Court File and Parties

COURT FILE NO.: CR 15510/21 DATE: 20230202

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – KALE WARDLAW Defendant

Counsel: Tamara Jackson, for the Crown Nate Jackson, for the Defendant

HEARD: January 16, 2023

Reasons for Sentence

There is a ban on publication in this matter pursuant to s. 486.4(1) of the Criminal Code.

LEIBOVICH J.

[1] On September 12, 2022, I, sitting without a jury, convicted Mr. Wardlaw of sexually assaulting and assaulting ED over the course of their two-year relationship. In total Mr. Wardlaw was convicted of 11 offences; six of those offences were acts of sexual assault. Four of the sexual assaults involved forced vaginal intercourse while a fifth involved anal intercourse. Sentencing submissions were heard on January 16th, 2023, and the matter was put over to today’s date, February 2, 2023, for sentencing. The Crown seeks a global sentence of eight years while the defence seeks a sentence of four years.

[2] The Crown and the defence both agree that the following ancillary orders should be imposed: 1) there should be a DNA order; 2) a 10-year s. 109 weapons prohibition order; 3) a lifetime SOIRA order; and 4) a s. 743.21 no contact order with the victim.

Circumstances of the offence

[3] The circumstances of the offence were set out in my reasons for judgment; R. v. Wardlaw, 2022 ONSC 5155. At the conclusion of that judgment, I summarized my findings at para. 88:

With respect to count 1: Mr. Wardlaw pushed ED onto his bed. He turned her around, pulled her pants down and then had forced anal intercourse with her. ED asked him to stop. He pushed her face into a pillow as she screamed. She kept screaming stop but he kept going, having anal sex with her. He was forcefully pushing her into the pillow. She had trouble breathing and screaming. He ejaculated and ED was bleeding from her rectum. ED did not consent to the sexual activity and Mr. Wardlaw knew that she was not consenting;

With respect to count 2: Mr. Wardlaw pushed ED’s head down into the sink with one hand, he bent her over and pushed the back of her neck. The other hand pulled her pants down to the middle of her thigh. She said stop. He did not. He held her down and had forced vaginal intercourse with her. He ejaculated. ED did not consent to the sexual activity and Mr. Wardlaw knew that she was not consenting;

With respect to count 3: Mr. Wardlaw pushed ED onto the bed, pulled down her pants, and had forced sexual intercourse with her. ED did not consent to the sexual activity and Mr. Wardlaw knew that she was not consenting;

With respect to count 4: Mr. Wardlaw threw the water bottle at ED causing injury to her forehead. This was a purposeful act, not an accident as Mr. Wardlaw later asserted to ED;

With respect to count 5: Mr. Wardlaw pushed ED onto her bed and tried to pull her pants down before stopping and leaving the residence. ED did not consent to the sexual activity and Mr. Wardlaw knew that she was not consenting;

With respect to count 9: Mr. Wardlaw threw the mirrored plate at ED leaving a mark on her cheek;

With respect to count 10: Mr. Wardlaw placed both hands around ED’s neck and pushed her against the wall, choking her and leaving markings on her neck and a sore throat;

With respect to count 11: Mr. Wardlaw forced sexual intercourse on ED while she was sleeping. He covered her face with a pillow with one hand, choked her with another and bit her breast really hard. ED did not consent to the sexual activity and Mr. Wardlaw knew that she was not consenting;

With respect to count 12: Mr. Wardlaw threw his phone at ED, hitting her eye and causing a bruise;

With respect to count 13: Mr. Wardlaw got on top of ED, opened her legs with his knees, had forced sexual intercourse with her and bit her breast really hard. He caused bruising to her breast and inner thigh. ED did not consent to the sexual activity and Mr. Wardlaw knew that she was not consenting; and

With respect to count 14: Mr. Wardlaw threw a lit cigarette at ED.

Victim impact statement

[4] ED filed a lengthy victim impact statement. ED described the emotional pain she suffered from the abuse and the anxiety and difficulty of going through the court process. ED was abused by a prior partner. She told Mr. Wardlaw of that abuse. She “trusted Kale not to repeat any past trauma” and she felt betrayed by his abuse of that trust. ED repeated a portion of her diary in her victim impact statement and read it out in court:

I’m afraid…

I’m afraid you’ve taken the best parts or me, and dimmed my shine.

I’m afraid to feel anything but the pain you have caused me.

I’m afraid to see your face again one day, why are you doing this to me? You and I both know you did this.

I’m afraid that one day when someone decides I’m worth it, I’ll never believe them because you told me I’m nothing……

[5] The above diary entry was made in April 2019. ED wrote at the conclusion of her statement that:

...it was very hard to put into words how this has affected my life, as it has destroyed me as a person, and I have had to work extremely hard to find myself again. I am no longer the woman that Kale met years ago. I am stronger and more aware of what a healthy relationship should look like, even though fear holds me back from seeking one.

Circumstances of the offender

[6] Mr. Wardlaw is now 34 years old. In 2008 he was convicted of four unrelated offences and received a suspended sentence.

[7] A pre-sentence report was prepared for sentencing.

[8] Mr. Wardlaw was raised by his mother. His father was not involved in his upbringing as Mr. Wardlaw’s parents separated when Mr. Wardlaw’s mother was pregnant. Mr. Wardlaw had an uneventful childhood. He participated in sports and other extra curricular activities. Mr. Wardlaw currently lives with his mother.

[9] Mr. Wardlaw has had numerous past intimate relationships and is currently dating someone. His current girlfriend says that she was a past victim of domestic violence and in contrast to that relationship, Mr. Wardlaw “does not present as anything but supportive and respectful of her boundaries…..he is a good sounding board and understanding.” She told the pre-sentence report writer that Mr. Wardlaw has not acted out in a sexually deviant way, nor has he ever forced himself upon her.

[10] Mr. Wardlaw graduated high school. He is currently employed at R. Line Utility Services where he has been working as a Hydro Vac Operator for just under two years. His employer described him as a hard worker and valued member. His employer said that he never saw Mr. Wardlaw act inappropriately with the female staff.

[11] Mr. Wardlaw told the pre-sentence report writer that he has been drinking alcohol since he was 13 without a problem. Mr. Wardlaw said that he started using cocaine and he consumed it the most while he was in a relationship with ED. He said that he has not used cocaine for the past two years. His current girlfriend stated that she and Mr. Wardlaw consume marijuana daily but no other illicit drugs.

[12] The pre-sentence report writer wrote that Mr. Wardlaw, “presented as polite and cooperative during the interview process.” He concluded that:

The subject was raised in a single parent home where he was the only child. He resides with his mother, and she is said to be very supportive. His behaviour as a youth was described in positive terms and he only became in contact with the justice system as an adult. The subject completed a high school education and was eventually successful in obtaining a college diploma in a field that he is now employed in. It was stated that he was a valued employee, a hard worker and that his absence will create a problem.

With regards to the subject’s intimate relationships, he advised that he has had about 50 partners and that, aside from these current charges, he has never been accused of being sexually deviant. His current girlfriend advised that he respects boundaries and that he is very supportive of her.

Substance abuse is not considered to be an area of concern as reported by collaterals. However, the subject revealed, and the victim confirmed that he was using cocaine regularly and that it had a negative impact on his relationships, his ability to maintain employment and his contact with the criminal justice system. He has not sought counseling.

Reportedly, the subject was compliant during his previous period of probation completing his court ordered tasks in a timely fashion. It was also stated that he is suitable for future community supervision.

Letters of Support

[13] Mr. Wardlaw filed 17 letters of support from his mother, current girlfriend, friends, neighbours and family friends. In general, they describe a kind helpful, nonviolent person. They write that the current offences are uncharacteristic of him. For example, one person wrote:

Kale has always been a pleasant and helpful person who has come to my home many times to do odd jobs for me such as cutting grass, shoveling, changing lightbulbs. Etc. I have found him to be very honest, reliable, and trustworthy. He will often go out of his way to be of assistance.

I know his mother depends on him for financial and physical help.

[14] Another person wrote:

I'm writing this letter to give context to his character. He has always been a very hardworking, caring and thoughtful person who has displayed it countless times. He's helped me move, he's bought me dinner, he's watched my dog, he's helped work on projects whether on my home or car. He would give a stranger the shirt off his back. I've never seen him become aggressive in any of the many years we've been friends.

[15] Mr. Wardlaw’s mother provided a letter of support. She said that he helps her financially and with her household tasks. She said that she has “some medical challenges such as C.O.P.D. a torn meniscus, bursitis and tendonitis in my shoulders and I am on a lung cancer watch since 2015 when I developed some unknown nodules in my left lung, which after 6 months of exhaustive and repeated testing was left undiagnosed and therefore being watched.” She wrote that the delay in sentencing has affected Mr. Wardlaw. I note that the first scheduled sentencing hearing date was December 16, 2022. Earlier court dates were available, but defence counsel had other court commitments. The December 16th date was ultimately adjourned at the request of the defence as he had accidently double booked himself for that date.

Aggravating and mitigating factors

[16] The mitigating factors are as follows:

(a) Mr. Wardlaw does not have a related criminal record nor any history of violent behaviour;

(b) He has extensive support in the community;

(c) The pre-sentence report is positive;

(d) He has been employed and is a productive member of society;

(e) He has prospects for rehabilitation; and

(f) He has not used cocaine for two years.

[17] The aggravating factors are as follows:

(a) Mr. Wardlaw abused his domestic partner;

(b) Mr. Wardlaw committed the offences knowing that she had been abused by a prior partner;

(c) The offences were numerous, serious and violent. He forced vaginal intercourse with her on four occasions and one act of anal intercourse; and

(d) The victim impact was devastating.

[18] Mr. Wardlaw pleaded not guilty. He has expressed no remorse for his actions. Mr. Wardlaw is entitled to take these positions. The lack of remorse is not an aggravating factor it is simply the absence of a mitigating factor.

Law and Analysis

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

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

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

b. To deter the offender and other persons from committing offences;

c. To separate offenders from society, where necessary;

d. To assist in rehabilitating offenders;

e. To provide reparations for harm done to victims or to the community; and,

f. To promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

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

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

[21] In this case, Mr. Wardlaw was convicted of sexually assaulting and assaulting his intimate partner. The legal landscape is clear that in these circumstances the principles of denunciation and deterrence are of paramount importance: R. v. A.J.K., 2022 ONCA 487, 415 C.C.C. (3d) 230; s. 718.2(a)(ii), s. 718.201 of the Criminal Code.

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

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

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

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

[24] Recently, the Court of Appeal in A.J.K. made it clear that the sentencing range for sexual assaults involving an intimate partner is not less than where the victim is a stranger. Associate Chief Justice Fairburn, speaking for the court stated at paras. 73, 74 and 76:

A sexual assault involving forced penetration is a sexual assault involving forced penetration. An act of sexual violence perpetrated on a stranger to the accused is not necessarily worse than a similar act of sexual violence perpetrated on an intimate or former intimate partner. Any suggestion to the contrary could only rest on unacceptable myths and stereotypes, ones that a fair justice system must continuously confront and eradicate: see R. v. Ewanchuk, 1999 SCC 711, at para. 82.

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.

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.

[25] In R. v. Cunningham, 2023 ONCA 36, the Court of Appeal increased the sentence for a man convicted of the attempted murder of his intimate partner. The facts and nature of the offence are clearly different than those before me. However, it is important to note that the Court of Appeal again stated, at paras. 26 and 27, that in cases of domestic violence the objectives of denunciation and deterrence gain added significance:

In a domestic context, the objectives of denunciation and deterrence gain added significance and require heightened attention to the moral blameworthiness of the offender. The sentence must reflect the individual harm to the victim and the court’s response to the heinous effects of domestic violence.

With respect to victims, courts have recognized that victims of intimate partner violence are in a position of trust and vulnerability with the perpetrator. In R. v. Boucher (2004), 186 C.C.C. (3d) 479 (Ont. C.A.), at para. 27, Simmons J.A., speaking for the court, said:

… this court has repeatedly emphasized that the principles of denunciation and deterrence are of paramount importance in cases involving domestic violence … the sentences imposed in cases involving domestic violence must be such that they will foster an environment in which individuals can feel free to leave romantic relationships without fear of harassment or harm, and without fear of violence aimed at forcing a return to a no longer wanted relationship …

It follows that the principles of general and specific deterrence must be the overriding considerations in the determination of the sentence in this case. Those principles demand a very heavy sentence… [Emphasis added.]

[26] In A.J.K., A.C.J.O. Fairburn stated, that the range for such cases is three to five years. She stated at para. 77:

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.

[27] In A.J.K., the accused was convicted of one act of sexual assault.

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

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

[29] And on this point, A.C.J.O. Fairburn noted in A.J.K. at para. 71:

The Supreme Court recently reiterated that ranges and starting points are malleable products of their time. They are "historical portraits" that provide insight into the operative precedents of the day, but they are not "straitjackets" and can be departed from as societal understanding of offences and the severity of harm arising from those offences deepens: see R. v. Lacasse, 2015 SCC 64, at paras. 57; R. v. Friesen, 2020 SCC 9, at para. 108. To that end, it is not unusual "for sentences to increase and decrease as societal and judicial knowledge and attitudes about certain offences change": R. v. Parranto, 2021 SCC 46, at para. 22, citing R. v. Smith, 2017 BCCA 112, at para. 36, citing R. v. Nur, 2011 ONSC 4874, at para. 49; Friesen, at para. 108.

[30] The Crown submits that a total sentence of eight years is appropriate having regard to the nature and number of offences and the impact on the victim. The Crown submits that one act of forced sexual intercourse would merit a sentence of five years but that a sentence of eight years would be appropriate having regard to the principles of totality. The defence submits that a total sentence of four years is appropriate given Mr. Wardlaw’s prospects of rehabilitation, his support in the community and the absence of any history of violence or related criminal record. The defence submits that Mr. Wardlaw’s one criminal entry is dated and of no assistance. Mr. Wardlaw has been a contributing member of society. The Crown and the defence have set out a number of cases in support of their respective positions. I have summarized some of them below:

• A.J.K.: five years total sentence. The victim and the accused were dating. The accused was to drive the victim home, but en route he took her to an industrial area, where he penetrated her vaginally against her will while choking her. He then assaulted her after she tried to escape. Her injuries included abrasions to her hand and swelling to her jaw, as well as severe psychological damage. The accused had a criminal record that included a prior conviction for communicating with a minor for the purposes of prostitution.
• R. v. D.S., 2013 ONCA 244: The Court of Appeal increased the sentence to 12 years. The accused was convicted of 32 offences that took place from October 1999 to April 2009 (sexual assault x 6; assault with a weapon x 14; Assault causing bodily harm, assault x 4, threatening x 5, possess prohibited weapon, FTC recognizance). The offender sexually assaulted his common law partner multiple times. On three occasions he came home drunk, called his partner a whore, and threatened to kill her if she refused to have sex with a friend he had brought home. Each time, he forced his partner to have sex with the friend and then with himself afterwards. On another occasion, he punched his partner in the face with the flat part of a sword handle when she initially refused to have sex with the stranger. On another occasion, he put the tip of a sword blade against his partner's neck to force her to have sex with the stranger. On a final occasion, the stranger paid the accused $50 for sex with his partner.
• R. v. D.K., 2003 ONCA 8845, [2003] 169 O.A.C. 97 (C.A.): D.K. pleaded guilty and was sentenced to 10 years imprisonment. D.K. sexually assaulted his wife five times over 12 years and used a variety of weapons, such as knives, a hatchet and a gun. On one occasion he videotaped his wife while she was forced, with a knife pointed at her, to fellate him. D.K. had a criminal record that dated back to 1975.
• R. v. G.D.D., [1998] O.J. No. 4846 (C.A.): G.D.D. was sentenced to six years. The accused was convicted of eight counts, arising from two separate incidents of sexual assault committed against his former common-law spouse. The first count was for sexual assault. The remaining counts, which related to the second incident, included aggravated sexual assault. The accused did not have a criminal record.
• R v M.G., 2021 ONSC 6359: The accused received a three-year sentence for assaulting and sexually assaulting his wife. The sexual assault involved forced intercourse. The accused had letters of support and no criminal record. The victim regretted calling the police, wrote in her statement that she missed the accused and emailed the Crown, after the accused was found guilty, that the incidents did not happen. There were collateral consequences as the accused was subject to deportation.
• R. v. N.H., 2017 ONSC 2493, aff’d 2020 ONCA 694: The accused was convicted of one count of assault and three counts of sexual assault. The victim was his wife. The sexual assault counts involved forced intercourse. He had no criminal record and had been a productive member of society. He was sentenced to four years.

[31] The defence relies heavily on R. v. M.S.A., 2022 ONSC 6818, where the accused received a sentence of four years for sexually assaulting his wife on seven occasions, and for one count of assault. The offences were committed between 2007 and 2018 and included four incidents of forced sexual intercourse. The accused did not have a criminal record and 18 letters of support were filed. I appreciate defence counsel’s submissions and I agree that there are a number of similarities with the case before me. However, like any case, there are differences. The accused in M.S.A. had taken some counselling prior to sentencing. The trial judge noted that there would be collateral consequences to the accused’s children, with whom he had a positive relationship and who would not have the benefit of M.S.A.’s parental guidance. In addition, while finding that the circumstances surrounding the offences were severe the trial judge noted, at para. 50:

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.

[32] All counsel agree that in sentencing Mr. Wardlaw I must ensure that the total sentence is fit and not unduly long or harsh. I am also cognizant of the principle of restraint that is embedded in the Criminal Code. Prior to today, Mr. Wardlaw had only spent one day in jail in 2008. Nevertheless, in my view, a significant penitentiary sentence is required to denounce and deter Mr. Wardlaw’s conduct. Mr. Wardlaw’s moral blameworthiness for his repeated abuse of ED is extremely high. He abused ED even though she had told him that she had been assaulted by a prior boyfriend. Mr. Wardlaw was in a position of trust. Because of his relationship with her, ED confided to him about her prior abuse. He repaid that disclosure by abusing her repeatedly over the term of their relationship. The abuse included six acts of sexual assault which included five incidents of forced intercourse.

[33] Contrary to M.S.A., I find that Mr. Wardlaw’s abuse of ED did exhibit violence and cruelty. For example, he forced anal intercourse on her despite her screaming at him to stop and causing her to bleed from her rectum. On another occasion her pushed her head into the sink while he forced intercourse. On a third occasion her forced intercourse on her while she was sleeping and covered her face with a pillow. He bit her breasts causing her bruising. He physically assaulted her, apart from the sexual assault. On one occasion he choked her, on another occasion he threw a mirrored plate at her face. The abuse has had a devastating impact on the victim. It was evident in her testimony and it is evident in her victim impact statement. She has made steps towards her recovery but the process will be lengthy.

[34] I appreciate that Mr. Wardlaw has strong support in the community and that is to his credit. I also appreciate that he has not consumed cocaine for two years and cocaine consumption was in the background for some of these offences. He has the potential to be rehabilitated. Mr. Wardlaw’s mother is 58. While I accept that Mr. Wardlaw helps his mother financially and with work around the house I do not accept that this is a collateral consequence of any significance that should affect the sentence.

[35] Therefore, in my view, having regard to all the relevant factors and principles of sentencing, a total sentence of seven years is appropriate. I have allocated the sentences as follows:

(a) Count 1: sexual assault: 7 years

(b) Count 2; sexual assault: 7 years concurrent

(c) Count 3, sexual assault: 7 years concurrent

(d) Count 5, sexual assault: 5 years concurrent

(e) Count 11, sexual assault: 7 years concurrent

(f) Count 13, sexual assault: 7 years concurrent

(g) Count 4, assault with a weapon (water bottle): 12 months concurrent

(h) Count 9, assault with a weapon (glass plate): 12 months concurrent

(i) Count 10, assault (choking): 12 months concurrent

(j) Count 12, assault with a weapon (phone): 12 months concurrent

(k) Count 14, assault with a weapon (cigarette): 12 months concurrent

[36] In addition, the following ancillary orders will apply:

(a) a DNA order;

(b) a 10-year s. 109 weapons prohibition order;

(c) a lifetime SOIRA order; and

(d) a s. 743.21 no contact order with the victim.

The Honourable Justice H. Leibovich