COURT FILE NO.: CR-21-77

DATE: 20230113

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

Albert Wray Fagan

Defendant

Ms. S. Dickson, for the Crown

Mr. P. Downing, for the Defendant

HEARD: January 11, 2023

W A R N I N G

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162,

163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273,

279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3,

346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph

(i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Justice P. Moore (delivered orally)

rEASONS FOR SENTENCE

There is a publication ban in place preventing the publication of the complainant’s name or any identifying information in this case. I shall refer to the complainant by initials except as necessary in any ancillary order.
Mr. Fagan was tried, judge alone, on an indictment alleging one count of sexual assault on HP which occurred on May 2, 2020 in London, ON. I found him guilty of that offence on October 6, 2022.

I. FACTS

Circumstances of the offence

The facts relating to the offence are set out in my oral reasons for judgment on October 6, 2022. I will provide a brief summary for the purposes of sentencing.
On May 2, 2020, shortly after 8 p.m., two witnesses observed and recorded the accused, on the porch of his residence located at XXX XXX, in London Ontario. The witnesses observed and recorded the accused standing in front of HP while she was sitting in a chair in an unconscious or unresponsive state. She was unmoving, with her head slumped and her arm hanging loosely at her side.
The witnesses described the accused pulling down his pants and then putting his hand on the back of HP’s head and appearing to have her fellate him by moving her head back and forth. This lasted for about a minute or so. Mr. Fagan pulled his pants up and then put his hand down the front of HP’s pants and underwear, in her vaginal area.
The entire incident lasted just a few minutes and then the witnesses got in their Uber and left.
When police arrived at the residence. The complainant and accused were located still on the front porch, sitting in chairs. HP was sitting with her head slumped on her chest and arms hanging loosely at her sides. She was extremely difficult to awaken and was incoherent. Narcan was given and EMS called. Mr. Fagan’s pants were noted to have the belt and zipper undone and HPs pants were undone as well. She was noted to be wearing grey boxer short’s that can be seen in the video clip.
Mr. Fagan told the police that he knew the complainant from the area but didn’t know her name. She had come by that day and had a beer.
HP was transported by ambulance to hospital. She remained incoherent, intoxicated and was incontinent for several hours until about 5:00 am the next day.
Mr. Fagan was arrested and gave a statement to police denying any sexual contact at all with HP. He was later released. He was arrested again on May 9, 2020, and charged with the offence before the court.
At trial, neither the complainant nor Mr. Fagan testified. The witnesses were the two responding officers and the two eye-witnesses from across the street who had recorded the incident on their phone.

Circumstances of the offender

Mr. Fagan is currently 64 years old. His record begins in 1981 with a cause disturbance conviction; 1991 Mischief conviction; 2007 Assault Peace Officer conviction for which he received a fine and 2 days PSC; 2011 Assault convictions (2 counts) and Breach of Recognizance for which he received 89 days jail and 18 months probation; and February 2020 Assault convictions (2 counts) for which he received a total of 30 days jail intermittent, 12 months probation and a 10-year weapons prohibition. This last conviction was three months before this offence; as such Mr. Fagan was on probation at the time of this offence.
I have considered and reviewed the pre-sentence report (PSR) filed in this matter. The PSR indicates that Mr. Fagan is divorced and has one son and grandchildren whom he has some contact with. He was adopted by his foster parents at age two or three and didn’t really know his biological parents. They also adopted his biological sister. It appears Mr. Fagan had a good upbringing. Both his biological and foster parents have passed away as well as his biological sister and he has limited contact with his other siblings. It was noted that Mr. Fagan attended on time for the PSR interview and was shy but forthcoming.
Mr. Fagan reported being supported by Ontario Works and volunteering with a local charity café. I have been provided with a letter from the café indicating he has volunteered there for three years and volunteers four days a week. The letter notes that Mr. Fagan is consistent, punctual and a valued member of the team.
The report says that Mr. Fagan completed high school and went to a local college for hotel restaurant management. In submissions, Defence counsel indicated that Mr. Fagan only had a Grade 10 education.
Mr. Fagan had worked in construction but was frequently laid off. He told his probation officer that he has epilepsy which compromised his ability to work in construction. His epilepsy is controlled by medication. He also advised he cannot afford insurance on a vehicle to drive for work.
The author of the PSR expressed some concern that Mr. Fagan was under-reporting his drinking, as he reported two-three drinks a day. Mr. Fagan advised he had six beers on the day of the incident. Prior records indicate higher self-reported drinking and alcohol involvement in prior convictions. The report writer suggests that Mr. Fagan’s under-reporting indicates a denial of problematic drinking. Mr. Downing told the court that Mr. Fagan is an alcoholic.
Mr. Fagan advised the PSR writer that “everything was consensual” and the victim was awake and had agreed to sex. His only regret was not taking her upstairs so no one would see them. He acknowledged that the victim was too intoxicated to manage the stairs in his rooming house but refused to acknowledge that she was too intoxicated to consent.
Mr. Fagan has reported on probation previously and had taken anger management. He was previously homeless, but now has housing.
Mr. Downing reported that Mr. Fagan moved out of the XXX address due to a fire and is now living in a “nice” housing unit. Having suitable housing has had a large impact on Mr. Fagan’s life. He was accompanied to court by a support worker with St. Leonard’s Society. He enjoys his work at the café and usually attends around 7:30 a.m. for 6 or 7 hours and also often helps out even when he is not scheduled.

The Impact on the Victim

HP did not testify and was not located by the author of the PSR. We know she was a 39-year-old Indigenous female. Although we don’t know a lot about HP, it would be safe to say she was a vulnerable person, even more so when she was incapacitated.

II. CROWN AND DEFENCE POSITIONS:

The Crown seeks a global sentence of four (4) years incarceration. It submits that the range for an offence of this nature is three (3) to five (5) years incarceration.
In addition, the Crown seeks the following ancillary orders:

a. a firearms prohibition under section 109;

b. a DNA order;

c. a SOIRA order.

A 743.21 was not sought as it does not appear likely that Mr. Fagan would know how to contact HP.
The Defence seeks eight (8) to twelve (12) months incarceration, or a sentence to be served in the community as a conditional sentence. Defence counsel acknowledged that generally, conditional sentence orders should be of a longer duration than a traditional jail sentence. He advised the Court that his client is eligible for electronic monitoring although no report was filed.
Defence counsel did not take issue with the firearm and DNA orders. A Charter application was filed shortly before I was to give my reasons for sentence seeking a remedy under 24(1) exempting Mr. Fagan from a SOIRA order pursuant to the case of R. v Ndlovu, 2022 SCC 38 (S.C.C.) Defence counsel also asked that any Court imposed “no alcohol” probation term, as suggested by the PSR writer, would be problematic and inappropriate.
I note that Mr. Fagan was released on an undertaking, therefore he did not serve any pre-sentence custody.

III. THE FIT AND PROPORTIONAL SENTENCE IN THIS CASE

Aggravating and Mitigating Factors

Mr. Fagan was convicted following a trial and continues to maintain his innocence. I will not treat this as an aggravating factor. However, he is not entitled to any mitigation that may have been available upon a plea of guilt or other expression of remorse. His lack of acknowledgement will also factor into my analysis on rehabilitation.
I find the following to be mitigating factors in this case:

a. Mr. Fagan spends many hours every week volunteering and has been giving of his time at the same location for at least three years;

b. Mr. Fagan has some community support from the St. Leonard’s Society;

c. Mr. Fagan has periodic contact with his adult son and grandchildren; and

d. Mr. Fagan has struggled with homelessness in the past but is currently housed in a newer building which he is enjoying. Defence counsel emphasized how important this housing is to Mr. Fagan.

I find the following to be aggravating factors in this case:

a. Mr. Fagan has a criminal record including four assaults on women who were his domestic partners at the time. This demonstrates a pattern of violence toward women;

b. He was on probation at the time stemming from his last two assault convictions;

c. This complainant was in a highly vulnerable position. This Court found that the sexual assault took place while the complainant was unconscious or unable to consent to the activity due to her level of intoxication. The complainant’s level of intoxication was so severe she required hospitalization;

d. Mr. Fagan sexually assaulted HP on the front porch of his residence in full view of other members of the public. He didn’t even know her name;

e. Sexual assault is an act of violence; and

f. HP was an Indigenous female and as such is recognized to be member of a vulnerable population worthy of protection.

In 2019 Parliament enacted section 718.04 of the Criminal Code, R.S.C. 1985, c. C-46 partly in response to the final report of the National Inquiry into Missing and Murdered Indigenous Women and Girls and in response to the concerns expressed in Regina v. Barton, 2019 SCC 33, [2019] 2 SCR 579.
Section 718.04 states: “when a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances – including because the person is Aboriginal and female – the court shall give primary considerations to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.”
This is a recognition of the society and the court’s increased knowledge of the systemic and historical factors that place Indigenous females at particularly high risk of being the victim of violence and, in particular, the victim of sexual violence: see R. v. Wood, 2022 MBCA 46.

Sentencing Principles to be Applied

The offence of sexual assault, committed against an adult and prosecuted by indictment, has a maximum penalty of ten (10) years incarceration.
The fundamental purpose of sentencing is to protect society, to ensure respect for the law and to maintain a just, peaceful and safe society. A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. A just sentence meets the goals of deterrence, denunciation, retribution and rehabilitation.
In coming to a just sentence, the court must consider the aggravating and mitigating factors unique to each case. Sentencing is a highly individualized process, and each case must turn on its own specific facts. The Court of Appeal has stated that sentencing judges have wide discretion when imposing sentences: R. v. Kerr, 2001 CanLII 21142 (Ont. C.A.)
I have considered the principles of sentencing as set out in Section 718 to 718.2 of the Criminal Code. One must keep in mind the goals of parity, consistency and fairness in applying those principles.
In this case, I find that denunciation and deterrence are key principles which factor into the sentencing of Mr. Fagan. Both counsel agreed these are the primary considerations. Having said that, I must consider all of the goals of sentencing including rehabilitation and restraint.

Parity in sentencing

Parity in sentencing refers to the principle that similar offences committed in similar circumstances by an offender of a similar background should attract a similar sentence.
Having reviewed the authorities provided to me, it is clear that there is a broad range of sentences that have been imposed in similar cases. Each case must turn on the individual circumstances of the case and the offender
More recently in Regina v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 42, Regina v. Barton and Regina v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3 the Supreme Court of Canada has signalled that courts must consider the harm resulting from sexual assaults committed on both children and adults as part of the sentencing process. This growing understanding reflects how courts assess the gravity of the offence.
That understanding if reflected in the recent judgement of the Ontario Court of Appeal in Regina v. A.J.K., 2022 ONCA 487, which provides some guidance with respect to how the sentencing of sexual offences is to be approached. At paragraphs 74 and 75, Fairburn A.C.J.O. stated the following:

All sexual assaults are serious act 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, at para. 118, that “our understanding of the profound physical and psychological harm that all victims of sexual assault experience has deepened” and I would add, is continuing to deepen: see also R. v. Goldfinch, [2019] SCC 38 at para. 37. As Moldaver J. stated in R. v. Barton, [2019] SCC 33, at para. 1: “without a doubt, eliminating…sexual violence against women is one of the more pressing challenges we face as a society” and “we can – and must – do better (emphasis in original). This comment encapsulates why these sentencing ranges as they have come to be understood must be reconciled.

Both the Crown and Defence have provided authorities which they rely on in support of their respective positions. I am mindful in reviewing these decisions that I must view them in light of the more recent developments with respect to sexual assault sentencing.
For example, the Crown submitted that while three to five years was the range for penile penetration of the vagina or anus in the past, that range may very well be too low now and that the penile penetration involved here wherein Mr. Fagan put his penis in HP’s mouth was equally intrusive and also carried health risks. She submits that the courts are moving away from the treatment of certain forms of sexual assault which don’t involve vaginal or anal penetration as being lesser forms of sexual abuse. This issue was addressed in Friesen, at paras. 138-146 wherein the Supreme Court of Canada cautioned against using a ladder of physical acts with touching at one end and penetration at the other end. They quoted with approval the finding in Stuckless that physical acts such as digital penetration and fellatio can be just as serious a violation of the victim’s bodily integrity as penile penetration.
The treatment of different forms of sexual acts was discussed in the R. v. Enzo Jesus-Carrasco, 2021 ONSC 6891 by Akhtar J. In that case, which involved digital penetration, he stated as follows at paras. 39-41:

During the course of submissions, there was some discussion of the distinction between digital penetration and rape cases where penile penetration occurred. I find that this distinction, which treats digital penetration as a significantly “lesser” offence, cannot be justified. As stated by Durno J. in R. v. P.R., 2013 ONSC 1517, at para. 92, the “nature of the assault” impacts the length of sentence.

Digital penetration results in the same or similar level of degradation, humiliation and defiling of a woman’s sexual integrity as a rape. It is hard to understand why vaginal penetration by one part of the body should be treated more or less seriously than penetration by another part: the effect on the dignity and sexual integrity of the victim is the same.

I note that the Court of Appeal of Ontario has taken the same view. In R. v. Stuckless, 2019 ONCA 504, 146 O.R. (3d) 752, at para. 68, Huscroft J.A. wrote that he did not “accept that fellatio and digital penetration are somehow lesser forms of sexual abuse than intercourse”. In the same case, Pepall J.A., at para. 125, observed that “the impact on the physical and psychological integrity of the victims is often no different simply because the penetration is found to be digital rather than penile.”

In this case, I find that the act of Mr. Fagan inserting his penis in the complainant’s mouth to be on par with other forms of sexual acts such as penile vaginal penetration or digital penetration, with a comparable possible impact on the complainant’s dignity and sexual integrity. I acknowledge that certainly with unprotected vaginal penetration, there may be a greater risk of sexual disease or unwanted pregnancy. Here, there was also touching in HP’s vaginal area under her clothing, but I have no way of knowing whether there was in fact any digital vaginal penetration so I will proceed on the basis there was not.
The Defence has provided the following decisions with respect to the range of sentence to be imposed and the appropriateness of a conditional sentence. They are set out in the following paragraphs.
The Defence provided me the cases of Regina v. Morgan, 2021 ONCJ 100, Regina v. Browne McArthur, 2021 ONSC 6097 and Regina v. Holland, 2022 ONSC 1540 in support of a conditional sentence on facts that involved full intercourse and/or had other aggravating factors such as a degree of planning or significant victim impact. In each case, there were mitigating factors that were pointed to by the sentencing judge in finding that a conditional sentence would meet the overall sentencing objectives. In Morgan, it was a plea of guilt by a young first offender who was extremely remorseful and with unique facts. In Browne McArthur, the accused was a 27-year-old first offender, a Black man, “truly remorseful”, a father and supporter of a four-year-old son and he had taken significant steps to address underlying substance use issues which were found to underlie the offence. The pandemic was also indicated as a factor in coming to a two year less a day conditional sentence. Lastly, in Holland, the Crown had sought a sentence of 16 months jail, the sentencing was significantly delayed due to the pandemic and the accused had been on restrictive bail conditions. In that case, the Court noted that there was no suggestion the victim was “unconscious or incapacitated”. Mr. Fagan was released on an undertaking for the offence before the court.
R. v. R.S., 2021 ONSC 2263 involved two individuals who met at work, they became good friends. One night they went to a hockey game and were drinking together. The plan was to go back to the victim’s apartment to help her prepare for a job interview. She was intoxicated and doesn’t recall how they got to her apartment. Her memory was hazy, but she recalled falling to the ground with the accused touching her, undressing her and sucking on her abdomen. She repeatedly told him “no” and at one point he squeezed her throat to the point she “saw stars”. A neighbour interrupted them. The victim told the neighbour everything was fine, and the accused eventually left. The victim called a girlfriend who came over and called the police. The trial judge extensively reviewed the Gladue factors and the involvement of alcohol in this case and its intersection with Gladue issues. In this case, the trial judge found that unquestionably, the offenders Indigenous heritage was part of the context underlying and linked to the offences. His parents had died by murder-suicide. He was a first offender, who had graduated university and been employed in a good job. The accused had insight into his behaviour and was found to be truly remorseful. Of importance, he had taken significant strides towards his rehabilitation having started attended AA and having been sober for over two years at the time of sentencing. He also had completed 25 hours of Indigenous programming consisting of one-on-one counselling, healing circles and a 12-week anger management program. Taking into account the Gladue factors, the positive rehabilitative aspects and other mitigating factors, the trial judge imposed a two years less a day conditional sentence for the sexual assault and 90 days tradition jail for choking. Given the lack of Gladue factors and similar mitigating factors in the case before me, I do not find that the R.S. case to be particularly informative of an appropriate sentence in this case.
Regina v. Micula, 2016 ONCJ 467: In that case the accused was 46 and had met the 21-year-old victim at a bar. She was trying to quit using cocaine but agreed to use some crack cocaine with the accused, after which she passed out or fell heavily asleep. She awoke to find herself partially undressed with a strange sensation in her vagina. She confronted the accused, contacted the police and went to hospital for a Sexual Assault Examination. DNA from saliva was located on her vaginal and rectal area. The accused said he had performed oral sex but that it had been consensual. The accused had one dated theft conviction and few mitigating factors. He had a history of epileptic seizures which prevented him from working. In that case, it appears that the matter proceeded summarily. The Crown sought a 12 to 14-month jail sentence and the Defence sought a conditional sentence. The trial judge rejected a conditional sentence and imposed a 12-month jail sentence. While this case bears some similarities to the present case, I find that the position of the Crown largely dictated the outcome of the case. It also does not have some of the other aggravating factors that are present in this case including the recent record for violence against women, the penile penetration and the public aspect.
R. v McKenzie, 2017 ONCA 128: In that case the 35-year-old accused was convicted of sexual assault in relation to his 19-year-old co-worker. He touched her buttocks and thigh, kissed her, pulled her into a washroom and pressed his penis against her anus resulting in partial penetration. The assault ended when someone knocked on the door. He was not a permanent resident and would have likely been deported given the sentence. The Court found that the accused had “excellent prospects for rehabilitation”, he was employed, had no criminal record and a supportive family. The Court of Appeal upheld the 9-month sentence although finding it at the bottom of the range.
Regina v. Morgan, 2021 ONCJ 100: In this case the accused started out trying to assist the intoxicated young woman by giving her a ride home and when she couldn’t get into her residence, he called 911 several times and eventually brought her to his parents’ home. Later, he asked her three times if she was agreeing to sexual activity, and she said yes. He pled guilty on the basis that he was reckless as to her capacity to consent. He was extremely remorseful and had insight into his conduct. I find that this case does not assist in determining an appropriate sentence in the one before the court.
In R. v P.L. 2022 ONSC 452, the accused was 70 years old at the time of the offence and the victim only 16. The accused and victim were both drunk and he suggested she crash in his room. She awoke to him performing oral sex on her and kissing her breasts and he inserted his finger in her vagina. When she awoke in the morning, he was again performing oral sex on her. He tried to prevent her from leaving. The accused underwent a sexual behaviour assessment and was found at a low risk to re-offend, he also stopped drinking after a long history of alcohol abuse and had been sober for three years at the time of sentencing. He had been on bail for four years which included a curfew condition and a prohibition on seeing his granddaughter for the first 15 months. He had been steadily employed for 20 years and was a foreman of a crew of 15 workers at the time of sentencing. His record consisted of a 2003 conviction for impaired driving. The court also considered Gladue factors as the accused identified as Metis, although that was not a significant factor in the sentence. The age of the victim, the fact she was sleeping, the impact on her, the age difference and the breach of trust were aggravating factors. The trial judge rejected a conditional sentence although finding it was available. He did not take issue with the Crown’s suggestion of a penitentiary sentence but given the mitigating factors, the collateral considerations and the principle of restraint, sentenced the offender to 12 months jail less pre-sentence custody followed by probation.
R. v J.S., 2011 ONSC 1743: In this case the accused and victim were both drinking at a New Year’s party. The victim woke up with hickies on her neck and DNA showed the accused’s saliva on her neck and nipple and semen on her pants and external vaginal swab. The accused was 29, with no criminal record, a 2-year-old, employed, letters of reference and a positive PSR. The impact on the victim was significant. The Crown had sought a sentence of two years less a day and the defence sought a conditional sentence. The trial judge rejected a conditional sentence and imposed a sentence of 15 months.
In R. v T.M-S, 2018 ONCA 706: the accused followed a woman into a change room and attempted to have intercourse with her. His penis touched her vagina but there was no penetration. The Crown sought two years less a day and the defence sought a conditional sentence or 6 months in jail. The offence has had a significant impact on the victim. The court found that in a conditional sentence was inappropriate, but that in consideration of the mitigating factors which included, no criminal history, gainful employment, considerable community support and Gladue factors, a sentence of 6 months jail was appropriate. The accused was immersed in his Indigenous culture and had made significant contributions to his community.
Regina v. R.(J.) and D.(J.), 2008 ONCA 200: In that case the accused took advantage of the victim by having sex with her at a party where everyone was drinking, and she became incapacitated. J.D. had been her good friend. I agree with Milloy J.’s analysis in Mitrovic at paras. 47-50 in reviewing this case, that it does not stand for the range starting at two years on those facts given that two years was the Crown’s position. It is clear that the Court of Appeal was somewhat constrained by the Crown’s position of two years and might have found a higher sentence appropriate for J.R. who had a lengthy criminal record and poor PSR absent the Crown’s consent on appeal to 2 years less a day to preserve immigration appeal rights. The Court found that J.D. had significant mitigating factors including no criminal record, steady employment, excellent character references and Gladue considerations and should have received a sentence less than J.R, but still would not go below two years in the circumstances of the case.
Regina v. Christian Giraldo-Vargas, 2016 ONSC 8117: The accused and victim were both 30 and at a birthday party. The victim became intoxicated and went and laid down. She awoke to find the accused digitally penetrating her. The trial judge imposed a conditional sentence of 5.5 months as the accused would be deported if he received longer than six-month sentence. The Crown had proceeded summarily and sought 12 months at trial and 6-9 months on the appeal. The Crown appealed the conditional sentence. The conditional sentence was overturned, and a sentence of real jail substituted but was found to have been served. The accused had no record, was employed, and his family was extremely supportive. Given the Crown’s position and other factors, including immigration consequences, I do not find this case helpful on the appropriate range
The Crown provided a number of cases in support of their submission with respect to the range of sentence and other cases for general principles and to demonstrate that a conditional sentence was not appropriate. They are set out in the following paragraphs.
Regina v. De Jesus-Carrasco, 2021 ONSC 6891: In this case, the complainant was a work colleague who gave the accused a ride home. He assaulted her in her car including digital vaginal penetration which lasted 3-5 minutes and kissing her over her protests. At the time of the offence, the accused had no criminal record but was subsequently sentenced to 10.5 years jail for other sexual offences. Taking totality into account, the sentence was 15 months, but the judge noted that otherwise three years would have been appropriate.
The Crown notes that the accused had no criminal record at the time, the relatively public nature of the assault and the accused subsequent demonstrated lack of respect for women as comparable to this case. The defence suggests that there was a breach of trust in that case which is not present here and the attack was more sustained. On the whole, I find this case quite informative as to the proper range of sentence taking into account the modern approach to sexual assault sentencing.
Regina v. Milan Mitrovic, 2017 ONSC 1829: In this case, the complainant drank too much alcohol and took some pills and was feeling unwell so called the accused, who was a platonic friend, to come assist her. He came to her apartment and made sexual advances which she rebuffed. After she passed out, he unzipped her sweater, ripped open her bra and tore a hole in the crotch of her tights, removed a tampon and had intercourse with her. When she awoke during the intercourse, she screamed at him and he retrieved a used condom and said “good luck with DNA” before leaving. He later texted her “amazing how much you remember for an unconscious bitch”. He had a record for two domestic assault convictions and was on probation for one at the time of the offence. The sentence imposed was four years after trial.
Milloy J. noted in that case at para. 41 that she was of the view that the range for that offence was three to five years, that a range is merely a guideline and cases can go above or below the range depending on aggravating and mitigating factors. She also noted the trend in “more recent years” is towards longer sentences in cases of serious sexual assaults.
The Crown submitted that given that case was from 2017, the range may be even higher and that the sentence may well have been greater today. The defence, although acknowledging that indeed that the sentence may well have been longer today, submits that offence was far more egregious than the one before the court and involved a breach of trust.
In the Mitrovic decision at para 44, Milloy J. reviewed the case of R. v. A.(S.), 2014 ONCA 266 where the Ontario Court of Appeal upheld a sentence of five years. The case in involved a 23-year-old with no prior record who took two victims to secluded locations and forced them to fellate him and ejaculated on them. He threatened vaginal intercourse but was unable to maintain an erection. The trial judge in that case, after reviewing multiple cases, stated that he retained a great deal of discretion but that “the range accepted by the Court of Appeal for serious sexual assaults involving a single victim goes from mid-reformatory to at least six years”. The Court of Appeal upheld the sentence but disagreed with the range suggested by the trial judge finding at para. 1:

…the only error by the trial judge was to suggest that the range for these types of offences could be as low as reformatory. The offences involved in this case required a penitentiary sentence of some length. Given the circumstances in this case, the sentence imposed was lenient and reflected the appellant’s relative youth and lack of record…

In this case, as was the case in Mitrovic the accused is not a youthful offender, he was 60 years old at the time of the offence and he also has a criminal record that involves violence against women, specifically Mr. Fagan has four prior convictions for domestic assault.
Regina v. Thurairajah, 2008 ONCA 91: In that case, the young first offender accused raped an unconscious female in the backseat of a car while others were in the front seat, they then left her outside in the snow and called her brother. The young woman was taken to the hospital where she was near comatose with an alcohol level of that would have been .252 g earlier and hypothermia. The Court of Appeal overturned the conditional sentence imposed at trial and taking into account the 16 months of conditional sentence served and the positive antecedents of the offender imposed a 9-month custodial sentence and probation. The Court noted that even in cases with youthful first offenders, denunciation and deterrence gain prominence in cases of serious personal violence. It also noted that a sentence in the range of two to four years would have been an appropriate sentence in that case.
The Crown acknowledged that the facts at first blush might seem more serious but asked the court to consider the similarities including that the victim was incapacitated, the offence took place in a public area in front of others and that the offender showed no regard to the victim’s medical needs. The accused in that case had many mitigating factors that don’t apply here. She suggests that the two to four year range in that case would be higher today and supports her position of four years on the facts of this case.

IV. CONCLUSION

Upon weighing the sentencing factors and the individual factors in this case, I find that a penitentiary sentence is appropriate.
Even if I had found that a reformatory sentence was appropriate, I would not have imposed a conditional sentence in this case. In Regina v. Smith, 2015 ONSC 4304, in overturning the imposition of a conditional sentence, the Court noted as follows at para. 36:

Conditional sentences have, on occasion, and in exceptional circumstances, been imposed for offences of sexual assault committed upon unconscious or semi- conscious complainants...There is, however, no gainsaying the reality that conditional sentences, even those with significant restrictions on liberty and punitive terms, do not have the same denunciatory effect as a period of actual imprisonment. Accordingly, it is not surprising that, in the great majority of cases, a significant term of actual imprisonment is imposed upon an accused in such circumstances.

Further, in Regina v. Killam, 1999 CanLII 2489 (Ont. C.A.), while showing deference to the sentencing judge by not overturning the imposition of a conditional sentence on a sexual assault conviction, the Court noted as follows at paras. 13 and 14:

[I]t must be acknowledged that a conditional sentence, even one like this one which imposes some significant restrictions on the offender’s liberty, does not, generally speaking, have the same denunciatory effect as a period of imprisonment. Incarceration remains the most formidable denunciatory weapon in the sentencing arsenal.

I admit to considerable doubt as to whether a conditional sentence could adequately reflect the gravity of this offence and send the proper denunciatory message to the public. I am, however, satisfied that the case law commands that my doubt yield to the deference that must be afforded to the decision made by the trial judge.

I am aware that other cases have found that a conditional sentence can provide both deterrence and denunciation and that the Supreme Court of Canada also stated that a conditional sentence order can meet these goals in Regina v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61.
If a sentence is in the reformatory range, the court must determine whether a conditional sentence is appropriate by considering and weighing the ability of a conditional sentence to meet the deterrence and denunciation objectives and other relevant sentencing objectives including restraint and rehabilitation: Regina v Ali, 2022 ONCA 736. In the cases where a conditional sentence was found to meet these needs, there are often factors such as first-time youthful offender, Gladue factors, significant rehabilitative steps or significant remorse which are not present in this case.
Having considered all of the mitigating and aggravating factors in this case, I find that an appropriate sentence is one of 30 months. I find that the facts in this case and the aggravating factors require a sentence to be served in a penitentiary. Such a sentence reflects the gravity of the offence and the degree of responsibility of Mr. Fagan.
There is an evolving understanding of the seriousness and gravity of sexual assault. The mitigating factors that justified reformatory sentences in the cases presented to the court such as youthful first offender, insight and remorse, restrictive bail, positive steps towards rehabilitation or Gladue factors are not present in this case. Mr. Fagan has limited community and family support and his main mitigating factor is his volunteer work. It is unfortunate that this sentence will likely cause Mr. Fagan to lose his housing and that is not a fact that I take lightly, but it is somewhat inevitable given the nature and length of sentence that is appropriate here.
While a penitentiary sentence is appropriate, I find that the length of sentence sought by the Crown is one which may be more appropriate if such aggravating factors as breach of trust, a sexual assault of a longer duration, an awareness of medical distress and/or direct evidence of significant victim impact were present.
This is Mr. Fagan’s fifth conviction for an offence of violence against a woman and he was on probation for domestic violence at the time this offence was committed. He has shown little insight into his behaviour.
In considering rehabilitation, I have considered that Mr. Fagan minimizes his offending behaviour and alcohol use which will make any strides toward rehabilitation more difficult. Although, he is willing to co-operate with probation, his prior sentences and periods of probation do not appear to have had an impact on his behaviour.
This was an act of violence committed against a completely helpless and vulnerable Indigenous woman. It was done in view of other members of the public which increased the intrusion upon her dignity and sexual integrity. While we do not have direct evidence of victim impact, it can be presumed that this offence had a negative psychological impact on the victim. She awoke in a hospital bed and was advised by officers of the sexual acts that had taken place.

V. IMPOSITION OF SENTENCE

Sir, would you please stand. On the sole count of sexual assault, I sentence you to 30 months incarceration.
I also make the following ancillary orders:

a) DNA Testing

The offence of sexual assault is “primary designated offence”. As such, there will be an order pursuant to section 487.051 of the Criminal Code authorizing the taking from Albert Wray Fagan for the purpose of forensic DNA analysis, any number of samples of one or more bodily substances that is reasonably required for that purpose.

b) Firearms Prohibition

There will be an order pursuant to section 109 of the Criminal Code prohibiting Albert Wray Fagan from possessing any firearm, other than a prohibited firearm or restricted firearm, crossbow, restricted weapon, ammunition and explosive substance for 10 years after his release from prison and any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.

c) SOIRA order

As set out in my decision on the Charter application. I found that Mr. Fagan does not fall into the lowest category of risk and had not established that a remedy under s. 24(1), being an exemption to the suspension of the declaration of invalidity of s. 490.012, should be granted. There will be an order pursuant to sections 490.012 (1) and 490.013 (1) and (2) (b) of the Criminal Code requiring the accused to comply with the provisions of the Sex Offender Information Registration Act for 20 years. You may apply for a termination order after 10 years under s. 490.02908.

d) Victim Fine Surcharge

The Defence counsel asked for an exemption from the Victim Fine Surcharge given Mr. Fagan’s uncertain housing after his release from custody and current financial position. The Crown did not oppose an exemption. I find that in the circumstances, it is appropriate to not impose the victim fine surcharge.

“Justice P. Moore”

Justice P. Moore

Released (Orally): January 13, 2023