File No. CR-20-00003125-0000

Superior Court of Justice

Her Majesty The Queen v. Mitchell Vansnick

R E A S O N S F O R S E N T E N C I N G

BY THE HONOURABLE JUSTICE G. VERBEEM

On February 28, 2022, at Chatham, Ontario

APPEARANCES:

K. Thomas Counsel for the Provincial Crown

G. McGivern Counsel for Mitchell Vansnick

Reasons for Sentencing

VERBEEM, J. (Orally)

On November 16, 2021, after a judge alone trial, the offender, Mitchell Vansnick, was found guilty on a single count of sexual assault, contrary to s. 271 of the Criminal Code. A sentencing hearing was held on January 18, 2022. Mr. Vansnick now appears for sentencing.

Mr. Vansnick is convicted of the offence of sexual assault. I must now impose a fit and proper sentence in all the circumstances of both the offence and the offender.

In so doing I have had the benefit of reviewing a presentence report, PSR, dated January 13, 2022. A victim impact statement prepared and read by Ashley Trahan, the victim of the sexual assault. A victim impact statement prepared by Agatha Trahan, who is Ashley’s mother. Twenty-one supportive letters filed on behalf of Mr. Vansnick authored by his relatives, friends and members of the community, all attesting to his many positive attributes. Medical documentation related to Mr. Vansnick and sentencing submissions from the Crown and counsel for the offender, including written submissions filed in relation to a collateral consequence issue.

In arriving at a fit sentence, I have considered the circumstances of the offence and the offender, the principles and objectives of sentencing, the case law filed by counsel and the operable aggravating and mitigating circumstances, all of which I will review, beginning with the circumstances of the offence.

Circumstances of the Offence

The facts of the offence are described in detail in my reasons for judgement.

Briefly, on the night of September 2nd, 2018, Ashley Trahan, then 21 years old, and the offender Mitchell Vansnick, then 22 years old, attended a small social gathering at the residence of Ryan and Ashley Coll in Wallaceburg, Ontario. The Coll’s were longstanding friends of Ms. Trahan’s parents. She attended with her sister and another friend.

Mr. Vansnick, who lived a few houses away from the Coll residence was not invited to the gathering by the Colls. Instead, he attended with a group of other young men, including the son of two of the Colls’ invited guests. Ms. Trahan was already at the gathering when Mr. Vansnick’s group arrived.

Ms. Trahan and Mr. Vansnick were familiar with each other because they had attended the same high school. They were not friends and never socialized outside of school. Prior to September 2nd, 2018, they had not seen each other at all after they graduated from high school a few years earlier.

During the course of the evening, Mr. Vansnick and Ms. Trahan engaged in small talk. He repeatedly asked her to go for a smoke, referring to marijuana. Eventually, she agreed. At approximately 12:40 a.m., a group of six people, including Ms. Trahan and Mr. Vansnick, walked approximately half a block away from the Coll residence at which point several of them, including Mr. Vansnick, consumed marijuana.

Ms. Trahan did not. By the time of the marijuana walk, both Ms. Trahan and Mr. Vansnick had consumed alcohol. Based on the evidence I accepted at trial, I was satisfied beyond a reasonable doubt that at the time of the walk, Ms. Trahan was extremely intoxicated, and she was exhibiting indicia of intoxication. She stumbled and staggered directly in front of Mr. Vansnick twice, in the short time the group was stopped.

At approximately 12:50 a.m. the group walked back towards the Coll residence. When they were about four houses away, Mr. Vansnick came up from behind Ms. Trahan and guided her, through the application of some force, to a dark grassy area between two houses, other than the Coll residence. She was confused. Once at the dark location, Mr. Vansnick put his hands on her shoulders and pushed her to the ground. He got on top of her and pinned her hands down. He pushed up her sweater and bra and kissed her neck down to her breasts. She repeatedly told Mr. Vansnick, “no”, “stop”, and other words which expressed a lack of consent. He did not stop. Instead, he said, “It’s okay, you want it.”

Ms. Trahan was terrified. She tried to fight by pushing up and rolling away from Mr. Vansnick. He stepped on her feet while she did so. Eventually, he got on top of her legs and pried her shins apart with his feet, while he pinned her hands down. He pulled down her shorts. She kept telling him to stop. He did not. He digitally penetrated her vagina.

Mr. Vansnick then engaged in nonconsensual vaginal intercourse with Ms. Trahan without using a condom. She was crying hysterically and repeatedly asked him to stop.

In her trial evidence, Ms. Trahan indicated that she was not sure how long the assault lasted and she did not know if Mr. Vansnick ejaculated. She subsequently advised the author of the PSR that Mr. Vansnick did ejaculate. However, based on the totality of the evidence at trial, I am unable to conclude beyond a reasonable doubt that he did so.

Ms. Trahan was eventually able to escape from Mr. Vansnick and she ran to the Coll residence. On arrival, she was hysterical. Her clothes were disheveled, and she had bleeding lacerations on her legs. She was mostly nonverbal, although she made some limited disclosures which led other people at the gathering to conclude that Mr. Vansnick had sexually assaulted her. Ms. Trahan’s sister and brother-in-law verbally confronted Mr. Vansnick who had returned to the gathering. He left the Coll residence almost immediately thereafter and was followed by a group of people as he walked away. He walked past his own residence and stopped at the curb area of a portion of the street that was captured by a neighbour’s video surveillance camera. He was at that location for nearly an hour.

While there, Mr. Vansnick was the subject of vigilante-based physical violence. At various times, a crowd gathered at his location. He was pushed to the ground at one point. Subsequently, he was repeatedly punched by Ryan Coll and Ms. Trahan’s mother, Agatha Trahan. His head, face and body were struck repeatedly. Police eventually attended at the Coll residence and Mr. Vansnick was taken to the hospital. As a result of the beatings, he suffered a concussion, broken nose, two black eyes, multiple bruises, and blurred vision.

His injuries are documented in medical records and photographs filed by the defence.

Ashley Trahan was not aware of the beatings. She was taken home after the sexual assault by her friend. Her father then took her to the hospital where she was examined by a sexual assault nurse. External and internal vaginal swabs were taken; Plan B medication and medication to guard against sexually transmitted diseases was administered; and various injuries were photographed, evidencing intermittent lacerations, scrapes and scratches on Ms. Trahan’s lower extremities and bruising around both of her knees. In the following days, the bruising became more pronounced and included other areas of her body.

The trial evidence discloses some of the acute impacts of the offence on Ms. Trahan. Her victim impact statement discloses the longstanding impact that the offence has had on her.

Her statement is inciteful and underscores the significant physical, emotional and financial impact that Mr. Vansnick’s criminality has had on her. Several areas of her life were and are profoundly and detrimentally altered by the offender’s conduct. Much to her credit, Ms. Trahan continues to actively engage in efforts aimed at recovery, but understandably, she continues to struggle, over three years after the sexual assault.

I will not reiterate the totality of Ms. Trahan’s statement, but she notably discloses among other things, that:

a) Following the assault, she felt that her body no longer seemed to be hers. Not only did she physically suffer injuries during the assault, but afterwards she was subjected to numerous intrusive vaginal examinations and photographs.

b) During the first month after the assault, she was extremely ill due to the antiviral medication necessitated by Mr. Vansnick’s conduct. She was consistently exhausted, she lost her appetite, and she regularly vomited.

c) Her post-assault medical treatment triggered memories of the assault itself.

d) Prior to the assault, she was healthy, active and regularly engaged in exercise. During the acute period after the assault she required significant personal care assistance due to her physical injuries, mental devastation, and the side effects of medication.

e) Following the assault, her feelings of independence and self-worth disappeared.

f) She was required to take three weeks off of work after the assault, and she was embarrassed when she returned.

g) After the assault, she was left feeling numb and she began to self-isolate from her family and support system. She remained in her room and cried. She avoided looking at herself in the mirror.

h) Her ability to fully participate in her sister’s wedding was compromised as a result of her physical injuries and her psychological impairments.

i) She became terrified to both be alone and to be around people. She had difficulty justifying being alive. She participated in several counselling sessions and found the process difficult and humiliating.

j) She altered her career path as a result of her post-assault condition. Prior to the assault, she was working toward a physically active career. After the assault, she stopped exercising and gained weight, which contributed to her depression and she lost the momentum to pursue her pre-assault career goals. And,

k) From a financial perspective, she missed time from work and has incurred expenses associated with travelling to various medical appointments, counselling sessions, victim service interaction, and attending court.

Ms. Trahan was also interviewed as part of the development of the PSR. She explained how the offence damaged her mental well-being and she was reportedly formally diagnosed by a psychiatrist with anxiety, depression and post-traumatic stress disorder that was treated with medication and regular therapy.

Ms. Trahan’s mother also authored a victim impact statement. Among other things, she indicates:

a) Following the assault, Ms. Trahan went from being a “happy, bubbly headstrong young woman with high hopes and goals for her future, to being sad and hopeless with a complete loss of interest in life”.

b) Prior to the assault, Ms. Trahan had “big dreams and goals that she worked on consistently to fulfil”. Following the assault, “she fell into a deep depression and lost all interest in everything”.

c) Following the assault Ms. Trahan became introverted; and

d) Ms. Trahan’s dreams, goals, career path, and her passion for life disappeared, the night of the assault.

In all the circumstances, I am satisfied beyond a reasonable doubt that the offence committed by Mr. Vansnick constitutes a major sexual assault. It involves an act of unprotected, nonconsensual vaginal intercourse. Throughout the assault, Mr. Vansnick callously disregarded Ms. Trahan's pleas to stop. The level of violence involved in the assault was greater than the violence inherent in the commission of the offence itself. Based on Ms. Trahan’s extreme level of intoxication there was a predatory element to the offence.

Ms. Trahan’s physical and sexual integrity were severely undermined by Mr. Vansnick’s conduct. Finally, Ms. Trahan has sustained longstanding physical and psychological consequences as a result of Mr. Vansnick’s conduct.

Consequently, the gravity of the offence is substantial. I now turn to the circumstances of the offender.

Circumstances of the Offender

Mr. Vansnick is currently 25 years old and single. He has no criminal record. On balance, the PSR is generally favourable. It discloses that:

a) Mr. Vansnick endorses his childhood as amazing. He has an older brother and a younger sister. Mr. Vansnick and his siblings were raised by his biological mother and stepfather in an abuse and violence free setting. He is currently in a committed romantic relationship with a supportive partner. His girlfriend attests to the strength of their relationship and describes him as a caring, supportive, and good boyfriend. She denies any abuse or sexual malfeasance in their relationship.

b) Mr. Vansnick presents with no mental health or developmental disabilities. He engages in occasional cannabis use with friends and prior to his arrest, he engaged in the social use of cocaine on a rare basis. Occasionally, he consumes alcohol without excess.

c) Mr. Vansnick and his brother continue to reside with their mother and stepfather. Mr. Vansnick’s mother endorses Mr. Vansnick’s positive upbringing and indicates that he has been instrumental in helping the family care for his brother, who has a developmental disability; and

d) Mr. Vansnick has consistently maintained employment in the roofing industry for the past seven years. His current work supervisor describes him as reliable, punctual, respectful, motivated, hard working and an asset to the company.

The author of the PSR indicates that Mr. Vansnick was cooperative and candid throughout his interview and did not express any pro-criminal thoughts or beliefs. However, he firmly maintains his innocence. He did not demonstrate any empathy towards Ms. Trahan and appeared somewhat resentful toward her, for what he asserts is a wrongful accusation. Mr. Vansnick’s mother and his girlfriend also believe in his innocence and stand behind his version of events. Mr. Vansnick does not accept responsibility for his criminal conduct.

Finally, during the preparation of the PSR Mr. Vansnick indicated that he was apprehensive about the possible prospect of immediate imprisonment and stated that such a disposition would jeopardize his employment, his intimate relationship, his financial independence as well as his and his family’s emotional well-being. He was hopeful that he would be subject to a possible conditional sentence as well as community service hours.

In addition to the PSR, Mr. Vansnick filed 21 letters of support from various members of his family, friends, former co-workers and other members of the community. On their face, the letters collectively stand as a testament to Mr. Vansnick’s character, his willingness to provide assistance to anyone in need, his compassion, his charitable spirit, strong work ethic, and his strong reciprocal supportive relationships with members of his family and members of his community. Collectively, the letters represent a substantial and compelling outpouring of admiration, support and love from their respective authors. Although I have read all the letters in full, I will not reiterate the entirety of their content in these reasons. However, I do take the entirety of that content into consideration in arriving at a fit and proper sentence. In general, the collective content of the letters indicates that:

a) The offender has a strong, supportive relationship with both his siblings. He is instrumental in providing care and guidance to his older brother who was diagnosed with multiple complex needs. His sister regards him as her best friend and he is the godfather of her three year old daughter and is strongly supportive of both of them.

b) The offender is strongly bonded to his mother, stepfather, and biological father. He is a strong contributor at home. He has actively supported and cared for his biological father, who has suffered significant health challenges in recent years.

c) The offender has a strong work ethic.

d) The offender is a distinguished former sea cadet.

e) The offender is patient, respectful, helpful, and responsible.

f) The offender had a very strong bond with his maternal grandfather prior to his passing. Further, Mr. Vansnick has assumed a primary role in the maintenance and upkeep of his maternal grandmother’s home and property measuring several acres.

g) The offender has volunteered with Habitat for Humanity and Adopt-A-Family charity programs; and

h) The offender has a large support system in place.

Finally, many of the supportive letters indicate that the offence with which Mr. Vansnick has been found guilty, is completely “out of character” for him.

In the result, I am satisfied that this relatively young, first-time offender leads a stable pro-social life. He consistently maintains gainful employment, stable accommodations, and is involved in a serious romantic relationship. He engages in volunteer work and provides significant assistance to his family members, most notably, his brother, grandmother, father and niece, and he has a strong community-based support system in place.

Mr. Vansnick was given an opportunity to address the court during the sentencing hearing and declined to do so.

I will now turn to the statutory sentencing parameters.

The Statutory Sentencing Parameters

Section 271 (a) of the Criminal Code prescribes a maximum sentence of ten years imprisonment for sexual assault. No minimum sentence is prescribed.

Within the statutory framework I turn to the position of the parties.

Position of the Parties

The Crown submits a fit and proper sentence in this instance includes a period of custodial incarceration of four to five years together with a D.N.A. Order, a ten-year weapons prohibition, a 20 year sex offender registration, and an order that the offender refrain from contacting or communicating with Ashley Trahan during his period of incarceration.

The Crown submits that the mitigating factors in this case include Mr. Vansnick’s youth, his lack of a criminal record, his gainful employment, and his strong supportive network.

The Crown identifies the following aggravating factors:

a) Mr. Vansnick’s conduct including full vaginal penetration rendering it a serious invasive assault against Ms. Trahan.

b) Mr. Vansnick penetrated Ms. Trahan’s vagina both digitally and with his penis.

c) Ms. Trahan was intoxicated and extremely vulnerable at the time of the offence.

d) Mr. Vansnick isolated Ms. Trahan and attacked her in a predatory manner.

e) Mr. Vansnick did not use a condom which put Ms. Trahan at risk of sexually transmitted diseases and an unwanted pregnancy, both of which required medication, which seriously impacted her health.

f) Mr. Vansnick used significant force to subdue Ms. Trahan, resulting in bruises, scrapes, lacerations, and scars about her body. She has permanent scarring on her knee and her shin.

g) Mr. Vansnick persisted in his assaultive conduct despite Ms. Trahan repeatedly saying no. His conduct was demeaning to the victim.

h) The sexual assault occurred in a public place which increased the risk of humiliation and embarrassment to Ms. Trahan; and

i) Mr. Vansnick’s criminality has resulted in significant negative impacts on Ashley Trahan and Agatha Trahan, as evidenced by their victim impact statements, which is a statutorily aggravating factor.

The defence submits that a fit and proper sentence in this case would include the ancillary orders sought by the Crown, together with a custodial period of incarceration ranging from 18 months to two years plus a day, with particular emphasis on the upper limit of that range. Defence counsel acknowledges that denunciation and deterrence ought to be the paramount sentencing objectives in this instance, but those considerations must be tempered with the particular circumstances of the offender as well as the objectives of rehabilitation and the principle of restraint for a first-time offender.

The defence does not contest the presence of the aggravating factors identified by the Crown but makes some comments in that regard.

First, the level of violence committed in the assault is not as extreme as it was in some of the cases that the Crown has submitted in support of its position. Second, while injury to the victim is definitely a factor that must be considered, the court must also consider the extent of the injuries involved. Here the physical injuries are in the nature of scrapes, bruising, and some small scarring. Nonetheless, the defence also agrees that unquestionably the assaultive conduct has had a significant impact on Ms. Trahan.

The defence identifies the following mitigating factors: Mr. Vansnick’s youth, his lack of a criminal record, a favourable PSR, sustained gainful employment and a substantial degree of community support as evidenced by the letters filed in which he is described as caring and compassionate. He provides important assistance to his grandmother, his brother, his niece and his family in general. He has a history of volunteering with charitable organizations and has proven to be a valuable member of the community. He is in a supportive interpersonal relationship.

In the context of the parties’ positions, I turn now to the applicable principles of sentencing.

Principles of Sentencing

The fundamental purpose of sentencing, as set out in section 718 of the Criminal Code, is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society, by the imposition of “just sanctions”.

The imposition of just sanctions requires me to consider the sentencing objectives referred to in that section, which I should attempt to achieve through the sentence imposed.

Those objectives include denunciation, deterrence (both specific and general), separation of offenders from society when necessary, rehabilitation, reparation for harm done and the promotion of a sense of responsibility in offenders and an acknowledgment of the harm which criminal activity brings to our community.

The fundamental principle of sentencing is reflected in the principle of proportionality. A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

In imposing a sentence I must take into account a number of other principles including:

a) A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances related to the offence or the offender.

b) A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances, often described as the parity principle.

c) An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

d) All available sanctions other than imprisonment, that are reasonable in the circumstances, should be considered for all offenders.

Based on the authorities I will review momentarily, the thrust of the applicable case law suggests that for offenders convicted of a major sexual assault including non-consensual vaginal intercourse, the primary focus of sentencing must be denunciation and deterrence.

The primacy of those objectives in this instance does not render considerations relating to rehabilitation moot, nor does it supersede the principle of proportionality.

Instead, a balancing of all relevant sentencing goals including the prospects of rehabilitation and all relevant considerations including applicable and aggravating mitigating factors must be undertaken.

In addition, Mr. Vansnick is a first-time offender. In R. v. Priest, 1996 ONCA 1318, 110 C.C.C. (3d) 289, the Court of Appeal reaffirmed that ordinarily for youthful first-time offenders, the objectives of individual deterrence and rehabilitation are paramount and even where a custodial sentence is appropriate. Indeed, where a custodial sentence is appropriate a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence.

However, in R. v. Thurairajah, 2008 ONCA 91, at paragraph 41, the Court of Appeal observed that while generally speaking a sentence imposed on youthful first-time offenders will stress individual deterrence and rehabilitation, for serious crimes of personal violence, particularly sexual assaults, while rehabilitation and other sentencing objectives remain important, denunciation and general deterrence “gain prominence”.

Finally, I observe that in arriving at a fit sentence, the court must remain mindful of any collateral consequences of the offence on the offender. A collateral consequence is any consequence arising from the commission of an offence or the sentence imposed for an offence that impacts the offender. Collateral consequences are not necessarily aggravating or mitigating factors. Rather, they speak to the personal circumstances of the offender. The issue is not whether the collateral consequences diminish the offender’s moral blameworthiness or render the offence itself less serious, rather the issue is whether the collateral consequence has a more significant impact on the offender because of his or her circumstances; see R. v. Suter, 2018 SCC 34, at paragraphs 46-48.

In that case the Court recognized that vigilante violence committed against an offender by non-state actors can constitute a collateral consequence that merits consideration in crafting a fit and proper sentence.

However, the Court also cautioned that the fundamental principle of proportionality must prevail in every case and collateral consequences cannot be used to reduce the sentence to a point where the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender. Thus, the extent to which vigilante violence, as a collateral consequence, can be considered is limited and the court must be careful not to give it too much weight such that it would undermine the legitimacy of the judicial process.

I will now address the case law submitted by the parties.

At the outset, I observe that the parties disagree about the appropriate operable range of sentence in this case. Based, in part, on cases that rely on the Court of Appeal’s endorsement in R. v. Bradley, 2008 ONCA 179, the Crown submits the range is three to five years imprisonment.

The defence concedes that based on the circumstances of the offence as found, a lengthy period of imprisonment is appropriate. However, defence counsel suggests that the low end of the range begins at an upper reformatory period of 18 months. Relying, in part, on R. v. Redden-Cox, 2021 ONSC 162, the defence submits that a case falling within the “date rape” category generally attracts a sentence in the range of two to three years incarceration.

In support of their asserted ranges and in relation to the parity principle, the Crown and defence have provided me with several other authorities dealing with the determination of “just sanctions” for sexual assault offences, which I will summarize. Before doing so, I will briefly address three decisions of the Ontario Court of Appeal which are referred to in some of the cases submitted by counsel, that address the appropriate sentencing range for a major sexual assault.

First, in Bradley, the court considered an appeal against a sentence of four years imprisonment, in circumstances where the appellant was a police officer who mentored the victim, an aboriginal woman who aspired to become a police officer. The sexual assault occurred many years prior to trial. The victim was vaginally and anally penetrated and the offender demanded oral sex from her. There was no violence “apart from that which is inherent in such an offence”. However, the offender made degrading comments to the victim. At the time of the offence the offender was 39 years old with no prior record, and there was evidence that he was of otherwise good character. The complainant was 21 years old. The Court of Appeal determined that the sentencing judge erred by finding that the offender’s fabricated evidence constituted an aggravating factor in sentencing.

Importantly, the court stated that “in the circumstances, the appropriate range of sentence was three to five years”: see paragraph 18. The court reduced the offender’s sentence to three years imprisonment owing to the lack of violence, the historical nature of the assault, the offender’s age at the time of trial, his lack of record, and his otherwise “unblemished character”.

Unlike Bradley, the present case does not involve forced anal intercourse nor attempted forced oral sex. Also, the level of violence employed by the offender in this case is greater than that in Bradley.

In Thurairajah, the 19-year-old offender sexually assaulted a 14-year-old victim in the back of a car after she and her friends agreed to join the offender and his friends on a drinking venture. The victim was extremely intoxicated and unconscious. The offender did not use a condom. After the assault, the offender dumped the victim in a snowbank under a tree and advised her brother that “they had found her there”. The offender did not have a record. He had strong rehabilitative potential and strong support. He was subject to strict bail conditions for almost three years prior to sentence. The aggravating factors included the age and vulnerability of the victim, the crime occurred in the presence of members of the victim’s peer group, the victim suffered significant emotional harm, she was ostracized within her ethnic community, and the offender’s callous and life-threatening treatment of her after the assault. The offender was originally sentenced to a non-custodial sentence of imprisonment of two years less a day, to be served in the community.

The Court of Appeal determined that the sentence was demonstrably unfit, and the sentencing judge erred in placing too much emphasis on the identified mitigating factors. At paragraph 38 of the Court’s decision, Doherty J.A. indicated that a sentence of custodial imprisonment of two years less a day was “within, albeit barely, the appropriate range of sentence given the respondent’s age, his otherwise unblemished record, his strong rehabilitative potential, his family’s support, and his compliance with strict bail conditions for almost three years prior to sentence.”

Strict bail conditions are not a source of mitigation in the present case.

Finally, in R. v. S.A., 2014 ONCA 266, the Court of Appeal upheld a trial judge’s five-year sentence where the offender had committed two sexual assaults on two different victims. In each case, the offence was premeditated, the offender knew the victims and took them to secluded locations where he threatened them and forced them to perform oral sex on him. The offender did not use a condom and ejaculated on the complainants. The offender threatened vaginal penetration but did not complete that act. After completing a case law review, the sentencing judge concluded that the range accepted by the Court of Appeal for serious sexual assaults involving a single complainant spans from mid-reformatory to at least six years.

The Court of Appeal upheld the trial judge’s imposition of a five-year sentence but did not agree with the judge’s identified range. Instead, the Court of Appeal held at paragraph 1, that the trial judge erred in suggesting that the range for these types of offences could be as low as reformatory sentences and held that the offences involved in the case, required a penitentiary sentence “of some length”.

Turning to the cases submitted by the parties, the Crown relies on the following authorities:

a) R. v. Wyatt, 2017 ONCJ 390;

b) R. v. Clase, 2017 ONSC 2484;

c) R. v. L., 2016 ONSC 733;

d) R. v. K.T. [2002] O.J. No. 4649 (OCJ);

e) R. v. Curto, 2008 ONCA 161;

f) R. v. T.J.S., 2021 NSSC 328;

g) R. v. Mitrovic, 2017 ONSC 1829;

h) R. v. V.L., 2020 ONCA 87; and

i) R. v. McCaw, 2019 ONSC 3906

In Wyatt, the court imposed a sentence of eight years imprisonment in the following circumstances. The offender approached a stranger, pushed her into a snowbank, pinned her down, removed her pants and forced her to perform oral sex on him. The offender digitally penetrated the victim and then forced vaginal intercourse without a condom. He licked her vagina and anus. A passerby interrupted the assault and the victim escaped bleeding and naked from the waist down. She suffered injuries to her vaginal area constituting bodily harm. The offender pleaded guilty to sexual assault causing bodily harm. Aggravating factors included: a criminal record with three prior assaults; the fact that the offender was on bail at the time of the offence; a significant impact on the victim; vaginal penetration; and a lack of condom. Mitigating factors included: an early guilty plea and the offender struggles with mental health and addiction issues.

Unlike Wyatt, the offender in this instance does not have a record and he was not charged with or convicted of sexual assault causing bodily harm.

In Clase, the accused was convicted of sexual assault and choking charges after a trial. He was sentenced to five years concurrent on each count. The offender and the victim met at a bar and subsequently attended the offender’s apartment, where they consumed alcohol and marijuana. Eventually the offender pushed the victim onto a bed and held her down and choked her to the point she could not breathe. A struggle ensued and the offender vaginally penetrated the victim on two occasions. The victim suffered bruising about her body. Aggravating factors included the significant impact on the victim; the predatory nature of the assault; the choking activity; vaginal penetration; and the lack of a condom. The mitigating circumstances included the lack of a criminal record; the offender’s stable employment; and support he had from his wife and employer.

In R. v. L., the offender was convicted of sexual assault and simple assault after a trial. Referring to the range for major sexual assault involving vaginal penetration that was identified in Bradley, the court imposed a five-year sentence for the sexual assault with three months concurrent on the simple assault count.

There the offender and victim knew each other. The victim was 53 years old with mobility issues that necessitated a walker. The offender pushed her down, forced fellatio, vaginal penetration, and he attempted anal penetration. A condom was not used. The victim suffered injuries to various parts of her body. The aggravating factors included the offender’s lengthy criminal record; vaginal penetration; failure to use a condom; the significant impact on the victim and her vulnerability; the force used to subdue and control the victim; and the pain and injury caused. The mitigating factors included a relatively minor history of violent offences; the offender’s post-offence substance abuse rehabilitation; substantial community and family support; and the offender’s sexual abuse as a teenager, resulting in substance abuse. In the present case, the offender does not have a record and he did not force oral sex or attempt anal penetration.

In K.T., a sentence of four and a half years was imposed, factoring in credit for pre-trial custody, in the following circumstances. The offender and victim were strangers. The victim was running in a park setting and the offender pounced on her from the bushes and knocked her to the ground. He got on top of her, punched her and choked her as she struggled to escape. He vaginally penetrated the victim without a condom. The assault was interrupted when other people came upon the scene. The aggravating factors included an unrelated prior criminal record with no prior violence or jail sentences; a random attack on a stranger; violence including choking; vaginal penetration without a condom, and the significant impact on the victim and the community. Mitigating factors included the offender’s guilty plea; his surrender to police and a confession. Further, the sentence represented the offender’s first jail sentence.

In Curto, the Court of Appeal determined that the imposition of a four-year period of imprisonment for the sexual assault at issue, was not outside the range. The case involved a historical sexual assault that occurred nearly two decades earlier. The offender attended at his employee’s home, removed her clothes and forced sexual intercourse with her. He then spat on her and apologized for not spending the night. As a result of the assault, the victim stopped working, became socially isolated, and began to abuse alcohol and drugs. The aggravating factors were found to include the significant impact on the victim; vaginal penetration and the lack of a condom. The mitigating factors included the offender’s lack of record at the time of the offence; the fact that he was suffering from significant medical issues at the time of sentencing; and his history of steady employment. The defence in this case observes that the employee/employer relationship in that case differs from the nature of the relationship between the parties in this case.

In T.J.S., a Nova Scotia case, the offender was sentenced after trial to four years in prison for sexual assault with a concurrent sentence for uttering threats and choking. The trial judge relied on the Supreme Court of Canada’s decision in R. v. McCraw, [1991] 3 S.C.R. 72, for the proposition that non-consensual vaginal intercourse is a major sexual assault. In T.J.S. the offender and victim were best friends. They were studying at the offender’s apartment when he became angry and slapped the victim, covered her nose and mouth and pushed her down by her throat. He vaginally penetrated her with his penis and threatened to hit her again if she did not stop fighting. The aggravating factors included vaginal penetration; the lack of a condom; the violent nature of the attack and the significant impact on the victim. The mitigating factors included the lack of a criminal record.

The defence submits that the circumstances of T.J.S. are somewhat similar to those before the court, however, the offender’s level of violence in that case was much greater than it is in the present circumstance.

In Mitrovic, the victim consumed a large quantity of alcohol, cocaine and other medication. She called the offender, her friend, to come over and check on her condition. Upon arrival he made sexual advances towards her, which she rebuffed. She passed out shortly thereafter. She woke up to find the offender naked in her bed with his penis inside her. She pushed the offender away. He left and then returned to retrieve a used condom saying, “Good luck with your DNA evidence.” He subsequently sent her taunting text messages. The offender was found guilty after a trial.

At the time of sentencing, the offender was 45 years old with a criminal record that the court found “lengthy and alarming”. The vast majority of his prior offences consisted of violence against women and he was on probation for a domestic assault conviction at the time of the offence. Other aggravating factors included the nature of the relationship between the offender and the victim; the victim’s vulnerability at the time of the offence; vaginal penetration; the offender’s callous attitude after the assault and the serious psychological trauma suffered by the victim. Mitigating factors included the offender’s employment status and his family’s support.

Milloy J. imposed a sentence of four years imprisonment. She concluded that the general range for offences of the nature before her was between three and five years, relying on Bradley in that regard. She further observed that sentences of less than three years were only for exceptional circumstances and the trend in more recent years was towards longer sentences in cases of serious sexual assault.

In V.L., the Court of Appeal affirmed a four-year sentence for an offender who was found guilty of sexual assault after a trial. The offender and victim were friends. The victim was overpowered by the offender in her home and vaginally penetrated with his penis. Aggravating circumstances included vaginal penetration. Mitigating factors included a lack of a criminal record. The Court of Appeal found four years to be an appropriate sentence.

In McCaw, Spies J. imposed a 40-month sentence for sexual assault following a finding of guilt after a trial. In that instance, the offender penetrated the victim’s vagina with his penis while she was passed out. He did not wear a condom and he ejaculated. Aggravating factors included vaginal penetration; the lack of a condom; the significant impact of the offence on the victim; and the victim’s vulnerability. Mitigating factors included the lack of a criminal record; family and community support; remorse expressed during sentencing; the offender’s relative youth; and efforts that he had made towards rehabilitation for drug and alcohol addiction. Similar to the result in Mitrovic, Spies J. relied on Bradley to find that the appropriate range for a single act of unprotected vaginal penetration is three to five years. She also echoed the sentiment expressed in Thurairajah that even for first-time offenders, the objectives of denunciation and deterrence gain prominence when sentencing for serious crimes of violence, particularly sexual assault.

The defence agrees that the aggravating and mitigating circumstances in McCaw are somewhat comparable to the present case. However, the defence takes issue with the three-to-five-year range expressed by the sentencing judge and relies on several cases, which I will address momentarily, to suggest that the bottom end of the range is lower than three years even in non-exceptional circumstances.

Specifically, the defence relies on the following cases:

a) R. v. Redden-Cox, 2021 ONSC 162;

b) R. v. Walsh, 2019 ONSC 1286;

c) R. v. Ignacio, 2019 ONSC 2832;

d) R. v. C.L., 2019 ONSC 2144;

e) R. v. Cepic, 2018 ONSC 3346;

f) R. v. Hughes, 2017 ONCA 814; and

g) R. v. Garrett, 2014 ONCA 734.

As a general observation, the sentences imposed in the defence cases tend to fall below the bottom end of the range identified in Bradley. In that regard, it is important to note two things.

First, some of the cases relied upon are classified as “date rape” cases in which the sentencing court identifies a normal range of two to three years. Second, the results in some of the cases appear to be driven in part by the positions adopted by the Crown before the respective sentencing courts, which were below the four to five-year sentence that the Crown seeks in this case. I will now specifically address the defence cases.

In Redden-Cox, the court imposed a sentence of two years imprisonment on a conviction of sexual assault, finding that the case fell in the “date rape” category, which attracted a normal range of sentence between two and three years. There, the offender and victim had met approximately one week before the assault and engaged in conversation, while the victim visited her friend, who lived next to the offender. On the date of the offence, the victim was visiting her friend again. The offender invited them to his residence for a drink. Later in the evening, the victim, who was slightly intoxicated, attended, and she and the offender engaged in consensual kissing and touching. The offender exposed his penis, pulled down the victim’s shorts and non-consensually penetrated the victim’s vagina with his penis for two to three minutes while he pinned her on her back. He then forced the victim to perform oral sex on him. Following the assault, the victim was left with bruising on her face. The offender maintained his innocence throughout.

The offender was found guilty after trial. The Crown sought a period of imprisonment of three to four years and the defence suggested two years. Aggravating factors included the victim’s youth and vulnerability; the forceful nature of the intercourse and the offender’s criminal record. Mitigating factors included the offender’s relative youth; his gainful employment; strong family ties; a dated record; good prospects for rehabilitation; and a favourable PSR.

Unlike Redden-Cox, I do not find that the circumstances in this case constitute a “date rape” scenario.

In Walsh, the court imposed a sentence of two years incarceration in a penitentiary following a conviction of sexual assault after trial. The offender and victim met at a bar and had shared a fleeting acquaintanceship beforehand. Eventually, they went to the offender’s residence where he forced oral sex and vaginal intercourse on the victim. The victim told the offender “no” several times. After the assault, she ran to the bathroom and vomited. The offender made a video recording of her naked in the bathroom and showed it to a number of people. He maintained his innocence throughout trial.

The Crown submitted that the range of sentence was 18 months to three years and it sought a three-year period of imprisonment. The defence sought 12 months incarceration. The aggravating factors were found to include forceful oral and vaginal intercourse; traumatic impact to the victim; and the disregard for the victim’s dignity by video recording her. Mitigating factors included that the offender was a first-time youthful offender with a stable family and a supportive network. He produced ten letters of support, and was employed full-time.

In arriving at its sentence, the court was mindful of the principles of denunciation and deterrence, but also the need to act with restraint for a first-time offender, receiving a prison sentence.

In Ignacio, the offender was sentenced to 20 months on a conviction of sexual assault. The victim and offender were in their early twenties and met at a concert. They met up again a few days later and eventually engaged in some consensual sexual activity, including oral sex in the offender’s vehicle. The victim declined to engage in sexual intercourse. The offender grabbed her and forcibly penetrated her vagina with his penis. The victim told him to stop. He did not. Instead, he restrained her and eventually ejaculated inside her.

There, the Crown sought a period of incarceration of two to three years. The defence suggested 18 months. Aggravating factors included the significant emotional trauma suffered by the victim; the serious nature of the sexual assault; and the failure to wear a condom. The mitigating factors included the offender’s youth; his supportive family; his attendance at college; consistent work history; his lack of a record; and his involvement in a relationship with a supportive partner. The court placed a significant emphasis on the offender’s youth and lack of a record and also considered collateral immigration consequences to which the offender was potentially exposed.

In C.L. the offender was sentenced to two years incarceration on a conviction of sexual assault. The offender and victim knew each other for several years. While the victim was purchasing marijuana from the offender, he invited her to stay and play chess with him. He then asked her to lick peanut butter off of him. The victim refused and the offender then pushed her onto a bed and removed her clothing and engaged in nonconsensual intercourse with her. The victim said “no” and tried to push the offender off of her. The offender maintained his innocence throughout.

The Crown sought a period of imprisonment of two and a half to three years and the defence suggested 18 months. The aggravating factors included the seriousness of the sexual assault; the traumatic impact on the victim; the victim’s age at the time of the assault, she was 17 years old; and post-assault text messages sent to the victim. The mitigating factors included the offender’s relative youth, he was 20 years old at the time of the offence and 25 years old at the time of sentencing; the PSR evidencing a positive upbringing; and the offender’s work history.

Interestingly, the court found that the case did not possess any exceptional features that justified departing from the usual range of “two to three years” with the mitigating factors tilting the sentence toward the low end of the range.

In Cepic, the offender was sentenced to two years less a day following a conviction for sexual assault. The offender was a performer at a male strip club, and the victim was a patron. The victim was intoxicated, and the offender was sober. They went to a private area of the club, where the offender forced the victim to perform oral sex. He then turned her over on her stomach and penetrated her vagina with his penis. She tried to push him off but could not. The offender maintained his innocence throughout and displayed no remorse.

Notably, in that case the Crown sought a period of incarceration of two years less a day and the defence sought a period of incarceration of 12 to 15 months. The court found the aggravating factors included the serious nature of the sexual assault; the trauma to the complainant; oral and vaginal penetration without the use of a condom and the vulnerable nature of the victim. The mitigating factors included the offender’s relative youth; his work ethic; a supportive letter and a dated criminal record. The court acceded to the Crown’s request for sentence, noting that any sentence below an upper reformatory range would not give sufficient weight to denunciation and deterrence.

In Hughes, the Court of Appeal dismissed an appeal against an 18-month jail sentence imposed after a conviction for sexual assault. Contextually, the assault occurred in the victim’s dorm at the university that she and the offender attended. They were acquaintances but they were not friends. The offender entered the victim’s dorm room and engaged in nonconsensual sexual intercourse with her. She was later found undressed and hiding behind a closet door. The Court of Appeal observed that the 18-month sentence fell within the range of sentences offered by both the Crown and the offender. The Court of Appeal further observed that there were strong mitigating factors in the case and a significant reformatory sentence was a fit sentence, but the specific underlying factors are not set out in the court’s endorsement.

Finally, in Garrett, the Court of Appeal overturned a 90-day intermittent jail sentence imposed after trial for a conviction of sexual assault and substituted a sentence of 18 months in jail. Contextually, the offender and the complainant had known each other for many years and eventually went on a date. They engaged in consensual kissing and then the offender’s behaviour became aggressive. Despite the victim asking him to “slow down” the offender continued the sexual activity, got on top of the victim, pulled up her bra, licked her breasts, and pinned her down. The victim said “stop” but the offender did not. He pulled the victim’s pants down and penetrated her vagina with his penis.

The totality of the aggravating and mitigating factors are not identified in the court’s endorsement. The court observed that at trial the Crown had sought a sentence of 18 months to three years. On appeal, the Crown sought a period of incarceration of two to three years. The trial judge referred to “date rape” offences attracting sentences of two to three years, but felt that the case was distinguishable. The Court of Appeal disagreed and found that the facts were neither exceptional nor unique. Further, the Court of Appeal concluded that the sentencing judge erred by overemphasizing mitigating factors.

As a result, the Court of Appeal imposed a term of 18 months imprisonment with a specific caveat as follows, set out at paragraph 23:

“The sentence imposed by this court should not be taken as a sentence within the appropriate or usual range. We are constrained in this regard by the Crown’s position at trial.”

Given the “date rape” categorization of the case and the Court of Appeal’s caveat above, in the context of the Crown’s position in this case, I do not find Garrett to be helpful in arriving at a sentence in this matter.

Further, while the foregoing authorities assist in ensuring parity in the sentence imposed on Mr. Vansnick, it remains that none of the cases cited raise exactly the same facts as this case, which underscores the reality that sentencing is a highly individualized exercise in the context of the particular offence and the particular offender before the court.

The cases also assist in identifying the applicable sentencing range in this case. As I previously indicated, the results in some of the cases cited by the defence must be read in the context of the respective sentences sought by the Crown, in those cases. I am mindful that Mr. Vansnick is a first-time youthful offender and presents with several mitigating factors, but given the circumstances of the offence and the fact that he committed a major sexual assault, I am unable to accept that an appropriate range in this case would include an upper reformatory sentence. In the context of all the authorities presented to me, including the Court of Appeal decisions referred to by counsel and those I have previously set out, I am satisfied that the applicable sentencing range in the circumstances before me is two to five years imprisonment.

Of course, sentencing ranges are, at best, guidelines for the application of relevant sentencing principles and objectives. Sentencing still remains a highly individualized process subject to judicial discretion, in arriving at a fit sentence in all the circumstances of the offence and the offender.

I will now turn to the aggravating and mitigating circumstances in this case.

I find the following aggravating circumstances have been demonstrated beyond a reasonable doubt:

1. Ms. Trahan has suffered a significant negative impact as a result of the offence, which is a statutory aggravating factor pursuant to section 718.2(a)(iii.1) of the Criminal Code. The offence has had a significant acute physical impact and an enduring psychological and financial impact on Ms. Trahan. The offender’s conduct was also an afront to Ms. Trahan’s personal dignity and her sense of personal security and integrity.

2. Mr. Vansnick engaged in violence in the commission of the offence beyond the level of violence inherent in the sexual assault itself.

3. Ms. Trahan was extremely vulnerable by reason of intoxication at the time of the offence. Mr. Vansnick exploited that vulnerability.

4. The nature of the offence was predatory and opportunistic. Mr. Vansnick directed Ms. Trahan away from the other people on the marijuana walk towards a dark, secluded area where he sexually assaulted her.

5. Mr. Vansnick digitally penetrated Ms. Trahan’s vagina and then engaged in non-consensual vaginal intercourse.

6. Mr. Vansnick did not use a condom, thereby exposing Ms. Trahan to the risk of sexually transmitted diseases and unwanted pregnancy. She was required to take medication as a result of that risk which seriously impacted her health on a short-term basis.

7. During the course of the assault Ms. Trahan repeatedly said, “no” and similar words expressing her lack of consent, which were repeatedly ignored by Mr. Vansnick. This conduct was highly demeaning to Ms. Trahan.

8. The assault occurred in a public place which increased the risk of humiliation and embarrassment to Ms. Trahan.

On a balance of probabilities, I find the following mitigating factors are present:

1. Mr. Vansnick is a youthful first-time offender.

2. Mr. Vansnick presents with a generally positive Pre-sentence Report.

3. Mr. Vansnick has a long history of stable employment and stable family relationships.

4. Clearly, Mr. Vansnick is well regarded by members of his family, his social circle, and other members of the community. He has a strong supportive network.

5. Mr. Vansnick plays an integral role in the development and stability of his disabled brother and, to a lesser extent, in providing assistance to members of his immediate family, as well as, his grandmother and his niece.

6. Mr. Vansnick is in a supportive interpersonal relationship.

There are a number of potentially mitigating circumstances that are absent in this instance, including:

1. The lack of a guilty plea.

2. An indication of remorse by the offender; and

3. Any indication of insight by the offender into his criminal behaviour.

I stress, that the absence of these factors does not serve as an aggravating feature in sentencing.

Finally, apart from aggravating and mitigating factors, the vigilante violence suffered by Mr. Vansnick shortly after the sexual assault raises a collateral consequence issue. Relying on Suter, the defence submits that Mr. Vansnick was struck several times about the head. He sustained a fractured nose, two black eyes, and concussive symptoms including dizziness and headaches following the attack. Medical documentation filed by the defence substantiates his reported injuries and symptoms. The defence submits that Mr. Vansnick also missed a week of work following the attack and he continues to experience nightmares and anxiety around groups of people.

The defence concedes that the result of the vigilantism in this case is not at the same level as Suter, where the offender was beaten twice and had his thumb cut off. Nonetheless, Mr. Vansnick sustained a serious and vicious attack. The effects on Mr. Vansnick should be treated as a collateral consequence and taken into consideration as part of the circumstances of the individual offender before the court. The defence submits that the vigilante attack is a further factor that supports the 18 months to two years plus a day sentence proposed by the offender.

The Crown sees things differently. The Crown focuses on several specific paragraphs of Suter, as well as Footnote three to the decision, where the Court indicates:

“To be clear, though relevant collateral consequences must be taken into account in a sentencing analysis, the attenuating effect of such consequences on the sentence imposed will differ depending on the circumstances. Indeed, in some cases it may be that the collateral consequence will have no impact on the sentence imposed.”

As a result, the Crown posits that while the violence committed on Mr. Vansnick should be considered as a collateral consequence for sentencing, it should be given little to no weight or impact on the sentence imposed.

The Crown differentiates the circumstances of the attack against Mr. Vansnick and those in Suter where the offender was assaulted twice, had his thumb removed and was left unconscious in a snowbank. His wife was also attacked. The Crown correctly observes that it is unclear whether the vigilantes in Suter were independently charged. In this case, however, we know that two attackers were arrested, Ryan Coll and Agatha Trahan, and Mr. Coll eventually pled guilty to assault and was sentenced accordingly.

Referring to certain aspects of Mr. Vansnick’s medical records, the Crown observes that while Mr. Vansnick may have suffered a fractured nose, it was not surgically corrected and the head injury he sustained was described as minor.

The Crown also submits that there is no evidence that the attack altered or meaningfully changed the offender’s personal circumstances in any substantial or lasting way and there is no evidence that because of the attack, including the injuries sustained, a particular sentence would have a more significant impact on Mr. Vansnick because of his circumstances. Therefore, the Crown reasons that there is no basis to conclude that the vigilante violence should have any impact on Mr. Vansnick’s sentence. Mr. Vansnick’s moral blameworthiness is extremely high and the offence he has been convicted of is extremely serious. It would not be in the interest of justice for this collateral consequence to impact or decrease the offender’s sentence.

I am of the view that the vigilante violence committed against Mr. Vansnick should be considered to a limited extent when crafting an appropriate sentence in this instance, but it does not attract much weight. Vigilantism cannot gain undue legitimacy in the judicial process.

Moreover, a sentence imposed must remain proportional to the gravity of the offence and the moral blameworthiness of the offender. Here, the gravity of the offence is extremely serious, and the moral blameworthiness of the offender is extremely high. In my previous judgment, I wholly condemned the vigilante violence that occurred in this instance, and I do so again.

I am mindful that the Crown posits that the vigilantism should have no impact on sentence. However, the principle of parity requires that “like offenders” should be treated alike. In this case, the circumstances of the offender are “unlike” those in each of the cases relied upon by the Crown and defence, respectively, to the extent that none of those offenders sustained a prolonged aggressive beating, after the offence, resulting in acute physical injuries requiring medical attention, some temporally limited cognitive symptoms, and enduring psychological symptoms in the guise of nightmares and anxiety in certain social situations. The reality is, those are consequences that Mr. Vansnick has suffered as a result of his criminal conduct, that the offenders in the other cited cases have not. I have kept that distinction in mind when arriving at the disposition below and I have reduced to a very limited extent the period of imprisonment I would have otherwise ordered.

Disposition

Based on the authorities presented to me by counsel, I find the range of sentence for the major sexual assault committed by Mr. Vansnick is two to five years imprisonment.

As alluded to previously, I find that the offence was exceptionally serious and horrific. It was predatory and opportunistic in its implementation. Mr. Vansnick used the elements of familiarity, surprise and superior force to subdue Ms. Trahan while sexually assaulting her and violating her bodily integrity at a most basic and fundamental level.

Thus far, the effects of the offence on Ms. Trahan have remained permanent. She carries physical scars from the incident and continues to struggle with emotional turmoil. More fundamentally, the offence has not only changed the course of her life, including her potential career path, it has changed her as a person.

Moreover, Mr. Vansnick’s moral blameworthiness for the offence is extremely high. On the trial evidence that I accepted beyond a reasonable doubt, Mr. Vansnick was patently aware that Ms. Trahan did not consent to any sexual activity with him throughout the entirety of the encounter. She consistently resisted and struggled to get away. She consistently expressed her lack of consent verbally. Mr. Vansnick dismissed her pleas to stop and continued with his sexually assaultive behaviour, as Ms. Trahan cried hysterically and was left terrified. His conduct was deliberate, intentional and an afront to basic notions of morality and human decency.

Given the seriousness of the offence and Mr. Vansnick’s significant moral culpability, denunciation and deterrence remain the primary sentencing objectives in this case and the sentence imposed must adequately meet those objectives.

Nonetheless, in arriving at a fit and proper sentence, I must also consider the offender’s prospects of rehabilitation. He is a youthful first-time offender with no history of sexual or other violence. He has an extremely strong supportive network of family and community who stand behind him. He plays a significant role in the lives of many people within that network.

Unfortunately, Mr. Vansnick does not appear to accept responsibility for the offence before the court. He is under no obligation to do so and his conduct in that regard is not an aggravating factor in sentencing. However, I am concerned that unless and until Mr. Vansnick accepts responsibility for the offence, and acknowledges and addresses the issue or issues that led him to engage in the serious criminality that he has, meaningful rehabilitative measures may be frustrated in whole or in part. I should add that I have not discounted the prospects of rehabilitation in this matter at all nor will I impose a harsher sentence because of the offender’s unwillingness to accept responsibility for the offence.

There are certainly strong mitigating factors in this case as it relates to the circumstances of the offender, but there are also very strong aggravating factors as it relates to the circumstances surrounding the offence. Given the serious nature of the offence and the degree of Mr. Vansnick’s moral blameworthiness, I simply cannot accept that in all of the circumstances before me including the operable collateral consequence, the defence’s proposed sentence of two years plus a day imprisonment is adequate to meet the objectives of denunciation and deterrence, even when tempered by considerations related to rehabilitation.

Mr. Vansnick, please stand, sir.

Sir, the evidence before me indicates, and I accept, that generally you are a productive member of society with a strong supportive network of family and community members whom you assist on nearly a daily basis. You provide assistance to your brother, your father, your grandmother and other immediate members of your family. You engage in volunteer work. You are in a committed and healthy interpersonal relationship. You have a steady work history. These are all commendable attributes that speak to a generally positive character.

However, you deliberately committed a serious offence of sexual violence accompanied by other violence against Ms. Trahan that has had and continues to have a significant impact on her life. You did so in a predatory and callous manner that showed a total lack of any regard for her dignity, her bodily integrity and her humanity.

Your conduct cannot and will not be tolerated, sir. After taking into account the circumstances of the offence, the offender, the relevant case law, the submissions of counsel, the aggravating and mitigating factors, and the operable collateral consequence, I am satisfied that the following sentence is the minimum sentence that adequately meets the objectives of denunciation and deterrence in this case while also recognizing the prospects for Mr. Vansnick’s rehabilitation and the need to act with restraint because he is a first-time offender.

Mr. Vansnick is convicted on Count 1 of the indictment. Sentence to go as follows:

1. Mr. Vansnick is sentenced to a term of imprisonment in a penitentiary for 35 months, which I calculate to be 1,065 days. I was not advised of any pre-sentence custody, so no deduction on that account is appropriate.

2. Mr. Vansnick will be subject to a ten-year prohibition on firearms in accordance with section 109 of the Criminal Code. This is the first weapons prohibition order that has been made in relation to the offender.

3. Based on the offender’s conviction pursuant to section 271 (a) of the Criminal Code, Mr. Vansnick will be placed on the Sex Offender Registry for 20 years, pursuant to section 490.013(2) (b) of the Criminal Code.

4. Sexual assault is a primary designated offence. Therefore, an order will go in accordance with Form 5.03 authorizing the taking of bodily samples including blood from the offender for the purpose of DNA analysis.

5. Mr. Vansnick shall not contact or communicate directly or indirectly with Ashley Trahan during the custodial portion of his sentence, pursuant to section 743.21(1) of the Criminal Code.

The terms of Mr. Vansnick’s judicial interim release are now revoked, and Mr. Vansnick may be taken into custody at this time.

Mr. McGivern, I’ve got a copy of the, just the sentence imposed for you.

MR. MCGIVERN: Yes.

THE COURT: Ms. Thomas, I have a copy for you, but we’ll have to get it to you electronically, I think.

MS. THOMAS: Thank you, Your Honour.

form 2 CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2)) Evidence Act

I, Annette Duquette (Name of Authorized Person) certify that this document is a true and accurate transcript of the recording of R. v. Mitchell Vansnick in the Superior Court of Justice (Name of Case) (Name of Court) held at 425 Grand Avenue West, Chatham, Ontario (Court Address) taken from Recording CD#1611_CR201_20220228_094719__6_VERBEEGR , which has been certified in Form 1. March 21, 2022 Annette Duquette (Date) (Signature of Authorized Person(s))