CITATION: R. v. Browne, 2021 ONSC 6097

COURT FILE NO.: CR-19-10000048-0000

DATE: 20210917

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MARK BROWNE

Defendant

L. Jacek, for the Crown

H. Dudding, for the Defendant

HEARD: May 11, May 12, May 26, June 10, June 16, and June 22, 2021

REasons for sentence

H. mcarthur J.:

Introduction

[1] On October 22, 2020, I found Mark Browne guilty of sexual assault with a weapon. I determined that he briefly inserted a vibrator in B.S.’s vagina or anus while she was either unconscious or asleep and incapable of consenting. I acquitted Mr. Browne of charges of aggravated sexual assault and assault.[^1]

[2] Defence counsel concedes that the paramount sentencing objectives in this case must be denunciation and deterrence. She argues, however, that these objectives could be met in the circumstances of Mr. Browne’s case by a conditional sentence, if it were a legally available sentence.

[3] Section 742.1(f)(iii) of the Criminal Code prohibits conditional sentences for sexual assault offences prosecuted by indictment. However, in R. v. R.S., 2021 ONSC 2263, Nakatsuru J. held that the section violated ss. 7 and 15 of the Canadian Charter of Rights and Freedoms and was not justified pursuant to s. 1. As a result, pursuant to s. 52(1) of the Constitution Act, 1982, he declared the section to be of no force or effect.

[4] Defence counsel submits that I should follow the reasoning in R.S. and declare s. 742.1(f)(iii) to be of no force or effect. She further argues that given the numerous mitigating factors in this case, a conditional sentence is appropriate. She urges me to impose a conditional sentence of six to 12 months followed by a one-year probation term.

[5] The Crown counters that the decision in R.S. is plainly wrong and seeks to rely on the prohibition against conditional sentences for sexual assaults prosecuted by indictment set out in s. 742.1(f)(iii): R. v. Sullivan and Chan, 2020 ONCA 333, at para. 38. In the alternative, the Crown argues that given the seriousness of Mr. Browne’s criminal conduct, a conditional sentence would be inconsistent with the purpose and principles of sentencing. The need to denounce and deter such conduct, she says, can only be met by a jail sentence. She submits that 18 months in custody, followed by two years of probation, is the appropriate sentence.

[6] I propose to first deal with the issue of whether the decision in R.S. is plainly wrong. I will then go on to consider what would be a fit and proportionate sentence for Mr. Browne. I will then consider the issues of restitution and ancillary orders

Issue One: Is the decision in R.S. plainly wrong?

[7] As noted above, in the recent decision of R.S., Nakatsuru J. held that s. s. 742.1(f)(iii) of the Criminal Code, which prohibits conditional sentences for sexual assault offences prosecuted by indictment, was unconstitutional. He found that the section violated s. 15 of the Charter because its effect was to discriminate against Indigenous offenders and s. 7 of the Charter because the section was overbroad in relation to its purpose.

[8] In Sullivan and Chan, at para. 38, the court held that other superior court judges should respect and apply an earlier declaration of unconstitutionality by a superior court judge, absent cogent reason to conclude the earlier declaration is plainly the result of a wrong decision. Thus, in the present matter, the Crown bears the burden of establishing that R.S. was incorrectly decided. Despite the able arguments of Ms. Jacek for the Crown, for the following reasons I am not persuaded that the decision of R.S. is plainly wrong.

[9] Reasons to depart from a co-ordinate judge’s decision may include: a) where the validity of the judgment has been affected by later decisions; b) where the judge overlooked some binding caselaw or relevant statute; or c) where the decision was otherwise made without full consideration: R. v. Scarlett, 2013 ONSC 562, per Strathy J. (as he then was), at paras. 43-44; R. v. A.M., 2020 ONSC 8061, at para. 44.

[10] R.S. relied heavily on the analysis of the Ontario Court of Appeal in R. v. Sharma, 2020 ONCA 478. In Sharma, the court considered the constitutionality of ss. 742.1(c) and 742.1(e)(ii) of the Criminal Code. Section 742.1(c) prohibits conditional sentences for offences prosecuted by way of indictment where the maximum penalty is 14 years or life imprisonment. Section 742.1(e)(ii) of the Criminal Code prohibits conditional sentences for offences prosecuted by way of indictment for which the maximum penalty is 10 years and that involve the import, export, trafficking, or production of drugs.

[11] Feldman J.A. for the majority of the court held that both sections contravened s. 15 of the Charter because their effect was to discriminate against Indigenous offenders on the basis of race and s. 7 of the Charter because they were overbroad in relation to their purpose. She further found that the s. 7 breach was not saved under s. 1 as the Crown advanced no substantive arguments to justify it. With respect to the s. 15 breach, she found it was not justified pursuant to s. 1 of the Charter as the provisions were not minimally impairing because they removed the only sentencing alternative that could have been available for the offence and the offender. As a result, the court struck down ss. 742.1(c) and 742.1(e)(ii) and declared them to be of no force or effect.

[12] In R.S., Nakatsuru J. was sentencing an Indigenous offender who had been found guilty by a jury of one count of sexual assault and one count of choking with intent to overcome resistance to facilitate the sexual assault. In careful, considered, and compelling reasons, he determined the prohibition against conditional sentences for the offence of sexual assault in s. 742.1(f)(iii) violated both ss. 7 and 15 of the Charter and could not be saved pursuant to s. 1. As a result, he declared the section to be of no force or effect.

[13] R.S. and Sharma both involved Indigenous offenders, whereas Mr. Browne is a Black man. In written submissions, defence counsel highlighted the systemic discrimination faced by Black Canadians and argued that the overincarceration of Black offenders is well established in the caselaw and social science literature: R. v. Khandai, 2020 ONSC 1611, at paras. 37 and 44; R. v. Williams, 2018 ONSC 5409, at para. 46; R. v. Le, 2019 SCC 34, at paras. 89-97. As a result, she argued that the reasoning in Sharma was directly applicable to Black offenders such as Mr. Browne. The Crown countered by arguing that defence counsel would be required to adduce evidence to support this argument.

[14] The question of whether the reasoning in Sharma can be extended to Black offenders is an interesting one. As is the question of whether evidence would be required, or whether the court could take judicial notice of the overincarceration of Black offenders and whether that overincarceration is related to systemic discrimination. It became clear, however, that litigating this issue would take more court time than had been set aside for the sentencing hearing. In the interests of expediting the sentencing hearing, defence counsel agreed to forgo this argument and instead focus her submissions on whether R.S. is correctly decided. I commend Ms. Dudding for her very reasonable approach, which recognized that court resources are scarce, particularly during the pandemic.

[15] The Crown properly agrees that Mr. Browne is entitled to seek a declaration of invalidity pursuant to s. 52 of the Constitution Act, 1982, on the ground that the law has unconstitutional effect when applied to others, such as the offender in R.S.: R.S., at para. 25; R. v. Nur, 2015 SCC 15. Thus, if the Crown cannot establish that the decision in R.S. is plainly wrong, then I must respect the finding of invalidity.

[16] The Crown points out that R.S. is being appealed. She further notes that R.S. relies heavily on Sharma, which is also being appealed. Given the appeals, she argues that I should question whether R.S. is correctly decided. But neither appeal has been determined yet. The Crown did not seek to adjourn the sentencing pending the outcome of the two appeals. I must apply the law as it exists now, not as it may or may not be after the appeals are decided. And at this stage, the legal landscape is such that I must find that the prohibition against conditional sentences in s. 742.1(f)(iii) is unconstitutional and of no force or effect, unless I am persuaded that the decision in R.S. is plainly wrong.

[17] The Crown here argues that Nakatsuru J. erred in finding a s. 15 breach because the applicant R.S. failed to provide an evidentiary foundation to establish that s. 742.1(f)(iii) had the effect of reinforcing, perpetuating or exacerbating the disadvantage he faced because he was Indigenous. I cannot accept this submission.

[18] A similar argument was advanced in R.S. In rejecting this submission, Nakatsuru J. noted that in Sharma the court held that the sentencing judge “was entitled to take judicial notice of the phenomenon of overincarceration of Aboriginal offenders and the fact that systemic discrimination is recognized as a direct cause of that phenomenon in Canada”: R.S., at para. 41: Sharma, at para. 102. Given that, in my view it was open to, and appropriate for, Nakatsuru J. to take judicial notice of the fact that the “intergenerational legacy of colonialism, displacement, and cultural genocide committed by the Canadian government against the Indigenous peoples of Canada has produced, among other effects, the phenomenon of the overincarceration of Indigenous people in Canada”: R.S., at para. 42.

[19] The Crown in the present case also argues that Nakatsuru J. erred as s. 742.1(c), which prohibits conditional sentences for all offences punishable by 14 years or life, and which was found to be unconstitutional in Sharma, captures a range of offences that is broader than the specific exclusion of sexual assault offences prosecuted by indictment in s. 742.1(f)(iii). The same argument was advanced before and rejected by Nakatsuru J. as “neither entirely accurate nor persuasively material”: R.S., at para. 45. As he highlighted, Sharma also struck down s. 742.1(e)(ii), which dealt with the offences of importing, exporting, trafficking and the production of drugs. While that section enumerates four types of related offences, as opposed to s. 742.1(f)(iii), which enumerates only sexual assault, I agree with his observation that this section is not much less specific than s. 742.1(f)(iii).

[20] The Crown in the present case also argues that Nakatsuru J. erred as even before s. 742.1(f)(iii) was enacted, offenders in R.S.’s position would not have received a conditional sentence for sexual assault, as such a sentence would be inconsistent with the purpose and principles of sentencing. However, in para. 48 of R.S., Nakatsuru J. engaged in an expansive review of the jurisprudence. He concluded that while it was clear that in sexual assault cases more offenders were incarcerated than received conditional sentences, “equally without doubt, conditional sentences, although less common, were nonetheless being appropriately imposed by judges for such sexual assault offences.” He thus found that inferentially, the removal of conditional sentences as a sentencing tool would have an effect on Indigenous offenders that “veered into unconstitutional territory.” Therefore, he found that the effect of s. 742.1(f)(iii) is to deny the benefit of conditional sentences in a manner that has the effect of reinforcing, perpetuating, or exacerbating the disadvantage of Indigenous offenders and is thus contrary to s. 15(1) of the Charter. I am not persuaded that this analysis is plainly wrong. Indeed, I accept and adopt Nakatsuru J.’s thoughtful reasoning on this point. As he did, I find that s. 742.1(f)(iii) contravenes s. 15(1) of the Charter.

[21] The Crown also submits that Nakatsuru J.’s conclusion that s. 742.1(f)(iii) breached s. 7 of the Charter because it is overbroad is plainly wrong. In making this argument, she relies heavily on the decision of R. v. Anderson, 2016 ONSC 7501. There, McWatt J. (as she then was) rejected a s. 7 constitutional challenge brought with respect to the predecessor provision to s. 742(f)(iii). That provision prohibited conditional sentences where an offender was convicted of a “serious personal injury offence” as defined in s. 752 of the Criminal Code, which included the offence of sexual assault. McWatt J. found that the provision was not overbroad.

[22] Nakatsuru J. considered a similar argument in R.S. He concluded that Anderson was no longer good authority in light of Sharma for two reasons. First, in Sharma the court came to a different conclusion regarding the purpose of s. 742.1 than in Anderson. McWatt J. found that the purpose was to bar the use of conditional sentences for serious offences to emphasise the sentencing objectives of denunciation and deterrence. In Sharma, however, the court found that the purpose of the impugned legislation was to “maintain the integrity of the justice system by ensuring that offenders who commit serious offences receive prison sentences.” I agree with Nakatsuru J.’s view that the difference in characterizing the purpose of the provisions has a significant effect on the overbreadth analysis.

[23] Second, as Nakatsuru J. noted, given the way McWatt J. characterized the purpose of the section, she did not analyze the breadth of offences that could potentially fall under the category of sexual assault. The Crown here argues that is of no moment, since given the need to emphasize the sentencing objectives of denunciation and deterrence, in “sexual assault cases there are no offenders for whom conditional sentences are appropriate”: Crown Factum, at para. 57. But this position cannot be reconciled with Sharma. There, the court made clear at paras. 110 and 171 that a conditional sentence may be available even in cases where denunciation and deterrence are the paramount sentencing objectives: see also R. v. Wells, 2000 SCC 10, at para. 35. Indeed, at para. 171 of Sharma, Feldman J.A. commented that in some circumstances, conditional sentences may be appropriate for the offence of aggravated sexual assault.

[24] I agree with the conclusion of Nakatsuru J. that if the purpose of the section is to maintain the integrity of the administration of justice by ensuring that offenders who commit serious offences go to prison, then it is necessary to consider the individual circumstances of the offences. The seriousness of the crime cannot be determined by the category of the offence viewed in isolation: R.S., at para. 67.

[25] As Nakatsuru J. observed, the offence of sexual assault captures a broad spectrum of conduct ranging considerably in severity. In some cases, a penitentiary sentence is required. In others, a non-custodial disposition such as a suspended sentence may be appropriate. However, there will be some cases where the seriousness of the offence would make a suspended sentence unfit, but having regard to the offence and the offender, all the conditions for serving the sentence in the community would be met if not for the prohibition set out in s. 742.1(f)(iii). That is, a conditional sentence would not endanger the public or be inconsistent with the purpose and principles of sentencing. Thus, as Nakatsuru J. concluded, the section “captures sexual assaults that are not so serious that the offender should go to prison in order to maintain the integrity of the justice system”: R.S., at paras. 65-66.

[26] I am not persuaded that Nakatsuru J. was plainly wrong when he found that s. 742.1(f)(iii) is overbroad as it applies to some offenders. To the contrary, I accept and adopt his reasoning that the section is overbroad, as there will be situations involving sexual assault prosecuted by indictment where the conduct is not so serious as to require imprisonment in order to maintain the integrity of the justice system. Thus, I agree that the section contravenes s. 7 of the Charter.

[27] Turning to the s. 1 analysis, the Crown argues that R.S. is plainly wrong, as Nakatsuru J. did not provide any reasoned analysis as to why the s. 7 breach could not be saved by s. 1. I disagree. The Crown bears the onus under s. 1. But in R.S., as was the case in Sharma, the Crown failed to file any evidence or advance any specific argument to justify the s. 7 breach. I agree with Nakatsuru J.’s finding that the Crown thus failed to discharge his onus to show that s. 742.1(f)(iii) is a reasonable limit that can be demonstrably justified in a free and democratic society. Similarly, in the present case, the Crown has not filed any evidence or advanced any argument with respect to how the s. 7 breach could be saved pursuant to s. 1. Like Nakatsuru J., I find that the s. 7 breach cannot be justified pursuant to s. 1 of the Charter.

[28] The Crown further argues that Nakatsuru J. failed to apply the Oakes test when considering whether the s. 15 breach could be justified pursuant to s. 1: R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103. I cannot accept this submission.

[29] At the outset of his analysis on this issue, Nakatsuru J. specifically adverted to Feldman J.’s analysis on this issue in Sharma and found that it had “direct application” in R.S.’s case. Having so found, in my view there was no need for him to repeat the analysis in his reasons.

[30] Moreover, Nakatsuru J. recognised that that the proper application of the Oakes test required a somewhat different analysis in R.S. than in Sharma. A different analysis must apply because, as he noted, sexual assaults are a “plague on society” and ensuring that offenders who commit sexual violence are held accountable has a significant salutary effect: R.S., at para. 73.

[31] Despite that effect, however, he determined that the s. 15 violation was not saved by s. 1, as it failed at the minimal impairment stage. I am not persuaded that this conclusion is plainly wrong. Rather, I agree with Nakatsuru J. that the following comment of Feldman J.A. at para. 178 of Sharma applies when considering the prohibition against conditional sentences for sexual assault offences prosecuted by way of indictment:

The Crown argues that the provisions are minimally impairing of Ms. Sharma’s rights because they “only remove one sentencing option of many.” As discussed above, they remove the only sentencing alternative to imprisonment that could have been available for this crime and for this offender. As in the game of musical chairs, when the chairs are removed, there is no place left to sit down.

[32] In conclusion, I am not persuaded that the decision of R.S. is plainly wrong. Instead, I agree with and adopt the reasoning of Nakatsuru J. I am satisfied that s. 742.1(f)(iii) violates ss. 7 and 15 of the Charter and is not saved by s. 1. As a result, pursuant to s. 52(1) of the Constitution Act, 1982, I declare s. 742.1(f)(iii) to be of no force or effect.

Issue Two: What is the appropriate sentence for Mr. Browne?

Circumstances of the Offence

[33] In the summer of 2017, Mr. Browne and B.S. had been friends for about four or five years. They were casual friends who had typically seen each other at an after-hours club, where attendees, including Mr. Browne and B.S., would use illicit drugs such as cocaine or GHB. They had not seen each other for a few years. Both B.S. and Mr. Browne had been trying to cut down on their drug use. As a result, they were trying to stay away from the club scene. Mr. Browne also had a serious girlfriend named H., who was expecting a baby, which kept him away from the clubs.

[34] On July 30, 2017, however, Mr. Browne went out with friends drinking and using GHB. On the same night, B.S. was out with friends drinking and using cocaine. B.S. posted photos from her night out on social media. Mr. Browne saw the posts and reached out on social media to say hi to his old friend.

[35] They texted each other. She told him she was drunk and wanted to leave the bar. Mr. Browne said he could give her a ride home. They texted a bit more about where she was and when he would be there. At one point, B.S. texted that she felt sick. But before Mr. Browne came to get her, B.S. texted again and told Mr. Browne that he could meet her dog and offered to give him a “line of cocaine LOL”.

[36] B.S. testified that she has little memory of what happened once they were back at her apartment. She recalled that Mr. Browne offered her some GHB. B.S. had taken GHB before and she accepted some from Mr. Browne. After she took the GHB, she testified that she has no memory of events except for a flash when she recalled Mr. Browne on top of her.

[37] I will not detail the complete allegations advanced by the Crown at the trial. Suffice to say that the Crown alleged that while B.S. was unconscious, Mr. Browne had vaginal and anal sex with B.S., causing her injury to her anal area and thighs. The Crown also alleged that Mr. Browne inserted B.S.’s vibrator into her vagina or anus while she was unconscious.

[38] Mr. Browne denied the allegations. I will not set his evidence out in detail. Suffice to say that he testified that at B.S.’s apartment the two hung out, chatted and shared some cocaine and GHB. Ultimately, they had a consensual sexual encounter. B.S. had the capacity to consent and communicated her consent by her words and actions. He further testified they both fell asleep. At one point he woke up and unsuccessfully tried to wake B.S. by waving her vibrator near her face.

[39] Mr. Browne’s evidence, along with some issues that emerged with respect to B.S.’s account that I detailed in my reasons for judgment, left me with a reasonable doubt as to the aggravated sexual assault and assault counts. However, largely based on text messages, I was satisfied beyond a reasonable doubt that when she was unconscious or asleep, Mr. Browne inserted B.S.’s vibrator into her vagina or anus for a brief time. I was also satisfied that in so doing, he caused B.S. psychological injury. As a result, I found Mr. Browne guilty of sexual assault with a weapon.

Impact on the Victim

[40] B.S. filed a victim impact statement (VIS) that set out the huge emotional toll that the offence has had on her.

[41] Mr. Browne was her friend and betrayed the trust she had placed in him. Understandably, the sexual assault has negatively impacted her ability to trust and be intimate with people.

[42] Because the offence happened in B.S.’s apartment, even being in her home was a constant reminder of her sexual violation. She was terrified to take a shower or be alone in the apartment. As a result, B.S. moved apartments.

[43] B.S. explained that she also found being in Toronto difficult and in January 2018, she went to Australia, with the intention of living there and never returning. But she still struggled from depression and anxiety stemming from the assault and could not work. As a result, she returned to Toronto in March 2018.

[44] B.S. found the court process to be extremely difficult. She had to take time off work to testify and she attributes losing her job to that. After the preliminary hearing, she was so depressed that she attempted suicide and had to be hospitalised. At trial, both the Crown and defence brought ss. 276 and 278 applications and as a result, sensitive private issues were explored in court. I will not get into the issues or why both parties deemed it necessary to explore this evidence. B.S. was ably represented by court appointed counsel and I have no doubt that her lawyer would have explained the applicable law to her. But even so, one can readily see that B.S. would find the process even more distressing because she was questioned about private aspects of her life.

[45] B.S. reported that she had been diagnosed with “Unspecified Trauma and Stressor Related Disorder”. She has taken therapy to deal with the emotional issues flowing from the sexual assault. Despite the time that has passed since the sexual assault, she is still struggling. She wishes to continue therapy but cannot afford counselling. I note that B.S. submitted a claim for restitution pursuant to s. 731.1(4) of the Criminal Code. As I will discuss later in these reasons, I will be making an order that Mr. Browne pay restitution in the amount of $5,000, in part to cover the anticipated costs of ongoing therapy for B.S.

[46] B.S.’s mother, M.S., also filed a victim impact statement. Her statement poignantly highlights the ripple effect of sexual violence and the harm that it can cause to the family of the victim: R. v. Friesen, 2020 SCC 9, at para. 63. M.S. expressed how she is living every “Mother’s worst nightmare.” It was heartbreaking for M.S. to learn what happened to her “little girl.” M.S. has observed the devastating impact of the sexual assault on B.S. It has affected B.S. emotionally and financially. M.S. sought psychiatric assistance and is taking medication to help her cope with the anxiety she now suffers when she thinks of what her daughter went through and her fears that B.S. might try to take her own life again.

Circumstances of the Offender

[47] I had several sources of information with respect to Mr. Browne. Numerous family and friends wrote character letters. I had a report from the therapist he has been working with. Mr. Browne also testified before me at the trial and I learned a great deal about his personal circumstances from his evidence. I also had a pre-sentence report (PSR). Unfortunately, there were significant issues with the PSR, and both the Crown and defence submitted that it was essentially “useless”. I agree. In my view the PSR is fundamentally flawed.[^2] As a result, I place no weight on it.

[48] Mr. Browne is 31 years old. At the time of the incident, he was 27. He is a first offender.

[49] Mr. Browne’s mother had him when she was only 18 years old. For the first few years of his life, he moved around a lot and lived with various family members. As his mother reported, she was unable to provide a stable living environment for Mr. Browne.

[50] When he was about 2 years old, Mr. Browne moved in with his father. His father reported that he did his best to raise Mr. Browne as a single dad. He remarried when Mr. Browne was 11 and had several new children. Mr. Browne’s stepmother authored a letter praising Mr. Browne’s character and noting that Mr. Browne has always been a loving and attentive big brother.

[51] Mr. Browne’s father put a lot of pressure on him to succeed and Mr. Browne did well in school. He successfully took French Immersion classes despite the fact that his family did not speak French and could not assist him in his studies. He was involved in many extracurricular activities, such as rugby, volleyball, and swimming, where he earned his deep end certificate. He took regular piano lessons and was the main pianist for a University of Toronto production. While still in high-school, Mr. Browne got a part-time job working at Cineplex Cinemas.

[52] Although Mr. Browne did well in school and his extracurricular activities, he suffered from extremely low self-esteem. The pressure that his father used to try to motivate Mr. Browne demoralized him instead.

[53] Mr. Browne detached from his father and family for much of his early adulthood and rebelled. In his early 20’s he began to abuse alcohol and then drugs such as cocaine and GHB. He started to frequent the after-hours club scene.

[54] Mr. Browne enrolled at Seneca College for Social Work. After taking a few courses, he decided to take some time off to figure out his life. He then worked various jobs, such as in customer service at Starbucks, in retail sales at the Fossil store in Yorkdale, and as a security guard.

[55] In his mid-20’s, Mr. Browne began to distance himself from the party scene. He focused on work and became involved in construction, something he found he enjoyed and for which he had an aptitude. He worked in several different trades, such as framing, underpinning and carpentry. Given his interest in construction, in 2017 he went to George Brown College for a Project Management certificate program. He left the program in 2018 after he found full-time work as a construction project manager at Absolute Interiors. From the spring of 2019 until September 2019, he worked for E.Y. Renovation and Restoration. He also reconnected with his father. His father described how Mr. Browne worked as his “right hand man” in several building projects, including assisting in renovating a bungalow into a three-story house and renovating a property.

[56] Like many individuals, Mr. Browne found that his opportunities to work were limited at the start of the pandemic. However, Mr. Browne started to work again with E.Y. Renovation and Restoration in December 2020 and continues to be employed there to this day. His job requirements include prepping job sites for forming and pouring concrete, using small machinery to excavate and grade sites, and applying waterproofing and restoration methods to various types of building foundations. His employer has also entrusted Mr. Browne with supervising job sites. His employer wrote that “Mr. Browne’s extensive experience in the field of foundation restoration, waterproofing, carpentry and concrete work, along with his dedication and willingness to get the job done with strong focus on quality has proven to be valuable to this company.”

[57] At about the same time that he began to distance himself from his old social scene and learn the construction trade, Mr. Browne began a relationship with H. At first, he felt that the relationship provided him with much-needed stability. Over time, however, the relationship deteriorated and became “toxic” for both parties.

[58] Then, H. became pregnant. Mr. Browne testified, and I accept, that on the night in question, he was feeling significant stress over his relationship and his impending fatherhood. He went out drinking to forget his problems. He saw an old contact and wound up buying and taking GHB. There is no dispute from B.S. that Mr. Browne was under the influence; indeed, she described him as still being heavily intoxicated when he left her apartment in the morning.

[59] H. learned about the allegations when B.S. called her to say that Mr. Browne had raped her. H. kicked Mr. Browne out of their home. He was too ashamed to reach out to his family and tell them what was happening. He wound up spending a few months living in his car. Ultimately, he and H. reconciled for the sake of the baby. After his son, A., was born, Mr. Browne and H. moved in with his mother. She described how Mr. Browne was a hands-on father, heavily involved in all aspects of his son’s care.

[60] Unfortunately, the relationship between Mr. Browne and H. soured again and they separated. They now co-parent A., who is four years old. Mr. Browne is working hard so he can provide the financial support A. needs. He spends as much time as he is able to with his son. By all accounts Mr. Browne is a loving, attentive and involved father. I have had the opportunity to observe Mr. Browne a great deal in court and it is obvious that he lights up whenever his son is mentioned.

[61] In the over four years since the incident, Mr. Browne has made several changes in his life. Mr. Browne has a new girlfriend and they have a loving and respectful relationship. She is aware of his conviction. She wrote a letter stressing Mr. Browne’s “positivity and faith”. She noted how he is motivated to move forward from this incident, and how he wants to make a positive contribution and set a good example for his son.

[62] Mr. Browne has also stopped drinking and using all substances. He has been assisted in his resolve to stay sober by the therapy he has been taking with Joanne Smith, a registered social worker. At the time of the sentencing, Mr. Browne had completed 10 one-hour sessions and had another appointment booked. He does not have benefits with his employment and has paid for his counselling privately.

[63] In addition to helping him with his substance abuse issues, Ms. Smith has worked with Mr. Browne to help him gain insight into any other underlying reasons that may have contributed to the offence. They have covered issues of consent for all sexual activity, including for any and all sexual devices, and appropriate sexual boundaries. Of importance, they have explored B.S.’s point of view and the pain and trauma he has caused her to experience.

[64] Mr. Browne took the opportunity at the end of the sentencing hearing to apologize to B.S. Having had an opportunity to see and hear from Mr. Browne I accept that he has gained insight into the harm he caused B.S. and that he is truly remorseful.

Sentencing Principles and Objectives

[65] As noted in R. v. Lacasse, 2015 SCC 64, at para. 58, the “determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision.”

[66] Section 718 of the Criminal Code provides that the “fundamental purpose of sentencing is to protect society and to contribute ... to respect for the law and the maintenance of a just, peaceful and safe society...” This is to be accomplished through the imposition of just sanctions that have one or more of several objectives enumerated in s. 718(a) to (f), including denunciation, general and specific deterrence and rehabilitation. In cases of sexual assault, there is no question that the paramount sentencing objectives are denunciation and deterrence.

[67] Section 718.1 sets out the fundamental principle of sentencing, which is that any sentence imposed “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

[68] In addition to proportionality, the Criminal Code lists a number of other principles to guide sentencing judges. The parity principle is set out in s. 718.2(b) and provides that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Given the highly individualised sentencing process, however, sentences imposed for offences of the same type will not always be identical: R. v. Mann, 2010 ONCA 342, at para. 17; Lacasse, at para. 58.

[69] The restraint principle is reflected in both ss. 718.2(d) and (e). As the Ontario Court of Appeal confirmed in R. v. Hamilton, 2004 5549 (ON CA), [2004] O.J. No. 3252 (C.A.), at para. 96, the principle of restraint means that the sentencing court should seek to impose the least intrusive sentence and the least quantum that will achieve the overall purpose of being an appropriate and just sanction: see also Sharma, at para. 23. The principle of restraint is of importance when sentencing a first offender such as Mr. Browne: R. v. Priest, 1996 1381 (ON CA), [1996] O.J. No. 3369 (C.A.), at pp. 543-44; R. v. Nassri, 2015 ONCA 316, at paras. 30-31.

[70] The various sentencing objectives and principles can often be in competition with one another in that maximizing the denunciatory or deterrent effect of the sentence may be contrary to the rehabilitation of the offender and the principle of restraint, and vice versa. When this competition takes place in the context of crimes of sexual violence, it is important not to allow concerns about the rehabilitation of the offender to take precedence; despite any positive personal characteristics of the offender, the primary sentencing objectives must be denunciation and deterrence.

[71] That said, the competing objectives and principles must be balanced in a way that respects the principle of proportionality. Indeed, the principle of proportionality explains why in some circumstances a conditional sentence may be appropriate, even for offences where denunciation and deterrence are the paramount sentencing objectives.

[72] Pursuant to s. 742.1 of the Criminal Code, with some exceptions, if a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may impose a conditional sentence if satisfied that allowing the offender to serve their sentence in the community does not endanger the safety of the community and is consistent with the fundamental purpose and principles of sentencing.

[73] Since sentencing is highly individualized, the determination of a just and appropriate sentence requires the court to assess the aggravating and mitigating factors related to both the offence and the offender. Such an assessment is also mandated by s. 718.2(a) of the Criminal Code, which states that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. I turn now to the aggravating and mitigating factors in the present case.

Aggravating and Mitigating Factors

Aggravating Factors

[74] B.S. was a friend of Mr Browne's. She trusted him. Mr. Browne betrayed that trust.

[75] The sexual assault took place in B.S.’s home. A place where B.S. should have been safe instead became the place where she was sexually violated.

[76] Mr. Browne went into B.S.’s bedside drawer to remove her vibrator. While Mr. Browne testified that he had earlier been invited by B.S. to retrieve a condom from that drawer, she did not give him permission to look through her drawer or remove her vibrator. Going into her private drawer was a further violation of the trust that B.S. had placed in Mr. Browne as her friend. Using her own vibrator in the sexual assault was particularly invasive and degrading and further impinged upon B.S.’s personal autonomy and dignity.

[77] The Crown argued that there was an aggravating element of premeditation to the sexual assault in that Mr. Browne knew that B.S. was intoxicated and reached out to offer her a ride home. However, in my view, the evidence in this case falls far short of establishing beyond a reasonable doubt that Mr. Browne planned from the outset to sexually abuse B.S. Like in the case of R. v. Ghadghoni, 2020 ONCA 24, the aggravating feature of premeditation is not made out.

[78] The Crown also submits that the offence took place when B.S. was “severely intoxicated” and “unconscious”. However, as I set out in my reasons for judgment, the evidence was unclear as to how inebriated B.S. was that night. I will not repeat my analysis here. But the present case is highly distinct from Ghadghoni, where there was overwhelming objective evidence of the complainant’s significant level of intoxication. Further, while I found that Mr. Browne inserted a vibrator into B.S., as set out in my reasons for judgment, I was unable to determine whether she was unconscious or asleep.

[79] Mr. Browne did, however, provide B.S. with GHB. Although there is no dispute that she voluntarily consumed the drug, the fact that he supplied her with illegal drugs is aggravating. That B.S. also provided Mr. Browne with cocaine does not negate the aggravating nature of his conduct.

[80] While I was unable to find that Mr. Browne caused B.S. any physical injury, B.S. suffered profound psychological harm because of the assault. She had to move out of her apartment because it was a constant reminder of the sexual assault. She tried to commit suicide after the preliminary hearing. Moreover, Mr. Browne has caused harm to those who love B.S., like her mother.

[81] B.S. has suffered financial harm because of the assault. She had moving expenses. She had to take time off from work because of the assault and her need to attend court. She requires continuing therapy to deal with the trauma, and no longer has a job with benefits. Thus, she must pay out of her own pocket for any counselling.

[82] Mr. Browne went to trial on this matter. That is not an aggravating factor, but it does mean that he is not entitled to the mitigation in sentence that he might have received had he pleaded guilty.

Mitigating Factors

[83] Mr. Browne is a first offender. He has never been in trouble with the law before. By all accounts this incident was completely out of character.

[84] Mr. Browne has been out on bail for over four years. During that time, he has complied fully with his bail conditions.

[85] Mr. Browne is a loving and involved father of his four-year-old son. He is motivated to set a good example for his son.

[86] Mr. Browne has a solid employment history. He is doing well in the construction field. He is clearly hard-working and motivated. He provides for himself as well as for his child.

[87] Mr. Browne has a supportive and loving family. This will assist him as he attempts to move forward from this incident.

[88] At the time of the incident, Mr. Browne was heavily intoxicated, having consumed alcohol, cocaine and GHB. Since the incident, he has stopped using all substances and has undergone therapy to assist him with his resolve to live a sober and drug-free life.

[89] In addition, Mr. Browne has been involved in significant therapy since the incident. The counselling has addressed any underlying factors that led to the offence. His sessions have also focused on understanding the impact of his offence on B.S. His commitment, both in time and money, shows how seriously he has taken his therapy.

[90] Further, as will be set out below, Mr. Browne agreed to pay a $5,000 restitution order that covers, among other things, moving costs and future counselling for B.S. even though those costs were not readily ascertainable.

[91] Mr. Browne has shown insight into his offence. He apologized to B.S. and acknowledged his wrongdoing and the harm he has caused. I accept that he is genuinely sorry for the harm that he has caused B.S. That said, the mitigating value of his expression of remorse is lessened by the fact that it only emerged after conviction and before sentencing: R. v. K.T., 2008 ONCA 91, [2008], 89 O.R. (3d) 99 (C.A.), at para. 44.

[92] I turn now to my analysis as to what would be a fit and proportionate sentence in this case.

Analysis

[93] As noted above, defence counsel urges me to impose a conditional sentence of 6 months to 12 months, followed by probation for one year. The Crown counters that a conditional sentence would be unfit, and instead argues that a custodial sentence of 18 months followed by two years of probation is warranted. She concedes that specific deterrence is not an objective in this case, and that having Mr. Browne serve his sentence in the community would not endanger the public. However, she argues that a conditional sentence would be inconsistent with the need to focus on denunciation and general deterrence.

[94] Both sides submitted numerous authorities in support of their respective positions. Defence counsel relied heavily on R.S. In R.S., the offender and the complainant, who were friends, had been out drinking. The complainant became intoxicated and had memory gaps. She came to with the offender on top of her, biting her abdomen and removing her tampon. She said “No” repeatedly, but the offender digitally penetrated her. As she tried to get away, he choked her. Then he pulled her to her feet, pushed her over a counter and told her he wanted to fuck her hard. The incident stopped when a neighbour came to check on the noises that sounded like someone in distress. The offender was Indigenous and there were numerous mitigating factors. Nakatsuru J. determined that a conditional sentence of two years less a day was a fit sentence.

[95] R.S. is clearly distinguishable from the present matter as the offender was Indigenous, and as a result, the “law mandates a different methodology for assessing a fit sentence”: R.S., at para. 179. Defence counsel, however, also relies on the thorough review of the caselaw set out in R.S. I will not repeat this review in these reasons. But what emerges clearly from the review is that conditional sentences, although uncommon, have sometimes been found to be fit and proportionate sentences for sexual assaults prosecuted by way of indictment: R.S., at paras. 219 to 221.

[96] The Crown relied heavily on the case of R. v. K.T., 2008 ONCA 91, [2008], 89 O.R. (3d) 99 (C.A.). There, the offender was convicted of sexual assault after a trial. He was sentenced to a conditional sentence for two years less a day, followed by a six-month probation term. The Court of Appeal substituted a jail sentence of nine months, followed by probation for six months. But for the fact that the offender had already completed 16 months of his conditional sentence, the court noted it would have imposed a sentence of between two years less a day to four years.

[97] The Crown argued that the facts in T.K. were the “most factually similar” to the present matter. However, in my view the egregious facts in T.K. are easily distinguishable. The offender was five years older than the 14-year-old victim. He gave her vodka, which she drank until she passed out. While she was unconscious, the offender had vaginal intercourse with her in the back seat of a car, in the presence of three other young people. The offender then dumped the victim, partially clad, in a snowbank, while he waited in a warm car for her brother to pick her up. He then tried to dissuade the brother from calling 911. The brother insisted on calling for help and the victim was rushed to the hospital apparently steps away from needing life support. Her blood alcohol was more than three times the legal limit. The victim was of Tamil descent; in her culture, female victims of sexual assault are seen as unclean and unworthy of marriage and the victim suffered from some degree of stigmatization in her community.

[98] The Crown also relied on R. v. J.R., 2008 ONCA 200. After attending a hotel party, the victim blacked out and woke up in the morning, alone in the hotel room and naked on the bathroom floor. A sexual assault kit found semen from three different men in her vagina. J.R. and J.D. were convicted of sexual assault. The third assailant remains unknown. The sentencing judge found that a conditional sentence would not reflect the gravity of the offence and imposed a sentence of two years on both offenders. The Court of Appeal held that given the “reprehensible” conduct of the offenders, the two-year sentence was at the low end of the appropriate range of sentence. In my view, the facts of the present matter, where Mr. Browne briefly inserted a vibrator in B.S. while she was unconscious or sleeping, while serious, are not as severe as those in J.R., which involved three different men having vaginal intercourse with the incapacitated victim before leaving her naked, helpless, and alone on a hotel bathroom floor.

[99] The Crown also relied on R. v. Bisson, unreported decision by M. McLeod J. ONCJ; conviction and sentence aff’d R. v. Bisson, 2009 CarswellOnt 9331 (SCJ); conviction aff’d 2010 ONCA 556. In Bisson, the offender received a custodial sentence of nine months after being found guilty of sexual assaulting his former girlfriend two times when she went to his place for drinks before their graduation. The Summary Conviction Appeal Court upheld the sentence and agreed with the sentencing judge’s view that for sexual assaults “involving a personal betrayal and a physical attack which took place solely for the sexual gratification of the accused” a conditional sentence would be an “exceptional sentence”.

[100] The Crown argues that Bisson is “directly on point”, as the court rejected a conditional sentence in large part because the sexual assault was in the context of a betrayal of a friendship. However, as defence counsel notes, the court did not rule out that conditional sentences could be imposed in exceptional circumstances. Moreover, in Bisson, the offender had a closer relationship with the victim than Mr. Browne did to B.S. While the details of the assaults are not entirely clear in the reasons, the judge referred to them as attacks. And Bisson sexually assaulted the victim twice.

[101] The Crown further relied on R. v. J.S., 2011 ONSC 1743. J.S. was found guilty following a jury trial of sexual assault. At a New Year’s Eve party, the victim became intoxicated and went to sleep on a couch in the basement. The offender and his girlfriend were sleeping nearby. The victim woke up in the morning and discovered evidence that suggested she had been sexually assaulted. A report from the Center for Forensic Sciences established that the offender’s saliva was on the victim’s neck and left nipple and his semen was found on her pants and on the external vaginal swabs. The sentencing judge found that a conditional sentence would not sufficiently advance the sentencing goal of denunciation and deterrence and sentenced the offender to 15 months of incarceration. However, of import, in J.S., the offender did not accept that he had done harm to the victim. In contrast, Mr. Browne has gained insight into the harm he caused B.S. and has shown remorse for his conduct. Further, in Mr. Browne’s case, the offence was fueled by alcohol and drug consumption, and he has taken active steps to address his issues and is no longer using any substances. He is also taking ongoing therapy to address any other underlying issues that led to the assault.

[102] The Crown also relied on R. v. Smith, 2015 ONSC 4304. Again, in my view the facts are distinguishable. The conduct was more severe, and the offender lacked insight into the impact of his offending conduct. On appeal, Campbell J. reversed the sentencing judge's 16-month conditional sentence and substituted a 9-month custodial sentence, noting that the sentencing judge had failed to consider denunciation because of his near-exclusive focus on rehabilitation. That said, Campbell J. also recognized that conditional sentences have been imposed in exceptional circumstances for offences of sexual assault committed upon unconscious or semi-conscious complaints: Smith, at para. 36; see for example, R. v. Killam, 1999 2489 (ON CA), [1999] O.J. No. 4289 (C.A.); R. v. Nikkanen, 1999 7339 (ON CA), [1999] O.J. No. 3822 (C.A.); R. v. Pecoskie, 2002 41523 (ON CA), [2002] O.J. No. 4056 (C.A.).

[103] As can be seen from a brief review of the various decisions relied upon, cases can often be distinguished on their facts. But what emerges again and again from the authorities presented is that the paramount sentencing objectives in cases involving sexual assault must be deterrence and denunciation. Further, it is clear that the objective of rehabilitation of the offender should not be given precedence over or even equal weight to denunciation or deterrence. On the other hand, rehabilitation of the offender is still relevant. Restraint also cannot be ignored as to do so would lead to sentences that offend the fundamental principle of proportionality. Finally, the cases make clear that conditional sentences for offences of sexual assault prosecuted by indictment, while uncommon, may in certain circumstances be consistent with the fundamental purpose and principles of sentencing.

[104] Turning to the present matter, Mr. Browne’s criminal conduct was reprehensible. He violated the sexual integrity, personal autonomy, and dignity of B.S. — a friend who trusted him — in her own home, going through her drawer when she was passed out or asleep and inserting her vibrator in her vagina or anus. The crime is serious, and the sentence imposed must clearly denounce this abhorrent conduct. Moreover, the sentence imposed must be significant enough to act as a deterrent to others who might be inclined to sexually abuse someone in similar circumstances. As expressed by Campbell J. in Smith, at para. 39:

Men must understand that women who are deeply asleep, significantly intoxicated, unconscious, or otherwise obviously incapable of consenting to any kind of sexual activity must not be opportunistically victimized as their inert sexual playmates.

[105] On the other hand, Mr. Browne is a first offender. By all accounts, the offence was out of character. He has been on bail for over four years without incident. He does not pose a danger to the community. Mr. Browne committed the offence when he was heavily intoxicated by alcohol and drugs. Since the offence, he has stopped drinking or using drugs and is committed to living a sober life. He has participated in numerous therapy sessions dealing with sexual boundaries, consent and understanding the victim’s perspective and the harm he caused. Mr. Browne is a loving, committed and involved father. He is steadily employed. If incarcerated, Mr. Browne would be unable to financially support his son. Further, he would not be able to pay the restitution order to B.S. in a timely way.

[106] This is a difficult case. Balancing the aggravating and mitigating factors and considering the relevant sentencing principles and objectives, I have determined that a conditional sentence is consistent with the fundamental purpose and principles of sentencing. However, in my view the six- to 12-month conditional sentence proposed by the defence does not give sufficient voice to the paramount objectives of denunciation and general deterrence. As noted in R. v. Proulx, 2000 SCC 5, at para. 102, a lengthier conditional sentence can add to the punitive aspect of the sentence. Thus, to ensure that the sentence properly emphasises the objectives of denunciation and deterrence, I am sentencing Mr. Browne to a conditional sentence of two years less a day.

[107] Further, as noted in Proulx, at paras. 102 and 107, conditional sentences can provide significant denunciation and deterrence when onerous conditions are imposed. To add to the punitive nature of the sentence, I am ordering that the house arrest component apply for the duration of the sentence: R. v. K.K., 2020 ONSC 7198, at para. 34.

[108] And while specific deterrence is not a significant objective in this case, it is also important to note that if Mr. Browne were to violate the terms of his conditional sentence, there is a presumption that he would serve the remainder of his sentence in jail: Proulx, at para. 39.

[109] Moreover, since Mr. Browne will be able to continue working, he will be able to pay the restitution order more quickly than if he were incarcerated. Paying the restitution will advance the sentencing objectives of making reparations to B.S. and promoting a sense of responsibility in Mr. Browne and an acknowledgment of the harm done to B.S.: Proulx, at para. 112.

[110] Finally, I note that if I were to sentence Mr. Browne to jail, he would be stepping into custody during a pandemic, when the Delta variant and other variants such as Mu have added additional uncertainty and concern, even to those who are vaccinated. There is no doubt that the pandemic is a factor to be considered when deciding what a fit and proportionate sentence would be: R. v. J.S., 2020 ONSC 1710, at para. 19; R. v. Rajan, 2020 ONSC 2118, at paras. 55 and 56; R. v. T.L., 2020 ONSC 1885, at para. 36; R. v. Kandhai, 2020 ONSC 1611, at para. 7; R. v. Kazman, 2020 ONCA 251, at paras. 17 and 18; R. v. Hearns, 2020 ONSC 2365, at paras. 10 and 11. At the same time, concerns regarding the pandemic must not reduce a sentence to the point that it becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender: R. v. Morgan, 2020 ONCA 279, at paras. 10-11; R. v. Studd, 2020 ONSC 2810, at para. 42.

[111] Here, I determined that a conditional sentence would be appropriate without considering the impact of the pandemic. In my view, however, the potential risks to Mr. Browne if he were to be incarcerated during the pandemic is a factor that adds further weight to the conclusion that a conditional sentence would be consistent with the purpose and principles of sentencing.

[112] Following Mr. Browne’s conditional sentence, I am placing him on probation for one year.

[113] The terms of the conditional sentence are attached to these reasons as Appendix “A”. The terms of the probation are attached as Appendix “B”. At this point I will simply note four things.

[114] First, both the conditional sentence and the probation order have a condition prohibiting Mr. Browne from having any contact or communication with B.S. This is a term that B.S. sought, and in my view, it is appropriate and reasonable.

[115] Second, I have included a term in the conditional sentence that Mr. Browne take counselling as directed by his conditional sentence supervisor. However, I have not included the same term in his probation order. In my view, at that stage Mr. Browne will have had sufficient counselling to further the objective of rehabilitation.

[116] Third, the probation reporting condition ends when Mr. Browne satisfies the probation officer that he has paid the full restitution order.

[117] Fourth, given the issues with respect to the PSR that I have set out in footnote 2, I strongly recommend that Kasia Szczuka, the author of the report, not be assigned to Mr. Browne’s case.

[118] I turn now to address B.S.’s request for restitution.

Section 738(1)(b) Order

[119] Pursuant to s. 738(1)(b) of the Criminal Code, a court is empowered to pay restitution to those who have suffered “psychological harm” from an offence, in an amount “not exceeding all pecuniary damages incurred as a result of the harm, including any loss of income or support, if the amount is readily ascertainable.”

[120] B.S. submitted a claim for restitution in the amount of $11,023.77. The breakdown of the claim is as follows:

1. Uber to hospital at various times, $48.83;

2. Moving costs, $1,000;

3. Flights to and from Australia, $2,518.12;

4. Working holiday visa for Australia; $456.82; and

5. Lost wages from January to March 2018 and costs from the first day of the preliminary hearing, $7,000.

[121] There is no dispute that B.S. should be compensated for the Uber rides to the hospital. The amounts are readily ascertainable and resulted from Mr. Browne’s conduct. There is also no dispute that B.S. should be compensated $128 for lost wages for the time she had to take off work to testify at the preliminary hearing.[^3]

[122] B.S. does not have any receipts to support her request for moving costs and thus this claim is arguably not readily ascertainable. But Mr. Browne agrees that he should bear the cost of the move, as B.S. felt she could not remain in the home where she had been violated. Further, he agrees that although B.S. does not have a receipt, the $1,000 she claims for moving expenses is reasonable.

[123] However, the claims for the costs of B.S.’s trip to Australia, including her flights, her working visa and lost income from January to March 2018 are far more contentious. As defence counsel submitted, there could be many other reasons that B.S. might have decided to take a trip to Australia. To determine whether and to what extent the Australian trip was related to Mr. Browne’s criminal conduct, numerous factual issues would have to be explored through cross-examination. This, she says, is not the type of restitution contemplated by s. 738(1). I agree. Given the numerous factual issues surrounding B.S.’s trip to Australia, the costs associated with trip are not readily ascertainable. As a result, I decline to order restitution for the costs associated with the trip.

[124] Thus, of the amounts B.S. specifically claimed, I have determined that she is entitled to restitution in the amount of $1,176.83.

[125] That said, I raised the issue of the costs of B.S.’s therapy. I was unsure why B.S. did not make a claim for therapy costs. The Crown advised that B.S.’s initial therapy sessions were covered by her then-employer. The Crown further advised that B.S. wishes to continue therapy, but she no longer has benefits through employment, and she does not have the money to pay for counselling. Beyond that, the Crown could provide no information about the costs for B.S.’s therapy. Thus, the costs are not readily ascertainable.

[126] That said, it seems reasonable that B.S. would wish to continue with therapy to help her deal with the trauma associated with the sexual assault. Further, although the future costs of B.S.’s therapy are not readily ascertainable, Mr. Browne agrees that he should pay a further sum to B.S. to cover her ongoing therapy. And given that Mr. Browne will be able to continue to work and make money because he is going to be serving his sentence in the community, he will be in a position to pay for B.S.’s therapy in a timely way. Thus, I have determined that B.S. should receive additional restitution in the amount of $3,823.17 to cover the costs of future therapy.

[127] In conclusion, I order Mr. Browne to pay restitution to B.S. in the amount of $5,000. Mr. Browne must make a minimum payment of $125 a month, on the 15^th of each month, starting on October 15, 2021. Mr. Browne may of course make larger payments if he is able and pay the restitution order more quickly.[^4] Mr. Brown’s probation reporting condition will end once he has satisfied the full restitution order.

Ancillary Orders

DNA Order

[128] Sexual assault is a primary designated offence. As a result, pursuant to s. 487.051(1) of the Criminal Code, I make an order authorizing the taking of samples from Mr. Browne for the purpose of DNA testing.

Weapons Prohibition Order

[129] A weapons prohibition pursuant to s. 109 of the Criminal Code also applies. Mr. Browne is accordingly prohibited from possessing any firearm, other than a prohibited firearm or restricted firearm, and any cross-bow, restricted weapon, ammunition and explosive substance for a period of 10 years: s. 109(2)(a)(ii). He is further prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life: s. 109(2)(b).

SOIRA Order

[130] Further, pursuant to ss. 490.012(1) and 490.013(2)(b) of the Criminal Code, Mr. Browne is required to comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10, for 20 years.

Victim Surcharge

[131] Given the date of the offence, the Victim Surcharge set out in s. 737(1) of the Criminal Code does not apply: R. v. Boudreault, 2018 SCC 58.

Justice Heather McArthur

Released: September 17, 2021

Appendix “A”- Terms of Conditional Sentence for Mark Browne

Statutory conditions:

1. Keep the peace and be of good behaviour.

2. Appear before the court when required to do so.

3. Report as the Court directs (see Reporting in the Additional Conditions) in person to a supervisor and thereafter report when required by the supervisor and in a manner directed by the supervisor.

4. Remain in Ontario unless you have prior written permission from the Court or the supervisor to leave the province.

5. Notify the court or supervisor in advance of any change of name or address and promptly notify the court or supervisor of any change in employment or occupation.

Additional Terms

6. Report in person to a supervisor within two working days and after that, at all times and places as directed by the supervisor or any person authorized by a supervisor to assist in your supervision.

7. Remain in your residence, or on the property of your residence, at all times;

EXCEPT

i. for three hours each week, to be set in advance with your conditional sentence supervisor, in order to acquire the necessities of life.

ii. while in the company of your child, as approved of by your conditional sentence supervisor.

iii. for any medical emergencies involving you or any member of your immediate family (spouse, child, parent, sibling).

iv. for going directly to and from or being at school, employment, court attendances, religious services and legal or medical or dental appointments, or for visiting or picking up his son.

v. for going directly to or from and being at assessment, treatment or counselling sessions.

vi. you will confirm your schedule in advance with your supervisor setting out the times for these activities.

vii. with the prior written approval of the supervisor. The written approval is to be carried with you during these times.

viii. for carrying out any legal obligations regarding compliance with this conditional sentence order.

8. This home confinement condition will be in effect for the full duration of the sentence

9. Do not contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means, with: B.S.

10. Do not be within 100 meters of any place where you know B.S. to live, work, go to school, frequent or any place you know B.S. to be EXCEPT for required court attendances.

11. Do not possess any weapon(s) as defined by the Criminal Code (for example: a BB gun, pellet gun, firearm, imitation firearm, cross-bow, prohibited or restricted weapon or device, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person)

12. Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the supervisor and complete them to the satisfaction of the supervisor for the following:

i. For substance abuse; and

ii. appropriate sexual boundaries.

13. Make restitution of $ 5000 to B.S., in installments of not less than $125 per month, starting on October 15, 2021 and after that on the 15^th day of each month, as required pursuant to the order made under s. 738(1)(b) of the Criminal Code.

14. All restitution payments are to be made by cash or a certified cheque or money order payable to the Minister of Finance through any criminal court office for payment to the victim /aggrieved party. The payment should be mailed so that the complainant does not need to attend in person.

15. If you are unable to make any restitution payment for any reason, you must tell your conditional sentence supervisor in advance.

Appendix “B”- Probation Terms of for Mark Browne

Statutory conditions:

1. Keep the peace and be of good behaviour.

2. Appear before the court when required to do so by the court.

3. Notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or supervisor of any change in employment or occupation.

Additional Terms

4. Report by telephone to a probation officer within two working days and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision.

5. Your reporting condition ends when you have satisfied your probation officer that you have made restitution to B.S. in the amount of $5,000, as required by the order made pursuant to s. 738(1)(b) of the Criminal Code.

6. Do not contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means, with: B.S.

7. Do not be within 100 meters of any place where you know B.S. to live, work, go to school, frequent or any place you know B.S. to be EXCEPT for required court attendances.

8. Do not possess any weapon(s) as defined by the Criminal Code (for example: a BB gun, pellet gun, firearm, imitation firearm, cross-bow, prohibited or restricted weapon or device, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person)

9. Continue making restitution payments to B.S. of not less than $125 per month, on the 15^th of each month, unless you have satisfied your probation officer that you have paid the full $5,000 restitution order, as required by the order made pursuant to s. 738(1)(b) of the Criminal Code.

10. All restitution payments are to be made by cash or a certified cheque or money order payable to the Minister of Finance through any criminal court office for payment to the victim /aggrieved party. The payments should be mailed so that B.S. does not have to attend in person.

11. If you are unable to make any restitution payment for any reason, you must your probation officer in advance.

COURT FILE NO.: CR-19-10000048-0000

DATE: 20210917

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

MARK BROWNE

REASONS FOR SENTENCE

Justice Heather McArthur

Released: September 17, 2021

[^1]: Mr. Brown’s sentencing was delayed for several reasons. First, counsel and the court had busy schedules and it was difficult to find time where all parties were available. Second, there were concerns with respect to the PSR and the author of the report had to attend court for the purposes of cross-examination. Third, it was only after hearing submissions about B.S.’s financial losses that I asked the Crown if B.S. wished to claim for restitution pursuant to s. 738(1) of the Criminal Code. And fourth, the sentencing was delayed as the parties were awaiting the decision of Nakatsuru J. with respect to the constitutionality of s. 742.1(f)(iii) of the Criminal Code, which prohibits conditional sentences for sexual assault offences prosecuted by way of indictment.

[^2]: Since Mr. Browne was a first offender, all parties thought that it made sense to have a PSR prepared. The report did not arrive until the day before the scheduled hearing. To say that the contents of the report took all parties by surprise is an understatement. The information set out in the PSR could not be reconciled with the other materials filed.

Given the disconnect between the PSR and the other sources of information, all parties wanted to hear from the author of the PSR, Kasia Szczuka. Crown counsel also asked Ms. Szczuka to forward her draft notes that she had relied upon in writing the PSR. Because the hearing was delayed for several reasons, the draft notes were forwarded a few months before she testified.

Following Ms. Szczuka’s testimony, the Crown expressed her “grave concerns” about how the report was drafted. Crown counsel prepared a redacted PSR that took out any inappropriate opinion or information contradicted by Ms. Szczuka’s underlying draft notes. The redacted PSR was filed as Exhibit 1 on the sentencing. After the improper information was taken out of the PSR, little remained, rendering it almost useless.

I share the Crown’s concerns regarding the contents of the PSR and the way it was prepared. I do not believe that there is utility in outlining all of the issues with the report. I will address three.

First, Ms. Szczuka repeatedly opined that Mr. Browne lacked insight or remorse. She also expressed her view that he should receive a sentence of imprisonment. This went well beyond the proper ambit of a PSR and was inappropriate. Probation officers should not express an opinion about the type of sentence that a Court should impose. It is well recognized that to do so would usurp the function of the Court. The purpose of the report is to help the judge arrive at a sentence that both reflects the relevant circumstances of the offender and accords with the principles and objectives of sentencing. Its goal is not to serve as a forum for the author's personal views of the offender's role in the offences: R. v. Green, [2006 ONCJ 364](https://www.canlii.org/en/on/oncj/doc/2006/2006oncj364/2006oncj364.html), at paras. [12-16](https://www.canlii.org/en/on/oncj/doc/2006/2006oncj364/2006oncj364.html); R. v. McPherson, [2013 ONSC 1635](https://www.minicounsel.ca/scj/2013/1635), at para. [12](https://www.minicounsel.ca/scj/2013/1635); R. v. Chaaban, [2011 ABPC 310](https://www.canlii.org/en/ab/abpc/doc/2011/2011abpc310/2011abpc310.html), at para. [36](https://www.canlii.org/en/ab/abpc/doc/2011/2011abpc310/2011abpc310.html)-; R. v. Morgan, [2018 ONSC 2007](https://www.canlii.org/en/on/onsc/doc/2018/2018onsc2007/2018onsc2007.html), at para. [13](https://www.canlii.org/en/on/onsc/doc/2018/2018onsc2007/2018onsc2007.html).

Second, Ms. Szczuka’s comments that Mr. Browne lacked insight were not only inappropriate, they were unfair and based on a profound misapprehension of the facts. Ms. Szczuka said that she did not recall receiving the memo prepared by Crown counsel that set out my findings of fact. Instead, she said that she obtained a copy of the synopsis from an unknown police officer. As she initially made clear, she believed that Mr. Browne had done exactly what the synopsis said he did. Although she later tried to resile from her evidence on this point, I find that she proceeded on the incorrect assumption that the allegations set out in the synopsis had been established beyond a reasonable doubt.

Third, I have concerns about the reliability and credibility of the information contained in the PSR. I will give but one example. Ms. Szczuka noted in the PSR that Mr. Browne had “limited access” to his son. That contrasted the information provided by all other sources. It also contradicted the original draft notes she had made. The draft notes clearly noted that Mr. Browne had access to his son.

Ms. Szczuka, however, testified that her draft notes actually said that Mr. Browne had limited access to his son. She explained that rather than using the word limited, she used a “checkmark” as a symbol to represent the word limited. She also referred to the mark as an “L”, or as a backwards “L”. Her evidence on this point evolved, varied and was confusing and unclear.

It was particularly unclear because the draft notes she had forwarded a few months before she testified, and that had been provided to me before her testimony, did not have any mark beside the words “access to son”. Ms. Szczuka was then asked to hold her copy up to the screen. And it became clear that at some point after forwarding the notes, she had added the mark. Although she initially denied that she had altered her draft notes (and got quite indignant about questions in this area) she ultimately admitted that she had changed her original notes after she had sent them to the Crown but before she testified.

There were numerous other issues with how Ms. Szczuka drafted the report. As I said, I do not see the utility of me going through them all. They were sufficient for the Crown to express her concerns about the PSR and for me to share those concerns. At the end of the day, because of all of the issues, I give the PSR no weight. Moreover, the issues surrounding how Ms. Szczuka dealt with Mr. Browne, I strongly recommend that she not be assigned as his probation officer.

[^3]: B.S. is not seeking compensation for lost wages from when she testified at the trial.

[^4]: I understand that counsel for Mr. Browne has $1,400 in trust that will be provided towards payment of the restitution order (if it has not already been forwarded).