Court File and Parties

COURT FILE NO.: CR-22-00000022-0000 DATE: 20240628 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – ALEX CLARKE Defendant

Counsel: William Barnes, for the Crown Andrew Knott, for the Defendant

HEARD: May 14, 2024

REASONS FOR SENTENCING REGIONAL SENIOR JUSTICE EDWARDS

Overview

[1] Mr. Clarke was convicted, in a judge alone trial, of one count of sexual assault involving S.A., who was an acquaintance from high school. The court rejected Mr. Clarke’s evidence that S.A. had consented to the sexual activity. Over the course of approximately three minutes, Mr. Clarke’s actions went from an unwanted kiss to attempted penial penetration. These reasons explain the sentence to be imposed upon Mr. Clarke.

Mr. Clarke’s Personal Background

[2] Mr. Clarke was born on September 6, 2000, and, as such, at the time of sentencing is approximately 24 years of age. He was 19 at the time of the assault.

[3] The presentence report reveals that Mr. Clarke is presently in a relationship of approximately 18 months with his current partner with whom he has been living for approximately one year. The individual, with whom Mr. Clarke is presently living describes Mr. Clarke in positive terms. It does not appear that his present partner is aware of the details of the events that gave rise to Mr. Clarke’s conviction. Mr. Clarke’s present partner indicates that there has been no emotional, physical, or sexual abuse within their relationship.

[4] Mr. Clarke appears to have had a good relationship with his mother. Unfortunately, his mother passed away in October 2023. The presentence report indicates that, for the most part, Mr. Clarke was brought up by his grandparents.

[5] Mr. Clarke has a high school education and has worked at various jobs since his graduation.

[6] As is his right, Mr. Clarke is noted in the presentence report as being cooperative and polite but does not accept responsibility for what occurred in June of 2020. The author of the presentence report indicates that Mr. Clarke does not know how to open up about the events to his family and, as such, they were unaware of the nature of the offence.

[7] Mr. Clarke comes before this Court with no prior criminal record.

Position of the Crown

[8] Crown counsel seeks a sentence in the range of 3.5 to 4 years as well as a firearms prohibition for 10 years, and requirement to register with the sex offender’s registry for 20 years.

[9] Mr. Barnes refers the court to the Court of Appeal decision in R. v. A.J.K., 2022 ONCA 487, which establishes a range of 3-5 years, as it relates to penetrative sexual assaults.

Position of the Defence

[10] Mr. Knott, on behalf of Mr. Clarke, expresses extreme embarrassment as to how his present circumstances may now impact his partner and other members of his family, including his grandmother. Mr. Knott suggests there are no concerns raised as it relates to any unhealthy relationships that Mr. Clarke might have or is presently involved in. On a further note, there are no drug or alcohol issues.

[11] While acknowledging the range of sentence set forth in the jurisprudence and, in particular A.J.K., Mr. Knott argues that this court should impose a sentence at the lowest end of the range recognizing that Mr. Clarke is a first offender.

[12] Subsequent to the oral sentencing submissions, counsel have brought to my attention a decision of the Court of Appeal in R. v. E.N., 2024 ONCA 472. This decision involved a conviction appeal by the accused and a sentence appeal by the Crown. The sentence imposed by the trial judge was two years less a day, in relation to what is described as forced vaginal intercourse and attempted anal intercourse. The Court of Appeal refused to interfere with the decision of the trial judge, and, by inference, this Court assumes that the defence argues that E.N. stands for the proposition that a sentence, lower than the range of 3-5 years set forth in A.J.K., might be one appropriate for Mr. Clarke.

The Impact of the Sexual Assault on S.A.

[13] A victim impact statement, Exhibit 1, was filed reflecting the impact of the sexual assault on S.A. Both from a review of the victim impact statement as well as from her evidence at trial, there can be little dispute about how the sexual assault on S.A has impacted her to date, as well as the potential long term impact. It is this Court’s sincere hope that with appropriate professional counseling and the assistance of her friends and family, that S.A. will eventually be able to live a normal life, free and clear of the physical and mental impacts that this assault has had on her to date.

The Mitigating and Aggravating Factors

[14] There are a few, if any, mitigating factors in this case. Mr. Clarke, as is his right, has continued to maintain his innocence and, as such, the absence of a plea of guilty cannot be used by this Court as an aggravating factor. Mr. Clarke has no criminal record.

[15] As for the aggravating factors, I agree with the submissions of the Crown that the evidence at trial established there was some element of planning and forethought, as evidenced by Mr. Clarke’s initial plan to go skinny dipping. The evidence, as found by this Court, reflects that Mr. Clarke’s actions, on the evening in question, reflected what he wanted in order to satisfy his own self gratification.

The Sentencing Principles

[16] The sentencing principles are set forth in s. 718.1 and s. 718.2 of the Criminal Code (the “Code”). The Court is required to impose a sentence that is proportionate to the gravity of the offence and to the degree of responsibility of the offender. The ultimate sentence the Court imposes must be increased or decreased to take into account any relevant or aggravating mitigating factors as they relate to the offence or the offender.

[17] As it relates to sexual offences, the Supreme Court of Canada in R. v. Friesen, 2020 SCC 9, at para. 89, has made it clear that the moral blameworthiness of an offender is high because the offence involves the wrongful exploitation of the victim by the offender.

[18] In sentencing someone convicted of sexual assault the Court must also denounce the conduct and deter likeminded individuals in committing such offences. This is clear from a review of the Supreme Court of Canada decision in R. v. Goldfinch, 2019 SCC 38, where the court makes it clear that in sentencing someone convicted of sexual assault the sentence must reflect the harm that the sexual offence had done, not only to the complainant, but also to the community at large.

[19] As it relates to the range of sentence for cases of sexual assault, of particular note are the comments of Fairburn ACJO in A.J.K., at para. 74, where she stated:

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.

[20] Subsequent to A.J.K., the Court of Appeal rendered its decision R. v. R.S., 2023 ONCA 608.

[21] In his reasons, Huscroft J. noted as follows:

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.

[22] Counsel has provided to the court a number of cases which counsel readily concede reflect various sentences within the range suggested by the Court of Appeal in A.J.K..

[23] In R. v. J.D., 2024 ONCA 286, another very recent case of the Court of Appeal, the accused had been convicted of sexual assault, the details of which involved the accused touching the breast of his wife’s 18-year-old niece, as well as digitally penetrating her vagina without her consent. The trial judge imposed a sentence of three years. In dismissing the sentence appeal, the Court of Appeal stated at para. 20 as follows:

We see no error in the trial judge’s rejection of a conditional sentence or his imposition of a sentence of three years imprisonment. Absent some highly mitigating factor – which was not present in this case – the forced penetration of another person will typically result in a sentence of at least three years imprisonment: R. v. A.J.K., 2022 ONCA 487, at para. 77. It is impermissible to impose unfit sentences to avoid statutory immigration consequences: R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at paras. 14-16.

The Appropriate Sentence

[24] It was conceded by Mr. Knott, in oral submissions, that the range of sentence submitted by the Crown fell well within the range that has been suggested in the various appellate decisions referenced above and, in particular, the decision of the Court of Appeal in A.J.K..

[25] Having received the recent decision of the Court of Appeal in E.N., I accept that there may be circumstances where the Court can impose a sentence below the suggested range of 3-5 years where a sexual assault has occurred involving digital and/or penal penetration.

[26] In E.N. it would appear that the trial judge took into account mitigating factors in his application of the principles of restraint and rehabilitation for a youthful first offender with family support.

[27] The Court of Appeal in E.N. acknowledged that the sentence imposed by the trial judge was lower than the 3-5 year range articulated in A.J.K., but ultimately concluded that the trial judge had provided adequate reasons for a “slight downward departure” from the 3-5 year range and, as such, the sentence was owed significant deference on appellate review.

[28] In Mr. Clarke’s case, while not a youthful offender at the time of the offence, he was relatively young, about to graduate from high school. Mr. Clarke undoubtedly does have rehabilitative potential, although his failure to articulate the circumstances of this case with his present partner and members of his family causes the court some concern in terms of his ability to address his needs for rehabilitation.

[29] As reflected in my Reasons for Conviction, Mr. Clarke had no concern for S.A. when over the course of three minutes his actions demonstrated nothing more than an urge to satisfy his own personal sexual gratification. The Court must denounce such conduct in the clearest of terms. The impact on S.A., and other victims of sexual assault, requires this Court to send a clear message that unwanted sexual advances leading to digital, partial, or full penetration will carry with it their consequences.

[30] Reflecting all of the sentencing principles, and the facts of this case, in my view, the appropriate sentence to impose on Mr. Clarke is one of 3 years in the penitentiary. The ancillary orders requested by the Crown are also imposed.

REGIONAL SENIOR JUSTICE EDWARDS Released orally on: June 28, 2024 Written Reasons released on: July 2, 2024