameters of the range. It is his position that the Smith decision remains “good law” insofar as it sets a range for sentences in cases of forced sexual intercourse on a spouse or former spouse.

[52] Mr. Max submits that Bradley has precedential effect and that without any basis, the Ontario Court of Appeal appears to have endorsed a lower sentencing range for people who sexually assault their intimate partners than for people who sexually assault strangers or friends. He submits that the creation of this lower range for intimate partner sexual assault was inadvertent and that there appears to be no considered basis by which the court in Smith determined to apply a lower sentencing range to the sexual assault of a domestic partner. It is his position that if Smith intended to create such a distinction in sentencing ranges between “stranger” and “domestic partner” sexual assault, this would be both unprincipled and contrary to the development of sexual assault law in Canada since reforms in 1983 eliminated the spousal immunity conferred to men who sexually assaulted their wives. He also provided material to support his position that the distinction runs against years of social science research and statistical data about the frequency and severity of sexual assaults in the intimate partner context and that it undermines the Supreme Court of Canada’s repeated denunciation of the myths perpetuated against survivors of sexual assault. Mr. Max submits that this court has the opportunity to converge the two divergent lines of case law on sexual assault sentencing such that the existence of a defendant/complainant intimate relationship plays no role in determining the baseline sentencing range for sexual assault. This factor should be reserved for consideration at the stage of evaluating the aggravating factors at sentencing under ss. 718.2(a)(ii) of the Criminal Code.

[53] To this, Mr. Litkowski responded that the Crown’s focus on the history of Parliamentary reforms, social studies and empirical evidence regarding sexual assault between intimate partners, and differential treatment thereto, is simply misplaced; not because the assertions are inaccurate or misleading, but because the discussion is not germane to the discrete issue raised in this case and that the courts and judges are alive to the importance of highlighting and giving effect to aggravating features of certain offences, specifically, for example, in the cases involving sexual assaults on intimate partners and spouses. It is his position that Smith expressly does so and that it is beyond the scope of this court’s authority, and beyond its proper institutional role to essentially overrule the range set in Smith and replace it with a range consistent with Bradley. He submits that in this case, Smith is binding on this court, unless and until the Court of Appeal changes or casts doubt on the range referred to therein or the Supreme Court of Canada provides contrary authority.

[54] In support of the position asserted by amicus, Mr. Litkowski relies on: (i) the Court of Appeal’s treatment of Smith as compared to Bradley, and (ii) the Court of Appeal’s jurisprudence on the precedential value of “endorsements” of the court.

The Court of Appeal’s treatment of Smith

[55] Before turning to the decisions of the Court of Appeal that have affirmed Smith, given the issue before me it is important to note that the court offered no real reason for developing the 21 months to four year range for “forced intercourse of a spouse or a former spouse” other than the fact that the sentences in each of the domestic sexual assault cases it cited fell within the 21 months to four years sentence range. Having concluded that the main aggravating factor in the sexual assault was that it was an act of spousal abuse, it is strange that the court would not refer to its earlier decision in Bradley nor discuss the range of sentence for sexual assault previously established in Bradley. Amicus would say that is because Bradley is of no precedential value.

[56] In Smith, the court however did specifically refer to five other Ontario cases at para. 87, in support of the range of 21 months to 4 years. All the cases cited involved sexual assault in the context of a spousal/common law relationship but none of them endorsed any particular range of sentence. In fact, those cases specifically referred to the aggravating factor of victimizing partners in the context of a marital or common law relationship and also emphasized the importance of denunciating abusive behaviour in the domestic context. Given the sentencing cases the court cited in Smith, it is even stranger that the court did not refer to Bradley. At least two of the five cases the court cited on the sentencing range issue were actually endorsements of the Court of Appeal: R. v. M. (B.), 2008 ONCA 645 and R. v. Nolan, 2009 ONCA 727. Even if the court decided that Bradley has no precedential value for the legal proposition that the appropriate sentencing range is three to five years, that decision would not necessarily preclude the court from considering Bradley as a data-point alongside R. v. M. (B.) and R. v. Nolan.

[57] In R. v. Jackson, 2010 ONSC 3910, one of the cases cited in Smith, Hill J. sentenced an offender who pleaded guilty to sexual assault of his common law partner. At para. 22 Hill J. stated:

A woman who is the mother of a young child and who is often to some extent economically dependent on her domestic partner’s income, and who cannot immediately terminate feelings of love for that partner is particularly vulnerable to behind-closed-doors abuse.

[58] Hill J. then went on to quote from R. v. Millberry, [2002] EWCA Crim 2891, at para. 9 where the court stated: “Sexual assault is a grave crime. Marital rape behind closed doors is a very serious species of sexual assault. It should not be treated as less serious than instances of ‘stranger rape’”. Hill J. accepted the joint submission and sentenced Mr. Jackson to three years’ imprisonment but stated at para. 23 that this was at the low end of the range.

[59] Turning then to the arguments advanced by amicus, I agree that Smith has had greater import than Bradley in establishing a range of sentence for sexual assaults of domestic partners because, while the Crown references several Court of Appeal cases that cite Bradley, none do so specifically with respect to the sentencing range.

[60] The range set in Smith has been considered and specifically approved of by subsequent decisions of the Court of Appeal. I have already referred to H.E. at para. 47 above. In addition, Mr. Litkowski referred to R. v. Stewart, 2013 ONCA 579, 311 O.A.C. 70, where the Court of Appeal described Smith at para. 5 as a “helpful” case for fixing the range of sentence in cases of forced sex with a former spouse.

[61] In R. v. S.M.C., 2017 ONCA 107, at para. 6, the Court of Appeal stated that the sentencing judge accepted that Smith identified the appropriate sentencing range of 21 months to four years as appropriate in cases of sexual assault involving forced intercourse with a spouse or former spouse. The court did not expressly state its approval of Smith but was focused on what it considered the ultimate question of whether or not the sentence imposed was fit. After stating that the sentencing judge noted that the 18-month sentence suggested by the Crown was below the range in Smith and after considering the mitigating circumstances, the court upheld the 15-month sentence imposed by the sentencing judge. In doing so the court made the following important statement about the value and proper use of ranges at para. 7:

We note that both at trial, and in this court, there was much discussion about different sentencing ranges for sexual assaults, depending on specific features of the sexual assault. The range of sentence imposed for similar offences can be helpful in fixing the appropriate sentence in a given case. However, it must be stressed that the ultimate question is not what range does or does not apply, but whether the sentence imposed is appropriate in the specific circumstances of the case. This sentence was fit in these circumstances. [Emphasis added]

[62] As Mr. Litkowski observed, S.M.C. is itself an endorsement of the court. He argues however it fulfils the criteria set out in R. v. Martin, 2016 ONCA 840, 134 O.R. (3d) 781 as discussed below; namely, it incorporates by reference both the trial judge’s reasoning and the leading appellate authority, Smith, in the course of upholding the trial judge’s deviation from the range. That is true although as I have stated the court did not expressly approve of the range in Smith.

[63] It appears that in cases where this court has considered what the appropriate range of sentence is for sexual assault of a domestic partner, Smith has been applied. For example, in R. v. D., 2018 ONSC 1198, Lacelle J. imposed a global sentence of three years and nine months, of which two years was attributed to a sexual assault of a domestic partner in a trust relationship where there was no intercourse. Among other decisions, Lacelle J. referred to Smith. The sentence was upheld on appeal, see R. v. J.D., 2019 ONCA 138.

[64] The most recent decision I am aware of is R. v. Studd, 2020 ONSC 2810, where at para. 11, Davies J. cited Smith as authority for the “sentence range for cases involving forced intercourse with an intimate partner or former partner”. Mr. Litkowski submits that it would be an error of law for this court not to apply Smith in the same manner.

What the Court of Appeal has said about the precedential value of Endorsements

[65] Amicus submits that all decisions of the Court of Appeal are not created equal and relies on the Court of Appeal’s decisions in R. v. Timminco Ltd. (2001), 2001 CanLII 3494 (ON CA), 54 O.R. (3d) 21 (C.A.), R. v. Singh, 2014 ONCA 293, 120 O.R. (3d) 76, at para. 12 and Martin, at paras. 18-20, in support of his submission that Bradley contains none of the elements cited in Martin that would warrant giving it any meaningful precedential value.

[66] In Timminco, the court stated at para. 36:

Reasons of this court given by “endorsement” are mainly directed to the immediate parties. Endorsements, like all judgments of this court, have precedential value but they should not be construed to support broad overarching principles which are not specifically addressed in them. [Emphasis added]

[67] In Singh, the court reiterated the same comment at para. 12, citing Timminco, and added the following:

While all decisions of this court are binding, care must be taken to avoid reading unwarranted jurisprudential principles into a decision of the court rendered in an endorsement as brief as in Bugler. Such endorsements are intended primarily to simply pronounce a decision for parties who, having been present in court during the argument of the appeal, will understand the thrust of the court's reasoning. When the court intends to articulate jurisprudential principles for the first time, it does so in a written judgment. . . This court has expressed this caution before. See the remarks of Osborne J.A. at para. 36 of R. v. Timminco Ltd. . . . [Emphasis added]

[68] Finally, two years later in Martin, the court cited both Timminco and Singh, and then expanded on some of the factors to consider when deciding what weight to assign to any precedential value of an endorsement. The court explained at paras. 18-19:

[18] … Jurisprudential principles intended to be articulated for the first time take the form of written judgments. Care must be taken not to construe an endorsement as supporting broad principles that were not specifically addressed. . .

[19] That said, the weight to be given to an endorsement will vary widely. Sometimes the general principles of law have already been established by full written reasons in prior cases and it is only necessary for the Court to apply those principles to the case before it. Sometimes the jurisprudential heavy lifting in the particular case has been done by the court at first instance and there is little, if anything, for the appellate court to add apart from its agreement with that reasoning. [Emphasis added]

[69] To consider the application of these general principles to Bradley, it is helpful to first consider what was at issue in these three decisions from the Court of Appeal. Timminco was an appeal of an appellate decision to set aside a directed verdict of acquittal on a single charge of failing to ensure that a 'crown press' with an exposed moving part was fenced or guarded, contrary to s. 25(1)(c) of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 and s. 185(1) of Regulation 854, R.R.O. 1990. One of the central issues before the court was whether its unreported endorsement in R. v. Grant Paving & Materials Ltd. delivered October 23, 1996 was binding authority for the proposition that the Crown must prove knowledge of the alleged workplace hazard as part of the actus reus of the relevant regulatory offence.

[70] The issue of foreseeability however was not before the Court of Appeal in Grant Paving. In that case, based on the information set out in Timminco, the Court of Appeal decided an appeal of an appellate decision to set aside a directed verdict of acquittal in favour of an employer on a regulatory charge. The trial judge made two important discrete findings of fact, one being that there was no evidence a worker was exposed to the hazard. On appeal, the appeal judge reviewed the issue of foreseeability of the hazard and concluded that the trial judge erred in granting the employer’s motion for a directed verdict. In the brief endorsement on the further appeal to the Court of Appeal, the court focused on the trial judge’s finding that there was no evidence that the employee was exposed to a hazard and concluded that this finding of fact should not have been disturbed at the first level of appeal. At para. 36, the court in Timminco stated: “The court's endorsement [in Grant Paving] did not refer to any of the other reasons of the trial judge”. In other words, the court found that Grant Paving was not authority for the proposition that the Crown must prove that a hazard is foreseeable because the court decided the appeal simply on the factual determination of the trial judge that there was no exposure to a hazard.

[71] Singh was an appeal from a decision of a summary conviction appeal judge allowing the respondent’s appeal from her conviction for operating a motor vehicle while her blood-alcohol level was “over 80”. The first instance judge in Singh rejected the submission of defence counsel that the Crown had failed to prove that the second breath sample was taken “as soon as practicable” as set out in s. 258(1)(c)(ii) of the Criminal Code, because of the failure of the Crown to call evidence to explain the delay. On appeal, the summary conviction judge allowed the appeal on the basis of unexplained delay. The central issue before the Court of Appeal was accordingly whether the summary conviction appeal judge had erred in concluding that the Crown had not met its burden to prove that second breath sample was taken from the respondent “as soon as practicable”, in reliance on a line of cases following the Court of Appeal’s decision in R. v. Bugler, [1997] O.J. No. 2283.

[72] In overturning the decision of the summary conviction appeal judge, the Court of Appeal held that Bugler did not articulate any proposition of law. As the court explained, its earlier decision in Bugler was a four-sentence oral endorsement in which it found that the trial judge had incorrectly accepted an explanation for a delay in sampling based on a misapprehension of the evidence. The endorsement contained no recitation of the facts that would enable a reader to understand the overall circumstances of the case, how the delay between tests fit into those circumstances, or why the court was satisfied that the trial judge “clearly felt that in this case an exploration was called for to account for the delay” at para. 10. In other words, whether the Crown must always proffer evidence to explain a delay was not an issue in Bugler; the Court of Appeal decided the case simply on the basis of the trial judge’s misapprehension of the evidence.

[73] It is clear from both Timminco and Singh that the ultimate decision of the court to not follow its earlier endorsement had more to do with the fact the endorsement did not decide the issue in question rather than the fact the earlier decision was given by endorsement.

[74] In Martin, the appeal raised a narrow jurisdictional issue. One of the Crown’s arguments was that the endorsement in R. v. Fach (2004), 2004 CanLII 36167 (ON CA), 192 O.A.C. 104 (C.A.) was dispositive of the issue. The respondent argued that although Fach was a binding decision because it was an endorsement, it had limited precedential value, was not decisive on the issue and that in any event it could be distinguished factually. Weiler J.A. agreed that the factual context in Fach was different and then set out the general principles on endorsements described above. On the endorsement in Fach, Weiler J.A. held at para. 20 as follows:

The endorsement in Fach expressed its substantial agreement with the reasoning of the judge at first instance who observed that:

when the question of jurisdiction is tested against the functional and structural approach set out in R. v. 9746497 Ontario Inc. (c.o.b. Dunedin Construction) . . . it is clear that the overriding function of the summary conviction courts is to try criminal cases. It is not to fix costs.

The endorsement also cited appellate and Supreme Court of Canada jurisprudence for the general principle that absent a finding of abuse or other flagrant impropriety, it is not for the Summary Conviction Court judge or the accused to determine how the limited resources of the Summary Conviction Court should be used. Thus, the weight to be accorded to Fach must take into consideration the reasons it endorsed and the jurisprudence on which it relied.

[75] Weiler J.A. went on at para. 22 to note that because of a decision decided after Fach which gave rise to an argument not considered in Fach and given the factual differences, Fach was not “clearly dispositive of the appeal before us”. Again, the reason given for not following Fach was not specifically that it was a decision given by endorsement.

Does Bradley have precedential value?

[76] I turn then to a closer look at the Bradley endorsement in light of these general principles. Amicus argues that the Bradley endorsement contains none of the elements cited in Martin that would warrant giving it any meaningful precedential value in determining the appropriate sentencing range for sexual assault because: 1) Bradley does not make reference to the reasons of the trial judge and does not cite with approval any cases that the trial judge may have referred to, or any of the cases that the Crown on appeal relied on to suggest the appropriate range of sentence; 2) it cites no other appellate authorities, especially no other authorities where the jurisprudential principles at play have been previously discussed and established; and, 3) the endorsement does not identify with any precision the category of case, and/or offender that the range would apply to. For these reasons, Amicus argues that the Bradley endorsement is only the court directing its decision to the specific parties before it, on the specific facts before it, acting in its traditional and more limited role as an error correcting tribunal.

[77] Bradley was an appeal from a conviction of sexual assault and the corresponding sentence of an experienced police officer against a young aboriginal woman who was his friend and mentee. Facts with respect to the relationship between the officer and the complainant were set out in the endorsement as well as the circumstances of the sexual assault. The complainant was raped vaginally and anally, the appellant demanded oral sex and made degrading comments to the complainant. On the sentencing appeal, the appellant argued that the trial judge erred in treating the appellant's “fabricated” evidence as an aggravating factor and using the fact the appellant was untruthful to increase his sentence. The Court of Appeal agreed this was a clear error and so it fell to the court to determine a fit sentence. The trial judge had imposed a sentence of four years.

[78] The court stated at para. 18 that it would “accept the Crown's submission that, in the circumstances, the appropriate range of sentence was three to five years.” Although the complainant and the accused were friends and held a mentor-mentee relationship, it is important to note that the court did not confine the range to the context of any particular complainant-defendant relationship. Furthermore, this was not what one would typically consider as a sexual assault of a stranger. The court held that the appellant should be sentenced at the low end of the range given it was a single conviction of sexual assault, there was no violence apart from that which is inherent in such an offence, it occurred many years prior to trial, and the appellant was now in his early fifties, had no prior criminal record, an unblemished character and was a positive role model for his children.

[79] Bradley has been referred to with approval by the Court of Appeal, although I appreciate that no specific mention has been made of the sentencing range it set out. For example, in R. v. Manowar, 2010 ONCA 871, at para. 20, Bradley was cited with approval as a case involving a similar offence and offender to support a finding that a conditional sentence was not a fit sentence. In R. v. R.C., 2020 ONCA 159 the court found that the 51-month total sentence imposed by the trial judge was not demonstrably unfit for the appellant who had no criminal record but was found to have violated the trust of two complainants through serious sexual misconduct, including forced penile penetration in one case, with profound psychological consequences for both complainants. The court observed that:

The sentence…fell within the range of sentences for similarly-situated offenders, which, while involving somewhat different circumstances of abuse of trust, confirm the fitness of the combined sentence imposed here: see, for example, R. v. Bradley, 2008 ONCA 179, 234 O.A.C. 363, at para. 18 (three-year sentence for a single count of sexual assault by a police officer with no prior criminal record who vaginally and anally penetrated a mentee who aspired to become a police officer); R. v. Wood, 2015 ONCA 337, at para. 4 (six-year sentence for a pastor convicted of sexual offences against three parishioners); and R. v. Clase, 2017 ONSC 2484 (five-year sentence for sexual assault involving vaginal penetration and choking). I therefore see no basis to disturb the sentence imposed”. (At para. 95, emphasis added)

I note that in this passage the court in R.C. expressly acknowledges that Bradley involved an abuse of trust, which of course is an aggravating factor.

[80] As I have already stated, Bradley has been considered to have established a range of sentence for sexual assault of a stranger by trial judges, myself included. I have already referred to the decision of Molloy J. in M.M. and my decision in McCaw. Mr. Max also drew my attention to the decision of Code J. in R. v. A.J., 2018 ONSC 5153, where at para. 34 Code J. stated:

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

[81] The appellant took two acquaintances on successive dates to secluded places and sexually assaulted them. There was evidence of planning and the appellant took the victims to places which he had obviously previously selected. The offences involved the use of violence and threats and attempted rape in one case. Although the appellant at the time was 23 years old and had no record, these serious offences required a penitentiary sentence. The sentence of 5 years imprisonment was appropriate. The only error by the trial judge was to suggest that the range for these types of offences could be as low as reformatory. The offences involved in this case required a penitentiary sentence of some length. Given the circumstances in this case, the sentence imposed was lenient and reflected the appellant’s relative youth and lack of record.

[82] It is important to note that the cases referred to by Code J. include R. v. D.L., which I have referred to above as the decision of Lacelle J. in R. v. D. and R v. Ajimotokan, a decision of Goldstein J. that I will come to.

[83] For the reasons that follow, I do not accept the argument made by amicus that trial courts in the province have misapplied Bradley and that it is incorrect to state that it sets a precedent in terms of the range of sentence for serious sexual assault of a stranger. In my view, Bradley clearly has precedential value. I acknowledge that the court in Singh held at para. 12 that when the court intends to articulate jurisprudential principles for the first time, it does so in a written judgment. That statement however must be reconciled with the fact that as already set out Timminco, which was approved of in Singh and Martin, the court stated that like all judgments, endorsements are binding, and they have precedential value. Timminco cautions that endorsements should not be construed to support broad overarching principles which are not specifically addressed in them. In Martin at para. 18, the court reiterated both of these principles stating that jurisprudential principles intended to be articulated for the first time take the form of written judgments and again cautioned that care must be taken not to construe an endorsement as supporting broad principles that were not specifically addressed. These decisions support the principle that the precedential value of an endorsement varies depending on the extent to which the court considered and decided the issue about which the court is said to have articulated a proposition of law.

[84] It is true that Bradley does not set out the reasons of the trial judge, any caselaw cited by the trial judge, or the cases the parties relied upon on the issue of the appropriate sentencing range. I also accept that where an issue was not before the court, as was the case in Grant Paving and Bugler, the endorsement has no precedential value in respect of the issue and the endorsement does not articulate any propositions of law on same. However, as already set out, the question is what was the issue or principle specifically addressed? In this case it is clear that the court in Bradley stated a proposition of law: the appropriate sentencing range for non-partner sexual assault. That issue was squarely considered and decided by the court. This clearly distinguishes Bradley from Grant Paving and Bugler, on this point. That is why in my view, Bradley has been accepted by the judges of this court as setting a precedent when it comes to sentencing an offender of a sexual assault of a stranger.

[85] Furthermore, this interpretation of the authorities is consistent with the doctrine of stare decisis, which dictates that whether a decision of the Court of Appeal is binding on a particular issue will turn on whether the court actually decided said issue. While this principle of stare decisis is true of both endorsements and full judgments, caution is appropriate in the endorsement context because they tend to be written in summary fashion, with either limited or no recitation of the facts and submissions. Insofar as endorsements rely on pre-existing jurisprudence and/or the reasoning of the courts below, even minimal discussion of an issue may indicate that the Court of Appeal has considered and decided the issue/endorsed a proposition of law. However, though their presence may be helpful, in my view the absence of these factors does not preclude a finding that the court decided the issue, such that it forms a binding decision on lower courts. In a case like Bradley where it was clear that the relevant issue was before the court, stare decisis dictates that the decision is binding on lower courts.

[86] For these reasons, I have concluded that even as an endorsement, Bradley has precedential value.

The Proper Role of Ranges

[87] Mr. Litkowski provided caselaw on the role of sentencing ranges, and as he helpfully submitted, the above-noted quote from S.M.C. is an apt introduction to a more general discussion of the proper role of sentence ranges. There has been significant guidance from the Supreme Court of Canada respecting the setting and the use of ranges in the sentencing process, in two cases: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 56-60, and more recently, R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1, at paras. 36-39 and 106.

[88] Amicus submits that the Supreme Court of Canada in these decisions has held that the provincial appellate courts are in the best position to identify and set ranges for particular offences in their jurisdictions. He argues that as a corollary to this principle, that this court, a trial court, should be loath to effectively change the range set out in Smith, which has been repeatedly affirmed by the Court of Appeal, in favour of the limited precedential value of the Bradley endorsement.

[89] Amicus submits:

Simply put, it not for this sentencing court to ignore the range set by Smith, based on the tenuous assertion that Bradley represents something beyond a short endorsement resolving an appeal between its parties. Such a pronouncement would drastically affect the precedential value of Smith, and the jurisprudence in this province, and can only come from the appellate court. This court retains, however, a significant scope to exercise her discretion in a manner that gives effect to all the principles of sentencing, both codified and at common law. This discretion even extends to a principled and judicious deviation from a range of sentence, which as Lacasse holds, would not be synonymous with an error of law or an error in principle.

[90] While it is true that in Friesen, the court stated that provincial appellate courts are in the best position to set sentencing ranges, to put that comment in context it is important to note that this statement was in response to an invitation for the Supreme Court of Canada to opine on a national starting point or sentencing range (at para. 106). In the case at bar, having found that Bradley has precedential value, I am not setting a new sentencing range but rather deciding which existing sentencing range to apply or determining how the two can be reconciled. If I consider my decision in that manner, there appears to be ample authority that the decision falls within the trial judge’s discretion; see R. v. Gill, 2019 ONCA 902, approving of R. c. Lacasse, 2015 SCC 64, at para 51:

… the choice of sentencing range or of a category within a range falls within the trial judge’s discretion and cannot in itself constitute a reviewable error. An appellate court may not therefore 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. [Emphasis added.]

[91] It is trite to state that sentencing ranges are, at best, guidelines for the application of the relevant sentencing principles and objectives, and that sentencing remains a highly individualized process, subject to judicial discretion. As I have already stated, the Court of Appeal observed in S.M.C., at para. 7 that although the range of sentence imposed for similar offences can be helpful in fixing the appropriate sentence in a given case the ultimate question is whether the sentence imposed is fit.

[92] I appreciate that the range of sentence established in Smith is not intended as strait jacket, but the fact is that trial courts do look to the sentencing ranges established by appellate courts for guidance. If it is decided that a fit sentence is outside the range established by the Court of Appeal, prudence dictates that as sentencing judges we explain why.

[93] I conclude therefore, that in the circumstances I must try to reconcile Bradley and Smith and if that is not possible consider which sentencing range is appropriate but focus on what in my view is a fit sentence in this case, considering all of the relevant factors.

Can Smith and Bradley be reconciled?

[94] It is clear from the caselaw that the consistent application of Bradley and Smith in two different contexts has created two parallel lines of sentencing in sexual assault cases. As P.Max submits, the fact of whether the sexual assault was within the context of an intimate partner relationship has been adopted as a “toggle” that attracts one line of cases or the other; in this sense, the lines created by Bradley and Smith never cross and the rationality for drawing a distinction based on the intimate partner context has never been examined.

[95] I am advised that Smith and Bradley have only once been cited together in a 2019 case: R. v. O.K.S., 2019 ONCJ 482. O.K.S. involved an offender who had been convicted of several charges including sexually assaulting his long-time spouse. Rahman J. applied the lower Smith range in that case, but he acknowledged the existence of Bradley in a footnote where he noted that the sentencing range for spousal sexual assault – even when it occurs repeatedly – appears to be different than that for sexual assault committed by non-spouses. Referring to Bradley, which in his view accepted that the range of sentence for sexual assault was three to five years, he observed that one instance of forced intercourse by a non-spouse will often result in a penitentiary sentence, even for a first offender (at para. 18). Rahman J. found this distinction in sentencing ranges “difficult to understand” and he was unclear how it had developed given that it had been over thirty years since Parliament removed the spousal defence to sexual assault and because spousal assaults are statutorily aggravating; in his view, it was hard to imagine a greater breach of trust than a sexual assault by a spouse. I agree with his observations.

[96] Mr. Max also referred to cases from other provinces that seem critical of Smith, but as Mr. Litkowski points out, they are not binding on me. What I do find relevant to deciding this issue is a recent case from the Court of Appeal: R. v. U.A., 2019 ONCA 946. In that case, the appellant was convicted of sexually assaulting his cellmate, at the Ottawa Carleton Regional Detention Centre, by forcing him to engage in oral sex on three occasions on the same day. The appellant was sentenced to four years’ imprisonment. On appeal, the appellant asserted that the trial judge’s decision involves a significantly higher sentence than prior cases for similar offences. The Court of Appeal disagreed and stated, at para. 11:

Although the circumstances of each case are different, numerous offenders have been sentenced in the three-to five-year range for sexual assault involving forced oral sex in analogous circumstances: see, for example, R. v. S.A., 2014 ONCA 266, affirming R. v. Ajimotokan, 2013 ONSC 1961, at paras. 3-6, 39; R. v. Allen, 2017 ONCJ 405, at paras. 5-11, 43-44; R. v. Allard, 2011 BCSC 915, at paras. 4, 9, 24-25; R. v. Dyck, [1986] B.C.J. No. 3278 (S.C.), at paras. 3, 6; R. v. W.N.C., [2005] B.C.J. No. 1389 (C.A.), at paras. 2, 4, 19; and R. v. Nadeau, 2017 BCPC 158, at paras. 6-11, 24-28, 80 … [Emphasis added]

[97] In considering this range it must be remembered that in U.A. the offender sexually assaulted the same complainant on three occasions. However, considering the facts of the cases cited by the court in support of the range, those cases included both single and multiple instances of sexual assault by forced oral sex:

a) R. v. A. (S.), affirming R. v. Ajimotokan – accused convicted of three counts of sexual assault for having forced two complainants on successive dates to have oral sex and attempted to have sexual intercourse with the second complainant twice with a condom, but was unsuccessful; as well as related offences of uttering threats, unlawful confinement. Sentenced to a global five years. Goldstein J. reviewed a number of cases including Bradley and concluded at para. 19 that “the range accepted by the Court of Appeal for a serious sexual assault involving a single victim goes from mid-reformatory to at least six years”.

b) R. v. Allen – single instance of forced oral sex against one complainant;

c) R. v. Allard – single instance of forced oral sex against one complainant;

d) R. v. Dyck – single instance of forced oral sex against one complainant and an attempt to “mount” the complainant;

e) R. v. Chinneck – single instance of forced oral sex against one complainant and an unsuccessful attempt to perform intercourse; and

f) R. v. Nadeau – single instance of forced oral sex against one complainant, groping of the complainant’s breasts, and digital penetration of the complainant’s vagina.

[98] As Mr. Litkowski points out, U.A. is not a judgment from the Court of Appeal. It is styled as “Reasons for Decision,” which, according to the court’s Practice Direction, is, as of May 8, 2017, a shorter decision that does not require extensive analysis of the facts or law. The term “Endorsement” is now only used to describe decisions that are written on the back of the appeal book or motion record, or for costs decisions. However, as P.Max submitted, U.A. does set out a number of cases to support the stated range, including the Court of Appeal’s 2014 decision in A. (S.), which as already stated, was cited by Code J. in A.J. In doing so U.A. clearly provides a precedent from the Court of Appeal for a three to five-year range of sentence for forced oral sex of a stranger even though it is styled as Reasons for Decision.

[99] Where this leaves me in this case is that if I use the sentencing range from Smith to guide me in determining a fit sentence, as urged by amicus, I would also have to consider the fact that the Court of Appeal held in H.E., at para. 44, that cases at the lower end of the range of 21 months involve single events. The case at bar involves a single event and if I were to impose the sentence requested by the Crown by using the sentencing range in Smith as I guide, I would have to explain why in light of H.E., three years is fit. However, using the starting point of the range for sentence in this case of forced sexual intercourse of an intimate partner of 21 months, rather than three years, which the Court of Appeal has found applies in a case of forced oral sex with a stranger obviously makes no sense since forced sexual intercourse is clearly at least as serious as forced oral sex and arguably more serious. Furthermore, s. 718 of the Criminal Code statutorily requires this court to consider the fact that in the case at bar I have found that this was both a domestic relationship and a trust relationship and each are statutory aggravating factors.

[100] Measuring the Smith range alongside the sentencing range proffered outside the intimate partner context raises the question of why the former range is less severe. In the absence of any direction from Smith, the perceived rationale may be that courts believe that the bodily integrity or autonomy of complainants who have a pre-existing intimate relationship with a defendant is less important. Such beliefs are outdated and have no place in our jurisprudence. As the Crown submits, the notions underlying the minimization of sexual assaults in the intimate partner context have been repeatedly debunked in academic literature and admonished in Canadian jurisprudence. Consequentially, there is no principled reason to continue perpetuating the notion that sexual assault cases involving intimate partners should be treated less severely than those involving acquaintances/strangers.

[101] Mr. Max argues that the only way to resolve the discrepancy in these two decisions from the Court of Appeal is to find that utilizing the nature of the relationship between the defendant and the complainant as a context to develop a range of sentencing is a principally flawed approach. It is his position that consideration of the complainant-defendant relationship has a place in sentencing as underscored by ss. 718.2(a)(ii) and ss. 718.2(a)(iii) of the Criminal Code but not in the range established by the Court of Appeal for sexual assault. Since the range of sentence for sexual assault by way of forced sexual intercourse and even forced oral sex of a stranger is three to five years, and both the intimate partner and trust aspect of the relationship in this case are aggravating factors, this should push the sentence to something higher than the bottom of the range of three years.

[102] In my view it makes absolutely no sense that, had I concluded that N.D. and P.M. were not in an intimate partner/trust relationship as set out in ss. 718.2(a)(ii) and (iii) of the Criminal Code, the range of sentence I would need to consider would be higher. I note that if I had accepted the position of amicus that Bradley is of no precedential value, the corollary would be that the range of sentence for stranger sexual assault would actually start at a sentence lower than 21 months since there is no doubt that the existence of an intimate partner relationship is an aggravating factor.

[103] I have concluded that there is no way to reconcile Bradley and Smith. As Mr. Max eloquently submitted:

Sentencing law must reflect the efforts of Canadian jurisprudence to dispel myths perpetuated against survivors of sexual assault. Depreciating the severity of sexual assault in the intimate partner context stands in fundamental opposition to such efforts. A lower range of sentence for sexual assault founded solely on the basis that the assault occurred between intimate partners cannot stand. Years of empirical research, Parliamentary intent, and jurisprudential backing compels this Court to finally put to bed the unjustifiable lower range of sentence for intimate partner sexual assault stemming from Smith.

[104] To conclude otherwise and have trial courts in this Province continue to use the lower sentencing range established in Smith for intimate partner sexual assault would in my view lower public confidence in the administration of justice and would contradict the intention of Parliament given the sexual assault reforms enacted; it would send the wrong message to complainants that they are less worthy of the law’s protection than complainants who are sexually assaulted by a stranger or friend. As Justice L’Heureux-Dubé wrote in R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, at 654:

the criminal justice system can play a major role in the process of replacing ‘mythical’ views of sexual assault, and the social definitions of sexual assault based on these myths, with views based on fact and the results of empirical studies.

[105] It will be up to the Court of Appeal to consider and hopefully revisit these two parallel lines of sentencing ranges in Bradley and Smith that it has established in sexual assault cases, particularly given what it found in U.A. As for Mr. Max’s argument that the best approach is a single sentencing range for sexual assault that is separate from the relevant statutory aggravating and mitigating factors, that is not a decision I must make. For now, to determine a fit sentence in this case, I intend to consider the sentencing range provided by the Court of Appeal in Bradley and U.A., bearing in mind that in those cases the statutory aggravating factors that are present in the case at bar were not part of the court’s consideration.

Analysis

[106] As already stated, I have found that the statutory aggravating factors of ss. 718.2(a)(ii) and (iii) of the Criminal Code apply in this case. My reasons for reaching these conclusions are as follows.

(a) Does ss. 718.2(a)(ii) of the Criminal Code apply?

[107] By virtue of s. 718.2 (a)(ii), if I find that N.D. and P.M. were common law partners, that is a statutory aggravating feature on sentencing. Section 2 of the Criminal Code, as it was worded at the time of these offences, defined a “common-law partner” as “a person who is cohabiting with the individual in a conjugal relationship, having so cohabited for a period of at least one year”. Having preferred the evidence of N.D. in convicting P.M., I accept her evidence that they never lived together and that at most P.M. would come and stay with her and her children for extended periods of time. Therefore, their relationship does not meet the definition of a common law partner.

[108] In 2019, Parliament amended s. 2 and ss. 718.2(a)(ii) to reflect the common law. Subsection (ii) now provides that “a sentence should be increased or reduced to account for … evidence that the offender, in committing the offence, abused the offender’s intimate partner … [emphasis mine]”, while s. 2 defines “intimate partner” to mean a “current or former spouse, common-law partner and dating partner [emphasis mine]”. Mr. Max fairly conceded that as this amendment is not favourable to P.M., I must use the earlier wording of s. 2.

[109] However, courts in Ontario have taken a more flexible approach in finding that a spousal or common law relationship need not be present. In R. v. McLeod (2003), 2003 CanLII 4393 (ON CA), 177 O.A.C. 385 (C.A.), at para. 17 the Court of Appeal found that the trial judge had erred in being of the opinion that a distinction should be made because Mr. McLeod and the deceased were boyfriend and girlfriend rather than spouses or living together when considering whether or not to increase the minimum period of parole ineligibility. The court held that:

Although section 718.2(a)(ii) speaks of spouses and does not mention a boyfriend‑girlfriend relationship the same principle is applicable. See R. v. McMaster (1998), 1998 CanLII 4118 (ON CA), 122 C.C.C. (3d) 371 (Ont. C.A.) and R. v. Barry, [1993] O.J. #3955 (Ont. C.A.), where the victim murdered in each case was the girlfriend of the appellant and the period of parole ineligibility was 12 years. In those cases the court was also dealing with a murder where the victim is involved in a relationship of trust and intimacy between the victim and the attacker.

[110] There is no doubt that N.D. and P.M. were well beyond dating partners. They had an intimate relationship and P.M. fathered one child and acted as a father figure to N.D.’s first son. For these reasons I find that ss. 718.2(a)(ii) of the Criminal Code applies.

(b) Does ss. 718.2(a)(iii) of the Criminal Code apply?

[111] The next question is whether or not the relationship between P.M. and N.D. was one of trust or authority in which case pursuant to s. 718.2 (a)(iii) the fact P.M. abused that trust or authority is also a statutory aggravating feature.

[112] Even where the defendant does not occupy a traditional position of trust in relation to the complainant, the Ontario Court of Appeal has held that ss. 718.2(a)(iii) is engaged if the offence consisted of abusing the element of trust that formed the basis of the intimate relationship between the defendant and the complainant: see R. v. R. (C.), 2010 ONCA 176, at paras. 84-86, and R. v. McGregor, 2008 ONCA 831, at paras. 30-31. More recently in R. v. Kormendy, 2019 ONCA 676, at para. 28, Feldman J.A. for the court stated that domestic partner victims are “uniquely vulnerable because they are in a relationship of trust with the perpetrator.”

[113] In this case I have no difficulty in finding that when P.M. committed these offences, he violated the trust and confidence that N.D. felt towards him when she entered into the intimate domestic relationship that they had over the course of almost ten years. Although they never lived together for any lengthy period of time, this was a long-term intimate relationship and this longevity itself establishes that there was a trust relationship between them. Furthermore, N.D. decided to have a child with P.M. They clearly spent a lot of time together as a family and P.M. acted as a father figure to her older son as well as his own son. N.D. was vulnerable to P.M. in that although she wanted to end her relationship with him, she also wanted him to have a relationship with his son. That became an issue when she wanted to end the relationship and he was not prepared to let her go. This forced her to put in “protocols” in an attempt to keep him out of her apartment, which I reviewed in my Reasons for Judgment.

[114] This control P.M. had over N.D. was clear from the evidence at trial. As I noted in my Reasons for Judgement at para. 91, N.D. testified that she wondered how her relatives and friends who told her that, “N. you can stop this” or questioned if she really liked P.M., could not see what she was going through. What I found very powerful was that N.D. testified that she was trying to solve an “equation” in her mind where P.M. “stops” and “doesn’t go to jail and I don’t have to move and … [his son] gets to see him”. She also went on to say that her son would be crying and asking for his father and this broke her heart. She did not know how to stop this conflict in what she wanted for herself and for her son.

[115] For these reasons, I find that this was a relationship of trust and that given the serious breach of this trust, s. 718.2 (a)(iii) of the Criminal Code requires that I consider this fact as an aggravating factor on sentence.

(c) Additional aggravating Factors

[116] In my view the following additional facts are aggravating factors in this case.

[117] The offences took place in N.D.’s home where she and her children were residing; a place that was meant to be one of comfort and security. While there is no evidence that the children became aware of the assaults, the sexual assault occurred with her children in the house and it involved full unprotected vaginal penetration and is very serious. Furthermore, there was assaultive behaviour, which allowed P.M. to commit this sexual assault against the will of N.D. despite her clear statements that she was not consenting and pleading with him to stop.

[118] Although N.D. did not suffer any serious physical injuries as a result of these assaults, based on her VIS, I find that she has suffered significant emotional harm, although there is no evidence that she has gone to see a psychiatrist or is taking any medication.

(d) Mitigating Circumstances

[119] I turn now to the mitigating circumstances relevant to sentence.

[120] P.M. 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 and an expression of remorse. This is a neutral factor. It does mean, however, particularly as P.M. has absconded, that there is no evidence that P.M. has any insight into the impact of his actions on N.D. Furthermore, in these circumstances, as the court found in R. v. Tennina, 2013 ONSC 4694 at p. 3, I do not consider rehabilitation as a factor in this case, as P.M. is not present, and his actions in absconding may be inferred to mean that the possibility of rehabilitation is remote in any event.

(e) What is an Appropriate Sentence in this Case?

[121] I turn then to what is an appropriate sentence in this case.

[122] Mr. Max submitted that a global sentence of three and one-half years be imposed with three years being allocated to the sexual assault, six months consecutive for the assault and six months concurrent for uttering a threat. As the assault/uttering a threat occurred on a different date than the sexual assault, a separate consecutive sentence is clearly appropriate.

[123] In light of the conclusion I have reached as to the unresolvable conflict between the applicable range of sentence as set out in Bradley/U.A. and Smith, in my view the Crown’s request for a sentence of three years for the sexual assault is very reasonable. In fact, given the bottom of the range for sexual assault of a stranger/friend is three years, without considering the statutory aggravating factors present in the case at bar, arguably the sentence for sexual assault could be higher. In any event I find that the global sentence requested by the Crown of three and one-half years for all convictions is fit. This sentence is also in accordance with the principles in Priest and is an appropriate sentence that addresses the need for general and specific deterrence, the gravity of the offence and P.M.'s moral culpability.

[124] In my view this global sentence should be allocated as submitted by the Crown save that I would allocate four months to the conviction for uttering a threat to cause bodily harm, to run concurrent to the sentence for assault.

Final Disposition

[125] For these reasons I sentence P.M. as follows.

[126] With respect to P.M.’s conviction on Count # 1 - sexual assault, contrary to s. 271 of the Criminal Code, I sentence him to three years in custody, less a pre-sentence credit of nine days.

[127] With respect to P.M.’s conviction on Count # 2 - assault, contrary to s. 266 of the Criminal Code, I sentence him to six months in custody, which shall run consecutively to his sentence on Count #1.

[128] With respect to P.M.’s conviction on Count # 3 - uttering a threat to cause bodily harm, contrary to s. 264.1 (1)(a) of the Criminal Code, I sentence him to four months in custody, which shall run concurrently to his sentence on Count # 2.

[129] In addition, there will be a mandatory weapons prohibition order pursuant to s. 109(1) of the Criminal Code for 10 years.

[130] I also make a DNA order in Form 5.03 authorizing the taking of a DNA sample on the primary ground pursuant to s. 487.051(1) of the Criminal Code.

[131] In addition, pursuant to ss. 490.012(1) and 490.013(2)(b) of the Criminal Code, I make an order in Form 52 that P.M.’s name be added to the Sex Offender Registry and that he comply with the Sex Offender Information Registration Act for 20 years. My reason for making this order is that he has been convicted of sexual assault, which is a designated offence under s. 490.011(1)(a)(xvi), and in my view this order would not have a disproportionate impact on his privacy or liberty interests.

[132] Pursuant to s. 743.21 of the Criminal Code, P.M. is to have no contact with N.D. either directly or indirectly while he is in custody.

[133] Finally, as P.M. is still at large as of today’s date, a Warrant of Committal will be issued for his arrest.

“Spies J.”

Spies J.

Released: July 15, 2020

COURT FILE NO.: CR-19-7-125

DATE: 2020/07/15

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

P. M. M.

Ruling under s. 475 of the Criminal code and REASONS FOR sentence

Spies J.

Released: July 15, 2020