Court File and Parties

COURT FILE NO.: CR-18-70000387-0000 DATE: 20220309 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – MARK HOLLAND

Counsel: S. Duffey and K. Matthews, for the Crown R. Litkowski and R. Barrs, for Mr. Holland

HEARD: October 29, November 4, 2021, January 31, 2022

REASONS FOR SENTENCE

SCHRECK J.:

[1] In 2008, Mark Holland sexually assaulted a young woman at a nightclub by penetrating her vagina with his finger. At the time, he was a successful nightclub promoter and had used his position to lure the victim to a secluded area of the club, ostensibly as part of a tour. Mr. Holland was not charged until 2016 and was convicted on February 7, 2020. His sentencing was then significantly delayed because of the COVID-19 pandemic.

[2] Mr. Holland is now 45 years old. He has no criminal record. The Crown submits that the appropriate sentence in this case is 16 months imprisonment and two years of probation, less credit for pre-sentence custody, which the Crown submits is the equivalent of 30 days. Counsel for Mr. Holland submits that he should be given credit of over seven months for presentence custody and time spent subject to restrictive bail conditions and should now receive a sentence of “time served.” In the alternative, counsel submits that a conditional sentence would be appropriate.

[3] A conditional sentence is statutorily unavailable in this case by virtue of s. 742.1(f)(iii) of the Criminal Code, which precludes such sentences in sexual assault cases prosecuted by way of indictment. Counsel for Mr. Holland brought an application to have the section declared to be inconsistent with ss. 7 and 15 of the Canadian Charter of Rights and Freedoms and therefore of no force or effect, as other judges of this court have concluded. The Crown takes the position that those decisions are plainly wrong and that the section is constitutional.

[4] For the reasons that follow, I have concluded that s. 742.1(f)(iii) infringes ss. 7 and 15 of the Charter and that the infringements are not justified by s. 1 of the Charter. Mr. Holland is sentenced a term of imprisonment for eight months, to be served in the community subject to a conditional sentence order (“CSO”) on terms outlined later in these reasons.

I. FACTS

A. The Offence

[5] The facts of the offence are set out in detail in my reasons for judgment, reported as R. v. Holland, 2020 ONSC 846. In 2008, Mr. Holland was a very successful nightclub promoter. On February 7, 2008, he was a promoting a night club called the Century Room, which had a “VIP” area which patrons could enter by invitation only. N.K., who was at the time in her mid-20s, attended the club and was invited into the “VIP” area, where she consumed alcohol to the point of intoxication. At some point, Mr. Holland invited N.K. for a “VIP tour” of the back of the nightclub. He brought her to an isolated area, where he grabbed her and began to kiss her neck. He then pulled down her pants and penetrated her vagina from behind with what she believed was either his penis or a finger. N.K. immediately said something like “stop” or “no” and he stopped. N.K. estimated that the length of time between when she was first grabbed and when the penetration stopped was about 10 to 15 seconds.

[6] N.K. left the club immediately after being assaulted. She told some friends what had happened and attended a hospital, but did not report the assault to the police. A day after the sexual assault, Mr. Holland sent N.K. a text message in which he said, “I’m sorry, you just looked so hot tonight.”

[7] In 2016, N.K. became aware of a police press release indicating that Mr. Holland had been charged with an unrelated sexual assault, which prompted her to report her own sexual assault to the police. [2]

B. Victim Impact

[8] N.K. prepared a victim impact statement (“VIS”) in which she described the significant effects the sexual assault had on her. In addition to feelings of self-loathing because she blamed herself for what happened to her, the sexual assault left N.K. feeling anxious and depressed to the point that she began to engage in self-harm. She described being constantly fearful and suffered from panic attacks and night terrors. She was eventually diagnosed with post-traumatic stress disorder (“PTSD”). She has received treatment for these issues, but some of the effects of the PTSD continue to this day. Despite this, and to her credit, N.K. was able to obtain a doctoral degree in her chosen field and has been professionally successful.

C. The Offender

[9] A presentence report (“PSR”) was prepared with respect to this matter. It indicates that Mr. Holland was 31 years old at the time of the offence and is now 45. He was born and grew up in Toronto and has a supportive family. Mr. Holland entered the work force after completing high school and has a steady employment history, mostly as a self-employed promoter of or consultant to night clubs and restaurants. The charge in this matter, as well as other charges he faced, have had a significant negative impact on his employment.

[10] Mr. Holland has no history of drug or alcohol abuse, but advised the author of the PSR that he stopped consuming alcohol about three years ago.

[11] Mr. Holland advised the author of the PSR that he is innocent of the charge he was convicted of. While he did not say anything to the contrary during the sentencing hearing, when given an opportunity to address the court he indicated that going through the court process has led him to learn a lot about himself and that he has changed as a result.

[12] Mr. Holland was arrested in relation to this charge on April 14, 2016. He had been charged with an unrelated sexual assault a month before that. He was released on a recognizance that included a curfew between 9:00 p.m. and 8:00 a.m. The effect of the charges on his reputation and the existence of the curfew effectively put him out of business.

[13] On May 28, 2016, Mr. Holland applied for a bail review and the curfew was removed. At some point, Mr. Holland went to the United States in violation of his bail conditions to pursue a business opportunity. He returned in May 2017, at which time he spent 10 days in custody before being released, once again with a curfew, this time between 7:00 p.m. and 8:00 a.m. In July 2017, Mr. Holland’s surety withdrew and he spent another seven days in custody before being released. In July 2018, the curfew was varied to be between 12:00 a.m. and 6:00 a.m.

[14] The trial in this matter took place in January 2020. The sentencing has been repeatedly delayed because of the COVID-19 pandemic.

II. ANALYSIS

A. Overview of Sentencing Principles

[15] 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. As the Ontario Court of Appeal recently stated in R. v. Morris, 2021 ONCA 680, at para. 58, “[t]he individualization of the sentencing process requires sentencing judges to prioritize and blend the different objectives of sentencing so as to properly reflect the seriousness of the offence and the responsibility of the offender.” While there will rarely be only one possible fit sentence, s. 718.1 of the Code provides that any sentence that is ultimately imposed “must be proportionate to the gravity of the offence and the degree of responsibility of the offender”: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37; R. v. Friesen, 2020 SCC 9, 391 C.C.C. (3d) 309, at para. 30; R. v. Parranto, 2021 SCC 46, at para. 10.

B. Aggravating Factors

[16] In her VIS, N.K. described lasting and significant harm resulting from the sexual assault. On behalf of Mr. Holland, Mr. Barrs points out that nothing in the VIS has been corroborated. However, he made no request to cross-examine N.K., nor did he attempt to establish that there was air of reality to the suggestion that the information in the VIS was disputable: R. v. W.(V.) (2008), 2008 ONCA 55, 89 O.R. (3d) 323 (C.A.), at paras. 25-35. Furthermore, the effects N.K. describes are consistent with what one would expect from this type of offence. I therefore accept that N.K. was impacted by the sexual assault in the way she describes in the VIS and that this is an aggravating factor: R. v. G.(A.), 2015 ONCA 159, 124 O.R. (3d) 758, at para. 73.

[17] That said, I have not considered N.K.’s description of the impact of having to testify at Mr. Holland’s trial. While I do not doubt that this was a very difficult experience, Mr. Holland had a right to a trial and the fact that he exercised that right cannot be held against him in any way: R. v. Ellacott, 2017 ONCA 681, at para. 22.

[18] Another aggravating factor is that the sexual assault appears to have been planned to some degree in that Mr. Holland took steps to isolate N.K. by inviting her on a “VIP tour.”

[19] The fact that N.K. was intoxicated and for that reason vulnerable is also an aggravating factor. However, the extent to which her intoxication was apparent to Mr. Holland is unknown. There is no suggestion that she was unconscious or incapacitated.

[20] It is also aggravating that the sexual assault included penetration of the victim’s vagina. N.K. was unable to say whether she had been penetrated by Mr. Holland’s finger or his penis, and the parties accept that Mr. Holland should be sentenced on the basis that it was his finger. Penile penetration, particularly where no condom is used, is more aggravating than digital penetration because of the risk of pregnancy or a sexually transmitted disease: Friesen, at para. 139. However, I note that in this case, N.K. did not know if Mr. Holland had used his penis and as a result underwent the stress of not knowing if she had contracted a sexually transmitted disease until she received the results of testing she underwent for that purpose.

[21] The Crown submits that it is an aggravating factor that Mr. Holland “used his status” as a club promoter in committing the offence. I do not agree. Mr. Holland was not in a position of trust in relation to N.K., nor did he have any authority over her.

[22] The fact that Mr. Holland has not accepted responsibility for the offence and has expressed no remorse is not an aggravating factor: R. v. Shah, 2017 ONCA 872, at para. 8; R. v. Valentini (1999), 132 C.C.C. (3d) 262 (Ont. C.A.), at p. 296.

C. Mitigating Factors

[23] The most significant mitigating factor in this case is that Mr. Holland has no criminal record. Except for this offence, he has been a law-abiding and productive member of society. I have obviously not considered other sexual assault charges he was not convicted of. He was and remains presumed innocent of those.

[24] It is also mitigating that Mr. Holland enjoys the support of his family.

[25] Another relevant factor is the collateral consequences of the conviction in relation to Mr. Holland’s career: C.C. Ruby et al., Sentencing, 10th ed. (Toronto: LexisNexis Canada Inc., 2020), at §5.278. As noted earlier, he was a highly successful club promoter who has now effectively been put out of business. While this is not, strictly speaking, a mitigating factor, it is nonetheless a factor that must be considered: R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 48.

[26] As noted earlier, Mr. Holland was convicted in February 2020 and is being sentenced over two years later. The delay is not the fault of either party. However, it left Mr. Holland with uncertainty about his future for a significant period of time, which is a mitigating circumstance: R. v. Hartling, 2020 ONCA 243, 150 O.R. (3d) 224, at para. 118; R. v. Bosley (1992), 18 C.R. (4th) 347 (Ont. C.A.), at p. 358.

D. The Appropriate Range

[27] Both parties have provided me with a number of sentencing cases which they submit support their respective positions with respect to the appropriate range of sentence to be applied in this case. As was recently explained in Parranto, at paras. 16-18, there is a distinction to be drawn between “formal” or “established” ranges expressly created by an appellate court for certain categories of offences and “informal” or “discerned” ranges based on a review of similar cases. In this case, counsel have provided me with trial and appellate decisions in an attempt to establish the existence of the latter type of range.

[28] Crown counsel submits that the appropriate sentence in this case is imprisonment for 16 months and provided a number of authorities in support of her position. Some of these involved situations where the accused was in a position of trust or authority in relation to the complainant: R. v. M.D., 2018 ONSC 2792, at para. 30; R. v. M.R., 2018 ONSC 583, at para. 20. Others involved prolonged sexual assaults where the accused persisted despite being told by the victim to stop: R. v. Garrett, 2014 ONCA 734, at para. 19; R. v. Walsh, 2019 ONSC 1286, at para. 44; R. v. Cepic, 2018 ONSC 3346, at para. 27. Neither of these aggravating factors are present in this case, so the sentences in those cases, which range from nine months in M.D. to two years less a day in Cepic, are of limited assistance. The Crown also relied on R. v. Scinocco, 2017 ONCJ 359, in which a 12-month sentence was imposed for an attempt to penetrate the vagina of a sleeping victim.

[29] Counsel for Mr. Holland submits that a six-month sentence is appropriate, but that credit for presentence custody and time spent on bail should be deducted from this. I will deal with those issues later in these reasons. Counsel for Mr. Holland also submitted a number of cases, all of which were sexual assaults involving relatively brief penetration: R. v. Giraldo-Vargas, 2016 ONSC 8117; R. v. McKenzie, 2017 ONCA 128, aff’g 2015 ONSC 5671; R. v. Giovanelli, 2017 ONCJ 408; M.D. The sentences in those cases range from 90 days in Giovanelli, (brief digital penetration of the victim’s vagina), to nine months in McKenzie (brief anal penetration with the accused’s penis) and M.D. (brief digital penetration and cunnilingus).

[30] I have considered all of these cases. Not surprisingly, none are factually identical to this case. Many are trial decisions which are not binding on me, and the sentences in some of those are more or less than I would have imposed had I been the sentencing judge. In my view, the appropriate “discerned range” for offences such as this involving relatively brief digital penetration is eight to 12 months.

E. The Appropriate Length of Sentence

[31] Having concluded that the appropriate range is one of eight to 12 months, I must consider where this case falls within that range. Having considered the aggravating and mitigating factors outlined earlier, including the extraordinary delay between conviction and sentencing, it is my view that the appropriate sentence before any credit is given is one of imprisonment for nine and a half months.

[32] Mr. Holland spent a total of 19 days in presentence custody. Counsel agree that in accordance with R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, Mr. Holland is entitled to credit of approximately one month.

[33] Mr. Holland also seeks substantial credit for time spent subject to restrictive bail conditions. As outlined earlier, his original bail included a curfew until it was removed after six weeks following a bail review. I see no reason why a curfew was necessary in relation to this offence. However, Mr. Holland was also on bail for another sexual assault, and I do not know if the nature of those allegations made a curfew appropriate. Nonetheless, I am prepared to give Mr. Holland a credit of two weeks for this period.

[34] Mr. Holland was also subject to a curfew beginning in 2017. However, that was a direct result of his decision to leave the country in violation of his bail conditions. The restrictive bail conditions he was subject to after that were a direct result of his own conduct and I decline to give him any credit for this.

[35] Having concluded that a sentence of eight months is appropriate, I turn now to the issue of whether it would be appropriate to permit Mr. Holland to serve that sentence in the community pursuant to a CSO, which also requires me to consider the constitutionality of the statutory bar to such a sentence.

F. The Constitutionality of Section 742.1(f)(iii) of the Criminal Code

(i) Previous Decisions

[36] Section 742.1(f)(iii) of the Criminal Code states that a conditional sentence is not available in cases of sexual assault prosecuted by way of indictment. In R. v. Sharma, 2020 ONCA 478, 152 O.R. (3d) 209, leave to appeal granted [2020] S.C.C.A. No. 311, a majority of the Ontario Court of Appeal, per Feldman J.A., concluded that s. 742.1(c), which precludes conditional sentences for offences punishable by 14 years or more, and s. 742(e)(ii), which precludes conditional sentences for certain drug offences, were inconsistent with ss. 7 and 15 of the Canadian Charter of Rights and Freedoms and declared them to be of no force or effect pursuant to s. 52(1) of the Constitution Act, 1982. [3]

[37] In R. v. R.S., 2021 ONSC 2263, Nakatsuru J. of this court concluded that the reasoning in Sharma is equally applicable to s. 742.1(f)(iii) and accordingly declared that section to be of no force or effect. The decision in R.S., which is currently under appeal, has been followed in three other decisions of this court: R. v. Browne, 2021 ONSC 6097; R. v. P.L., 2021 ONSC 6291 and R. v. Pitchenese, 2022 ONSC 40.

[38] While R.S. is not binding on me, I should respect the declaration of unconstitutionality and treat s. 742.1(f)(iii) as having no force or effect unless the Crown can establish that it is “plainly the result of a wrong decision”: R. v. Sullivan, 2020 ONCA 333, 151 O.R. (3d) 353, at para. 38. The Crown seeks to do so in this case by arguing that Nakatsuru J.’s analysis in R.S. was based on an erroneous understanding of the legislative purpose behind the impugned provision. According to the Crown, this error led to the erroneous conclusion that the impugned section violates s. 7 of the Charter. While Crown counsel does not take issue with Nakatsuru J.’s conclusion that s. 742.1(f)(iii) violates s. 15 of the Charter, she submits that the same misunderstanding of the section’s legislative purpose led him to wrongly conclude that the infringement was not saved by s. 1 of the Charter.

(ii) Section 7 of the Charter

(a) R. v. Sharma

[39] Sharma was a case involving the sentencing of an Indigenous woman for importing cocaine. A conditional sentence was not available in that case because of s. 742.1(c) of the Criminal Code, which makes conditional sentences unavailable for offences prosecuted by way indictment and punishable by imprisonment for 14 years or life, and also s. 742.1(e)(ii), which makes them unavailable 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.

[40] Ms. Sharma submitted that both of the provisions that precluded a conditional sentence for her were inconsistent with s. 7 of the Charter on the basis that they were arbitrary and overbroad. This submission required an analysis of the relationship between the law’s effects and its objectives and therefore required the Court of Appeal to identify the legislative objective of both provisions.

[41] Both s. 742.1(c) and s. 742.1(e)(ii) were created as the result of amendments to the Criminal Code created by the Safe Streets and Communities Act, S.C. 2012, c. 1 (“SSCA”). In paragraphs 142 to 148 of Sharma, Feldman J.A. examined the legislative history of the SSCA and concluded that the legislative objective of the impugned provisions was “to maintain the integrity of the justice system by ensuring that offenders who commit serious offences receive prison sentences” (at para. 148).

[42] After identifying the legislative objective, Feldman J.A. rejected the submission that the impugned provisions were arbitrary. She agreed, however, that they were overbroad because they treated the maximum penalty for an offence as a proxy for its seriousness and thereby made conditional sentences unavailable even in cases where the seriousness of the offence was such that a custodial sentence was not required. On this basis, Feldman J.A. concluded that the provisions infringed s. 7 of the Charter and that the infringement was not saved by s. 1: Sharma, at paras. 156-174.

(c) R. v. R.S. and R. v. Anderson

[43] In R.S., Nakatsuru J. applied the analysis in Sharma to s. 742.1(f)(iii) because in his view, that provision had the same legislative objective as the provisions at issue in Sharma, namely, “to maintain the integrity of the justice system by ensuring that offenders who commit serious offences receive prison sentences”: R.S., at para. 61. On that basis, he distinguished R. v. Anderson, 2016 ONSC 7501, a pre-Sharma decision in which the exclusion of conditional sentences for sexual assault in an earlier version of s. 742.1 was found to be constitutional.

[44] The Crown submits that Anderson should still be followed notwithstanding the decision in Sharma. Anderson predates the SSCA and the s. 7 overbreadth challenge in that case was to what was then s. 742.1, which barred conditional sentences for any offender who had been convicted of a “serious personal injury offence” (“SPIO”) as defined in s. 752 of the Code. Section 752 is found in Part XXIV of the Criminal Code, which is entitled “Dangerous Offenders and Long-Term Offenders.” It defines a “serious personal injury offence” as any offence punishable by 10 years of more that involves the use or attempted use of violence against another person, conduct endangering the life or safety of another person or likely to inflict severe psychological damage, and sexual assault offences created by ss. 271, 272 and 273.

[45] The version of s. 742.1 at issue in Anderson was created by An Act to amend the Criminal Code (conditional Sentence of Imprisonment), S.C. 2007, c. 12 (“Bill C-9”), which came into force on November 30, 2007. In considering the overbreadth argument in Anderson, McWatt J. (as she then was) examined the legislative history of Bill C-9 and concluded that the objective of the exclusion of conditional sentences for SPIOs was to “bar the use of conditional sentences for serious offenders in order to emphasize denunciation and deterrence and to contribute to both respect for the law and public safety and security”: Anderson, at para. 32. McWatt J. concluded that the exclusion of SPIOs was appropriately tailored to this objective and that the section was therefore not overbroad.

[46] As noted earlier, Nakatsuru J. in R.S. distinguished Anderson. He did so on two bases. First, in his view, the legislative objective of s. 742.1(f)(iii) was the same as that of the impugned provisions in Sharma and different than the objective of s. 742.1 as it existed when Anderson was decided. He stated (at para. 62):

This difference in characterizing the purpose of the provisions has a significant effect on the overbreadth analysis. In my view, it is not a matter of semantics. If the primary purpose is to emphasize denunciation and deterrence in sentencing as found to be the case in Anderson and Mason [2017 ONSC 15], then it is hard to envision a sentencing of an offender for sexual assault prosecuted by indictment that bears no rational connection to that purpose. Such offences would always call for there to be an emphasis on denunciation and deterrence, except for those rare and exceptional cases where simple probation might be appropriate. However, as found in Sharma, if the purpose is not so limited, then the overbreadth analysis has more substance. Since the purpose of s. 742.1 is to maintain the integrity of the justice system by ensuring those who commit serious offences go to jail, the focus of the analysis is on whether the conduct captured constitutes a “serious offence” or not. The overbreadth analysis is thereby not blocked even before it begins. As Feldman J.A. commented, one must be careful not to conflate the purpose of the provision with the means to achieve that purpose.

[47] The second basis on which Nakatsuru J. distinguished Anderson was as follows (at para. 62):

Second, another difference between Sharma and Anderson is that the latter did not engage in the type of reasoning found in the former when Feldman J.A. concluded that the means chosen to pursue this objective had no rational connection between the impugned provision’s purpose and some of their effects. Anderson did not analyze the breadth of the offences that could fall under the category of sexual assault as a serious personal injury offence. McWatt J. merely emphasized the connection between the prohibition and Parliament’s need for deterrence and denunciation. This omission was likely the result of her different characterization of the purpose of the legislation. The same shortcoming exists in the analysis in Mason. McWatt J. also observed that in less serious cases, other options such as a suspended sentence or a short period of jail were available as less punitive sanctions. A similar argument made by the Crown in Sharma was specifically rejected by Feldman J.A.

(d) The Legislative Objective of Section 742.1(f)(iii)

[48] The Crown submits that the legislative objective of s. 742.1(f)(iii) is not the same as the objective of the impugned provisions in Sharma. Rather, its objective is the same as that of the earlier version of s. 742.1, as articulated in Anderson. According to the Crown, this is because “it was not the Safe Streets and Communities Act that removed the availability of conditional sentences for indictable sexual assaults; it was its 2007 predecessor, Bill C-9.” [4] As a result, Nakatsuru J. was wrong to apply the analysis in Sharma and distinguish the decision in Anderson.

[49] The difficulty with the Crown’s argument is that it ignores the fact that the statutory provision at issue in Anderson has been repealed and replaced with a new series of provisions. While it is true that conditional sentences for sexual assaults prosecuted by indictment were precluded by both sets of provisions, the way in which they were excluded differs. Under the old s. 742.1, sexual assault was excluded because it met the definition of an SPIO. In enacting the SSCA, Parliament decided to remove the exclusion for all offences that meet the definition of an SPIO and replace it with a different set of exclusions, including some for specific offences.

[50] The purpose of the SSCA was to broaden the list of offences for which conditional sentences were precluded, as was explained by Mr. Robert Goguen, the Parliamentary Secretary to the Minister of Justice, during a speech made at second reading of the SSCA (House of Commons Debates, 41-1, vol. 146, No. 17 (September 21, 2011), at p. 1750):

Another issue with the definition of serious personal injury is that it only targets violent offences. The definition of serious personal injury cannot ensure that a conditional sentence will not be used in the case of serious fraud or theft over $5,000.

The amendments in this bill will ensure that certain non-violent serious offences will still be treated as serious offences, thus avoiding the use of conditional sentencing. The amendments to the conditional sentencing regime proposed in this bill aim to establish clear benchmarks to allow for consistent use of conditional sentencing in order to respect Parliament’s intention when it created this sentence.

That is why the bill proposes eliminating the reference to serious personal injury offences and restricting the availability of conditional sentences for all offences for which the maximum term of imprisonment is 14 years or life.

The same will apply to indictable offences punishable by a maximum of 10 years’ imprisonment when they result in bodily harm, involve the import, export, trafficking or production of drugs or involve the use of weapons.

When an offence is committed under these circumstances, it is even more important to deter the offender and denounce the crime. This justifies restricting the availability of conditional sentences in such cases. It is possible however that the limits I just described do not cover all offences prosecuted by way of indictment and punishable by a maximum of 10 years in prison.

Therefore, the bill also proposes limiting the availability of conditional sentences for prison breach, criminal harassment, sexual assault, kidnapping, trafficking in persons, abduction of a person under 14, motor vehicle theft, theft over $5,000, breaking and entering a place other than a dwelling-house, being unlawfully in a dwelling-house, and arson for fraudulent purpose.

[51] In my view, the fact that Parliament decided to broaden the categories of offences for which conditional sentences were unavailable shows that the rationale for the exclusions was different and the legislative objective had changed. As a result, one cannot simply import the legislative objectives of the now-repealed version of s. 742.1 created by Bill C-9 into the SSCA, as the Crown suggests.

(e) The Breadth of Offences Captured by the Impugned Provision

[52] Another difficulty with the Crown’s submission is that it ignores Nakatsuru J.’s second reason for declining to follow Anderson, which was that there was no analysis of the breadth of offences that could fall within the definition of sexual assault. It is clear from Sharma that such an analysis is integral to a consideration of the s. 7 overbreadth claim. The importance of this analysis was explained by McArthur J. in Browne, at para. 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.

[53] The Crown submits that unlike the situation in Sharma, where the use of a maximum sentence as a proxy for the seriousness of the offence had the effect of removing the option of a conditional sentence for a large number of offenders for whom such a sentence would have been appropriate, the impugned provision in this case captures only one specific offence and is therefore carefully tailored to apply only to those offences which are sufficiently serious. As a result, the overbreadth concerns in Sharma do not arise. There are two reasons why I do not accept this submission.

[54] First, while one of the impugned provisions in Sharma, s. 742.1(c), excluded conditional sentences based on the maximum penalty, the other, s. 742.1(e)(ii), related to the specific category of offence, in that case importing controlled substances. Feldman J.A. concluded that both provisions were overbroad: Sharma, at paras. 170-174.

[55] Second, the Crown’s submission ignores the fact that the impugned provision does not exclude conditional sentences for all sexual assaults, only those where the Crown proceeds by indictment. This amounts to a recognition that there will be some sexual assaults where a conditional sentence may be appropriate and whether or not a conditional sentence is available depends on the Crown’s election. The fact that the Crown could choose to proceed summarily in such cases does not address the overbreadth concern for the reasons articulated by Nakatsuru J. in R.S., at para. 69:

The Crown did not rely upon the prosecutorial discretion to elect to go by way of summary conviction proceedings in less serious cases of sexual assault in order to uphold the provision. Rightly so in my view. As in a section 12 analysis under the Charter, the constitutionality of an impugned provision cannot be salvaged by relying on the discretion of the prosecution to proceed summarily in cases that they deem the conduct to be not or less serious. The constitutionality of a law, especially one involving an inherently judicial function like sentencing, must be decided by a court and not by a discretionary decision of a Crown prosecutor. The overbreadth of a provision must be decided by me and I cannot delegate the avoidance of a violation to the prosecution.

See also R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 313.

[56] In this case, the Crown’s decision to proceed by indictment was no doubt influenced by concerns about limitation periods as well as the fact that Mr. Holland was charged with a second sexual assault which would likely have resulted in a penitentiary sentence if he had been convicted. However, Mr. Holland was acquitted of that offence and the sentence the Crown is now seeking is below the summary conviction maximum. This is a case that may well have been prosecuted summarily had the situation been different, and the fact that a conditional sentence is unavailable because of factors that are irrelevant to the sentencing process demonstrates the overbreadth of the impugned provision.

(f) Conclusion on Section 7

[57] For these reasons, I am not persuaded that Nakatsuru J.’s analysis in R.S. was premised on an erroneous understanding of the legislative objective of the impugned provisions or that his conclusion that the provision infringed s. 7 of the Charter was plainly wrong. To the contrary, I agree with his analysis.

[58] As in Sharma and R.S., the Crown has not attempted to justify any s. 7 infringement under s. 1. I therefore adopt the conclusion in R.S. and the cases that follow it that s. 742.1(f)(iii) of the Criminal Code is inconsistent with s. 7 of the Charter and therefore of no force or effect.

(iii) Sections 15 and 1 of the Charter

(a) The Legislative Objective

[59] While my conclusion with respect to s. 7 is sufficient to dispose of the issue of the availability of a conditional sentence for Mr. Holland, for the sake of completeness I will consider the s. 15 issue as well.

[60] The Crown does not challenge the correctness of Nakatsuru J.’s conclusion in R.S. that the impugned provisions infringe s. 15 of the Charter, but submits that he erred in concluding that the infringements were not justified by s.1.

[61] The Crown’s argument with respect to s. 1 is premised on its submission that Nakatsuru J.’s understanding of the legislative objective of the impugned provision was wrong. I have already explained why I do not agree with that submission.

(b) Equality Concerns

[62] The Crown also submits that because the crime of sexual assault disproportionately causes harm to women, sentencing in sexual assault cases implicates the equality rights of women, unlike the sentences for drug offences at issue in Sharma, and that this must be taken into account in the s. 1 analysis, both in relation to whether the impugned section is proportional to its objective and the issue of minimal impairment.

[63] Nakatsuru J. considered a similar submission in R.S., at paras. 73-35:

That said, I agree that the part of the [Oakes , [1986] 1 S.C.R. 103] test regarding whether the deleterious effects of the impugned provision on Indigenous people are outweighed by the salutary effect of the provision, has an added dimension not expressly taken into account in Sharma. This is the prevalence of the crime of sexual assault and the need to fight it through the sentencing regime. Sexual assault is a serious offence and a plague on society. Ensuring that offenders who commit sexual violence are held accountable has significant salutary effects.

However, the s. 1 justification fundamentally fails at the minimal impairment stage of the analysis. As perceptively detected by Feldman J.A. at para. 178 of Sharma:

Even if the Crown could establish that the provisions have a pressing and substantial objective, in my view, the s. 1 justification fails at the minimal impairment stage of the analysis. 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.

I conclude that the Crown has not discharged his onus under s. 1.

I agree with this conclusion.

G. The Prerequisites for a Conditional Sentence

[64] Having concluded that a conditional sentence is statutorily available, I must consider whether it would be appropriate in this case. Section 742.1(a) of the Criminal Code sets out two prerequisites for such a sentence. The first is that service of the sentence must not endanger the safety of the community. In this regard, the Crown points out that Mr. Holland fled the jurisdiction in breach of his bail conditions. I agree that this is a cause for concern. However, this occurred in 2017 and there is no suggestion that Mr. Holland breached any further conditions of his bail since that time. He has no criminal record other than the conviction for which he is being sentenced. I am satisfied that this prerequisite has been satisfied.

[65] The second prerequisite in s. 742.1(a) is that a conditional sentence must be “consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.” Denunciation and deterrence are paramount sentencing objectives in sexual assault cases. However, conditional sentences have both a denunciatory and deterrent effect, even where those objectives are paramount: Sharma, at para. 110, R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at paras. 41, 67; R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, at para. 35. While the Crown has cited a number of cases in which it was concluded that a conditional sentence was inappropriate, all of these involved significant aggravating factors that are absent in this case, such as a breach of trust or taking advantage of an incapacitated complainant: R. v. Bisson, 2009 CarswellOnt 9331 (S.C.J.), at para. 51; R. v. T.(K.), 2008 ONCA 91, 89 O.R. (3d) 99, at paras. 42-43; R. v. MacIntyre-Syrette, 2018 ONCA 706, at para. 20; R. v. J.S., 2011 ONSC 1743, at para. 37; R. v. Smith, 2015 ONSC 4304, at paras. 31, 36; R. v. J.R., 2008 ONCA 200, 59 C.R. (6th) 158, at para. 25; R. v. Beer, 2018 ONSC 4927, at para. 79, varied 2019 ONCA 763.

[66] Having considered the aggravating and mitigating factors in this case, I conclude that a conditional sentence would not be inconsistent with the fundamental purpose and principles of sentencing.

III. DISPOSITION

[67] Mr. Holland is sentenced to a term of imprisonment for eight months, to be served in the community pursuant to a CSO on the following terms in addition to the statutory terms:

• report to a supervisor within 24 hours;
• for the first three months of the sentence, to remain within 100 metres of his residence subject to the following exceptions:
  • While travelling to or from or while at his place of employment, an educational facility in which he is enrolled, a place of worship, or a pre-arranged appointment with a physician, dentist or other health professional;
  • for a period of four hours each week at a time to be determined to attend to the necessities of life;
  • for medical emergencies involving himself or members of his immediate family; or
  • with the written permission of his Supervisor;
• For remainder of the sentence, to obey a curfew between 11:00 p.m. and 6:00 a.m., subject to the same exceptions;
• reside at an address approved of by his Supervisor;
• not have any contact, directly or indirectly, with N.K. or members of her immediate family and not to be within 500 metres of any place he knows any of them to reside, work, attend school or otherwise be;
• not to possess any weapons as defined by the Criminal Code;
• to perform 25 hours of community service before the expiry of the CSO.

[68] I decline to make a probation order. This offence was committed 14 years ago and Mr. Holland has not committed any other offences since that time. In my view, there is no indication that a probation order is necessary to address any rehabilitation concerns.

[69] In accordance with s. 487.051(2) of the Criminal Code, Mr. Holland is ordered to provide such samples of bodily substances as may be required for forensic DNA analysis and inclusion in the national databank.

[70] As required by ss. 490.012(1) and 490.013(2)(b) of the Criminal Code, Mr. Holland is ordered to comply with the Sex Offender Information Registration Act (“SOIRA”) for a period of 20 years.

[71] Pursuant to ss. 109(1) and (2), Mr. Holland is 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 and any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.

Justice P.A. Schreck

Released: March 9, 2022

COURT FILE NO.: CR-18-70000387-0000 DATE: 20220309 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – MARK HOLLAND REASONS FOR SenTENCE P.A. Schreck J. Released: March 9, 2022

[1] An abbreviated version of these reasons was delivered orally in court. In the event of any inconsistency between those oral reasons and these written reasons, the written reasons should be taken as correct.

[2] Mr. Holland was subsequently acquitted of this charge.

[3] An appeal from the decision in Sharma is scheduled to be heard by the Supreme Court of Canada on March 23, 2022.

[4] Respondent’s Factum, para. 52.