COURT FILE NO.: CR-19-1410 DATE: 2024 01 04

Ontario Superior Court of Justice

B E T W E E N:

HIS MAJESTY THE KING N. Jaswal, for the Crown

- and -

MARCUS LYONS J. Erickson, for the Defendant

HEARD: December 13, 2013

Restriction on Publication

Pursuant to s. 486.4 of the Criminal Code an order has been made directing that any information that could identify the complainant or a witness not be published in any document or broadcast or transmitted in any way.

Reasons for Sentence

BLOOM, J.

I. Introduction

[1] The accused was found guilty by a jury of one count of sexual assault. This is my ruling on the matter of sentence.

[2] Factually a key issue is whether I am to find that the accused had administered THC to the victim for the purpose of rendering her compliant with the sexual assault.

[3] At the core the legal argument is whether a conditional sentence or a carceral sentence is fit.

II. The Facts

A. Circumstances of the Offence

[4] It is common ground that the jury found the accused guilty of sexually assaulting the victim on June 24, 2017 in the early morning at his apartment in Brampton.

[5] He had allowed her and her two year old son to spend the night at his apartment. Without her consent he took off the victim’s clothing, kissed her stomach, and put his fingers in her vagina. He did so while he lay on top of her under a blanket and while her son was present. She protested the sexual assault, including telling the accused that she was menstruating.

[6] The parties disagree on whether he administered THC to the victim in candy he gave to her.

[7] It falls to me to determine whether the Crown has proved that aggravating circumstance beyond a reasonable doubt.

[8] The applicable statutory provision is s. 724 of the Criminal Code which provides:

Information accepted

s. 724 (1) In determining a sentence, a court may accept as proved any information disclosed at the trial or at the sentencing proceedings and any facts agreed on by the prosecutor and the offender.

Jury

(2) Where the court is composed of a judge and jury, the court

(a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty; and

(b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.

Disputed facts

(3) Where there is a dispute with respect to any fact that is relevant to the determination of a sentence,

(a) the court shall request that evidence be adduced as to the existence of the fact unless the court is satisfied that sufficient evidence was adduced at the trial;

(b) the party wishing to rely on a relevant fact, including a fact contained in a presentence report, has the burden of proving it;

(c) either party may cross-examine any witness called by the other party;

(d) subject to paragraph (e), the court must be satisfied on a balance of probabilities of the existence of the disputed fact before relying on it in determining the sentence; and

e) the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous conviction by the offender.

[9] The principles governing the application of this provision were set out by Justice M. McKelvey of this court in R. v. Ouellet, 2014 ONSC 5387 at para. 21:

[21] In considering the facts to be relied upon for the purposes of sentencing I have taken into account the following principles:

1. The sentencing judge is required to accept as proven all facts, express or implied, that are essential to the jury's verdict of guilty.

2. When the factual implications of the jury's verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury, but should come to his or her own independent determination of the relevant facts. The onus is on the Crown to prove beyond a reasonable doubt the existence of any aggravating fact, and in so doing may rely on the evidence adduced at trial. (See Section 724(2)(b) and 724(3)(e) of the Criminal Code and R. v. Ferguson, 2008 SCC 6, [2008] S.C.J. No.6).

[10] I have applied those principles and determined that the Crown has not proven beyond a reasonable doubt that the accused administered THC to the victim. I have accepted the Defense argument on that point; and will now explain why I have rejected the contrary assertion of the Crown.

[11] A bottle of a liquid containing THC was seized from the accused’s apartment. Further, the victim testified that she had never used THC - containing drugs. She also testified to feeling effects on her consciousness following the ingestion of candy given to her by the accused.

[12] However, the expert toxicology testimony of Betty Chow asserted that, although evidence of THC ingestion was found in bodily samples taken from the victim, it was not possible to determine when the victim had ingested the THC. She could have ingested it well before the time of the offense.

[13] I am, therefore, unable to find beyond a reasonable doubt that the accused administered THC to the victim.

B. Circumstances of the Accused

[14] The presentence report contained a number of relevant facts about the accused. He was born on June 4, 1976 in Toronto. He had a decent childhood, free from abuse and neglect. He has four children, who do not reside with him; he has a positive relationship with them. He is currently in a relationship with someone.

[15] He completed high school in Toronto; and attended college in Jamaica for two years. He has worked full time for the past two years as a forklift operator. He also coordinates music events at local restaurants and bars.

[16] He smokes marijuana daily to relax.

[17] He is not remorseful for the offense of which he has been found guilty.

[18] Numerous letters filed by the Defense attest to the good character of the accused. They describe him as kind, caring, honest, respectful, hardworking, and responsible.

C. Impact on the Victim

[19] The victim was born on July 24, 1997; she was 22 years old at the time of the offense.

[20] She was a new immigrant to Canada filled with hope of advancing her education and starting her career. She was mentally devastated by the offense; she lost trust in family and friends. She lost weight and shunned everyone. Her hair thinned. She looked older than her years. She felt guilt and shame as a result of the offense.

III. Applicable Statutory Provisions

[21] The key applicable Criminal Code provisions are s. 271 (a) and s. 742.1 which read as follows:

s. 271 Everyone who commits a sexual assault is guilty of

an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year;

s. 742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under section 742.3, if

(a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2;

(b) the offence is not an offence punishable by a minimum term of imprisonment;

(c) the offence is not an offence under any of the following provisions:

(i) section 239, for which a sentence is imposed under paragraph 239(1)(b) (attempt to commit murder),

(ii) section 269.1 (torture), or

(iii) section 318 (advocating genocide); and

(d) the offence is not a terrorism offence, or a criminal organization offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years or more.

IV. Positions of Crown and Defense

A. Position of the Crown

[22] The Crown submits that incarceration for 24 to 30 months is the appropriate disposition, but that, if an upper range reformatory incarceration is ordered, it should be accompanied by a probation order.

[23] Additionally, the Crown submits that ancillary orders be made regarding the registry for sex offenders for 20 years, for DNA samples based on sexual assault being a primary designated offense, and for a s. 109 Criminal Code lifetime weapons prohibition order based on the accused’s prior 10 year prohibition orders.

B. Position of the Defense

[24] The Defense submits that a 12 to 18 month conditional sentence is appropriate. It would be accompanied by 2 years probation with the ancillary orders sought by the Crown, except that the sex registry order would be 10 years in duration.

V. Aggravating and Mitigating Factors

[25] I will now set out the criminal record of the accused. On October 13, 2000 he was sentenced for assault with a weapon and uttering threats to a conditional sentence order of 12 months on each count concurrent, probation of 12 months, and a weapons prohibition order under s. 110 of the Criminal Code for 10 years. At the same time he was sentenced for mischief under $5000 to a one month conditional sentence order concurrent to the two others.

[26] On May 3, 2011, he was sentenced for assault with a weapon to 21 days intermittent and probation of 12 months. He had served 46 days in presentence custody. Further a weapons prohibition order under s. 110 of the Criminal Code was imposed for 10 years.

[27] Further aggravating factors are the presence of the two year old son of the victim during the assault, the accused’s taking advantage of the victim whom he had invited to his apartment, the accused’s continuing the assault when the victim protested, and the harm to the victim set out above.

[28] The mitigating factors are the strong prospects for rehabilitation of the accused. He has a good work record, and family ties. He is also respected by those who know him for his good character.

VI. Governing Legal Principles

[29] In R. v. A.J.K., 2022 ONCA 487 at paras. 74, 75, and 80 to 83 Associate Chief Justice Fairburn discussed principles applicable to the sentencing of a sexual assault:

[74] All sexual assaults are serious acts of violence. They reflect the wrongful exploitation of the victim whose personal autonomy, sexual integrity and dignity is harmfully impacted while being treated as nothing more than an object. Whether intimate partners or strangers, victims of sexual violence suffer profound emotional and physical harm and their lives can be forever altered. So too can the lives of their loved ones.

[75] As the years pass, enlightenment on the implications of sexual violence continues to permeate our conscious minds. In Friesen, the court noted, at para. 118, that "our understanding of the profound physical and psychological harm that all victims of sexual assault experience has deepened" and, I would add, is continuing to deepen: see also R. v. Goldfinch, 2019 SCC 38, at para. 37. As Moldaver J. [page739] stated in R. v. Barton, 2019 SCC 33, at para. 1: "Without a doubt, eliminating . . . sexual violence against women is one of the more pressing challenges we face as a society" and "we can -- and must -- do better" (emphasis in original).

[80] When imposing a sentence, the goal is always to impose a fair, fit and principled sanction: Parranto, at para. 10. Proportionality is [page740] key to this determination, focusing as it does on the gravity of the offence and the degree of responsibility of the offender: Friesen, at para. 30; Parranto, at para. 10. Indeed, proportionality is described in the heading above s. 718.1 of the Criminal Code as being the "[f]undamental principle" of sentencing.

[81] The principle of parity is a tool that helps calibrate proportionate sentences because, at its core, parity is about treating similar offenders who commit similar offences in similar circumstances in a similar way: Friesen, at para. 31; Parranto, at paras. 10-11. Therefore, parity exists as an expression of proportionality, providing the court with a means by which to fix proportionate sentences by reference to sentences that have been imposed in other cases: Friesen, at para. 33; Parranto, at para. 11.

[82] The principle of individualization is yet another tool designed to help calibrate proportionate sentences. Individualization is central to the assessment of proportionality in that it demands focus upon the individual circumstances of each offender: Parranto, at para. 12; Lacasse, at para. 58.

[83] The trial judge demonstrated his command of each of these sentencing principles. He carefully reviewed the factual underpinnings of the offence, the appellant's personal circumstances, including his criminal record and the impact of the offence on the complainant. He also considered the overarching sentencing principles that were operative in this case, both denunciation and deterrence.

[30] Also helpful are the comments of Justice Huscroft in R. v. R.S., 2023 ONCA 608 at paras 4 and 29:

4 As I will explain, although conditional sentences are now available in sexual assault cases, proportionality remains key to sentencing. Conditional sentences will rarely, if ever, be proportionate in the context of violent sexual assault cases such as this. The sentencing objectives of deterrence and denunciation will normally require penitentiary sentences in the 3 to 5-year range for such offences, as this court explained recently in R. v. A.J.K., 2022 ONCA 487, 162 O.R. (3d) 721.

29 As Fairburn A.C.J.O. noted A.J.K., at para. 74, sexual assaults are "serious acts of violence", the victims of which "suffer profound emotional and physical harm and their lives can be forever altered".

[31] I am also mindful of s. 718.2(a) (iii.1) of the Criminal Code which reads:

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and without limiting the generality of the forcing,

(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation

VII. Analysis and Order

[32] While a conditional sentence is available in the circumstances, I will not impose that disposition. Neither the use of a conditional sentence or probation, already imposed on the accused for offenses of violence, have deterred him from once again committing an offense of violence. A sexual assault is inherently an act of violence.

[33] The offense in this case has had serious consequences for the victim as set out above.

[34] I accept that the accused did not perpetrate upon her further acts of violence. I also accept that he has led a productive life; and has excellent prospects for rehabilitation, although he must learn to abstain from violence against others.

[35] Denunciation and deterrence are central to my sentencing decision.

[36] In all of the circumstances I sentence the accused to a term of incarceration of 18 months. I also make the following ancillary orders: (i) an order to comply with sex offender registration for 20 years, (ii) an order to provide DNA samples, and (iii) a lifetime weapons ban regarding all weapons as provided for in s. 109 of the Criminal Code.

Bloom, J. DATE: January 4, 2024