COURT FILE NO.: CR-18-70000706

DATE: 20200922

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

NEVILLE LEE BLAKE

Defendant

Kate Matthews, for the Crown

Chris Rudnicki, for the Defendant

HEARD: by video conference on June 30, 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proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way.

Reasons for Sentence

Overview

[1] On March 5, 2020, Neville Blake was found guilty by a jury of the following offences: sexual assault of J.M., causing bodily harm, contrary to s. 272(2) of the Criminal Code, (Count #4); attempting to choke J.M. for the purpose of committing sexual assault causing bodily harm, contrary to s. 246(a) of the Criminal Code, (Count #2); forcible confinement of J.M. contrary to s. 279(2) of the Criminal Code, (Count #1), and uttering a threat to cause death to J.M., contrary to s. 264.1(1)(a) of the Criminal Code, (Count #3).

[2] Mr. Blake is now before me for sentencing. On June 30, 2020, I conducted Mr. Blake’s sentencing hearing via video conference with the consent of all parties.

The Facts

Circumstances of the Offences

[3] Although this was a jury trial, given the essential elements of the offences and the findings of guilt made by the jury, I do not have any material factual determinations to make. Accordingly, I will consider the circumstances of these offences based on the evidence of the complainant for the purpose of sentencing as follows. The offences took place during the evening of October 16, 2016 in an area around Dundas Street East, east of River Street and Gerrard Street East. At the time J.M. “worked the street” as a sex worker in downtown Toronto. She was working when Mr. Blake picked her up in a SUV. They agreed on a “date”, namely a blow job, for $60, which according to J.M. was for her performing oral sex on Mr. Blake. Mr. Blake drove to a secluded area; a parking lot of a car dealership on River Street, where he parked. When J.M. asked for the cash in advance, Mr. Blake tried to give her $30 but she insisted on full payment and he then paid her the rest of the money.

[4] At J.M.’s request, Mr. Blake put on a condom. About three minutes after she began, at Mr. Blake’s request, they went over the center console into the back seat of the car. Mr. Blake had pulled his pants down to his knees to allow her to perform oral sex. Shortly after, Mr. Blake stopped her, and he leaned into the front seat and pushed the button that locked the doors and windows of the car.

[5] Mr. Blake’s demeanour underwent a sudden change at this point. J.M. testified that Mr. Blake was now very insistent that he was going to teach her a lesson and that he went on and on about the fact that she had somehow offended him by asking him for money upfront and that she had treated him rudely. He grabbed her by the throat and squeezed with enough force that she could not breathe. She tried to fight back but he overpowered her. Mr. Blake also began biting her everywhere, as if he wanted to “bite her skin off”. Mr. Blake bit the left side of her torso, just below her breast and randomly on her arms. He also bit one of her fingers, causing it to break. This caused her to drop the money he had given her, and he took it back. He continued biting her all over her body.

[6] Mr. Blake also brandished a knife. J.M. heard a “swish swish” noise. She believed it to be a knife covered by a sheath. Mr. Blake was not charged with possession of this knife, but it was the basis for the jury to find that Mr. Blake uttered a threat to J.M. to cause her death. In particular, J.M. testified that Mr. Blake told her that if she moved, he was going to push it through her belly. She thought Mr. Blake was going to kill her and when she tried to get out of the car, Mr. Blake told her that the SUV was soundproof and that she could scream and scream, and it would not make a difference. J.M. also testified that Mr. Blake told her that he was going to come back in a different car and hurt her.

[7] Mr. Blake then made J.M. take all her clothes off. He made her lie on her back and forced vaginal intercourse on her without her consent. At some point Mr. Blake took off the condom and flipped her over onto her stomach and continued to force vaginal intercourse on her. Mr. Blake put the condom back on before ejaculating and then he made a show of putting the condom in the center console of his car. Mr. Blake then pulled his pants up and returned to the driver’s seat of the car. J.M. was naked and in the back seat. Mr. Blake then drove J.M. to a side street off Gerrard Street East, near the Beer Store near Sherbourne Street. He passed her clothes to her one by one so she could get dressed and he let her out. He threw $20 out of the window and then drove away.

Circumstances of Mr. Blake

[8] A pre-sentence report (PSR) was prepared which provides some information about Mr. Blake that is relevant to sentencing. In addition, Mr. Rudnicki included some information in his sentencing submissions which I have considered. Mr. Blake is 32 years old and was born in Jamaica. He was 30 at the time of the offences. He came to Canada in 2002 and initially resided in Scarborough. Mr. Blake does not have Canadian citizenship. His status is that of a landed immigrant to Canada, but his Permanent Resident card has expired (and was subsequently lost). Since coming to Canada, he has not returned to Jamaica although he still has his Jamaican citizenship. I understand that Mr. Blake has no family left in Jamaica. They have all emigrated to the United States, England or Canada. Mr. Blake hopes to remain in Canada if possible, following his sentencing. However, he advised the author of the PSR that Immigration and the Canada Border Services Agency is involved in his case.

[9] Mr. Blake has one younger brother who also resides in Canada. His father immigrated to Canada after he was born, and he was raised by his mother in Jamaica until she passed away when he was 11 or 12 years old. They had a good relationship and Mr. Blake described her as supportive and loving. While in Jamaica, Mr. Blake had limited physical contact with his father because of the distance but reported regular contact via the phone. When his mother died Mr. Blake and his brother came to Canada to live with his father and his wife. He has four stepsisters and three stepbrothers. Mr. Blake described his relationship with his father as good. He denied any problems and indicated that they speak daily. His father is the owner of a trucking business. Mr. Blake’s stepmother is a Canadian citizen but was originally from Jamaica as well. She works as a nurse in the health care system. Mr. Blake advised that he has regular contact with his family in Canada and in Jamaica and that he is close with all his siblings and has regular contact with them. He described his childhood in Jamaica and Canada as stable and he denied any substance abuse or addiction issues in the home growing up. He told the author of the PSR that expectations of him while he was growing up were high, including doing well in school. His family was religious and participated at church and Mr. Blake reported that his family is shocked and disappointed by his current charges. He denied any abuse or violence or other significant problems in his relationship with his biological parents or his stepmother. Mr. Blake reported that if he had a problem his father would assist him. He described his parents as supportive, helpful and loving. Reportedly, no immediate family members are involved with the criminal justice system to his knowledge, but he is unsure about extended family members.

[10] Mr. Blake completed high school around 2005/6 in Scarborough. He has no post-secondary education and has no plans to return to school at this time. He denied any problems, learning disabilities or behavioral issues during his education and stated that he received good grades and got along with teachers and other students. During school he was involved in a variety of sports.

[11] Mr. Blake moved out of his father’s home around the age of 20-21 because he was working and wanted to support himself. He left on good terms, and his father helped and supported his move. Since leaving his parents’ home he has always been able to support himself. Initially Mr. Blake reported that he worked for a demolition company for about six to seven years, and before that he worked for a restoration company for a couple of years. No issues or problems were reported during that time, and he advised that he left his former employers to start his own company.

[12] Mr. Blake is a general contractor and is now the owner and operator of a general contracting company called Certified Pro Environmental Inc., that he started seven years ago. He currently manages the company with the help of his common-law partner, Alicia Gough. The company does restoration and demolition as well as some environmental work. He has enjoyed success as an entrepreneur, at one point employing 30 people on various contracts. He currently has eight employees. While business slowed quite a bit because of the coronavirus pandemic, it has since started to pick up as the government has commenced re-opening efforts. Mr. Blake mostly works in the office now and sometimes visits the job site to monitor the work. He reported that finances are good and there are no financial issues or concerns and his company is doing well. However, Ms. Gough disclosed that due to Mr. Blake’s current court restrictions and limitations he has lost out on some business. She stated that he has no issues or problems with employees. Mr. Blake has never filed for bankruptcy.

[13] Mr. Blake has two children from two previous relationships: a son who is 14 years old and a daughter who is 13 years old. He was with his first partner for about a year, and his second child resulted from a short-term relationship that only lasted a few months. Mr. Blake reported that his relationships with the mothers of his two other children are good. The mothers of these children have full custody, but Mr. Blake reported that he has access and visitation whenever he wants weekly and advised that he talks to these two children regularly on the weekends.

[14] Mr. Blake has been in his common-law relationship with Ms. Gough (age 32) for approximately 12 years and they got engaged about two years ago. They have a good relationship, and both denied any violence or issues. They live together in Whitby and have four children; three sons and one daughter (ages 12, 9, 7, 5). Mr. Blake admitted some initial strain on the relationship as a result of his charges but indicated that his spouse was only “concerned about my charges.”

[15] Mr. Blake met Ms. Gough at school. She is a Canadian citizen. Before Mr. Blake’s arrest on these charges, Ms. Gough had been employed as a manager at Sears. She quit her job after Mr. Blake’s arrest to join him at his company, so that he could continue to work. As his bail does not permit him to leave his house except in the presence of his surety, Ms. Gough must accompany him to the office or when he visits job sites. Ms. Gough has been doing the administrative work and helping Mr. Blake manage the company. Ms. Gough advised that their relationship is “strong and close.” She advised that they are best friends and stated, “we tell each other everything.” Mr. Blake admitted that occasionally they have a disagreement, but claimed it is nothing serious. He added that his spouse does not drink or use drugs.

[16] Ms. Gough was asked about her sexual relationship with Mr. Blake. I will not summarize what she stated as it is quite private, save that there was nothing unusual or concerning about what she reported. Ms. Gough reported a healthy sexual relationship with Mr. Blake without aggression or dominance. Ms. Gough advised the author of the PSR that she was very shocked by the charges and “doesn’t believe the charges” and she is “not sure why the complainant made the accusations,” and believes there must have been a mistake or misunderstanding. Ms. Gough reported that her husband is “very nice” and suggested that “others might take it as weakness or take advantage of him.” She added that he is not controlling or degrading and stated that, “he goes with the flow and is down to earth.” Ms. Gough stated that he is “not forceful” and was adamant that he would never do what he was accused of. She advised that their relationship has not been negatively impacted by what she considers ‘false allegations’ and was steadfast in her support and trust in him. She stated that Mr. Blake is “loving, caring, considerate, sensitive, a good listener and a hard worker.” She acknowledged that she knows he is not perfect, but stated that they work well together, care for and respect each other. She denied any infidelity during their relationship, despite the current charges and stated, “nothing happened” between Mr. Blake and the complainant.

[17] Mr. Blake denied any concerns regarding substance use or addiction issues. He described his alcohol consumption as social or recreational and denied any drug use. This was verified by the author of the PSR with the collateral sources spoken to for the purpose of the PSR. Mr. Blake described himself as thoughtful, and stated that he always thinks before he acts, and that he is quiet, shy and “generous and easy-going.” He added that his biggest strength is his intellect, and his biggest weakness is his shyness. He claims that others would probably describe him as “too nice” and shy. He added that he gets along well with people and that he is “a very hard guy to get angry”. He reported that if he does get upset, he is able to easily calm himself down and maintain control.

[18] Mr. Blake reported that most of his time is spent with family or working. In his spare time, he likes to play video games and “hang out with friends.” He still plays sports with his friends (soccer, basketball), but is not involved in any organized activities. He added that he also ‘works out’ in a home gym and prior to COVID-19 tried to attend church most Sundays. He has a few close friends that he has regular contact with and none of them have criminal records to his knowledge. He advised that they are aware of his charges and were shocked and in disbelief.

[19] Mr. Blake denied any mental health issues or involvement with a counsellor or psychiatrist. He added that his family does not have a history of psychological issues. With regards to his physical health, Mr. Blake reported that he was diagnosed with type 2 diabetes in February 2019. He takes his medication properly and controls his diabetes. Although Mr. Blake denied any current side effects or related health issues when he was interviewed by the author of the PSR, Mr. Rudnicki advised that he had a hospitalization scare approximately nine months ago, but since then he has regularly taken insulin and pills to appropriately manage his blood sugar.

[20] The author of the PSR asked Mr. Blake a number of questions about his sexual background and activities. I will not summarize that information given the private nature of Mr. Blake’s responses, save to say that the information does not provide any insight into why he might have committed these offences or the likelihood of his reoffending.

[21] During his interview, Mr. Blake denied the charges and reported no remorse. He told the author of the PSR that he did not want to talk about them and advised that his lawyer recommended he not talk to anyone about the case.

[22] Neville Blake Sr. verified that he and his son speak regularly and that they have a strong relationship. He added that his son has never talked back to him or shown disrespect and advised that he has never been inappropriate or intimidating. Mr. Blake Sr. advised that his son is hard-working, intelligent and very kind. He added that his son believes in the law and would be the last person that would ever be in trouble with the law. He stated that he was shocked by the offence calling the charges “a misunderstanding” and stated that his son’s “goodness was taken for granted.” Mr. Blake Sr. is of the opinion that the allegations against his son are false and claims “he was in the wrong place at the wrong time,” suggesting that his son’s “actions were taken out of context.” He told the author of the PSR that the offence “was 100% and completely out of character, that’s not him.”

[23] Mr. Blake’s stepmother, Sonia Blake, reported that they are a “very close-knit family.” Mrs. Blake verified that during Mr. Blake’s youth there was no abuse in the home only discipline. She stated, “we are a churchgoing family” and all the children were brought up in the church. Mrs. Blake described her stepson as a calm and caring person - “a giver.” She indicated that “he’ll give you anything you need,” and added that he is well-mannered and humble and that he “has never exhibited any anger or violence or aggression” and he does not like to hurt people’s feelings. When asked about the offence she stated, “that’s not him,” advising that it was not his personality to do something like the offence. She added that he has been supported by family throughout the court process but that the family felt the trial was unfair and disappointing, and they feel that the defense lawyer did not do a good job.

[24] Mr. Blake’s stepsister Lisa Blake reiterated her parents’ description of her stepbrother’s “calm and laid-back” demeanour. She has never seen him violent or aggressive and added that he can be naïve, and he tends to be overprotective with his sisters and spouse but denied that he is domineering. She added that “he wears his heart on his sleeve and his family is his number one priority.”

[25] Mr. Blake has no criminal record and no outstanding charges. He has been on a house arrest bail since September 13, 2017. The only exception to the house arrest condition is when he is in the direct presence of one of his sureties, either his father or his spouse. During his interview with the PSR author, Mr. Blake was cooperative and indicated that he was willing to comply with sentencing and any community supervision deemed appropriate. As is his right, Mr. Blake chose not to address this Court at the end of his sentencing hearing.

Circumstances of the complainant

[26] I did not receive a Victim Impact Statement from J.M. However, the author of the PSR also spoke to her and obtained some important information about how she has been impacted by these offences. Furthermore, J.M. gave lengthy evidence at trial. J.M. told the author of the PSR that she wanted Mr. Blake to know how much he has negatively impacted her life. She stated, “I’m a person and what he did to me will never go away.” She disclosed that she feels confused and does not understand why Mr. Blake hurt her. She thought he was going to kill her when he would not let her out of the vehicle. She angrily stated, “he had no right to hurt me.” J.M. added that Mr. Blake “did more than just hurt me, he degraded me as a woman.” She reported that she now feels asexual and has no sex drive as a result of the attack and feels like a robot if/when she does have sex with her partner. Furthermore, she has not been able to continue to work as a sex-trade worker which has affected her ability to financially support herself, leading her to other criminal activity.

[27] J.M. told the author of the PSR that the assault was the “most important and worst thing that has happened to me,” and that “it could have destroyed” her had she not had the community supports, including the support of the Toronto Police officers and criminal justice system. On a positive note, J.M. reported that she feels like a different person now, and that she is currently clean and trying to get her life on track, but she lives in constant fear of Mr. Blake and is concerned for her safety because he threatened her that he would return and find her. She stated that she cannot stop thinking about her attack or about the fact that Mr. Blake “doesn’t value people and is violent, which is dangerous.” She is worried that he will show up at any time or that he is following her. J.M. tearfully stated to the author of the PSR that she is constantly scared and indicated that during her attack Mr. Blake seemed to have no empathy. She repeatedly stated that he needs help and therapy/programming and despite everything she hopes the best for him. J.M. ended by saying that she does not want Mr. Blake to be able to hurt anyone else and wants him to know that “people do care and matter.”

[28] The severe and long-term psychological impact on J.M. as a result of these offences is consistent with what is expected. As the Supreme Court of Canada stated in R. v. McGraw, 1991 CanLII 29 (SCC), [1991] 3 SCR 72, at para 32:

The psychological trauma suffered by rape complainants has been well documented. It involves symptoms of depression, sleeplessness, a sense of defilement, the loss of sexual desire, fear and distrust of others, strong feelings of guilt, shame and loss of self-esteem. It is a crime committed against women which has a dramatic, traumatic impact.

[29] J.M. was also physically injured by Mr. Blake’s assault. There was some bruising and swelling on her neck from where Mr. Blake squeezed her neck. Furthermore, he bit her finger hard enough that she needed a splint and also bit her right arm in two places and the left side of her torso, underneath her breast, leaving an obvious bite mark.

Legal Parameters

[30] The conviction for sexual assault causing bodily harm carries a maximum sentence of 14 years, pursuant to s. 272 (2)(b) of the Criminal Code. The conviction for attempting to choke J.M. for the purpose of committing sexual assault, carries a maximum sentence of life, pursuant to s. 246 of the Criminal Code. The conviction for the forcible confinement of J.M. carries a maximum sentence of ten years, pursuant to s. 279 (2)(a) of the Criminal Code, and the conviction for threatening death to J.M., carries a maximum sentence of five years, pursuant to s. 264.1(2)(a) of the Criminal Code. There are no minimum sentences for any of the convictions.

Positions of Counsel

[31] The Crown submitted that in totality, Mr. Blake should be sentenced to a global sentence of incarceration of between seven to eight years. The Crown also requested that the following ancillary orders be made:

a) DNA order pursuant to s. 487.051 of the Criminal Code with respect to each of the four convictions. The offences of sexual assault causing bodily harm, attempting to choke J.M. for the purpose of committing sexual assault causing bodily harm and forcible confinement are primary designated offences under s. 487.04, and thus the order is mandatory for those offences. The offence of uttering a threat to cause death is a secondary designated offence and, therefore, the order is discretionary;

b) Firearms/weapons prohibition for life pursuant to s.109(1)(a) of the Criminal Code which is mandatory for all the offences except threaten death;

c) SOIRA order pursuant to s. 490.012 and s. 490.013 of the Criminal Code for a period of 20 years, which is mandatory for the offence of sexual assault causing bodily harm; and,

d) Section 743.21(1) order prohibiting contact, directly or indirectly, with J.M. while serving his sentence.

[32] Mr. Rudnicki took no issue with the requested ancillary orders, but he submitted that a fit global sentence in all the circumstances would be four years less a credit for pre-trial custody and time spent on restrictive bail conditions.

[33] Mr. Blake has spent six days in pre-sentence custody. In addition, given that I intend to sentence him in September, by then he will have spent about 36 months on bail. Ms. Matthews fairly conceded that the conditions and circumstances of Mr. Blake's bail are sufficiently similar to those in R. v. Downes (2006), 2006 CanLII 3957 (ON CA), 79 OR (3d) 321 (CA) and conceded that the 10 month credit for strict bail conditions and pre-trial custody requested by the Defence is appropriate.

Principles of Sentencing

[34] The fundamental purpose of sentencing, as set out in s. 718 of the Criminal Code, is to ensure respect for the law and the maintenance of a just, peaceful and safe society. The imposition of just sanctions requires me to consider the sentencing objectives referred to in that section, which the sentence I impose should attempt to achieve. These are denunciation and deterrence; both specific and general, separation of offenders from society when necessary, rehabilitation, reparation for harm done and the promotion of a sense of responsibility in offenders and acknowledgment of the harm which criminal activity brings to our community. In addition, in imposing sentence I must take into account the principle of proportionality and the applicable aggravating and mitigating circumstances relating to the offences as set out in s. 718.2.

[35] As this will be the first time Mr. Blake is sentenced to a custodial sentence, I must also consider R. v. Priest, 1996 CanLII 1381 (ON CA), [1996] O.J. No. 3369 from the Court of Appeal where at para. 23 the court held 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. However, in R. v. Thurairajah [T.(K.)], 2008 ONCA 91, 229 C.C.C. (3d) 331 at para. 41, Doherty J.A. observed that for serious crimes of personal violence, particularly sexual assaults, while rehabilitation and other sentencing objectives remain important, denunciation and general deterrence "gain prominence" even in cases involving first offenders. Mr. Rudnicki also referred to R. v. Finney, 2014 ONCA 866 where the court stated at para. 10:

This was a very serious crime worthy of a lengthy penitentiary term. At the same time, the appellant is a virtual first offender with positive rehabilitative prospects. The trial judge was faced with a very difficult sentencing problem.

Sentencing Case Law

[36] The Crown’s position is that the general range of sentence for a penetrative sexual assault simpliciter, is three to five years. The Defence’s position is that in cases of sexual assault where there is no gratuitous violence, the sentencing range has been identified as two to four years’ imprisonment. Both counsel submitted cases in support of their position. Although I have reviewed all of these cases, I will only refer to the ones that I found of assistance.

[37] In reliance on his position, Mr. Rudnicki referred to one of my earlier decisions; R. v. Stankovic, 2015 ONSC 6246 at para. 40, where I held, based on the authorities provided to me, that the appropriate range of sentence in a case of sexual assault where there is no gratuitous violence is two to four years’ imprisonment. Since then however, I have come to a somewhat different conclusion. In R. v. P.M., 2020 ONSC 3325, I found that R. v. Bradley, 2008 ONCA 179, 234 O.A.C. 363 has precedential value even though it was an endorsement from the Court of Appeal and that it established a range of sentence for a sexual assault involving intercourse of three to five years. 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. A similar conclusion was reached by Molloy J. in R. v. M.M., 2017 ONSC 1829 at paras. 38-39 and Code J. in R. v. A.J., 2018 ONSC 5153, at para. 34.

[38] Ms. Matthews submitted, however, that for cases such as the case at bar, which involve vulnerable complainants, heightened gratuitous violence resulting in bodily harm, choking, threats and confinement, the general range of sentence is between five and eight years, depending on the mitigating and aggravating features of each case. She relied on a number of cases to support her position, focusing in particular on decisions that specifically involved attacks against sex trade workers. Mr. Rudnicki conceded that where there are additional aggravating factors such as a related record, multiple complainants, or a prolonged assault, and where little can be said in mitigation, courts have imposed sentences as high as eight years, but he submitted that that is not this case.

[39] Setting aside the issue of what the appropriate range of sentence is in this case, I do agree with Lofchik J. in R. v. Simas-Mamani, 2018 ONSC 4558 who stated, at para. 9:

Parliament’s recognition of the inherent dangerousness of rendering a person unconscious to facilitate the commission of another offence is reflected by the maximum penalty prescribed for that offence: life imprisonment. Put in context, that is a significantly greater sentence than could have been imposed for the underlying offence in this case of sexual assault which carries a maximum penalty of 10 years imprisonment. In other words, what is usually seen to be the “incidental” offence carries a much greater penalty than the one it facilitates. Presumably, this is because rendering a person unconscious, whether by choking, strangulation or suffocation, is an inherently dangerous act that is easily capable of causing death or brain injury with devastating lifelong consequences. [Emphasis added]

[40] Determining an appropriate range of sentence is not enough, as exceptional cases can fall above or below the range and, of course, 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. The Court of Appeal observed in R. v. S.M.C., 2017 ONCA 107, 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.

[41] The cases relied upon by the Crown are as follows:

R. v. Kavanaugh, 2009 ONCA 759

[42] This case involved a brutal premeditated sex assault of a vulnerable woman working late at night in a convenience store. The offender waited until there was no one else in the store and then locked the door. He threatened to kill the complainant with a knife that he had in his back pocket. He forced the complainant to perform oral sex and then penetrated her vaginally without using a condom. The offence had very serious long-term consequences on the complainant. The offender had a criminal record that included domestic assault. The trial judge imposed a sentence of 11 years for the offences of sexual assault with a weapon, forcible confinement and robbery, one year more than the sentence requested by the Crown at trial. The sentence was only reduced to ten years on appeal given what the court termed, the serious aggravating factors and total lack of mitigating factors.

[43] I note that apart from the fact the offender had a relevant criminal record the Kavanaugh case is quite similar factually to the case at bar although the offender did not use a condom. Although the offender was also convicted of robbery, there was no choking of the complainant. Given the other cases I was referred to, it seems that the sentence imposed in this case is at the high end if not beyond the relevant range of sentence.

R. v. Simas-Mamani, 2018 ONSC 4558

[44] In this case the complainant was a sex trade worker who agreed to give the offender “full service” sexual services. After agreeing to pay the complainant for sex, the offender attacked her, choked her to unconsciousness and dragged her up an embankment to a clearing. Every time she came to, he choked her again until she passed out. This happened a number of times. He then sexually assaulted her, including attempted penetration without a condom of both her vagina and anus. The complainant suffered injuries to her neck, eyes, and back. The offender had a criminal record including arson and violence. Lofchik J. found the offence exceptionally serious and particularly horrific as the choking was life-threatening. The offender was convicted of sexual assault and choking. Lofchik J. imposed a sentence of eight years for sexual assault and eight years concurrent for the choking.

R. v. R.M., 2020 ONCA 231

[45] This case involved the sexual assault of a sex worker by two men who both engaged in forced sexual intercourse without a condom with her in a parking lot while a knife was held to her throat. They threatened her not to tell anyone, ridiculed her, robbed her of $500, and then fled. The offender was identified by DNA approximately 24 years later as one of the men. He was found guilty of gang sexual assault, sexual assault with a weapon, uttering threats, and robbery. At the time of the offence, he was a 17-year-old first-time offender. His criminal record post-dating this offence was considered in assessing his rehabilitative prospects. The trial judge sentenced him as an adult to eight years which was upheld on appeal.

[46] On appeal, the Crown filed several cases to support the proposition that the appropriate range of sentence was between five and ten years. The court found R. v. Assing, 2008 CanLII 58607 (Ont. S.C.) of particular relevance, at para. 41. In that case, the offender assaulted the complainant while she walked past a wooded area and threatened her with a knife. He then dragged her to a townhouse where he bound her and forced intercourse on her twice. The offender had no prior record, had strong family support, and showed signs of rehabilitative potential. He received a global sentence of nine years’ incarceration for the convictions for sexual assault with a weapon, robbery, and forcible confinement. The Court of Appeal also referred (at para. 42) to R v. Wyatt, 2017 ONCJ 390, another case relied on by the Crown, where the offender was convicted of sexual assault causing bodily harm and sentenced to eight years’ incarceration. In that case, he ambushed the complainant and forced fellatio, digital penetration, and intercourse. The offender had a prior criminal record and was on release at the time of the offence. However, he also pleaded guilty, and there was evidence of rehabilitative efforts in advance of sentencing. Finally, at para. 43 the court referred to Kavanagh. The court upheld the sentence imposed by the trial judge, concluding as follows:

[44] The global sentence of 8 years' incarceration for a 17-year-old first-time offender may appear to be harsh. However, the trial judge appears to have been influenced by the very serious nature of the offences. The complainant was repeatedly raped, by two men, without condoms, while a knife was held to her throat. They threatened her with death, robbed her, and ridiculed her. After raping her, they debated whether they should “let her get away” as she would “go to the cops” if they did. This was a particularly vicious attack where a vulnerable victim was terrorized and humiliated.

[45] Another sentencing judge may well have imposed a lesser sentence. However, that is not the test. The test is whether the sentence is demonstrably unfit. Based on the circumstances of the offences and the offender, and mindful of the jurisprudence that I have just reviewed, I am not satisfied that the sentence is demonstrably unfit. I would, therefore, dismiss the sentence appeal.

R. v. Alas, 2019 NSSC 68

[47] The offender met the complainant and agreed to pay her for sexual services. He went to her residence with her. While sitting on her couch, the offender, unprovoked, attacked the complainant, punching her in the face, choking her, and pulling her hair. He then forced her to perform oral, vaginal, and anal sex and repeatedly taunted and threatened to kill her. He pleaded guilty to sexual assault and utter threats. The offender was a 30-year-old first-time offender with a supportive family and gainful employment. The trial judge accepted a joint position of seven years.

[48] The cases relied upon by the Defence are as follows:

R. v. Quesnelle, 2010 ONSC 3713 aff’d 2014 ONCA 634

[49] The offender in this case punched and sexually assaulted two women, one of whom was a sex worker. With respect to the sex worker, the offender asked her to perform fellatio on him for a fee and she agreed. They returned to his place of business where he punched her in the face, ripped off her clothes and forced her to engage in anal intercourse. With respect to the second complainant, she agreed to sell drugs to the offender and went to his minivan for that purpose. After using some cocaine, the complainant took a nap in the minivan and she awoke to the offender pulling down his pants and demanding a blow job. She replied that she was not a prostitute and he punched her with a closed fist in the face and she fell and lost consciousness for a few seconds. The offender then forced her to perform oral sex for hours and after putting on a condom forced her to have anal sex. He then threw the condom away and ejaculated on her back. The consequences of the assaults were deeply upsetting and might have long-lasting effects on both complainants. The offender was found guilty of assault and sexual assault in connection with both complainants. The offender had a criminal record, although it was dated and involved non-violent offences. Thorburn J., as she then was, found that the offender had moderate chances of rehabilitation as he had made considerable efforts to overcome his addiction and noted that each time he committed the assaults and sexual assaults he was under the influence of drugs.

[50] Justice Thorburn found that a global sentence of six-and-one-half years was just, at para. 47, although she made no reference to any decisions that she relied upon in coming to that conclusion. She sentenced the offender to three years on the sexual assault against the sex worker and three-and-one-half years on the sexual assault against the other complainant, to be served consecutively and six months on each count of assault to be served concurrently.

[51] On appeal, the court noted at para. 5 that the trial judge appropriately considered the appellant’s prospects of rehabilitation in fashioning the sentence that she did and that, as she noted, in cases such as this that involve violence and sexual exploitation, denunciation and deterrence are paramount.

[52] Mr. Rudnicki relies on this decision because there were two complainants and one of the assaults was prolonged and, of course, the sentence imposed was less than what the Crown seeks in the case at bar. That is true; although I do not know what cases Justice Thorburn considered in arriving at her conclusion of what was a fit sentence and the case is now 10 years old and in my experience the range of sentence for sexual assault has slowly increased over the last 10 years.

R. v. Nelson, 2012 ONSC 4248[^1]

[53] In this case the offender was 29 at the time of the offence. He met the complainant at a club on Christmas Eve. She was 19 years old and had consumed three drinks. He brought her back to his apartment, confined her there, and he then proceeded to have non-consensual sexual intercourse with her over several hours in several episodes over three hours. He cut off her body suit, over her protestations, and cut her finger accidentally when cutting off her clothing. He also punched her in the course of the sexual assault. She suffered swelling around her eye, lacerations to her throat, and significant bruising to her legs. The complainant escaped by calling 911 and, on the advice of the operator, leaving the apartment in nothing but a towel on Christmas morning.

[54] The offender had two children from previous relationships in St Lucia. He enjoyed the support of his family and was in a stable relationship, but there was little evidence of work history and no real prospects of future employment. He had one criminal conviction. Two months before the sexual assault, he approached a woman on the street and, when she refused his advances, grabbed her by the arm and spat on her. He also had an unenviable disciplinary history during his time in pre-trial custody. The offender was convicted of threatening death or bodily harm, forcible confinement, committing sexual assault causing bodily harm, and assault with a weapon, either a knife or scissors. He was acquitted of attempted choking, and aggravated sexual assault by wounding. After considering the aggravating and mitigating factors, Justice J. Wilson imposed a global sentence of five years.

R. v. Boyle, 2014 ONCA 705 (facts reported at 2013 ONSC 327)

[55] The offender in this case threatened to kill an 18-year-old vulnerable complainant after driving her to remote park and offering her cocaine in exchange for oral sex. He choked her and attempted to force intercourse. He was convicted of sexual assault, uttering a death threat, and choking during the course of a sexual assault. On appeal by the offender, the court held that the four-and-one-half year sentence imposed by the trial judge was a fit sentence in the circumstances. In doing so the court disagreed, at para. 57, with the submission that the trial judge had overemphasized the principles of denunciation and deterrence, observing that the sexual assault was accompanied by additional violence and threats to kill, heightening the importance of denunciation and deterrence. The court also found that the trial judge correctly had regard to the appellant’s lengthy criminal record, which included convictions for violence.

R. v. Henderson, 2018 ONSC 3550

[56] In this case the offender was convicted of assault and sexual assault. He engaged a sex worker and offered to trade money and crack cocaine for sex. The complainant agreed. As they were walking to what the complainant believed was his nearby apartment, the offender applied a choke hold to the complainant's throat from behind and punched her in the side of the face. He then dragged her to a secluded area while his arm remained around her throat. The offender continued to punch the complainant in the face and applied sufficient force to knock the upper portion of her dentures out of her mouth. He asked her for a condom; she retrieved one and gave it to him. He commanded her to remove her pants and she complied. He then ordered her to get on the ground and he climbed on top of her and grabbed at her breasts, hit her, choked her with his fingers on her throat, and repeatedly told her to cooperate. He was unable to insert his penis into the complainant’s vagina and so he digitally penetrated her. The complainant was scared the offender would kill her and was eventually able to escape and run away. The consequences of the assault had a devastating and profound impact on the complainant, and she also sustained physical injuries, including bruising and acute red marks. The offender was 34 years old with addiction issues and a criminal record including violence.

[57] The Crown in Henderson submitted that the appropriate range of sentence was five to seven years. The Defence suggested three years was appropriate. The trial judge found that based on the authorities presented to him that the “range of sentence for a violent, invasive sexual assault, such as the one committed by Mr. Henderson, is three to five years imprisonment” at para. 174. He sentenced the offender to four years and two months on the sexual assault and a sentence of six months concurrent on the assault.

[58] Mr. Rudnicki relies on this decision which he argues was exceptionally serious and horrific and points out that the offender had a criminal record including violence against women. I would not say the case is more horrific since in the case at bar the complainant was locked in a car with Mr. Blake who was actually threatening to kill her, and he had a knife. He also penetrated her with his penis, not his fingers. More importantly, given my conclusion in earlier decisions that the range of sentence for a single offence of sexual assault that was a completed act of unprotected vaginal intercourse is three to five years, I respectfully disagree with the conclusion of the trial judge in Henderson that the same range is appropriate for a violent sexual assault which included choking.

R. v. Razak, 2019 BCSC 1677 (facts reported at 2019 BCSC 815)

[59] After consensual sex with a sex worker in a park, the offender began choking the complainant from behind and forced her to perform various sexual acts, including vaginal intercourse without a condom. He used choking to ensure continued compliance and slapped the complainant, all while directing degrading and demeaning verbal attacks at her. He made her kneel down and “pray to her God” while he told her that he could kill her or have her killed. She suffered numerous injuries, including a laceration to her genitals. The physical and psychological impact on the complainant was profound. He was convicted of sexual assault causing bodily harm, attempting to choke to enable robbery and sexual assault, robbery, forcible confinement and uttering a threat to cause death or bodily harm. The offender was a youthful first-time offender; however, subsequent convictions, including a sexual assault on a former partner, were used to assess his rehabilitative prospects. He was sentenced to four-and-one-half years.

R. v. McMillan, 2020 ONSC 3299

[60] This case is a very recent decision of Justice Dambrot that I considered, where the defendants were found guilty of one count of sexual assault to which the other was a party, an offence generally referred to as gang sexual assault, and one count of administering a stupefying or overpowering drug with intent to assist themselves to commit the indictable offence of sexual assault. On the count of gang sexual assault, Dambrot J. imposed a sentence of seven years on each offender. On the count of administering a stupefying substance, he imposed a sentence of two years to be served consecutively. In connection with the circumstances of the offence, Dambrot J. stated as follows:

[59] In respect of aggravation, … the circumstances of this offence were highly aggravating. This was … a prolonged, violent, degrading and humiliating offence by two mature men who were larger and stronger than the victim, and who took advantage of her severe intoxication to the point of unconsciousness to commit this offence, kept her awake enough to continue the offence for many hours by administering cocaine to her and made a recording of their sexual assault for their future use. While they were not, strictly speaking, in positions of trust in relation to the victim, the offences took place in licenced premises of which they had full control and had responsibility for the well-being of their customers.

[60] I have said that the sexual assault offence is particularly heinous because it was committed jointly by two men on a single vulnerable victim, but I must be careful not to punish the offenders doubly because of this: the joint nature of the offence cannot both increase the penalty by increasing the maximum period of imprisonment, resulting in the sentences imposed being situated at a higher point in the enlarged range, and then increase the penalty again by treating the joint nature of the offence as an aggravating circumstance a second time. Accordingly, I do not treat this consideration as an aggravating circumstance in the ordinary way.

[61] Having regard to the nature of this offence, the prolonged, violent and degrading manner that it was committed by these offenders, to their personal circumstances and the aggravating and mitigating considerations, I conclude that denunciation, general and specific deterrence and the separation of the offenders from society for a significant period of time must be the predominant considerations in determining the appropriate sentence. At the same time, I will not lose sight of the potential that each offender has for rehabilitation. I further note that despite some differences in their circumstances, I see no basis to distinguish between the offenders for the purpose of sentence.

[62] I had occasion last year to sentence two offenders who were found guilty by a jury of gang sexual assault in circumstances that were not entirely unlike the circumstances here, even including the video recording of the crime by the offenders: see R. v. Bohorquez, 2019 ONSC 1643. There were, of course, differences. For one, the crime there was planned. For another, the duration of the crime there, albeit lengthy, was much shorter than here. For still another, one of the offenders there was clearly the instigator and architect of the crime, while the other was more of a follower, resulting in sentences of different lengths for the two offenders.

[63] In considering the length of the sentences I would impose in Bohorquez, I noted that a great many sentencing decisions were provided to me to guide me in determining the appropriate length of sentence. In response, I said the following, at para. 98:

In respect of aggravation, as I have explained in detail, the circumstances of this offence were highly aggravating. This was, as I have said, a prolonged, violent, degrading and humiliating offence by two mature men who were larger and stronger than the victim, and who took advantage of her severe intoxication to the point of unconsciousness to commit this offence, kept her awake enough to continue the offence for many hours by administering cocaine to her and made a recording of their sexual assault for their future use. While they were not, strictly speaking, in positions of trust in relation to the victim, the offences took place in licenced premises of which they had full control and had responsibility for the well-being of their customers.

Counsel placed before me a host of sentencing decisions in an effort to persuade me that they had identified the appropriate length of sentence for these offenders. These decisions are often difficult to reconcile, with sentences falling everywhere from two years to ten years. As is not unusual, these decisions are limited in their helpfulness, particularly because many of them were imposed for the offence of sexual assault, and not the “aggravated” sexual assault offence committed by these offenders. Nevertheless, I conclude from them that nothing short of significant penitentiary sentences are appropriate for the offenders in this case. [Emphasis added]

[64] I reached the same conclusion here. The sentencing submissions made on behalf of the offenders were quite unrealistic. Sentences of the nature imposed in Bohorquez must also be imposed here. Doing the best I could in this case to give effect to the pertinent objectives of sentencing and to balance the considerations I have outlined, I imposed the sentences I mentioned at the outset of these reasons.

Conclusion on the Sentencing Range

[61] The Crown’s position is that the cases of Alas and Simas-Mamani are most similar to the case at bar, resulting in sentences of seven and eight years respectively. With respect to Alas, arguably the sentence would have been higher had the offender not pleaded guilty, but it is difficult to know how the sentence was arrived at, as it was the product of a joint submission. I also find that because it is a decision from Nova Scotia and I do not know what range of sentence courts in that province consider appropriate, it is difficult to give this decision much weight.

[62] With respect to Simas-Mamani, I agree with Mr. Rudnicki that the offence was more serious given the repeated choking to the point of unconsciousness. The complainant in the case at bar was not choked to the point of unconsciousness. As Lofchik J. stated in Simas-Mamani, at para. 10:

The case before me is as much about domination and power as it is about sex. The actions of the offender in choking M.M. clearly endangered her life, as the difference in outcome between unconsciousness, brain damage and death may be only a matter of a few additional seconds of pressure.

[63] The Defence submits that the facts in the case at bar share more in common with Razak and Nelson than the high single-digit penitentiary cases suggested by the Crown. I note, however, that Nelson is also dated-eight years old and Razak, coming from British Columbia, seems to reflect a lower sentence than such an offender would get given the Ontario cases I have been referred to. I do agree, however, that most of the cases do not support the Crown’s position that an eight-year sentence is appropriate in this case. Unlike R.M., this was not a gang sexual assault nor a case where there were multiple complainants as in Quesnelle or McMillan. In addition, unlike the offenders in Simas-Mamani and Quesnelle, Mr. Blake does not have a criminal record. Furthermore, this is not a case where there was repeated choking to the point of unconsciousness as in Simas-Mamani. However, as already stated, in R.M., the court found Assing of particular relevance and the facts in that case bear a number of similarities to the case at bar. Although it is a case from 2008, the offender, who had no prior record, had strong family support and showed signs of rehabilitative potential, received a global sentence of nine years’ incarceration for convictions for sexual assault with a weapon, robbery, and forcible confinement. Furthermore, there was no conviction for choking.

[64] On balance although I agree with Justice Dambrot that it is difficult to reconcile all of the cases that counsel have referred to. In this case I am considering a global sentence that is not only what is appropriate for a penetrative sexual assault simpliciter, but one that caused bodily harm as well as the choking, threatening to cause death and forcible confinement, all committed by Mr. Blake in order to succeed in the forced vaginal sexual assault of the complainant. Given all of these aggravating factors/additional offences, in my view the appropriate range of sentence is as suggested by the Crown of between five to eight years.

Determination of a Fit Sentence

[65] Mr. Rudnicki argues that whatever I determine to be a fit sentence, I should reduce the sentence I impose on Mr. Blake because he will also suffer two significant collateral consequences as a result of his convictions that have an impact on identifying a fit sentence. First, as a result of this sentence he will be subject to mandatory deportation to Jamaica. Second, he will serve his sentence in a congregate living facility during an unprecedented global pandemic. While not mitigating factors in their own right, Mr. Rudnicki argues that collateral consequences can have the effect of rendering a sentence more qualitatively harsh on the offender and that to the extent that they do, they may call for a reduction in the overall sentence. The Crown agrees that these are both appropriate considerations for this court, however, disagrees with the weight to be placed on each.

[66] In particular, the Defence submits that Mr. Blake does not seek a sentence below the established range for sexual assaults involving other violence. He submits only that his highly mitigating circumstances, when considered together with the certainty of deportation and the conditions of incarceration that will flow for his conviction, reduce what would otherwise appropriately be a five-year penitentiary term to a four-year penitentiary term. It is submitted that this still represents a lengthy sentence for a first-time offender. It appropriately balances the need to centre the principles of denunciation and deterrence while fashioning the minimum necessary intervention in the circumstances.

Immigration consequences

[67] By virtue of his conviction of sexual assault Mr. Blake will be considered “inadmissible on grounds of serious criminality” pursuant to s. 36(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”). This would make him vulnerable to a removal order leading to deportation. He would not be able to appeal any removal order made by the Immigration Division to the Immigration Appeal Division, by virtue of s. 68(1) of the IRPA since there is no dispute that the sentence I impose in this case must be considerably longer than six months. This is presumably why this consequence has been referred to by counsel and the courts in some cases as “automatic deportation”. Ms. Matthews advised that she was not in a position to dispute the Defence position that Mr. Blake will face automatic deportation without a right of appeal.

[68] Based on my review of the IRPA, Mr. Blake will not face automatic deportation. However, he will be considered “inadmissible” and steps could be taken that would result in his deportation. A sentence of more than six months will mean that should a removal order be made, one of the avenues by which Mr. Blake could challenge that deportation would be lost. He would, however, still have a potential remedy; the Immigration Appeal Division may stay or quash a removal order - where humanitarian and compassionate considerations so warrant; see Ribic v Canada (Minister of Employment and Immigration), [1985] IABD No 4, Chieu v Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 SCR 84; Al Sagban v Canada (Minister of Citizenship and Immigration), 2002 SCC 4, [2002] 1 SCR 133. I would, therefore, characterize his situation as one where he will likely be deported given the seriousness of these offences. However, given the length of time that he has been in Canada, the fact he has built up a successful business and has no other convictions, and given that his family and in particular his spouse and children are here, I would not say this result is a forgone conclusion.

[69] In R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739 (at para. 14) the Supreme Court made it clear that:

[A] sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender.

[70] A number of courts have applied this principle, often on appeal, to recalibrate what is otherwise a fit sentence to bring it under the old trigger for deportation of a sentence of two years or the current one of six months; see e.g. R. v. Nassri, 2015 ONCA 316 and R. v. Edwards, 2015 ONCA 537 at para. 7. In Pham, a two-year sentence was reduced to two years less one day. Ms. Matthews referred to R. v. N.F., 2015 ONCA 51 but again the issue was whether or not a sentence could be imposed that would avoid immigration consequences which is different from the issue before me.

[71] The issue before me is whether or not what Mr. Rudnicki describes as the “the certainty of deportation” is a factor that can be considered as a mitigating factor or a consideration capable of tempering the severity of the sentence to be imposed given the impact the sentence will have on Mr. Blake once he is deported. Ms. Matthews submitted that the impact of this collateral effect should only be a significant consideration where the court has the option of imposing a reduced sentence that would avoid that collateral consequence. As there is no likelihood that Mr. Blake will receive a sentence that would avoid the immigration consequence, the Crown submits that this collateral consequence should be given no weight.

[72] Mr. Rudnicki submitted that it is appropriate to consider the qualitative impact of Mr. Blake’s deportation when deciding the total sentence that ought to be imposed. Mr. Blake moved to Canada when he was in his early teens and has never gone back to Jamaica. His spouse and his children are here. His father and stepmother are here. The business he built from the ground up is here. It is argued that the unavoidable consequence of being sentenced for these offences will mean living in exile from his loved ones and having to restart his career from scratch. Mr. Rudnicki submitted that it is no exaggeration to say that it will destroy Mr. Blake’s life. It is argued that this is a collateral consequence flowing from conviction that may be considered in coming to the appropriate sentence. I accept that should Mr. Blake be deported to Jamaica that it will have a devastating impact on him. The issue is whether or not that should temper the sentence that I would otherwise find to be appropriate.

[73] Mr. Rudnicki referred me to R. v. Suter, 2018 SCC 34 at paras 46-49 where the court considered whether or not a sentence should be shortened because of injuries suffered by the offender because of “vigilante justice” after he was charged. The court stated as follows:

[46] As I have observed, sentencing is a highly individualized process … Tailoring sentences to the circumstances of the offence and the offender may require the sentencing judge to look at collateral consequences. Examining collateral consequences enables a sentencing judge to craft a proportionate sentence in a given case by taking into account all the relevant circumstances related to the offence and the offender.

[47] There is no rigid formula for taking collateral consequences into account. They may flow from the length of sentence, or from the conviction itself … In his text The Law of Sentencing (2001), Professor Allan Manson notes that they may also flow from the very act of committing the offence:

As a result of the commission of an offence, the offender may suffer physical, emotional, social, or financial consequences. While not punishment in the true sense of pains or burdens imposed by the state after a finding of guilt, they are often considered in mitigation. [Emphasis added; p. 136.]

I agree with Professor Manson’s observation, much as it constitutes an incremental extension of this Court’s characterization of collateral consequences in Pham. In my view, a collateral consequence includes any consequence arising from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence, that impacts the offender.

[48] Though collateral consequences are not necessarily “aggravating” or “mitigating” factors under s. 718.2(a) of the Criminal Code — as they do not relate to the gravity of the offence or the level of responsibility of the offender — they nevertheless speak to the “personal circumstances of the offender” (Pham, at para. 11). The relevance of collateral consequences stems, in part, from the application of the sentencing principles of individualization and parity: ibid.; s. 718.2(b) of the Criminal Code. The question is not whether collateral consequences diminish the offender’s moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances. Like offenders should be treated alike, and collateral consequences may mean that an offender is no longer “like” the others, rendering a given sentence unfit.

[49] Collateral consequences do not need to be foreseeable, nor must they flow naturally from the conviction, sentence, or commission of the offence. In fact, “[w]here the consequence is so directly linked to the nature of an offence as to be almost inevitable, its role as a mitigating factor is greatly diminished” (Manson, at p. 137). Nevertheless, in order to be considered at sentencing, collateral consequences must relate to the offence and the circumstances of the offender. [Emphasis added]

[74] I have not been referred to a case where the court has considered the risk of deportation as a collateral consequence justifying a shorter sentence apart from those cases where doing so would adjust the sentence so that the right of appeal is not lost. That is not possible in this case. However, I conclude based on Suter that I do have the authority to consider the risk of Mr. Blake’s deportation as a collateral consequence resulting from his conviction for sexual assault. I do not conclude that it is a significant factor justifying a reduction of what would otherwise be a fit sentence as I cannot conclude, for the reasons stated, that it will be an automatic consequence of his conviction. This risk of deportation is difficult to quantify in this case. It arises from his convictions - Mr. Blake faces the risk of deportation regardless of the sentence I impose upon him. I have no doubt that he will use every remedy at his disposal to avoid a deportation order.

Impact of the COVID-19 pandemic

[75] As already stated, counsel agree that there should be a pre-sentence credit for six days, which on a 1 to 1.5 equals six days and a further Downes credit for a total credit of 10 months. This is reasonable because Mr. Blake has spent approximately three years on a strict house arrest bail. As a result of this bail condition, Ms. Gough had to quit her job as a manager at Sears so that she could work with Mr. Blake, accompanying him to his office and job sites. This resulted in a loss of income of approximately $2,500 per month for the family. It caused strain in the relationship. It has required Mr. Blake to hire caregivers to take his children to and from school, has paused Ms. Gough’s career, and has added a significant financial strain on this young family.

[76] The issue is whether or not there should be a further credit for the fact that Mr. Blake will be incarcerated at a time when the world is facing the COVID-19 pandemic. He has not been incarcerated to date during the pandemic, but there is no dispute that at least some of his time once he is sent to the penitentiary will be while the pandemic continues to be a condition that must be managed in the institution where ever he is sent to serve his time.

[77] Mr. Rudnicki did not submit that Mr. Blake is particularly vulnerable to a COVID-19 infection and I have no evidence from Mr. Blake that he is or that he has any concerns about infection with the virus. However, Mr. Rudnicki did argue that Mr. Blake is at higher risk of becoming infected while incarcerated due to congregate living and that this is another reason why his sentence should be shortened from what he submits is a fit sentence of five years, to four years. He relied on a report dated June 19, 2020 from the Office of the Correctional Investigator (OCI). This report set out the situation with respect to COVID-19 as of that date in federal institutions. As of that date there was only one active case of COVID-19 among federally sentenced inmates. This report also stated that Correctional Service Canada (CSC) had convened a high-level working group with a mandate to shape the “new normal” in federal institutions for how and when to return the CSC to full operations. Counsel agreed that I be provided with an updated report from the OCI shortly before rendering my decision, but Mr. Rudnicki has advised that the OCI has not yet released a further update on the status of COVID-19 in federal institutions. He did however state that CSC has released information relating to their transition to the “new normal” at https://www.csc-scc.gc.ca/001/006/001006-1003-en.shtml, which I have reviewed. According to this report there are no active COVID-19 cases in any of the federal institutions in Ontario. The report sets out CSC’s plan to resume programs and services in very general terms, stating in part that as restrictions related to COVID-19 begin to ease in regions across the country, CSC is working diligently to ensure the safe and gradual resumption of certain services and programs in federal institutions. The timeline around reinstating any activities will vary across the country, informed by national, provincial and local circumstances and public health advice. It is unclear what activities and programs have resumed and this will vary by institution but the most up to date information is that inmate visits are being allowed at all institutions in Ontario.

[78] Mr. Rudnicki submitted that given the recent resurgence in COVID-19 cases across the country, that it seems that “we remain in a state of significant uncertainty”. I accept that notwithstanding the current intention of CSC to gradually attempt to get back to a new normal that measures may have to be put in place that will impact the conditions that Mr. Blake will face while incarcerated, at least until a vaccine is found. Those measures might include increased lockdowns due to staff shortages, reduced programing if volunteers are not permitted to attend the institution and no or reduced inmate visits. I agree with Ms. Matthews, however, that it is particularly difficult for this Court to weigh the possible impact of COVID-19 as a collateral issue on Mr. Blake as there are many unknowns. It is unknown at this point at which institution Mr. Blake will serve his sentence and of course if and when a vaccine will be available and how the pandemic will impact provincial guidelines. Therefore, there is no evidence about what additional restrictions or protocols imposed by the institution could negatively affect Mr. Blake.

[79] I considered this issue in a very recent decision, R. v. Niyongabo, 2020 ONSC 4752, at paras. 76 to 83. There I considered the Court of Appeal decisions of R. v. Morgan, 2020 ONCA 279 and R. v. Lariviere, 2020 ONCA 324, as well as R. v. Hearns, 2020 ONSC 2365, [2020] O.J. No. 1648, (S.C.J.), a decision of Justice Pomerance, released in April 2020, a month before the release of Lariviere. I concluded that given Lariviere, in the absence of any evidence that the offender is uniquely vulnerable to the virus, there is no basis to reduce what would otherwise be a fit sentence because of the impact of the pandemic.

[80] Mr. Rudnicki did refer to cases from this Court that I was not referred to when I decided Niyongabo, in support of his position, but I note that many were cases where the offender was particularly vulnerable to infection; for e.g. R. v. Bell, 2020 ONSC 2632, and more significantly, all of them save for R. v. Studd, 2020 ONSC 2810, a decision of Davies J., were decided before the release of the Lariviere decision. Studd was decided afterwards but Lariviere was not referred to and in any event the offender in that case had a compromised immune system and so was at heightened risk of infection by the virus.

[81] Although I accept that Mr. Blake may be at an increased risk of infection while incarcerated because it is difficult if not impossible to maintain social distancing, I have no evidence that he is concerned about the threat of infection or that he is uniquely vulnerable. Furthermore, clearly based on the recent information from CSC the federal institutions have done a very good job of reducing the risk of been inmates contracting COVID-19. Accordingly, for the same reasons that I set out in Niyongabo, I have concluded that he is not entitled to a reduction of what I determine to be a fit sentence because for at least some of the time that he will be incarcerated there will be an increased risk of infection from the COVID-19 virus which may impact on the conditions of his incarceration.

What is a fit sentence in this case?

[82] I turn then to what is a fit sentence in this case.

[83] I find that the following facts are aggravating:

a) This was a brutal unprovoked attack on a sex trade worker at night in an isolated area;

b) Mr. Blake confined J.M. by locking the car doors to prevent her escape and closing all the windows so that she could not be heard if she cried for help;

c) In order to gain control over J.M., Mr. Blake used a knife and threatened to push it into her stomach;

d) He choked her to facilitate the sexual assault and that was a particularly dangerous and terrifying action;

e) The sexual assault involved full vaginal penetration, at times without a condom;

f) The level of physical violence inflicted by Mr. Blake upon J.M. was well beyond the violence inherent in any sexual assault and resulted in serious injuries including a bite to her finger so hard that it fractured and deep bite marks, the scars of which can still be seen today;

g) The level of psychological violence inflicted was significant, with lasting effects, with Mr. Blake not only threatening J.M. during the course of the assault, but also at the end, when her told her he could come find her again at any time. Mr. Blake demonstrated a complete disregard for J.M.'s humanity during this attack, which terrorized her then and still does today;

h) J.M. suffered deep and lasting effects of trauma, including a loss to her economic, sexual and mental health, and drove her into further criminal behaviours, as described by her during trial and in the PSR;

i) As a sex trade worker, J.M. was one of a particularly vulnerable population. Attacks upon them in the course of their work, in situations of vulnerability, are an aggravating factor.

[84] I find that the following facts are mitigating:

(a) Mr. Blake does not have a criminal record;

(b) Mr. Blake is fortunate to have the support of a close-knit family. In addition to his spouse, his father, and his stepmother, he has eight half-siblings with whom he maintains close relationships. They supported him throughout the court process and view the offences he has committed to be completely out of character. As Ms. Matthews points out, however, because his family members do not believe that Mr. Blake committed the offences, their ability to assist him in his rehabilitation is limited;

(c) With respect to his character, in the PSR Mr. Blake’s family members describe him as intelligent, hard-working, kind, and generous. They know him to be peaceful and slow to anger. Ms. Matthews, however, submitted that their view that it must have been 'a mistake or misunderstanding', that Mr. Blake would be the 'last person that would ever be in trouble with the law' and that this offence was '100% completely out of character' are not credible given that in June, 2017, Mr. Blake was charged with similar offences against another woman in the context of the sex trade. Those charges ultimately resulted in Mr. Blake entering into a three-year Common Law Peace Bond (“Peace Bond”) on November 13, 2019. I will say more about this below;

(d) Mr. Blake has a steady relationship with Ms. Gough and their children and his children from previous relationships. By all accounts, he is a good father and positive role model to his children;

(e) He is an entrepreneur who has built a successful business over seven years and has employed dozens of employees. Before that he was steadily employed.

[85] With respect to the relevance of the Peace Bond, Ms. Matthews stressed that she is not suggesting that this Court rely on that Peace Bond as a prior offence or as an aggravating factor. It is her position, however, that it should be considered in evaluating the 'good character' information provided by Mr. Blake's family members in the PSR because it undermines their assertions that 'he is the last person that would ever be in trouble with the law'. Ms. Matthews advised that those proceedings went on for over two years, and Mr. Blake was subject to a residential surety bail, with Ms. Gough acting as surety. She submitted that it is significant that no family member raised this with the author of the PSR and it seems to have had no effect on the family’s complete faith in Mr. Blake. If the rest of the family was unaware of these charges, it means that neither Mr. Blake nor Ms. Gough were forthcoming with his family. Either way, it clouds the input they provided to the author of the PSR. Ms. Matthews submitted that the Court must assess the genuineness and reliability of their input in light of this information. She relies on R. v. Angelilo, 2006 SCC 55 at par 27 as authority for the authority of this Court to consider the Peace Bond for this limited and specific purpose.

[86] The admissibility of the evidence with respect to the Peace Bond is vigorously opposed by Mr. Rudnicki. It is his position that the withdrawn charges are not relevant to any issue this Court must decide. He submits that even if the Peace Bond is admissible to rebut assertions of good character made by members of his family in the PSR, its value is marginal at best. It should play no role in this Court’s decision with respect to sentence. He concedes that evidence of bad character would be admissible to rebut this evidence at a sentencing hearing but submits that the fact of the Peace Bond, without more, is not evidence of bad character. The evidence tendered by the Crown establishes that Mr. Blake agreed to enter into the Peace Bond in exchange for a withdrawal of the charges against him: nothing more, nothing less. He has admitted no fact in relation to those offences. The fact of his arrest and bail for those offences cannot lawfully be used to support an inference that he is “the type of person to be in trouble with the law”. Since that inference is not available, Mr. Rudnicki submits that the Peace Bond is not admissible to rebut the evidence that, apart from the offences before this Court, Mr. Blake has led a responsible, law-abiding and peaceful life. Mr. Rudnicki submits that the passage from Angelilo that the Crown relies upon stands for the proposition that substantive evidence of a prior offence may be admissible in a sentencing hearing, even where the offender was not charged with or convicted of that offence, where it is relevant to one of the principles of sentencing. He submits that this is not what the Crown proposes to do in this case. It seeks to adduce evidence of the fact of a prior withdrawn charge in the absence of any substantive evidence.

[87] I agree with Mr. Rudnicki’s position. The fact Mr. Blake was charged, and the charges were withdrawn when he entered into a Peace Bond does not mean that he was guilty of any other offence. I have no evidence to contradict the assertions of his family and Ms. Gough that he is a person of good character. Furthermore, as to the credibility of Ms. Gough and the family members who spoke to the author of the PSR, I do not know what questions were asked of them. I do not know why Mr. Blake agreed to enter into a Peace Bond but have no reason to conclude that his family members or Ms. Gough would have any reason to believe he did so because he was guilty of the underlying charge. I agree with Mr. Rudnicki that on its own his entering into the Peace Bond is not evidence of bad character. That said, in my experience, it is quite common for persons convicted of sexual assault to otherwise be of good character and for the offence to be considered out of character. The fact that Mr. Blake’s family and Ms. Gough believe him to be a person of good character is not that relevant in my view to what sentence I should impose. It is relevant to whether or not they can and will assist in his rehabilitation and, as I have already stated, the fact that they do not believe that he committed the sexual assault on J.M. will mean that they will be of limited assistance in that regard.

[88] Mr. Blake 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.

[89] Ms. Matthews argued that there is no evidence that Mr. Blake has any insight into the impact of his actions on the complainant which would assist in his rehabilitation and that this is an important factor to consider in assessing the risk of recidivism. I appreciate, as Mr. Rudnicki submitted, that while remorse is a potentially mitigating factor and is not present in this case, it cannot be used as an aggravating factor; see R. v. Reeve, 2020 ONCA 381 at paras 14-20. However, as the court in Reeve stated at para. 11:

A genuine expression of remorse can constitute an important mitigating consideration at the time of sentencing. When an offender demonstrates, through actions and/or words, that he or she is genuinely remorseful for his or her conduct, it can show that the offender has some insight into his or her past actions and takes responsibility for them. Taking responsibility for past conduct is an important step toward rehabilitation and gives cause for hope that the offender may be set on a path of change. The greater the genuine insight into past offending behaviour, the greater the cause for hope. [Emphasis added]

[90] Although I have no evidence to assess the risk of Mr. Blake re-offending, I do agree with Ms. Matthews, that there is no evidence that he has taken responsibility for his conduct as a positive step towards his rehabilitation. It is the absence of a mitigating factor, not an aggravating factor. However, as Mr. Rudnicki submitted, Mr. Blake was cooperative with the author of the PSR and he expressed a willingness to participate in whatever sentence or conditions this Court deems fit to impose. He did not rail against a perceived unfairness of his conviction or stubbornly refuse to accept the consequences.

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

[92] This crime cries out for a significant denunciatory sentence, one which will deter Mr. Blake and others from committing such acts, and one which expresses society's condemnation of sexual violence against women, particularly sex workers. As the Supreme Court said in R. v. Barton, 2019 SCC 33:

We live in a time where myths, stereotypes, and sexual violence against women - particularly Indigenous women and sex workers - are tragically common. Our society has yet to come to grips with just how deep-rooted these issues truly are and just how devastating their consequences can be. Without a doubt, eliminating myths, stereotypes, and sexual violence against women is one of the more pressing challenges we face as a society. While serious efforts are being made by a range of actors to address and remedy these failings both within the criminal justice system and throughout Canadian society more broadly, this case attests to the fact that more needs to be done. Put simply, we can - and must - do better.

[93] However, given the cases I have been referred to, I have concluded that the Crown’s request for a sentence of eight years is too high given this is a first offence. On the other hand, in my view, although there are cases that support a sentence in the range of four to five years, I do not find them reliable or they are distinguishable for the reasons already stated. In my view, although Mr. Blake did not choke the complainant to the point of unconsciousness, his attack was violent and brutal. He confined her in his SUV, threated to kill her with a knife, he bit her all over her body to the point of breaking one of her fingers, and he degraded her and mocked her when he made a show of putting the condom away and finally he threatened to come back in a different car and hurt her. There is no doubt that this a very serious case and that the circumstances of the offence call for a sentence at the high end of the range for sexual assault and with the forcible confinement, choking, and threatening to kill with a knife, those are further significant aggravating factors. In my view, the appropriate sentence in all the circumstances is in the range of six to seven years.

[94] Given Mr. Blake is a first-time offender with a number of positive factors in favour of his rehabilitation, at least in terms of his family support and past employment and business experience, I conclude that in all of the circumstances a fit sentence in this case is six years. From that his pre-sentence credit of 10 months will be deducted, leaving a sentence of five years and two months to serve.

Final Disposition

[95] Mr. Blake, with respect to your conviction on Count # 4 - sexual assault causing bodily harm, contrary to s. 272(2) of the Criminal Code, I sentence you to a period of six years in custody.

[96] With respect to your conviction on Count # 2 - attempting to choke J.M. for the purpose of committing sexual assault causing bodily harm, contrary to s. 246(a) of the Criminal Code, I sentence you to six years in custody, which sentence shall run concurrently to your sentence on Count # 4.

[97] With respect to your conviction on Count # 3 - uttering a threat to cause death, contrary to s. 264.1 (1)(a) of the Criminal Code; I sentence you to four years in custody, which sentence shall run concurrently to your sentence on Count # 4.

[98] With respect to your conviction on Count # 1 - forcible confinement of J.M., contrary to s. 279(2) of the Criminal Code, I sentence you to two years in custody, which sentence shall run concurrently to your sentence on Count # 4.

[99] Mr. Blake from this global sentence of six years on Counts # 4 and # 2, there shall be a pre-sentence credit of 10 months leaving five years and two months to serve on those counts.

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

[101] 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 with respect to all counts save for Count #3. This order shall be executed when you attend at the Court House at 361 University Avenue, Toronto, at the time specified that I will come to.

[102] I also make an order in Form 52 pursuant to ss. 490.012(1) and 490.013(2)(b) of the Criminal Code, that Mr. Blake’s name be added to the Sex Offender Registry and that he complies with the Sex Offender Information Registration Act for 20 years.

[103] In addition, pursuant to s. 743.21 of the Criminal Code, Mr. Blake, I order that you shall have no contact with the complainant, J.M., directly or indirectly, while you are in custody.

[104] Finally, as you are not currently in custody and this sentencing decision is being provided to you by video conference, I order that you turn yourself in to the Officer in Charge of the cells at the Court House at 361 University Ave. Toronto, on Wednesday September 23, 2020 at 11:00 a.m. so that the DNA order I have made can be executed and that you be taken into custody. I will issue a Warrant for your Committal with discretion, to ensure that you comply with this order.

“Spies J.”

Spies J.

Released: September 22, 2020

COURT FILE NO.: CR-18-70000706

DATE: 2020/09/22

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

NEVILLE LEE BLAKE

Defendant

REASONS FOR sentence

Spies J.

Released: September 22, 2020

[^1]: Varied on appeal to grant the accused 1.5:1 credit for pre-sentence custody, 2014 ONCA 853.