ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

M.S.A.

S. Capogreco, for the Crown

James Bray, for M.S.A.

HEARD: October 21, 2022

Reasons for SENTENCE

P.J. Monahan J.

I. Overview

[1] On June 7, 2022, after a trial in which I sat without a jury, I found MSA guilty of seven counts of sexual assault, contrary to s. 271 of the Criminal Code,[1] one count of assault with a weapon, contrary to s. 267 (a) of the Criminal Code, and one count of assault, contrary to s. 266 of the Criminal Code. [2] MSA was married to the victim, and the offences were committed between 2007 and 2018 while they were married.

[2] MSA is before me today for sentencing.

Circumstances of the Offences

[3] MSA and the victim met in high school through their religious community. They were married in a religious ceremony in 2007, when MSA was 19 and the victim was 18, followed by a civil marriage in 2009. MSA and the victim cohabited until July 2018, when the victim moved out of the matrimonial home with their two children.

[4] As described in detail in my Trial Reasons, I accepted the victim’s evidence that, over the course of her marriage, she suffered numerous instances of sexual and physical assault by MSA. In particular, I found that, on at least four occasions between 2009 and 2018, MSA forced the victim to engage in sexual intercourse, despite her clear objections. He also touched her genitals or breasts over her objections on numerous occasions, and forced her to perform oral sex on him while they were driving in a motor vehicle in 2009.

[5] By way of illustration of the instances of forced penetration, one day in late 2009 or early 2010, the victim was working in a small office at a restaurant owned by MSA’s family. MSA came into the office, closed the door, and began touching the victim’s body, including her breasts. She objected saying she did not want to be intimate, particularly since the kitchen staff was working just outside the office. MSA told her that she was always tired when she got home and that she should ‘just take care of him now’. MSA pushed the victim over a desk and up against the wall, lifted up her skirt, and penetrated her with his penis from behind. Eventually, he ejaculated and left the office. The victim was very upset and crying. Eventually, she was able to compose herself and left the office.

[6] The instances of forced sexual touching can be illustrated through an incident which occurred in June 2018, while the victim was asleep in the bedroom of the matrimonial home with their two children. The victim said that, during this period of time, MSA would not leave her alone physically and so she would sometimes have the children sleep with her in order to deter MSA from initiating sex. On this particular night, she was sleeping in the middle of the bed with one child on each side of her.

[7] The victim says she woke up and found that MSA was in the bed, touching her all over her body. She was on her back and MSA was on top of her, grinding his genitals on her leg and pelvis. The victim says she asked MSA to stop multiple times because she did not want the children to wake up. She does not remember if MSA said anything, but said he refused to stop and continued grinding on her until he ejaculated into his clothing. She realized he had ejaculated because she could hear him making noises and then he stopped moving.

[8] Further details of the various sexual assaults committed by MSA are set out in my Trial Reasons and will not be repeated here.

[9] The conviction for assault with a weapon related to an incident in November 2010, when MSA threatened her with a knife, while telling her to “watch out” and “shut up”. The conviction for assault resulted from MSA slapping the victim on the face in the course of an argument in 2012.

Circumstances of MSA

[10] MSA is currently 34 years old. He immigrated to Canada with his parents when he was ten years old and grew up in North York. He was raised in a religious family as a Muslim.

[11] After completing high school, in 2011, he earned a Bachelor of Commerce degree from what was then Ryerson University. Since then, he has been continuously employed as a financial or business analyst with a number of different employers. Although he is working full-time, he is also currently enrolled in an MBA program at the Rotman School of Management at the University of Toronto. He has no criminal record.

[12] A presentence report (PSR) was prepared in respect of MSA which provides further detailed information regarding his background and circumstances. Amongst other things, the PSR noted that MSA maintained his innocence regarding the current offences, but indicated that he respects the court’s decisions. MSA shared that, in his view, the victim portrayed a grossly misleading characterization of him that is hurtful and painful for him. He described himself as kind, honest, generous, warm, loving, and hard-working.

[13] MSA indicated that he has been impacted with grief and sadness and is in therapy to understand what is in his control and how it impacts his parents and children. He advised that he is completing sessions with a social worker recommended by his current lawyer.

[14] The PSR assessed that MSA has support from his parents and siblings as well as friends. He also maintains connections with his two children. He values his ability to work, as well as his being perceived as an upstanding member of his community. The PSR suggested that ongoing counselling might provide MSA with further insight regarding relationships, boundaries and stress management.

[15] MSA also provided a report from Joanne Smith, a social worker with whom MSA is currently engaged in therapy. Ms. Smith reports that, with the help of therapy, MSA has gained greater insight into the issues that led to the demise of his marriage and his conviction for very serious offences. Ms. Smith states that MSA has suggested that, in hindsight, he should have sought more guidance, support, and advice over the course of his marriage. She reports that MSA has reviewed healthy and safe behaviours and has discussed lawful boundaries related to safety in relationships. He has also explored his own beliefs and attitudes about his upbringing, religion, and Canadian law, which he holds in high regard.

[16] MSA also provided 18 letters of support from his father, siblings and other family members, friends, and community members. The letters from MSA’s family members report that they perceived MSA and the victim as having a caring and loving marriage. These family members understood that MSA had provided encouragement and care to the victim throughout their marriage. They regarded MSA as a devoted and dedicated spouse. They also report that MSA is a devoted father, who is extremely responsible, loving, caring, and kind in relation to his two children. MSA also provides support to his parents, helping them with day-to-day activities, chores, and appointments.

[17] MSA also provided two letters from his and the victim’s children, who are currently twelve and ten years old. In one of these letters, the child states that he heard that MSA might be going to jail and that he cried a lot. The child says he feels sad and lonely, because MSA supports him when he is going through tough times. The letter from the other child states that MSA is a great dad and the child does not know why MSA has to go to jail. The child states that he hopes that MSA does not go to jail because he does not deserve it.

[18] The letters from friends and community members report that MSA has proven to be a kind, caring, and honourable friend and member of the community. He has been a positive role model to his two sons, who will need his guidance as they approach critical milestones in their lives over the next few years.

Victim Impact Statement

[19] The victim provided a written Victim Impact Statement (VIS), which she read in court. In her VIS, the victim expresses the emotional, psychological, physical, and economic impacts of the assaults committed against her by MSA.

[20] The victim states that, throughout her marriage, she felt imprisoned and caged, like some sort of animal, silently enduring cruelty, mistreatment, humiliation, and oppression. Her home and marriage, which was supposed to be filled with love and trust, comfort, safety, and compassion was, instead, her own caged prison. She felt as though she was not a human being but, rather, MSA’s object that was used and abused for his pleasure and at his disposal.

[21] The victim says that the impact of the offences MSA committed against her has permeated throughout her daily life and left no area untouched. It has impacted her relationship with herself, others, her faith, and romantic partners, as well as her sense of safety, security and ability to trust others — particularly males. She reports that a man simply sitting beside her on public transportation or at a coffee shop instinctively has her fearful and on edge, at times triggering a panic attack.

[22] These offences have affected her self-esteem, confidence, and self-worth, as well as her ability to work and study. She has struggled with intrusive thoughts and memories and is haunted by recurring nightmares. In one of them, MSA aggressively strips off her clothing in public as she cries and pleads for him to stop. To her, it symbolizes the harrowing abuse he subjected her to, and the overwhelming feelings of distress, vulnerability, powerlessness, and humiliation that she experienced in her marriage. She has felt vulnerable, helpless, and hopeless to her very core. The offences MSA committed against her are larger than the acts in and of themselves, as they involved power and control dynamics and coercive controlling behaviours that were meant to intimidate, isolate, and break her repeatedly.

[23] The victim reports that the sheer volume of the assaults, as well as the nature of them, have had long-lasting implications on her physical and mental health. She still struggles with symptoms of PTSD, anxiety, chronic pelvic pain, and intimacy-related issues. She suffers from panic attacks, nightmares, muscle aches, and body pain. She has sought treatment from doctors, psychotherapists, supportive counsellors, and various other health professionals. While she has already committed a lot of time, energy and money into treatment over the past few years, she recognizes that she has a long and difficult healing journey ahead of her and knows that she will struggle with some of these symptoms for years to come. She has also been impacted financially since she has been paying out-of-pocket for many of these therapies and treatments.

[24] The victim states that MSA has shared details of these criminal proceedings with their young children and has told them that she lied in court to take MSA away from them. She further reports that MSA has encouraged their children to call the police and the Children’s Aid Society to complain about her without legitimate reason, and that the children have in fact called the CAS twice. She is concerned that MSA is trying to control and sabotage her relationship with their children, which is destructive to their well-being.

[25] Counsel for MSA objects to the inclusion of these comments regarding the children in the VIS, arguing that they should be disregarded pursuant to s. 722 (8) of the Criminal Code. Yet MSA chose to include two letters from his children in his own sentencing materials. Having done so, I fail to see how he can object to the victim providing these comments, which provide further context that may assist the court in determining what weight to be attached to materials which MSA has filed.

II. Legal Principles and Analysis

Applicable Sentencing Principles

[26] All sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender.[3] A proportionate or just sentence must have one or more of the following objectives:

i. to denounce unlawful conduct and the harm done to victims or the community that is caused by unlawful conduct;

ii. to deter the offender and others from committing offences;

iii. to separate offenders from society, where necessary;

iv. to assist in the rehabilitation of offenders;

v. to provide reparations for harm done to victims or the community; and

vi. to promote a sense of responsibility in offenders, and acknowledge the harm done to victims and to the community.[4]

[27] While all of these objectives are relevant in any sentencing decision, the principles of denunciation and deterrence are of paramount importance in cases involving domestic violence. As the Court of Appeal noted recently in R. v. A.J.K., all sexual assaults are serious acts of violence.[5] Such crimes reflect “the wrongful exploitation of the victim whose personal autonomy, sexual integrity, and dignity is harmfully impacted.”[6] Moreover, as Wagner C.J. and Rowe J. noted in Friesen, in recent years, our understanding of the “profound physical and psychological harm that all victims of sexual assault experience has deepened.”[7] Further, Moldaver J. in R. v. Barton identified the elimination of sexual violence against women as “one of the more pressing challenges we face as a society”, and commented that “we can — and must — do better”.[8]

[28] In A.J.K., the Court of Appeal rejected suggestions that had been advanced in earlier cases to the effect that sentences for sexual assaults involving intimate partners should be lower than comparable assaults committed against strangers or mere acquaintances of the accused. Fairburn A.C.J.O. held that there is no justifiable reason for treating sexually assaulting an intimate or former intimate partner as any less serious than sexually assaulting a stranger. In fact, Fairburn A.C.J.O. held that the sexual assault of an intimate or former intimate partner can actually attract a greater sentence.[9]

[29] The A.C.J.O. proceeded to explain that, absent some highly mitigating factor, the forced penetration of another person will typically attract a sentence of at least three years in the penitentiary, and that sentences of between three and five years will be typical. At the same time, Fairburn A.C.J.O. noted that this range is merely a starting point designed to assist busy trial judges in their analysis, and there will be circumstances where a departure from the range, either above or below it, is entirely appropriate.[10]

[30] Certain of the sentencing principles identified in s. 718.2 of the Criminal Code (which provides generally that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances) are also particularly relevant in this case. The aggravating circumstances identified in s. 718.2 include evidence that the offender, in committing the offence, abused the offender’s intimate partner; evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim; and evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation. Section 718.201 further provides that in sentencing an offender who has abused an intimate partner, the court shall consider the increased vulnerability of female persons who are victims.

[31] In imposing a sentence, the court shall also take into consideration the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences, committed in similar circumstances (the “parity principle”); the principle that, where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh (the “totality principle”); and the principle that courts should exercise restraint in imposing imprisonment (the “restraint principle”).

Positions of the Parties

[32] The Crown seeks a global sentence of between six and seven years. The Crown notes that if MSA were to receive consecutive sentences for the significant number of offences that were committed separately, the fit sentence would be much higher. Nevertheless, given the principle of totality, the Crown argues that a sentence in the range of six to seven years is appropriate in this case. The Crown also seeks various ancillary orders.

[33] Amongst the aggravating factors identified by the Crown is the fact that there were multiple instances of forced vaginal penetration of the victim over a period of approximately a decade. Also aggravating is the fact that some of these assaults occurred while their children were in the bed with them. The Crown notes that MSA has expressed no remorse and has no insight into his behaviour or how it has affected the victim. Instead, throughout the trial, his counsel portrayed the victim as a ‘gold digger’ out for money, or merely interested in separating him from their children.

[34] The Crown acknowledges that there are certain mitigating factors in this case, including the fact that MSA has no criminal record, is currently employed, and has strong family support as well as support in the community.

[35] Counsel for MSA seeks a global sentence of three years and, subject to taking into account the impact of the Supreme Court of Canada’s recent decision in R. v. Ndhlovu,[11] does not take issue with the ancillary orders sought by the Crown. Counsel notes that a sentence of three years would be within the range identified by the Court of Appeal in A.J.K. and would give significant weight to the principles of denunciation and deterrence. At the same time, a three-year sentence would give effect to considerations of totality, restraint, and proportionality. Counsel reiterates the significant mitigating circumstances in this case, including the fact that MSA has no criminal record, has strong ties with family and the community, and has little risk of reoffending. Moreover, a longer penitentiary sentence will have collateral impacts on MSA’s children, who will be deprived of his support and guidance during the period of his incarceration.

Analysis: Aggravating and Mitigating Circumstances

[36] I find that there are a number of significant aggravating circumstances present in this case.

[37] By far the most important is the fact that MSA committed a series of serious sexual assaults, involving vaginal penetration, throughout his decade-long marriage to the victim. He also committed numerous other sexual assaults involving him groping the victim’s genitals or breasts, or grinding his pelvis on the victim until he ejaculated.

[38] In committing these offences, he ignored the significant impacts of his actions on the victim. Her expressions of anguish and pain, delivered orally in court, were powerful and compelling. The Court of Appeal’s description of sexual assaults as crimes that treat the victim as “nothing more than an object”,[12] appears particularly apt in relation to the offences committed by MSA in this case.

[39] A further aggravating factor is that a number of these assaults were committed in the presence of MSA’s and the victim’s two children. This reflects a prioritization of MSA’s own needs over those of his children, disregarding the potential impact that observing such conduct could have had on them. I am also concerned by the fact that MSA appears to have discussed details of these offences with the children. This is reflected in the letters from the children that he filed as part of his sentencing submissions, in which the children express anger and/or sadness over the fact that MSA is facing a jail sentence. One of the children states that MSA does not deserve to go to jail, an opinion which must have originated with MSA.

[40] On the other hand, there are a number of mitigating circumstances that must also be taken into account in fashioning a fit sentence.

[41] In particular, MSA has no criminal record, has completed higher education, and has been employed full-time for over a decade. He has strong support from family, friends, and the community. Apart from MSA’s unfortunate decision to attempt to involve his children in this sentencing proceeding, MSA appears to have a strong relationship with his children. He has no mental health issues and does not have difficulties with alcohol or illicit drugs.

[42] The principle of proportionality requires me to consider collateral consequences in crafting a fit sentence. As I have already noted, MSA’s children will be deprived of his support and guidance during the period of his incarceration. Nevertheless, proportionality limits the effect that a collateral consequence can have in that it cannot reduce his sentence to the point where it is disproportionate to the gravity of the offence or the moral blameworthiness of the offender.

[43] I note that although MSA did not plead guilty and has not expressed remorse for these offences, these are not aggravating considerations and merely reflect the absence of mitigating circumstances.

Fit Sentence in this Case

[44] Both Crown and defence counsel have filed a number of sentencing cases, certain of which I found helpful in determining a fit sentence for MSA.

[45] In R. v. D. J.,[13] the offender and the victim were involved in a common-law relationship for approximately six years, during which time the offender had engaged in a pattern of sexual and physical abuse. In one instance, the offender had trapped the victim in a washroom, wrapped a towel around her head to prevent neighbours from hearing her screams, and vaginally penetrated her until he ejaculated. The offender pleaded guilty and apologized in court, expressing what Hill J. considered to be a real sense of remorse. Hill J. accepted a joint submission of three-years incarceration, although he recognized that this was at the “low-end of an acceptable range.”[14]

[46] In R. v. H. (N.),[15] the parties had lived together for nine months, during which time the offender had sexually assaulted the victim on three occasions, including forced vaginal penetration and forced fellatio. The offender was also abusive and controlling during the marriage, belittling the victim by calling her names. There was no guilty plea and no show of remorse. Allen J. sentenced the offender to a prison term of four years.

[47] In A.J.K., the accused and the victim had been out on a date. While driving her home, the accused stopped the car and forced the victim to have sexual intercourse with him. In the course of committing that offence, the offender choked the victim, penetrated her vaginally from behind, pinned her down, punched and beat her, and then left her alone in the dark. She had a concussion, bruising, and swelling. The trial judge imposed a sentence of five years, which was upheld by the Court of Appeal.

[48] In R. v. P.V.T.,[16] the offender and the victim were married and lived together for 25 years. Over the course of that relationship there were numerous incidents of forced sexual intercourse, and the offender also threatened to kill the victim on numerous occasions. The victim was fearful because of the assaults and repeated death threats. As an immigrant from Vietnam, the victim was isolated and had several barriers to obtaining help. She felt she was being treated like a slave. Kenkel J. of the Ontario Court of Justice sentenced the offender to a prison term of four years and six months.

[49] I am mindful of the Court of Appeal’s recent observation in A.J.K. that offences involving the forced penetration of another person will typically attract a sentence of three to five years. While recognizing that this range is merely a quantitative sentencing tool and a starting point, I see no exceptional circumstances which would cause me to move outside of the three-to-five-year range in this case.

[50] Moreover, I find that a fit sentence for MSA would most appropriately fall somewhere in the middle of that range. Given the serious nature of the assaults, the fact that they continued for over a decade, and the major impact on the victim, the assaults in this case are more blameworthy than those situated at the low-end of this range. At the same time, the assaults committed by MSA do not exhibit the same degree of violence or cruelty as in cases which have attracted a sentence at the upper end of the range.

[51] I am also mindful of the principle of restraint as codified in s. 718.2 (e) of the Criminal Code. Restraint is a principle of particular importance in the sentencing of a first offender.[17] In addition, the collateral consequences on MSA’s children are a relevant consideration in determining an appropriate sentence, within the range suggested in A.J.K.

[52] Taking all of the circumstances into account, I find that a fit and appropriate sentence for MSA is a global term of imprisonment of four years.

[53] I would also grant the ancillary orders sought by the Crown.

III. Disposition

[54] MSA’s sentence shall be entered as follows:

a. For each of sexual assaults in Counts 1 to 7: four years’ imprisonment, to be served concurrently with each other;

b. Count 8, sexual assault with a weapon: six months’ imprisonment, to be served concurrently with the sentences for Counts 1 – 7; and

c. Count 10, assault: three months’ imprisonment, to be served concurrently with the sentences for Counts 1 – 7.

[55] I also issue the following ancillary orders in relation to MSA:

a. an order for the taking of a bodily substance for the purpose of forensic DNA analysis, in accordance with s. 487.051 (1) of the Criminal Code;

b. an order that he comply with the Sex Offender Information Registration Act for a period of 20 years, in accordance with s. 490.012 (1) and s. 490.013 (2.1) of the Criminal Code, as well as the Supreme Court of Canada’s recent decision in Ndhlovu; and

c. a weapons prohibition for ten years, pursuant to s. 109 of the Criminal Code;

P. J. Monahan J.

Released: December 7, 2022

COURT FILE NO.: CR-20-30000303

DATE: 20221207

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

M.S.A.

REASONS FOR SENTENCE

P.J. Monahan J.

Released: December 7, 2022

[1] R.S.C. 1985, c. C-46 (the “Criminal Code”).

[2] See R. v. M.S.A., 2022 ONSC 2921 (“Trial Reasons”).

[3] Criminal Code, s. 718.1. See also R. v. Friesen, 2020 SCC 9 ("Friesen"), at para. 30.

[4] Criminal Code, s. 718.

[5] R. v. A.J.K., 2022 ONCA 487 ("A.J.K."), at para. 74.

[6] A.J.K., at para. 74.

[7] Friesen, at para. 118.

[8] R. v. Barton, 2019 SCC 33, at para. 1 (emphasis in original).

[9] A.J.K., at para. 76.

[10] A.J.K., at paras. 68 and 77.

[11] 2022 SCC 38 (“Ndhlovu”), at para. 142

[12] A.J.K., at para. 74.

[13] 2010 ONSC 3910 (“D. J.”).

[14] D. J., at para. 23.

[15] 2017 ONSC 2493.

[16] 2022 ONCJ 223.

[17] R. v. Batisse, 2009 ONCA 114, at paras. 32–35.