COURT FILE NO.: CR-21-00089 DATE: 2024 05 17
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – A.H.
Counsel: Kelli Frew, for the Crown Charles Spettigue, for A.H.
PUBLICATION RESTRICTION NOTICE By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
HEARD: March 26, 2024
REASONS FOR SENTENCE
COATS J.
I. OVERVIEW
[1] On October 24, 2023, A.H. was found guilty by a jury of sexual assault, contrary to section 271 of the Criminal Code, R.S.C., 1985, c. C-46.
II. THE FACTS
a) Circumstances of the Offence
[2] In November of 2018, the complainant (“L.J.”), A.H., and another male were in the back seat of a vehicle and parked at a lot. L.J. had not met A.H. before that night. A.H. was sitting beside L.J. A.H. forcefully kissed L.J. and put his hand on her throat. Both males started touching her on her thighs and her chest, took her sweater and tights off of her and then her bra. The males alternated putting their fingers in her vagina. A.H. forced her to give him oral sex. He grabbed her head and pushed her head down. His penis was in her mouth.
[3] A.H. grabbed her hips upward and penetrated her vagina with his penis.
[4] The sole issue at the trial was consent. A.H. testified at the trial. He acknowledged the sexual activity. He testified that it was consensual.
b) Circumstances of the Offender
[5] This information comes from the Pre-Sentence Report dated February 24, 2024. I have disregarded portions of the Pre-Sentence Report as requested by counsel in their submissions.
[6] A.H. is currently 24 years of age. He was 18 years of age at the time of the offence. He is single and has no dependants. He has no adult criminal record.
[7] A.H. parents separated when he was young. He described his father as “not a good person.” A.H. remembered an occasion when his father was abusive to him. He believes that his father was charged criminally in relation to this.
[8] A.H. has an older sibling and a younger brother: his younger brother is the child of A.H.’s mother and his stepfather. A.H.’s mother and stepfather are no longer together. A.H. describes a very positive relationship with his stepfather.
[9] A.H. described losing his “best friend” and “primary support”, his grandmother, 3 years ago when she suddenly passed. A.H. has a close and supportive extended family.
[10] A.H. was bullied repeatedly in high school, including by individuals being physical towards him and stealing from him. He came forward and this led to further bullying. The police were involved, and the bullying continued and those doing the bullying called him a “rat.” A.H. dropped out of school. He dropped out of school due to the bullying which led to attendance problems. He tried other schools. A.H. ran away around this time.
[11] A.H. tried to complete his General Education Development. He is one credit short.
[12] A.H. has worked at various jobs- one year as a shipper and receiver, six months at a fast-food restaurant and approximately one-year as a car detailer/ customer service representative. He joined a labour union in 2023. He had been working as a locater until he was laid off in August of 2023. He has a forklift licence and various labor relations certifications.
[13] A.H. acknowledges that alcohol was a problem for him between the ages of 19 and 21. His alcohol consumption has waned. He does not use any other substances although he has in the past. He and his friend, who was also bullied, resorted to alcohol and drugs during the years they were bullied. A.H. used marijuana and very briefly experimented with MDMA. His friend died of a drug overdose. This continues to impact A.H. today.
[14] A.H. identified that his being bullied affected, and still does affect, his mental health. He feels the school system didn’t provide the support he needed, and the police betrayed him by conveying his statements to the bullies themselves.
[15] On the night of the offence, alcohol was not a factor. A.H. had consumed marijuana that night.
[16] A.H. describes his present mental health as “not good.” He has attempted to receive support for his mental health in the past but was not receptive at the time.
[17] In high school, A.H. took a “focusing pill” generally prescribed for ADHD. He believes he has ADHD.
[18] Today, A.H. is open to receiving therapy and is willing to engage in therapy. In the past, A.H. has not been willing to address his mental health concerns; however, he told the author of the Pre-Sentence Report he feels differently now about working with a therapist.
[19] A.H. describes that he has two best friends whom he enjoys doing activities with. A.H. works out at the gym 5 or 6 days a week.
[20] In terms of the offence, A.H., as he is entitled to do, maintains that he is innocent.
[21] A.H. lives with his mother, older brother, and younger brother. It is a stable and supportive household.
[22] The author of the Pre-Sentence Report includes the following observations in his assessment on page 10:
Due to a lack of therapeutic intervention, subject lacks emotional insight regarding many facets of his life, including the trauma of being bullied and his friend’s fatality, being estranged from his abusive paternal father and potential undiagnosed mental health, learning disability concerns.
As such, subject’s suitability for community supervision is predicated on his willingness to participate and engage in therapeutic and psychological interventions.
[23] I also note that the author of the Pre-Sentence Report recorded that A.H., for the purposes of completing the Report, reported as scheduled and openly communicated during his interview.
c) Evidence at the Sentencing Hearing
[24] No witnesses testified at the sentencing hearing. Five exhibits were filed, the first of which was the Pre-Sentence Report which I have already summarized above under Circumstances of the Offender. The remaining four exhibits are summarized as follows:
- Exhibit 2- L.J.’s Victim Impact Statement
[25] L.J. has struggled with depression and this incident worsened her depression to the point where she could not get out of bed some days. She felt embarrassed and defeated. Her relationship with her parents suffered as they didn’t trust her. L.J. lost her friends because of the severe depression. Her academics suffered as she had trouble focusing and being motivated. L.J. developed a fear of intimacy and men. For 3 years she wasn’t able to be intimate without having flashbacks and crying.
[26] As a result of the severe depression this incident caused, L.J. began to self-harm. After the incident L.J. had to go back to therapy, which is costly. She also was too depressed to work at the time and had to take a leave of absence for a couple of months. L.J. has fears for her security related to the incident.
- Exhibit 3- Victim Impact Statements of J.J.
[27] J.J. is L.J.’s mother. J.J states that A.H.’s actions have brought great pain and suffering to their family. L.J. did not sleep for many months. Their home turned from happy and peaceful to one of sadness and stress. Every day they think of what L.J. went through and still fear for her safety.
- Exhibits 4 and 5- A.H.’s Sentencing- Character Letters
[28] Exhibit 4 is a brief of seven letters. The Crown objected to specific portions of three of the letters as the portions contain the writers’ opinions regarding the factors the court should consider in sentencing A.H., the in-custody system and its potential impact on A.H., and the type of sentence that should be imposed. Exhibit 5 is the same brief as Exhibit 4 with the objected to portions highlighted. I have not considered the highlighted portions as these segments exceed the proper scope of character references and include opinions regarding the appropriate sentence.
[29] Although I have not considered these portions of the character letters, I am mindful of paragraph 165 of R v. Hills, 2023 SCC 2, 422 C.C.C. (3d) 1, which confirms that imprisonment would have a deleterious effect on a youthful offender:
The second component is the effects of the punishment on the actual or reasonably foreseeable offender. A four-year term of imprisonment would have significant deleterious effects on youthful offenders, who are viewed by our criminal law as having high rehabilitative prospects. It follows that sentences for youthful offenders are often largely directed at rehabilitation. To prioritize rehabilitation, youthful offenders should benefit from the shortest possible sentence that is proportionate to the gravity of the offence (see R. v. Brown, 2015 ONCA 361, 126 O.R. (3d) 797, at para. 7; R. v. Laine, 2015 ONCA 519, 338 O.A.C. 264, at para. 85). This is because incarceration is often not a setting where the reformative needs of young people are met (Ruby, at §5.191). Youthful offenders in federal penitentiaries are often bullied, recruited into adult gangs for protection and are vulnerable to placements in segregation (Office of the Correctional Investigator and Office of the Provincial Advocate for Children and Youth, Missed Opportunities: The Experience of Young Adults Incarcerated in Federal Penitentiaries (2017)). For the youthful offender at bar, the difference between a reformatory sentence served in community and a four‑year period of incarceration would be profoundly detrimental.
[30] That a sentence for a youthful offender should be the shortest possible sentence that is proportionate to the gravity of the offence is also described at paragraphs 6 and 36 of R v. Borde (2003):
[6] On August 15, 2000, the appellant committed the most serious offences. The appellant was again in the prohibited area laying in wait for Jamaul Cramona. The appellant repeatedly pistol-whipped the victim outside a convenience store. In the course of the assault, the handgun discharged but the bullet did not injure the victim. The victim required numerous stitches to close the wounds to his face. The handgun used in this offence was the same handgun used by the appellant's acquaintance in the July [page421] 30th shooting. The appellant was charged with aggravated assault, using a firearm in the commission of an offence and failing to comply with his release as a result of this incident.
[36] Aside from the gravity of the appellant's crimes, the overwhelming factor is his youth. In my view, the trial judge erred in principle in focusing almost exclusively on the objectives of denunciation and general deterrence, given the appellant's age and that this was his first adult prison sentence and his first penitentiary sentence. The length of a first penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciation and general deterrence. Where, as here, the offender has not previously been to penitentiary or served a long adult sentence, the courts ought to proceed on the basis that the shortest possible sentence will achieve the relevant objectives. The trial judge's repeated references to the need to send a message and his statement that the sentence was meant to deter others who resort to guns make it clear that general deterrence and to a less extent denunciation determined the length of the sentence. In my view, this error led the trial judge to impose an excessive sentence for the aggravated assault. [page430]
[31] I will briefly describe each of the seven letters. The first is from L.D., the mother of a friend of A.H.’s. The friend has passed away. She describes A.H. as kind, polite, respectful and helpful. A.H. was a wonderful friend to her son and supportive to the family when he passed. She describes A.H. as “a great young man”, who she loves like a son.
[32] The second is from T.M., a friend of A.H.’s. T.M. describes knowing A.H. for four years and A.H. being like a brother to him. T.M. states that during a challenging time in T.M.’s life, A.H. displayed “extraordinary kindness and support.” T.M. describes A.H. as having a “compassionate and caring personality.”
[33] The third letter is from G.T., a friend of A.H.’s. G.T. describes A.H. as selfless and kind, supportive, helpful, reliable and generous. To G.T., A.H. is “a hard-worker, a brother, a son, a friend, and a face that you can turn to that will always make you feel welcome.” G.T. states that G.T. has witnessed firsthand A.H.’s generosity and friendliness.
[34] The fourth letter is from two people who have known A.H. since he was a young child, M.W. and S.K. They described A.H. as “a kind and generous soul with a big heart.” They described their daughter visiting A.H.’s home when he was in his teens and A.H. being “light-hearted, gracious, and welcoming.” He has a “gift of compassion”.
[35] The fifth letter is from A.H.’s aunt, S.G. She describes A.H. as someone you can always count on. She describes how for the past 2.5 years A.H. has helped care for and transport his grandfather. She describes A.H. as smart, hardworking, employable, helpful and eager to contribute to the world.
[36] The sixth letter is from A.H.’s uncle, J.H. He describes A.H. as “an incredibly engaging and positive person.” J.H. described that A.H. “lights up every room when he enters it.”
[37] The final and seventh letter is from A.H.’s mother, R.H. She described how A.H. has demonstrated resilience and maturity. She states that his love and compassion for their family has been extended to others in the community. A.H. has been a “pillar of strength” for the family, as they have faced challenging years. She has seen him grow into “a responsible and mature young man.” He has achieved professional success as a locater.
III. THE LEGAL PARAMETERS
[38] Under section 271(a) of the Criminal Code, A.H., having been found guilty of an indictable offence of sexual assault, is liable for imprisonment for a term not exceeding ten years. There is no minimum sentence.
IV. POSITIONS OF THE CROWN AND DEFENCE
a) Position of the Crown
[39] The Crown is seeking a sentence of 4 to 5 years in custody. In terms of ancillary orders, the Crown is seeking the following:
- A SOIRA order for 20 years.
- A section 109 weapons prohibition for 10 years.
- A section 743.21 order that during any period in custody, A.H. not communicate with L.J.
- A D.N.A order.
b) Position of the Defence
[40] The defence position is that the appropriate sentence is two years, less a day, to be served conditionally in the community, with terms for therapy and counselling. The defence did not dispute any of the ancillary orders requested by the Crown.
V. CASELAW
[41] The defence filed caselaw on the principle of restraint in sentencing. The Crown does not disagree that the Criminal Code provides for every judge to practice restraint when imposing a sentence. The application of restraint in the context of a youthful offender is described in paragraph 165 of Hills and paragraph 36 of Borde as set out above. More generally, the principle of restraint is described at para. 14 of R v. Shaheen, 2022 ONCA 734. Counsel agree that this principle is applicable in this case. As such, I am going to focus on the cases referred to by counsel in regard to the appropriate sentence.
[42] In R v. D.M., 2023 ONSC 2151, Conlan J. sentenced a youthful first-time offender, who was found guilty of sexual assault. D.M. was charged in regard to the events that occurred on the same evening as A.H., and in regard to the same complainant. The circumstances of the offence included D.M. touching and pulling at the complainant’s breasts and D.M. forcing her to give him oral sex. At paragraphs 27-41, Conlan J. considers the appropriate sentence:
[27] In terms of the request by the defence to impose a conditional sentence of imprisonment, I make the following observations.
[28] D.M. is a youthful offender and without any prior criminal history. He was barely eighteen years old at the time of the offence. As such, this Court must explore all other dispositions before imposing a custodial sentence. Given the primary considerations of individual deterrence and rehabilitation that apply generally to youthful first offenders, this Court should impose a custodial sentence on D.M. only where the circumstances are such or the offence is of such gravity that no other sentence is appropriate. R. v. Priest.
[29] In our case, both sides agree that a custodial sentence is necessary for this offender, but the principle of restraint and the directions provided by Justice Rosenberg in Priest, supra remain very relevant to this Court’s consideration of whether that custodial sentence ought to be permitted to be served in the community by way of a conditional sentence order.
[30] Recently, in R. v. A.J.K., 2022 ONCA 487, the Court of Appeal for Ontario stated that “[a] sexual assault involving forced penetration is a sexual assault involving forced penetration”; it is a “serious act of violence” that reflects the “wrongful exploitation of the victim” and which, “[a]bsent some highly mitigating factor…will typically attract a sentence of at least three years in the penitentiary”, though there will be circumstances where a departure from the range is entirely appropriate (paragraphs 73, 74, and 77).
[31] Although it is correct that denunciation and general deterrence will play little, if any, role in sentencing youthful first offenders, serious crimes of violence, particularly sexual assaults, provide an exception to that general rule. R. v. Thurairajah, 2008 ONCA 91, at paragraph 41.
[32] In summary, this sentencing decision must take into consideration several important sentencing principles: denunciation and general deterrence, on the one hand, and rehabilitation, individual deterrence, and restraint, on the other hand.
[33] The aggravating factors that must be considered by this Court include the following: the devastating impact that the sexual assault has had on the victim and her family, to the point of the victim engaging in self-harm while being terribly depressed; the fact that D.M. sexually assaulted the victim in more than one way – he touched and pulled at her breast without her consent, and then he also forced her to perform fellatio on him; the fact that D.M. did these unwanted but intimate things to the victim while there was another male present, violating her personal dignity even further; the fact that D.M. victimized his own friend; the fact that physical violence was used in that the offender grabbed the victim’s neck and head and pulled her towards his penis, overriding her clear protestations; and the fact that the victim was only 16 years old at the time.
[34] The reader will note that this Court has not included in that already lengthy list of serious aggravating factors some of the things advanced by the Crown today in terms of findings of fact that this Court is urged to make: that this evening was planned by the offender and his male friends; that the offender knew that the males in the other vehicle had already done something to the victim that she did not want to have happen before the offender himself decided to sexually assault her; and that D.M. committed the forced fellatio sexual assault while his male friend was also sexually assaulting the victim from behind.
[35] This Court, with respect, declines to make those additional findings of fact. I am not satisfied that they, all aggravating on sentence, and all strictly unnecessary to the jury’s verdict, have been proven beyond a reasonable doubt – section 724(3)(e) of the Criminal Code.
[36] There are mitigating factors here – the youthfulness of the offender, and his lack of any prior criminal record, and the fact that he appears to have been a loving and supportive son and brother. He also has a good employment history and has much ambition for the future, as evidenced through his well-spoken words to the Court earlier today.
[37] In my view, considering all of the circumstances of the offence and those of the offender, a conditional sentence of imprisonment would not be a fit disposition, even if this Court decided to impose a sentence of less than two (2) years in custody.
[38] I say that not because I think that D.M. would endanger the safety of the community but rather because, under section 742.1(a) of the Criminal Code, a conditional sentence order would not be consistent with the purpose and principles of sentencing. It would not adequately reflect the aggravating circumstances of this violent sexual assault committed against the offender’s friend. It would not sufficiently account for the denunciatory and general deterrent aspects of this sentence. And it would not come even close to respecting the current state of the law as set out in A.J.K., supra and the leading authorities cited therein.
[39] I am satisfied, however, that there is good reason to impose upon D.M. a custodial sentence that is below the three (3) years stipulated in A.J.K., supra. I think that the offender’s tender age at the time of this offence, which sexual assault occurred less than two months after he entered adulthood, and his lack of any prior criminal history of any kind, together amount to highly mitigating circumstances that justify some departure from what would otherwise be the starting point for determining the length of incarceration required for this offender.
[40] The principle of restraint, in my view, calls for a sentence of imprisonment for D.M. that is at the very low end of a penitentiary term.
[41] This Court sentences D.M. to two (2) years’ imprisonment.
[42] The section 743.21 order requested by the Crown is granted but limited to the victim herself.
[43] I know that this sentence will be very difficult for the offender and his supportive family to accept. My hope is that they will someday understand that this sentence pays full respect to the importance of rehabilitation and individual deterrence for D.M., given his youthful first-offender status, but that anything less than a penitentiary sentence would simply not be fit.
[44] I hope that D.M. has a successful life after his release from custody. I think that he has the skills required to be a productive member of our society, and he has already proven to be a treasured part of his family.
[45] The offender requested that this Court conduct the sentencing hearing today but postpone the imposition of the sentence for a few weeks. That request was denied. As much as this Court has compassion for the offender and his family, the real victim here is the young lady. She has endured the criminal justice process for a very long time. She has been crushed by it, as reflected in her victim impact statement. She deserves to try to move on as much as possible, even if there will be another court attendance down the road for a different accused person. Her need for some closure must outweigh the offender’s desire to “get his affairs together” and to wait to be sentenced until after his sibling delivers her expected child, which were the only two reasons advanced for the postponement requested.
[46] In the interests of justice, the sentence was imposed today.
[47] The Crown relied on four other cases in regard to the appropriate sentence.
[48] In R v. A.J.K., 2022 ONCA 487, 162 O.R. (3d) 721, the Court of Appeal determined that absent highly mitigating factors, a sexual assault offence involving forced penetration will typically attract a sentence of at least 3 years in the penitentiary. Paragraphs 71-77 of A.J.K. provide:
[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, [2015] 3 S.C.R. 1089, at paras. 57; R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1, 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, 436 D.L.R. (4th) 389, at para. 22, citing R. v. Smith, 2017 BCCA 112, at para. 36, citing R. v. Nur, 2011 ONSC 4874, 275 C.C.C. (3d) 330, at para. 49; Friesen, at para. 108.
[72] In some cases, appellate courts are called upon to chart a new course and bring sentencing ranges into “harmony with a new societal understanding of the gravity of certain offences or the degree of responsibility of certain offenders”: Friesen, at para. 35. See also: R. v. Wright (2006), 83 O.R. (3d) 427 (C.A.), at para. 22. That is what we are being asked to do here. It is right to do so.
[73] 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, [1999] 1 S.C.R. 330, at para. 82.
[74] All sexual assaults are serious acts of violence. They reflect the wrongful exploitation of the victim whose personal autonomy, sexual integrity, and dignity is harmfully impacted while being treated as nothing more than an object. Whether intimate partners or strangers, victims of sexual violence suffer profound emotional and physical harm and their lives can be forever altered. So too can the lives of their loved ones.
[75] As the years pass, enlightenment on the implications of sexual violence continues to permeate our conscious minds. In Friesen, the court noted, at para. 118, that “our understanding of the profound physical and psychological harm that all victims of sexual assault experience has deepened” and, I would add, is continuing to deepen: see also R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3, at para. 37. As Moldaver J. stated in R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 1: “Without a doubt, eliminating … sexual violence against women is one of the more pressing challenges we face as a society” and “we can – and must – do better” (emphasis in original). This comment encapsulates why these sentencing ranges as they have come to be understood must be reconciled.
[76] There is no justifiable reason for why sexually assaulting an intimate or former intimate partner is any less serious than sexually assaulting a stranger. The fact is that a pre-existing relationship between the accused and complainant places them in a position of trust that can only be seen as an aggravating factor on sentencing: Criminal Code, R.S.C., 1985, c. C-46, s. 718.2(a)(ii). Therefore, contrary to the impression that may be left when contrasting the Smith range with the non-Smith range, the sexual assault of an intimate or former intimate partner can actually attract a greater sentence.
[77] The fact that the complainant had a relationship or prior relationship with the accused cannot serve to justify a sentencing range below a range for non-intimate partner sexual violence. To the extent that the Smith has been interpreted as suggesting otherwise, it is no longer to be understood this way. Absent some highly mitigating factor, the forced penetration of another person will typically attract a sentence of at least three years in the penitentiary. While Bradley and the cases following it suggest that the range is three to five years, this is of course just a range, a quantitative sentencing tool designed to assist busy trial judges with where to start: Parranto, at paras. 15-17. Accordingly, there will be circumstances where a departure from the range, either above or below the range, is entirely appropriate.
[49] In R. v. R.S., 2023 ONCA 608, 430 C.C.C. (3d) 229, paragraph 4, the Court considered the appropriateness of a conditional sentence for R.S. who was found guilty of a violent sexual assault involving digital penetration and choking with intent to overcome resistance:
[4] As I will explain, although conditional sentences are now available in sexual assault cases, proportionality remains key to sentencing. Conditional sentences will rarely, if ever, be proportionate in the context of violent sexual assault cases such as this. The sentencing objectives of deterrence and denunciation will normally require penitentiary sentences in the 3 to 5-year range for such offences, as this court explained recently in R. v. A.J.K., 2022 ONCA 487, 162 O.R. (3d) 721.
[46] The Crown relied on paragraphs 75 and 118 of R v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424 in regard to the impact of a sexual assault on the victims and noted that L.J. was a child (16 years of age) at the time of the sexual assault:
[75] In particular, courts need to take into account the wrongfulness and harmfulness of sexual offences against children when applying the proportionality principle. Accurately understanding both factors is key to imposing a proportionate sentence (R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at paras. 43-44). The wrongfulness and the harmfulness impact both the gravity of the offence and the degree of responsibility of the offender. Taking the wrongfulness and harmfulness into account will ensure that the proportionality principle serves its function of “ensur[ing] that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused” (Nasogaluak, at para. 42).
[118] We would emphasize that nothing in these reasons should be taken either as a direction to decrease sentences for sexual offences against adult victims or as a bar against increasing sentences for sexual offences against adult victims. As this Court recently held, our understanding of the profound physical and psychological harm that all victims of sexual assault experience has deepened (Goldfinch, at para. 37). In jurisdictions that have erroneously equated sexual violence against children with sexual violence against adults, courts should correct this error by increasing sentences for sexual offences against children — not by decreasing sentences for sexual offences against adults.
[47] The final case relied on by the Crown in regard to the appropriate sentence is R v. Silveira, 2024 ONSC 757. Mr. Silveira was convicted of a sexual assault involving forced sexual intercourse. He was 23 years of age at the time of the offence, with a supportive family. He had no criminal record. The court set out the applicable purposes and principles of sentencing at paragraphs 22 to 30:
[22] 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.
[23] 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.
[24] Section 718.2 of the Criminal Code specifies that the following is deemed to be an aggravating factor:
- evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation.
[25] 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, 444 D.L.R. (4th) 1, 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, [2012] 2 S.C.R. 584, at paras. 45 and 48).
[26] Denunciation and deterrence are primary considerations on sentencing in cases of serious sexual assault: R. v. A.J.K., 2022 ONCA 487 at para 83, R. v. Macintyre-Syrette, 2018 ONCA 706, R. v. R.S. 2023 ONCA 608 at para. 39. 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 decisions must reflect the harm that sexual offences have done to the complainant and our community at large; Goldfinch, 2019 at para. 37.
[27] In this case, Mr. Silveira sexually assaulted SB, a person that he knew, when they were on a date. Recently, the Court of Appeal in A.J.K., made it clear that the sentencing range for sexual assaults where the victim is known to the accused is not less than where the victim is a stranger. Associate Chief Justice Fairburn, speaking for the court stated at paras. 73 and 74:
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, [1999] 1 S.C.R. 330, 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.
[28] Associate Chief Justice Fairburn, speaking for the court stated at para. 77 in A.J.K. that absent some highly mitigating factors, the forced penetration of another person would typically attract a sentence of at least 3 years:
The fact that the complainant had a relationship or prior relationship with the accused cannot serve to justify a sentencing range below a range for non-intimate partner sexual violence. To the extent that the Smith has been interpreted as suggesting otherwise, it is no longer to be understood this way. Absent some highly mitigating factor, the forced penetration of another person will typically attract a sentence of at least three years in the penitentiary. While Bradley and the cases following it suggest that the range is three to five years, this is of course just a range, a quantitative sentencing tool designed to assist busy trial judges with where to start: Parranto, at paras. 15-17. Accordingly, there will be circumstances where a departure from the range, either above or below the range, is entirely appropriate.
[29] As stated in RS at para. 22. the decision in AJK makes it clear that range for sexual assault involving forced penetration is 3-5 years in the penitentiary.
[30] However, sentencing is an individualized process and sentencing ranges are not meant to handcuff the court. As stated by ACJO Fairburn 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, [2015] 3 S.C.R. 1089, at paras. 57; R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1, 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, 436 D.L.R. (4th) 389, at para. 22, citing R. v. Smith, 2017 BCCA 112, at para. 36, citing R. v. Nur, 2011 ONSC 4874, 275 C.C.C. (3d) 330, at para. 49; Friesen, at para. 108.
[48] Justice Leibovich at paragraphs 35-37, in Silveira determined that a conditional sentence was not appropriate and imposed a sentence of 3.5 years:
[35] A conditional sentence is only available if a sentence of less than two years is appropriate; R.S. at para. 21. The defence submits that the facts of the offence are unique justifying a reformatory sentence and a reformatory sentence that can be served in the community. I disagree. There is nothing, in any way, shape or form, that is unique about this case. Mr. Silveira and SB were on a date. Over her repeated protests he forced sexual intercourse on her. As a result, the victim has suffered significant psychological harm. Unfortunately, this same scenario has been repeated and played out in numerous other cases.
[36] Our Court of Appeal has recently stated that “Absent some highly mitigating factor, the forced penetration of another person will typically attract a sentence of at least three years in the penitentiary.” There are some mitigating circumstances. I have mentioned them earlier in these reasons. But there are no highly mitigating factors in this case that would serve to reduce the sentence below the three-year mark. Defence counsel in his submissions has referenced a number of factors. The defence noted that the accused listened to the victim’s request and did not ejaculate inside her. The defence also noted that there was no evidence that the sexual assault was planned or resulted from any predatory actions. These are not mitigating factors. They are the absence of other aggravating factors. But I also note that the accused ejaculated on the victim’s back, which was a demeaning act. In addition, I also note that SB told the accused earlier that day that she was not interested in sex. Therefore, while there is no evidence that the sexual assault was planned, the accused’s moral blameworthiness is high given the prior warning and the victim’s repeated nos and crying during the offence.
[37] Having regard to all the aggravating and mitigating factors, including Mr. Silveira’s youth at the time of the offence, and the absence of a criminal record, a sentence of 3.5 years is appropriate.
[49] The Crown relies on paragraphs 77 to 91 of R v. Shrivastara, 2019 ABQB 663 in regard to the probative value of the character letters A.H. submitted:
[77] Mr. Shrivastava’s references speak emphatically of his caring and moral nature. However, character traits displayed in public are of questionable relevance to offences committed in secrecy. In particular, since sexual offences are “usually perpetrated in private, out of sight and knowledge of friends and associates”, evidence of community reputation has “little probative value”: Manson at 132. Sexual offences “are committed by people from all walks of life, out of the public eye, clandestinely and secretly, often to the surprise of people who thought they knew the perpetrator best”: R v Hepburn, 2013 ABQB 520 at para 37; see also: R v M(CF), 2006 NWTSC 59 at paras 138-139.
[78] The words of the Supreme Court in R v Profit, [1993] 3 SCR 637, [1993] SCJ No 104 at para 2, written regarding the use of good character evidence by the defence at trial, are apt in most, if not all, sentencings for sexual violence:
…as a matter of common sense, but not as a principle of law, the trial judge may take into account that in sexual assault cases involving children, sexual misconduct occurs in private and in most cases will not be reflected in the reputation in the community of the accused for morality. As a matter of weight, the trial judge is entitled to find that the propensity value of character evidence as to morality is diminished in such cases.
This parallels the Court of Appeal’s conclusion in Arcand at paragraph 136 that “[i]t is difficult to see the logic of assigning mitigation credit for apparent prior compliance with social norms in the face of a serious sexual assault”: see also: R v G(P), 2016 YKTC 73 at para 34; R v Schug, 2007 ONCJ 390 at para 134; R v M(CF) at paras 140-141.
[79] Mr. Shrivastava’s reliance on volunteerism echoes the theory that good character mitigation can be viewed as “a form of social accounting, and that courts should draw up a kind of balance sheet when sentencing. The offence(s) committed would be the major factor on the minus side; and any credible social acts would be major factors on the plus side”: Andrew Ashworth, Sentencing and Criminal Justice, 5th ed (Cambridge: Cambridge University Press, 2010) at 182. This justification is abstract and unworkable. Sentencing judges are not equipped to learn of and assign weight to all of an offender’s good deeds: Bagaric & Alexander at 429-430, citing, in part, Nigel Walker, Punishment, Danger and Stigma: The Morality of Criminal Justice (Totowa, Barnes and Noble Books, 1980) at 138. As Justice Jeffrey concluded in Hepburn at paragraph 37, “[i]t cannot be that because of a person's abundant good deeds and potential for societal contribution that they are given a free pass on a crime against another, that they can in a secret double life victimize the vulnerable of our society with impunity.”
[80] Volunteerism presents its own concerns. People with financial means have a higher rate of participation in volunteer work while those who struggle economically have less freedom to donate their time: James Curtis, Edward Grabb & Thomas Perks, “Inequalities in Political and Community Participation” in David A Green & Jonathan R Kesselman eds, Dimensions of Inequality in Canada (Vancouver: UBC Press, 2006) 189 at 207. Extensive volunteerism is therefore one of the factors that can flow from “general economic conditions”: Arcand at para 135. Like so many other features associated with “good character”, reliance on volunteerism as evidence of good character has the potential to operate as a systemic bias based on socioeconomic status.
[81] Where does character fit within the Criminal Code’s principles and objectives of sentencing? In some circumstances, aspects of an offender’s character may have a once-removed relevance to the gravity of the offence: Criminal Code s 718.1. For instance, breaches of trust are aggravating, and positions of trust are often obtained on the basis of prior good character: R v BSM, 2011 ABCA 105 at para 16; R v Fulcher, 2007 ABCA 381 at para 35; R v Perez, 2012 ABCA 393 at para 19; R v Drabinsky, 2011 ONCA 582 at paras 167-168; R v Cameron, 2017 ABQB 554 at para 69; R v Cook, 2010 ONSC 5016 at para 36. In such circumstances, there is little reason to permit good character to mitigate.
[82] More commonly, character is relevant to the offender’s degree of responsibility: Criminal Code s 718.1.
[83] Research suggests that people who have grown up without family or community support, or without the opportunity to learn appropriate behavioural norms, or to obtain education or career training, or to receive care for medical or mental health problems, can be impacted “physically, mentally, and emotionally, such that they cease to conform to the ideal of a free and rational actor”: Lisa M Saccomano, “Defining the Proper Role of ‘Offender Characteristics’ in Sentencing Decisions: A Critical Race Theory Perspective” (2019) 56:4 Am Crim L Rev 1693 at 1719 referencing Robert J Sampson & John H Laub, “A Life-Course View of the Development of Crime” (2005) 602:1 Annals Am Acad Pol & Soc Sci 12. I do not accept that disadvantage results in a loss of free will or reason. However, judicial experience confirms, for example, that “[a] person who grows up in a culture of alcohol and drug abuse [may be] less blameworthy than a person who commits a crime despite a positive childhood and upbringing”: R v Shanoss, 2013 BCSC 2335 at para 164.
[84] This reasoning has been expressly recognized in its application to the intergenerational disadvantage of many indigenous Canadians. In R v Ipeelee, 2012 SCC 13 at paragraph 73, the Supreme Court explained why negative systemic and background factors inform an offender’s level of moral blameworthiness and operate in mitigation:
Canadian criminal law is based on the premise that criminal liability only follows from voluntary conduct. Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limited options for positive development. While this rarely — if ever — attains a level where one could properly say that their actions were not voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish their moral culpability. … Failing to take these circumstances into account would violate the fundamental principle of sentencing — that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [emphasis in original]
[85] It therefore stands to reason that “the culpability of offenders is enhanced when they commit crimes despite having had every advantage to steer them away from criminal behavior”: Saccomano at 1719. Positive aspects of an offender’s life, “somewhat ironically, can be viewed as increasing his moral blameworthiness because of the absence” of stressors such as poverty, social isolation, substance abuse or low cognitive functioning: R v H(KS), 2015 ABCA 369 at para 39. At the very least, positive systemic background factors do not mitigate the offender’s degree of responsibility. “Good character” provides little or no assistance in contextualizing the offending behaviour, or understanding it as anything other than a freely made choice.
[86] Underlying all potential uses of “good character” in sentencing is a concern that it can act as a cloak for privilege and prejudice. As observed in Arcand at paragraph 135, good character can too easily be confused with “general economic conditions”, or in Manson’s phrasing at 132, with “standing in the community”. Perceptions of “standing” are vulnerable to influence by perceived characteristics such as race, ability, gender or gender identity, and age, and therefore to systemic bias. For example, in 1995 the Ontario Commission on Systemic Racism reported that “[i]f… the courts consistently restrict mitigation to factors such as steady employment that may indirectly discriminate against black and other racialized accused, then the individualized approach may result in inequality in sentencing outcomes”: Gareth Morley, “A Just Measure of Pain?: Determining Quantum of Punishment in the Charter Era” (1997) 55:2 UT Fac L Rev 269 at 278, footnote 62. In sum, “good character” may tend to advantage offenders with whom judges can readily identify.
[87] Allowing undue mitigation for “good character” can undermine the denunciative and deterrent functions of criminal sentences.
[88] In R v M(CA), [1996] 1 SCR 500, [1996] SCJ No 28, at paragraph 81, the Supreme Court defined the role of denunciation:
[A] sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law. …“[S]ociety, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass”. [citation omitted]
Denunciation is meant to produce “a moral or educative effect” by “emphasizing the community’s disapproval of an act and branding it as criminal”: Ruby et al at 7. In short, denunciation is intended to communicate society’s values: Gilles Renaud, The Sentencing Code of Canada: Principles & Objectives (Markham: LexisNexis Canada Inc, 2009) at 13-17.
[89] For instance, in R v Brown, 1992 ABCA 132, the Court of Appeal acknowledged the “profound problem” of intimate partner violence – one that the courts alone cannot solve through sentencing. However, “when such cases do result in prosecution and conviction, then the courts do have an opportunity, by their sentencing policy, to denounce wife-beating in clear terms and to attempt to deter its recurrence on the part of the accused man and its occurrence on the part of other men”: at paras 18-19.
[90] Good character mitigation may “dilute the deterrent effect of punishment” by “convey[ing] the message that an offender will get a break [or] will be treated leniently, as long as the offender has a previously clean record”: Benjamin B Sendor, “The Relevance of Conduct and Character to Guilt and Punishment” (1996) 10:1 Notre Dame JL Ethics & Pub Pol’y 99 at 128. Worse, if not handled with scrupulous care, it stands to convey the message that an offender will be treated leniently if he is of high social or economic standing or is otherwise a member of a privileged group.
[91] When denunciation and deterrence are paramount objectives in sentencing an offence, as is true of sexual assault, “they should not be improperly discounted in the quest for individualized sentences”: R v Christie, 2004 ABCA 287 at para 37; see also: Arcand at paras 274-276, Glessman at para 8. In particular, courts must ensure that denunciative and deterrent messages are heard by the audience of potential offenders: Field at paras 22-23.
[50] The Defence filed seven cases on the appropriate sentence. The Defence submits that these cases are still relevant after A.J.K. as the 3-5-year range came from a 2008 decision, R. v. Bradley, 2008 ONCA 179, 234 O.A.C. 363 and these cases were decided when the range was already identified in the caselaw. These seven cases filed by the Defence are briefly summarized as follows:
R. v. M.G., 2019 ONCA 796 – the appellant and the complainant were roommates. The complainant was asleep when the appellant penetrated her. The Court of Appeal upheld the 14-month sentence and the 3-year probation order, imposed by the trial judge
R. v. McKenzie, 2017 ONCA 128, 136 O.R. (3d) 614– the appellant touched the complainant on her buttocks and thighs. He kissed her on the lips. He pulled her into a washroom, locked the door and pressed his penis into her anus, with partial penetration. The Defence relies on paras. 16-23 of McKenzie wherein the Court of Appeal upheld a sentence of nine months imprisonment, followed by two years of probation:
[16] I agree that the trial judge misapprehended the facts in Dahouky, but only to a limited degree. He erred when he said that Dahouky and the complainant were in a relationship. Moreover, the trial judge failed to realize the considerable delay between the consensual and non-consensual activity between the accused and the complainant. Arguably, the circumstances of the offence in Dahouky were more serious than the trial judge appreciated.
[17] However, the trial judge's reliance on Dahouky is problematic for a different reason, one that was not raised on appeal. Referring to that case, the trial judge said, at para. 43: "[a]n appeal by the accused, seeking a conditional sentence was dismissed. The Court of Appeal made no adverse comment about the length of the custodial sentence imposed at trial." However, despite reference in this court's endorsement to an appeal from both conviction and sentence, an examination of the court file reveals that the sentence appeal had been abandoned in advance of the hearing of the appeal. Consequently, this court's endorsement has no precedential value on the sentencing issue.
[18] I disagree with the appellant's submission that the trial judge concluded that Dahouky created a sentencing floor and felt that "he had no choice but to impose a nine-month sentence". However, I cannot say that the trial judge's reliance on this case had no impact on his analysis. At one point in his reasons, he said, at para. 43, "[b]ased on Dahouky, I conclude a sentence of nine months is within the range of sentence that is appropriate on these facts". Shortly afterwards, he said, at para. 45, "[i]t seems to me that nine months represents the bottom of the range of sentence that would be appropriate in this case based on all of the facts".
[19] In my opinion, however, despite the trial judge's misplaced reliance on this court's endorsement in Dahouky, the sentence imposed was still fit in all of the circumstances. Dahouky was just one of the numerous cases the trial judge relied upon to craft the sentence he ultimately imposed. While this court did not affirm the sentence imposed by the trial judge in Dahouky, the trial judge was entitled to rely upon the trial judge's reasons in Dahouky, along with other trial and appellate decisions, in determining the appropriate range of sentence.
[20] Relying on other decisions from this court (R. v. Garrett, 2014 ONCA 734, 117 W.C.B. (2d) 562; R. v. Rand, 2012 ONCA 731, 104 W.C.B. (2d) 10; and R. v. Thurairajah (2008), 89 O.R. (3d) 99, 2008 ONCA 91), [page620] the Crown at trial requested a penitentiary sentence. The trial judge was not persuaded that the "significant sexual assault" committed by the appellant was as serious as the misconduct in those cases. He said that (at para. 37), "had there been a fully completed act of vaginal or anal intercourse with the complainant" in the face of her saying "No, no, no", then three years' imprisonment would have been "entirely appropriate". However, given that there was only partial penetration, and in light of the activity that preceded the assault, the case was [at para. 39] "somewhat less serious than the assaults in the cases referred to by the Crown".
[21] The mitigating value attributed to these offence features (i.e., partial penetration and prior "consensual" behaviour) is doubtful, especially when the assault only came to an end when someone knocked on the bathroom door. Having expressed a different view in his reasons for judgment (i.e., the appellant did not stop because the complainant said "no"), in his reasons for sentence the trial judge said, at para. 10, "I am not certain the encounter would have continued if that knocking had not occurred." I mention these aspects of the trial judge's reasons to demonstrate that every possible benefit was extended to the appellant in terms of the manner in which his offending was characterized.
[22] Ultimately, it must be determined whether the sentence imposed upon the appellant was "demonstrably unfit": see R. v. Lacasse, [2015] 3 S.C.R. 1089, 2015 SCC 64, at paras. 51 to 53. The sexual offence was serious, one involving anal penetration, which is generally treated as an aggravating circumstance: see R. v. R. (M.), 2014 ONCA 484, 114 W.C.B. (2d) 471, at para. 6. Given the superficial relationship between the appellant and the complainant, their age difference, the complainant's alcohol consumption, the circumstances in which the sexual assault took place and the impact on the complainant, the trial judge was right to characterize this sexual assault as "significant". Leaving aside immigration consequences for the moment, which I will return to below, many aspects of the appellant's background and life circumstances were positive, and the trial judge did take them into account. However, these had to be balanced against the appellant's troubling lack of insight into his own behaviour, and the harm he caused the complainant.
[23] Every case is unique. Despite the existence of sentencing ranges for particular types of offending, "[t]he determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation": [page621] see Lacasse, at para. 58. The trial judge undertook this analysis and imposed a sentence that is supported by other decisions of this court: see Garrett, at paras. 15-23; R. v. Crespo (2016), 132 O.R. (3d) 287, 2016 ONCA 454, 337 C.C.C. (3d) 439; and R. v. R. (C.), 2010 ONCA 176, 260 O.A.C. 52.
- R. v. Crespo, 2016 ONCA 454, 132 O.R. (3d) 287 – the complainant was awakened by the feeling of the appellant on top of her engaging in sexual intercourse with her. The Defence referenced paras. 27-31 wherein the 15-month sentence, followed by 18 months’ probation, was upheld:
[27] The appellant received a sentence of 15 months in custody. He appeals on the basis that the sentence is overly lengthy and disproportionate when considered in conjunction with the immigration consequences of the sentence. He also argues that the sentencing judge erred by failing to consider a conditional sentence. The appellant is an Ecuadorian national, and he introduced fresh evidence that he faces deportation at the conclusion of the custodial portion of his sentence.
[28] Although the sentencing judge imposed the sentence requested by the defence, defence counsel did not appear to be alive to the immigration issue, and did not bring it to the attention of the sentencing judge. The appellant relies on the [page295] judgment of this court in R. v. Nassri (2015), 125 O.R. (3d) 578, 2015 ONCA 316 for the proposition that sentencing judges can take into account immigration consequences when sentencing.
[29] The difficulty with the appellant's submission is that, by operation of s. 36(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, the appellant will face deportation if he receives any custodial sentence of six months or longer. However, a custodial sentence of less than six months, or a conditional sentence, would be manifestly unfit for the circumstances of this offender and this offence on the facts as found by the trial judge. As the Crown argues, consideration of immigration consequences cannot justify an otherwise inadequate sentence: R. v. Freckleton, 2016 ONCA 130.
[30] I see no basis upon which to interfere with the sentence imposed, and I would decline to do so.
(5) Disposition
[31] For the reasons given, I would grant leave to admit the fresh evidence concerning the admission of text messages, and the fresh evidence related to the sentence appeal. I would dismiss both the appeal as to conviction and as to sentence.
R. v. Dickson, 2023 ONSC 2776 – the accused was convicted of one count of sexual assault involving digital penetration and vaginal sexual intercourse. They had been in a dating relationship and had two children together. The victim wanted Mr. Dickson to remain out of jail as she relied on his financial support. The court relied in part on the conditional sentence ordered by the trial judge in R. v. R.S. 2021 ONSC 2263, which sentence the Ontario Court of Appeal at 2023 ONCA 608 described as “demonstrably unfit.” The Court of Appeal decision in R v. R.S. was released after Dickson. The trial judge in Dickson sentenced Mr. Dickson to 2 years less a day, to be served in the community as a conditional sentence.
R. v. Rannelli, 2022 ONSC 359 – Mr. Rannelli was convicted of one count of sexual assault during a first date between two adults. The sexual assault involved unprotected sexual intercourse. As set out at para. 25, the sentence was 2 years less a day, plus a probationary period of one year.
R. v. John, 2020 ONSC 5171 – Mr. John was convicted of sexual assault. He was 19 years old at the time of the offence and he initiated sexual intercourse with an 11-year-old. Mr. John had a criminal record. The trial judge imposed a sentence of 2 years less a day followed by probation for 2 years. Paras. 27 and 28 of John provide:
[27] Having considered the seriousness of the offence Mr. John committed as well as the mitigating and aggravating factors in this case, I find the appropriate sentence is 2 years less a day followed by probation for 2 years. For someone who was only 19 years old at the time of the offence, a sentence of 2 years less a day is a very significant term of imprisonment. It also sends a very clear message that sexual assault is a very serious offence and simply will not be tolerated. To the extent that any particular sentence can deter others from engaging in similar conduct, I am satisfied that a sentence of 2 years less a day will achieve that objective as well.
[28] An important consideration for me in settling on a custodial sentence of 2 years less a day is that it allows me to also impose a period of probation with terms that will foster Mr. John’s long‑term rehabilitation.
- R. v. Ignacio, 2019 ONSC 2832 – Mr. Ignacio was convicted of one count of sexual assault involving sexual intercourse. He forcefully penetrated the complainant’s vagina with his penis. The trial judge imposed a sentence of 20 months determining the appropriate sentence as paras. 36-42:
[36] In cases involving serious crimes of violence, and particularly sexual assaults, the objectives of general deterrence and denunciation must be given some prominence. However, other objectives, including rehabilitation, must nonetheless be taken into account: Thurairajah, at para. 41.
[37] There can be no doubt that this was a serious sexual assault requiring a substantial sentence of imprisonment. However, Mr. Ignacio is a youthful first offender. In my view, this brings him within the lower end of the usual sentencing range for “date-rape” sexual assaults. However, for the reasons expressed earlier, that range must be adjusted to account for the significant collateral immigration consequences Mr. Ignacio is facing.
[38] Having carefully considered the relevant sentencing objectives and the aggravating and mitigating factors, I have concluded that the appropriate sentence in this case is one of imprisonment in a reformatory for 20 months.
[39] As neither counsel has requested a period of probation, none is imposed.
(ii) Ancillary Orders
[40] As required by ss. 490.012(1) and 490.013(2)(b) of the Criminal Code, Mr. Ignacio is ordered to comply with the Sex Offender Information Registration Act (“SOIRA”) for a period of 20 years.
[41] In accordance with s. 487.051(2) of the Criminal Code, Mr. Ignacio is ordered to provide such samples of bodily substances as may be required for forensic DNA analysis and inclusion in the national databank.
[42] There will also be an order pursuant to s. 743.21(1) of the Code prohibiting Mr. Ignacio from communicating, directly or indirectly, with S.H. during the custodial portion of his sentence.
[51] It is the defence position that the nature of the offences in A.J.K. and R.S. were more serious than in this case. In A.J.K. the appellant penetrated the victim from behind, all the while choking her. He punched her in the head. He also pressed her so hard against the side of the car that she couldn’t breathe. He hit her. In R.S., the victim recalled hitting the fridge and then going to the ground with R.S. on top of her. His hands were all over her. She felt intense biting or sucking on her abdomen. R.S. digitally penetrated the victim. R.S. grabbed her throat and squeezed hard such that she saw stars.
[52] The Crown replied by submitting that the court should take the overarching principles from A.J.K. and R.S. regarding the deepened understanding of the impact of sexual assaults on victims into consideration and also consider that sexual assaults involving penetration are serious sexual assaults.
[53] The Crown referred to the case of R. v. Jiwa, 2012 ONCA 532, 295 O.A.C. 180, at para. 41 and R. v. Thurairajah, 2008 ONCA 91, 89 O.R. (3d) 99, at para. 41 for the principle that although denunciation and general deterrence will play less of a role in sentencing youthful first-time offenders, there is an exception to that rule for serious crimes of violence.
[54] The Crown commented on the cases the Defence put forward. The Crown submits that M.G. does not reflect the current state of the law as set out in A.J.K. The Court in McKenzie considered immigration consequences and the sentence is not consistent with A.J.K. Crespo also involved immigration considerations.
[55] In Dickson the trial judge relied on the trial decision in R.S. before the Court of Appeal decision commenting that it was an unfit sentence. In Dickson the victim did not want the accused to go to jail as she relied on his support and the accused had indicated remorse and taken responsibility for his actions. The case of Rannelli predates A.J.K. and there are fewer aggravating factors in Rannelli than in this case. In John, the accused had shown remorse.
VI. MITIGATING FACTORS
[56] A.H. is a youthful first-time adult offender. He was 18 when the offence was committed.
[57] A.H. has a loving and supportive family, including his mother, aunt and uncle. He has friends who support him.
[58] A.H. has found a trade that he is happy to be working in. He has ambitions for his future.
[59] He has realized that he needs therapy to deal with the multiple traumas that he has experienced in the past such as being abused by his father, being bullied at school, losing his grandparents and the death of his best friend.
VII. AGGRAVATING FACTORS
[60] It is an aggravating factor that L.J. was 16 years old at the time of the offence (section 718.2(a)(ii.1) of the Criminal Code).
[61] The offence has had a profound and devastating impact on L.J. as detailed in her Victim Impact Statement and in her mother’s Victim Impact Statement, as summarized above. L.J. has suffered in many aspects of her life- including her education and work. It has worsened her depression and she has engaged in self-harm. It has affected her relationship with family and with men. L.J. suffered a bruise on her thigh during the sexual assault.
[62] The sexual assault was a violent and serious assault that involved multiple actions – including kissing, touching her thighs and breasts in a sexual manner, forced digital penetration of her vagina, forced oral sexual intercourse and forced vaginal intercourse, all against L.J.’s will and without her consent.
[63] The sexual assault occurred when another male was in the backseat of the car, which violated her personal dignity even further.
[64] In addition to these aggravating factors, the Crown has submitted that I find as further aggravating facts 1) that A.H. choked L.J. during the sexual assault and 2) that A.H. ejaculated inside L.J. during the forced vaginal penetration.
[65] Section 724(2) of the Criminal Code provides as follows:
(2) Where the court is composed of a judge and jury, the court
(a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty; and
(b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.
[66] Section 724(3)(e) provides that the Crown “must establish by proof beyond a reasonable doubt, the existence of any aggravating fact…” The two alleged facts set out above are not essential to the jury’s verdict of guilty and therefore the Crown must establish these facts beyond a reasonable doubt. I do not find that the Crown has done so.
[67] With regard to the alleged choking, in his testimony A.H. denied that he ever squeezed L.J.’s neck. L.J. testified that A.H. started grabbing her throat with one hand and at first was holding her throat and later squeezing it. She could still breathe but there was force. She confirmed that there were no marks on her throat. The Crown has not established beyond a reasonable doubt that A.H. choked LH.
[68] In her examination in-chief, L.J. testified that she didn’t think that A.H. ejaculated in her. In cross, she said that when the vaginal intercourse ended, she didn’t know if A.H. had ejaculated. A.H. in cross-examination denied ejaculating inside of L.J.’s vagina. Ms. Polley, an expert called by the Crown, testified in-chief, that A.H.’s semen found in a sample taken high up in L.J.’s vaginal cavity was deposited by internal ejaculation, or an object covered in semen, and not from pre-ejaculation. The quantity of sperm is indicative of this. In cross-examination, she acknowledged that there are many variables and that there are factors that determine sperm levels- personal health, frequency of masturbation, hydration, overall health, nutrition, and genetics. I am unable to conclude that the Crown has established beyond a reasonable doubt that A.H. ejaculated in L.J.’s vagina.
VIII. PRINCIPLES OF SENTENCING
[69] In determining a just sentence, I must consider the purpose and principles of sentencing as set out in sections 718, 718.1 and 718.2 of the Criminal Code. The sentence must denounce and deter the unlawful conduct. It must be proportionate to the gravity of the offence and the degree of responsibility of the offender. It must take into consideration any relevant aggravating or mitigating circumstances. It should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
[70] As set out in section 718.2(d) “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances.”
[71] Section 718.2(e) provides that “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to the victims or the community, should be considered for all offenders…”
IX. ANALYSIS
[72] This was a jury trial. As such, for the purpose of this sentencing, I must make my own assessment of the evidence to arrive at a factual foundation. Pursuant to s. 724(2) of the Criminal Code, I accept as fact the description of the offence set out at paras. 2 and 3 above. I am not satisfied that the Crown has established the two additional aggravating facts as requested, for the reasons set out above.
[73] As set out at para. 77 of A.J.K., the Court of Appeal has stated that “[a]bsent some highly mitigating factor, the forced penetration of another person will typically attract a sentence of at least three years in the penitentiary.” The Court of Appeal, in the same paragraph referred to the range of 3 to 5 years as set out in Bradley, observing that there will be circumstances where a departure from the range is appropriate.
[74] I find that A.H.’s youth (18 years of age at the time of the offence) and that he is a first-time adult offender are “highly mitigating” factors. This is consistent with paragraph 165 of Hills and paragraph 36 of Borde. As a result, I am sentencing A.H. to a sentence moderately below the range to reflect his youth.
[75] The sentence imposed reflects that the sexual assault in this case was serious and violent and has had a profound impact on L.J.
[76] The sentence imposed reflects the goal of rehabilitation of A.H. and at the same time, is proportionate to the gravity of the offence. The sentence is the shortest possible sentence that reflects the seriousness of the sexual assault and the goal of rehabilitation. The Pre-Sentence Report and the letters filed on the sentencing hearing reflect the possibility of rehabilitation. The sentence also reflects the principle of restraint.
[77] This sentence reflects the principle of parity. In D.M. the offender was sentenced to two years imprisonment. D.M. was convicted of a sexual assault occurring on the same night as A.H., against the same complainant. While all sexual assaults are serious, the facts in the D.M. case were less grave than in this case. A.H. is sentenced to a higher sentence than D.M. to reflect this.
[78] Conditional sentences are available in sexual assault cases. As set out at paragraph 4 of R.S. “[c]onditional sentences will rarely, if every, be proportionate in the context of violent sexual assault cases.” This was a violent sexual assault with several aggravating factors. Even with A.H.’s youth, given the severity of the offence, a conditional sentence is not appropriate. A conditional sentence is only available for a sentence of less than two years. A sentence of two years less a day is not an appropriate sentence in this case of a violent and serious sexual assault involving multiple violations of L.J.’s integrity. There is nothing unique in this case that would warrant a conditional sentence. A conditional sentence was rejected by Conlan J. in D.M. for the reasons set out at paragraphs 37 and 38. These reasons are applicable to this case.
[79] A.J.K. reflects the current state of the law in Ontario. A.H.’s youth and that he is a first offender are highly mitigating factors that must be balanced with the aggravating factors outlined above and the seriousness of the offence.
[80] As set out at paragraph 28 of D.M., in the circumstances such as this case, the court must explore all other dispositions before imposing a custodial sentence. I have done so. The circumstances of the offence are serious and no sentence other than a custodial sentence are appropriate. Further, for the reasons set out above, a custodial sentence permitted to be served in the community is not appropriate.
[81] Based on all of the above, I sentence A.H. to 30 months in custody.
X. CONCLUSION
[82] Given the sentence imposed, the victim fine surcharge is hereby waived.
[83] A.H. is sentenced to 30 months incarceration for the sexual assault of which he was found guilty.
[84] I make the following ancillary orders:
- An order authorizing the taking of the number of samples of bodily substances from A.H. that are reasonably required for the purpose of forensic DNA analysis. Sexual assault is a “primary designated offence” under section 487.04 clause (a) of the definition and as such the order is mandatory (section 487.051(1)).
- An order pursuant to section 109(1)(a) of the Criminal Code for 10 years.
- A SOIRA order for a duration of 20 years pursuant to section 490.013(2)(b) of the Criminal Code.
- An order pursuant to section 743.21(1) of the Criminal Code prohibiting A.H. from communicating directly or indirectly, with L.J., during the custodial period of this sentence.
Justice K. Coats. Released: May 17, 2024