COURT FILE NO.: CR-21-10000380
DATE: 20241220
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
CLEON WONG
Onelia Delgado, for the Crown
Christian Levien, for Cleon Wong
HEARD: Sept. 23, 26, and Nov. 18, 2024
RESTRICTION ON PUBLICATION: Subject to any further Order by a Court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4(1) of the Criminal Code of Canada. This ban does not apply to publication of these reasons in law reports nor to a discussion of the underlying legal principles in other publications.
REASONS FOR SENTENCE
R.F. GOLDSTEIN J.
Background
[1] Cleon Wong and C.A.D. had a short romance from February to May 2018. C.A.D. ended the relationship but the two remained friends. During the evening of July 15-16, 2018, Mr. Wong was in a bar in downtown Toronto. He drank and was unable to drive. He contacted C.A.D. as she lived nearby. He asked if he could spend the night at her place, as he was too drunk too drive. C.A.D. was concerned for his safety. She agreed to let him stay at her apartment. She told him she was taking medication and would be going to bed. He said he would just go to sleep. He arrived at C.A.D.’s residence at about 2:00 am on July 16. C.A.D. told Mr. Wong that she would be going to sleep soon as her medication kicked in. Mr. Wong went to sleep on the bed beside her. Some time between 3:00 am and 6:00 am C.A.D. awoke as Mr. Wong was undressing her. He proceeded to have sexual intercourse with her without a condom. C.A.D. was drowsy but asked him to stop. She tried to push him off but was unable to due to the medication she was taking. On July 25, 2018, C.A.D. went to the Women’s College Hospital for a sexual assault examination. On August 19, 2020, C.A.D. was living in Nova Scotia. She went to an RCMP detachment and provided a video statement. The investigation was subsequently conducted by the Toronto Police. Mr. Wong was charged with sexual assault.
[2] On September 30, 2024, Mr. Wong pleaded guilty to sexual assault. He now comes before the Court for sentencing. Crown and defence counsel jointly propose that a sentence of two years less a day, followed by probation, is appropriate. Counsel are not joint, however, on the nature of the sentence. Crown counsel argues that a sentence of two years less a day in a provincial jail is required to satisfy the fundamental principles of sentencing. Defence counsel argues that Mr. Wong should be permitted to serve his sentence in the community pursuant to s. 742.1 of the Criminal Code.
[3] I will review the impact of this offence on C.A.D., and then turn to Mr. Wong’s background.
Impact On The Victim
[4] C.A.D. provided a victim impact statement. She stated that Mr. Wong’s actions irrevocably changed her life. She trusted him and he breached her trust, in her own home, a place she thought she was safe. She cannot bring herself to sleep in the bedroom anymore. She no longer trusts her judgment. She was concerned about pregnancy and sexually transmitted infections. She has had to go through multiple sessions of therapy. She feels she now has post-traumatic stress disorder. She has found it very difficult to heal, and the road back has been tortured and difficult. This sexual assault had a significant impact on her.
Background Of The Offender
[5] I turn to the background of Mr. Wong. I have had the benefit of a pre-sentence report. It was largely positive. Mr. Wong is 34 years old. He has led a pro-social life to this point. He has never been in trouble with the law. He has always been employed. He was born and raised in Toronto. His father was not involved in raising him, although he has some contact with his father now. He lives with his mother and his sister. He had a positive upbringing. He spent time playing sports. He did not witness drug or alcohol abuse in his family. He continues to help support his mother. He is currently in a relationship with a woman, but they have no children. His partner is supportive. He completed high school. Mr. Wong has worked as a dancer with Maple Leaf Sports and Entertainment and as personal trainer. He lost his dance job with MLSE when these charges were laid. He does, however, have a job in municipal government with the City of Toronto and has been working there for many years. According to the pre-sentence report, he lacks some insight and appears to minimize his behaviour. His family do not believe that he intended to harm anyone. However, the probation officer summarized his assessment this way:
The subject reported he accepted responsibility for the current offence before the court and expressed his willingness to make amends. The subject experienced a relatively normal and stable upbringing with appropriate family and peer supports. He completed high school education and has maintained suitable employment throughout his adulthood. The subject engages in positive uses of his leisure time, associates with prosocial companions, and does not engage in inappropriate use of substances. He does not present with any mental health concerns and advised he would be willing to engage with programming or counselling supports.
[6] I now turn to summarizing the aggravating and mitigating factors in this case.
Aggravating and Mitigating Factors
[7] There are aggravating factors. This was a case of intimate partner violence. That is a statutory aggravating factor: Criminal Code, s. 718.2(a)(ii). The significant impact on C.A.D. is also a statutory aggravating factor: Criminal Code, s. 718.2(a)(iii.1). Although Mr. Wong was not in a position of trust towards C.A.D., he certainly abused her trust. It is aggravating that this offence occurred in C.A.D.’s own home, and in her own bed, a place where she was entitled to feel safe. I also find it aggravating that Mr. Wong took advantage of C.A.D.’s drowsy state. She was taking medication which made her very sleepy. It seems that she was not in full control of her reactions. Finally, Mr. Wong did not use a condom, exposing C.A.D. to the possibility of both pregnancy and sexually transmitted infections.
[8] There are also important mitigating factors. The most important mitigating factor is that Mr. Wong pleaded guilty. In my experience, it is exceedingly rare for an individual to plead guilty in a case of this type –a sexual assault that depends almost entirely on the credibility of the parties. Mr. Wong’s plea is an important expression of remorse, one that is entirely credible. Mr. Wong also apologized to C.A.D. Again, I find that apology to be credible. Importantly, C.A.D. did not have to testify and did not undergo cross-examination. This is an important mitigating factor. Many victims of sexual assault report that cross-examination can be as traumatic as the actual event.
[9] Mr. Wong has no criminal record and has led an entirely pro-social life to this point. He is, and always has been gainfully employed. He lost his job as a dancer with Maple Leaf Sports and Entertainment as a result of this charge, which I also consider a mitigating factor.
The Crown Position And Cases In Support
[10] As noted, the Crown’s position is that Mr. Wong should serve two years less a day in a real jail, and not in the community. The Crown relies on R. v. D.M., 2023 ONCA 656. The victim was 16 years old at the time of the offence. She was sleeping in the basement on a couch. Several adults were in the house, also sleeping in the basement. They were all visiting for a family wedding. The offender groped the victim’s shoulders and breasts, over her pyjamas, for about 4-5 minutes as part of an unwanted massage. The trial judge, Kurz J., refused to impose a conditional sentence given that the victim was a young person. Kurz J. imposed a sentence of 6 months. The Court of Appeal upheld the sentence.
[11] In R. v. Pryzment, [2000] O.J. No. 5334 (Sup.Ct.) the offender pleaded guilty to sexual assault. The offender and the victim were friends. The victim was heavily intoxicated at a party. She was concerned that she had been sexually assaulted by others – she was in a state of extreme intoxication. The offender, who was a friend, took advantage of the situation and sexually assaulted her. Speyer J. sentenced him to 12 months.
[12] In R. v. Smith, 2015 ONSC 4304, the offender was found guilty of sexual assault. The victim was homeless and living on social assistance. The offender was related to the victim’s boyfriend. The offender offered to let the victim sleep in his apartment. The victim had been on a crystal meth binge and was very tired. The trial judge found that the offender had sexual intercourse with the victim while she was unconscious. The trial judge imposed a 16-month conditional sentence. On summary conviction appeal, the offender’s conviction appeal was dismissed. The Crown’s sentence appeal was allowed. The offender had no criminal record. He grew up in a stable environment. He did, however, become involved with a negative peer group and began to use drugs. In finding that the trial judge erred in imposing a conditional sentence, Campbell J. stated at para. 36:
Conditional sentences have, on occasion, and in exceptional circumstances, been imposed for offences of sexual assault committed upon unconscious or semi-conscious complainants. See, for example R. v. Killam (1999), 1999 CanLII 2489 (ON CA), 126 O.A.C. 281, 29 C.R. (5th) 147 (C.A.); R. v. Nikkanen (1999), 1999 CanLII 7339 (ON CA), 125 O.A.C. 353, 140 C.C.C. (3d) 423 (C.A.); R. v. Pecoskie, 2002 CanLII 41523 (ON CA), [2002] O.J. No. 4056, 170 O.A.C. 396 (C.A.). There is, however, no gainsaying the reality that conditional sentences, even those with significant restrictions on liberty and punitive terms, do not have the same denunciatory effect as a period of actual imprisonment. Accordingly, it is not surprising that, in the great majority of cases, a significant term of actual imprisonment is imposed upon an accused in such circumstances.
[13] Campbell J. found that the trial judge did not consider the sentencing principle of denunciation. He substituted a term of imprisonment of 9 months with three years of probation.
[14] In R. v. Thurairajah, 2008 ONCA 91, was a rare case of the Court of Appeal incarcerating an offender after the offender served most of a conditional sentence. The victim was a 14-year-old girl. The offender was 19. He asked the victim and her friend to skip school and go drinking. The girls agreed. He purchased some vodka. They (along with some others) drank it. The victim became very drunk and passed out. She was put in the back seat of the car. The offender then proceeded to rape the victim while she was unconscious. He did not use a condom. The offender and two of his friends did not want to take her home while she was drunk, so they went to a school yard and dumped her in a snowbank. They then called the victim’s brother to come and pick her up. Her brother found her unconscious, face down in the snow, and drooling. She was rushed to the hospital. She suffered bruising consistent with very rough penetration of her vagina by a penis. The offender was found guilty after a trial. There was a favourable pre-sentence report. The offender had no prior involvement with the criminal justice system. He spent his time on bail working or going to school. The sentencing judge imposed a conditional sentence of two years less a day. Doherty J.A., for the court of appeal, found that the sentence was demonstrably unfit given the brutal and callous nature of the crime and the shocking way that the complainant was treated afterwards. He agreed that a sentence of two years less a day could be consistent with the purposes and principles of sentencing – barely – but recognized that the offender had already served 16 months of his conditional sentence. The Court allowed the Crown’s appeal and substituted a sentence of 9 months custody and 6 months probation. Doherty J.A. stated that the proper range at the time of sentencing should have been two years less a day to four years imprisonment.
The Defence Position
[15] The defence argues that Mr. Wong should serve a conditional sentence. He is a person at virtually no risk of recidivism. He has always worked and contributed to society. He has been on bail and not breached. He has never been in trouble with the law. He is a young Black man, and while there is no suggestion that systemic or institutional racism played a role in his offence, I should be mindful that he is part of a group subject to disproportionate rates of incarceration. No offence is exempt from a conditional sentence, including sexual assaults.
The Appropriate Range And Nature Of Sentence
[16] In considering appropriate range of sentence, the leading case in Ontario is R. v. A.J.K., 2022 ONCA 487. The Court of Appeal stated in that case that the usual range of sentence for a penetrative sexual assault is three to five years in the penitentiary. Fairburn A.C.J.O. stated at para. 77:
Absent some highly mitigating factor, the forced penetration of another person will typically attract a sentence of at least three years in the penitentiary. While Bradley and the cases following it suggest that the range is three to five years, this is of course just a range, a quantitative sentencing tool designed to assist busy trial judges with where to start: Parranto, at paras. 15-17. Accordingly, there will be circumstances where a departure from the range, either above or below the range, is entirely appropriate.
[17] A conditional sentence of imprisonment is, of course, available for a sexual assault but for a violent sexual assault, a conditional sentence will rarely, if ever, be proportionate: R. v. R.S., 2023 ONCA 608 at para. 2.
[18] A review of recent Court of Appeal decisions shows that conditional sentences have rarely been upheld or imposed in cases of sexual assault involving penetration. For example, in R. v. D.M., supra, the Court of Appeal noted that even in cases involving child sexual assault or violence that a properly crafted conditional sentence can be in compliance with the fundamental principles and purposes of sentencing:
The trial judge did not hold that Friesen foreclosed the possibility of a conditional sentence order for a sexual offence involving a child regardless of the circumstances. Indeed, the trial judge recognized that with the November 2022 amendments to the Criminal Code of Canada, R.S.C. 1985, c. C-46, a conditional sentence was an available sentence. He also considered this court’s recent decision in R. v. Ali, 2022 ONCA 736, 164 O.R. (3d) 81, regarding the principle that appropriately crafted conditional sentences can accomplish the sentencing goals of deterrence and denunciation, even for offences involving violence. I do not read the trial judge’s observation that Ali did not involve a sexual assault against a child and “did not mitigate the comments of the Supreme Court in Friesen” as a statement that a conditional sentence is foreclosed – whatever the circumstances of the offence and the offender – in a sexual offence involving a child. Rather, he was simply stating that consideration of the appropriateness of a conditional sentence order in a sexual offence involving a child must be made in light of the principles articulated in Friesen.
[19] In that case, however, the trial judge did not impose a conditional sentence. The Court of Appeal found no error in the sentence imposed.
[20] In R. v. R.S., supra, the victim had a hazy memory of the assault. The last thing she remembered was hitting the fridge and then falling to the floor with the offender on top of her. The offender was biting or sucking on her abdomen. He removed her tampon and digitally penetrated her. She repeatedly said “no”. He choked her and was going to assault her with his penis when the assault was interrupted by a neighbour. The jury convicted the offender of sexual assault and choking. The sentencing judge imposed a sentence of two years less a day conditional and two years of probation on the sexual assault, and 90 days intermittent to be served concurrently to the conditional sentence. The sentencing judge took into account several mitigating factors, including the offender’s troubled background and Indigenous heritage. The Crown appealed. The offender was sentenced prior to the Court of Appeal’s judgment in R. v. A.J.K. and therefore misconstrued the range. Huscroft J.A. for the Court of Appeal stated:
The sentencing judge relied on several older authorities, including R. v. Smith, 2011 ONCA 564, 274 C.C.C. (3d) 34, in asserting that decisions from this court support a range for serious sexual assaults that includes an upper reformatory sentence. He did not have the advantage of this court’s decision in A.J.K., released subsequent to his decision, and the range he cited is erroneous. The evolution of the law is plainly in the direction of better appreciating the profound physical and psychological harm caused by sexual assault. It is now clear that the range for sexual assault involving forced penetration is 3-5 years in the penitentiary. Furthermore, as Fairburn A.C.J.O. stated in A.J.K., at para. 77, “[a]bsent some highly mitigating factor, the forced penetration of another person will typically attract a sentence of at least three years in the penitentiary.” The cases cited by the sentencing judges that pre-date A.J.K. cannot be taken as sound authority for the proposition that a reformatory sentence would be appropriate for sexual assault with forced penetration.
[21] The court pointed out that although ranges are only guidelines (and not straightjackets) a sentence must be proportionate. That one was not. The Court would have substituted a three-year penitentiary sentence but as the offender had completed most of his conditional sentence, the Court declined to re-incarcerate him. In a concurring decision Paciocco J.A. would have dismissed the appeal on the grounds that the sentence was not unfit in the circumstances.
[22] There are, however, cases since R. v. A.J.K. where courts have imposed conditional sentences where the offender has pleaded guilty.
[23] In R. v. Dickson, 2023 ONSC 2776, the offender was in a dating relationship with the victim. She was pregnant with their child. He went to her apartment and had forced sexual intercourse with her. She contracted chlamydia as a result. The offender pleaded guilty to one count of sexual assault. The offender was an excellent father and provided for the two children he had with the victim as well as his other two children. The victim did not wish to see him incarcerated. She wished to forgive him but also wished him to continue living in the community so he could provide for his children. After a significant review of the case law, Himel J. determined that the sentencing objectives could be met with a conditional sentence. She considered R. v. A.J.K. but distinguished it on the grounds that the offender in that case was more violent and had a criminal record. Himel J. was also influenced by the fact that the offender in her case provided for his children.
[24] In R. v. S.P., 2024 ONSC 4951, the female offender was a party to a sexual assault committed on her niece by her male partner. She and her male partner forced the victim to engage in sexual touching of him. There was one incident of touching. She pleaded guilty and was a first offender. The offender was in her early thirties and had lived a pro-social life. She had her own young child she would have been separated from if she served a custodial sentence. Conlan J. imposed a conditional sentence of 12 months. It was a very rare case of a conditional sentence being imposed where the victim was a child.
[25] In R. v. Trudeau, 2024 ONCJ 119, the offender pleaded guilty to one count of sexual assault. The offender was Indigenous and a Gladue report was prepared. The offender and the victim were both intoxicated. The victim blacked out in a bedroom. When she woke up the offender was having sexual intercourse with her. She was unable to consent. The complainant’s mother called the police. There were several positive letters filed on behalf of the offender. He was in a relationship and took responsibility for his stepchildren. The offender apologized for his actions. The Gladue report showed that he suffered from a profound intellectual disability. He had low to very low cognitive skills, was bullied at school for it, and had ongoing difficulties with reading and writing. He was, however, consistently employed as a labourer and his employer had a considered him a valuable employee. The effect on the victim, however, was significant. She was diagnosed with PTSD and moved away from the community to avoid seeing the offender. Ultimately, given the Gladue factors, the remorse, and the offender’s intellectual disability the sentencing judge determined that a conditional sentence of 18 months was appropriate.
[26] In R. v. Holland, 2022 ONSC 1540, the offender was convicted of sexual assault after a judge-alone trial. The offender was a nightclub promoter. The victim was on a tour of a club. He lured her to a secluded part of the club where he penetrated her vagina with his finger or his penis – she was not sure – from behind, despite her protests. For the purposes of sentencing the Crown and defence agreed that the offender should be sentenced on the basis that it was his finger. That did not relieve the victim from the anxiety of not knowing if she contracted a sexually transmitted infection. The victim was diagnosed with PTSD. The offender was a 45-year-old first offender. Crown counsel’s position was that a reformatory sentence in the range of 16 months was called for. The defence took the position that the offender should be sentenced to time served (based on restrictive bail conditions) or a conditional sentence. Schreck J. found that the appropriate range of sentence for relatively brief digital penetration was 8 to 12 months. He sentenced the offender to a conditional sentence of 8 months. I note that this decision was released some six months prior to R. v. A.J.K. supra, and the sentencing judge therefore did not have the benefit of the Court of Appeal’s decision on that case. The offender appealed, and the court of appeal dismissed his appeal: R. v. Holland, 2024 ONCA 106. The court of appeal did not deal with the sentence.
[27] I turn now to the principles of sentencing and the sentence to impose in this case.
Principles of Sentencing And Sentence Imposed
[28] The most important sentencing principle is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Denunciation and deterrence are the chief sentencing principles in cases of serious sexual assault: R. v. R.S., supra, at para. 39. Other sentencing principles play a role: the principle of restraint; and the principle of rehabilitation, for example.
[29] All sexual assaults are acts of violence: R. v. A.J.K., supra, at para. 73. This case involved a serious sexual assault. Although it lacked the violence of the assaults in R.S. and A.J.K., it still involved sexual intercourse without consent.
[30] The Crown and the defence join on the appropriateness of a sentence of 2 years less a day. For the purposes of this sentencing, I accept that the principle in R. v. Anthony-Cook applies, and I should not depart from the joint submission. A sentence of two years less a day would not bring the administration of justice into disrepute or would otherwise be contrary to the public interest: R. v. Anthony-Cook, 2016 SCC 43. As Doherty J.A. noted in R. v. Thurairajah, supra, a sentence of two years less a day can be appropriate in a case of sexual assault – in that case a particularly egregious case – although I note that Thurairajah was decided before R. v. A.J.K. Given a sentence of two years less a day, the only real question is whether I should impose a conditional sentence.
[31] A judge may impose a conditional sentence where it would not endanger the safety of the community and would be consistent with purposes and principles of sentencing: Criminal Code, s. 742.1(a).
[32] I am satisfied that a conditional sentence would not endanger the safety of the community. Mr. Wong is a first offender. Aside from this conviction, he has never been in trouble with the law. There is no evidence that he has ever been anything other than compliant with his bail conditions. Were it not for this offence, he would be considered a law-abiding, pro-social citizen.
[33] The real question is whether a conditional sentence would be consistent with the fundamental purposes and principles of sentencing. No doubt a conditional sentence in this case is consistent with the principles of rehabilitation and restraint. A sexual assault, however, requires deterrence and denunciation. Can a conditional sentence be such a sentence? That depends on the offence, the offender, and the overall circumstances. Here, there was a profound effect on the complainant as a result of a penetrative sexual assault by an intimate partner, or at least a former intimate partner. Such a sentence should ordinarily require jail to be fit. Is this one of those very rare circumstances where a conditional sentence would be sufficiently punitive? In other words, would it be proportionate to the degree of responsibility of the offender and the seriousness of the offence? I find that this is one of those rare cases.
[34] R. v. Proulx, 2000 SCC 5, Lamer C.J.C. considered whether a conditional sentence could be punitive in nature. He concluded at para. 35 that a conditional sentence must be more punitive than a suspended sentence with probation. Probation is considered rehabilitative. Accordingly, a conditional sentence must be sufficiently punitive to achieve the goals of denunciation and deterrence. Lamer C.J.C. sated at paras. 34-35:
Despite the virtual identity in the wording of s. 742.3(2)(f) and the old residual clause applicable to probation orders, it would be a mistake to conclude that punitive conditions cannot now be imposed under s. 742.3(2)(f). Parliament amended the residual clause for probation, s. 732.1(3)(h), to read "for protecting society and for facilitating the offender's successful reintegration into the community" (emphasis added). It did so to make clear the rehabilitative purpose of probation and to distinguish s. 742.3(2)(f) from s. 732.1(3)(h). The wording used in s. 742.3(2)(f) does not focus principally on the rehabilitation and reintegration of the offender. If s. 742.3(2)(f) were interpreted as precluding punitive conditions, it would frustrate Parliament's intention in distinguishing the two forms of sentence. Parliament would not have distinguished them if it intended both clauses to serve the same purpose.
In light of the foregoing, it is clear that Parliament intended a conditional sentence to be more punitive than a suspended sentence with probation, notwithstanding the similarities between the two sanctions in respect of their rehabilitative purposes. I agree wholeheartedly with Vancise J.A., who, dissenting in R. v. McDonald(1997), 1997 CanLII 9710 (SK CA), 113 C.C.C. (3d) 418 (Sask. C.A.), stated, at p. 443, that conditional sentences were designed to "permit the accused to avoid imprisonment but not to avoid punishment".
[35] When I consider the purposes and principles of sentencing, as well as the aggravating and mitigating factors – including the rare mitigating factor of a guilty plea in a sexual assault case where the sole issue would have been credibility – I find that a conditional sentence should be imposed.
[36] There is no doubt that a violent sexual assault should result in a penitentiary sentence: R. v. R.S., supra. All sexual assaults are crimes of violence, but some are more violent than others. I interpret the Court of Appeal’s decision in R.S. to mean violence that forms part of the same transaction but is not inherent to the sexual assault itself. In R.S. the offender choked the complainant and engaged in other forms of violence. In my view, that is what distinguishes R.S. from this case. In A.J.K., supra, the offender choked the complainant and punched her in the head. That level of violence is absent from this case.
[37] This case is distinguishable from R.S. and A.J.K. in another important respect: In R.S., the offender was convicted after a judge-alone trial. In A.J.K., the offender was convicted after a jury trial. Neither offender showed any insight or remorse or apologized to the victim – which Mr. Wong has done. The offender in A.J.K. also had a criminal record for communicating with an underage person for the purposes of prostitution. The victims in both cases were required to testify. None of those factors is present here.
[38] That said, this is a very close call. In the absence of Mr. Wong “manning up” and taking responsibility he would undoubtedly be going to jail.
[39] The conditional sentence will be extremely punitive in order to reflect the aspects of denunciation and deterrence. Mr. Wong will serve the entirety of the conditional sentence on house arrest, with some exceptions. As Lamer C.J.C. pointed out in Proulx, there is no earned remission while on a conditional sentence and no parole. That is what will make it punitive in this case. The conditional sentence will be followed up with three years of probation. Although probation is not meant to be punitive, Mr. Wong will therefore be under the supervision of the state in one form or another for the next five years, although he will not be serving any of it in jail.
[40] Mr. Wong is sentenced to a conditional sentence of two years less a day. The terms, in addition to the statutory terms, will be as follows:
• Report to a conditional sentence supervisor within two business days and thereafter as required.
• Take counselling as required by the conditional sentence supervisor and provide updates at such intervals as is required by his conditional sentence supervisor. Sign all releases necessary for the conditional sentence supervisor to monitor his progress.
• Mr. Wong will be under house arrest. He is not to leave his residence except under the following conditions:
➢ To go to, be at, and come from work or school. He will provide his work or school schedule to his conditional sentence supervisor on a monthly basis.
➢ For medical emergencies for himself or any member of his immediate family.
➢ For scheduled medical, dental, or counselling appointments, giving his conditional sentence supervisor notice of each appointment in writing 24 hours in advance.
➢ For one four-hour period per week for personal errands, at a time to be agreed upon with his conditional sentence supervisor.
➢ To meet with counsel or attend court, if required.
[41] Upon completion of the conditional sentence, he will be on probation for three years. In addition to the statutory terms, the terms of his probation will be:
• Report to his probation officer within two working days of the completion of his conditional sentence and thereafter as required.
• Take counselling as required by his probation officer and provide updates at such intervals as is required by his probation officer. Sign all releases necessary for his probation officer to monitor his progress.
• Perform 100 hours of community service, at a rate of no less than 25 hours per year, to the satisfaction of his probation officer.
[42] There will also be the following ancillary orders:
• As sexual assault is a primary designated offence, there will be a DNA order.
• Pursuant to s. 109(1)(a) and 109(2), a weapons prohibition order for ten years.
[43] I decline to make a sex offender registry order. Section 490.012(3) requires a judge to make an order unless the offender has established that there would be no connection between the making of the order and the purpose of helping law enforcement investigate crimes of a sexual nature; or, that the impact on the person’s privacy or liberty would be grossly disproportionate to the public interest in effective law enforcement. In making this decision, the court must consider the factors set out in s. 490.012(4). In this case, the offence occurred between people who knew each other. Although the offence was serious, Mr. Wong has no criminal history, and I am extremely confident that recidivism – whether against an intimate partner or a stranger – is highly unlikely. I find that Mr. Wong has established that a sex offender registry order is unnecessary under subsection 490.012(3)(a).
R.F. Goldstein J.
Released: December 20, 2024
COURT FILE NO.: CR-21-10000380
DATE: 20241220
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
CLEON WONG
ORAL REASONS FOR SENTENCE
R.F. Goldstein J.