COURT FILE NO.: CJ 101490 DATE: 2023/03/31

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – S.G.

Counsel: Kate Wood, Counsel for the Crown Sahil Azad, Counsel for S.G.

HEARD: February 14, 2023

REASONS FOR SENTENCE

GIBSON J.:

[1] S.G. was tried by judge and jury on an Indictment dated March 23, 2022, in respect of an alleged Sexual Assault of A.B. contrary to s. 271 of the Criminal Code. The jury found him guilty on October 31, 2022.

[2] It is now my task to determine a fair, fit and principled sentence.

Circumstances of the Offences

[3] S.G. is the father of E.G., who is the common-law partner of A.B. She referred to him as “dad” or “old man.” S.G. is 25 years older than A.B. A.B. and E.G. have two children together. Notwithstanding his lack of training in providing massages, over the course of time S.G. massaged A.B. in progressive states of nudity, at her residence and then at his, until she was fully naked during the massage. On June 24, 2021, he removed her panties while massaging her at his residence. What happened next was the chief issue at trial.

[4] As provided at s.724(2) of the Criminal Code, where the court is composed of a judge and jury, the court shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty.

[5] As McLachlin C.J.C. stated at paras. 16-18 in R. v. Ferguson, 2008 SCC 6:

[16] This poses a difficulty in a case such as this, since, unlike a judge sitting alone, who has a duty to give reasons, the jury gives only its ultimate verdict. The sentencing judge therefore must do his or her best to determine the facts necessary for sentencing from the issues before the jury and from the jury’s verdict. This may not require the sentencing judge to arrive at a complete theory of the facts; the sentencing judge is required to make only those factual determinations necessary for deciding the appropriate sentence in the case at hand.

[17] Two principles govern the sentencing judge in this endeavour. First, the sentencing judge “is bound by the express and implied factual implications of the jury’s verdict”: R. v. Brown, 1991 73 (SCC), [1991] 2 S.C.R. 518, p. 523. The sentencing judge “shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty” (Criminal Code, s. 724(2)(a)), and must not accept as fact any evidence consistent only with a verdict rejected by the jury: Brown; R. v. Braun (1995), 1995 16075 (MB CA), 95 C.C.C. (3d) 443 (Man. C.A.).

[18] Second, when the factual implications of the jury’s verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury, but should come to his or her own independent determination of the relevant facts: Brown; R. v. Fiqia (1994), 1994 ABCA 402, 162 A.R. 117 (C.A.). In so doing, the sentencing judge “may find any other relevant fact that was disclosed by evidence at the trial to be proven” (s. 724(2)(b)). To rely upon an aggravating fact or previous conviction, the sentencing judge must be convinced of the existence of that fact or conviction beyond a reasonable doubt; to rely upon any other relevant fact, the sentencing judge must be persuaded on a balance of probabilities: ss. 724(3)(d) and 724(3)(e); see also R. v. Gardiner, 1982 30 (SCC), [1982] 2 S.C.R. 368; R. v. Lawrence (1987), 1987 9452 (ON SC), 58 C.R. (3d) 71 (Ont. H.C.). It follows from the purpose of the exercise that the sentencing judge should find only those facts necessary to permit the proper sentence to be imposed in the case at hand. The judge should first ask what the issues on sentencing are, and then find such facts as are necessary to deal with those issues.

[6] In this case, in order to find S.G. guilty, the jury clearly must have rejected his assertion that his penis slipped into A.B.’s vagina “by accident,” and only for a few seconds, as that would have negated the essential elements of intentional touching for a sexual purpose. Never once did the complainant A.B. concede the possibility that there was only a momentary insertion of his penis.

[7] The version of events presented by S.G. was fantastic and entirely incredible. The evidence disclosed that, and I find as a fact beyond a reasonable doubt, that while giving A.B. a massage at his residence, he intentionally inserted his penis into her vagina during the course of the massage without asking, without her consent, and that his penis remained inside her vagina for some five minutes while he engaged in thrusting. Once he removed his penis from her vagina, he asked to reinsert it, to which she said no.

Evidence on Sentencing

[8] The evidence on sentencing included a Pre-Sentence Report, a Victim Impact Statement, and a copy of S.G.’s criminal record.

Pre-Sentence Report

[9] A Pre-Sentence Report was produced by a probation and parole officer Paul Hamill, and was admitted into evidence as an exhibit on sentencing. It details the family and employment history of S.G. S.G. is now 52. He is not currently married. For the past six years he has been employed as a house painter. He has a conviction in 2005 for sexual assault against his niece by marriage, the then 5-year-old daughter of his ex-wife’s sister.

Victim Impact Statement

[10] In her Victim Impact Statement submitted to the Court, A.B. described the intense feelings of betrayal she experiences from what S.G. (whom she regarded as a father figure) did to her, and her anger at his manipulation of a relationship of trust. She recounted the impact the offences have had on her relationship with E.G., and her physical and mental health and well-being. She described experiencing nightmares and a debilitating lack of self-confidence. She says that she experiences panic attacks and abdominal pain as a consequence of this experience, and fears for her safety and that of her children.

Defence Sentencing Material

[11] The Defence submitted documents indicating that GPS monitoring would be available in the area where S.G. resides.

Submission of the Crown

[12] The Crown submits that S.G. should be sentenced to imprisonment for 6 years, together with some ancillary orders. The Crown submits that S.G. engaged in a deliberate grooming of a vulnerable victim over time, to whom he stood in a relationship of trust. A.B. is on OSDP, has a learning disability, ADHD, and experiences other mental health issues. S.G. provided financial support to A.B. and E.G., including the purchase of groceries, and there was some degree of financial dependence.

Submission of the Defence

[13] The Defence concedes that the Court of Appeal for Ontario has specified a range of 3-5 years for penetrative sexual assault, but submits that thrusting was not proven beyond a reasonable doubt, that there was no grooming or position of trust, and that this case lacks some of the aggravating facts present in other cases. It submits that the court should consider a range of 9-12 months, and that if thrusting is found to have occurred, the bottom end of the range specified in A.J.K., three years. It submits that a conditional sentence would be an available sentencing disposition in this case, and that S.G. would be a suitable candidate for this, in conjunction with GPS monitoring.

Sentencing Principles

[14] As succinctly summarized by Watt J.A. in R. v. Marshall, 2021 ONCA 28, in determining a fit sentence, the sentencing judge must consider a complexity of factors including the nature of the offence and the personal characteristics of the offender. As well, the sentencing judge must weigh the normative principles Parliament has enshrined in the Criminal Code; the sentencing objectives in s. 718, the fundamental principle of proportionality in s. 718.1, the aggravating and mitigating factors, as well as the principles of totality and restraint in s. 718.2: R. v. M. (L.), 2008 SCC 31, [2008] 2 S.C.R. 163, at para. 17.

[15] Proportionality is a cardinal principle that governs the fitness of a sentence imposed on an offender. It requires that every sentence be proportionate not only to the gravity of the offence, but also to the degree of responsibility of the offender who committed that offence: Criminal Code, s. 718.1.

[16] Individualization is central to the assessment of proportionality in that it demands focus upon the individual circumstances of each offender: R. v. A.J.K., 2022 ONCA 487 at para. 82.

[17] The severity of a sentence depends not only upon the seriousness of the consequences of a crime, but also on the moral blameworthiness of the offender. The more serious the crime and its consequences, or the greater the offender’s degree of responsibility for that crime, the heavier the penalty.

Caselaw

[18] The Crown referred me to the following cases: R. v. A.J.K., 2022 ONCA 487; R. v. H(S.), (1999) CarswellOnt 4163 (Ont.S.C.J.); R. v. H(S.), [2001] O.J. No. 118 (Ont.C.A.); and R. v. Friesen, 2020 SCC 9.

[19] The Defence drew my attention to the following cases: R. v. Ferguson, 2008 SCC 6; R. v. M(L), 2014 ONCA 640; R. v. Moreira, 2021 ONCA 507; R. v. Lacasse, 2015 SCC 64; R. v. P.S., 2021 ONSC 5091; R. v. K.K., 2020 ONSC 7198; R. v. R.S., 2021 ONSC 2263; R. v. Browne, 2020 ONSC 6097; R. v. G.T., 2022 ONSC 1540; R. v. Sampson, 2008 ONSC 1665; and R. v. Forsellino, 2022 ONSC 262.

[20] 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. Sentencing judges must also consider the principle of parity: similar offenders who commit similar offences in similar circumstances should receive similar sentences. Parity is an expression of proportionality and gives meaning to proportionality in practice. It helps calibrate proportionate sentences.

[21] The Court of Appeal for Ontario has specified a starting point range for penetrative sexual assaults with forced intercourse of between 3-5 years: R. v. A.J.K., 2022 ONCA 487, at paras. 68 and 74-77.

[22] As Fairburn A.C.J.O. said in A.J.K.:

[74] All sexual assaults are serious acts of violence. They reflect the wrongful exploitation of the victim whose personal autonomy, sexual integrity, and dignity is harmfully impacted while being treated as nothing more than an object. Whether intimate partners or strangers, victims of sexual violence suffer profound emotional and physical harm and their lives can be forever altered. So too can the lives of their loved ones.

[75] As the years pass, enlightenment on the implications of sexual violence continues to permeate our conscious minds. In Friesen, the court noted, at para. 118, that “our understanding of the profound physical and psychological harm that all victims of sexual assault experience has deepened” and, I would add, is continuing to deepen: see also R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3, at para. 37. As Moldaver J. stated in R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 1: “Without a doubt, eliminating … sexual violence against women is one of the more pressing challenges we face as a society” and “we can – and must – do better” (emphasis in original). This comment encapsulates why these sentencing ranges as they have come to be understood must be reconciled.

[76] There is no justifiable reason for why sexually assaulting an intimate or former intimate partner is any less serious than sexually assaulting a stranger. The fact is that a pre-existing relationship between the accused and complainant places them in a position of trust that can only be seen as an aggravating factor on sentencing: Criminal Code, R.S.C., 1985, c. C-46, s. 718.2(a)(ii). Therefore, contrary to the impression that may be left when contrasting the Smith range with the non-Smith range, the sexual assault of an intimate or former intimate partner can actually attract a greater sentence.

[77] The fact that the complainant had a relationship or prior relationship with the accused cannot serve to justify a sentencing range below a range for non-intimate partner sexual violence. To the extent that the Smith has been interpreted as suggesting otherwise, it is no longer to be understood this way. 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 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: Parranto, at paras. 15-17. Accordingly, there will be circumstances where a departure from the range, either above or below the range, is entirely appropriate.

[23] Where a breach of trust or grooming led to the victim’s participation, this should properly be seen as an aggravating factor: R. v. Friesen, 2020 SCC 9, at para. 153.

Aggravating Factors

[24] S.G. was the de facto father-in-law of A.B., a woman to whom he stood in a relationship of trust. He groomed her through repeated massages in which he pushed boundaries further over time.

[25] S.G. has a criminal record for sexual assault. This dates from 2005, for which he was sentenced to an eight-month conditional sentence order and probation for 18 months. He also has convictions in 2008 for obstruction contrary to s.129(a) and failure to comply with a recognizance, for which he received a suspended sentence and 18 months’ probation on each charge to run concurrently.

[26] This was a case involving grooming of his daughter-in-law, culminating in a penetrative sexual assault. The aggravating factors present in this case include the following:

a. The direction of Parliament at s.718.2(a)(iii) of the Criminal Code that it shall be deemed to be an aggravating circumstance that the offender, in committing the offence, abused a position of trust or authority in relation to the victim. In this case, the sexual assault was against the common-law partner of his son, in effect, his daughter-in-law;

b. The direction of Parliament at s.718.2(a)(iii.1) that the offence had a significant impact on the victim. This has been amply demonstrated in the Victim Impact Statement of A.B.;

c. That S.G. groomed A.B. over a period of time leading up to the incident of sexual assault; and

d. That S.G. has a prior conviction for sexual assault.

Mitigating Factors

[27] The mitigating factors present on the facts of this case are few. S.G. has made some expression of remorse for his actions.

[28] There was no pre-trial custody in this case, and there is no claim for Downes time in respect of restrictive bail conditions.

Assessment

[29] I have carefully considered all of the sentencing purposes and principles elaborated at ss. 718, 718.01, 718.1 and 718.2 of the Criminal Code. I have also considered the sentencing precedents in the caselaw jurisprudence submitted by the Crown and the Defence, and the relevant aggravating and mitigating factors in this case.

[30] I have considered the personal circumstances of S.G., including his prior conviction for sexual assault involving a family member, as well as the impact upon A.B.

[31] I am alive to the principle of restraint. However, in cases such as this, which involve a breach of trust against a vulnerable victim, the dominant sentencing principles must be denunciation, as well as general and specific deterrence. Moreover, S.G. has a prior conviction for sexual assault of a vulnerable family member.

[32] I have also had regard to the issue of rehabilitation, as well as the sentencing principles of separation of offenders from society, where necessary, and the promotion of a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community. But, as stated, considerations of denunciation and deterrence must predominate in this case.

[33] The moral responsibility of S.G. is high. He sexually exploited a vulnerable young woman to whom he stood in a relationship of trust for his own sexual satisfaction, heedless of the inevitable adverse impact upon her sexual integrity and well-being. He engaged in a pattern of grooming over time, progressively pushing the boundaries further until he engaged in penetrative sexual assault.

[34] Having regard to the facts in evidence in this case, the relevant aggravating and mitigating factors, the statutory provisions of the Criminal Code, including the objective gravity of the offence, and the sentencing precedents cited by the Crown and Defence, I am satisfied that, on the facts of this case, a significant penitentiary sentence is required to fulfill these objectives. This is a case that involved a wrongful interference with the personal autonomy, bodily integrity, sexual integrity, dignity and equality of A.B.

[35] This is manifestly not a case in which a conditional sentence would be appropriate. It would not be consistent with the fundamental purposes of sentencing in ss. 718 to 718.2.

[36] Having regard to the principle of parity, although the facts of this case are disturbing, they are not as egregious as those in A.J.K., in which the sentencing judge sentenced the offender to five years, which the Court of Appeal found to be entirely fit.

Sentence

[37] On the sole count of the Indictment, that of sexual assault contrary to s. 271 of the Criminal Code of Canada, S.G. is sentenced to imprisonment for 4 years.

[38] As this is a primary designated offence pursuant to s. 487.051 of the Criminal Code, S.G. shall provide a sample of bodily substances for the purpose of forensic DNA analysis.

[39] There shall be a Sex Offender Information Registration Act Order pursuant to s. 490.012(1) of the Criminal Code. The duration of the order shall be for life (s.490.013(2.1)) because S.G. has been convicted of multiple designated offences pursuant to s. 490.011(a).

[40] During his incarceration, pursuant to s. 743.21, S.G. is to abstain from communicating, directly or indirectly, with A.B., E.G., their children, or any other member of their family.

[41] There shall be a s.109 weapons prohibition Order for 10 years in respect of any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance, and for life in respect of any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition.

M. Gibson, J.

Dated: March 31, 2023

COURT FILE NO.: CJ 101490 DATE: 2023/03/31 ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – S.G. REASONS FOR SENTENCE M. Gibson, J. Released: March 31, 2023