COURT FILE NO.: CR-19-10000463
DATE: 20221020
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
– and –
JACOB HOGGARD
Jill Witkin and Kelly Slate
for the Crown
Megan Savard and Kally Ho
for the accused
HEARD: October 6 and 14, 2022
PUBLICATION BAN
There is a publication ban under s.486.4 of the Criminal Code in relation to any information that could identify certain witnesses.
REASONS FOR SENTENCE
G. ROBERTS J.
OVERVIEW
[1] Following a four-week trial, a jury found Jacob Hoggard guilty of sexual assault causing bodily harm of JB.
[2] It falls to me to find the facts and impose a fit sentence that is proportionate to the circumstances of the offence, including its gravity, and the circumstances of the offender, including Mr. Hoggard's degree of personal responsibility.
[3] The Crown seeks a sentence in the range of six to seven years, accompanied by the required ancillary orders.
[4] The defence seeks a sentence in the range of three to four years, depending on the facts that I find. The defence takes no position on the ancillary orders.
[5] In all the circumstances of the offence and the offender, I find that a sentence of five years is fit and appropriate.
CIRCUMSTANCES OF THE OFFENCE
[6] Given that this was a jury trial, I must begin by determining the material facts required for sentencing. In R. v. Aragon, 2022 ONCA 244, at para. 106, the Court of Appeal confirmed that this is a two-step process. First, s.724 of the Criminal Code directs that I must "accept as proven, all facts, express or implied, that are essential to the jury's verdict". This means that I "must identify any relevant factual determinations the jury has made by examining what facts were essential to the jury's verdicts, and then apply those facts when sentencing the offender." Second, s.724 directs that I may "find any other relevant fact that was disclosed by evidence at the trial to be proven….". This involves me engaging in my own "independent fact-finding exercise". As the Supreme Court of Canada noted in R. v. Ferguson, 2008 SCC 6, at para. 18, where "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". In so far as facts are aggravating, I must be satisfied of them beyond a reasonable doubt. In so far as they are mitigating, I need only be satisfied of them on a balance of probabilities. If the evidence at trial was not sufficient to establish a fact to the requisite standard, evidence must be adduced, or the finding cannot be made.
[7] The issue at trial was consent. It turned on credibility. In order to find Mr. Hoggard guilty of sexual assault of JB causing bodily harm, the jury had to reject Mr. Hoggard's evidence where it differed from JB's evidence (i.e., they did not accept it, and it did not raise a reasonable doubt), accept JB's evidence, and be satisfied beyond a reasonable doubt that the evidence that they accepted established the essential elements of the offence.
[8] JB testified that she was in the second hotel room (where the attack occurred) with Mr. Hoggard for about four hours, over the course of which she was subjected to repeated acts of non-consensual sex, including forced anal penetration, forced oral penetration, and forced vaginal penetration. She testified that she was physically injured, but more serious was the psychological harm she suffered, and continues to suffer.
[9] The jury did not have to agree on exactly which facts established sexual assault, just that they were all satisfied that the essential elements had been established. Similarly, they did not have to agree on which facts established bodily harm, simply that it had been established. Having said that, I do not believe there is a realistic basis to parse JB's account of her time in the second hotel room. She was vigorously cross-examined, including about inconsistencies about things that happened before and after her time in the hotel room, the exact number or order of the sexual acts she described, the exact timing of when Mr. Hoggard took her telephone and when she got it back, exactly what she was wearing at different points and where her clothing was, the exact number of times Mr. Hoggard spit into her mouth, and why she did not leave despite numerous opportunities to do so. She provided explanations for the inconsistences that were put to her. For example, when JB was asked in re-examination why she did not call or text for help, or just leave, she explained that she was terrified of Mr. Hoggard and what he might do to her while she was in the second hotel room. She added that she has thought about what she could have done differently, and why she did not, every day since. The jury was entitled to accept JB's explanations or find that the defence complaints were peripheral or understandable. At the end of the day, the jury believed JB.
[10] However, to the extent that there is ambiguity about the facts, I am satisfied beyond a reasonable doubt that every aggravating act that JB described occurred, including that she was choked; that Mr. Hoggard called her a pig and a dirty slut and oinked at her; and that she suffered all the injuries she described, both physical and psychological. In reaching this conclusion, I am mindful of the attack that defence counsel made on the reliability and credibility of JB's evidence at trial (summarized in exhibit LL at trial) and renewed during the sentencing hearing. I am satisfied that the inconsistencies asserted are either explained, peripheral, or understandable in all the circumstances. For example:
• I do not accept that JB's statements in the telephone call Mr. Hoggard surreptitiously recorded reflect an inconsistent account of what happened during their meeting. JB explained that she made the call because she wanted Mr. Hoggard to acknowledge her experience of being hurt. She was not trying to set out an accurate account of what happened. She acknowledged that she lied about needing stitches and working for a lawyer, explaining that she said these things so that Mr. Hoggard would take her seriously and understand how badly he had hurt her. She explained that she did not want to say the word "rape" out loud, or even have Mr. Hoggard explicitly admit to it; she just wanted Mr. Hoggard to say sorry. JB was not aware that the call had been recorded until the middle of her cross-examination, and explained that before hearing it at that time, she had forgotten telling Mr. Hoggard about needing stitches, or that she worked for a lawyer. She broke down completely when the call was played to her before the jury and sobbed almost without pause. She spoke in a whisper. She explained in re-examination that the call refreshed her memory about what was said, but that she found it "very very upsetting" to hear Mr. Hoggard speak so calmly about something that was so horrific to her. I accept JB's explanation for her purpose in making the call, the lies she told in the call, and that she forgot that she had told them. Her evidence about all these things makes sense to me in all the circumstances, including what Mr. Hoggard said in the call, how glibly he said it, and his admission that he lied in order to end the call as soon as he said the things that he wanted to say.
• I do not accept that JB's evidence about being choked is inconsistent or unreliable. Defence counsel complains that JB's evidence that she thought she was going to die and no one knew where she was is inconsistent with the fact that Jesse, and possibly Brooke as well, knew she had decided at the last minute to go to Toronto to meet Mr. Hoggard. JB was not challenged on the fact that she received the exact address of the hotel room after arriving in Toronto. Rather she was challenged on the fact that there was nothing stopping her from texting the address to any one of her friends. The fact remains that JB was by herself in a big city she did not know, far from home, and none of her friends knew her exact location. While her fear about no one knowing where she was may not have been entirely logical, given her extensive and open electronic communications with Mr. Hoggard leading up to the meeting, I do not think it suggests that her account is unreliable or unbelievable. To the contrary, her fear makes sense to me given how isolated and afraid she felt in the moment.
• I do not accept that JB's evidence that Mr. Hoggard pulled her off the bed and dragged her into the bathroom and threatened to urinate on her and then asked her to urinate on him is unreliable or incredible. Specifically, I do not accept that because Mr. Hoggard respected her wishes on this occasion, and this occasion only, her evidence about this event is unreliable or incredible. Also, regarding at least part of this event, it strikes me as a matter of common sense that while Mr. Hoggard could easily urinate on JB, he could not so easily override her "no" in response to his request that she urinate on him.
• I do not accept that the evidence of JB's friends about her injuries means that JB gave inconsistent accounts about bleeding from her vagina and anus after meeting Mr. Hoggard. JB's friends were permitted to testify about what they saw but were prohibited from repeating what JB told them. Patty testified that JB showed Patty bruising to her upper thighs. I do not find it surprising that JB did not show Patty her vagina or anus. The bleeding could have stopped by that point, and these are much more intimate parts of the body to reveal, even to a roommate and close friend. In all the circumstances, I do not see an inconsistency.
[11] After carefully considering exhibit LL, and the renewed attack on JB's credibility at the sentencing hearing, I believe JB. I accept her evidence in its entirety. Accordingly, I summarize the facts as follows.
[12] JB matched with Jacob Hoggard on Tinder in the early hours of November 10, 2016. They began to communicate with each other over social media, text and Facetime video calls, eventually engaging in a daily exchange of explicit sexual messages about what they wanted to do together. JB agreed to meet Mr. Hoggard in Toronto on November 22, 2016 in order to have sex. He sent her a return train ticket (she lived in Ottawa).
[13] At the hotel in Toronto, Mr. Hoggard brought JB to his room, explaining that his normal room was not ready. He pushed her against the wall and tried to kiss her. He was aggressive and made her feel uncomfortable. She pushed back with her body. He seemed sort of mad and told her she could just go if she wanted, and that she was all "talky talky." JB thought Mr. Hoggard was rude, which surprised her because he had always been nice to her; kind and complimentary. After about an hour, Mr. Hoggard got a call that his regular room was ready. He told JB to wait until he was gone so that no one would see them together in the hall. After Mr. Hoggard left, JB waited briefly then joined Mr. Hoggard in his regular room.
[14] Once inside the second room, Mr. Hoggard threw JB face down on the bed, took off her clothes and anally raped her while he held her down. She said no; stop; you're hurting me. Mr. Hoggard did not listen. He pushed her down with his arms. This was the first in a series of forced sexual acts. JB explained that there were a number of separate sexual acts but they were also connected. She was not certain about the exact number or order of the forced sexual acts, but they included the following:
• While he was anally raping her, he grabbed her head, forced her mouth open, and spat inside her mouth. He spat inside her mouth multiple times.
• While raping her, he repeatedly spat at her, and slapped her in the face. He told her to hit him back, but she was too scared to do so.
• After forcing his penis into her anus, he flipped her onto her back and forced his penis into her mouth. He repeated this sequence multiple times, flipping her from front to back each time.
• He forced his penis into her vagina multiple times.
[15] Mr. Hoggard called her a slut and a dirty little pig and made animal noises at her like the oinking of a pig.
[16] Mr. Hoggard choked her, using both of his hands around her neck. JB remembered seeing her face turn red in the large mirror above the headboard. She could not remember what position she was in, but she could remember thinking Mr. Hoggard might kill her, and that no one even knew where she was. Then he let go.
[17] At one point Mr. Hoggard grabbed her by the legs and pulled her off the bed. She hit her tailbone on the floor. He dragged her by her feet into the bathroom and said he was going to pee on her. She was lying on the bathroom floor naked. He was sitting on her chest. She said no. He complied. He then asked her to pee on him. She said no. These were the only times he complied when she said no.
[18] JB did not know whether Mr. Hoggard used a condom. She did not see him use one. She did not believe that he ejaculated. She believed that there were 4-5 acts of forced penetration but could not remember how many involved her anus and how many her vagina. Mr. Hoggard testified that he did not use a condom and I accept this part of his evidence (it does not contradict JB's evidence).
[19] The encounter ended when Mr. Hoggard told JB it was time to leave because he had a meeting. JB agreed that Mr. Hoggard basically kicked her out. He called her a cab and told her to go. While she was in the cab, she received a message from Mr. Hoggard (she could not remember what platform he used), to the effect that they had a wonderful day together, and he couldn't wait to see her again.
[20] JB agreed that she could have left at various points throughout the encounter in the second hotel room, or made a telephone call, or called for help. She explained that she did not do any of these things because what Mr. Hoggard did to her was so traumatizing that she found it difficult to make rational decisions. She testified that she thinks about all the things she could have done differently every day.
[21] JB was bleeding from her vagina and her anus, and believed her vagina was so badly torn she might need stitches. She had bruises on the back of her thighs near her vagina on both legs. Her back and tailbone hurt. She was very sore all over and could hardly walk or sit. Her first day back at school was November 28, the day she went to the doctor.
[22] JB's friends hardly recognized her when they first saw her after she met Mr. Hoggard. She appeared in shock. Her roommate Jesse could hear her cry heavily at night when she was alone in her room. JB planned to get over the attack and pretend it never happened. She could not. She has thought about it every day since. She has a hard time sleeping. She is afraid of every man she sees. She is a different person than she was when she went to meet Mr. Hoggard on November 22, 2016.
IMPACT ON THE VICTIM
[23] JB read a victim impact statement (VIS), which was made exhibit 1A at the sentencing hearing. It confirmed much that was apparent at trial.
[24] First, the sexual assault was deeply traumatizing; JB is not the same person she was when she agreed to meet Mr. Hoggard in Toronto for sex. Her joyful, adventurous spirit was extinguished by the sexual violence Mr. Hoggard inflicted on her in his hotel room in November of 2016:
Six years ago I was a 23 year old college student. I had all the confidence in the world and a bright future ahead of me. I had dreams and aspirations of who I could be. I have always been told that your 20's are supposed to be full of possibilities and figuring out who you really are. The assault stole all of that away from me. While my friends went out and did fun things as normal 20 something year olds would do - I would lay in my bed and cry myself to sleep until I was numb. I went to sleep praying that I wouldn't wake up the next morning. 6 years later, I still have these nights.
Before November 22, 2016 I was a different person. I was never the same after that day. A part of me died that day that I will never get back. My life as I knew it was stolen from me and shattered beyond recognition. The assault took away my worth, my privacy, my body, my confidence and my voice.
The months following the assault were the loneliest and darkest days of my life. I would wake up every night paralyzed with fear over the continuous nightmares I had of that day. To this day I can close my eyes and put myself back in that hotel room.…
I distanced myself from everything I loved. I lost out on major job opportunities at work. I missed important moments with my loved ones that I will never get back. I think that is what hurts me the most. The time I will never get back. I disconnect from everyone I cared about. The isolation at times was unbearable.
[25] This last aspect of the VIS resonated with some of the evidence at trial. For example, JB's friend BKS quietly noted that while she and JB were still friends, they were no longer as close as they were in November 2016.
[26] Second, the trial process was deeply traumatizing. The many delays in scheduling the trial (we lost two scheduled trial dates when jury trials were suspended due to COVID-19) were "agonizing…leaving me to relive the incident over and over and over and over again. Leaving me to recoil from my family and friends over and over again, riddled with anxiety, shame, fear and depression every single time I felt like I was finally starting to pick myself back up." In addition, the process of testifying was traumatic. JB explained:
The trial was one of the most difficult things I have had to sit through. Not because the questions were difficult. It is not hard to tell the truth when you live through the memories of it every single day. But instead, it was difficult because it was part two of the trauma I have endured.
When the incident happened in November 2016, I felt that I had no control. 5 years, 5 months and 24 days later, I would sit on the stand and be re-victimized with questions that attempted to pick apart my character and my integrity….
I was forced to listen to a phone call that I didn't even remember without any choice of my own. I was forced to recount the most traumatic and humiliating moment of my life in front of a room full of strangers and the man that assaulted me. My control was once again, painfully taken away from me. Hearing the voice of the man that assaulted me while he stared me dead in the face was painful beyond words. I was shown a video of a woman that wasn't even me and berated until I said it was. No one should ever have to endure the cruelty I faced in this courtroom.
[27] I pause here to note the law: the manner in which a defence is conducted is not an aggravating factor on sentence: "…whether it be counsel's viciousness in attacking a complainant or lies told by the accused…[both] are embraced within the right to full answer and defence…": R. v. Kozy (1990), 1990 CanLII 2625 (ON CA), 58 C.C.C. (3d) 500 (Ont. C.A.), at p. 506 (para. 14 online). I cannot and will not consider the manner in which the defence was conducted as an aggravating circumstance on sentence.
[28] However, I recognize that the way the trial was conducted is part of the harm experienced by JB. Defence counsel played a video clip of an individual whose voice and appearance were altered and asserted it was JB saying something inconsistent with her evidence at trial; the clip was not of JB. Thanks to a member of the media the mistake was caught. I do not know how the mistake happened, and attribute no blame, but it was profoundly unfair to the complainant. In addition, in the middle of cross-examination, defence counsel confronted JB with a telephone call that Mr. Hoggard surreptitiously recorded where he and JB discussed their sexual encounter. Such an experience should no longer be an ordinary or expected aspect of being a complainant in a sexual assault trial: R. v. J.J., 2022 SCC 28. Again, I attribute no blame; my role is not to conduct a post-mortem of the trial process. But there can be no question that both experiences made the trial particularly hard on the complainant. While I acknowledge that this is part of the harm JB experienced as a result of the offence, I cannot, and will not, consider this part of the harm she suffered as an aggravating circumstance on sentence.
[29] In so far as some of the harm JB experienced was due to the actions of third parties (online attacks), or because of court delays (the trial was re-scheduled twice due to pandemic court closures), I am mindful that both these painful circumstances have nothing to with the offence. While both are part of JB's experience, they cannot be considered in aggravation of his sentence, or even as part of the harm JB experienced as a result of the offence. They are extraneous to the sentencing process, and I will disregard them: s.722(8) of the Criminal Code.
CIRCUMSTANCES OF THE OFFENDER
[30] Mr. Hoggard is 38 years old. He is married to Rebekah Hoggard (nee Asselstine). They have a son W, who is almost two. They live in East Vancouver, in a home with a mortgage. Rebekah Hoggard was in court every day of the trial and remains a loving and supportive partner.
[31] Mr. Hoggard grew up in Vancouver with his younger sister (currently 36) and his biological parents. He is close to his sister and his parents, and they remain loving and supportive notwithstanding the jury's finding. Mr. Hoggard's extended family also remains loving and supportive. All (Mr. Hoggard's sister, both parents, aunt and uncle, two cousins) provided glowing character letters in support of Mr. Hoggard. As did Mr. Hoggard's mother-in law and father-in law.
[32] Mr. Hoggard did not graduate from high school. He stayed until grade 12 but did mainly grade 11 courses that year. After leaving high school, he worked part-time at Subway making sandwiches, and as a cook at Red Robins. He also began to learn the trade of carpentry and was working as an apprentice for Charlie DeVries (who wrote a character reference and spoke to Dr. Bloom) when he got his break on Canadian Idol.
[33] In 2018, allegations of sexual impropriety by Mr. Hoggard, including the charges in this case, became public. Fame turned to infamy. Mr. Hoggard abruptly lost his music career and his celebrity status. He changed from a recognizable rock star into a recognizable pariah.
[34] At the time of the trial in 2022, Mr. Hoggard was supporting his family as a self-employed carpenter. He attempts to live a quiet life focused on his wife and son. Defence counsel explained that it is difficult for him to go out with his family for fear that his infamy will harm them. His sister's children have been mocked for being related to him.
[35] On the first day of the sentencing hearing, Mr. Hoggard was served with a civil lawsuit, brought by JB in relation to sexual abuse, assault, and battery on November 22, 2016, at the Thompson Hotel in Toronto. JB seeks $2.8 million in damages.
Character letters
[36] Mr. Hoggard provided 52 letters attesting to his good character. With the exception of two: (Greg Olson, his treating psychologist, and Michal Lukas, a "music industry professional" who "worked with Mr. Hoggard and Hedley for several years"), all the letters come from people outside Mr. Hoggard's life as a rock star. However, they include friends and family who attest to Mr. Hoggard remaining a generous and loyal friend and family member while he was a rock star. The letter-writers include school friends going back as far as grade 8, and their parents; family members, including Mr. Hoggard's sister, parents, aunt and uncle, and cousins; and old friends from when Mr. Hoggard first began to work as a carpenter before finding fame and forming Hedley, including an honourary "uncle" who gave Mr. Hoggard his first job in construction (Charlie DeVries). The letter writers also include Rebekah, and friends and family from Rebekah's circle, who have come to embrace Mr. Hoggard, and have remained loyal notwithstanding the jury’s conclusion. These include Rebekah's parents, an "honourary aunt", friends, parents of friends, and neighbours. The character letters reflect consistent themes:
• The offences do not reflect the person they know Mr. Hoggard to be.
• Mr. Hoggard has grown and matured through the adversity of losing his career, and the charges and conviction. He has worked hard to better himself.
• Friends and family, especially his wife and son, lie at the heart of Mr. Hoggard's life. He is a responsible, loving, and involved partner and father. He is also a good son and neighbour, looking after his grandparents, and sharing home grown vegetables and cooking with neighbours.
• Mr. Hoggard is a hardworker, working long hours to support his wife and child.
• Mr. Hoggard is generous, both with his time, and with his money (when he was famous he regularly performed for a charity focused on oral cancer and another charity focused on grizzly bears; he put his sister through school to become a realtor; he gave his cousin a cheque while she was getting her degree in social work; he bought a plane ticket so a friend could attend a funeral).
• He has a big heart. He is kind, loving and empathetic; thoughtful and considerate; and always willing to help a friend.
[37] Michael Lukas noted that during his time working with Mr. Hoggard and Hedley during a number of tours (unspecified, beyond spending 24 hours a day, 7 days a week together while on tour) he found Mr. Hoggard to be a "consummate professional", who was always on time, always gave his "fullest", and worked to make sure the entire crew had a positive experience. Mr. Lukas noted that Mr. Hoggard was adaptable and good at problem-solving. He believes that Mr. Hoggard has the ability to recognize what he did wrong, learn from it, and make himself better. Mr. Lukas concluded by noting that he likes to think he is a good judge of character, and he believes Mr. Hoggard is a man of good character.
Dr. Hy Bloom
[38] Dr. Hy Bloom is a forensic psychiatrist. He was retained by the defence to provide an opinion about Mr. Hoggard's potential sexological diagnoses and his risk of engaging in sexual violence in the future. Dr. Bloom concluded that "the collection of allegations and the facts upon which the conviction is based necessarily compelled me to hypothesize a coercion/sadistic sexual preference, but I did not conclude that there was clear evidence of a paraphilic disorder in this case." Dr. Bloom went on to conclude that Mr. Hoggard does not have a paraphilia and presents a low risk for future sexual violence. Dr. Bloom linked the offence to Mr. Hoggard's celebrity status:
Although Mr. Hoggard has historically been (and continues to be) an individual for whom sexual connection is perhaps more important than others, it seems to me that any problematic behaviours would have been considerably less likely to occur if his celebrity status was removed from the equation. With the aura of a celebrity came (wittingly or unwittingly) some sense of omnipotence and entitlement. I did not, from my assessment of Mr. Hoggard and any collateral information received, think that these were core features of his character, but there were likely vulnerabilities, namely around self-esteem and validation, perhaps stemming from when he was a geeky and physically unattractive kid, that found expression through being a celebrity. (Bloom Report, p.76)
[39] Unfortunately, Dr. Bloom's opinion is based on incomplete information, and I do not believe that I can safely regard it as a comprehensive profile of Mr. Hoggard's psycho-sexual make-up, either at the time of the offence or now and in the future. Some of the essential conclusions are undermined by the evidence at trial and the limitations of his own factual inquiry, for example:
• Dr. Bloom explicitly recognized a concern that Mr. Hoggard views women in a "disparate manner, putting those whom he has become close to on a pedestal, and others who readily made themselves available to him or pursued him on a considerably lower platform". However, notwithstanding that 65-70% of Mr. Hoggard's approximately 200 sexual partners were transactional one-night stands, Dr. Bloom did not speak to any of them. While defence counsel queried how this could be accomplished, the two complainants in this case were certainly known. Others are also in the public domain. Dr. Bloom also did not speak to Mr. Hoggard's two prior long-term partners, or anyone who knew Mr. Hoggard and spent time with him in his capacity as a rock star. While I accept that this gap may have nothing to do with Mr. Hoggard, the fact remains that it is a significant shortcoming in Dr. Bloom's analysis. Dr. Bloom simply notes that the "hypothesis" that Mr. Hoggard treats long-term sexual relationships differently from transactional sexual relationships remains unanswered. In addition, despite explicitly recognizing that Mr. Hoggard "may have been predisposed to being a ladies' man of sorts from earlier in life", Dr. Bloom concludes that the "totality of information" he considered "did not support a prominent role for this hypothesis outside the factor and dynamics of celebrity".
• “Inside” the "dynamic of celebrity", Dr. Bloom appears to accept Mr. Hoggard's assertions without question even though they are contradicted by the evidence at trial. Dr. Bloom noted that the only time Mr. Hoggard "bristled" at him was when Dr. Bloom asked whether Mr. Hoggard had a "dichotomous" view of women, depending on whether they were long-term partners, or women he met sexually while a star. However, Dr. Bloom appeared to accept, unchallenged, Mr. Hoggard's response that his "relationship with fans that pursued him was invariably an arrangement of meeting mutual needs without further commitment or expectations…" (Bloom Report, p.20, emphasis added - it was a theme throughout the report that adoring female fans threw themselves at Mr. Hoggard). I find it problematic that Dr. Bloom appears to accept this explanation without question, given that it is contradicted by the evidence at trial, including from Mr. Hoggard himself:
o JB was not a fan who pursued Mr. Hoggard. They met on Tinder. JB declined Mr. Hoggard's invitation to meet him in the green room after a concert. They engaged in a period of explicit electronic flirting before meeting, during which JB found Mr. Hoggard charming and complimentary. Mr. Hoggard was very different when they met alone. JB's experience was emphatically not "an arrangement of meeting mutual needs". JB was repeatedly raped in a particularly degrading fashion.
o While MB was a star struck fan when she began texting directly with Mr. Hoggard, she was only 15, and Mr. Hoggard was the one who pursued a relationship with her. Mr. Hoggard testified that he spent a couple of months building a relationship with MB to the point where they discussed seeing each other sexually. He acknowledged that this process included deliberately lying to MB about loving her and wanting a future with her, beginning when she was 15 years old. He told her he wanted to bring her to his cabin in BC where he writes his songs, and for her to have his babies. He sent her a video of himself masturbating and asked for, and received, photographs of MB naked. Mr. Hoggard testified that he enjoyed telling MB that he loved her, and they could have a future together, and hearing her say similar things back to him, but agreed that none of what he said was true. He said these things so that MB would trust him and agree to come and meet him and have sex.
• Dr. Bloom does not address Mr. Hoggard's highly manipulative behaviour with MB and JB. As noted, Mr. Hoggard testified that he spent months deliberately building an elaborate deceit with MB that he cared about her so that she would agree to meet him for sex. Mr. Hoggard also repeatedly gaslighted JB: texting her that they had a wonderful day together after she left the hotel room; telling her that they had a really "chill" time together in the telephone call he surreptitiously recorded about their meeting. Dr. Bloom does not address any of this behaviour, other than to note Mr. Hoggard's report to him that he "would have" sent the text to JB "for the express purpose of leaving their experience 'on a positive note', saying words to the effect 'I can't wait to see you again', even if he did not plan to." (Bloom Report, p.54)
• Dr. Bloom considers at length Mr. Hoggard's self-report about his sexual preferences and history, including for example, role-playing, anal intercourse, and drooling. At no point does Dr. Bloom consider that this self-report is very different from the violent and coercive acts JB described (and I have now found as facts). To give just one example, there was no "drool" play here; Mr. Hoggard forced JB's mouth open and spat inside while anally raping her. Dr. Bloom also does not consider the particular sequencing of the coercive acts: Mr. Hoggard forcing his penis inside JB's anus then flipping her over and forcing his penis into her mouth, and repeating this particular cycle.
• Dr. Bloom noted that the method of phallometric testing that was used is conservative, resulting in a "substantial proportion of paraphilic individuals [being] 'missed' on phallometric testing.
• While Dr. Bloom acknowledged the jury's finding of guilt, and Mr. Hoggard's continued denial, when he applied the actuarial risk assessment tools he used (the PCL-R, and the Static-2002), he otherwise relied entirely on Mr. Hoggard's self-report, supplemented only by information from Mr. Hoggard's wife and friends. As noted, Dr. Bloom did not speak with anyone who even knew Mr. Hoggard or spent time with him in his capacity as a rock star, let alone any other sexual partners (beyond Mr. Hoggard's wife), including JB.
LEGAL PARAMETERS AND RANGE OF SENTENCE
[40] Sexual assault causing bodily harm, contrary to s.272 of the Criminal Code, when committed in circumstances like the instant case (i.e.,no firearm was used and the complainant was over 16), is an indictable offence punishable by a maximum sentence of fourteen years. There is no minimum sentence.
[41] While a conditional sentence is legally available at the present time,[^1] both counsel agree that a penitentiary sentence is required in the circumstances of this offence.
[42] In R. v. A.J.K., 2022 ONCA 487, the Ontario Court of Appeal recently clarified that the approximate range of sentence for sexual assault involving forced penetration is three to five years, regardless of whether the accused and the complainants were strangers or in some sort of relationship. The Court explained, at paras. 73 and 77:
A sexual assault involving forced penetration is a sexual assault involving forced penetration. An act of sexual violence perpetrated on a stranger to the accused is not necessarily worse than a similar act of sexual violence perpetrated on an intimate or former intimate partner. Any suggestion to the contrary could only rest on unacceptable myths and stereotypes, ones that a fair justice system must continuously confront and eradicate….
Absent some highly mitigating factor, the forced penetration of another person will typically attract a sentence of at least three years in the penitentiary. While Bradley [2008 ONCA 179] and the cases following it suggest that the range is three to five years, this is of course just a range, a quantitative sentencing tool designed to assist busy trial judges with where to start…
[43] The range of sentence for sexual assault causing bodily harm which involves forced penetration is less well-established. This offence carries a higher maximum sentence (fourteen years as opposed to the ten-year maximum for sexual assault simpliciter; the maximum rises to life for aggravated sexual assault). In so far as maximum sentences reflect the objective gravity of an offence, it is a more serious offence. A greater objective seriousness should generally be reflected in a higher range of sentence: R. v. Friesen, 2020 SCC 9, at paras. 95-96.
[44] Both parties provided very helpful charts, which I attach (Appendix A is the Crown chart; Appendix B is the defence chart[^2]). I have curated the cases which I believe are most similar to this case, and describe them below, in reverse chronological order. They all involve trials. Apart from A.J.K., which involved sexual assault simpliciter, not sexual assault causing bodily harm (though the complainant was beaten up during the attack), they all involve offenders who had no criminal record at the time of sentencing.
Case
Sentence
Circumstances of the Offence
Circumstances of the Offender
R v A.J.K.,
Trial
5 years (simple SA)
assault (2y conc), breach of probation order (6 months conc)
(Not SA CHB)
Victim and appellant met on Tinder and first got together 8 months before the incident. On the date of the offence, the appellant pulled down the victim's pants, and penetrated her vaginally from behind while choking her and pinning her down. He punched her on the side of her head before driving off. The victim suffered a concussion, bruising, and swelling.
Little detail available. Appellant was on probation at the time of the offence. Prior conviction for communicating with an underage person for purpose of prostitution
R v Blake,
Trial before Spies J
6 years (SA CBH)
attempting to choke (6y), uttering death threat (4y), forcible confinement (2y) all conc
The victim was a sex-worker. She agreed to provide oral sex for $60. The offender locked her in the car, took off the condom, and forced vaginal intercourse. He slapped her, bit her, choked her, told her he had a knife and threatened to find and kill her if she told anyone. He dropped her off on the side of the road. Victim suffered bite mark, broken finger, bruising, swelling on neck from slapping and choking.
30 years old at time of offence. No criminal record but on house arrest bail. Immigrant to Canada. Childhood stable, denied any substance abuse. General contractor; 6 children, including 4 with his current partner. No remorse demonstrated, denied charges.
R v Clase, 2017 ONSC 2484
Trial before B. O'Marra J
5 years (SA and choking, conc)
(Not SA CBH)
The victim and the offender met at a bar and went to his apartment where he held victim down, choked her to the point where she could not breath, and vaginally penetrated her on 2 occasions without a condom. Bruising on wrists and neck. Significant impact on victim.
36 years old. No criminal record. Employed; not a citizen (immigration consequences). Partially supported 2 children. Maintained innocence; no remorse.
R v Nelson, 2014 ONCA 853 (upholding 2012 ONSC 4248 but allowing credit for PT custody)
Trial before J Wilson J
5 years
Conc on all charges: SA CBH, threaten death, unlawful confine, assault w/ weapon
Offender met the victim at a club and brought her back to his home where he repeatedly sexually assaulted her over several hours on Christmas morning. He cut off the victim's bodysuit with scissors (cutting her in process), threatened her with a knife or scissors to the throat, punched her, and engaged in rough sex. Victim had a cut and bleeding finger, and wounds near her throat area (from a knife or scissors). Victim traumatized and immobilized by the events, dropped out of school and moved home with parents.
29 at time of offence. Came to Canada as a refugee. Did not complete high school. Took "some responsibility" for the offences but main concern seemed to be consequences to himself.
No criminal record but pleaded guilty to a charge of assault on a woman which occurred about 2 months before the sex assault.
[45] The range of sentence serves as a guide for the application of the relevant principles and objectives of sentencing. But it is only a guide. Ultimately, a sentence must be proportionate to the particular circumstances of the offence, including its objective seriousness (as suggested by the maximum penalty and the sentencing range), its subjective seriousness (the particular circumstances in which it was committed), and the circumstances of the offender: s.718.1 of the Criminal Code; Friesen, at paras. 34, 37-38, 96-97, and 108-114.
PRINCIPLES OF SENTENCING
[46] The fundamental purpose and principles of sentencing are now largely codified in s.718 of the Criminal Code. They are lengthy and detailed and mostly very well-established. I will not recite them here but rather apply the most relevant of them below.
[47] As with any sentencing decision, the relative weight to be accorded to each sentencing principle or objective will vary depending on the circumstances of the particular offence and offender. In all instances, as s.718.1 expressly notes, the "sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender".
Collateral consequences
[48] Collateral consequences are not necessarily "aggravating" or "mitigating" factors, because they do not relate to the gravity of the offence or the level of responsibility of the offender, but they are relevant because they increase the impact of an offence or sentence. The sentencing principles of individualization and parity require that this impact be considered in order to craft a fit sentence.
[49] Collateral consequences do not need to be foreseeable, or flow naturally from the conviction, sentence, or commission of the offence, but they must relate to the offence and the circumstances of the offender. They include "any consequence arising from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence, that impacts the offender", and can encompass "physical, emotional, social, or financial consequences". 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. The fundamental principle of proportionality must prevail in every case: R. v. Suter, 2018 SCC 34, at paras. 46-49.
WHAT IS A FIT SENTENCE IN ALL THE CIRCUMSTANCES?
[50] I will begin my analysis with mitigating circumstances, then move to neutral circumstances, and finally aggravating circumstances.
[51] Mr. Hoggard is a good father, partner, brother, son, grandson, friend, neighbour, and co-worker. He has strong ties to his immediate and extended family, and to his community.
[52] Mr. Hoggard is hard-working and resilient. When his music career abruptly disappeared, he returned to carpentry, a career path he was just beginning when his music career took off. He works hard to support his young family.
[53] Mr. Hoggard has no criminal record.
[54] Mr. Hoggard's strong family and community ties and support, and his strong work ethic, bode well for his rehabilitation and eventual reintegration into the community. In these circumstances, rehabilitation is fully engaged as a principle of sentencing, and must be given emphasis.
[55] For the reasons set out above, I cannot accept Dr. Bloom's opinion that Mr. Hoggard does not suffer from a sexual paraphilia. Equally, however, the record does not permit me to conclude that Mr. Hoggard suffers from a sexual paraphilia, or otherwise requires treatment in relation to the offending behaviour. At the end of the day, I am left in the situation that exists in most sexual assault cases: there is no explanation for the offence.
[56] Failure to show remorse or insight into offending behaviour can become relevant in the sentencing process where an individual has been diagnosed with a paraphilia and requires treatment in order to decrease the risk of re-offending: R. v. P.G., 2013 ONSC 589 per Code J., at paras. 41-45. In such circumstances, a lack of remorse and insight is relevant because it stands in the way of successful treatment and thus successful risk reduction. In this case, however, as I have noted, I cannot conclude that Mr. Hoggard suffers from a sexual paraphilia and requires treatment. As a result, his on-going assertion of innocence is a neutral factor in the sentencing process. It simply indicates the absence of mitigation that would come from taking responsibility for the offence, expressing genuine remorse, and seeking to address the underlying circumstances that caused the offending behaviour.
[57] Defence counsel submitted that Mr. Hoggard has "recognized and corrected" his "problematic" behaviour with women, which decreases his risk of re-offending, and demonstrates that he is a man capable of personal growth. In so far as the "problematic" behaviour is the offending behaviour, the record does not support this submission. According to Dr. Bloom, Mr. Hoggard began seeing Dr. Greg Olson on September 30, 2011, for "'emotional regulation' issues tied to his emerging role as an artist". Mr. Hoggard has remained in therapy with Dr. Olson since, albeit with significant gaps, including one of a year and a half. According to Dr. Olson, the issues he worked on with Mr. Hoggard involved managing his temper, dealing with conflict, family of origin, and "romantic involvements" (Bloom Report, p.37). Mr. Hoggard's work with Dr. Olson around "romantic involvements" focused on promiscuity. In particular, Mr. Hoggard's guilt around his infidelity. As best I can tell, Mr. Hoggard has not recognized his offending behaviour, and has done no counselling in relation to it. Nor any work in relation to his admittedly highly manipulative behaviour with women.
[58] While the fact that Mr. Hoggard is no longer a rock star diminishes the risk he poses, in so far as he will no longer have such ready access to sexual partners, I do not accept that it eliminates the risk he poses. As I have explained, the evidence in this case does not support Mr. Hoggard's position that his problems are rooted in fans throwing themselves at him. Moreover, this "rock star" explanation minimizes the gravity of his wrong-doing and implicitly allows him to avoid confronting traits and beliefs which he needs to address in order to reduce the risk he poses to women. Quite apart from a formal diagnosis of paraphilia, the sophisticated manipulation associated with the offence, and its exceptionally degrading nature, suggest we must be concerned about future risk. The Crown rightly points out that Mr. Hoggard was always impulsive and promiscuous, prior to and apart from his life as a rock star. I agree with the Crown that we cannot say that Mr. Hoggard will never again find himself in a situation where he has a sexual opportunity, wants to validate himself, and impulse takes over. To be clear, I do not consider this as an aggravating circumstance, but the absence of a mitigating circumstance.
[59] As noted, collateral consequences are neither mitigating, nor aggravating, but in so far as they amplify the effect of an offence or a sentence, they should be taken into account in order to craft a fit and proportionate sentence.
[60] The criminal charge in this case was one of a number of allegations of sexual impropriety by Mr. Hoggard that emerged in 2018. There was extensive media coverage, some of which I described in my pre-trial ruling on the challenge for cause: R. v. Hoggard, 2021 ONSC 5365, at paras. 6-7. Mr. Hoggard lost his career as a rock star. The media coverage has continued. I accept the defence submission that at present it is difficult for Mr. Hoggard to go out in public, particularly with his family, because of the publicity associated with this case. While Mr. Hoggard has proven himself to be resilient and hard-working, the lifestyle he can enjoy as a carpenter simply does not compare to his lifestyle as a rock star.
[61] Defence counsel asks me to take both the loss of lucrative career, and the hardship of public infamy, into account as collateral consequences. I cannot quantify the extent to which this offence contributed to each consequence, but I accept that it did. Each consequence in turn does amplify the impact of the offence. However, the amplification is limited. Significant stigmatization was inevitable given the nature of the offence. Similarly, the loss of a career which turned on public admiration was inevitable given the nature of the offence. Where a consequence is so directly linked to the nature of an offence as to be almost inevitable, its role as a mitigating factor is greatly diminished: R. v. Suter, at para. 49.
[62] During the sentencing hearing, Mr. Hoggard was served with a civil claim by JB for $2.8 million in damages as a result of the offence. Section 2.178(1)(a.1)(i) of the Bankruptcy and Insolvency Act provides that an award of damages from a civil court in respect of sexual assault or intentionally inflicted bodily harm survives bankruptcy. Given Mr. Hoggard's relatively limited earning potential (he did not graduate high school), I accept the defence submission that a damage award will hang over Mr. Hoggard (and by extension his family) for a very long time, possibly his entire life. Even though a damage award is only theoretical at this point, I believe it is sufficiently likely that it will amplify the effect of the offence and any sentence I impose. I do not see it as an inevitable consequence of the offence. It must be taken into account in order to craft a fit and proportionate sentence.
[63] As I have noted, the principle of proportionality is what requires me to consider collateral consequences in order to craft a fit sentence. However, that same principle limits the effect that a collateral consequence can have. It cannot reduce a sentence to the point where it is disproportionate to the gravity of the offence or the moral blameworthiness of the offender.
[64] Turning to aggravating circumstances, the offence in this case was extremely serious. Mr. Hoggard repeatedly forced his penis into JB's anus, mouth, and vagina over a number of hours. On his own admission, he did not wear a condom.
[65] The offence involved gratuitous degradation, over and above the degradation inherent in its very nature. The sequence of forced penetration involved Mr. Hoggard repeatedly penetrating JB's anus with his penis and then flipping her over and inserting his penis into her mouth. He called her a pig, a dirty slut, and oinked at her. He repeatedly opened her mouth and spat inside, including during the initial anal rape.
[66] The offence involved gratuitous violence, over and above the violence inherent in its nature. At one point during the sexual abuse, Mr. Hoggard put his hands around JB's neck and choked her. JB recalled seeing her face turn red in the mirror above the headboard and thinking that she was going to die, and that no one would even know where she was.
[67] The offence involved a level of manipulation suggestive of planning and deliberation. Mr. Hoggard engaged in extensive electronic "flirting" with JB. She found him charming and complimentary, and eventually agreed to meet him in Toronto for sex. He arranged for her travel. She arrived in Toronto, far from home, and took a taxi to Mr. Hoggard's hotel. Once JB was alone with Mr. Hoggard, he was rude. Once JB was inside his regular hotel room, he attacked her, beginning with forced anal intercourse and spitting, followed by forced fellatio. When Mr. Hoggard was finished with JB, he made up a lie and told her she had to leave. Shortly after, he gaslighted her with a text about what a great day they had together. When she later texted back something to the effect that he had raped her, he doubled down on the gaslighting, surreptitiously recording a telephone call with her, during which he noted what a "chill" time they had together. Once he had created the record he wanted, he lied that his phone was about to die and hung up.
[68] It is no exaggeration to say that JB is no longer the same person she was before the attack. She was physically hurt: her vagina and anus were bleeding, she was bruised, it was painful to sit and walk, and she was sore all over. She could not go to school for days. Far more significant was the psychological hurt. Whatever fleeting moments of gratification Mr. Hoggard derived from his conduct, they have come at the staggering and utterly unacceptable cost of forever changing JB's life. She was transformed from an adventurous 23-year-old, keen to experience life, to a distraught and damaged survivor, shutting herself off from much that life could offer in order to get through her days. Section 718.2(a)(iii.1) explicitly directs that evidence that an offence had a significant impact on the victim is an aggravating circumstance that must be taken into consideration in crafting a fit sentence.
[69] Rape is an extraordinarily harmful offence, violating the victim's physical, psychological and emotional integrity, often resulting in profound long-term effects. The harm of the offence in this case was exacerbated by its particularly degrading nature, and the sophisticated manipulation cloaking it. The inherent harmfulness of rape and its life-altering consequences requires emphasis on general deterrence and denunciation. As the Supreme Court explained, "a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law": R. v. C.A.M., 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 81.
[70] I believe a sentence in the range requested by the Crown would be fit but for the collateral consequence of the civil lawsuit. Even though a damage award is only theoretical at this point, I think it is sufficiently likely that it should be taken into account. However, it cannot take over the sentencing process. As noted, a collateral consequence can never justify a sentence that is not proportionate. Nor can a collateral consequence offset the need for a deterrent sentence, nor provide for judicial denunciation of the offending conduct: R. v. Joseph, 2020 ONCA 733, at paras. 116-117, 120, and 133.
[71] I am also mindful of the principle of restraint, long part of our common law (see e.g., R. v. Hamilton (2004), 2004 CanLII 5549 (ON CA), 186 C.C.C. (3d) 129 (Ont. C.A.), at para. 96, and codified in part in s.718.2(e) of the Criminal Code. Restraint is a principle of particular salience in the sentencing of a first offender: R. v. Batisse, 2009 ONCA 114, at paras. 32-35. I believe that an aspect of the principle is reflected in Justice MacDonnell's caution that we must not lose sight of the fact that an offender is more than his offending conduct, and is an individual with strengths, weaknesses, and potential, who will be returned to the community after serving the sentence: R. v. Katsnelson, 2010 ONSC 2246, at para. 37. One thing that is clear from this trial it is that there are many sides to Mr. Hoggard: charismatic and talented rock star; manipulative rapist; and caring and loyal friend, husband, father and worker. The full picture must be recognized and considered at sentencing.
[72] Up until the jury's verdict, Mr. Hoggard was released without significant constraint on his liberty. The bail was tightened after the verdict, and a curfew was imposed, but no request has been made to take the impact of the restrictions into account on sentence. This is likely because the negative publicity, which I have already considered and taken into account, also effectively constrained Mr. Hoggard's liberty.
[73] Ultimately the total sentence must be proportionate to the gravity of the offending conduct and the circumstances of the offender, including his degree of responsibility. It must be sufficient to reflect the inherent harmfulness of a manipulative and particularly degrading rape. In all the circumstances of this offence and this offender I believe a fit and appropriate sentence is five years.
[74] I also impose the following ancillary orders:
• The taking of bodily substances for purpose of DNA analysis (mandatory pursuant to s.487.051(4) given the nature of the offence);
• A SOIRA order for twenty years (mandatory pursuant to s.490.093(2)(b) where the offence is punishable by a maximum of 10 or 14 years);
• A s.109 order for ten years (mandatory pursuant to s.109(1)(a) where the offence involves violence and is punishable by 10 years or more);
• An order pursuant to s.743.21 prohibiting any contact with JB or MB while Mr. Hoggard is in custody.
[75] I note that the mandatory victim surcharge in effect at the time of the offences was found unconstitutional in R. v. Boudreault, 2018 SCC 58. The discretionary victim surcharge enacted to replace it did not come into effect until July 22, 2019, and only applies to offences committed after that date.
G. ROBERTS J.
RELEASED: October 20, 2022
R. v. Jacob Hoggard – Sentencing Chart (Appendix A: Crown Sentencing Chart)
The following chart summarized selected cases from 2005 to present. All concern sexual assault causing bodily harm, with conviction following a trial (as opposed to a guilty plea). In almost all the selected cases, the offender has no prior record. No sentences above 6 years were found for a first-time offender.
The chart is divided into two groups, with cases roughly tracking two different factual scenarios. It is up to the trial judge to determine the factual basis for the sentence: R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at paras. 16-18. The two factual scenarios approximated are the following:
A. Scenario A: J.B.’s account is accepted in its entirety
B. Scenario B: The Court accepts part but not all of J.B.’s evidence, finding that the defendant acted recklessly or with wilful blindness in exceeding the bounds of consented-to activity
In each group, priority is given to Ontario cases. Within each jurisdiction, the cases are listed in reverse chronological order.
Offence/Aggravating Factors i
Mitigating Factors ii
Disposition
Scenario A
R. v. Dang, 2021 ONSC 3056
Found guilty after trial
Rubbed his genitals on her inner thighs and tried to kiss
Comp: college roommate
Comp screamed, fought, bit
Accused dragged comp, threatened to suffocate
Bruised wrists, psych. trauma
No record
Family support
Young man
Deportation taken into account as a collateral consequence
3 years’ imprisonment
- 6 months concurrent on utter threat
R. v. Blake, 2020 ONSC 5658
Found guilty after trial of several offences
Vaginal intercourse
Comp: sex worker
Biting, breaking finger, choking, confining in a locked car
Knife brandished, death threat uttered
No record
Family support
Successful entrepreneur
6 years imprisonment
Shorter concurrent sentences on other charges: forcible confinement,
attempting to choke to overcome
Offence/Aggravating Factors i
Mitigating Factors ii
Disposition
- brutal unprovoked attack, serious injuries & psychological trauma
resistance, utter
threat
R v Graham, 2016 ONSC 7239
Found guilty after trial
Repeated vaginal and anal intercourse
Comp: intoxicated, semi-conscious
Locked in shed, hit her and overcame resistance
Degrading comments
Abrasion and skin tear in vagina, caused by shearing force
15 bruises/scratches on other parts of body
Callous, violent, demeaning and cruel.
No record
Young adult
Good character, family support, young son
Steady employment
intoxicated
3 years’ imprisonment
R. v. Nelson, 2014 ONCA 853
Found guilty after trial of several offences
Repeated vaginal intercourse, several episodes
Cut off clothing, cut comp’s finger as a result
Threaten with a knife held to throat
Cuts & scratches around neck, swelling around eye, laceration on finger, bruises on leg, psych. trauma
Violence and callousness, victim crying and begging
No record (one discharge)
Good character references
5 years’ imprisonment
5 years concurrent on each of other charges (assault with weapon, forcible confinement, utter that)
Sentence upheld on appeal
R. v. B. (J.), 2008
CarswellOnt 3697 (ONSC)
Found guilty after trial
Twice forced vaginal intercourse
Comp: sex worker
Slapped, punched, physically controlled
Family support
Age (52)
4 years imprisonment
- 3 months on FTA cons.
- 3 months on obstruct cons.
Offence/Aggravating Factors i
Mitigating Factors ii
Disposition
Fractured finger, abrasions to hand, arm and buttocks, lost tooth, psych trauma
PSR not positive, criminal record (minor offences)
R. v. Quashie (2005), 2005 CanLII 23208 (ON CA), 198 CCC (3d) 337 (ONCA)
Found guilty after trial in relation to two incidents with same comp
Vaginal intercourse
Comp struggled, cried, and screamed
Condom broke, accused HIV+
Several injuries to vagina, psych. trauma, side-effects from HIV prophylactic cocktail
Negative psych. assessment
No record
Yong adult
Family support (but Cr witnesses undermined character)
3 years imprisonment
- 2 years imprisonment consecutive for sexual assault
Sentence upheld on appeal (“high end of the range”)
R. v Razak, 2019 BCSC 1677
Found guilty after trial of several offences
Vaginal intercourse, oral sex
Comp: sex worker, in pain and crying
Repeated choking, slapping
Degrading remarks, death threat
Abrasions, bruising and laceration to shoulders, back, arms, knees, neck, and external genitalia, psych
trauma
No record
Young adult
Amendable to counseling
Difficult upbringing
4.5 years imprisonment
Same sentence concurrent on each of: forcible confinement, overcome resistance, robbery, threaten death
R. v. Percy, 2021 NSSC 110
Found guilty after trial
Comp: intoxicated 19 year old, said no
Forced vaginal and anal intercourse following consensual activity
Slapped, but, and pulled her hair
Bruises on buttocks, neck, and back, sore and traumatized
No record
Good work record
Letters of support
Family support
5 years imprisonment
Offence/Aggravating Factors i
Mitigating Factors ii
Disposition
Took no reasonable steps to ascertain consent
High likelihood of re-offence
Scenario B
R. v. Djuraev, 2016 ONCA 765
Found guilty after trial
Comp said no, physically resisted
Significant injuries
“Many positive things” [Reasons bereft of detail]
13 months’ imprisonment
Sentence upheld on appeal (by accused)
R v Nikdima, 2021 SKCA 60
Found guilty after trial
Comp: accused’s date
Forced anal intercourse following other sexual acts about whose consensual nature the TJ was left in reasonable doubt
Comp screamed
Abrasion to forehead, tear to anus
Psych. trauma
No record
Good work record
No additional acts of violence or threats
Sentenced increased on appeal to 3.5 years
R. v. J.S.S., 2015 BCSC 1369
Found guilty after trial with respect to different incidents, only one sexual
Anal intercourse [details unclear]
Comp: accused’s wife
Injury to anus, bleeding and pain for days
No record
Positive employment history
Family support
Absence of more significant violence, weapon, or confinement
1.5 year’s imprisonment
- 60 years imprisonment consecutive for l assault
days concurrent for assault #2
R. v. Yusuf, 2011 BCSC 626
Found guilty after trial
Vaginal intercourse
Comp: sex worker, initially consented then withdrew consent
Accused punched her so hard she lost consciousness and continued
gaping seven-millimetre fresh cut on her upper lip, and abrasions on her neck and chest. Broken blood
No record
Supportive family
Out of character
Hardworking
Absence of more significant violence
Devastating consequences for family from custodial sentence
Joint submission on sentence accepted
2 years less a day conditional sentence
Offence/Aggravating Factors i
Mitigating Factors ii
Disposition
vessels on her neck, swollen marks
and scrapes on her chest
i Or lack of mitigating factors
ii Or lack of aggravating factors
R. v. Jacob Hoggard – Sentencing Chart (Appendix B: Defence Sentencing Chart)
The following chart summarized selected cases from 2005 to present. All concern sexual assault causing bodily harm, with conviction following a trial (as opposed to a guilty plea). In almost all the selected cases, the offender has no prior record. No sentences above 6 years were found for a first-time offender.
The chart is divided into two groups, with cases roughly tracking two different factual scenarios. It is up to the trial judge to determine the factual basis for the sentence: R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at paras. 16-18. The two factual scenarios approximated are the following:
A. Scenario A: J.B.’s account is accepted in its entirety
B. Scenario B: The Court accepts part but not all of J.B.’s evidence, finding that the defendant acted recklessly or with wilful blindness in exceeding the bounds of consented-to activity
In each group, priority is given to Ontario cases. Within each jurisdiction, the cases are listed in reverse chronological order.
Offence/Aggravating Factors i
Mitigating Factors ii
Disposition
Scenario A
R. v. Dang, 2021 ONSC 3056
Found guilty after trial
Rubbed his genitals on her inner thighs and tried to kiss
Comp: college roommate
Comp screamed, fought, bit
Accused dragged comp, threatened to suffocate
Bruised wrists, psych. trauma
No record
Family support
Young man
Deportation taken into account as a collateral consequence
3 years’ imprisonment
- 6 months concurrent on utter threat
R. v. Blake, 2020 ONSC 5658
Found guilty after trial of several offences
Vaginal intercourse
Comp: sex worker
Biting, breaking finger, choking, confining in a locked car
Knife brandished, death threat uttered
No record
Family support
Successful entrepreneur
6 years imprisonment
Shorter concurrent sentences on other charges: forcible confinement,
attempting to choke to overcome
Offence/Aggravating Factors i
Mitigating Factors ii
Disposition
- brutal unprovoked attack, serious injuries & psychological trauma
resistance, utter
threat
R v Graham, 2016 ONSC 7239
Found guilty after trial
Repeated vaginal and anal intercourse
Comp: intoxicated, semi-conscious
Locked in shed, hit her and overcame resistance
Degrading comments
Abrasion and skin tear in vagina, caused by shearing force
15 bruises/scratches on other parts of body
Callous, violent, demeaning and cruel.
No record
Young adult
Good character, family support, young son
Steady employment
intoxicated
3 years’ imprisonment
R. v. Nelson, 2014 ONCA 853
Found guilty after trial of several offences
Repeated vaginal intercourse, several episodes
Cut off clothing, cut comp’s finger as a result
Threaten with a knife held to throat
Cuts & scratches around neck, swelling around eye, laceration on finger, bruises on leg, psych. trauma
Violence and callousness, victim crying and begging
No record (one discharge)
Good character references
5 years’ imprisonment
5 years concurrent on each of other charges (assault with weapon, forcible confinement, utter that)
Sentence upheld on appeal
R. v. B. (J.), 2008
CarswellOnt 3697 (ONSC)
Found guilty after trial
Twice forced vaginal intercourse
Comp: sex worker
Slapped, punched, physically controlled
Family support
Age (52)
4 years imprisonment
- 3 months on FTA cons.
- 3 months on obstruct cons.
Offence/Aggravating Factors i
Mitigating Factors ii
Disposition
Fractured finger, abrasions to hand, arm and buttocks, lost tooth, psych trauma
PSR not positive, criminal record (minor offences)
R. v. Quashie (2005), 2005 CanLII 23208 (ON CA), 198 CCC (3d) 337 (ONCA)
Found guilty after trial in relation to two incidents with same comp
Vaginal intercourse
Comp struggled, cried, and screamed
Condom broke, accused HIV+
Several injuries to vagina, psych. trauma, side-effects from HIV prophylactic cocktail
Negative psych. assessment
No record
Yong adult
Family support (but Cr witnesses undermined character)
3 years imprisonment
- 2 years imprisonment consecutive for sexual assault
Sentence upheld on appeal (“high end of the range”)
R. v Razak, 2019 BCSC 1677
Found guilty after trial of several offences
Vaginal intercourse, oral sex
Comp: sex worker, in pain and crying
Repeated choking, slapping
Degrading remarks, death threat
Abrasions, bruising and laceration to shoulders, back, arms, knees, neck, and external genitalia, psych
trauma
No record
Young adult
Amendable to counseling
Difficult upbringing
4.5 years imprisonment
Same sentence concurrent on each of: forcible confinement, overcome resistance, robbery, threaten death
R. v. Percy, 2021 NSSC 110
Found guilty after trial
Comp: intoxicated 19 year old, said no
Forced vaginal and anal intercourse following consensual activity
Slapped, but, and pulled her hair
Bruises on buttocks, neck, and back, sore and traumatized
No record
Good work record
Letters of support
Family support
5 years imprisonment
Offence/Aggravating Factors i
Mitigating Factors ii
Disposition
Took no reasonable steps to ascertain consent
High likelihood of re-offence
Scenario B
R. v. Djuraev, 2016 ONCA 765
Found guilty after trial
Comp said no, physically resisted
Significant injuries
“Many positive things” [Reasons bereft of detail]
13 months’ imprisonment
Sentence upheld on appeal (by accused)
R v Nikdima, 2021 SKCA 60
Found guilty after trial
Comp: accused’s date
Forced anal intercourse following other sexual acts about whose consensual nature the TJ was left in reasonable doubt
Comp screamed
Abrasion to forehead, tear to anus
Psych. trauma
No record
Good work record
No additional acts of violence or threats
Sentenced increased on appeal to 3.5 years
R. v. J.S.S., 2015 BCSC 1369
Found guilty after trial with respect to different incidents, only one sexual
Anal intercourse [details unclear]
Comp: accused’s wife
Injury to anus, bleeding and pain for days
No record
Positive employment history
Family support
Absence of more significant violence, weapon, or confinement
1.5 year’s imprisonment
- 60 years imprisonment consecutive for l assault
days concurrent for assault #2
R. v. Yusuf, 2011 BCSC 626
Found guilty after trial
Vaginal intercourse
Comp: sex worker, initially consented then withdrew consent
Accused punched her so hard she lost consciousness and continued
gaping seven-millimetre fresh cut on her upper lip, and abrasions on her neck and chest. Broken blood
No record
Supportive family
Out of character
Hardworking
Absence of more significant violence
Devastating consequences for family from custodial sentence
Joint submission on sentence accepted
2 years less a day conditional sentence
Offence/Aggravating Factors i
Mitigating Factors ii
Disposition
vessels on her neck, swollen marks
and scrapes on her chest
i Or lack of mitigating factors
ii Or lack of aggravating factors
COURT FILE NO.: CR-19-10000463
DATE: 20221020
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
– and –
JACOB HOGGARD
REASONS FOR sentence
G. ROBERTS J.
RELEASED: October 20, 2022
[^1]: Section 742.1(c), which prohibits a conditional sentence for an offence punishable by a maximum penalty of 14 years, was struck down in R. v. Sharma, 2020 ONCA 478. A Crown appeal to the Supreme Court was argued this past March but a decision has not yet been released. Section 742.1(f)(iii), which prohibits a conditional sentence for sexual assault, was found unconstitutional by the Superior Court in a number of decisions (R. v. R.S., 2021 ONSC 2263; R. v. Browne, 2021 ONSC 6097; and R. v. Leavoy, 2021 ONSC 6291). The issue is apparently pending in the Court of Appeal (see R. v. Dubeau, 2022 ONCA 685, at paras. 11-12).
[^2]: Defence counsel did not pursue the assertion in her chart that the particular form of intention (knowledge, recklessness or wilful blindness) has relevance on sentence. These are equivalent forms of intention for the purpose of proving a sexual assault.