R. v. C.G., 2024 ONSC 6699

COURT FILE NO.: CR-247-21

DATE: 2024/12/02

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

C.G.

Defendant

Cara Douglas, for the Crown

Edmund Chan, for the Offender

HEARD: May 14, 2024

RESTRICTION ON PUBLICATION

By court order made under s. 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of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner.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.

REASONS FOR SENTENCE

JUSTICE I.F. LEACH (ORALLY)

Introduction

[1] On March 1, 2024, following a five-day trial by judge alone that took place in June and July of 2023, I found C.G. guilty of having committed two sexual assaults, contrary to section 271 of the Criminal Code of Canada; i.e., “the Code”.

[2] The first sexual assault was committed in November of 2019, and the second in January of 2020. In relation to each offence, the victim was A.S., (“A.”), the daughter of the woman who was the intimate partner of Mr G. at the time of the two sexual assaults. A. was born in February of 2001, and therefore was 18 when Mr G. committed each sexual assault.

[3] Following the rendering of my judgment on March 1, 2024, I directed the preparation of a pre-sentence report pursuant to section 721 of the Code, and the matter was adjourned to May 14, 2024, for the receipt of sentencing submissions.

[4] On May 14, 2024, (by which time I had been supplied with the aforesaid pre-sentence report and nine attached letters of reference, all of which collectively were marked as an exhibit on the sentencing hearing), I received counsel submissions, as well as copies of further material tendered by Crown counsel and counsel for Mr G. In particular:

a. Crown counsel presented me with a Victim Impact Statement prepared by A., who was unable to attend the hearing in person owing to travel commitments associated with her current employment. Her prepared statement nevertheless was read aloud in court by Crown counsel, and marked as a further exhibit.

b. Crown counsel also presented me with a Crown Sentencing Book of Authorities; a brief containing authorities emphasizing certain general principles of sentencing in relation to such matters, but also suggesting examples of analogous or “benchmark” authorities that might lend assistance, for purposes of comparison, in relation to parity of sentencing. In relation to the latter, a suggested summary of the three cases relied upon by Crown counsel was set forth in a “Sentencing Chart” prepared by Crown counsel, and included in the same brief.

c. Counsel for Mr G., (in addition to relying on seven of the nine letters attached to the presentence report by its author), presented me with an opinion letter, dated May 13, 2024, which had been prepared by John Abrams; i.e., a lawyer, based in Hamilton, Ontario, who for many years has developed a practice focused exclusively on criminal and immigration law, with a special interest in how those two areas of Canadian law intersect with each other. In that letter, (which was marked as a further exhibit), Mr Abrams outlined the possible and perhaps probable immigration consequences likely to be faced by Mr G., as a result of his two sexual assault convictions.

d. Finally, (by way of material presented for my consideration during the sentencing hearing), counsel for Mr G. submitted three additional cases for my consideration; i.e., as further suggested examples of analogous or “benchmark” authorities for purposes of comparison, in relation to parity of sentencing. Those were accompanied by a suggested summary of those cases, prepared and submitted by counsel for Mr G.

[5] All concerned were agreed that Mr G. had no criminal record for presentation or consideration. It was also agreed that Mr G. had spent no time in presentence custody in respect of which he needed to be given any credit towards any custodial sentence I might impose; e.g., pursuant to subsection 719(3) or subsection 719(3.1) of the Code.

[6] After the completion of sentencing submissions from counsel, Mr G. was asked, pursuant to section 726 of the Code, if he wanted to make any direct comments to me prior to imposition of sentence. He declined the opportunity.

[7] The matter then was adjourned to November 15, 2024, (the first available hearing date), for imposition of sentence and delivery of my associated reasons in that regard. As my attendance that day was prevented by illness, the matter then was rescheduled to today.

Circumstances of the offences

[8] The circumstances underlying the offences in respect of which Mr G. has been convicted were outlined in extensive detail during the course of my trial decision.

[9] While I have regard to all of those underlying circumstances in arriving at an appropriate sentence for the crimes committed by Mr G., I will not repeat all of that previously provided information in its entirety here. My trial decision instead should be read together with this one.

[10] For ease of reference, however, and only by way of an abbreviated summary, I note that those underlying circumstances included the following:

a. After being born on the island of Grenada, A. was placed for adoption by her birth parents, adopted, and brought to Canada by her adoptive mother R.S.; an individual, 29-30 years older than A., who also had been born in Grenada but had emigrated to Canada many years earlier.

b. A. and her adoptive mother initially lived together in the city of Toronto, but relocated here to the city of London when A. was seven or eight years old, in connection with a change in the employment of R.S. Despite apparently having relatives in the Toronto area, R.S. generally continued to act as a single parent in the raising of A., who proved to be a hard-working, outgoing and extremely personable child, gifted with extraordinary intelligence and athletic ability.

c. Mr G. entered A.’s life when he began dating A.’s mother in 2015 and came to live full time and then part time in the same residence as A. and her mother. In particular:

i. Mr G., (who was 18-19 years older than A.), had spent much of his life in his native Jamaica, but had come to Canada, via a farm program and work permit, to live and work on a farm in Thamesford, Ontario.

ii. Mr G. and R.S. made contact with each other through an online dating application. Their initial electronic communications progressed to in-person meetings, and to Mr G. then repeatedly visiting the London home A. shared with her mother. By the summer of 2015, (when A. was about to start grade nine and her high-school education), the relationship between Mr G. and A.’s mother had progressed to the point where Mr G. was visiting and staying overnight at that home from time to time, sharing its master bedroom with A.’s mother.

iii. By September of 2015, the temporary farm employment of Mr G. had come to an end, and A.’s mother agreed to assist Mr G. with efforts to apply for immigration status allowing him to remain in Canada instead of returning to Jamaica. He then began living at the London home of A. and her mother on a constant basis for a time. He nevertheless did so only for a month or so, during which time he was unable to obtain any work here in London. That in turn prompted his relocation to the city of Toronto, where he had a cousin with whom he could stay, as well as the opportunity to engage in construction work and save money; money that, in turn, would enable his completion of a training program offered by a truck driving school. In the result, he relocated his primary residence to Toronto, (and the home of his cousin in particular), while still visiting London and the residence of A. and her mother every weekend or every other weekend. That arrangement, (i.e., of Mr G. visiting and staying at the London home of A. and her mother only on an intermittent basis, and usually on weekends), thereafter continued for the next several years; i.e., as Mr G. continued to reside primarily in Toronto, and engage in truck-driving employment based in Toronto that nevertheless frequently required him to travel long distances across Canada.

d. After being welcomed into the lives of A. and her mother, Mr G. made a concerted and sustained effort to develop a close and parental relationship with A. He made her breakfasts. He made determined efforts to engage her in conversation. He took her shopping and bought her expensive items she and her mother otherwise could not afford, and regularly provided her with spending money. He attended her sporting events. He drove her to and from her part-time workplace at a fast-food restaurant. He bonded with her through playing games and watching television together, and through conversations about his own young biological daughter, who was still living in Jamaica. He provided her with driving lessons. He encouraged her to take him into her confidence, especially in relation to private discussions about challenging interactions she was having with her loving but often strict, domineering and/or controlling mother. In a manner kept from A.’s mother, (as her mother would not have approved), Mr G. also provided A. with alcohol, and the financial means to go on outings with friends. Through these and other actions, the relationship between Mr G. and A. acquired a status, by the time of the sexual assaults, wherein he admittedly was A.’s stepfather, regarded her as his stepdaughter, and indeed looked on A. in the same way as his own biological daughter in Jamaica.

e. By the time of the sexual assaults Mr G. committed in November of 2019 and January of 2020, A. had completed her high-school studies with great and formally recognized distinction, had secured entry into a highly competitive program at Western University, and had embarked on those first year university studies in a successful way, all while continuing to live in her mother’s London home and working hard at a part-time job in the fast food industry as a necessary means of funding her post-secondary education. A. similarly regarded Mr G. as her stepfather, and not only supported his ongoing relationship with her mother, but also his efforts to permanently immigrate to Canada; e.g., by A. writing formal letters of support, emphasizing the profoundly positive and supportive impact Mr G. had had on her life up until then. At the same time, Mr G. had continued his relationship with A.’s mother, while visiting and residing intermittently in the same London residence, usually on weekends. As A.’s mother was committed to doing demanding shift work for her employer, (including shifts that required A.’s mother to leave the home early in the morning and work long hours, not only on weekdays but on Saturdays as well), A. and Mr G. frequently would be left alone together in that London residence.

f. Matters nevertheless took a deeply sinister turn with the first sexual assault committed by Mr G. in November of 2019. In that regard:

i. A. found herself struggling with a difficult personal dilemma, when she realized that she had left a lighter, (used by A. to regularly smoke marihuana in a manner deliberately kept secret from her mother, who was known to strongly disapprove of such activity), in a shared bathroom where it would have been noticed by her mother before her mother had left for work. Fearing what would happen when her mother came home from work and inevitably started asking questions in that regard, A. proactively reached out to Mr G. by telephone, in confidence, asking if he could assist by telling A.’s mother that the lighter was his; i.e., such that her mother would not learn the truth about A.’s use of marihuana.

ii. In response, Mr G. indicated that he would assume responsibility for the lighter as requested, and continued onward to the London residence, where A. was alone and still anxious about the incident. In the course of ensuing interaction and conversation with A., Mr G. then unexpectedly and shockingly turned the discussion in an unwanted direction by telling A. that he found her physically attractive, (e.g., that he had been thinking about her in the dress she wore at her recent high-school graduation ceremony), and that it would be okay for them to have sex together secretly now that she was 18, despite his ongoing relationship with A.’s mother. Despite A. making it clear through her actions and words that she wanted no such relationship with Mr G., attempting to put distance between herself and Mr G., and otherwise attempting to resist his advances, Mr G. then:

1. walked up behind and towards A. in the kitchen of the London residence, and deliberately turned A. around to face him;

2. planted his lips on her lips to kiss her on the mouth;

3. repeatedly tried to grab A. by the wrist and/or arms and eventually succeeded in doing so, in a manner he then used to walk her from the kitchen to a couch in the nearby living room, onto which he directed her to lay down;

4. climbed on top of A. for the first time, after which he began kissing her again, on her lips, cheeks and neck, while also intermittently placing a hand on her chin to hold her head in place and prevent her from turning her head from side to side to avoid his kissing of her;

5. after briefly getting up from on top of A., (to remove his pants and allow A. to comply with his direction to remove hers), once again resumed his kissing of A., proceeding lower down her torso to her vaginal area, before removing her underwear, spreading her legs, and engaging in cunnilingus, applying his tongue to her vagina for approximately one to two minutes; and

6. after pausing briefly again to retrieve a condom and put that condom on his erect penis, once again climbed on top of A., after which he resumed his kissing of her on her lips, face and neck before penetrating her vagina with his penis, and engaging in vaginal intercourse with her for approximately 10 minutes until he ejaculated inside her vagina while still wearing the aforesaid condom.

iii. Mr G. then presented A. with $150.00 in cash; a sum that was unusually large compared to the modest amounts of spending money he sometimes gave her.

g. A. did not report that first sexual assault immediately for various reasons, including fear of the possible impact on her mother, (who had endured considerable heartbreak through previous relationships), uncertainty as to whether her mother would believe her, fear that her mother might wrongly think A. had wanted Mr G. sexually, and an unjust feeling that she was partly to blame for the sexual assault insofar as she had been careless in leaving her lighter out for her mother to see, which in turn had prompted her to reach out to Mr G. for help. In the result, A. kept the sexual assault to herself, as she was obliged to continue enduring the intermittent presence of Mr G. in her home, his ongoing intimate relationship with her mother, and his further unwanted sexual advances, including very overt efforts in that regard during his return to the London residence in December of 2019, described in my earlier judgment. In the meantime, A.’s emotional state and behaviour began what she later described as a “dark spiral” downwards; a spiral discussed in more detail below.

h. As noted above, Mr G. then committed his second sexual assault on A. in in January of 2020. In particular, after A.’s mother had left for work in the early morning hours of a Saturday morning, A. woke to find Mr G. entering her bedroom and bed. Despite A. making it clear through her actions and words that she had no desire to engage in physical activity with Mr G., wanted him to leave, and was otherwise attempting to resist his advances, Mr G.:

i. embraced A. by placing his arms around her, while also trying to put his left hand between her legs;

ii. kissed A. on the lips and neck, and on her torso above her clothing, while using his hands to caress the inside of her legs and the area between them;

iii. pulled down and took off the shorts A. had been wearing, before then using his erect penis to penetrate her vagina without use of a condom;

iv. engaged in vaginal intercourse with A. for approximately five to 10 minutes, during which he used his hands to rub and move/bend her legs to facilitate his penetration, once again kissed her on the lips and neck while using a hand to grab her chin and hold her head in place, (to prevent her from moving it from side to side in efforts to avoid his kissing), and at one point used a hand to fully grasp her neck with moderate force in a chokehold, (albeit only with moderate force that did not prevent A. from breathing), while thrusting his penis into her vagina even harder;

v. terminated his vaginal intercourse before ejaculating inside A., saying that he refrained from doing so because he did not want to get her pregnant; and

vi. thereafter insisted on handing A. another $100.00 in cash, (a sum once again exceeding the amounts of spending money he usually provided to her), despite A.’s repeated indications that she did not want his money.

i. A. also did not report that second sexual assault immediately; i.e., for reasons similar to those which delayed her reporting of the first sexual assault. She instead felt obliged to continue enduring the ongoing involvement of Mr G. in her life, and his intermittent presence in her home, despite his ongoing sexual advances. Those advances included Mr G. sending A. pornography, and repeatedly indicating, (via communications reflected in preserved text messages and video recordings), that he wanted to have more sex with A.; that he saw nothing wrong with having her as a secret sexual “side thing” or “side piece” whom he knew to be “clean”, while continuing his ongoing intimate relationship with A.’s mother; and that he would provide A. with various further sums of money and/or loan forgiveness, (in relation to money she secretly had borrowed from Mr G. to pay for property damage inflicted via a car accident she wanted to keep from her mother), in exchange for her engaging in further sexual activity with him. At the same time, Mr G. was expressly indicating and emphasizing to A. that she would not be believed if she reported the sexual abuse to her mother.

j. In the meantime, A.’s “dark spiral” downwards continued, including a serious but fortunately unsuccessful attempt by A., in January of 2021, to commit suicide by slitting her wrists. Shortly thereafter, in circumstances described at length in my earlier judgment, A. finally disclosed the sexual assaults to a close and supportive family friend, who in turn reported the sexual abuse to the police and A.’s mother.

k. The relationship between A. and her mother thereafter nevertheless continued to decline, to the extent that A. felt obliged to leave her mother’s home in September of 2021, since which time there apparently has been no further communication whatsoever between A. and her mother, or other members of her mother’s family. A. also felt unable to continue with her studies at Western University, and dropped out of her program there.

[11] With those introductory comments, and that outline of the circumstances underlying the offences of Mr G. in mind, I now return to my current task of determining the appropriate sentence Mr G. should receive in relation to his two sexual assault convictions, in respect of which he has not yet spent any time in custody.

Circumstances of the offender

[12] The personal circumstances of Mr G. were outlined to some extent during the course of trial, but information in that regard was supplemented by the pre-sentence report, letters of reference and legal opinion letter from Mr Abrams, all of which I mentioned earlier, as well as submissions I received from counsel for Mr G.

[13] In that regard, I nevertheless will note at the outset, (in terms of my description of the personal circumstances of Mr G.), that some of the content of the pre-sentence report seemed contradictory, inaccurate or otherwise questionable. In particular:

a. While the author of the report felt that Mr G. was polite and cooperative but “not forthcoming with information”, (e.g., insofar as Mr G. was said to have refrained from offering very much information or details in relation to his personal and family life), the report contains indications regarding his family history, upbringing, education and work history; information that inherently seem likely to have been supplied by Mr G., insofar as it predated his association with others who had spoken with the report’s author and/or provided letters of reference and support. Moreover, as emphasized by counsel for Mr G. and not denied by Crown counsel, it was Mr G. himself who solicited, obtained and provided those letters directly to the author of the presentence report; i.e., without the involvement of defence counsel.

b. At various points in the pre-sentence report, its author indicates a fundamentally incorrect understanding that the two sexual assault convictions of Mr G. resulted from Mr G. entering guilty pleas on the advice of his lawyer. There were no such guilty pleas in this case. As noted earlier, and as my earlier judgment makes clear, Mr G. entered pleas of “not guilty” in relation to both counts of the underlying indictment, and was found guilty in relation to both counts after a trial by judge alone. There accordingly were no guilty pleas to be taken into account, (e.g., as a mitigating consideration), in relation to his sentencing.

c. The pre-sentence report erroneously indicates that Mr G. fathered his first child at the age of 20, whereas it was indicated through counsel for Mr G. that he actually first became a father at the age of 27.

d. At one point, the author of the pre-sentence report seems to doubt the veracity of the indicated work history of Mr G.; i.e., noting and apparently emphasizing that Mr G. had failed to supply any proof of his truck driving employment in Canada. As I noted during the course of counsel submissions, I nevertheless think any failure of Mr G. to provide documentary proof of such employment in the usual manner, (e.g., via T4 slips, pay stubs and/or a written record of employment from his employer), is understandable in the circumstances; i.e., given the other indications I received that Mr G. has been engaging in such work despite his immigration status, and his not having a formal work permit allowing him to engage in any such employment in Canada. In other words, it seems that Mr G. has been engaged in such unauthorized employment “off the books”, (to use the vernacular), in circumstances where his employer no doubt would be reluctant to provide written confirmation in that regard. During the course of the trial, A.’s testimony provided independent confirmation that Mr G. was engaged in such truck-driving employment, and I accept that he was.

[14] Before going on to outline the personal circumstances of Mr G., I also note that the reference letters supplied by D.W. and R.W. are problematic. In that regard:

a. On the face of their letters, both gentlemen profess to be friends of Mr G.

b. I nevertheless note that neither lives here in Canada; e.g., with Mr D.W. expressly indicating that he now resides in Florida, (after retiring from 17 years of work with the Jamaica Constabulary Force), and Mr R.W. implicitly indicating that he too is a former resident of Jamaica, (insofar as he professes an ability to speak to the conduct of Mr G. in that country), who nevertheless also now lives in Florida, insofar as he does not indicate a residential address but provides a personal telephone number with a Florida area code. As Mr G. apparently has remained in Canada since his arrival here on a temporary work permit in 2014, (since which time he repeatedly has been trying to obtain landed immigrant status), his contact with Mr D.W. and Mr R.W. seems likely to be significantly dated, and/or limited to remote contact over the past 10 years.

c. As noted by Crown counsel and conceded by counsel for Mr G., the letters from Mr D.W. and Mr R.W. also contain improper submissions essentially indicating lack of awareness that Mr G. has been tried and convicted, and denying the established guilt of Mr G. in relation to the two underlying sexual assaults; e.g., with Mr D.W. indicating a belief that the charges against Mr G. were “wrong and malicious” and/or the result of “confusion”, such that they should be dismissed, and Mr R.W. contending that the “right decision” needs to be made because Mr G. is “not an offender or sex offender”.

d. In the circumstances, counsel for Mr G. expressly indicated that he was not emphasizing or relying upon the letters provided by Mr D.W. and Mr R.W. I nevertheless still have regard to their indications that Mr G. exhibited various forms of prosocial conduct during their previous interactions with him.

[15] With the above caveats, I have reviewed and considered all of the information provided to me, in relation to the personal circumstances of Mr G., but note for present purposes that it includes the following indications:

a. He was born in Jamaica on a specified date in December of 1983, making him 36 at the time of his first sexual assault of A., 37 at the time of his second sexual assault of A., and 40 at the time of sentencing.

b. Although there is no precise indication as to the number of siblings Mr G. had or has, he is said to have been “the youngest child” born to his parents, who were his primary caregivers as he grew up in Jamaica. His parents apparently were both “very hard-working people”, (e.g., with his father running his own clothing business while also occasionally working in construction, and his mother working as a seamstress), such that they were able, through their combined income, to provide Mr G. with a “comfortable lifestyle” in a safe and stable home environment. In particular, Mr G. feels that his parents provided him with a “healthy upbringing” that was “normal”, characterized by “good family values”, and never involved Mr G. experiencing any form of abuse or neglect. To the contrary, his family apparently was a close and supportive one, which socialized and spent holidays together, and with other extended relatives and friends.

c. Mr G. continued to live primarily in Jamaica from 1983 to 2014, achieving a grade nine education, (without ever experiencing any problems in his schooling), and making a living through various forms of employment; e.g., as a farm worker, as a taxi driver, as a city bus driver, and as a vendor of clothing and food that included his purchase and sale of goods which he transported between the nations of Jamaica, Panama and Curacao. During the same period, Mr G. entered into a relationship which produced one child; i.e., a daughter born in 2011. Although his relationship with the child’s mother thereafter ended as a result of her alleged infidelity, with the couple’s daughter thereafter continuing to reside with her mother in Jamaica, Mr G. nevertheless continued and continues to interact regularly with his daughter, (albeit only by telephone after his departure from Jamaica), and still provides her with financial support.

d. Mr G. first arrived in Canada, from Jamaica, in January of 2014. As noted above, that arrival was facilitated by a farm work program that arranged for his entry into Canada on a work permit, and resulted in his working and residing on a farm in Thamesford, Ontario; i.e., a small rural community located approximately 100km to the southwest of London, Ontario, in the county of Chatham-Kent. Shortly thereafter, Mr G. came to know and enter into an intimate relationship with A.’s mother, leading to his initially constant and then intermittent residence at the home of A. and her mother in London, Ontario, (in the circumstances I outlined earlier), while Mr G. secured and thereafter continued his employment as a truckdriver, purchasing his own truck in 2019.

e. In the course of that intimate relationship between Mr G. and A.’s mother, he was said to have maintained a joint bank account with A.’s mother and to have contributed fully to the household expenses of A. and her mother, while A.’s mother formally sponsored no less than three immigration applications on his behalf; applications which allowed Mr G. to secure a number of further work permits, but which nevertheless ultimately were all refused or withdrawn.

f. The intimate relationship between Mr G. and A.’s mother apparently did not survive A.’s disclosure and reporting of his sexual assaults. Although the pre-sentence report suggests the relationship ended in 2019, evidence I received during the trial suggests that the relationship actually continued at least into early 2021; i.e., the time of A.’s disclosure and reporting of the sexual assaults committed by Mr G.) Termination of that intimate relationship between Mr G. and A.’s mother also resulted in A.’s mother withdrawing her third and final sponsored immigration application on behalf of Mr G.

g. Mr G. thereafter apparently has continued to live in Canada and reside in Toronto, while also continuing to work as a truck driver; i.e., without ever having returned to Jamaica, and despite his last Canadian work permit, (providing him with legal authorization to be employed in this country), having expired in January of 2022.

h. At some point in 2022, Mr G. “reconnected” with K.M.; a woman to whom he was first introduced in 2020 through a mutual friend. After dating for a few months, and by the end of 2022, Mr G. moved into the residence of Ms M. and her son from a previous relationship; i.e., a child named N. Mr G. and Ms M. then married in October of 2023. Since that time, Mr G. apparently has assumed an active stepfather role vis-à-vis N., and Ms M. also has experienced a number of pregnancies; i.e., one which sadly ended with the loss of a child in March of 2024, and another which was ongoing at the time of the sentencing hearing before me. Ms M. also sponsored an immigration application on behalf of Mr G., although that has since been withdrawn; not because Ms M. does not continue to love and support Mr G., but because the application apparently was doomed to fail because of his criminal convictions.

i. To his credit, Mr G. has maintained a generally prosocial life, apart from the misconduct that brings him before me now, and he still enjoys significant support from others. Without limiting the generality of the foregoing:

i. Although there were indications at trial of his apparently engaging in recreational use of alcohol and marihuana from time to time, there are no indications that Mr G. has ever experienced any past or present substance abuse issues. Moreover, for the reasons noted in my earlier judgment, in my view use of drugs and/or alcohol by Mr G. had nothing to do with the misconduct giving rise to this proceeding and sentencing.

ii. As noted earlier, Mr G. also has no criminal record, and therefore must be regarded as a first-time offender for the purposes of this sentencing process.

iii. As also noted above, Mr G. actively has maintained various forms of remunerative employment over the course of most of his adult life, and still financially supports his biological daughter in Jamaica, despite their long-distance relationship following his relocation to Canada.

iv. As confirmed by the letters of reference that were provided directly to the author of the pre-sentence report, (and then to me as attachments to that report), Mr G. continues to enjoy the strong support of family and friends, despite their professed awareness of the matters now before the court. In that regard:

1. His spouse Ms M. emphasizes his dedication, hard work ethic, willingness to face challenges, integrity, compassion, strength, kindness and active religious faith. From her perspective, Mr G. is a loving spouse, has a sweet and gentle nature, and has offered significant support to her and her 13-year-old son, (N.M.), to whom Mr G. is now a father figure. In that regard, Ms M. also notes the impact which the loss of their child in March of 2024 had on Mr G., and their family’s shared anticipation of the new child they were expecting at the time of the initial sentencing hearing.

2. In his own letter, N.M. emphasizes that Mr G. has embraced him as his child; e.g., acting as a father figure through the provision of unwavering and patient support, care, comfort, guidance, compassion and love, while supporting N. in his athletic activities and acting as an inspiring role model, in terms of instilling values of integrity, good conduct and respect for others. N. says the absence of Mr G. from his life would be an irreparable loss he cannot bear to imagine.

3. D.D.H., the mother-in-law of Mr G., describes him as an “invaluable presence”, because of his unwavering support, kindness, dedication, care, joy and love, especially vis-à-vis her daughter Ms M. More generally, Ms D.H. emphasizes that Mr G. generally puts the needs of others ahead of his own. She believes him to be a person of integrity and good character, and a positive influence who has enriched her family in many ways.

4. Reverend O.F. is the senior pastor of the church attended by Mr G. He says that Mr G. has actively engaged in that church community through regular participation in its worship services and men’s group, where accountability and mutual support are emphasized. In doing so, Mr G. is said to have embraced principles of honesty, fidelity and integrity, and to have shown resilience and a willingness to persevere. In the result, Pastor F. believes Mr G. to be a man of good character. He fears that incarceration of Mr G. will have significant negative consequences for Mr G. and his family, and the ability of Mr G. to continue making positive changes in his life.

5. L.H. is a counsellor and Family Group Conference Coordinator who has known Mr G. for approximately two years. She feels that Mr G. generally is a person of good character who makes a positive impact on the lives of others; e.g., by consistently demonstrating honesty, integrity, a strong sense of responsibility, kindness, compassion, and a willingness to help others in need. She says Mr G. has expressed “deep regret for the circumstances that led to this court case”, and that she has full confidence in his potential, and his ability to learn from his mistakes and make positive choices going forward. In that regard, Ms H. also emphasizes that Mr G. has committed himself to a “new spiritual walk in his Christian faith”, and what Ms H. describes as a “beautiful” and “blissful” marriage.

6. N.B., who describes herself as a close friend of Mr G. over the past four years, says that he consistently has been a trustworthy, compassionate, caring, friendly and welcoming person during the time she has known him; someone who was “brought up to be respectful towards women”, and who “always strives to do the right thing in all situations”. In the result, Ms B. feels that the “charges” against Mr G. are “completely out of his character” compared to how his friends and family know him to be. She says she also knows that Mr G. has “remorse for his actions and empathy for the victim”, and has transitioned from a previously outgoing person who was always the “life of the party” into someone who is now “very quiet”, and in a “very depressive state since this incident occurred”.

7. O.S., who also describes herself as a close friend of Mr G. over the past four years, describes Mr G. as an “incredible” person, with a “heart of gold”, who consistently demonstrates selfless and inspirational kindness, compassion, empathy, understanding and support towards others. She also emphasizes his willingness to volunteer his time for worthy causes, (including protection of animals and the environment), his spiritual faith, and his general commitment to making a positive impact on the lives of those around him.

8. D.W., who says he has known Mr G. for over 30 years, (albeit with the notable caveats I noted earlier), describes Mr G. as “an honest, hardworking and responsible individual”; a person “always willing to lend a helping hand to those in need”, an “active member of the community” who has assisted with support of the elderly, school programs and police youth clubs, and a person generally of good character.

9. R.W. indicates that he has been friends with Mr G. “over the years”, apparently since Mr G. was just seven years old. He describes Mr G. as someone who, as a role model to others, has been “steadfast”, “conscientious”, “helpful”, law-abiding, and “always motivated to do the right thing”, “at all times”. He also says that Mr G., over the years, previously has helped others, and developing young men in particular, through participation as a leader supporting academic, sporting and other community development activities.

j. Consistent with his pleas of “not guilty”, Mr G. continues, (as is his right), to deny his commission of the underlying misconduct which I found to have been established beyond a reasonable doubt, and to maintain his innocence in that regard. He personally indicated to the author of the presentence report that he does not suffer from depression, suicidal thoughts or any other psychological issues or mental health concerns. While he expresses sadness, embarrassment and shame “at having been charged with the offences”, and apparently now recognizes that he should “not have slept with” A., (something he now characterizes as a “mistake”), the author of the presentence report indicates that Mr G. does not appear to grasp the magnitude or seriousness of his criminal conduct, and also does not express any remorse about any harm thereby caused to A. To the contrary, Mr G. continues to assert that her allegations and testimony at trial were false, and that his admitted sexual activity with A. “did not happen the way she described” and “was not the way she said it”. He also continues to minimize responsibility for his actions and to blame A. for what happened; e.g., by asserting that he never made any “inappropriate gestures” towards A., and that his sexual interaction with A. was justified by her “bringing herself” to him, and/or “coming over” to him. He accordingly does not accept any responsibility for his misconduct, and has expressed no relevant remorse in that regard; factors which generally suggest a lack of insight into an offender’s underlying offensive behaviour, which in turn generally may place an offender in a situation of greater risk of reoffending, with corresponding risk to the community. However, I also note that, although Mr G. continues to assert his innocence and does not take responsibility for his misconduct, he did indicate, to the author of the presentence report, his intention to accept and abide by whatever sentencing terms I considered appropriate.

k. Finally, I note the immigration consequences Mr G. apparently will experience as a result of his criminal convictions resulting from this proceeding, as outlined in the legal opinion letter provided by Mr Abrams. The indications provided by Mr Abrams in that regard included the following:

i. As a citizen of Jamaica who has been in Canada since approximately 2015 on a series of work permits, but the last of which expired in 2022, Mr G. essentially is now a foreign national “without status” here in Canada.

ii. Pursuant to section 36 of the Immigration and Refugee Protection Act, S.C. 2001, c.27, a foreign national in the position of Mr G. is deemed “inadmissible to Canada”, (i.e., on “grounds of serious criminality” or “criminality” according to the relevant legislative provisions), and is therefore subject to deportation.

iii. In the view of Mr Abrams at least, there is “no meaningful appeal” from a deportation order made in such circumstances. In particular, although a judicial review application to the Federal Court of Canada is available, there is “no scope to consider any humanitarian circumstances that might otherwise be mitigating” in relation to such an application, and therefore “little doubt that Mr G. will be deported shortly after finishing his sentence” imposed in relation to this case. It is also very likely that the Canada Border Services will “put a hold on Mr G. once he is sentenced, while they seek a deportation order”; something which, in the opinion of Mr Abrams at least, is “more or less automatic in these circumstances”.

iv. A notable “side effect” of such a deportation order is that Mr G. is “unlikely to be considered for day parole, or in fact any parole before his statutory release date”; i.e., because the Parole Board of Canada is reluctant to parole persons it cannot properly supervise, insofar as such persons are likely to be removed from the Board’s jurisdiction in short order. Moreover, if and when Mr G. is released on parole, he likely would remain in custody in any event pursuant to the immigration “hold” likely to be put in place by the Canada Border Services, as noted above. Although Mr G. would have the right to seek his release from custody pending his removal from Canada, in the opinion of Mr Abrams such a release seems unlikely given the seriousness of Mr G.’ criminal convictions.

v. Once Mr G. is removed to Jamaica following completion of his sentence, in the manner described above, he would need to obtain a “record suspension”, (formerly known as a “pardon”), from Pardons Canada, before being able to apply for any return to Canada. However, the current waiting time for criminal record clearance is 10 years from the completion of sentence. Moreover, the process to secure such a record suspension or pardon then will take approximately 12-18 months to complete. Ms M., as the spouse of Mr G., (if their relationship survives their likely separation resulting from his deportation to Jamaica), then could apply again to sponsor his immigration to Canada. If the spousal relationship between Mr G. and Ms M. does not survive their likely separation resulting from his deportation to Jamaica, Mr Abrams thinks it unlikely that Mr G. will ever be allowed to return to this country, even with a record suspension or pardon. In particular, a person previously deported from Canada requires special permission to return to Canada, (known as an “Authority to Return to Canada”), and such permission is unlikely to be given absent a successful spousal immigration sponsorship.

Position of the Crown

[16] The Crown submits that, having regard to all the circumstances, an appropriate global custodial sentence for the two sexual assault convictions of Mr G. would be six to seven years, to be served in the penitentiary, with the Crown principally suggesting a total custodial sentence of seven years generated by:

a. a custodial sentence of three years being imposed in relation to the first sexual assault committed by Mr G. in November of 2019, addressed by Count 1 of the indictment; and

b. a consecutive custodial sentence of four years being imposed in relation to the second sexual assault committed by Mr G. in January of 2020, addressed by Count 2 of the indictment.

[17] In that regard, it was submitted that imposition of consecutive custodial sentences in relation to the two sexual assault convictions would be appropriate, insofar as the two underlying sexual assaults took place on separate occasions, with no reasonably close nexus between the offending behaviour Mr G. demonstrated in each instance.

[18] It was also submitted that the length of the proposed consecutive custodial sentences being sought by the Crown adequately took into account and reflected considerations of totality. In particular, it was submitted:

a. that such a total custodial sentence would not be “unduly crushing” in the circumstances;

b. that such a total custodial sentence was the “least restrictive” custodial sentence appropriate to the circumstances; and

c. that any further reduction in the custodial sentence to be served by Mr G., in relation to his two sexual assault convictions, would not sufficiently reflect the gravity and moral blameworthiness of his misconduct, nor adequately address the principles of denunciation and deterrence which have primary importance in matters of this nature.

[19] Crown counsel also sought ancillary orders that would include the following:

a. pursuant to subsection (a)(xi.3) of the definition of “primary designated offence” set forth in section 487.04 of the Code, which expressly includes the offence of sexual assault within that definition for the purposes of subsection 487.051(1) of the Code, a mandatory order in Form 5.03, authorizing the taking from Mr G. of the number of samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis;

b. pursuant to subsections 109(1)(a), 109(1)(a.1) and 109(2) of the Code, a mandatory weapons prohibition order for a period of ten years;

c. pursuant to section 743.21 of the Code, a discretionary order prohibiting Mr G. from communicating directly or indirectly, during the custodial period of his sentence, with A.S.; and

d. pursuant to the recently amended provisions of subsections 490.011(1), 490.012(3), 490.013(2)(b) and 490.013(3) of the Code, an order in Form 52 requiring Mr G. to comply with the Sex Offender Information Registration Act, (or “SOIRA”), for life, or for 20 years in the alternative, with the Crown making no further submissions in that regard.

Position of the defence

[20] Counsel for Mr G. generally took no position in relation to the ancillary orders being sought by the Crown, subject to indicating the following in relation to the Crown’s request for a Form 52 order requiring Mr G. to comply with SOIRA:

a. No application was being brought on behalf of Mr G. to establish that the situation fell within either of the exemptions set forth in subsections 490.012(3)(a) or 490.012(3)(b) of the Code, so as to make such an order inappropriate.

b. It nevertheless was submitted that a SOIRA compliance order with a duration of 20 years was sufficient and appropriate in the particular circumstances of this case. Without limiting the generality of the foregoing, it was submitted that the offences committed by Mr G. did not demonstrate or form part of a pattern of behaviour showing that he presents an increased risk of reoffending by committing a crime of a sexual nature; i.e., so as to satisfy the second prerequisite, set forth in subsection 490.013(3)(b) of the Code, for making such a SOIRA order applicable for the duration of Mr G.’s life rather than a period of 20 years. Without limiting the generality of the foregoing, counsel for Mr G. emphasized that the two underlying sexual assaults involved the same victim and occurred in the same general setting and circumstances, without any allegations that Mr G. presented a risk to any other people or persons.

[21] Counsel for Mr G. otherwise focused his sentencing submissions on the duration of the custodial sentence or sentences Mr G. should receive, suggesting that a global sentence of three years in the penitentiary would be appropriate in this case.

[22] In that regard, counsel for Mr G. acknowledged that a three-to-five-year custodial sentence is now the general sentencing range or guideline in relation to a sexual assault involving penetration, and that nothing in the circumstances of this case warranted deviation from that range on an exceptional basis to impose a global custodial sentence less than three years in length.

[23] However, it was suggested that the overall circumstances, precedent, and particular emphasis on the principles of restraint and totality, (insofar as the Crown was seeking the imposition of consecutive sentences), warranted imposition of a global custodial sentence at the lowest possible end of the applicable range; i.e., with a three-year custodial sentence being imposed in relation to each of the two convictions, to be served concurrently rather than consecutively.

Sentencing objectives – Legislative directions and general principles

[24] As emphasized by section 718 of the Code, 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. denunciation of unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

b. deterring the offender and others from committing offences;

c. separation of offenders from society, where necessary;

d. assisting in the rehabilitation of offenders;

e. providing reparations for harm done to victims or to the community; and

f. promotion of a sense of responsibility in offenders, and their acknowledgment of the harm done to victims and to the community by their conduct.

[25] Pursuant to section 718.1 of the Code, a sentence should be proportionate to the gravity of the offence, and the degree of responsibility of the offender.

[26] Pursuant to section 718.2 of the Code, I note that, amongst other considerations, the court is obliged to take into account:

a. that a sentence should be reduced or increased to account for any mitigating or aggravating circumstances relating to the offence or the offender, and without limiting the generality of the foregoing, factors deemed by Parliament to be aggravating circumstances include, pursuant to subsection 718.2(iii.1) of the Code, evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation;

b. that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

c. that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

d. that an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

e. that all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders.

[27] The sentencing objectives outlined above are applicable in relation to all convictions, and I accordingly have them in mind throughout the process of arriving at a just sentence for Mr G., in relation to the offences that bring him before me now.

[28] However, the legislation provides further guidance as to how these general sentencing objectives should be applied in dealing with offences of this particular nature. In particular:

a. pursuant to subsection 718.2(a)(ii) of the Code, evidence that an offender, in committing an offence, “abused the offender’s intimate partner or a member of the victim or the offender’s family” is deemed to be an aggravating circumstance;

b. pursuant to subsection 718.2(a)(iii) of the Code, evidence that an offender, in committing an offence, “abused a position of trust or authority in relation to the victim”, is deemed to be an aggravating circumstance; and

c. section 718.04 provides that, when a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances, (including but not limited to vulnerability because the person is female), the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.

[29] Beyond such legislative directions, I have regard to judicial authority offering further guidance on how sentencing generally should be approached in relation to such matters.

[30] This includes frequently repeated indications that, having regard to the inherently serious and violent nature of sexual assault, (underscored by its express inclusion within the Code’s section 752 definition of “serious personal injury offence”), and its unfortunate frequency, considerations of denunciation and deterrence usually are paramount in this context. See, for example, R. v. Wells, [2000] 1. S.C.R. 207, at paragraphs 25 and 47-48.

[31] However, the need for our courts to pay greater attention to the gravity and serious consequences of sexual assault, particularly in relation to women who are victims of the offence, has been the subject of repeated appellate court emphasis in recent years.

[32] For example, writing for a majority of the Supreme Court of Canada in R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, Justice Moldaver began his decision by noting, (in paragraph 1), that we live in a time where myths, stereotypes and sexual violence against women are tragically common; that our society has yet to come to grips with just how deep-rooted such issues truly are and just how devastating their consequences can be; and that eliminating such myths, stereotypes and sexual violence against women undoubtedly is one of the more pressing challenges we face as a society. While acknowledging that serious efforts were being made by a broad range of actors to address and remedy such failings within the criminal justice system and throughout Canadian society more broadly, Justice Moldaver also emphasized that all concerned can and must do better.

[33] Less than a year later, the need to address sexual violence in a more thoughtful and serious way was emphasized again by a unanimous Supreme Court of Canada in R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424. Although focused primarily on the imposition of sentences that fully reflect and give effect to the profound wrongfulness and harmfulness of sexual offences against children, numerous observations made in the course of the decision have more general import, in relation to sentencing for sexual offences, and include the following:

a. Young women are among those disproportionately victimized and impacted by sexual offences. The intersecting inequalities of being young and female makes them especially vulnerable to sexual violence. (See R. v. Friesen, supra, at paragraphs 54 and 68.)

b. Courts should be mindful of a larger shift in societal understanding that the focus of sexual offences should not be on sexual propriety but on wrongful interference with sexual integrity. That shift in focus facilitates greater emphasis on violations of trust, humiliation, objectification, exploitation, shame and loss of self-esteem rather than simply, or only, on deprivations of honour, chastity or bodily integrity. That emphasis on personal autonomy, bodily integrity, sexual integrity, dignity and equality in turn requires courts to focus their attention on emotional and psychological harm, and not simply on physical harm. (See R. v. Friesen, supra, at paragraphs 55 and 56.)

c. Courts also need to recognize that all forms of sexual violence are morally blameworthy because they involve the wrongful exploitation of the victim by the offender; i.e., because the offender is treating the victim as an object and disregarding the victim’s human dignity. In that regard, courts must give proper weight in sentencing to the offender’s underlying attitudes because they are highly relevant to assessing the offender’s moral blameworthiness and to the sentencing objective of denunciation. (See R. v. Friesen, supra, at paragraph 89.)

d. Courts can and sometimes need to depart from prior precedents and sentencing ranges in order to impose a proportionate sentence. In that regard, it must be remembered that sentencing ranges are not “straitjackets” but are instead “historical portraits”; e.g., such that departures from prior precedents and sentencing ranges is appropriate when Parliament raises the maximum sentence for an offence, and when society’s understanding of the severity of the harm arising from an offence increases. (See R. v. Friesen, supra, at paragraph 108.)

e. While Parliament has determined that sexual violence against children should be punished more severely than sexual violence against adults, sexual violence against either a child or an adult is a serious matter. (See R. v. Friesen, supra, at paragraph 116.)

f. Nothing in the Supreme Court of Canada’s decision emphasizing the need to increase the severity of punishment for sexual violence against children was to be construed 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. To the contrary, our nation’s highest court repeatedly has emphasized that our understanding of the profound physical and psychological harm that all victims of sexual assault experience has deepened; i.e., generally suggesting the need for more severe sentences reflecting, inter alia, the gravity of such offences. (See R. v. Goldfinch, 2019 SCC 38, at paragraph 38, and R. v. Friesen, supra, at paragraph 118.)

g. In relation to sexual offences involving an offender’s abuse of a position of trust:

i. Courts should recognize that trust relationships arise in varied circumstances and should not all be treated alike. It instead makes sense to refer to a “spectrum” of positions of trust, while also recognizing that an offender simultaneously may occupy multiple positions on the spectrum and that a trust relationship can progress along the spectrum over time. For example, in some cases, an offender’s grooming can build a new relationship of trust, or move an existing trust relationship along the spectrum. However, even where grooming does not exploit an existing relationship of trust or build a new one, it is still aggravating in its own right. (See R. v. Friesen, supra, at paragraph 125.)

ii. Any breach of trust is likely to increase the harm to the victim and thus the gravity of the offence. The focus in such cases should be on the extent to which the relationship of trust was violated. In that regard, the spectrum of relationships of trust is relevant to determining the degree of harm, as a victim likely will suffer more harm from sexual violence where there is a closer relationship and a higher degree of trust between the victim and the offender. This is likely to be the case in what might be described as “classic” breach of trust situations, such as those involving family members. (See R. v. Friesen, supra, at paragraph 126.) Moreover, if a parent is the perpetrator of the sexual violence, the other parent effectively may cause the victim further trauma by taking the side of the perpetrator and disbelieving the victim, and/or rejecting the victim by blaming the victim for her own victimization; considerations which also increase the harm experienced by victims, and the gravity of the underlying offences leading to such outcomes. (See R. v. Friesen, supra, at paragraph 60.)

iii. Abuse of a position of trust by a sexual offender is also aggravating because it increases the offender’s degree of responsibility, and enhances moral blameworthiness. (See R. v. Friesen, supra, at paragraph 129.)

iv. All other things being equal, a sexual offender who abuses a position of trust should receive a lengthier sentence than an offender who is a stranger to the victim. In that regard, many authors have expressed concern that the criminal justice system historically has failed to recognize the scale and gravity of sexual violence perpetrated within the family sphere. Courts should ensure that the sentences they impose for such sexual offences give legal effect to the gravity of the offence and degree of responsibility of the offender in cases that involve the abuse of a trust relationship. (See R. v. Friesen, supra, at paragraph 130.)

h. The duration and frequency of sexual violence is also an important factor in sentencing. The frequency and duration can significantly increase resulting harm to a victim; e.g., insofar as the immediate harm the victim of sexual violence experiences during the assault is multiplied by the number of assaults. Moreover, the long-term emotional and psychological harm to the victim also can become more pronounced where the sexual violence is repeated and prolonged. Such increased harm magnifies the severity of the offence. It also increases the offender’s moral blameworthiness, because the additional harm to the victim is a reasonably foreseeable consequence of the multiple assaults. Moreover, repeated and prolonged assaults show that the sexually violent conduct is not an isolated act; a factor which increases the offender’s degree of responsibility. (See R. v. Friesen, supra, at paragraph 131.)

i. The age of a sexual assault victim can also be a significant aggravating factor in sentencing; i.e., insofar as it relates to the gravity of the offence and the degree of offender responsibility. In that regard, courts must be particularly careful to impose proportionate sentences in cases where the victim is an adolescent. Historically, disproportionately low sentences have been imposed in such cases, particularly in cases involving adolescent girls, even though they represent an age group disproportionately victimized by sexual violence. In particular, sexual violence by adult men against adolescent girls is associated with higher rates of physical injury, suicide, substance abuse and unwanted pregnancy. (See R. v. Friesen, supra, at paragraphs 134-136.)

j. The degree of physical interference involved in a sexual offence is also a recognized aggravating factor in sentencing; e.g., insofar as it reflects the degree of violation of the victim’s bodily integrity and sexual integrity. However, the degree of physical interference also takes into account how specific types of physical acts may increase the risk of harm; e.g., insofar as penile penetration, particularly when unprotected, can be an aggravating factor because it can increase a risk of disease and pregnancy. Judges therefore legitimately can consider the greater risk of harm that may flow from physical acts, such as penetration, while also necessarily continuing to bear in mind the emotional and psychological harm to the victim that all forms of sexual violence can cause. (See R. v. Friesen, supra, at paragraphs 138, 139 and 142.)

k. Finally, I note the Supreme Court of Canada’s comments in R. v. Friesen, supra, recognizing the additional potential harm inflicted upon a victim of sexual abuse when that abuse takes place in the victim’s home; a location where the victim should be entitled to feel safe and secure. Sexual violence that takes place in such a home may be particularly damaging to a victim, because it damages that victim’s sense of security in a home environment, and the fact that sexual violence takes place in a victim’s home is therefore an aggravating factor. (See R. v. Friesen, supra, at paragraph 178.)

[34] Before leaving a discussion of the general principles and approach to sentencing in this area mandated by Parliament and our appellate courts, and returning to more specific consideration of the case at hand, I will note that I also am mindful of our Court of Appeal’s decision in R. v. A.J.K., 2022 ONCA 487, which was cited and relied upon by Crown counsel and counsel for Mr G.

[35] In the course of addressing the sentencing appeal in that case, our Court of Appeal noted and echoed the Supreme Court of Canada’s observations in R. v. Friesen, supra, that previously indicated “ranges” and “starting points” for sentencing are not “straitjackets” but “historical portraits” and/or otherwise malleable products of their time, and that departures from previous decisions in that regard are justified to reflect deepening societal understanding of offences and the severity of harm arising from those offences. (See R. v. A.J.K., supra, at paragraph 71.)

[36] Echoing other comments made in R. v. Friesen, supra, (albeit now in the context of addressing the sentencing of offenders who have inflicted sexual assault on adult victims), our Court of Appeal also emphasized, at paragraphs 74-75 of R. v. A.J.K., supra:

a. that all sexual assaults are serious acts of violence;

b. that sexual assaults reflect the wrongful exploitation of the victim, whose personal autonomy, sexual integrity and dignity are harmfully impacted while being treated as nothing more than an object;

c. that victims of sexual violence suffer profound emotional and physical harm, and their lives, as well as the lives of their loved ones, can be forever altered; and

d. that, as the years pass, enlightenment regarding the implications of sexual violence continues to permeate our conscious minds, while our understanding of the profound physical and psychological harm that all victims of sexual assault experience has deepened and continues to deepen.

[37] In the result, our Court of Appeal chose to revisit a general sentencing range, suggested by its earlier decision in R. v. Smith, 2011 ONCA 564, of 21 months to four years in cases of sexual assault involving forced intercourse with a spouse or former spouse. In particular, for the above reasons, and further detailed reasons set forth by the Court of Appeal, (which I will not attempt to outline in detail here), it chose:

a. to leave that particular “sentencing artefact” behind;

b. to eliminate perceptions that a victim’s prior relationship with an offender justified a sentencing range below that applicable in cases of non-intimate partner sexual violence;

c. to indicate that, “absent some highly mitigating factor”, the “forced penetration” of another person, (i.e., whether vaginal, oral or anal), “will typically attract a sentence of at least three years in the penitentiary”; and

d. to note that the general three-to-five year range of sentencing in relation to such offences suggested by the Court of Appeal’s earlier decision in R. v. Bradley, 2008 ONCA 179, was “just a range”, (i.e., “a quantitative sentencing tool designed to assist busy trial judges with where to start”), in respect of which there will be circumstances where departure from that range, (either above or below the range), is “entirely appropriate”.

[38] See R. v. A.J.K., supra, at paragraphs 70 and 76-77.

[39] Bearing in mind the general sentencing objectives and guidelines outlined above, I turn next to a consideration of possible aggravating and mitigating factors, starting with the former.

Aggravating factors

[40] In that regard, Mr G.’s assertion of innocence certainly is not an aggravating circumstance, although it may undermine a basis for inferring that he has insight into his behavior, and the absence of such insight may be relevant to the need for specific deterrence and/or Mr G.’s prospects for rehabilitation. See R. v. C.B., 2008 ONCA 486, [2008] O.J. No. 2434 (C.A.), at paragraph 57. In my view, such considerations are relevant in this case, insofar as the pre-sentence report, as noted above, emphasizes that Mr G., while regretting the situation in which he now finds himself, apparently has no insight into his criminal behaviour, no appreciation of the magnitude or seriousness of the offence of sexual assault, nor any apparent regard for the harmful impact his actions have had on A. Moreover, the underlying facts strongly suggest that Mr G. is in dire need of such insight, insofar as his objectification of A. as a means of sexual gratification, (including his overt and to some extent video-recorded indications that he viewed his stepdaughter as a dehumanized sexual commodity to be rewarded and purchased with cash or loan forgiveness), seemed quite extreme and extraordinary in my experience.

[41] This case nevertheless does present numerous aggravating considerations, which in my view include the following:

a. There is no doubt in my mind that Mr G., in committing his sexual assaults, abused a position of trust in relation to A., thereby squarely engaging the provisions of subsection 718.2(a)(iii) of the Code; i.e., provisions which, as noted above, deem such evidence to be an aggravating circumstance for the purposes of sentencing. In that regard:

i. During the course of my trial judgment in this matter, I had occasion, while providing reasons why I would have found any ostensible subjective consent of A. to the relevant underlying sexual activity to have been vitiated by the operation of subsection 273.1(2)(c) of the Code, to outline general principles of law applicable to fact dependent determinations of whether an accused was in a “position of trust” vis-à-vis a complainant. I accordingly will not reiterate those principles again here. That discussion should instead be considered incorporated into these sentencing reasons by way of reference.

ii. In the same trial judgment, I also provided detailed reasons for my view that there was no reasonable doubt, having regard to the underlying facts in this particular case, that both sexual assaults involved Mr G. abusing a position of trust vis-à-vis A. While it might suffice to indicate that those reasons also should be considered incorporated herein, I reiterate the following here for ease of reference:

1. Having regard to the cumulative effect of the progressive history of this matter described at length in my trial judgment, in my view a relationship between Mr G. and A. clearly had developed and evolved naturally over an extended period of time; a relationship through which Mr G. assumed a position vis-a-vis A. which understandably caused her to feel that her interactions with Mr G. would transpire in circumstances of safety, confidence and reliability as far as he was concerned, accompanied by a belief in his good intentions.

2. Without limiting the generality of the foregoing, the repeated acts of consideration, kindness and support extended to A. by Mr G. over time, and his repeated willingness to act as her confidante, (despite relocation of his primary residence to Toronto and the geographic demands of his employment), led A. to regard Mr G. as a father-figure and stepfather; i.e., someone who had treated her and would treat her as if she was his own biological daughter. Indeed, as noted in my trial judgment, Mr G. himself confirmed, during the course of his cross-examination, that everything A. indicated in that regard, in a letter she wrote in 2018 to support the efforts of Mr G. to remain in Canada, (a letter describing the kindness and support shown to her by Mr G., Mr G. being her best friend, and Mr G. treating her like his own biological daughter), was correct. Mr G. himself also expressly indicated and/or acknowledged, at various points during the course of his cross-examination:

a. that A. was his step-daughter;

b. that he saw her as his step-daughter;

c. that he repeatedly was proud of A. from a “step-dad” perspective;

d. that he looked on A. in the same way as he regarded his own biological daughter in Jamaica; and

e. that he regarded A. as his daughter.

3. In my view, the underlying sexual assaults clearly stemmed from Mr G. abusing the position of trust he had assumed vis-à-vis A. Without limiting the generality of the foregoing:

a. The physical opportunity for Mr G. to engage in the sexual activity underlying each sexual assault arose from and depended entirely upon the fact that he had assumed a position of trust vis-à-vis A.; a position whereby Mr G. was permitted to enter and remain in the London home occupied by A. and her mother on the occasions in question, and interact with A. in the absence of her mother, because he had assumed the role of a trusted stepfather vis-à-vis A.; i.e., someone who could be trusted to always act in her best interest rather than his own selfish interest.

b. On the occasion of the first sexual assault, Mr G. was welcomed into the home of A. in the absence of her mother not only because he generally had assumed the position of trust described above, but because A. proactively had sought the support, reassurance and assistance of Mr G. on that particular occasion; i.e., to help her avoid a feared confrontation between A. and her mother in relation to the latter’s discovery of the lighter A. used to smoke marihuana, and a possible ensuing revelation to her mother that A. was using that substance.

c. On the occasion of the second sexual assault, Mr G. abused his position of trust to not only secure entry into A.’s home during the absence of her mother, but also to enter A.’s bedroom and bed at an early morning hour, and engage in sexual intercourse with her when she was still groggy and not fully awake; i.e., to effectively ambush A. with a further sexual assault at a time when she was even more vulnerable to his misconduct.

iii. In my view, the position of trust abused by Mr G. lay at the most serious end of the “spectrum” of such relationships, and should be regarded as a very serious aggravating factor in relation to sentencing. In that regard:

1. The situation involved not only a serious breach of trust between individuals who effectively had become members of the same family, (a situation which the Supreme Court of Canada described in R. v. Friesen, supra, as a “classic” breach of trust situation), but between individuals who, at the time of the sexual assaults, essentially stood in a relationship of parent and child.

2. Pursuant to s.718.2(a)(ii) of the Code, the fact that Mr G. essentially abused a member of his own family, in committing his sexual assaults, is deemed to be an aggravating circumstance in and of itself.

3. In the underlying circumstances of this case, Mr G. did not acquire his effective parental status vis-à-vis A. instantly or without effort; i.e., simply by being a biological father. Through sustained activity and effort described in my trial judgment and earlier in these reasons, Mr G. instead progressively moved along the relationship spectrum from being a complete stranger to A., and then her mother’s intimate partner, to assume the role of being a father-figure and then trusted stepfather to A. herself. Moreover, Mr G. achieved that status in large measure through conduct viewed at the time as benevolent and generous, (e.g., repeatedly buying A. gifts, providing her with spending money, and facilitating her access to alcohol), but discernible in retrospect as grooming behaviour. In my view, the sinister motivations of Mr G. in that regard were revealed, albeit belatedly, in various ways, including: his repeated and chilling comments effectively indicating to A. that he had been waiting for her to turn 18 to engage in sexual activity with her; his accusing her of being “ungrateful” when she increasingly resisted his further sexual advances despite various purchases he had made for her; and his giving or offering A. significantly increased sums of money and/or loan forgiveness in the wake of sexual activity and/or while pestering her for more sexual activity. As noted above, the Supreme Court of Canada has emphasized, in R. v. Friesen, supra, that grooming activity is aggravating in its own right, even where it does not exploit an existing relationship or build a new one. A fortiori, such grooming activity seems even more aggravating when it does both.

iv. As emphasized by the Supreme Court of Canada, such an abuse of a position of trust, involving such a close relationship and high degree of trust between an offender and his victim, is aggravating because it inherently increased the likelihood of A. suffering more harm as a result of the sexual assaults perpetrated by Mr G. The harm A. has experienced in this case is discussed in greater detail below, as another aggravating consideration. However, it includes, in this case, the result which the Supreme Court of Canada, in R. v. Friesen, supra, described as a common occurrence in position of trust abuse situations where a parent is a perpetrator of sexual violence; i.e., where the victim is further traumatized by her other parent taking the side of the perpetrator, disbelieving the victim, and rejecting the victim by blaming her for her own victimization.

v. As also emphasized by the Supreme Court of Canada in R. v. Friesen, supra:

1. commission of sexual assault involving an egregious breach of a position of trust, such as that perpetrated by Mr G., must be viewed as greatly increasing his degree of responsibility for the underlying sexual assaults, and his moral blameworthiness in that regard; and

2. the custodial sentence or sentences imposed on Mr G. should recognize the scale and gravity of the sexual violence he has perpetrated within the family sphere.

b. Another aggravating consideration, in its own right, is the reality that A. was sexually abused in the home she shared with her mother, and indeed within her own bedroom and bed; places where A. unquestionably should have been entitled to feel safe and secure. The sort of associated trauma sustained by sexual assault victims in that regard, described in the abstract by the Supreme Court of Canada in R. v. Friesen, supra, (e.g., by references to the possibility of such victims having their sense of security in a home environment undermined), clearly manifested itself in this case. In that regard:

i. A. describing in vivid detail, during the course of her trial testimony, how the secure and stable home she previously enjoyed with her mother immediately was transformed, by the misconduct of Mr G., into a threatening and traumatizing environment from her perspective; e.g., with her employing various measures to wedge unlockable bathroom doors closed before she felt able to take a shower, to block her bedroom door from being opened without her knowing about it or from being opened at all, (through the hanging of a Christmas ornament with small bells on it and/or the temporary rearranging of furniture), and to remain in her bedroom with its door closed and blocked for extended periods of time before carefully timing necessary excursions to the kitchen, laundry room, etc., in an effort to avoid further unwanted encounters or interactions with Mr G.

ii. A. nevertheless also emphasized that, despite taking such precautions, she nevertheless was unable to shut out smells and sounds in her home that repeatedly brought home the ongoing involvement of Mr G. in her life, and the sexual abuse she had endured; e.g., through the smell of his cologne, through loud sounds emanating from his car effectively indicating his repeated arrival at the residence, through the sound of his voice when he was present in the home, and through the intensely traumatizing experience of having to listen to the sound of Mr G. and her mother loudly having sex in the bedroom next to hers, while intensely mindful that Mr G. was engaged in such ongoing intimate relations with A.’s mother despite his sexual activity with A. and his persistent ongoing efforts to have such sexual activity happen again. In the result, she was unable to enjoy or make use of time alone in her bedroom; e.g., to study effectively in connection with her university program.

iii. As A. noted during her trial testimony, such realities reduced her to tears, as she increasingly felt “trapped” in her bedroom, and that her residence was no longer her home. Indeed, it was such mounting and eventually intolerable trauma that eventually prompted A. to leave the home, and finally disclose the sexual abuse that had been inflicted upon her by Mr G.

c. The repetition of sexual misconduct by Mr G. is also an aggravating factor here. In that regard:

i. I am mindful that Mr G. inherently will be punished for that repetition insofar as he will be sentenced in relation to his second sexual assault as well as his first, at least to the extent that any custodial sentences imposed in relation to his two sexual assault convictions may not be served in a concurrent manner with one another.

ii. However, in my view the underlying facts make it abundantly clear that the sexual misconduct of Mr G. was not the result of any spontaneous or isolated lapse in judgment, which thereby increases his degree of responsibility for that misconduct. Without limiting the generality of the foregoing:

1. As noted above, his disturbing comments made to A., (i.e., that he had thinking intensely about her in a sexual way since seeing her in her high school graduation dress if not before), made it clear that he had been contemplating sexual activity with her in an extended fashion prior to the first sexual assault.

2. His conduct between the two sexual assaults, (including not only his comments expressing a desire for further sexual interaction with A., but his actions such as entering her bedroom, lying on A.’s bed and masturbating himself through his clothing while waiting for her to return, while accusing her of being “ungrateful” when she refused to do so until he had vacated), made it clear that he remained fixated on further sexual activity with A.

3. His very deliberate actions taken in relation to the second sexual assault, (i.e., going out of his way to enter A.’s bedroom and bed in the early morning hours while A. was still sleepy and groggy, but after her mother had left for work), made it abundantly clear that the weeks or months that passed between the first and second sexual assaults had not been used to meaningfully reflect upon, regret and/or feel any sense of shame in relation to what he had done during the first sexual assault.

iii. As emphasized by the Supreme Court of Canada in R. v. Friesen, supra, such repetition of sexual assault by Mr G. also was bound to increase the long-term emotional and psychological harm that would be experienced by A. in a foreseeable way, thereby magnifying both the severity of his misconduct and his moral blameworthiness.

d. In my view, another aggravating factor here is the age disparity between Mr G. and A., and her young age at the time of the two sexual assaults. In that regard:

i. I am mindful that A., (as emphasized by Mr G. himself during the course of his sexual misconduct), was 18 at the time of the two underlying sexual assaults, and therefore legally an “adult” for most purposes. In particular, she accordingly was no longer a “child”, nor even a “young person”, for purposes of the Code. As emphasized by counsel for Mr G., it accordingly should be emphasized that Mr G. is being sentenced for sexual assault and not for even more serious crimes such as the offence of sexual interference; something which would have necessitated consideration of the sentencing range outlined by the Supreme Court of Canada in R. v. Friesen, supra, at paragraph 114, emphasizing that mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single and double-digit penitentiary terms for such misconduct should be neither unusual nor reserved for rare or exceptional circumstances.

ii. Having said that, I do not think such considerations make A.’s age irrelevant as an aggravating consideration, in terms of sentencing. In particular, even if one employs standard definitions of “adolescence” similar to those set forth in the Concise Oxford Dictionary, referring to “the process of developing from a child into an adult”, it seems artificial and unrealistic to think that process abruptly comes to an end upon someone attaining his or her eighteenth birthday; i.e., the inherently arbitrary legal definition of when someone becomes an adult, selected and employed in many jurisdictions. Regardless of legal definitions, it seems more likely that the process of transitioning from vulnerable childhood and adolescence into a mature and much more resilient adult is more gradual and continues to evolve along a spectrum; i.e., such that there may be very little practical difference between the vulnerabilities experienced by a 17-year-old “adolescent” and an 18-year-old “adult”, and the harm each is likely to experience as a result of sexual violence.

iii. Such realities seem demonstrated by the facts of this case. Without limiting the generality of the foregoing:

1. Despite having attained her legal age of majority, A. was in my view still clearly a vulnerable person at the time of the underlying sexual assaults. In that regard:

a. As noted in my trial judgment, A. was still relatively young, (especially compared to most other adults), had insufficient resources to live independently despite her hard work, already was struggling to finance her continued education at Western University, and effectively was dependent on continued cohabitation in the residence of her mother, (her only relative here in the city of London), to maintain her existence and pursuit of her study/career goals.

b. In my view, it also was entirely realistic for A. to fear and/or expect that, if her mother reacted to disclosure of sexual activity between her daughter and Mr G. with disbelief and/or hostility, that in turn might lead to a breakdown in the relationship between mother and daughter and/or A. having to leave her mother’s residence with attendant hardships for A., all of which regrettably came to pass.

c. The sexual assaults which bring Mr G. before me now therefore involved abuse of a person who was vulnerable because of her personal circumstances, (compounded by her being a young female), such that primary consideration also must be given to the objectives of denunciation and deterrence of such conduct pursuant to section 718.04 of the Code.

2. As described in more detail below, A. experienced many of the tragic consequences that, as emphasized by the Supreme Court of Canada in R. v. Friesen, supra, are all too common among adolescent females who have been victimized by sexual violence, including descent into substance abuse and suicidal behaviour following their sexual abuse by older males.

iv. In my view, such realities underscore the gravity of the offences committed by Mr G. in relation to A., and his degree of responsibility in that regard; i.e., in a manner similar to, (albeit not identical with), the manner in which sexual abuse of an adolescent female by significantly older adult males increases the gravity and degree of responsibility of their crimes.

e. Another seriously aggravating factor here, in my view, is the degree of physical interference involved in the sexual abuse of A. by Mr G. In that regard:

i. Our courts now have been cautioned by the Supreme Court of Canada against effectively defining sentencing ranges based on penetration and/or other specific types of sexual activity per se. However, as also emphasized by the Supreme Court of Canada, the degree of physical interference with a victim continues to be a recognized aggravating factor in sentencing, insofar as it reflects the sexual nature of the relevant touching, the extent to which the sexual integrity of the victim was violated, and the increased risk of harm flowing from specific types of physical acts, which may very well compound the wrongfulness and moral blameworthiness of what the offender has done.

ii. In this particular case, the relevant physical interference with A. by Mr G. included unwanted grabbing, removal of clothing, cunnilingus and forced vaginal penetration involving use of a condom during the first sexual assault but no use of a condom during the second sexual assault. Moreover, as emphasized by the Supreme Court of Canada in R. v. Friesen, supra, the severe violation of A.’s sexual integrity inherent in such forced penile penetration not only carries the risk of physical pain and injury, but the additional risks of disease and pregnancy.

iii. In the result, the particular sexual assaults committed by Mr G. increased not only the risk of physical harm to A., but also entailed near certainty of the significantly increased emotional and psychological harm she foreseeably would experience as a result of his misconduct. That too increases the gravity of the crimes committed by Mr G., and his degree of responsibility.

f. In addition to all of the aggravating considerations I have noted and described up to this point, a further and perhaps most serious aggravating factor, in this case, is the reality of the tragic consequences inflicted on A. by the sexual misconduct of Mr G. In that regard:

i. As noted above, a sentencing judge must take into consideration, as a circumstance deemed to be an aggravating factor pursuant to s.718.2(a)(iii.1) of the Code, evidence that an offence has had a significant impact on a victim having regard to his or her age and other personal circumstances, including the victim’s health and financial situation.

ii. As also noted above, the Supreme Court of Canada and our Court of Appeal have emphasized our deepened and deepening understanding that all victims of sexual assault experience profound physical and psychological harm. Again, see R. v. Goldfinch, supra, at paragraph 38, R. v. Friesen, supra, at paragraph 118, and R. v. A.J.K., supra, at paragraphs 74-75. Direct evidence from a victim of sex abuse therefore is not required for the court to find that such a victim has suffered actual harm as a result of such sexual violence and violations of her sexual integrity. Even without such direct evidence, courts recognize the serious harm and potential further harm inherently flowing from the commission of such offences.

iii. I nevertheless was presented with direct evidence of such harm in this case, making it absolutely clear that A. tragically has suffered and will suffer such harm. In that regard:

1. As noted in my trial judgment, (and I think appropriate to reiterate here), A. indicated during the course of her testimony that the first sexual assault caused her to embark upon what she described as a “dark spiral” downwards, as a result of what had happened. Without limiting the generality of the foregoing, A. described how:

a. she quickly transitioned from someone who was happy and widely regarded as being happy, (i.e., whose smile would “light up a room”), to someone with an erratic mood who generally was unhappy, and who felt “dead inside” and forever changed, because of her self-perceived failure to plead with and convince someone whom she had trusted and who was so close to her to stop doing such unwanted things to her;

b. she began to isolate herself from the friends and positive peer associations she thitherto had happily enjoyed, (e.g., those with whom she had shared academic and athletic interests), and correspondingly began to lose a lot of those friends;

c. she began to associate more and more with others she had known from high-school days who were known for “skipping” school, involvement in the drug subculture, “getting in trouble”, and not pursuing any post-secondary education, despite her knowing that these were people she should not have become friends with, which in turn led to further poor decisions such as her thitherto unprecedented use of more serious illicit drugs such as MDMA, (otherwise known as “Molly” and/or “Ecstasy”), and hallucinogenic mushrooms; and

d. perhaps most importantly from A.’s perspective, (in terms of the described consequences of being sexually assaulted by Mr G.), her relationship with her mother began to decline after the first sexual assault, with A. quickly transitioning from a prior practice of happily enjoying significant time with her mother, (e.g., talking and/or routinely watching television programs in which they were both interested), to spending a lot less time with her mother, and finding that she was experiencing feelings of mounting dismissiveness, anger and hatred towards her mother, (manifesting themselves in increasingly harsh exchanges between them), owing in large measure to a perception that her mother did not have the strength to end her relationship with Mr G., (a relationship which had enabled and led to his sexual abuse of A.), despite obvious significant and persistent problems in the relationship between her mother and Mr G. that caused her mother and Mr G. to argue frequently.

2. A. then went on to describe, at trial, how her outlook and general situation continued to decline thereafter through to January of 2021, at a rate accelerated by the second sexual assault, and by Mr G. continuing to pester her with sexual advances of various kinds before and after that second sexual assault. That further decline included ongoing alienation from former friends, her increasing association with negative peers, (whom she candidly described, along with herself, as “crackheads”), as well as her increasing reliance on illicit drugs and MDMA in particular. She and her mother also were arguing more and more frequently, with incidents that included A. being “kicked out” of her mother’s residence temporarily in February of 2020. In that regard, A. described how repeated mention of Mr G., and exposure to his ongoing involvement in the lives of her and her mother, effectively made it impossible for her and her mother to rebuild their relationship. In particular, A. described how intensely she struggled with conflicting feelings and thoughts that were mounting. In particular, while she wanted to see her mother happy, she also would feel the “pit drop in [her] stomach” every time she would hear Mr G., his vehicle or his name, and increasingly resented that she was trying to keep the sexual assaults a secret for the sake of her mother while her mother simultaneously seemed to be showing her less respect, and criticizing A. more and more; e.g., for not being sufficiently happy for her mother, and supportive of her mother’s relationship with Mr G. From A.’s perspective, she previously had always been happy that her mother was happy, but she was now extremely unhappy that her mother was with Mr G. As noted earlier, such thoughts and feelings, and A.’s general downward trajectory, led to her very serious but fortunately unsuccessful suicide attempt on January 1, 2021. Looking back on the incident, A. explained that she simply did not want to “be here” anymore, or be “living anymore”.

3. As noted above, A. continued to live on in her mother’s home until September of 2021, (i.e., after her disclosure of her sexual abuse by Mr G.), but ongoing deterioration of the relationship between A. and her mother made the situation unsustainable. She therefore left home, while also dropping out of her university program.

4. Further descriptions and information about the consequences A. has experienced, because of the sexual assaults, were provided through her victim impact statement. In that regard:

a. A. emphasized how the extraordinary happiness she felt during and coming out of high school were transformed, by the misconduct of Mr G., into what she described as “living in a personal purgatory or hell”; e.g., as she thereafter struggled every day to be around Mr G. and her mother, be at home, or just be comfortable in her own bedroom. She described feeling how her life no longer had meaning, that she was “done for”, and that there was “nothing left” for her but to turn to suicide as a means of escaping the “hell” she was in.

b. A. also described how those feelings of intense hurt then were compounded, after her eventual disclosure of the sexual abuse, by her mother choosing to believe false accounts provided by Mr G. rather than the true accounts provided by her daughter and only child, with whom she previously had a close connection and attachment. That was an outcome described by A. as something that still “hurts like hell”, particularly insofar as Mr G., in his attempts to persuade A.’s mother to believe him rather than A., effectively poisoned her mother’s view of A.; e.g., through his sharing of messages A. had sent him in confidence prior to the sexual assaults, wherein A. occasionally had been venting and/or “ranting” about frustrations with her mother. In the result, A.’s mother is said to have “gone around telling family members lies about [A.] and the circumstances surrounding [her] sexual assault”, and the close relationship A. previously shared with her mother and her mother’s family, (including her grandmother in particular), has been completely and irrevocably destroyed. As A. put it, her relationship with them now sadly “is dead, and will forever be dead”.

c. As an adopted child with no siblings, who had become progressively alienated from her other positive peer associations, (including her best friend), A.’s complete break from her mother and mother’s family left her feeling extraordinarily isolated in the world. In particular, although she now has sought the aid of a therapist, A. says she has “had to do a lot of [her] healing alone”.

d. A. apparently has made progress in that regard; e.g., turning away from substance abuse, circling back to the best friend she previously had lost, (although they admittedly are not as close now as they once were), taking the steps necessary to train and qualify as a licenced real estate agent, and thereafter obtaining employment with a specified provider of health and dental benefits while following up on plans to start and develop her own business. She is now determined that the sexual assaults she endured will not be “the end of [her] life”, and says that there are actually some days when she feels “completely fine”, and “sometimes even perfect”. She very much wants to heal, and learn how to be happy again.

e. She nevertheless also repeatedly is confronted, on what she describes as a “day-to-day basis”, with reminders of Mr G. and the “hell [he] put [her] through”. In particular, her unpleasant memories and trauma in that regard are still triggered by otherwise apparently innocuous things such as the scent of a cologne similar to that worn by Mr G., someone speaking with a Jamaican accent like that of Mr G., and hearing any vehicle making loud noises in a manner similar to the car driven by Mr G. While she may be fine some days, there are others when she cries and feels quite alone; e.g., when she now lacks family members to reach out on occasions such as her birthday, or even check to see how she is doing. There are many days when she does not leave her apartment, and does not talk to anyone. Whereas trust formerly came easy to her, that no longer happens, and she generally now has a lack of trust in people.

f. While she is trying to address such feelings through professional help, A. says she is “never gonna (sic) be fully healed from the absence of a mother, or the pain of being sexually assaulted”. To the contrary, she feels certain that she “will forever carry” the emotional and psychological scars of being sexually assaulted, with resulting isolation from her family, and that she now “will have to navigate a world of feeling alone”.

g. For all those reasons, A. says her life “has completely changed, and will always be impacted because of [Mr G.]”.

iv. While all of that damage inflicted upon and still being experienced by A. cannot and should not be understated, I also am mindful that she is not the only victim of Mr G.’ misconduct. As emphasized by the Supreme Court of Canada in R. v. Friesen, supra, the consequential harm from sexual violence includes that suffered by their families and caregivers. In this case, that includes A.’s mother and grandmother effectively having lost a previously much-loved daughter and granddaughter as a result of what Mr G. has done. The fallout from his sexual abuse of A. also caused a rift between the longstanding and previously close relationship between A.’s mother and K.M., insofar as Mr M. apparently was resented for his support of A. and his belief in the truth of what A. had reported.

Mitigating factors

[42] As for mitigating considerations, I start by noting the absence of various mitigating considerations frequently seen and relied upon in relation to such offences. Without limiting the generality of the foregoing:

a. Insofar as Mr G. was 36 or 37 years old at the time of the offending conduct that brings him before me now, and is 40 years old at the time of sentencing, he clearly cannot and should be regarded as a youthful offender.

b. Having regard to the personal circumstances of Mr G. outlined above, I also am not persuaded that Mr G. has experienced any serious impactful challenges in his upbringing or later life deserving of any significant mitigation consideration.

c. There are no guilty pleas for which I can give Mr G. any credit. Nor have there been any other indications that Mr G. accepts responsibility for his conduct, or feels any remorse for his actions. In that regard, I will emphasize again that Mr G.’ ongoing assertion of his innocence is most certainly not an aggravating consideration. For present purposes, I am simply emphasizing that the absence of guilty pleas, acceptance of responsibility for misconduct and/or indications of remorse for his misconduct, (as opposed to unhappiness caused by the situation in which he now finds himself), eliminates the possibility of any mitigating considerations in that regard.

[43] Having said all that, in my view there are a number of mitigating considerations to be taken into account. In particular:

a. As noted earlier, Mr G. has no criminal record; i.e., such that the sentencing of Mr G. needs to be approached on the basis of Mr G. being a first-time offender. In such circumstances, our courts have emphasized that the principle of restraint, reflected in subsections 718.2(d) and (e) of the Code, takes on added importance in relation to such first-time offenders, in respect of whom an extended custodial sentence almost invariably will have a more profound impact.

b. Mr G. also has demonstrated the capacity to lead a generally pro-social life over the course of many years; e.g., in terms of remaining gainfully employed, (both in Jamaica and in Canada), demonstrating the capacity to maintain extended intimate partner relationships for many years at a time, and to act as a loving and supportive father to his own children and the children of his successive partners. The numerous reference letters I described earlier indicate, in various ways, a belief that Mr G. generally is a man of good character. All of that usually bodes well for potential rehabilitation. However, I also think it fair to say that some aspects of that generally prosocial behaviour and impressions of good character are tainted or undermined by other considerations; e.g., the reality that Mr G. apparently now has been working illegally in Canada for a number of years, and also clearly has a demonstrated ability to feign fidelity to an intimate partner and care for an intimate partner’s child in an extremely convincing way, while egregiously violating the trust of both in pursuit of selfish motives. In my view, the latter consideration in particular gives rise to legitimate concern about the extent to which his family and friends have the ability to discern his true character. I note, for example, the striking similarity in tone and content between the letter A. wrote in support of an immigration application by Mr G. in 2018, (after he had been playing an active role in her life for several years), and the letter of support young N.M. has written in relation to the sentencing of Mr G. Both letters emphasize appreciation for various acts of support and guidance extended to the writer by Mr G., the positive influence Mr G. was said to have had on the writer’s life, Mr G.’ apparent embrace of the writer as his own child, and the writer’s happiness in regarding Mr G. as a stepfather. A.’s perceptions of Mr G. as a person of exceptional good character nevertheless were tragically mistaken, despite her clearly being a person of exceptional intelligence and reflection. Having regard to such realities, I cannot help but wonder if the perceptions of N. and others in the life of Mr G. are mistaken as well.

c. As demonstrated by the numerous letters of reference to which I have referred, Mr G. nevertheless unquestionably has ties to the community and enjoys considerable support from others; i.e., from his new partner, his new partner’s son, his friends, and members of his faith-centred community. An extended support network of that nature usually bodes well for an offender’s potential rehabilitation, and is another mitigating consideration. Having said that, I also am mindful of the reality that the prospects of Mr G. being able to access and benefit from that ongoing support network significantly into the future seem minimal: e.g., if he is incarcerated for a number of years and thereafter almost certainly deported to Jamaica, with what was described as a very bleak outlook in terms of his ability to return to Canada. Again, as matters currently stand, such a return seems unlikely to be permitted for at least 11-12 years after completion of his sentence, and even that assumes that all goes well in terms of his securing a record suspension or pardon, his marriage with Ms M. surviving their almost inevitable separation for so many years, and her then pursuing a successful sponsorship application. In that regard:

i. The prospect of such deportation and long-term or permanent removal from Canada, and effective separation of Mr G. from his new family and the life he has struggled to build here in Canada over the past eight to nine years, is clearly a significant collateral consequence of the sexual assault convictions in respect of which Mr G. is now being sentenced.

ii. I nevertheless hesitate to characterize such consequences formally as a “mitigating consideration”, as the Supreme Court of Canada has indicated, in authorities such as R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, that while immigration consequences may be taken into account in sentencing, insofar as they form part of an offender’s personal circumstances, such immigration consequences are not, strictly speaking, aggravating or mitigating factors. Rather, their relevance flows from the application of the principles of individualization and parity. Their relevance also may flow from the sentencing objective of rehabilitation.

iii. The Supreme Court of Canada also has emphasized that, where the court takes collateral immigration consequences into account, the sentence ultimately imposed must still be proportionate to the gravity of the offence and the degree of responsibility of the offender. In that regard, the Supreme Court adopted, with approval, the statement of Moldaver J.A., (as he then was), in R. v. Badhwar, 2011 ONCA 266, that “immigration consequences cannot take a sentence out of the appropriate range”. It also has emphasized that the flexibility of the sentencing process should not be misused by imposing inappropriate and artificial sentences in order to avoid the collateral consequences which may flow from a statutory scheme, thereby circumventing the will of Parliament.

iv. The same fundamental points were emphasized by our Court of Appeal in R. v. Hamilton (2004), 2004 CanLII 5549 (ON CA), 72 O.R. (3d) 1 (C.A.); another decision which emphasizes that the prospect of deportation cannot justify a sentence that is inconsistent with the fundamental purpose and principles of sentencing, and that the sentencing process cannot be used to circumvent the provisions and policies Parliament has adopted and legislated in the Immigration and Refugee Protection Act, supra.

v. In short, a sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, but there are limits. In particular, the sentence ultimately imposed must still be proportionate to the gravity of the offence and the degree of responsibility of the offender. Such consequences cannot be allowed to dominate the exercise, or distort the process either in favour of or against deportation, and it remains open to a sentencing judge to conclude that even a minimal reduction in a proposed sentence will render the sentence inappropriate for the particular offence and the particular offender. See R. v. Gill, [2015] B.C.J. No. 2241 (S.C.), at paragraph 40, citing R. v. Pham, supra, at paragraph 12, and R. v. Hamilton, supra, at paragraphs 44-45.

vi. Having regard to such principles, and turning to their application in this case:

1. I am very mindful that Canada is a nation that has always drawn strength from immigration, and those who have shown great courage and determination in leaving their known worlds behind in the hopes of building a better life in and for this country.

2. However, I also am mindful that, through legislation such as the Immigration and Refugee Protection Act, supra, and its statutory scheme designed to balance carefully the legitimate interests of intended immigrants to Canada with the offsetting legitimate interest of other residents of Canada to safety and security, (e.g., by making an intended immigrant’s decision to engage in serious criminality a disqualifying consideration), Parliament essentially has made clear its will that a serious crime such as sexual assault may have justifiable additional repercussions on an intended immigrant’s desire to remain in this country.

3. While the expected removal of Mr G. from this country is a collateral consequence that should not be ignored, (e.g., insofar as it is likely to make his life more uncertain and troubled during service of any custodial sentence, compared to those who are not facing such additional consequences of serving a sentence), it also cannot and must not be manipulated, in the course of this sentencing, to impose a disproportionate result by being overly lenient. Having regard to the overall circumstances in this case:

a. I do not think it appropriate, having regard to the primacy of denunciation and deterrence in this context, (i.e., owing to the serious nature of the offence of sexual assault, and the vulnerability of A. at the time of the sexual assaults committed by Mr G.), as well as the underlying circumstances and aggravating considerations I have described, to impose a custodial sentence in relation to the sexual assaults committed by Mr G. that is either outside or significantly lower within the typical range for sexual assaults involving forced vaginal penetration, described by our Court of Appeal in R. v. A.J.K., supra, because of the likely deportation of Mr G. and the ensuing hurdles he will encounter in returning to Canada. In my view, doing so would not be proportionate to the serious nature of the sexual assaults committed in these particular circumstances, and would run counter to the Supreme Court of Canada’s guidance in R. v. Pham, supra.

b. Without limiting the generality of the foregoing, I also note that, at the time of his sexually assaultive behaviour, Mr G. was keenly aware of his precarious immigration status in this country, and how very dependent it was on the ongoing goodwill of his then intimate partner, (i.e., A.’s mother), who was sponsoring his immigration application. Such considerations clearly mattered little to Mr G. back then, when he chose to betray the trust of his intimate partner and her daughter by repeated sexual assaults of A. for his additional sexual gratification. In the circumstances, I see little justice in granting him significant leniency now because of the perfectly foreseeable immigration difficulties that have come to pass, owing to the very deliberate and pre-meditated decisions Mr G. repeatedly made in that regard; leniency that would not be extended to another offender who committed such serious sexual assaults in such troubling circumstances, but without such immigration considerations.

[44] To the extent the mitigating considerations I have mentioned are relevant to the principle of restraint and to the potential rehabilitation of Mr G., I am mindful that assisting and promoting such potential rehabilitation of an offender is always a relevant consideration in sentencing, and I certainly do not lose sight of that throughout this process.

[45] However, I also am mindful that, in this context, such considerations take a figurative “back seat” to consideration of necessary denunciation and deterrence. In that regard, I once again note:

a. appellate authority repeatedly emphasizing that, having regard to the inherently serious and violent nature of sexual assault, and its unfortunate frequency, considerations of denunciation and deterrence usually are paramount in this context;

b. the provisions of s.718.04 of the Code, which require a court imposing a sentence for an offence involving the abuse of a person vulnerable because of personal circumstances to give “primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence”; and

c. my finding, (for reasons outlined above), that A. was such a vulnerable person at the time of her sexual abuse by Mr G.

Suggested comparables

[46] In addition to the matters outlined above, I also have considered the sentencing authorities provided to me by counsel by way of suggested comparison to the circumstances of this case; i.e., bearing in mind the sentencing objective, noted above, that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[47] The reality, however, is that no two cases are exactly alike. As emphasized by Chief Justice Lamer in R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at paragraph 92:

Sentencing is an individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise or academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the “just and appropriate” mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred.

[48] Crown counsel nevertheless referred me, for purposes of comparison, to the following three sexual assault sentencing precedents, all released earlier this year, and therefore after the Supreme Court of Canada’s decisions in R. v. Barton, supra, and R. v. Friesen, supra, and after our Court of Appeal’s decision in R. v. A.J.K., supra:

a. In R. v. M.S., 2024 ONSC 1776, the offender, (whose age was unspecified, but who nevertheless was old enough at the time of the underlying offences to have a spouse and a teenage stepdaughter), was found guilty, following a criminal jury trial, of having sexually assaulted his stepdaughter. At trial, the Crown alleged there had been two incidents of sexual assault underlying the apparently single count of sexual assault set forth in the underlying indictment. To the extent the jury’s verdict may have left the number of such incidents it found to have occurred ambiguous, that ambiguity was resolved by the sentencing judge pursuant to section 724 of the Code, with the judge finding that both incidents had been proved beyond a reasonable doubt. In that regard:

i. At the time of the first sexual assault, the victim stepdaughter was of unspecified age but in grade nine. She had been lying on a bunk bed in her brother’s bedroom and apparently sleeping, (while her mother and aunt were temporarily away from the home), when the offender got into that bed with her, and began touching her breasts and vaginal area. He then forced her legs open and moved her shorts and underwear aside to expose her vagina. After the victim saw the offender’s erect penis sticking out of the elastic waistband of his pants, he tried to force his penis into her vagina as she was trying to push him off her. The sexual assault thankfully then was interrupted by the sound of someone entering the front door of the home, at which point the offender jumped off the bed and ran from the bedroom.

ii. At the time of the second sexual assault, the victim stepdaughter was 16 or 17 years old, and her mother and aunt were away travelling. She fell asleep on her mother’s bed while holding her young two-to-three-year-old brother in her arms. She awoke to find the offender stepfather behind her in the bed. While she was frozen in fear, he then moved her shorts and underwear aside before penetrating her vagina with his penis. After the offender finished having that forced intercourse with her, he apologized and told her not to tell anyone what had happened.

iii. There is no indication as to whether or not a condom was used on either occasion.

b. The sexual assaults had a significant and “very serious” impact on the victim stepdaughter, who felt unsafe and scared to the point she slept with a knife under her pillow to protect herself, had great difficulty trusting people, and experienced significant difficulty having “proper relationships” because of her inability to “open up” and trust others. Harm experienced by the victim was exacerbated by the fact she had to keep living in the same residence as her abuser, and by the shameful response of the other adults in her life, who disbelieved her.

c. Other aggravating factors included the offender’s “significant breach of trust” in abusing his position as the victim’s stepfather, the fact that the offences took place in the victim’s home where she should have felt safe, the intrusive nature of the sexual assaults, and the presence of a young child during the second sexual assault.

d. There were no indications of remorse or acceptance of responsibility. However, by way of other mitigating factors, the accused had no criminal record, was gainfully employed, and had considerable support from his family and friends, including members of his church.

e. In the result, the court imposed, (in addition to numerous ancillary orders), a seven-year custodial sentence in relation to the two sexual assaults addressed by what seems to have been a single-count indictment.

f. Despite obvious similarities between that case and the one before me, (including the offender’s significant breach of trust as a stepfather, abuse of the victim on two occasions, the intrusive nature of the two sexual assaults that included forced vaginal intercourse on the second occasion, the offender’s significant breach of trust as a stepfather, his repeated abuse of the victim in her own home, a significant impact on the victim, and mitigating factors that included lack of a criminal record, a prosocial history including steady employment, and significant support from family, friends and church members), in my view that sentencing decision cannot be regarded as an “exceptionally informative” or helpful “benchmark” for the appropriate custodial sentence or sentences to be imposed in this case, at least in the direct manner suggested by Crown counsel. In particular:

i. The stepdaughter victim in that case was 16 or 17 at the time of the second sexual assault, and therefore clearly younger than that at the time of the first sexual assault that took place earlier in time, when she was in grade nine.

ii. The case therefore involved repeated sexual assault of a victim who, on both occasions, had yet to reach her age of majority and was therefore a child in the eyes of the law. In other words, that case involved an offender’s sexual abuse of a child.

iii. As paragraph 39 of the decision by the sentencing judge in that case makes clear, the custodial sentence he imposed therefore understandably was guided primarily by the appropriate sentencing range for sexual offences against children indicated by the Supreme Court of Canada in R. v. Friesen, supra; i.e., a sentencing range, (expressly intended to be more severe than that applicable to offenders committing similar crimes in relation to adult victims), wherein mid-single digit penitentiary terms for sexual offences against children were said to be normal, with upper-single digit and double-digit penitentiary terms being neither unusual nor reserved for rare or exceptional cases.

iv. While A. was just 18 at the time of the sexual assaults perpetrated by Mr G. in this case, and her corresponding youth and vulnerability still has relevance for the reasons I outlined earlier, the situation nevertheless is not one involving “sexual offences against a child”, bringing the matter within the sentencing range applicable to such situations, including the one that was before the court in R. v. M.S., supra.

v. In the result, I do not find that sentencing precedent to be directly analogous or applicable in the current context, insofar as it is distinguishable on that fundamental ground, and offers no discernible basis for determining what custodial sentence would have been imposed if the stepdaughter victim in that case had been 18 at the time of the underlying sexual assaults. At most, I think, one might reasonably infer that the custodial sentence then would have been lower; i.e., having regard to R. v. Friesen, supra, and its emphasis that sexual offences committed in relation to children generally need to be punished more severely than those committed in relation to adults. How much lower nevertheless remains a matter of speculation.

vi. Moreover, even if one could discern the extent to which the custodial sentence on M.S. would have been reduced from the seven-year sentence imposed, if the victim in that case had been an adult at the time of the underlying sexual assaults, arriving at a suitable sentence for Mr G., based on that modified and uncertain “benchmark”, then would require a further upwards adjustment to reflect the reality that both of his sexual assaults involved successful forced vaginal intercourse, and that the first involved unwanted cunnilingus as well.

g. The second sentencing precedent to which I was referred by Crown counsel, for purposes of suggested parity comparison, was R. v. Shen, 2024 ONSC 1074. In that case, the offender was found guilty of sexual assault, after trial by judge alone. In that regard:

i. Although the case involved one finding of guilt, in relation to the single-count indictment, the trial judge found that the accused had sexually assaulted the adult complainant twice during the same encounter; i.e., such that the offender, as in this case, actually was being sentenced in relation to two sexual assaults. In particular:

1. At the time of the underlying sexual assaults, the offender was about to turn 21 and the victim was 23. They had met on only one prior occasion, at a particular nightclub. On the occasion of the two sexual assaults, they once again had happened to meet at the same nightclub, where they spent time drinking and dancing. When they left that nightclub together in the early morning hours, the offender was not under the influence of alcohol, but the victim was clearly intoxicated. The offender and an unidentified male companion then spent the next 1½ hours trying to locate a hotel in downtown Toronto with a vacant room where the offender could have sexual intercourse with the victim. When they eventually located and arrived at that hotel, the victim was intoxicated to the point where she clearly lacked capacity and actually was unconscious. The offender and his unidentified male companion then carried the victim through the hotel lobby and onto an elevator, with the unidentified male companion returning to the lobby a short time later. The trial judge found that the offender thereafter:

a. sexually assaulted the victim by engaging in unprotected vaginal intercourse with the complainant while she was obviously unconscious, and therefore incapable of consenting to any sexual activity; and

b. then sexually assaulted the victim again later that morning, by way of further unprotected vaginal intercourse, after the victim had woken up, got dressed and tried to leave the hotel room.

ii. Aggravating factors identified by the sentencing judge included the victim’s vulnerability, premeditation over the course of almost two hours, the offender enlisting the help of another to facilitate commission of the offence, assault of the victim while she was unconscious, the offender engaging in unprotected vaginal intercourse, (thereby exposing the victim to the risk of pregnancy and sexually transmitted disease), the offender taking video and photos of the victim while she was naked and sharing one such photo with another person, and the significant impact of the sexual assaults on Mr Shen’s victim.

iii. Mitigating factors identified by the sentencing judge included the offender’s lack of any criminal record or other outstanding charges, his youthfulness, (i.e., only 20 years old at the time of his offensive behaviour), his history of consistent education, employment and other generally prosocial behaviour, and strong support from his family and friends.

iv. After noting the range of sentence for such misconduct now established by our Court of Appeal in R. v. A.J.K., supra, and the absence of any highly mitigating factors that would take the matter out of that range, the sentencing judge imposed a sentence of 4½ years, prior to the offender receiving credit for time spent in presentence custody.

v. By way of comparison and contrast with the case before me:

1. There are some obvious commonalities between the two cases, insofar as both involved two sexual assaults involving forced vaginal intercourse.

2. Some of the aggravating factors identified by the sentencing judge in that case are absent or less serious in this one; e.g., insofar as Mr G. was able to perpetrate his two sexual assaults without assistance, used a condom during his first sexual assault, is not said to have taken any photos or video of A., and neither of his sexual assaults occurred while A. was completely unconscious.

3. In numerous other respects, however, the aggravating factors present in this case are shared, more serious and/or supplemented by considerations that were not present in the case of Mr Shen, and the mitigating considerations, such as they were in the case of Mr Shen, seem less in the case of Mr G. For example:

a. A. may not have been intoxicated or unconscious at the time of the sexual assaults committed by Mr G., but she was vulnerable for the other reasons I have identified, and also groggy from sleep at the time of the second sexual assault.

b. While Mr Shen apparently contemplated and planned his intended sexual assaults for approximately two hours before their commission, Mr G. indicated, by his own statements to A., that he had been thinking of her sexually for months before the time of his first sexual assault, and his indications of sexual intent towards A. continued thereafter on an intermittent basis for a further 1-2 months before he sexually assaulted her again.

c. The sexually offensive behaviour of Mr G. included not only two instances of forced vaginal intercourse, but unwanted cunnilingus as well.

d. The relationship between Mr Shen and his victim seems to have been little more than passing acquaintance, with his sexual assaults involving nothing comparable to the horrendous abuse of the stepfather position of trust that facilitated the sexual assaults perpetrated by Mr G.

e. Mr Shen sexually assaulted his victim in a hotel room, whereas Mr G. violated A. repeatedly in her own home, and in her own bedroom and bed.

f. While the impact of Mr Shen’s sexual assaults on his victim were serious, and likened to that generally experienced by sexual assault victims, (e.g., involving feelings of depression, sleeplessness, a sense of violation, distrust, shame and loss of self-esteem), there was no indication, (as one might have expected had it occurred), of Mr Shen’s victim also having experienced the loss of her familial relationships or support, or experiencing torment to the point of attempted suicide.

g. Unlike Mr Shen, Mr G. can hardly be considered a youthful offender. To the contrary, he was almost twice the age of Mr Shen when he committed his sexual assaults.

4. On balance, it seems to me that Mr G. merits a more severe custodial sentence than that imposed on Mr Shen.

h. The third sentencing precedent to which I was referred by Crown counsel, for purposes of suggested parity comparison, was R. v. Silveira, 2024 ONSC 757. In that case, the offender also was found guilty of sexual assault, after trial by judge alone. In that regard:

i. The described facts indicate a finding that the accused had sexually assaulted the adult victim on a single occasion. In that regard:

1. At the time of the offence, the offender was 22 and his victim was 21.

2. The two apparently were casual acquaintances who had met while attending professional soccer games. When they then agreed to meet outside that context on a specific date, the victim made it clear she was not interested in something sexual, and the offender indicated that was not his intention.

3. When the victim then attended the offender’s home, the two watched a program while sitting on his bed, after which the offender tried to kiss her. When the victim told the offender to stop, and reminded him that they already had talked about her not wanting anything sexual to occur, the offender was insistent, emphasizing his view that there was “sexual tension” between them. When the offender insisted on giving the victim a “massage”, after her saying “no” five times, the victim felt obliged to agree as the offender was persistent and she was feeling increasingly anxious. During the ensuing “massage”, the offender then insisted on removing the victim’s clothing, despite her repeatedly telling him to stop. The offender similarly then proceeded to engage in forced vaginal intercourse with the victim, without use of a condom, despite her crying and repeatedly saying “no”. When the offender announced that he was about to ejaculate inside the victim, she struggled harder, while yelling at him not to do that, and he ejaculated on her back. The sexual activity was said to have lasted approximately five minutes.

4. In an impact statement provided to the court, the victim described how the sexual assault had affected her school, home and work life over the intervening five years; e.g., causing her to struggle with academics during her remaining time at college, while experiencing loss of identity, anxiety, and various symptoms associated with her Post Traumatic Stress Disorder, including random flashbacks, sleep disorders including nightmares, poor concentration, constant tension and never feeling able to regulate her emotions.

ii. Aggravating factors identified by the sentencing judge included the offender persisting with his sexual assault despite the victim’s prior and contemporaneous indications that she did not want to engage in sexual activity and wanted him to stop, the serious violation of the victim’s sexual integrity through being subjected to forced vaginal intercourse, the offender’s failure to use a condom in that regard, and the significant psychological harm suffered by the victim.

iii. Mitigating factors identified by the sentencing judge included the offender’s lack of a criminal record, his youthfulness at the time of his offence, his familial support, and what the sentencing judge considered to be potential for rehabilitation despite the absence of remorse.

iv. In the result, the sentencing judge imposed a custodial sentence of 3½ years.

v. By way of comparison and contrast:

1. In my view, the offences committed by Mr G. exhibit all of the aggravating factors identified in Mr Silveira’s case and many more. Without limiting the generality of the foregoing:

a. Mr G. similarly persisted with his sexually offensive behaviour, despite repeated verbal and physical indications by A. that she did not want to engage in sexual activity with him and wanted him to stop what he was doing.

b. Mr G. violated A.’s sexual integrity not only through forced vaginal intercourse but unwanted cunnilingus as well.

c. Mr G. sexually assaulted A. on two separate occasions rather than one, with both involving forced vaginal intercourse.

d. Mr Silveira sexually assaulted his victim when she attended at his home, whereas Mr G. sexually assaulted A. repeatedly in her own home, and in her own bedroom and bed.

e. Nothing surrounding the circumstances of the sexual assault committed by Mr Silveira involved any abuse of a position of trust, let alone circumstances remotely akin to the egregious breach of trust committed by Mr G. through abuse of his longstanding position as A.’s stepfather.

f. While the impact of Mr Silveira’s single sexual assault on his victim was significant and serious, the impact on A.’s life seems to have been more substantial; e.g., insofar as it prevented her from completing her university studies, forever severed her few familial relationships, and tormented her to the point of attempting suicide.

2. At the same time, in my view the mitigating considerations in the case of Mr G. have less force than those that were present in relation to Mr Silveira. Like Mr Shen, Mr Silveira was a youthful offender, while Mr G. is not. Because of his far more advanced age, and apparently inevitable deprivation of the familial and community support he currently enjoys, his potential for rehabilitation also is not as strong.

3. In my view, the circumstances of Mr G. accordingly warrant a significantly greater custodial sentence than that imposed on Mr Silveira.

[49] Counsel for Mr G. referred me, for purposes of comparison, to the following three sexual assault sentencing precedents, two of which were released in 2023 and one of which was released earlier this year, such that they too all post-date R. v. Barton, supra, R. v. Friesen, supra, and R. v. A.J.K., supra:

a. In R. v. J.D., 2023 ONSC 1088, the offender was found guilty of a single incident of sexual assault after trial by judge alone. In that regard:

i. The victim was the offender’s 18-year-old niece by marriage, (i.e., the biological niece of the offender’s wife), who was visiting the home of the offender and the offender’s family at the time of the sexual assault. The assault occurred in the home’s living room, after the offender’s wife and children had gone upstairs to bed. The offender touched and fondled the victim’s breast for several minutes, before digitally penetrating her vagina. Although the victim then dozed off for a time, she woke to find that her shorts had been moved to the side, and that the offender was once again digitally penetrating or “fingering” her vagina. The victim “froze” and kept her eyes closed while the digital penetration continued, until the offender stopped and left the living room.

ii. The sentencing judge found that the sexual assault between the offender and his much younger victim took place in circumstances wherein the offender had occupied a position of trust, power or authority.

iii. The victim indicated, through statements made to the author of a presentence report and a formal victim impact statement, that the sexual assault had caused her to experience distrust of men, and a more devastating loss of trust in those around her, (including family members), as well as feelings of guilt, paranoia, an overwhelming feeling of being “useless”, and other symptoms of Post Traumatic Stress Disorder. The sexual assault also had required her to take a leave of absence from her place of employment.

iv. Aggravating factors identified by the sentencing judge, (and described as “plentiful and serious”), included what was characterized as a “gross abuse of trust” committed by the offender in violating his niece, the vulnerability of his victim, (who was characterized as “barely an adult” at the time of the sexual assault), the fact that the offender was “much older” than his victim, (insofar as the victim was 18 at the time of the offence and the offender was 42 at the time of sentencing), what was said to be the “varied” nature of the sexual assault, (insofar as it included not only fondling of the victim’s breast but digital penetration), the fact that the assault “was not momentary but lasted several minutes in its totality”, the fact that the sexual assault had started when the victim was asleep, and what was characterized as the “devastating impact” experienced by the victim.

v. Mitigating considerations identified by the sentencing judge included the offender’s lack of any criminal history, his community support and general good character, (emphasized by numerous reference letters supplied by family and friends, including his new partner), and collateral consequences he had suffered and/or was facing as a result of the sexual assault charge, including loss of his previous marriage and uncertain immigration prospects insofar as he was merely a landed immigrant in Canada.

vi. In the result, J.D. received a custodial sentence of three years.

vii. By way of comparison and contrast:

1. There are clearly some points of similarity between the two situations, insofar as both involved a breach of trust based on a familial relationship, a comparable age difference between the two offenders and their vulnerable 18-year-old victims, and immigration consequences as a result of the underlying misconduct.

2. However, in my view the aggravating factors in the case of Mr G. are clearly more numerous and/or serious. In particular:

a. While both cases involved breach of trust based on a familial relationship, the Supreme Court of Canada has emphasized that such positions of trust lie on a spectrum, and in my view a stepfather’s violation of a stepdaughter is clearly more egregious than an uncle’s violation of a niece by marriage.

b. In contrast to J.D., Mr G. sexually assaulted his victim in her own home.

c. Mr G. committed two sexual assaults, rather than one.

d. The sexual assault committed by J.D. was much shorter than either of the sexual assaults perpetrated by Mr G.

e. During each of the sexual assaults perpetrated by Mr G., the violation of his victim’s sexual integrity was far more invasive and egregious than that perpetrated by J.D. in relation to his victim, and exposed A. to far greater risks.

f. While the impact on both sexual assault victims was significant, the impact on A. of the misconduct by Mr G. seems to have been more serious; e.g., to the point of being life-threatening.

3. Moreover, although the mitigating considerations in both cases generally seem similar, those favouring J.D. arguably were more compelling. In particular, the underlying criminal conduct of J.D. had resulted in an additional collateral consequence in the form of a lost marriage, and beyond acting as a father figure to the child of his new partner and fiancé, with whom he was starting a new family, J.D. already had two children of his own in Canada to whom he had been a good father from the time of their birth, both of whom apparently were still dependent on him for support.

4. In my view, the circumstances of Mr G. clearly warrant imposition of a much more severe sentence than that imposed on J.D.

b. The second sentencing precedent to which I was referred by defence counsel, for purposes of suggested parity comparison, was R. v. LaCombe, 2023 ONSC 1975. In that case, the offender was found guilty of sexual assault, after trial by judge alone. In that regard:

i. Although the case seems to have involved one finding of guilt, in relation to a single-count indictment, the trial judge found that the 54-year-old offender actually had sexually assaulted the adult but “somewhat younger” victim, (the offender’s former intimate partner), on four occasions during the course of a dating relationship that extended over the course of approximately eight months, after they connected through a dating application. In particular:

1. The first incident occurred during their first in-person meeting, when the offender took the victim to his home to watch a movie. When the victim became sleepy, the offender carried her to his bedroom, removed her clothing, and attempted to have vaginal intercourse while the victim was telling him to stop and trying to push him away. The offender was not able to fully penetrate the victim and, after a short period of time, stopped trying. The two then laid on the bed and talked before the victim spent the night with the offender, and decided to continue seeing him.

2. The second incident occurred approximately six months later, when the offender arrived at the victim’s apartment after the exchange of some text messages, wherein the offender indicated his desire for sexual activity, the victim indicated she did want to have sexual intercourse because she was experiencing her period and menstrual cramps, and the possibility of oral sex was raised as an alternative. Although the victim then performed fellatio on a consensual basis, the accused was not satisfied with her efforts and engaged in forced vaginal intercourse terminated by ejaculation, despite the victim crying and unsuccessfully trying to resist.

3. The third incident occurred 12 days after the second, when the offender once again attended at the victim’s apartment to pick her up for an agreed trip to a car show being held at a campground, with a contemplated overnight stay in the offender’s van at that campground. Upon arrival at the apartment, the offender nevertheless touched the victim’s vagina, used his body to move the victim to her bed, and then engaged in vaginal intercourse despite the victim saying she did not want that to happen, and the victim “just lying there”, with the intercourse stopping short of ejaculation because the offender said he was “overheating”.

4. The fourth and final incident occurred that night, in the aforesaid van, at the relevant campground, when the offender indicated that he needed to “cum” and once again engaged in forced vaginal intercourse despite the victim telling him “no”, with the intercourse once again stopping short of ejaculation because the offender said he was “overheating” again.

ii. Aggravating factors included the number of sexual assaults, their commission in circumstances involving a breach of trust vis-à-vis an intimate partner, (although the sentencing judge felt that was offset by the victim wanting to continue the relationship and couple’s discussions regarding the problematic sexual aspect of their relationship), the penetration or attempted penetration involved in the assaults, and their impact on the victim, who had experienced feelings of shame, sadness, isolation, fear, embarrassment and worry that she would not be believed, all of which led her to isolate herself from family and friends for a time.

iii. Mitigating factors included the following:

1. The offender had a somewhat difficult and challenging upbringing, with his parents separating when he was 12, and the accused, at the age of 18, literally building a home for occupation by himself, his mother and his sister.

2. The offender essentially being regarded as a first-time offender, insofar as the sentencing judge regarded the offender’s criminal record as dated, relatively minor and not a factor deserving of any weight, and the offender had no history of any other violent or abusive conduct.

3. The offender suffered from numerous serious and debilitating health conditions, which the sentencing judge felt would make service of any custodial sentence extremely difficult for him. They included back and neck injuries sustained in a number of previous motor vehicle accidents, (which had brought an end to the offender’s employment and reduced him to living on disability payments and social assistance), chronic renal failure secondary to overuse of pain medication, high blood pressure, heart palpitations of unknown causation, at least one previous heart attack, difficulty walking that necessitated use of an electric scooter for mobility, ongoing difficulties being experienced with his prescribed medications, and a variety of other medical problems. His cardiologist also emphasized the importance of Mr LaCombe not being placed in stressful situations.

4. The offender had an extended prosocial history including extended employment involving hard work in the mining industry and his own excavation business, a previous lengthy marriage lasting 22 years, (in respect of which his still supportive first wife and the couple’s two daughters confirmed no history of sexual violence, and the accused having been a good husband and excellent father), and a subsequent ongoing marriage of seven years in which the offender had assumed a parental role to a son his new wife had from a previous relationship, and another son born to their relationship. The offender nevertheless effectively had been deprived of that relationship, and further immediate contact with his new wife and sons, as his wife was a citizen of the Bahamas, the offender’s immigration sponsorship of his wife was turned down based in part on the criminal proceeding for which he was being sentenced, and his wife voluntarily returned to the Bahamas with the children to avoid being forcibly removed from Canada.

iv. The sentencing judge characterized the situation as “a difficult case from a sentencing perspective”; e.g., indicating that the number of attempted or successful penetrative sexual assaults normally would be expected to take the sentence upwards from the bottom of the sentencing range suggested by R. v. A.J.K., supra, particularly having regard to the intimate partner context and associated breach of trust, but emphasizing that had to be offset against the numerous mitigation factors, including the accused’s extensive prosocial history and precarious health situation, which apparently was given significant weight, albeit expressly not enough to take the matter below the general range of sentence contemplated by R. v. A.J.K., supra. Ultimately, the sentencing judge determined that a custodial sentence of three years was appropriate to strike the “best balance” of all the relevant factors and considerations.

v. In my view, comparisons and contrasts between Mr LaCombe’s case and the situation now before me are less than straightforward. In that regard:

1. There are some apparent commonalities; e.g., insofar as Mr LaCombe and Mr G. each had a lengthy prosocial history prior to their offensive conduct, (although that of Mr LaCombe was more extended), and their misconduct resulted or will result in effective forced separation from their new families, as a collateral consequence over and above service of their respective custodial sentences.

2. While the breach of trust inherent in abuse of an intimate partner and the breach of trust inherent in a stepfather’s abuse of a stepdaughter clearly are both serious matters, in my view the latter seems more so; e.g., in light of the inherently increased power imbalance between a parent and child, compared to that of the inherently more equal status of intimate partners. In other words, the position of trust occupied by a stepfather seems higher along the spectrum described by the Supreme Court of Canada in that regard. In any event, the existence of a greater balance of power between Mr LaCombe and his intimate partner victim seems highlighted by comments of the judge who sentenced Mr LaCombe; e.g., comments suggesting the judge regarded the seriousness of the breach of trust in that case as somewhat attenuated by the victim’s decision to pursue an ongoing relationship with Mr LaCombe after their first meeting and its attendant sexual assault, and by ongoing discussion between the couple about that problematic aspect to their sexual relationship. Moreover, insofar as Mr LaCombe’s victim was older than A., and clearly had the ability to maintain an independent existence from her assailant, (including maintenance of her own separate residence throughout the relevant dating relationship), Mr LaCombe’s sexual assault victim clearly was less vulnerable than that of Mr G.

3. While two of the sexual assaults committed by Mr LaCombe took place in the residence of his victim, the others did not. All of the sexually assaultive behaviour of Mr G. took place in A.’s home.

4. The fact that Mr G. committed fewer successful sexual assaults than Mr LaCombe, (i.e., four rather than two), and fewer successful penetrative assaults than Mr LaCombe, (i.e., three rather than two), normally would suggest that Mr G. should receive a more a more lenient sentence. However, one of the sexual assaults committed by Mr G. arguably was more invasive than those committed by Mr LaCombe, insofar as it involved not only forced vaginal intercourse but also unwanted cunnilingus. Perhaps most importantly, however, the comments of the judge who sentenced Mr LaCombe expressly recognized and emphasized that the custodial sentence he was imposing was unusual in terms of its not reflecting a severity of sentence otherwise suggested by the number and nature of Mr LaCombe’s sexual assaults; i.e., a sentence driven in large measure by the particular mitigating considerations identified in relation to Mr LaCombe, which the judge clearly viewed as significant in that case.

5. In contrast to Mr LaCombe, Mr G. does not share a number of those significant mitigating considerations, or share them to the same extent. In particular, Mr G. had no challenging upbringing, has a prosocial history less extensive than that of Mr LaCombe, and perhaps most importantly, apparently enjoys good health and none of the serious health problems that clearly were given significant weight in the sentencing of Mr LaCombe.

6. On balance, I think the circumstances of Mr G. warrant imposition of a sentence significantly greater than that imposed on Mr LaCombe.

c. The third and final sentencing precedent to which I was referred by defence counsel, for purposes of suggested parity comparison, was R. v. S.W., 2024 ONCA 173. In that case:

i. The offender, (whose age is not mentioned in the decision, but who was old enough at the time of his offensive conduct to have three children between the ages of 10 and 12 from a prior relationship), was found guilty of sexual assault after a judge-alone trial in the Ontario Court of Justice.

ii. Although the case appears to have involved a single count of sexual assault, the trial judge found that the offender actually had sexually assaulted the victim, (his cohabiting intimate partner), four separate times over the course of approximately two hours on the night in question; i.e., by engaging in four separate acts of forced vaginal intercourse with the victim after she had gone to bed During and throughout each of the four instances, the complainant pretended to be asleep, hoping that the offender would stop what he was doing, while also worrying about waking the offender’s three young children who were sleeping close by. Each time, however, the offender pulled down the complainant’s pants and underwear, penetrated her vagina with his penis, had nonconsensual sexual intercourse for approximately 5-10 minutes, and ejaculated inside the victim, without use of a condom. Between each act of intercourse, the offender got up and left the room for a time, before returning for the next such act.

iii. Aggravating factors identified by the trial judge included commission of the offender’s sexual assaults against an intimate partner; the offender’s perpetration of the sexual assaults against a victim who appeared to be sleeping and/or otherwise unconscious, regardless of whether she was merely pretending to be so; the offender’s failure to use a condom; and the psychological harm suffered by the victim, who described the experience as living through her “worst nightmare”. The contemporaneous presence of children in the home was expressly rejected as an aggravating factor, insofar as the children were oblivious to what had taken place.

iv. Mitigating considerations identified by the trial judge included: the offender’s lack of a criminal record; the offender’s demonstration of a generally prosocial life of good character, (e.g., through no history of abusing drugs or alcohol, steady employment for more than 16 years and pursuit of professional qualifications, regularly caring for and spending time with his parents who considered him to be a good son and a good man, and being a great father to this three children, one of whom had autism); the offender suffering from anxiety sufficient to end a desired career path; the offender’s compliance with the conditions of his interim release for 46 months without any breach; the offender expressing considerable remorse for his actions; and the offender proactively and voluntarily attending counselling since the time of his offensive conduct. The fact that the offender was not more violent while committing his sexual assaults was expressly rejected as a mitigating factor.

v. At first instance, the trial judge imposed a conditional sentence of two years less a day, to be followed by one year of probation. However, our Court of Appeal found that sentence to be demonstrably unfit, and substituted a custodial sentence of three years; i.e., the custodial sentence the Crown had sought at first instance. In doing so, our Court of Appeal noted that the circumstances of the offence and the offender did not justify a departure from the 3-5 year sentencing range for such a sexual assault, (i.e., the sentencing range for penetrative sexual assaults indicated in R. v. A.J.K., supra), but emphasized that the offender had no criminal record, had expressed some remorse, and had close ties with his parents and children. Having regard to all the circumstances, our Court of Appeal felt that a three-year custodial sentence would achieve the objectives of denunciation and deterrence in that particular case, while simultaneously “having regard to the specific circumstances and moral blameworthiness of the respondent”.

d. By way of comparison and contrast with the case of Mr G.:

i. While sexual abuse of an intimate partner and sexual abuse of an offender’s stepchild clearly are both serious matters, and both involve abuse of a position of trust, in my view the latter is more egregious having regard to the usual age disparities and the unequal balance of power inherent in such situations.

ii. While the four acts of forced sexual intercourse committed by S.W. might be regarded by some as one extended incident involving repeated applications of nonconsensual force of a sexual nature, (e.g., insofar as the offender apparently committed precisely the same act, in relation to the same victim, in precisely the same place, in a span of less than two hours, despite temporarily leaving the room between each act), our Court of Appeal expressly characterized the situation, as the trial judge had, as one where the offender had “sexually assaulted the complainant four times”. In contrast, Mr committed only two sexual assaults. In my view, however, the reality that Mr G. chose to sexually assault his victim on two separate occasions, rather than one, reflects more sustained and/or renewed criminal intent and premeditation, thereby increasing his moral blameworthiness compared to S.W., who engaged in a single two-hour period of wrongdoing.

iii. The first assault committed by Mr G. was both more invasive and less invasive than each of the four assaults committed by S.W.; i.e., insofar as it involved cunnilingus as well as vaginal intercourse, but the vaginal intercourse involved used of a condom. His second sexual assault was of the same nature as those committed by S.W.

iv. Unlike S.W., Mr G. did not commit his sexual assaults against a victim who appeared to be asleep or otherwise completely unconscious, although his second sexual assault was initiated while A. was still groggy from having just been woken from sleep and was more vulnerable in that regard.

v. While there is no indication of precisely how old S.W.’s victim was at the time of his sexual misconduct, it seems likely that she was older than A., (i.e., insofar as she was living with S.W., the father of children aged 10-12, as his intimate partner), and also an adult who had an independent existence prior to cohabiting with the offender. In that sense, A. seems likely to have been a more vulnerable victim for the reasons I outlined earlier; i.e., insofar as she was just 18, still living at home while pursuing her ongoing education, and not yet able to establish an independent existence.

vi. Both victims nevertheless were sexually assaulted within their own homes, and in their own beds, where they were entitled to feel safe.

vii. While the impact on S.W.’s victim was described as her “worst nightmare”, and clearly should not be minimized, that brief description of the impact the incident had on her suggests that the devastating consequences experienced by A., as a result of the sexual assaults perpetrated by Mr G., were much more serious.

viii. Mr G. shares some of the mitigating considerations identified in relation to S.W., albeit arguably not to the same extent; e.g., insofar as Mr G. also lacks a criminal record, has no history of abusing drugs or alcohol, and also has a generally prosocial history, including an extended work history and efforts made to improve his qualifications. However, Mr G. lacks indications of ongoing support and interaction vis-à-vis his parents and, compared to S.W., seems to have devoted less time to active and successful parenting. Nor are there any indications that Mr G. suffers from anxiety, or any other debilitating condition.

ix. In contrast to S.W., Mr G. also has shown no remorse for his misconduct, and there is no indication that he proactively has taken any steps, (such as counselling), specifically aimed at addressing his sexually assaultive behaviour.

x. While not emphasized as an express constraint on the sentence the Court of Appeal thought fit to substitute on appeal, in the case of S.W., it seems unlikely that the Court of Appeal would have been inclined to impose a custodial sentence higher than the three-year sentence being requested by the Crown at first instance and on appeal in that particular case.

xi. While a comparison of the two situations is not straightforward, I accordingly am inclined to think the overall circumstances of Mr G. and his offensive conduct merits a more severe sentence than that imposed on S.W., notwithstanding the consideration that S.W. was said to have committed four sexual assaults rather than two.

Consecutive or concurrent sentencing

[50] Before final determination and imposition of an appropriate sentence for the offences of Mr G., I turn to principles and considerations relevant to whether the custodial sentences imposed on Mr G., in relation to his two sexual assault convictions, should be served consecutively rather than currently. In that regard:

a. I am mindful of subsection 718.3(4)(b) of the Code, which generally provides that a court sentencing an accused shall consider directing that the terms of imprisonment that it imposes at the same time for more than one offence be served consecutively, and subsection 718.3(4)(b)(i) of the Code, which provides that the circumstances in which subsection 718.3(4)(b) applies include, (but are not limited to), situations where the multiple offences in respect of which a court is simultaneously imposing sentence do not arise out of the same event or series of events.

b. I also am mindful of appellate authority indicating a “general” rule or “basic” approach that sentences for offences that are separate and distinct, (e.g., because they occur on separate occasions), generally will be served consecutively, while sentences for offences that are sufficiently connected or related because they arise out of the “same transaction”, “a single transaction”, “a single criminal adventure” and/or “a single enterprise”, (usually determined by whether the acts constituting the offence were part of a linked series of acts within a single endeavour, having regard to such matters as the nature and timing of the offences), generally will be served concurrently. The same appellate authorities nevertheless also emphasize the inherent difficulty of exemplifying circumstances where consecutive or concurrent sentences should be imposed, as the sentence imposed in any case always depends on the particular circumstances involved, which inevitably will embody a wide range of pertinent but varied factors. Indeed, appellate courts have thought it “impractical and undesirable” to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether sentences should be ordered to be served consecutively or concurrently. Ultimately, the “tests” in that regard are very flexible, and turn on fact-specific inquiries. See, in that regard: R. v. Charchuk (1973), 1973 CanLII 2351 (NS CA), 6 N.S.R. (2d) 519 (C.A.); R. v. Desmarest, [1986] Q.J. No. 1611 (C.A.); R. v. Crocker, 1991 CanLII 2737 (NL CA), [1991] N.J. No. 303 (C.A.); R. v. W.(G.P.), [1998] B.C.J. No. 838 (C.A.); R. v. Lynch, [1999] O.J. No. 241 (C.A.); R. v. Mascarenhas, 2002 CanLII 41625 (ON CA), [2002] O.J. No. 2989 (C.A.); R. v. Beyse, 2006 NBCA 55; R. v. Dube, 2006 QCCA 699; R. v. Newhook, 2008 NLCA 28, [2008] N.J. No. 258 (C.A.); R. v. Wozny, 2010 MBCA 115, [2010] M.J. No. 384 (C.A.); and R. v. Leroux, 2015 SKCA 48. See also Clayton C. Ruby et al., Sentencing, 7^th^ ed. (Markham: Lexis Canada Inc., 2008).

c. In this case, it might be argued, (although counsel for Mr G. did not do so, or at least do so expressly), that the two sexual assaults committed by Mr G. should be viewed broadly as part of the same criminal transaction, enterprise or endeavour; e.g., insofar as the two offences committed by Mr G. arguably were the product of an ongoing scheme wherein he targeted the same victim for sexual assault, within the same residence, with the similar objective of engaging in sexual interaction leading to forced vaginal intercourse.

d. In my view, however, it is more appropriate to view the situation in this particular case as involving two separate and discrete sexual assaults, which should be addressed by consecutive rather than concurrent custodial sentences. Without limiting the generality of the foregoing:

i. The two sexual assaults were not reasonably contemporaneous, but were separated in time by approximately six to eight weeks.

ii. Having regard to statements made at the time by Mr G. himself, (described by A. during her testimony at trial, and the making of which I accept), the two sexual assaults committed by Mr G. did not reflect ongoing and uninterrupted criminal intent on his part. To the contrary, when A. was crying after the first sexual assault, and indicating repeatedly that she had not wanted Mr G. or what he had done, Mr G. responded by expressly and repeatedly indicating that there accordingly would be no further sexual activity between them. Based on his own indications, the second sexual assault, which he committed significantly later in time, therefore reflected a change of plan on his part, and formation of a new criminal intent to perpetrate a further offence.

iii. While both sexual assaults involved the same victim and forced vaginal intercourse, within the same residence, there also were notable and significant dissimilarities between the two incidents. For example:

1. the first sexual assault involved forced kissing and cunnilingus in addition to forced vaginal intercourse, whereas the second sexual assault did not involve cunnilingus;

2. while both sexual assaults occurred within the victim’s home, the second occurred within her own bedroom and bed, and therefore constituted an even greater incursion into the places where she should have felt safe and secure;

3. while both sexual assaults involved forced vaginal intercourse, the intercourse that occurred during the second sexual assault was more invasive and placed the victim at greater risk of harm, insofar as no condom was used on that second occasion; and

4. as noted above, repetition of sexual assault significantly and foreseeably increases resulting harm to a victim, multiplying the immediate harm experienced during the sexual assaults as well as making the long-term emotional and psychological harm more pronounced, all of which magnifies the severity of that repeated offending.

iv. In my view, the custodial sentences imposed on Mr G. for each of his two offences therefore should be served consecutively, rather than concurrently.

[51] In reaching that conclusion, I nevertheless remain mindful that the simultaneous imposition of consecutive sentences requires consideration of the totality principle reflected in s.718.2(c) of the Code; i.e., a provision indicating that, “where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh”.

[52] In that regard, as noted by the Supreme Court of Canada in R. v. Friesen, supra, at paragraphs 37 and 157, and by our Court of Appeal in R. v. Owusu-Sarpong, 2023 ONCA 336, at paragraphs 23-30:

a. Two methods have been used by courts across Canada to apply the totality principle when imposing consecutive sentences, whereby:

i. some courts consider individual sentences for each offence first, and then check to ensure that the total sentence resulting from the imposition of sentences to be served consecutively does not exceed the offender’s overall culpability; and

ii. other courts begin with an articulation of the overall fit sentence, and then impose individual sentences which add up to the overall total or global sentence the court considers appropriate to reflect the gravamen of the offender’s overall criminal conduct.

b. While the latter method is the one primarily used or “established” here in Ontario, neither method constitutes an error in principle.

c. If done properly, both methods can be appropriate ways to ensure that the total sentence is not overly long and harsh, and not disproportionate to the gravity of the offences and conduct of the offender.

[53] In this case, I intend to employ the former method.

Assessment – Appropriate custodial sentence

[54] With all of the above considerations in mind, I turn finally to assessment of an appropriate sentence to be imposed on for Mr G. for his two offences in this particular case, starting with determination of the appropriate custodial sentences to be imposed.

[55] By way of further overview comments in that regard:

a. For reasons outlined above, I consider the aggravating factors in relation to each of the two sexual assaults committed by Mr G. to be significant and substantial, and not offset to any considerable extent by the mitigating considerations I have mentioned, particularly when one bears in mind the paramount sentencing objectives of denunciation and deterrence in this context.

b. In my view, the gravity and moral blameworthiness of each of the two sexual assaults should be viewed as serious, and falling within the mid to high end of the scale.

c. Without limiting the generality of the foregoing, having regard to all the circumstances surrounding each of these particular sexual assaults:

i. I certainly find no “highly mitigating factor” that would justify a custodial sentence, in relation to either sexual assault, viewed independently, anywhere below the sentencing range set forth in R. v. A.J.K., supra, applicable to a sexual assault involving the forced penetration of another person.

ii. I also think it would be entirely inappropriate and unjust to regard either sexual assault as one capable of being addressed adequately, (in terms of proportionality, denunciation and deterrence), by a custodial sentence at the very bottom of that sentencing range; i.e., a custodial sentence of just three years. In my view, addressing both sexual assaults globally via such a three-year sentence would merely compound that injustice.

d. For reasons outlined above, I also generally regard the second sexual assault committed by Mr G. as more serious than the first, in terms of gravity and moral blameworthiness.

[56] It has been said many times, and in many ways, that determination of an appropriate custodial sentence is more of an art than a science. However, having regard to all the circumstances and considerations outlined above, in my view appropriate custodial sentences for each sexual assault committed by Mr G., (prior to consideration of their possible modification through application of the totality principle), would be:

a. in relation to the first sexual assault, a custodial sentence of four years; and

b. in relation to the second sexual assault, a custodial sentence of 4½ years.

[57] As the custodial sentences of Mr G. are to be served consecutively rather than concurrently, (for the reasons outlined above), that initially would suggest imposition of a global custodial sentence of 8½ years.

[58] However, as noted above, I also am mindful of the need to check and ensure that the total sentence resulting from the imposition of sentences to be served consecutively does not exceed the overall culpability of Mr G. In that regard:

a. A global 8 ½ year custodial sentence, in relation to the two separate sexual assaults committed by Mr G., is not out of the question. In particular, it seems clear that global sentencing in relation to multiple separate incidents of sexual assault involving forced penetration is not confined strictly to the general three-to-five-year sentencing range discussed by our Court of Appeal in R. v. A.J.K., supra; i.e., an approach that might suggest a maximum five-year custodial sentence for the two separate sexual assaults of that nature committed by Mr G. Without limiting the generality of the foregoing:

i. as noted above, both the Supreme Court of Canada and our Court of Appeal have emphasized that such sentencing ranges generally are to be considered quantitative sentencing tools rather than “straitjackets”;

ii. consistent with that point, our Court of Appeal emphasized specifically, in relation to the three-to-five-year range suggested by R. v. A.J.K., supra, and R. v. Bradley, supra, that it was “just a range”, and that there will be circumstances where departures from that range are entirely appropriate; and

iii. in addressing that sentencing range in R. v. A.J.K., supra, at paragraph 77, our Court of Appeal spoke to “the forced penetration” (singular) of another person typically attracting a sentence within the noted three-to-five-year range, rather than to any global sentence for forced penetrations of that nature occurring on more than one occasion.

b. Having regard to all the circumstances, (and particularly the sentencing decisions that were put forward as suggested benchmarks for purposes of comparison), I nevertheless think the aforesaid custodial sentences, otherwise appropriate in relation to each of the two sexual assault convictions, can and should be reduced to reflect totality considerations, while still ensuring a global custodial sentence that is just and proportionate to the gravity of the offences committed by Mr G. and his degree of responsibility for that misconduct. Without limiting the generality of the foregoing:

i. I think it would be inappropriate if Mr G. received a global custodial sentence for his two sexual assaults exceeding the seven-year sentence imposed on M.S. for his two sexual assaults against a minor in circumstances that were not identical, for the reasons I have identified, albeit analogous in numerous respects;

ii. for the reasons I have identified, I think Mr G. nevertheless should receive a sentence greater than those imposed in the other cases to which I was referred, including a global custodial sentence significantly greater than the 4 ½ year sentence imposed on Mr Chen; and

iii. in my view, a global custodial sentence of six years would strike the proper balance of all the considerations I have noted, in relation to the circumstances of this particular case.

c. As for the individual sentences to be formally imposed in relation to each of the two counts in this case, to ensure they add up to the overall total or global sentence of six years I consider appropriate to reflect the gravamen of the overall criminal conduct of Mr G., tempered by considerations that include regard for the identified mitigating and collateral considerations as well as totality:

i. I already have indicated my view that the gravity and moral blameworthiness of the second sexual assault committed by Mr G. were higher than that of the first; a view that normally would be reflected in my formally imposing a higher individual custodial sentence in relation to Count 2 than the individual custodial sentence formally imposed in relation to Count 1.

ii. I nevertheless also think it important not to leave any mistaken impression, (e.g., through a possible cursory review of these reasons or otherwise), that I considered either of the sexual assaults committed by Mr G. deserving of a custodial sentence that was less than three years, and therefore below the sentencing range indicated in R. v. A.J.K., supra.

iii. As there is no mathematical way of addressing the objective in the preceding sub-paragraph while still apportioning the contemplated global custodial sentence between the two counts in a manner that does not result in the resulting consecutive sentences exceeding a total period of six years, I intend to impose the same consecutive custodial sentence of three years in relation to each count of the indictment.

[59] In particular, I find that:

a. in relation to his Count 1 offence of sexual assault, contrary to section 271 of the Criminal Code, Mr G. formally should receive a custodial sentence of three years, to be served consecutively in relation to the custodial sentence to be imposed for his Count 2 offence; and

b. in relation to his Count 2 offence of sexual assault, contrary to section 271 of the Criminal Code, Mr G. also formally should receive a custodial sentence of three years, to be served consecutively in relation to the custodial sentence to be imposed for his Count 1 offence.

[60] In other words, for the reasons outlined above, I will state again that I intend to impose a global custodial sentence of six years in this case.

Ancillary orders

[61] As for the various further ancillary orders requested by the Crown:

a. In the circumstances of this case, an order authorizing the taking from Mr G. of the number of samples of bodily substances reasonably required for the purpose of forensic DNA analysis is not only advisable but mandatory, having regard to the combined effect of subsection (a)(xi.3) of the definition of “primary designated offence” set forth in section 487.04 of the Code, and subsection 487.051(1) of the Code. An order in Form 5.03 therefore shall issue in relation to Mr G.

b. As noted above, our Court of Appeal emphasized in R. v. A.J.K., supra, (at paragraph 74), that all sexual assaults are serious acts of violence. The indictable offence of sexual assault repeatedly committed by Mr G. in relation to A. therefore inherently involved the use of violence against her. Sexual assault committed in relation to a victim over the age of 16 also is an indictable offence for which a perpetrator may be sentenced to imprisonment for a maximum of 10 years; i.e., a period of imprisonment “for ten years or more”, within the meaning of s.109(1)(a) of the Code. Pursuant to that subsection, a mandatory weapons prohibition order therefore is required and shall be made, prohibiting Mr G. from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance. Pursuant to s.109(2) of the Code, that mandatory weapons prohibition order shall begin today and remain in place for a period of 10 years, as these are Mr G.’ first convictions for sexual assault.

c. The making of non-communication orders pursuant to section 743.21 of the Code is discretionary. While there is no indication that Mr G. intends to communicate with A. in the future, I think it appropriate to provide her with further peace and assurance in that regard. She has been put through enough, without having to contemplate the prospect of possibly hearing from Mr G. while he is serving his custodial sentence. Moreover, while the Crown requested such a non-communication order only in relation to A., I independently think it appropriate to extend that order to the other two individuals whom the Crown called as witnesses at trial; i.e., K.M. and M.T. They were and apparently thankfully remain part of A.’s currently limited support network, and I think they too should be free from having to contemplate the possibility of Mr G. attempting to communicate with either of them during service of his custodial sentence. An order therefore shall be made prohibiting Mr G. from communicating directly or indirectly, during the custodial period of his sentence, with A.S., K.M. and/or M.T.

d. As for the Crown’s request for an order requiring Mr G. to comply with the Sex Offender Information Registration Act, (or “SOIRA”), for life or, in the alternative, a period of 20 years:

i. In R. v. Ndhlovu, 2022 SCC 38, the Supreme Court of Canada declared, inter alia, that section 490.012 of the Code as it then stood was constitutionally defective, (i.e., insofar as its provisions threatened the liberty interests of offenders in a manner which was overly broad and therefore contravened section 7 of the Charter, in a way that was not justifiable under section 1 thereof), and therefore of no force or effect. However, at paragraph 143 of its decision, the Supreme Court of Canada also indicated that its declaration in respect of section 490.012 was to be suspended for one year before the declaration then would apply prospectively.

ii. On October 26, 2023, (two days prior to the one-year suspension of the Supreme Court of Canada’s declaration of invalidity in relation to section 490.012 running its full course), Bill S-12, “An Act to Amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act”, received Royal Assent and became law.

iii. Pursuant to that legislation, extensive legislative amendments were made to the provisions of the Code relating to the making of SOIRA compliance orders. I will not attempt to reiterate all of those amendments here, but they include the following changes:

1. The previous definition of “designated offence” in subsection 490.011(1) has been removed and replaced by a new definition, found in the new subsection 490.011(1), indicating that a “designated offence” now means “a primary offence or a secondary offence” as further defined by the wording of the new subsection 490.011(1), which includes listings of indicated offences falling within the meanings of “primary offence” or “secondary offence”, with subsection (a)(xvii) of the “primary offence” definition expressly including the crime of sexual assault contrary to section 271 of the Code.

2. The previous version of section 490.012 has been removed and replaced by an entirely new section, the provisions of which are lengthy. However, they include a new subsection 490.012(3), which directs that, when a court imposes a sentence on a person for a designated offence in circumstances where neither subsection 490.012(1) nor subsection 490.012(2) applies, (and neither does in the particular circumstances of this case), it shall make an order in Form 52 requiring the person to comply with SOIRA unless the court is satisfied the person has established:

a. there would be no connection between making the order and the purpose of helping police services prevent or investigate crimes of a sexual nature by requiring the registration of information relating to sex offenders under that Act; or

b. the impact of the order on the person, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a serious nature, to be achieved by the registration of information relating to sex offenders under that Act.

3. The new section 490.013 contains provisions governing the duration of such orders. In that regard:

a. Subsection 490.013(1) provides that an order made under section 490.012 begins on the day on which it is made.

b. Subsection 490.013(2) provides, inter alia, that an order made under subsection 490.012(3):

i. subject to subsections 490.013(3) and (5), (the latter of which has no relevance to the present case), ends 10 years after it was made if the offence in connection with which it was made was prosecuted summarily or if the maximum term of imprisonment for the offence is two or five years;

ii. subject to subsections 490.013(3) and (5), (the latter of which once again has no relevance to the present case), ends 20 years after it was made if the maximum term of imprisonment for the offence is 10 or 14 years; and

iii. applies for life if the maximum term of imprisonment for the offence is life.

c. Subsection 490.013(3) provides, inter alia, that an order made under subsection 490.012(3) applies for life if, as addressed by sub-paragraphs 490.013(3)(a) and (b) respectively:

i. in the same proceeding, the person has been convicted of two or more designated offences in connection with which an order under any of subsections 490.012(1) to (3) may be made; and

ii. the court is satisfied that those offences demonstrate, or form part of, a pattern of behaviour showing that the person presents an increased risk of reoffending by committing a crime of a sexual nature.

d. Subsection 490.013(4) provides that, if subsection 490.013(3)(a) applies in the circumstances but the court is not satisfied as set out in subsection 490.013(3)(b), the duration of the SOIRA compliance order is determined by applying the provisions of sub-paragraph 490.013(2), described above, to the designated offence with the longest maximum term of imprisonment.

iv. In this case, it was not disputed that a SOIRA compliance order was required pursuant to the provisions of subsection 490.012(3) of the Code. In particular:

1. as noted above, the provisions of subsections 490.012(1) and (2) do not apply in the particular circumstances of this case;

2. as noted above, the provisions of subsection 490.012(3) therefore require the Court to impose a SOIRA order pursuant to that subsection, unless the court is satisfied that the offender has established that the situation falls within either of the two specified reasons for not making such an order set forth in subsections 490.012(3)(a) or (b); and

3. counsel for Mr G., (upon whom the burden of proof therefore lies in that regard), expressly indicated that no application would be made by Mr G. pursuant to subsection 490.012(3), asking the court to find that the situation falls within either of the two exceptions specified therein.

v. The parties similarly did not dispute, and I independently find, that the mandated SOIRA compliance order should have a duration of 20 years pursuant to subsection 490.013(2)(b) of the Code, (i.e., ending 20 years after it is made, as the maximum term of imprisonment for each of the two designated offences committed by Mr G. is 10 years), unless the Crown established that the order’s duration should be governed by subsection 490.013(3), so as to make the mandatory order applicable for life.

vi. In relation to subsection 490.013(3), it was not disputed, and I independently find, that the requirements of s.490.013(3)(a) have been satisfied; i.e., insofar as Mr G. unquestionably now has been convicted, in the same proceeding, of two designated offences, (i.e., two counts of sexual assault), “in connection with which an order under … subsection … 490.012(3) … may be made”.

vii. The dispute concerning application of subsection 490.013(3) therefore effectively turns on whether the Crown has met its onus of satisfying the court that the two designated offences committed by Mr G. “demonstrate, or form part of, a pattern of behaviour showing that [Mr G.] presents an increased risk of reoffending by committing a crime of a sexual nature”. In that regard:

1. Although Crown counsel essentially indicated that I was being asked to make a finding that the Crown had satisfied its onus in that regard, (i.e., by primarily requesting that the SOIRA compliance order to be made in relation to Mr G. apply for the duration of his life), Crown counsel, as noted above, also refrained from making any supporting submissions in that regard.

2. Nor was I presented with any relevant authorities indicating how best to approach the issue of whether the two sexual assault offences committed by Mr G. demonstrate or form part of a pattern of behaviour showing that he presents an increased risk of reoffending by committing a crime of a sexual nature, within the sense contemplated by s.490.013(3)(b) of the Code.

3. In this case, although the two sexual assaults committed by Mr G. were separate and discrete events, they were committed in relation to the same victim, within the same residence, and within a timeframe spanning less than three months, and there was nothing to suggest that Mr G. had engaged or has since engaged in any similar conduct outside that timeframe. Moreover, although the evidence presented at trial indicated that Mr G. continued to pester A. about engaging in further sexual activity after the second sexual assault, and repeatedly proposed the payment of money or forgiveness of a loan in exchange for A. engaging in such further sexual activity, almost five years now have passed since Mr G. committed his second sexual assault, without any other reported misbehaviour of any kind. There is certainly no indication that he has engaged in any further sexual misconduct.

4. I certainly would not want to foreclose or discount the possibility of the designated offences in respect of which an offender is being sentenced being sufficient, in and of themselves, to satisfy the condition set forth in section 490.013(3)(b) of the Code. Indeed, the wording of that subsection speaks not only to the possibility that the underlying designated offences will “form part of” a pattern of behaviour in the sense required, but also to the possibility that they themselves “demonstrate” such a pattern of behaviour. However, I also think the court must be wary of explicit or implicit suggestions that the evidence of “increased risk” contemplated by section 490.013(3)(b), and warranting a SOIRA compliance order for life, is essentially or principally inherent in the nature of the designated offences committed by the offender. In my view, such an approach comes perilously close to effective reinstatement of the constitutionally flawed approach to the making of SOIRA compliance orders rejected by the Supreme Court of Canada in R. v. Ndhlovu, supra. Moreover, the wording of section 490.013(3)(b) clearly does not speak merely to “increased risk” of reoffending by committing a crime of a sexual nature, but “a pattern of behavior showing that the person presents an increased risk” in that regard. [Emphasis added.]

5. The current online version of the Oxford English Dictionary (https://www.oed.com/dictionary/) defines “pattern”, (as used in relation to “pattern of behaviour”), as “a regular and intelligible form or sequence discernible in certain actions or situations; especially one on which the prediction of successive or future events may be based”.

6. In my view, (which is mindful of the fact that the relevant burden of proof lies on the Crown), the evidence in this case falls short of establishing such a pattern. Without limiting the generality of the foregoing:

a. “Regularity” implies repetition, and in this case, it must be remembered that there were only two instances of Mr G. actively engaging in sexual violence.

b. In my view, those two instances lack any predictive quality indicating that Mr G. presents, in the sense required, an increased risk of reoffending by committing additional crimes of a sexual nature. In particular, despite evidence that Mr G. clearly wanted to engage in further sexual activity with A., that evidence also indicates that, after the two sexual assaults that bring him before me now, Mr G. refrained from forcing himself upon A. again, despite there apparently being many more occasions when he found himself alone in the relevant London residence with A. while her mother was absent. In that regard, the video recordings presented at trial provided a vivid example of the reality that, once A. found the additional strength and determination to insist that there would be no further sexual activity between her and Mr G., and more successfully resist his advances, Mr G. stopped short of further sexual violence to secure A.’s compliance with his wishes.

c. In short, while there may have been an underlying sequence of events, (i.e., in the sense of one sexual assault being followed by another, against a backdrop of Mr G. repeatedly pestering A. to engage in further sexual activity), and the actions of Mr G. in that regard clearly were reprehensible and serious, in my view they do not suggest the sort of “pattern” of behaviour contemplated by section 490.013(3)(b). In particular, the sequence or chain of wrongful acts in this case was deplorable but relatively short-lived and broken, and in my view falls short of demonstrating or forming part of a “pattern” indicative of Mr G. clearly presenting an increased risk of reoffending by committing a crime of a sexual nature.

viii. As the Crown accordingly has failed to establish both conditions required for the application of subsection 490.013(3) of the Code, the present situation is governed by subsection 490.013(2)(b), and the mandatory SOIRA compliance order to be made in relation to Mr G. shall have a duration of 20 years.

Formal imposition of sentence

[62] Stand up please Mr G.

[63] For the reasons I have outlined, while I would have been inclined apart from considerations of totality to impose a global custodial sentence of 8½ years for your two sexual assault convictions, (i.e., consisting of a four-year sentence in relation to Count 1 and a consecutive 4½ year sentence in relation to Count 2), I will instead, having regard to considerations of totality, formally impose the following custodial sentences:

i. in relation to your Count 1 offence of sexual assault, contrary to section 271of the Criminal Code, a custodial sentence of three years to be served consecutively in relation to the custodial sentence I will impose in relation to Count 2; and

ii. in relation to your Count 2 offence of sexual assault, contrary to section 271 of the Criminal Code, a similar custodial sentence of three years, to be served consecutively in relation to the custodial sentence I have imposed in relation to Count 1.

[64] There will, as well, be further ancillary sentencing orders whereby:

a. pursuant to subsections 487.04(a)(i.1), 487.04(a)(i.91) and 487.051(1) of the Criminal Code, a mandatory order in Form 5.03 shall issue, compelling you to provide the number of samples of bodily substances reasonably required for the purpose of forensic DNA analysis;

b. pursuant to subsections 109(1)(a) and 109(2) of the Criminal Code, you also shall be subject to a mandatory weapons prohibition order as described therein, for a period of ten years;

c. pursuant to section 743.21 of the Criminal Code, an order shall issue prohibiting you from communicating directly or indirectly, during the custodial sentences I have imposed, with A.S., K.M. or M.T.; and

d. pursuant to the recently amended provisions of subsections 490.011(1), 490.012(3), 490.013(2)(b) and 490.013(3) of the Code, you shall be subject to a further order in Form 52 requiring you to comply with the Sex Offender Information Registration Act, (or “SOIRA”), for a period of 20 years.

[65] The e-indictment will be endorsed accordingly.

[66] Please be seated.

Justice I.F. Leach

Released: December 2, 2024

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

C.G.

REASONS FOR JUDGMENT

Justice I.F. Leach

Released: December 2, 2024