Court File and Parties

Oshawa Court File No.: CR-20-15386 Date: 2022-01-14 Ontario Superior Court of Justice

Between: Her Majesty The Queen And: Nathan Forsellino, Defendant

Counsel: Greg Black and Tammy D’Eri, for the Crown Thomas F. Balka, for the Defendant

Heard: October 20, 2021

Reasons for Sentence Leibovich J.

[1] Mr. Forsellino was convicted by a jury of sexually assaulting A.G. The Crown is seeking a penitentiary sentence of three and a half years. The defence is seeking a conditional sentence of two years less a day and has brought a constitutional challenge to s. 742.1(f)(iii), which prohibits this sentencing option. In the alternative, the defence seeks a sentence of nine months. Both counsel agreed that I should only determine the constitutional challenge if I am of the view that a conditional sentence is appropriate in this case. Sentencing submissions were heard on October 20, 2021 and the matter was adjourned to today, January 14, 2022, for my decision.

[2] This sentencing raises the following four issues:

1. What facts should Mr. Forsellino be sentenced on?
2. What is the appropriate sentence for Mr. Forsellino?
3. If the sentence is less than two years should it be served in the community?
4. If a conditional sentence is appropriate, is s. 742.1(f)(iii) constitutional?

1) What facts should Mr. Forsellino be sentenced on?

[3] A critical first issue is upon which facts should I sentence Mr. Forsellino. The jury was instructed that they could find Mr. Forsellino guilty of sexual assault if they were satisfied beyond a reasonable doubt that he touched the victim’s breast, without her consent, earlier in the evening, or if they were satisfied beyond a reasonable doubt that he had sexual intercourse with her without her consent later in the evening. At trial there was no dispute that A.G. and Mr. Forsellino met by chance, on July 21, 2018, at a bar. A.G. was there celebrating A.N.’s birthday with her boyfriend. The boyfriend was friends with Mr. Forsellino. Mr. Forsellino went back with them to A.N.’s townhouse afterwards. A.G. had arranged earlier that she would sleep over. While at the townhouse, Mr. Forsellino and A.G. had sexual activity, ending with Mr. Forsellino having sexual intercourse with A.G. After the sexual intercourse, Mr. Forsellino took an Uber and left.

[4] A.G. testified that she did not consent to Mr. Forsellino touching her breast while at the townhouse and she did not consent to having sexual intercourse with Mr. Forsellino later on that night. Mr. Forsellino testified that he did not touch A.G.’s breast earlier on as she described, and the sexual intercourse was consensual.

[5] Juries give verdicts but not reasons. It is unknown whether they found that Mr. Forsellino committed sexual assault by touching A.G.’s breast without her consent, by having sexual intercourse with her without her consent, or both. Section 724(2) of the Criminal Code applies to fact-finding for the purposes of sentencing in a jury trial, once the jury has rendered its general verdict. Section 724(2) provides as follows:

Where the court is composed of a judge and jury, the court (a) shall accept as proven all facts, express or implied, that are essential to the jury's verdict of guilty; and (b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.

[6] The Court of Appeal in R v. Moreira, 2021 ONCA 507, at paras. 46 and 47 recently summarized the principles involved in applying s. 724(2) of the Criminal Code. The court stated:

In R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at paras. 17-18, McLachlin C.J. articulated two principles governing the task of a sentencing judge as contemplated in s. 724(2):

First, the sentencing judge “is bound by the express and implied factual implications of the jury's verdict”: R. v. Brown, [1991] 2 S.C.R. 518, at p. 523. The sentencing judge “shall accept as proven all facts, express or implied, that are essential to the jury's verdict of guilty” (Criminal Code, s. 724(2)(a)), and must not accept as fact any evidence consistent only with a verdict rejected by the jury: Brown; R. v. Braun (1995), 95 C.C.C. (3d) 443 (Man. C.A.).

Second, when the factual implications of the jury's verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury, but should come to his or her own independent determination of the relevant facts: Brown; R. v. Fiqia (1994), 1994 ABCA 402, 162 A.R. 117 (C.A.). In so doing, the sentencing judge “may find any other relevant fact that was disclosed by evidence at the trial to be proven” (s. 724(2)(b)). To rely upon an aggravating fact or previous conviction, the sentencing judge must be convinced of the existence of that fact or conviction beyond a reasonable doubt; to rely upon any other relevant fact, the sentencing judge must be persuaded on a balance of probabilities ... It follows from the purpose of the exercise that the sentencing judge should find only those facts necessary to permit the proper sentence to be imposed in the case at hand. The judge should first ask what the issues on sentencing are, and then find such facts as are necessary to deal with those issues. [Emphasis added.]

In view of these governing principles, a judge tasked with sentencing an offender based on a jury verdict must attempt to identify the express or implied factual implications of the verdict on material issues. If those factual implications are ambiguous or unclear, the sentencing judge must make their own determination of the relevant facts, but must not arrive at findings inconsistent with those necessary to the jury verdicts rendered: see e.g., R. v. L.M., 2014 ONCA 640, 122 O.R. (3d) 257, at paras. 48-51.

[7] I agree with defence counsel that it is unclear upon which basis, or both, the jury found that Mr. Forsellino sexually assaulted A.G. It is therefore incumbent upon myself to make my own factual determinations.

[8] A.G. testified that when they were at the townhouse, Mr. Forsellino came into the room with the bed that she was in. She did not invite him. She was sitting on the bed. He sat next to her. They talked about tattoos. She said that she had a tattoo on her sternum. He then lifted her shirt and grabbed her boob. She felt disgusted. She did not give him permission. She told him that he did not have to grab her boob to see the tattoo. He removed his hand.

[9] She testified that she left the room but returned later on. Mr. Forsellino came back in. A.G. laid down on the bed with her back towards Mr. Forsellino. He started rubbing her back. He then asked if that was okay. A.G. said it was. He then asked if it was okay if he rubbed lower, towards her butt. She said yes but told him that she was not going to sleep with him. A.G. testified that Mr. Forsellino flipped her over. She told him that she did not want to sleep with him and that she was wearing a tampon and on her period. He said that was fine and pulled off her shorts. She said, see I have a tampon. She testified that he pulled out the tampon and inserted his penis. He put his hand on her neck and saw that she was crying and stopped. She started to cry before he put his hand on her throat. She started to whimper when he placed his hand on her throat. He heard that. He reacted and got off. He said that he was sorry. He repeated it over and over. He asked if she was okay. Mr. Forsellino never asked her if they could have sexual intercourse. He did not wear a condom and there was no discussion about him wearing a condom. She just wanted him to leave. She called him an Uber and he left.

[10] I am satisfied beyond a reasonable doubt that Mr. Forsellino forced sexual intercourse upon A.G., as she described. A.G. was upset the next day and crying. A.G.’s friend, A.N., testified. After hearing from A.G. what had happened, she texted Mr. Forsellino. Those texts were entered as an exhibit at trial. In my view, these texts strongly corroborate A.G.’s testimony. A.N. squarely accused Mr. Forsellino of sexual assault. She called him a rapist, which could only have been a reference to the forced act of intercourse. His various responses seen in the texts were:

a. he had not slept and had been crying on and off; b. that he cannot express how bad he feels for putting that on A.G.; c. that “…this situation of crossing boundaries and hurting someone is destroying me mentally”; d. that “he almost succeeded in committing suicide.”; e. that he drove to A.N.’s place to formally apologize; and, f. that he “was disgusted in his existence”.

[11] Mr. Forsellino testified that when he apologized, he was not apologizing for sexually assaulting A.G., but for cheating on his girlfriend and that all those texts should be considered in that light. I do not accept this explanation, nor could it reasonably be true. There are no references to cheating or his girlfriend in the texts. The explanation makes no sense given the context. The texts are what they appear to be: an admission of guilt by Mr. Forsellino. He was apologizing for crossing boundaries and sexually assaulting A.G. by having sexual intercourse with her without her consent. The remorse reflected in the texts is consistent with the remorse he felt immediately after having sexual intercourse with A.G. as described by A.G. He saw that she was crying, stopped having sexual intercourse, and kept telling her he was sorry.

[12] For the sake of clarity, I also accept that Mr. Forsellino touched A.G.’s breast without her consent earlier, as she described but clearly it is the forced act of sexual intercourse that is the aggravating factor on sentencing. It is also the forced act of sexual intercourse that has caused A.G. the pain and turmoil seen in her victim impact statement.

2) What is the appropriate sentence for Mr. Forsellino?

Circumstances of the Offender

[13] Mr. Forsellino is 28 years old. He comes from a loving and supportive family. He has no criminal record, no history of mental illness, or alcohol or drug addiction. He is in a long-term relationship which started in 2017. After high school, he obtained a college diploma in electrical engineering. He has worked at different places over the years. In 2020, Mr. Forsellino started his current employment at the Steel Manufacturing company. He has worked his way up to a “Tagger Operator”. He hopes to be promoted again shortly and he enjoys working at the company. It is expected though that if he receives a jail sentence, he will lose his job.

[14] The author of the pre-sentence report stated that:

Throughout the interview, the subject expressed a desire to help individuals less fortunate than him, specifically “homeless people”. He noted that he wants his future career to revolve around assisting people and feels he lives his life trying to help those in need. When asked about what the subject does to assist the homeless or those less fortunate than him, he noted that he has provided them with meals, such as a hotdog or hamburger. He also added that he “attended a rally about sex trafficking with my girlfriend” in Toronto previously.

[15] With respect to the current offence, Mr. Forsellino told the author that:

He did not plead guilty and denies any responsibility of involvement in the offence. He noted that “I just want to move forward and move past this” and described the offence as being “a learning curve for both of us”. He noted that “I don’t want to put myself in a situation like that again” and advised that he is now focusing on “self-development and self-growth” as “holding onto negative feelings is not good for the body”. When asked about the impact the offence might have had on the victim, the subject did not provide an answer. Additionally, when asked about the victim, the subject advised that “I don’t hold any resentment towards her”.

[16] Twenty-four letters of support were filed on Mr. Forsellino’s behalf. Both counsel agree that to the extent that any of the letters suggest a certain sentence, I should ignore those recommendations. I have. The letters are from friends and family members. They all paint a similar picture, of an individual who is kind, caring and considerate. They believe that the offence is completely out of character for Mr. Forsellino. Here is one demonstrative extract:

Nathan is an extremely sensitive young man with a huge heart, and I have never known him to intentionally hurt anyone which is why this offence is so totally out of character for him. Nathan's life has literally been on hold for the last three years and the weight of this charge has taken its toll on him. He has expressed regrets at ever allowing himself to be put in those circumstances but having said that, I have seen Nathan mature a tremendous amount over that time frame and his focus is now on his job, his girlfriend of almost two years, and his family.

I understand the distressing circumstances that Nathan faces but he is caring, thoughtful and valuable member of society and will continue to be so if given the chance. I truly hope for the best possible outcome for Nathan and hope that you will take into consideration the wonderful attributes that Nathan brings.

[17] At the sentencing hearing, Mr. Forsellino spoke. He said that he has grown to become a better man. The last few years have been hard because of the pandemic and he has attempted to help the community and help feed the less fortunate. He wants to continue to grow and become a better man and husband.

Victim Impact

[18] A.G. filed a victim impact statement. The offence has had a significant effect on her. She stated:

The evening of July 22, 2018 is a night I hate to think or talk about. It is a night I hate to dwell on and a night that completely changed the way I experience my life and exist each day.

Before that night, I enjoyed going out with friends and meeting new people. I was social and always happy to expand my circle of friends, regardless of one’s gender. Now, I am cautious and guarded when around men who are not known to myself or my friend group.

I absolutely hate the fact that this is the mindset I have now. I hate that I am afraid of going places alone or staying out too late. I hate how my friends think of me differently and, at times, blamed me for his actions. I hate how difficult it has been to find mental health support to deal with the trauma from this. And, I hate that I even have to write this statement in hopes that it will assist in making the appropriate decision in sentencing him for his actions.

Aggravating and Mitigating Factors

[19] The mitigating factors are as follows:

1. Mr. Forsellino has no criminal record or any prior involvement in the law;
2. Until this offence he was a respectable member in the community;
3. He has strong family and community support; and,
4. There is no real risk that he will re-offend.

[20] The aggravating factors are:

1. The sexual assault included an act of forced sexual intercourse; and,
2. The harsh impact felt by the victim for this offence.

Law and Analysis

[21] Section 718 of the Criminal Code describes the purpose of sentencing:

The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

a. To denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; b. To deter the offender and other persons from committing offences; c. To separate offenders from society, where necessary; d. To assist in rehabilitating offenders; e. To provide reparations for harm done to victims or to the community; and, f. To promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[22] Further, s. 718.1 of the Criminal Code provides that:

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[23] In sexual offences, the moral blameworthiness of the offender is high. As stated by the Supreme Court of Canada in R. v. Friesen, 2020 SCC 9 at para. 89:

All forms of sexual violence, including sexual violence against adults, are morally blameworthy precisely because they involve the wrongful exploitation of the victim by the offender -- the offender is treating the victim as an object and disregarding the victim's human dignity (see R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584, at paras. 45 and 48).

[24] Sentencing in sexual assault cases must denounce this conduct and deter likeminded individuals from committing such offences. “Sexual assault is still among the most highly gendered and underreported crimes.” Sentencing decision must reflect the harm that sexual offences have done to the complainant and our community at large. As stated by the Supreme Court of Canada in R. v. Goldfinch, 2019 SCC 38 at para. 37:

…As time passes, our understanding of the profound impact sexual violence can have on a victim's physical and mental health only deepens. Parliament enacted s. 276 to address concrete social prejudices that affect trial fairness as well as the concrete harms caused to the victims of sexual assault. Throughout their lives, survivors may experience a constellation of physical and psychological symptoms including: high rates of depression; anxiety, sleep, panic and eating disorders; substance dependence; self-harm and suicidal behaviour. A recent Department of Justice study estimated the costs of sexual assault at approximately $4.8 billion in 2009, an astonishing $4.6 billion of which related to survivors' medical costs, lost productivity (due in large part to mental health disability), and costs from pain and suffering. The harm caused by sexual assault, and society's biased reactions to that harm, are not relics of a bygone Victorian era.

Also see R. v. Barton, 2019 SCC 33 at para. 200.

[25] In R. v. Friesen, the Supreme Court of Canada provided guidance on sentencing offenders who have committed sexual offences against children. The court stated that sentences for those who sexually abuse children should increase. However, the court was quick to point out that the reasons should not be taken as a license to decrease sentences for the sexual abuse of adults or as a bar from increasing such sentences:

We would emphasize that nothing in these reasons should be taken either as a direction to decrease sentences for sexual offences against adult victims or as a bar against increasing sentences for sexual offences against adult victims. As this Court recently held, our understanding of the profound physical and psychological harm that all victims of sexual assault experience has deepened (Goldfinch, at para. 37). In jurisdictions that have erroneously equated sexual violence against children with sexual violence against adults, courts should correct this error by increasing sentences for sexual offences against children -- not by decreasing sentences for sexual offences against adults.

[26] The Crown seeks a sentence of three and a half years and argues that the range for this type of offence is three to five years. The defence submits that a proper sentence would be nine months, if the sentence was to be served in jail. As I stated in R. v. CF, 2020 ONSC 5975, at para. 39, when considering the issue of parity and ranges:

The court must ensure, as stated in s. 718.1 of the Criminal Code, that the sentence imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender. In order to ensure this, courts look to sentences given in other cases. The parity principle, which is required now by s. 718.2(b) of the Criminal Code requires that similar offenders who commit similar offences in similar circumstances be given similar sentences. Past cases, or precedents, create sentencing ranges to help guide the court. But sentencing is an individualized process and sentencing ranges are not meant to handcuff the court. As stated by the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 at para. 57:

Where sentencing ranges are concerned, although they are used mainly to ensure the parity of sentences, they reflect all the principles and objectives of sentencing. Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered “averages”, let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case.

[27] Counsel have submitted a number of cases in support of their respective positions. It is, as expected, nearly impossible for other cases to have the same factual matrix as the case before me. Furthermore, it is difficult to reconcile all the various sentencing decisions with each other. I have found the following cases provided to be the most helpful:

1. R. v. Bradley 2008 ONCA 179 – The accused was a police officer. While home one weekend, K. invited the appellant to her house. He came over. That night, the appellant raped her vaginally and anally. He also demanded oral sex from her. He made degrading comments to her and told her she “owed this” to him. The court stated at para. 18:

We accept the Crown's submission that, in the circumstances, the appropriate range of sentence was three to five years. Without in any way diminishing the devastating impact the assault had on the complainant, we find that, in the circumstances, a sentence at the low end of the range is fit. The conviction was for a single count of sexual assault. There was no violence apart from that which is inherent in such an offence. The offence had occurred many years prior to trial and the appellant, a man in his early fifties, had no prior criminal record. In addition, there was much evidence on his otherwise unblemished character and positive role as a father, especially to his two youngest children.

This case was recently referenced by the Court of Appeal in R. v. RC, 2020 ONCA 159 at para. 95.

2. R. v. McCaw, 2019 ONSC 3906 – This victim was passed out under the influence of alcohol. The offender engaged in vaginal intercourse without the consent of the victim who was incapable of consenting. The offender claimed to have no memory of having sex with the victim. The offender ejaculated in the victim and did not wear a condom. The offender completed programs in alcoholism prior to sentencing and was remorseful. The offender received a sentence of 40 months of incarceration.

3. R. v. McKenzie 2017 ONCA 128 – The 35-year-old accused was convicted of sexually assaulting a 19-year-old co-worker at a workplace Christmas party. He touched her buttocks and thighs, kissed her, pulled her into a washroom and pressed his penis against her anus, achieving partial penetration. The accused stopped the sexual assault when someone knocked at the washroom door. The accused was a permanent resident of Canada. He would lose his right to appeal any removal order if he received a sentence of six months' imprisonment or more. The trial judge sentenced the accused to nine months' imprisonment followed by two years' probation. The accused appealed his sentence. The Court of Appeal dismissed the appeal and stated at paras 22 and 36:

Ultimately, it must be determined whether the sentence imposed upon the appellant was “demonstrably unfit”: see R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 51 to 53. The sexual offence was serious, one involving anal penetration, which is generally treated as an aggravating circumstance: see R. v. R. (M.), 2014 ONCA 484, 114 W.C.B. (2d) 471, at para. 6. Given the superficial relationship between the appellant and the complainant, their age difference, the complainant's alcohol consumption, the circumstances in which the sexual assault took place, and the impact on the complainant, the trial judge was right to characterize this sexual assault as “significant.” Leaving aside immigration consequences for the moment, which I will return to below, many aspects of the appellant's background and life circumstances were positive, and the trial judge did take them into account. However, these had to be balanced against the appellant's troubling lack of insight into his own behaviour, and the harm he caused the complainant.

Returning to the facts of this case, the trial judge did give serious consideration to the appellant's immigration situation. He thoroughly considered the issue and, after “anxious consideration”, concluded that it would not be appropriate to impose a sentence of imprisonment that was less than six months. Indeed, he could find no jurisprudential support for such a lenient sentence in the circumstances of this case, nor could counsel on appeal point us to any authority. To have imposed a sentence of less than six months' imprisonment would have involved reducing the sentence solely for the purpose of avoiding the impact of the IRPA, something that the court in Pham, para. 15, held inappropriate. See also R. v. Badhwar, 2011 ONCA 266, 270 C.C.C. (3d) 129, at paras. 42 to 45; R. v. Freckleton, 2016 ONCA 130, 128 W.C.B. (2d) 434, at para. 2; and R. v. Mohammed, 2016 ONCA 678, 132 W.C.B. (2d) 383, at para. 3. It would have resulted in a demonstrably unfit sentence for a “significant sexual assault” involving anal penetration.

4. R. v. Rand, 2012 ONCA 731, the Ontario Court of Appeal upheld a four-year sentence for an offender who was 27 years old and was convicted of sexually assaulting a very intoxicated 17-year-old at an open-air rock concert. After some flirting and consensual kissing, the offender took the young woman into some bushes and had unprotected vaginal and anal intercourse with her without her consent, as well as forcing her to perform oral sex on him. The offender had a prior record that included crimes of dishonesty and crimes of violence including assault, assault with a weapon and assault with intent to resist arrest. Two of the assault convictions were for domestic violence. In brief reasons upholding the four-year sentence, the Court of Appeal stated that it was “well within the appropriate range”.

5. R. v. Garrett, 2014 ONCA 734 – The accused and complainant were friends and went on a date involving drinks and then consensual kissing. She invited him into her apartment and after consensual kissing, he became aggressive, ultimately engaging in non-consensual sexual intercourse with her while she told him to stop. The trial Crown sought a sentence of only 18 months. The trial judge imposed a 90-day sentence. The Crown appealed. The Court of Appeal concluded that the sentence imposed was “manifestly unfit” and imposed the 18-month sentence that the Crown had sought at trial. It noted at paragraph 23 that this sentence “should not be taken as a sentence within the appropriate or usual range” observing that the Court was constrained by the Crown's position at trial.

[28] It is evident from my review of the cases provided by counsel and the cases referenced therein that generally an accused, even one of good character, who forces sexual intercourse on a victim will receive either a significant reformatory sentence or a penitentiary sentence anywhere from two to five years.

[29] I agree with defence counsel that there are factual similarities between this case and R. v. McKenzie, which resulted in a sentence of nine months. However, a critical factor in that decision was the accused’s immigration status. Furthermore, I do not see the Court of Appeal’s decision as an affirmation that the sentenced imposed at trial was a fit one, rather that it was not demonstrable unfit. The accused appealed in that case, not the Crown.

[30] The accused, after earlier touching the victim’s breast without her consent, forced sexual intercourse on her and put his hand around her throat. The victim has suffered significantly as a result. A nine-month sentence, as requested by defence counsel, is simply too low to properly denounce the accused’s behaviour and to deter others.

[31] However, the three and a half years requested by Crown counsel is too high. The aggravating features seen in R. v. Bradley, R. v. McCaw, and R. v. Rand are not present in this case. In this case, the act of forced intercourse was brief, and the accused stopped when the complainant started to whimper after he placed his hands around her throat. While each case is different, the case that comes closest, in my view, is R. v. Garrett, where the forced act of intercourse followed some consensual activity.

[32] Furthermore, as mentioned, there are mitigating factors. The accused has no criminal record. He has strong family and community support. I do not see him as being a risk to re-offend. He can be rehabilitated.

[33] COVID-19 is a factor that can be considered as a collateral consequence: R. v. Morgan, 2020 ONCA 279, [2020] O.J. No. 1978, at paras. 9-12. However, collateral consequences cannot be used to reduce a sentence to a point where the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender: R. v. Suter, 2018 SCC 34 at para. 56. I have not been provided with any evidence that Mr. Forsellino has a particular vulnerability to the virus; R. v. Larivière, [2020] O.J. No. 2264 at para. 6. At the time of the sentencing hearing, no submissions were made with respect to the impact of COVID-19 on Mr. Forsellino’s incarceration. Sentencing submissions were in October 2021 and at that time the province was doing well with case counts decreasing and vaccination rate increasing. Now, we are in the middle of the fourth wave and partial lockdown with the Omicron variant. The COVID-19 landscape changes quickly and the parole board is in the best position to address the impact of the pandemic. As noted by the Court of Appeal in R. v. Morgan at, para. 12:

That result does not mean that there is no potential remedy for the appellant respecting the impacts arising from the COVID-19 pandemic. We expect that the Ontario Parole Board will take into account those impacts in deciding whether the appellant should be granted parole. If the Parole Board fails to do so, the appellant has other remedies available to him to redress that failure.

[34] Therefore, in my view, having regard to all the relevant factors and principles of sentencing, a sentence of 23 months is appropriate. I do not believe a term of probation is required in this case.

3) If the sentence is less than two years, should it be served in the community?

[35] A conditional sentence is a sentence that is capable of achieving the objectives of denunciation and deterrence; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at paras. 22; R. v. Macintyre-Syrette, [2018] OJ No 4442, 2018 ONCA 706 at para. 16. However, “there are circumstances in which the need for denunciation and deterrence is such that incarceration is the only suitable way to express society's condemnation of the offender's conduct: Proulx, at paras. 106-107.”. As stated in R. v. Macintyre-Syrette at para. 19:

As Doherty J.A. noted in R. v. Killam (1999), 126 O.A.C. 281, at para. 13, “a conditional sentence...does not, generally speaking, have the same denunciatory effect as a period of imprisonment. Incarceration remains the most formidable denunciatory weapon in the sentencing arsenal.

Also see R. v. Thurairajah, [2008] OJ No 460, 2008 ONCA 91, at para. 43.

[36] In this case, before Mr. Forsellino had sexual intercourse with A.G. without her consent, they engaged in some consensual sexual activity. The consensual rubbing of A.G. does not diminish Mr. Forsellino’s moral blameworthiness. As stated by the Court of Appeal in R. v. Kaczmarek, [2021] OJ No 6127, 2021 ONCA 771 at paras. 97 and 98:

However, I would reject Mr. Sullivan's submission that his moral blameworthiness would somehow be reduced because he continued sexual activity after consent was withdrawn, as opposed to no consent being present in the first place.

This issue was considered in R. v. Garrett, 2014 ONCA 734. In that case, the complainant initially consented to kissing. However, the situation soon evolved into one of non-consensual intercourse, during which the complainant repeatedly told Garrett to stop, but to no avail. In allowing the Crown's sentence appeal, this court held that failing to stop when in these circumstances, “constitutes demeaning behaviour and contemptuous disregard for the personal integrity of the complainant and engages the predominant sentencing principles of denunciation and deterrence”: at para. 19. The court added that, “the complainant's initial consent to kissing does not render less serious the subsequent non-consensual intercourse”: at para. 20.

[37] A.G. told Mr Forsellino a number of times that she did not want to have sexual intercourse with him. He did not care. He proceeded in the face of those objections, with “a contemptuous disregard for [her] personal integrity”. He removed her tampon and had sexual intercourse with her and then placed his hand around her throat. While he did not ejaculate, no condom was used.

[38] As noted by the Supreme Court of Canada, sexual assault is a gendered offence, where women are usually the victims. The affects of sexual assault referenced by the Supreme Court of Canada in R. v. Goldfinch can be seen here. The victim’s daily life experiences have been altered by the crime. She went from a social, happy person to one who is cautious and afraid. A term of actual imprisonment is needed in this case so men will understand the true meaning of consent. It requires the complainant to agree to engage in every sexual act in a particular encounter. To proceed in the absence of such consent is to commit a serious crime and cause serious harm to another person. To model the language in R. v. Thurairajah:

I am satisfied that the objectives of denunciation and to a lesser extent general deterrence required the incarceration of the respondent despite his many positive features. Any other disposition would not only fail to reflect those objectives, but would, in my view, be disproportionate both to the gravity of the offence and the respondent's degree of responsibility: Criminal Code, s. 718.1

[39] In my view, a conditional sentence is not an appropriate sentence in this case.

4) If a conditional sentence is appropriate is s. 742.1(f)(iii) constitutional?

[40] Given my determination that a conditional sentence is not appropriate, it is not necessary for me to determine if s.742.1(f)(iii) violates s.15 and/or 7 of the Charter.

Conclusion

[41] Mr. Forsellino, you are sentenced to 23 months in jail.

[42] There will be a s. 109 order for 10 years, a DNA order, and registration under the sex offender registry for 20 years. There will be a $200 victim surcharge with one year to pay.

Justice H. Leibovich Released: January 14, 2022