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of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner.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

Introduction

After a five-day judge-alone trial, I found James McLarnon guilty of one count of sexual assault, four counts of assault with a weapon, one count of assault with choking, one count of assault, one count of uttering threats to cause death, and one count of unlawful confinement. The offences took place between 2020 and 2021 within the context of intimate partner violence involving the same complainant, M.C. The matter is now before me for the imposition of sentence.

The parties are significantly apart in their submissions as to a fit and appropriate sentence.

The Crown proposes a seven-year global custodial sentence. The Crown submits that the multiple acts of intimate partner violence and the vulnerability of the complainant underpins the rationale for this sentence. It is comprised of a three-year sentence on the sexual assault count and then varying consecutive or concurrent sentences of between six and 18 months on the remaining counts and adjusted for totality.

The defence proposes a three-year custodial sentence. He submits that a two-year sentence on the sexual assault count is fit given the nature of the charged conduct and that the balance of the counts should all be one year, with all but one of those served concurrent. He acknowledges that the offences are considered to have arisen in the context of intimate partner violence but submits that the transactional nature of the relationship between the offender and victim attenuates the aggravating nature of this factor.

The Crown also seeks ancillary orders with which the offender does not take issue.

Circumstances of the Offences

My reasons for judgment reported at 2024 ONSC 5951 detail the evidence and my factual findings made in respect of the nine-count indictment and will not be repeated.

The following is accordingly only an overview to serve as context to the sentencing exercise.

The victim and offender were in an on-off intimate relationship over the course of several years between approximately 2015 and 2020. Street drug use was a central feature of their volatile relationship, wherein Mr. McLarnon trafficked in substances such as fentanyl and M.C. was a regular user.

The offences occurred between January 2020 and April 2021 and arose in two periods of time:

1. Between January and May 2020 when the offender and victim were generally cohabiting in M.C.’s apartment, until May 2020, when M.C. had an unknown pregnancy and gave birth to her child in her apartment. The offences in this period of time involved incidents of assaults, threats, and assaults with weapons arising from various conflicts between the two, typically arising from allegations that the victim had stolen his drugs; and

2. Over the course of approximately two days in April 2021 when the victim went to the offender’s father’s apartment and consumed drugs. Mr. McLarnon refused to allow her to leave, threatened her and committed assaults and a sexual assault of M.C. She left the apartment and went for help after he fell asleep.

I made the following findings in respect of each count:

• Count 1 – s.264.1: that Mr. McLarnon uttered threats to cause M.C.’s death in early 2020 while pointing an object shaped like a gun at M.C. and then in April 2021 while pointing a pellet gun at M.C.
• Count 2 – s.267(a): that Mr. McLarnon made threats to assault M.C. with weapons, being the object shaped like a gun in early 2020 and then the pellet gun in April 2021.
• Count 3 – s.267(a): that Mr. McLarnon assaulted M.C. with a weapon between January 1, 2020 and May 15, 2020 when he cut her torso with a razor blade.
• Count 4 – s.279(2): that Mr. McLarnon unlawfully confined M.C. in April 2021 when he refused to allow her to leave his father’s apartment.
• Count 5 – s.267(a): that in May 2020, Mr. McLarnon assaulted M.C. with a bowl thrown at her head.
• Count 6 – s.266: that Mr. McLarnon assaulted M.C. on four occasions between January 1, 2020 and April 27, 2021, with a slap to her face, striking her face causing a bloody nose, striking her face causing a black eye and then finally in April 2021 when he delivered several blows to her face and body while she was in his father’s apartment.
• Count 7 – s.267(a): that Mr. McLarnon assaulted M.C. on or about April 26, 2021 when he used a knife on her arm during the events in his father’s apartment.
• Count 8 – s.267(c): that Mr. McLarnon assaulted M.C. with choking her while at his father’s apartment on or about April 28, 2021.
• Count 9 – s. 271: that Mr. McLarnon sexually assaulted M.C. in his father’s apartment on April 28, 2021 by forcing her to perform fellatio without her consent.

Circumstances of the Offender

Mr. McLarnon is 39-years old, his date of birth being January 5, 1986.

His pre-sentence report dated January 16, 2025, and his criminal record, both filed as exhibits on this hearing, explain that the offender has a criminal history going back to his youth, with property offences, mischief, failures to comply with probation, and assaults. In particular, there are prior convictions for assault and mischief relating to intimate partner violence in 2012. None of the previous convictions involved a significant custodial sentence.

The pre-sentence report sets out other important information for the court’s consideration. He still enjoys the love and support of his mother and sister, although there was infrequent contact because of his lifestyle. His mother and sister spoke of Mr. McLarnon having a good heart and being a kind person. His history of drug issues has been a barrier to resuming a more regular relationship with them. They would like to have a relationship with him in the future.

Mr. McLarnon is the product of a difficult childhood and upbringing with limited access to educational and extracurricular opportunities. He has had infrequent contact with his biological father, who is reported to suffer from schizophrenia and homelessness and has spent time in custody. Mr. McLarnon’s mother was largely a single parent with limited financial means and little time to supervise his activities as a child. He enjoyed a supportive relationship with his stepfather for several years. That relationship unfortunately ended, and Mr. McLarnon went on to suffer physical abuse by his mother’s next partner and he also witnessed his mother experience domestic violence in that relationship.

Mr. McLarnon did not believe he had completed school beyond grade six. He stopped attending school by the age of fourteen. His mother reported he had diagnoses of attention deficit hyperactivity disorder and oppositional defiant disorder. She recalled he was violently assaulted as a teen and believed that this may have led to him suffering from post traumatic stress disorder and substance abuse. She also shared that he lost a previous intimate partner in tragic circumstances, which she thought also affected his mental and emotional health.

He has dealt with alcohol and drug addiction since he was a teen and regularly abused opiates. He has managed periods of sobriety, during which times he was gainfully employed in various labourer jobs. He took pride in his work and accomplishments. A back injury from work led to prescription drug abuse. He became homeless in or about 2016 and began a fentanyl addiction. He acknowledged that his fentanyl use had become all consuming and that he went into withdrawal after his arrest. He has regained sobriety during his presentence detention.

Mr. McLarnon acknowledged he had made some bad decisions, and that substance use was a significant factor in his poor life choices. He wanted to have a few years of stability before he could plan for his future. He was interested in furthering his education and participating in recommended programming.

Circumstances of the Victim

The Crown advised they were unable to obtain a victim impact statement from M.C. despite repeated efforts. Nevertheless, the court does have the benefit of observing M.C. over the course of her four days of trial testimony. Her emotional pain and suffering from the repeated abusive acts was evident throughout her testimony. She became hysterical at times when asked to revisit the details of the assaults. She required frequent breaks and struggled to maintain her composure at times.

Applicable Legal Principles

The Criminal Code sets out the purposes, objectives, and principles that must guide this court in determining a fit and appropriate sentence for these offences: ss. 718, 718.2.

The fundamental purpose of sentencing is to impose just sanctions to protect society, to contribute to respect for the law and the maintenance of a just, peaceful, and safe society.

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. A proportionate and just sentence must have one or more of the following objectives:

1. To denounce unlawful conduct;
2. To deter the offender and others from committing offences;
3. Where necessary, to separate offenders from society;
4. To assist in rehabilitating offenders; and
5. To promote a sense of responsibility in those who commit criminal offences and to acknowledge the harm done.

Where, as here, the offence involved the abuse of a person who is vulnerable because of personal circumstances, including being a female, the court is again required to give primary consideration to the objectives of denunciation and deterrence of this conduct: s. 718.04. The offence of sexual assault also requires the court to give primary importance to the objectives of deterrence and denunciation: R. v. A.J.K., 2022 ONCA 487. Our society has yet to come to grips with just how deep-rooted the issues of sexual violence, myths and stereotypes truly are and just how devastating their consequences can be. Our justice system has been told we can and must do better: R. v. Barton, 2019 SCC 33, at para. 1.

Thus, while rehabilitation remains an important consideration in the sentencing of Mr. McLarnon, it takes a secondary role in this delicate assessment.

A sentence should also be increased or reduced to account for any relevant aggravating or mitigating circumstances. I shall address those later in these reasons.

The sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. An offender also should not be deprived of his liberty if less restrictive measures may be appropriate in the circumstances.

Finally, the court is faced with the task of sentencing Mr. McLarnon on nine offences. Some counts arise from the same event or series of events, such as the last time the victim was with the offender in April 2021 and others arise from separate, discrete occasions.

As a general rule, offences that are so closely linked to each other as to constitute a single criminal adventure may, but are not required to, receive concurrent sentences, while all other offences are to receive consecutive sentences: R. v. Friesen, 2020 SCC 9, at para. 155. Offences constituting invasions of different legally protected interests can also be sentenced consecutively, even if they form part of the same criminal transaction. Determining whether sentences should be consecutive or concurrent is a fact-specific inquiry to be undertaken in the context of each case: R. v. Bertrand Marchand, 2023 SCC 26, at paras. 95-97.

The Code requires that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh: s. 718.2(c). The totality principle requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender: R. v. M.(C.A.), [1996] 1 SCR 500 at para. 42. If the principle of totality is offended, the sentences can be adjusted by making some sentences concurrent, or if this does not achieve a just and appropriate sentence, by reducing the length of one or more sentences: Bertrand Marchand, at para. 99.

Aggravating and Mitigating Circumstances

I find the following aggravating factors to be present:

a. Mr. McLarnon committed multiple violent offences on a woman with whom he was in an intimate relationship. The court recognizes the parties did not agree on the characterization of their relationship and whether they were, in fact, romantic partners. Irrespective of the quality of the relationship or motivations of the parties, the evidence supports that they were in an intimate relationship, albeit one that was volatile, had breaks, and which centred on their drug use. He has abused his “intimate partner”, which is a statutorily aggravating factor under s. 718.2.

b. The context of this relationship is further aggravated by M.C.’s particular vulnerabilities with her drug addiction.

c. He has a longstanding criminal record back to his youth. The convictions include two arising from domestic violence. Although they are dated, from 2012, there is nevertheless a prior history of crimes of intimate partner violence.

d. The sexual assault and repeated physical assaults had a significant impact on M.C., as demonstrated through her emotional testimony and supported by photographs of her various injuries at Mr. McLarnon’s hands.

Mitigating factors are present:

a. He comes from a fractured and unstable family of origin, was exposed to violence from a young age and appears to have had very few opportunities in his life.

b. Mr. McLarnon has had a long struggle with substance addiction. He has not expressed remorse for these incidents (which is not an aggravating factor, but its absence means it is not a mitigating factor) but has shared his insight that his poor decisions are likely connected with his drug use and that he has done well during periods of sobriety. His presentence report suggests he is motivated to maintain his sobriety.

c. He is also motivated to further his limited education and is open to any other programming that may be recommended. This shows some promise for his rehabilitation.

d. While he had fallen out of contact with his mother and sister, in large part due to his lifestyle, he now has their support and they each speak to his character as a gentle and kind person.

Pre-Sentence Custody

As of the time of the sentencing hearing in January, Mr. McLarnon had spent 618 days in custody. He has now spent 674 days in custody at the time of this decision. He is entitled to the Summers credit for this time, translating to 1011 days.

There was some debate during submissions as to whether the court should also consider an additional “Duncan” credit to reflect the time spent in particularly harsh conditions in pre-trial and presentence conditions. The Crown strenuously objected to such a credit as Mr. McLarnon did not bring a formal application or file any evidence. Moreover, the Crown submitted that Mr. McLarnon is already getting the enhanced benefit of presentence credits as a result of his own failure to attend court after he was released on bail.

The Duncan credit is discretionary and can be properly treated as a mitigating factor in arriving at the appropriate sentence: R. v. Williams, 2024 ONCA 508 at para. 28. No formal evidence was filed to demonstrate the number of times the offender has been in lockdown or partial lockdown or living in over-capacity bunking conditions. However, the challenging conditions of pretrial detention both locally and provincially have become notorious within our justice system in the last five years. I find it is not controversial to accept that of his 674 days in custody, Mr. McLarnon has been subjected to unduly harsh conditions as a result of overcrowding and staff shortages. As I am without specific evidence of the conditions to which he was exposed, I will however, apply it as a modest mitigating factor of one month credit or 30 days to the global sentence.

Sentence

The sentence imposed must give effect to the primary considerations of deterrence and denunciation. These offences all concern repeatedly depriving a vulnerable woman of her dignity, dehumanizing her, and exposing her to physical and sexual violence. The assaults ranged from throwing objects at her, to using his hand to punch or slap the victim, and to using a razor blade to cut her torso or a knife to cut her arm.

All sexual assaults are serious acts of violence, and the forced penetration of another person will typically attract a sentence of at least three years in the penitentiary: A.J.K. at paras. 74, 77. I recognize that this act of fellatio was inherently violent as it was performed without her consent. However, on a continuum of sexual violence, I would not equate the context of this act as being on the same footing as forced vaginal penetration.

I have considered the cases filed by the Crown in support of its position. Of those, the decisions in R. v. Inshanally, 2021 ONSC 3432 and R. v. Kugurajah, 2022 ONCJ 469 were of relevant assistance, although in the end, sentencing must be a fact-specific and individualized exercise.

I conclude that a fit global sentence for Mr. McLarnon is five and ½ years incarceration broken down as follows:

a. Sexual Assault in April 2021 (Count 9) – 2 years;

b. Assault with a razor blade (Count 3) – 12 months consecutive to Count 9;

c. Assaults with threats to use weapons (blunt object, pellet gun) (Count 2) – 12 months consecutive to Count 3;

d. Assault with choking (Count 8) – 12 months consecutive to Count 2;

e. Assaults between 2020 and 2021 (4 incidents) (Count 6) – six months consecutive to Count 2;

f. Assault with a knife (Count 7) – 6 months concurrent to Count 9;

g. Assault with a bowl (Count 5) – 6 months concurrent to Count 9;

h. Uttering threats (Count 1) – 6 months concurrent to Count 9;

i. Unlawful confinement in April 2021 (Count 4) – 6 months concurrent to Count 9.

I arrived at this sentence with consideration of the totality principle and the recommended procedure to ensure the cumulative sentence does not exceed Mr. McLarnon’s overall culpability and is not “crushing”: s. 718.2(c); Bertrand Marchand, at paras. 91-93; R. v. Ahmed, 2017 ONCA 76 at para. 79; R. v. Milani, 2021 ONCA 567, at paras. 37-38.

But for the totality principle, his global sentence would have approached nine years. This would involve:

a. A three-year sentence on Count 9;

b. A one-year sentence on Count 3 consecutive;

c. A one-year sentence on Count 2, consecutive;

d. A two-year sentence on Count 8, consecutive;

e. A one-year sentence on Count 6, consecutive;

f. Six months each on Counts 1, 4 and 7, to be concurrent with Count 9; and

g. Six months on Count 5, consecutive.

I find that such a sentence would exceed his overall culpability and would be crushing for any hope for rehabilitation and given his dated criminal record for similar offences of this nature. He has been working on his sobriety, expressed interest in furthering his education and in participating in programming. I commend him for these goals and encourage him to pursue this in his time remaining in custody.

From the five and half years, I deduct 674 days at a credit of 1.5 for a total of 1011 days, reducing his sentence to 994 days and a further 30 days or 1 month in mitigation as the Duncan “credit” leaving a sentence of 964 days or two years and 234 days.

Ancillary Orders

In addition, I make the following ancillary orders:

a. A non-communication order with M.C. or her family while Mr. McLarnon is in custody – s. 743.21

b. Registration pursuant to the Sexual Offender Information Registration Act on Count 9 for a period of 20 years – s. 490.012(1)

c. A primary DNA order on Counts 2, 3, 4, 5, 6, 8, and 9 – s. 487.051(1)

d. A firearms and weapons prohibition on all counts for 10 years – ss. 109(1)(a.1)(i),(2)

e. In light of Mr. McLarnon’s circumstances, the victim surcharge is waived.

Justice K. Tranquilli

NOTE: As noted in court on the record, this decision in writing is to be considered the official version of the reasons for sentence and takes precedence over the oral reasons read into the record.

Released: March 18, 2025