OVERVIEW

Introduction

[1] Mr. Hurst was convicted of 3 counts of sexual assault contrary to s.271 of the Criminal Code, R.S.C. 1985, c.C-46. He committed these offences against two female colleagues in their workplace. I must now sentence him for these offences.

Positions of the Parties

[2] The Crown is asking the Court to impose a custodial sentence of 12 to 15 months’ imprisonment and is also seeking several ancillary orders. The Defence does not take issue with the ancillary orders but submits that the Crown’s proposed sentence of incarceration is unduly long and excessively harsh. The Defence argues that a short custodial sentence of 60 to 90 days is appropriate in the circumstances, followed by 3 years’ probation. The Defence asks that Mr. Hurst be permitted to serve the sentence on an intermittent basis.

CIRCUMSTANCES OF THE OFFENCES

[3] Mr. Hurst’s trial was conducted with a jury, who found him guilty of two counts of sexual assault against A.A., guilty of one count of sexual assault against C.C., and not guilty of two additional counts of sexual assault against C.C. All the charges upon which he was convicted relate to unwanted sexual touching. The first two counts pertain to incidents involving A.A.; the third count covers multiple incidents involving C.C. The two charges of which he was acquitted involved more serious allegations of non-consensual fellatio and vaginal intercourse with C.C.

[4] Given that this was a jury trial, I must begin by deciding the factual circumstances of the offences for which Mr. Hurst is being sentenced. In doing so, I am bound to accept the express and implied factual implications of the jury’s verdicts: R. v. Brown, 1991 73 (SCC), [1991] 2 S.C.R. 518, p. 523; R. v. Ferguson, 2008 SCC 6, [2008] 1 SCR 96, at para.15; Criminal Code, s.724(2)(a). If the factual implications of the jury’s verdicts are ambiguous, then I must come to my own independent determination of the relevant facts, without trying to reconstruct the jury’s logic: Brown, at p.523; Ferguson, at para.16. If necessary, I may make findings of fact to supplement the jury’s findings, based on the evidence adduced at trial: Criminal Code, s.724(2)(b). Obviously, I must not accept as fact any evidence consistent only with a verdict that was rejected by the jury: Brown, at p.523; Ferguson, at paras.15, 17.

Offences Against A.A.

[5] The first count on which Mr. Hurst was convicted pertains to an incident that occurred in the fall of 2017. It happened in his office, when A.A. approached his desk to assist him with a computer problem. He testified that he placed his hand on the outside of her leg, mid-way between her knee and her bum; he admitted that he did so for a sexual purpose. However, he denied her allegation that he grabbed her butt and squeezed her butt cheek. He also denied referring to her as a “sex-cretary.”

[6] Given the guilty verdict, the jury must have concluded that Mr. Hurst intentionally touched A.A. in circumstances of a sexual nature, that she did not consent to the touching and that Mr. Hurst knew (or was reckless or wilfully blind to the fact) that she did not consent. However, it is unclear whether the jury convicted him based on acceptance of her testimony about what transpired, or based on acceptance of his own testimony, which tended to minimize the seriousness of his conduct.

[7] The second count on which Mr. Hurst was convicted pertains to two other incidents involving A.A., which occurred in November 2019. A.A. testified that the sexual assaults happened inside a Recreational Vehicle (“RV”) that she was decorating for a Christmas parade. The RV was parked on the premises of the motorhome dealership where both she and Mr. Hurst worked.

[8] A.A. testified that Mr. Hurst grabbed and squeezed her butt with both hands while she was stringing lights up on a window inside the RV. That was the first incident. She said the second incident occurred about 15 minutes later, when he reached under her shirt with both his hands and grabbed her breasts over top of her bra. At that point, she was in a confined space, leaning over bunkbeds to string lights on a window inside a cubby in the RV.

[9] Mr. Hurst denied grabbing or squeezing A.A.’s butt in the motorhome, and he denied grabbing both her breasts with both his hands. However, he admitted to a single incident of sexual touching. He said he reached from behind her and grabbed one of her breasts with one of his hands while she was stringing light in the cubby area. He admitted that he did not ask whether he could touch her breast and did not obtain her agreement to the touching in advance. He testified that he thought she had been flirting with him by rubbing up against him earlier in the day, and he grabbed her breast to gauge her reaction.

[10] The jury was instructed (among other things) that the Crown was only required to prove the essential elements of one incident of sexual assault to obtain a conviction on count 2 of the indictment. They were told that, in order to reach a guilty verdict, they did not need to agree on whether one or two instances of intentional sexual touching occurred. They were also told that they did not need to agree on the precise nature of the intentional touching (i.e. grabbing her butt, grabbing both her breasts, or grabbing only one breast), so long as they were all convinced that it constituted touching of a sexual nature.

[11] Evidently, the jury must have reached a unanimous finding that at least one incident of sexual touching was proven beyond a reasonable doubt. They must also have concluded that A.A. did not consent to the sexual touching and that Mr. Hurst knew (or was reckless or wilfully blind to the fact) that she did not consent on at least one of the occasions, if they found that there was more than one. However, it is unclear whether the jury convicted him based on only one incident or based on two incidents inside the RV, and whether they accepted the victim’s account of what happened, or accepted Mr. Hurst’s recitation of the events, which somewhat downplayed the seriousness of his conduct.

[12] Given the ambiguity in the jury’s findings, I must make my own findings of fact based on the evidence at trial. For reasons that follow, I accept A.A.’s account of the incidents as credible and reject Mr. Hurst’s versions of the events.

[13] I found A.A. to be both honest and reliable as a witness. She demonstrated good recall of the events and was able to recount them with clarity and precision. She described the interior of Mr. Hurst’s office and the interior of the RV without difficulty, even though she has not worked at the dealership for quite some time.

[14] A.A. made a prior inconsistent statement to the police about the year when Mr. Hurst started working at the dealership; she told the police it was in 2018 but testified at trial that it was in 2017. She explained this discrepancy by stating that she was nervous and anxious when speaking to the police and was focusing on the sequence of events that she was reporting, rather than on Mr. Hurst’s start date. I find this explanation to be reasonable and satisfactory. I am not troubled by what was obviously a slip in her memory about a peripheral detail.

[15] During her evidence-in-chief, A.A. failed to mention the “sex-cretary” comment that she told the police Mr. Hurst made to her after the first incident of sexual touching in his office. She later adopted her prior police statement during her cross-examination. I am not troubled by this minor oversight. There were no significant internal contradictions or inconsistencies in her evidence on the key elements of the offences or the sequence of the relevant events.

[16] A.A. gave her evidence in a measured and balanced fashion. For example, during her cross-examination, she did not deny the possibility that she may have inadvertently come into physical contact with Mr. Hurst when she reached for the mouse on his desk to assist him with his computer issue, although she did not believe that happened. Similarly, she stated that she could not recall whether she brushed up against Mr. Hurst when she walked by him inside the RV. She was given an opportunity to clarify in re-examination that she was effectively denying this suggestion, but she stated that she simply did not remember whether she brushed up against him. Her candour enhances my confidence that she was intent on being forthright and truthful in giving her evidence.

[17] A.A. also readily conceded facts that did not necessarily serve her interests. For example, during her evidence-in-chief, she was asked about her experiences working with Mr. Hurst, apart from the occasions when he sexually assaulted her. She responded that he was “very friendly and helpful.” She said employees liked him and he was “a nice guy.” Furthermore, during her cross-examination, she readily acknowledged that it made sense for Mr. Hurst to be in the shop area where she was decorating the RV in November 2019 because he supervised employees in that area. Finally, she did not hesitate to admit that she is pursuing a civil action against Mr. Hurst and the dealership, a fact that could be used by the jury to conclude that she had a financial motive to fabricate false allegations against him.

[18] Overall, for the reasons I have just articulated, I found A.A.’s testimony to be credible, reliable and compelling. This is a sufficient basis upon which to reject Mr. Hurst’s testimony, to the extent that it conflicts with A.A.’s testimony: R. v. J.J.R.D., (2006) 2018 O.A.C. 37 (C.A.), at para. 53 (leave to appeal refused [2007] S.C.C.A. No. 69). However, as set out below, I have additional reasons for rejecting the exculpatory aspects of his evidence.

[19] Although Mr. Hurst candidly conceded some facts that were contrary to his own interests, he had a tendency to downplay many facts and to rationalize his conduct by making implausible statements about how A.A. purportedly responded to his behaviour. For example, he stated that A.A. reacted positively by smiling at him on the first two occasions when he touched her for a sexual purpose in the workplace without any advance warning and without first ascertaining her consent. A.A. denied smiling. I accept her evidence and reject his evidence as improbable.

[20] I will therefore sentence Mr. Hurst on the basis of the facts alleged by A.A., namely that there were three separate incidents (one in 2017 and two in 2019) when he grabbed either her buttocks or her breasts, without her consent, in their workplace.

Offences Against C.C.

[21] The third count of sexual assault on which Mr. Hurst was convicted covers multiple incidents of sexual touching that occurred between June 2019 and August 2020. These incidents targeted a different victim, C.C., who was also employed by the dealership where A.A. and Mr. Hurst worked.

[22] At trial, Mr. Hurst generally admitted the sexual conduct alleged by C.C., but he took the position that she consented to the touching. Moreover, he testified that he honestly believed she communicated her consent to be touched by him in a sexual manner in the workplace.

[23] The uncontested facts regarding these incidents include the following:

a. On the first occasion, C.C. was sitting at her desk in her office having a conversation with Mr. Hurst when he slid his hand down her shirt and covered one of her breasts with his hand. This lasted about 30 seconds.

b. Subsequently, at an RV show in Kitchener, C.C. was sitting at a desk in a makeshift office, wearing a shirt that had been given to her by the dealership. The shirt was too small and did not fit properly over her breasts. She was having a conversation with Mr. Hurst when he slid his hand down her shirt and grabbed her breast.

c. On at least one occasion (C.C. testified that this happened about once/month; Mr. Hurst admitted to only one occasion), C.C. was bent over cleaning her car in one of the bays at the dealership when Mr. Hurst walked over to her and rubbed his penis against her butt. They were both fully clothed when he grinded his penis against her.

[24] The above facts are not in dispute (apart from the frequency of the grinding incidents). However, C.C.’s and Mr. Hurst’s testimony diverged with respect to the circumstances surrounding these incidents of sexual touching.

[25] Mr. Hurst testified that, on the first occasion, they were having light-hearted conversation that gave him the impression that she wanted him to touch her breast. He could not recall exactly what they talked about. He said it could have been sexual, but it was not crude conversation. He admitted that he did not ask her if he could touch her breast. Mr. Hurst stated that, on the second occasion, they were joking about her ill-fitting shirt and about the size of her breasts, and he interpreted her comments to be an invitation to touch her breast. He said he also took the fact that her bra was exposed by her shirt to be an invitation to touch her breast. With respect to the grinding behind C.C. while she was cleaning her car, he remembered an occasion when that happened and admitted there was no conversation beforehand. He said he believed she was open to having him rub up against her because they were comfortable enough with each other at that point.

[26] Mr. Hurst further testified that, on each of these occasions, C.C. participated in the sexual activity and reciprocated his sexual overtures in some fashion, by smiling and “rubbing” him (1st incident), reaching for his crotch and gabbing his penis while saying, “Hey big boy” (2nd incident), and reaching around and grabbing his penis while he was grinding up against her butt (3rd incident).

[27] C.C. testified that Mr. Hurst’s conduct was unwelcome on each occasion that he touched her sexually in the workplace. She said their conversation before the first two incidents did not include anything sexual and she did not at any time invite him to touch her breasts. She did not recall discussing the inadequate size of her shirt with him at the RV show, but acknowledged they may have joked about how her breasts were exposed. She did not recall grabbing his penis at the RV show and denied saying, “Hey big boy” in reference to his penis. She denied reciprocating in any way when he rubbed his penis up against her while she was cleaning her car. She specifically denied reaching around to grab his crotch. She testified that on both the first and second occasion, when he grabbed her breast, she reacted by saying, “What the fuck?” She recalled that, on the first occasion, he responded by saying, “Don’t act like you don’t like it,” or words to that effect. Mr. Hurst denied that these words were spoken.

[28] For this third count on the indictment, the jury was instructed (in part) as follows:

[191] Remember that Mr. Hurst is not required to prove that [C.C.] consented to all the sexual touching. Rather the Crown must prove a negative. For each of the incidents of intentional sexual touching that you find occurred, you must decide whether the Crown has convinced you beyond a reasonable doubt that [C.C.] did not consent.

[192] If you believe that [C.C.] consented to every incident of sexual touching, or if you have reasonable doubt about whether she consented to the sexual touching, you must find Mr. Hurst not guilty of sexual assault on Count 3. In that case, move directly to Count 4.

[193] If the evidence satisfies you beyond a reasonable doubt that [C.C.] did not consent to at least one of the incidents of sexual touching, then you must move on to [the next question] below. You are not required to agree on which incident, or on the number of incidents in which she did not consent.

[200] For each incident, if you conclude that a reasonable person, knowing what Mr. Hurst knew at the time of the sexual touching, would not have made further inquiries or taken further steps to ascertain [C.C.’s] consent to the sexual touching, then you must find that Mr. Hurst had an honest belief in communicated consent.

[201] For each incident, if you conclude that a reasonable person would have made further inquiries or taken further steps, then you must conclude that Mr. Hurst did not have an honest belief in communicated consent because there is no evidence that he made inquiries or took steps to confirm that she was consenting.

[202] If you are convinced beyond a reasonable doubt that Mr. Hurst did not have an honest belief in [C.C.’s] communicated consent on at least one occasion when he touched her sexually, then you must find him guilty of sexual assault on Count 3. You are not required to agree on which occasion or on how many occasions this happened.

[203] If, with respect to all three incidents of sexual touching, you conclude that Mr. Hurst had an honest belief in [C.C.’s] communicated consent, or you have reasonable doubt about whether he had such a belief, then you must find him not guilty of sexual assault on Count 3. [Emphasis in original.]

[29] The jury must have concluded that on at least one occasion, C.C. did not consent to the sexual touching, and that Mr. Hurst did not have an honest belief in her communicated consent, because they convicted him of sexual assault on count 3. However, the precise factual findings upon which they arrived at their verdict are unclear, so I must consider the evidence and make my own independent determination of the facts.

[30] For the reasons that follow, I accept C.C.’s account of the incidents and reject Mr. Hurst’s versions of the events, to the extent that his testimony contradicts hers and includes exculpatory evidence. I found C.C. to be a credible and reliable witness. Her testimony was balanced. She did not attempt to demonize Mr. Hurst, despite making very serious allegations against him. When she was asked what kind of guy he was at work outside of his sexual misconduct, she said he “had some good traits” and noted that “some of us have bad days.” There were some inconsistencies in her testimony regarding other allegations that formed the basis of counts 4 and 5 on the indictment, but those inconsistencies did not undermine her overall credibility. Her testimony with respect to the incidents covered by count 3 was clear, consistent, plausible, and compelling. Mr. Hurst’s evidence, in contrast, was often very vague and improbable. Based on her evidence, which I accept, I have no difficulty concluding that C.C. did not consent to the sexual activity in question.

[31] Moreover, I reject Mr. Hurst’s evidence with respect to his defence of honest but mistaken belief in communicated consent. One of the reasons for this rejection is his admission that, after A.A. complained to their employer about his conduct in the fall of 2020, he pulled C.C. aside in the workplace and asked her if everything between them was consensual. He testified that he just wanted to confirm that they “were on the same page,” but he did not know what made him think they might not be on the same page. This constitutes circumstantial evidence of after-the-fact conduct that contradicts Mr. Hurst’s testimony that he honestly believed, at the time of the sexual touching, that C.C. was communicating consent. He would not have needed to confirm that the sexual touching was consensual if he sincerely believed that she had clearly communicated her consent on each occasion that he touched her. I therefore infer that he did not hold such an honest mistaken belief. This is, in my view, the only reasonable inference to be drawn.

[32] Mr. Hurst will therefore be sentenced on count 3 based on the facts alleged by C.C., namely that there were two workplace incidents of non-consensual sexual touching of her breast under her shirt, and several incidents of grinding his penis up against her buttocks without her consent.

Gravity of the Offences

[33] The offence of sexual assault covers a broad spectrum of non-consensual sexual touching, from a hand placed gently on a person’s lower back or grazing someone’s chest over top of their clothing, to more intimate violations of a person’s sexual dignity (such as touching the skin of their breasts or genitals, or performing oral sex), to even more intrusive violations of a person’s physical integrity (such as forced penetration of a person’s mouth, vagina or anus).

[34] Without attributing any intrinsic significance to the occurrence or non-occurrence of penetration during a sexual assault, and without assuming a clear correlation between the type of physical act and the harm to the victim, the Supreme Court of Canada has recognized the reality that specific sexual acts may increase the risk of harm: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at paras. 138-147. For instance, penile penetration, particularly when unprotected, can create a risk of disease transmission or pregnancy: R. v. Deck, 2006 ABCA 92, at para. 20; R. v. Holland, 2022 ONSC 1540, at para. 20. It can also create a risk that the victim may suffer social stigmatization in certain cultures and communities: R. v. Thurairajah, 2008 ONCA 91, at para. 12. Penetration, whether penile, digital, or with an object, also risks causing physical pain and physical injuries to the victim: Deck, at para. 20; Thurairajah, at para. 10; and Friesen, at paras. 139. For these reasons, forced penetration often attracts a higher sentence than the type of sexual assaults that Mr. Hurst committed on the victims in this case.

[35] Although the offences in this case are not at the more serious end of the spectrum of sexual assaults, the gravity of the offences must not be trivialized. In the recent Court of Appeal decision of R. v. A.J.K., 2022 ONCA 487, 162 O.R. (3d) 721, Fairburn A.C.J.O. stated the following (at paras. 74-75):

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.

As the years pass, enlightenment on the implications of sexual violence continues to permeate our conscious minds. In Friesen, the court noted 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. Moldaver J. stated: “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; citations omitted.]

Harm Caused to the Victims

[36] While Mr. Hurst did not use gratuitous violence in committing the sexual assaults, and the victims did not incur physical injuries, the psychological harm that they suffered is real and lasting. C.C. testified that she felt “tormented” by his behaviour toward her in the workplace. A.A. submitted a Victim Impact Statement for the Court’s consideration. In it, she describes how Mr. Hurst’s actions changed her from a cheerful, outgoing, and extraverted person to a withdrawn and reserved individual. She explains that when she first disclosed the assaults, she experienced such strong emotions that she found it hard to “keep it all together” and her three young daughters could not help but witness her emotional struggles. She is saddened by the fact that they have been impacted negatively. She says her disclosure of the assaults also changed her relationship with her partner, who bears a heavy emotional burden because of what Mr. Hurst did to her.

[37] A.A. describes how she has developed trust issues with males. She states that she panics when she is alone with a man. She finds it very difficult to work with males, especially those in a higher-level position than her within the workplace hierarchy. She requires a treatment plan of therapy and anti-depressant medication to manage her symptoms of sadness and anxiety. She has incurred expenses to pay for therapy, but she has not been able to attend counselling sessions as often as she would like because it is unaffordable.

[38] A.A. also suffered other economic losses due to Mr. Hurst’s offences. She took a 4-month stress-related leave from her work at the dealership because she could not cope with working alongside him. After she returned from leave, she could not continue to work with him, despite accommodations provided by her employer, so she lost her job. It was a job that she really enjoyed and that afforded her the flexibility she required as a single mom. She has not been able to secure employment in a position with commensurate flexibility since.

[39] The harms suffered by the two victims underscores the gravity of the offences committed by Mr. Hurst.

CIRCUMSTANCES OF THE OFFENDER

[40] Mr. Hurst is 46 years old. He was born and raised in small towns in Ontario. As noted in the Pre-Sentence Report prepared for the Court, he describes his upbringing as pleasant and active. He denies experiencing or witnessing any abuse or trauma during his childhood.

[41] He has three brothers, and both his parents are still living. He has close relationships with his mother and three siblings, and he enjoys their ongoing support. He has little contact with his father only because his father has an acquired brain injury that impedes communication.

[42] Mr. Hurst met his wife in 1997. They have been in a relationship for over 22 years and have been married since 2012. They have a 9-year-old son together. Their marriage has been strained due to Mr. Hurst’s involvement in the criminal justice system, but they continue to live in the same residence and are mutually committed to raising their son in a peaceful, intact home. They plan to attend marriage counselling in the future, but their current priority is their son’s wellbeing.

[43] Ms. Hurst describes Mr. Hurst in favourable terms as an “amazing father” who is actively involved in their son’s life, including extracurricular activities. They share a deep concern for their son’s vulnerability because of the nature of the charges against Mr. Hurst and the publicity that has accompanied some of the charges. Mr. Hurst has expressed fear that his past behaviour will cause his child to become the target of bullies. He has been making efforts to take his son to another town for extracurricular activities to avoid any potential bullying.

[44] Mr. Hurst is currently employed full-time as a truck driver. He works additional hours on weekends repairing trucks for a different employer. He claims to have had a solid employment history throughout his adult life, which is corroborated by collateral sources. He is uniformly described by others as a hard worker.

[45] Mr. Hurst is currently serving a conditional sentence for other sexual offences. Earlier this year, he was convicted in the Ontario Court of Justice of two counts of sexual assault and three counts of committing an indecent act. On May 31, 2023, Stanley J. sentenced him to a conditional sentence of 2 years less a day (meaning a sentence to be served in the community), followed by 3 years of probation. His conditional sentence includes strict terms, one of which is GPS monitoring.

[46] Mr. Hurst has been involved in sports activities from a young age, and he played high-level competitive hockey. He remained involved in recreational hockey as an adult and coached his son’s hockey team. He also volunteered as a firefighter for his local municipality. His volunteer engagements have, however, ceased, due to the nature of the charges he faced and the matters before the Courts.

[47] Although Mr. Hurst experimented briefly with recreational drugs in his 20s, there is no evidence that drug use ever interfered with his athletics, education, employment, or family life. When he first met with a Probation and Parole Officer in the spring of 2023 (for the preparation of a Pre-Sentence Report for the Ontario Court of Justice), he self-described as “drinking heavily,” but said he drank primarily in social settings on weekends. When he met with another Probation and Parole Officer more recently (for an update of the Pre-Sentence Report for this Court), he said he consumes beer at home on weekdays and weekends, but not to the point of intoxication. There is no evidence that he is dependant on alcohol. His wife does not have concerns about his drinking. Although alcohol consumption appears to have been a factor in the offences for which he was sentenced in May 2023, it was not a factor in the offences committed against A.A. and C.C., for which he is being sentenced today.

Support Letters

[48] Several letters of support were submitted by Defence counsel in advance of Mr. Hurst’s sentencing hearing. One is undated and the others are all dated from March or April 2023.

[49] The undated letter is from a female friend who worked with Mr. Hurst “a few years ago.” She states that he was polite and respectful and maintained professionalism in the workplace. She describes him as empathetic and compassionate. She says he recognizes his poor decision-making in the past and is now making wise decisions and stepping up to make his family and friends proud of him.

[50] One of the April 2023 letters is from the President of his current employer, who describes him as “an exemplary employee” and states that he has earned the trust and respect of the management team. Another letter is from a neighbour and friend, who reports that he has disclosed the charges against him and has shown remorse and shed tears of shame for his past actions. She notes that Mr. Hurst has always behaved respectfully at gatherings in her home. She also confirms that he was an active member of the community prior to the charges being laid against him.

[51] A third letter from April 2023 is written by Mr. Hurst’s family physician. It reports that he has been involved in counselling for sexual addiction and anxiety since 2020. The final support letter, dated March 7, 2023, is from his counsellor, who confirms that he participated actively in numerous counselling sessions between October 27, 2020, and October 27, 2021, and also at follow-up sessions in April 2022 and January 2023. The counsellor states that Mr. Hurst has been forthcoming about his behaviours that led to criminal charges, and he takes responsibility for his actions and has expressed shame and remorse. The counsellor confirms that he addressed with Mr. Hurst sexual behaviours that violate the rights and boundaries of others. He believes that Mr. Hurst has developed insight into his actions and appreciates how such actions can cause emotional pain to others. He notes in his letter that his work with Mr. Hurst has ended.

LEGAL FRAMEWORK

Purposes of Sentencing

[52] Pursuant to s. 718 of the Criminal Code, the sentence that I impose on Mr. Hurst must serve one or more of the following objectives: (a) denunciation of the offender’s unlawful conduct and of the harm done to victims or to the community; (b) specific and general deterrence; (c) separation of the offender from society, where necessary; (d) rehabilitation of the offender; (e) reparations for harm done to victims or to the community; and (f) promotion of a sense of responsibility in the offender and acknowledgement of the harm done to victims or to the community.

[53] These statutory objectives are not equally important in every case. General deterrence and denunciation are to be given greater weight in sentencing for sexual assaults, particularly sexual assaults that occur in a workplace: G.J.J., at para. 16; R. v. M.W., 2008 55474 (ON SC), at para. 34. Denunciation must make it clear to everyone that workplace sexual assault will not be tolerated. The sentence must be significant enough so that everyone who might be tempted to sexually assault a co-worker will be deterred from it. However, other sentencing goals, including individual deterrence and rehabilitation, must not be discounted or ignored: P.G., at para. 87.

Principles of Sentencing

[54] My task is to impose a sentence that is guided by the provisions of the Criminal Code and the principles set out in the jurisprudence. Sentencing requires me to consider and balance a multiplicity of factors, but proportionality is the organizing principle: R. v. Parranto, 2021 SCC 46, 75 C.R. (7th) 217, at paras. 9-10. Ultimately, I must fix a sentence that is proportionate to the gravity of the offences and the degree of responsibility of the offender: Criminal Code, s.718.1. In doing so, I must take into account any aggravating or mitigating circumstances relating to the offences or the offender: Criminal Code, s.718.2(a).

[55] In addition, I must “calibrate the demands of proportionality by reference to the sentences imposed in other cases”: Friesen, at para. 33; Parranto, at para. 11. Section 718.2(b) of the Criminal Code requires that I impose a sentence on Mr. Hurst that is comparable to those imposed on similar offenders for similar offences committed in similar circumstances.

[56] Furthermore, I must be mindful of the principle of restraint articulated in ss. 718.2(d) and (e) of the Criminal Code. It requires me to consider all available reasonable sanctions apart from incarceration. If I am of the view that a custodial sentence is necessary, the restraint principle dictates that Mr. Hurst’s term of imprisonment be as short as possible and be tailored to his individual circumstances: R. v. Priest (1996), 1996 1381 (ON CA), 30 O.R. (3d) 538 (C.A.), at para. 23.

Consecutive vs. Concurrent Sentences

[57] Because Mr. Hurst is being sentenced for multiple offences at one time, I must determine whether he should serve his sentences consecutively (one after the other) or concurrently (at the same time). This decision is within my discretion, but there are well-established principles that must govern the exercise of my discretion.

[58] Sentences should generally be served consecutively where the offences constitute separate transactions or where offences are perpetrated against different victims at different times. In Friesen, at para. 155, the Supreme Court of Canada stated that “the general rule is that offences that are so closely linked to each other as to constitute a single criminal adventure may, but are not required to, receive concurrent sentences, while all other offences are to receive consecutive sentences.”

Principle of Totality

[59] If I determine that consecutive sentences of imprisonment are appropriate, then I must be mindful of the totality principle. It requires me to ensure that the combined sentence is not unduly long or harsh: Criminal Code, s. 718.2(c).

[60] Totality can be addressed in two ways. I can either determine the fit sentence for each of Mr. Hurst’s offences before considering the proportionality of the cumulative total, or I can determine the overall fit sentence for Mr. Hurst’s offences and then apportion the global term of imprisonment to each offence. Either method, when done properly, is an appropriate way to ensure that the total sentence is not overly long and harsh, and not disproportionate to the gravity of the offences and the degree of moral culpability of the offender: R. v. Milani, 2021 ONCA 567, at para. 36.

PARITY AND THE APPLICABLE SENTENCING RANGE

[61] Counsel provided me with sentencing cases that they submit support their respective positions with respect to the appropriate range of sentence for Mr. Hurst’s offences. These authorities are of some assistance in ensuring that the principle of parity is observed. In other words, they help me to ensure that Mr. Hurst’s punishment is comparable to that of similar offenders who committed similar offences.

Crown’s Authorities

[62] The Crown provided me with the following sentencing cases.

[63] R. v. Anderson, 2017 ONSC 1322 – The offender was a modelling agent, who was found guilty of 4 counts of sexual assault and 1 count of sexual interference against three complainants. The offences were historical and spanned a 9-year period. All three victims were male models, two of whom were only 16 years old at the time of the offences. He sexually assaulted the victims when they came to his home to have photos taken for their portfolios. He was in a position of authority over the 3 victims. All the offences involved unwanted sexual touching. For two of the victims, the assaults included him pulling down their underwear, and holding and stroking their penis. He was well-respected within the modelling industry and submitted numerous strong letters of support. His reputation was badly damaged by the criminal charges, and he was no longer able to work in the industry. His crimes were the subject of intense media coverage and public denunciation. The criminal justice process had taken a heavy toll on him. He had medical issues that would make a sentence of incarceration more difficult than for someone without those issues. The trial judge sentenced him to concurrent 18-month conditional sentences, plus a 30-day custodial sentence to be served intermittently.

[64] R. v. G.J.J. [2003], O.J. No. 4050 (S.C.J.) – The offender and the victim were colleagues employed by a ski hill. He had some supervisory role over her in the workplace and therefore held a position of trust. He invited her to lie down on a couch, offered to do up her ski pants, put his arm around her, pulled her towards him, placed his hand on her breast and nuzzled his face to her neck. He had a prior record of sexually assaulting a stepchild, for which he had been sentenced to 5 years in jail. He also had other convictions that were dated and not sexual in nature. He was 52 years old and had significant health problems. He showed no remorse and did not acknowledge committing the acts that the jury determined he had committed. The trial judge imposed a custodial sentence of six months’ imprisonment, plus two years probation.

[65] R. v. Hilan, 2015 ONCA 338 -- The offender touched the victim and raised her skirt while seated beside her on a public bus. He was a first-time offender. The trial judge sentenced him to 6 months’ imprisonment with two years’ probation. The Court of Appeal for Ontario varied the sentence to a suspended sentence plus two years’ probation, noting that a jail sentence of 6 months was “wholly disproportionate to the conduct at issue” (para. 5).

[66] R. v. Leuschner, 2021 ONSC 2714 -- The offender was sentenced for one count of sexual assault and one count of sexual interference involving two different victims, one of whom was only 14 years old. The adult victim was a co-worker. On one occasion when they were at a restaurant with a group of their colleagues, the offender leaned across the table and kissed her without her consent. On another occasion, when they were seated in a work-vehicle, he reached over and massaged her genital area with his hand for about 10 seconds. With respect to the teenage victim, he grabbed and touched her buttocks on two occasions, hugged her and gave her a kiss on the cheek. He was a 57-year-old man who had suffered abuse at the hands of his father as a child. He was estranged from most of his siblings, separated from his spouse, and did not see his children regularly. He was unemployed at the time of sentencing due to disabling injuries and was suffering from depression and chronic pain. He had a long but dated record of criminal offences, none of which were sexual in nature. His longest previous custodial sentence amounted to 90 days. The trial judge imposed a global sentence of 10 months’ imprisonment, with three years probation. Of the 10-month sentence, four months were allocated to the sexual assault that involved unwanted sexual touching of his colleague.

[67] The Crown also provided me with the decisions in R. v. M.R., 2018 ONSC 583 and R. v. R.B., 2021 ONCJ 635, but those cases involved offences committed in significantly different circumstances, namely victims who were assaulted while unconscious due to intoxication, and very serious breaches of trust and authority. In my view, these cases are so distinguishable on their facts as to provide little assistance to me in sentencing Mr. Hurst.

Defence Authorities

[68] Defence counsel provided me with the following sentencing cases to consider.

[69] R. v. P.R., 2013 ONSC 1517 -- The offender was in a position of authority with respect to the victim in their workplace. He pressured her to let him accompany her to her apartment, where he grabbed her the neck, stuck his tongue down her throat, and felt her vaginal area with his fingers. Durno J. overturned the trial judge’s sentence of 60 days imprisonment and substituted a 6-month conditional sentence with restrictive terms. The offender was a 49-year-old first time offender who had made significant contributions to his community, and who was otherwise a person of good character with family obligations. The authors of several reference letters spoke about him in glowing terms.

[70] R. v. P.G., 2020 ONSC 4438 – The victim was sexually assaulted while working at a Walmart. The offender “blindsided her” by touching her buttocks with his hand as he walked by her while she was stocking shelves in an aisle. Dennison J. of this Court upheld the trial judge’s suspended sentence with 6 months’ probation. Rehabilitative efforts had been undertaken by the offender, who had expressed remorse for his actions after being convicted. He had no criminal record.

[71] R. v. Mustafa, 2021 ONSC 3088 – Davies J. of this Court upheld the trial judge’s decision to sentence the offender to a suspended sentence with 18 months-probation for sexually assaulting his nurse. He had engaged in pattern of sexually aggressive conduct toward her, which culminated in him lunging at her, putting her in a headlock, squeezing her breast and kissing her on the side of her neck. He did this in her place of employment, and she was significantly impacted by the assault.

[72] R. v. H.A.E., 2018 ONSC 5690 – The offender was 70 years old businessman who had employed the 24-year-old victim as an administrative assistant. He drove her to the countryside and sexually assaulted her in his vehicle while it was in motion. He placed his hand on hers, then on her thigh and vaginal area, which he rubbed through her clothing. The trial judge imposed a 6-month conditional sentence, followed by one year of probation. The sentence was upheld on appeal. The offender had led a pro-social life and had no criminal record. He suffered from serious health problems and had already experienced a negative collateral consequence, namely suspension from the Royal Canadian Legion). The criminal justice process had negatively impacted his business activities and severely damaged his professional reputation.

[73] R. v. Szymanski, 2020 ONCJ 112 , aff’d 2021 ONSC 5482 -- The accused sexually assaulted his financial advisor during a meeting in her workplace. He brushed his hand across her breast over her clothing, then grabbed her shirt near her cleavage and pulled her toward him, while expressing a desire to have sexual intercourse in graphic and vulgar terms. He was a 58-year-old first-time offender, who had been a productive member of society. He expressed remorse and apologized to the victim. The offence had a negative impact on the victim’s mental health, and on her relationships at work and with her husband. The trial judge imposed a suspended sentence with 12 months’ probation, which was upheld by Baltman, J. on appeal.

[74] R. v. R.L., 2013 ONCJ 617 -- The 62-year-old offender was convicted of 3 counts of sexual assault involving a 29-year-old employee who had been placed in his employ through a special program for persons with learning disabilities. On two separate occasions on the same day, he put his hand down her shirt and touched her breast on the nipple, while kissing her, and then he later undid her shirt and kissed her breast. The trial judge found that he committed a double breach of trust because of his position of authority and her vulnerability as a person who had a disability that included difficulty communicating. He had no criminal record, had previously demonstrated good behaviour, and had several letters of support from members of the community. He expressed no remorse for his behaviour and did not engage in any rehabilitative programing to address future risk of re-offending. The trial judge sentenced him to 3 concurrent terms of 90 days’ imprisonment, to be served intermittently, followed by 2 years probation.

[75] R. v. Giovannelli, 2017 ONCJ 408 -- The offender was a restaurant owner who sexually assaulted a woman who he employed as a server. During a staff work party, they met outside the women’s washroom, where he kissed her, touched her breasts over her clothing and inserted his fingers in her vagina without her consent. The victim suffered serious emotional trauma as a result. The offender submitted several letters of support, including from other employees, among them female servers who described him in positive terms. He had a record of prior offences that included a domestic assault on his wife. The trial judge sentenced him to 90 days’ imprisonment, to be served intermittently, followed by one year probation.

[76] R. v. Holland, 2022 ONSC 1540 – The offender was a successful nightclub promoter who lured an intoxicated client to a secluded area of the club, ostensibly as part of a VIP tour, then sexually assaulted her by pulling down her pants and penetrating her vagina with his finger. She suffered serious and lasting emotional and psychological harm as a result. He was 45 years old and had no criminal record. He had the support of his family throughout the criminal justice process. He maintained his innocence after he was convicted. He was sentenced to a term of imprisonment of 8 months, to be served in the community (i.e., conditional sentence).

[77] R. v. Phillippo, 2022 ONCJ 499 -- After a work party, the offender and the victim returned to her room for some wine. She fell asleep and awoke to him sexually assaulting her. He put his hand down her shirt and touched her nipple. A short time later, he put his hand down her shorts, played with the band of her underwear, and touched her buttocks. She was significantly impacted by the assault and consequently quit her job. He was fired from his job. He was sentenced to a 90-day conditional sentence, followed by 12 months’ probation.

[78] R. v. Hillier, 2023 N.J. No. 106 (Nfld and Lab. Prov. Ct.) -- The offender was convicted of sexually assaulting a co-worker in their workplace. While she was bent over from the waist, with her head, arms, and torso in a large container, he touched her backside. The trial judge noted, as aggravating circumstances, that he was senior to her on the staff, and was old enough to be her father. He had a dated criminal record, including prior convictions for assault and for breaches of court orders. He was sentenced to 90 days in custody.

[79] Defence counsel also provided me with a copy of R. v. R.S., 2021 ONSC 2263, aff’d (in part) 2023 ONCA 608. The circumstances of the offender and of the offence in that case are so distinguishable that it is of little assistance to me in sentencing Mr. Hurst.

[80] Not surprisingly, none of the cases provided by counsel is precisely analogous to the facts in the case before me, and none of the offender’s personal circumstances is identical to Mr. Hurst’s circumstances. Each case is unique and has its own distinguishing features. I have considered these distinguishing features in applying the principle of parity.

[81] I have also taken into consideration two additional cases that were mentioned in the jurisprudence submitted by counsel. The first is R. v. Rae, [2007] O.J. No. 1832 (S.C.J.), in which O’Connor J. upheld a sentence of 90-days’ imprisonment followed by 12 months’ probation for a workplace sexual assault committed by a person in authority on a 17-year-old victim. The facts are not detailed in the appeal decision, but the offence appears to have involved unwelcome touching of the victim’s breast over top of her shirt. The second case is R. v. Perry, [2012] O.J. No. 5327, in which the offender grabbed a female employee and dragged her into the stockroom, where he tried to kiss her. On a second occasion, he put his hand part-way down her pants, above her underwear. He was 48 years old with no prior record. He was convicted of assault and sexual assault and received 30 days for the assault and 90 days consecutive for the sexual assault, plus 2 years' probation.

RELEVANT FACTORS

Aggravating Factors

[82] The following aggravating factors apply in this case.

[83] Mr. Hurst assaulted more than one woman. This suggests an inability to control his sexual impulses and a pattern of predatory behaviour that increases the gravity of the offences.

[84] Both victims were assaulted more than once. Repetition of the incidents over time is an aggravating factor. Mr. Hurst did not engage in a single isolated incident that might suggest a mere lapse in judgment. The multiplicity of incidents and the escalation in the seriousness of the conduct with respect to A.A. enhance both the gravity of the offences and the offender’s moral blameworthiness.

[85] The assaults occurred in the workplace, where the victims were required to attend to earn their livelihood. This also elevates the gravity of Mr. Hurst’s offences and his moral blameworthiness. Workplace incidents are more serious because they not only harm the individual victims, but they also poison the work environment: R. v. Luis M. (Private), 2022 CM 4016, at para. 12; Hillier, at para. 15.

[86] On more than one occasion, Mr. Hurst intentionally targeted the victims when they were in a vulnerable position with no means of evading his unwanted touching: C.C. was bent over cleaning her car when he snuck up on her and started grinding his crotch into her butt; A.A. was similarly bent over with her head and upper torso inside the confined space of a cubby when he grabbed her buttocks, and when he later reached around and grabbed her breasts under her blouse.

[87] Although the unwanted sexual touching was not skin to skin, it was nevertheless invasive, not only because of the body parts that were touched, but also because Mr. Hurst put his hands under the victims’ clothing (under their blouse but over their bra). The distinction between sexual touching over and under the clothing is often cited in sentencing decisions as a relevant consideration in assessing the seriousness of a sexual assault: R. v. L.T. [2011] O.J. No. 1650 (C.A.); Sazant v. College of Physicians and Surgeons, 2011 ONSC 323, [2011] O.J. No. 192 (Div. Ct.) at para. 279; R. v. Escobar, [2008] O.J. No. 1232 (S.C.J.) at para. 23. As Durno, J. stated in P.R. (at paras. 93-94), “touching under the clothing is a more invasive and serious sexual assault.”

[88] The offences came close to a breach of trust situation. Although Mr. Hurst did not occupy a conventional position of trust with respect to the victims (such as a religious cleric or health care practitioner), he occupied a managerial position within the workplace in which he was specifically entrusted to update and implement the company’s sexual harassment policy. The victims were not only entitled to feel safe in their workplace generally, but they also reasonably expected to be able to trust the person who had these specific responsibilities. In that sense, he violated their trust. He also clearly violated his employer’s trust.

[89] While this is not a case in which the offender was in a position of authority relative to the victims, it is nevertheless a case in which Mr. Hurst exploited a position of influence and power that he occupied in the workplace. There was no direct reporting relationship from the victims to Mr. Hurst and he did not exercise authority over them, but he occupied a high-level position within the company as a manager who supervised a significant percentage of the workforce. Moreover, he had a close personal relationship with the general manager, who was also the owner’s son. His relationship with the general manager was well-known by all the staff, because he spent a lot of time in the general manager’s office during work hours, and they regularly went out of drinks together after work. The victims therefore naturally doubted whether reporting his misconduct to management would result in any formal recourse, and C.C. worried about possible retaliatory conduct if she made a complaint.

[90] There was an imbalance of power between Mr. Hurst and the two victims. A.A. was working as the receptionist in the dealership and she occupied one of the lowest ranks within the company’s organizational hierarchy. C.C. was a manager, but she had no supervisory responsibilities and no staff reported to her. Neither woman enjoyed the close personal bond that Mr. Hurst had with the general manager. Mr. Hurst exploited his position, believing that it afforded him the opportunity to engage in sexual assaults of co-workers with impunity. This enhances his moral blameworthiness.

Mitigating Factors

[91] Defence counsel argues that the sexual assaults were opportunistic incidents, rather than planned incidents, and that this reduces the seriousness of the offences and Mr. Hurst’s degree of culpability. For the reasons that follow, I disagree.

[92] Mr. Hurst invited A.A. into his office the first time that he sexually assaulted her in 2017. He did not get out of her way when she approached his desk to assist him with his computer problem. He deliberately placed her in a position where he could touch her without her consent. Similarly, he boarded the RV a second time in November 2019 because he thought (unreasonably) that A.A. had been flirting with him earlier. He knew she was alone on the RV, and he clearly had in mind to touch her sexually. He did so without warning to “gauge her reaction”. These were planned sexual assaults. They were not opportunistic, rather he manufactured the opportunities.

[93] The sexual assaults on C.C. may have been more opportunistic in the sense that Mr. Hurst did not orchestrate the circumstances in which they occurred, but the fact that he appears to have acted impulsively does not render them any less serious or harmful to C.C. Planning and deliberation may be an aggravating factor in some sexual assault cases, but the absence of planning and deliberation does not constitute a mitigating factor.

[94] The greatest mitigating factor in this case is Mr. Hurst’s efforts at rehabilitation. After he was charged with sexual offences, he sought and attended individual therapy sessions. The therapy appropriately focused on compulsive sexual behaviours and boundaries violations. This self-referral to professional services suggests that he is invested in education and personal growth to understand his behaviour and reduce the risk of recidivism. Although Mr. Hurst’s work with his counsellor has ended, the Pre-Sentence Report notes that he has recently been referred to another clinical therapist for more sexual behaviour therapy, and he has already completed the requisite intake process.

[95] The Pre-Sentence Report is positive. It reflects the fact that Mr. Hurst has been a productive member of society who has a record of steady employment and who takes his family responsibilities seriously. He also has a history of volunteering for his municipality and for his son’s sports teams.

[96] Mr. Hurst has received support from his wife, from other family members and from some people in the community as he navigates the criminal justice process. He also has the support of his current employer. However, it is unclear from the content of the support letters whether the authors are aware of the particulars of his offences against A.A. and C.C. It seems that the authors are under the impression that Mr. Hurst’s offences were committed many years ago, when he was in his twenties. The dates of the letters (in April 2023) suggest that they were written for Mr. Hurst’s sentencing hearing in the Ontario Court of Justice in May 2023, which would explain why the authors refer to past historical transgressions. The authors’ views might not be the same if they learned that Mr. Hurst committed these workplace sexual assaults as a mature adult in 2017, 2019 and 2020.

[97] Moreover, Mr. Hurst already received the benefit of the mitigating effect of the support letters when he was sentenced by Stanley J. for his other offences. I am mindful of this in weighing the mitigating effect that they have in the case before me.

[98] Defence counsel argues that although Mr. Hurst did not enter a guilty plea, he should nevertheless receive the benefit of some mitigation because he admitted certain inculpatory facts. I disagree. Although he conceded some facts with respect to C.C., he consistently downplayed the seriousness of his actions with A.A. and denied some of her allegations; he asserted that both victims consented to the sexual touching; and he professed ignorance of their non-consent.

[99] Moreover, Mr. Hurst’s factual concessions were not made at the outset of the trial and therefore did not spare the victims from having to testify about the details of the sexual assaults.

[100] I should note that although Mr. Hurst does not receive the mitigating benefit of a guilty plea, or any mitigation for conceding some elements of the offences, his decision to plead not guilty and to put the Crown to its onus of proving the offences beyond a reasonable doubt is not an aggravating factor.

[101] Mr. Hurst told his probation officer that he is trying to be better each day as a person, father, husband, and member of his smalltown community. He expressed remorse for his conduct. He told the probation officer that knowing what he did has negatively impacted the lives of the two victims in this case gives him a “gut-wrenching feeling”. His expression of remorse constitutes a mitigating factor, but the force of its mitigation is muted because of its timing. At trial, Mr. Hurst attempted to rationalize his conduct. He only expressed remorse after the jury rejected his rationalizations and convicted him. Still, his remorse is a mitigating factor.

[102] Another mitigating factor, albeit of limited weight, is Mr. Hurst’s clean record at the time that these offences were committed. He is technically a first-time offender, but the mitigating impact of this factor is greatly diminished because he has since been convicted of other sexual offences against five other women that pre-date the offences against A.A. and C.C. Mr. Hurst is clearly a serial sexual offender, which underscores the need for a sentence that prioritizes specific deterrence, as well as general deterrence and denunciation.

[103] Finally, Mr. Hurst has been compliant with his bail conditions. As previously mentioned, he has also been subject to a conditional sentence for other offences since May 31, 2023. He has been wearing a GPS-monitored ankle bracelet and there have been no compliance concerns during the period of his supervision. He has been reporting to all his scheduled in-person appointments and has engaged with his probation officer.

[104] All the above mitigating factors bode well for Mr. Hurst’s rehabilitation and reduce his risk of recidivism in the future.

Collateral Consequences

[105] Defence counsel submits that Mr. Hurst has suffered significant collateral consequences because of his offences, which should be taken into consideration in determining a proportionate sentence. She argues that he is being sued by both A.A. and C.C.; he lost his job with the motorhome dealership; he and his family have been ostracized in the small community where they reside because of the media coverage relating to his criminal charges; and he has lost a lot of freedom in the community.

[106] In my view, only the civil lawsuit is a true collateral consequence of Mr. Hurst’s offences against A.A. and C.C., and the outcome of that legal action has yet to be determined. There is no evidence that his employment with the dealership was terminated because of his conduct toward these victims. Furthermore, the evidence establishes that all the other collateral consequences cited by Defence counsel flow from other offences that he committed and for which he was sentenced in May 2023. These are not collateral consequences that have any bearing on my sentencing task.

[107] I recognize, however, that there may be further collateral consequences that flow from the offences against A.A. and C.C. if I decide to sentence Mr. Hurst to a term of incarceration, particularly one that is not served intermittently. His employment may be jeopardized if he is required to serve a custodial sentence, and his wife and son will likely suffer further social stigmatization. I note that Mr. Hurst’s concerted efforts to insulate his young son from exposure to the negative consequences of his actions is commendable.

ANALYSIS AND DISPOSITION

[108] I have considered the applicable sentencing principles and the relevant sentencing purposes, as set out in these Reasons. I have reviewed the jurisprudence and am mindful of the range of sentences usually imposed for offenders in similar circumstances who commit similar offences. I am also mindful of the lasting harm caused to A.A. and C.C. Finally, I have weighed the aggravating and mitigating factors discussed above.

[109] I conclude that the Crown’s proposed sentence of 12 to 15 months’ imprisonment exceeds what is necessary to satisfy the purposes of deterrence and denunciation. Such a sentence would therefore be inconsistent with the principles of totality and restraint. It would also fail to give sufficient weight to the mitigating factors in this case. Furthermore, it would constitute a departure from the range of sentences typically imposed on offenders in similar circumstances who commit similar offences.

[110] Defence counsel argues that, but for Mr. Hurst’s existing conditional sentence, this would be an appropriate case to impose a conditional sentence, given the work that Mr. Hurst had done to gain insight into his conduct and to rehabilitate himself. Since consecutive conditional sentences are not possible, she urges me to consider imposing an intermittent sentence. She also submits that it is open to me to consider a suspended sentence and probation.

[111] I agree with the Crown that neither an intermittent sentence nor a suspended sentence would be appropriate in the circumstances of this case. A global intermittent sentence of 60 to 90 days’ imprisonment would fail to give sufficient weight to the aggravating factors listed above. Moreover, it would not adequately denounce Mr. Hurst’s criminal conduct, nor deter others who are inclined to sexually assault colleagues in the workplace.

[112] I have concluded that the following sentences are reasonable, fair, and proportionate to the gravity of Mr. Hurst’s offences and to the extent of his moral blameworthiness:

a. For count 1 (i.e., the sexual assault of A.A. in Mr. Hurst’s office in the fall of 2017), I impose a sentence of one month’s imprisonment.

b. For count 2 (i.e., the sexual assaults of A.A. inside an RV in November 2019), I impose a sentence of two months’ imprisonment. A conviction for a single charge that includes more than one instance of sexual violence must be punished more severely than a conviction for a single incident: Friesen, at para. 132. Moreover, the seriousness of Mr. Hurst’s criminal conduct against A.A. escalated over time and the sentence for count 2 must therefore reflect the increased gravity of the offences.

c. Even though counts 1 and 2 both relate to the same victim, these sentences shall be served consecutively because they pertain to discrete offences that were committed approximately two years apart.

d. For count 3 (i.e., the sexual assaults of C.C. in 2019 and 2020), I impose a sentence of three months’ imprisonment. This higher sentence (relative to counts 1 and 2) reflects the fact that the charge covers repeated incidents of unwanted sexual touching over a prolonged period. This sentence shall also be served consecutively.

[113] I am satisfied that this global sentence of 6 months’ imprisonment is consistent with the principles of totality and restraint. The sentence is not unduly long or oppressive. It is proportionate to the gravity of the offences and to Mr. Hurst’s degree of responsibility. It serves the goals of deterrence and denunciation, while also recognizing the importance of Mr. Hurst’s rehabilitation. It is also consistent with the principle of parity.

[114] In addition to this sentence of incarceration, I make the following ancillary orders:

a. an Order pursuant to s. 487.051(1) of the Criminal Code, authorizing the taking of samples of Mr. Hurst’s bodily substances for forensic DNA analysis;

b. a life-long weapons prohibition order, pursuant to ss. 109(1)(a) and 109(3) of the Criminal Code; and

c. an Order pursuant to s. 743.21 of the Criminal Code, prohibiting Mr. Hurst from communicating directly or indirectly with A.A. and C.C. during the custodial period of his sentence.

[115] The Crown also requested an Order pursuant to ss. 490.012(1) and 490.013(2.1) of the Criminal Code, requiring Mr. Hurst to comply with the Sex Offender Information Registration Act for life. Given recent amendments to this section of the Criminal Code, the parties shall appear before me on a date to be scheduled to make submissions regarding this issue.

[116] Finally, I impose an 18-month period of probation to run concurrent with Mr. Hurst’s existing conditional sentence (which will be suspended and will resume after his period of incarceration). As a condition of his probation, he is not to communicate in any way, directly or indirectly, with either A.A. or C.C.

Petersen J.

Released: November 15, 2023

R. v. Hurst, 2023 ONSC 6448

Case Summary