Court File and Parties

Court File No.: CR 25-052 Date: 2025-09-25 Ontario Superior Court of Justice

Between: His Majesty the King – and – Kerry Noble

Counsel: M. Mazurski, for the Crown R. Forget, for the Offender

Heard: April 1-3 and September 17, 2025

Before: M.G. Ellies J.

Reasons for Decision on Sentence

Overview

[1] The offender, Kerry Noble, was found guilty following a trial before a jury of one count of sexual assault and one count of surreptitiously making a visual recording ("voyeurism"), contrary to ss. 271 and 162(1) of the Criminal Code, R.S.C. 1985, c. C-46 (the "Code"), respectively. The charges arose after the offender's girlfriend discovered videos and photographs of the offender performing various acts, including inserting objects into her naked body. Mr. Noble is before me now for sentencing.

[2] The Crown seeks a sentence of five years imprisonment in total. The defence seeks a sentence of less than two years, to be served in the community.

[3] To arrive at an appropriate sentence, I must consider the circumstances surrounding the offence, those of the offender and the victim, and the relevant principles of sentencing. I will begin with the circumstances surrounding the offence.

The Offence

[4] As of March 13, 2019, the victim and the offender were living together and were engaged to be married. However, the victim had suspicions that the offender was seeing another woman. As a result of her suspicions, the victim used her laptop computer to gain access to the offender's cell phone. When she did, she discovered a number of videos and photographs, in many of which the offender was shown inserting various sex toys into her vagina. The victim had not consented to any such activity and became very upset. She therefore downloaded the images to her laptop computer.

[5] A few days later, the victim confronted the offender about what she had found. A heated argument broke out during which the victim tried to prevent the offender from leaving their apartment by taking his shoes, among other things. The police were notified, and several officers attended the area of the couple's apartment. When they arrived, the victim told them about the videos and attempted to show them to the police using her laptop. She was unsuccessful, so the police brought the laptop with them when they took the victim to the police station to be interviewed.

[6] Another officer who had been summoned to the scene located the offender not far away from the apartment, wearing two different shoes and sporting an injury just below his right eye that the offender told the police had been inflicted by the victim. The offender was arrested and also brought to the police station to be interviewed.

[7] A police officer at the station was able to download the images from the victim's computer. They consisted of 112 photographs and 10 videos. The photographs depict various scenes, including the victim's vagina being opened by the accused and the accused's naked penis near the victim's face. The videos are graphic and show the accused inserting sex toys into the victim. The accused's cell phone was also seized by the police and sent for analysis. Only some of the photographic images and none of the videos were found on the phone. However, there was no issue at trial that the photographs and videos downloaded by the victim were captured by the offender.

[8] The victim testified that the sex toys belonged to the parties, but that she had not consented to any of the acts depicted in the photos and videos and was not conscious at the time they were made. The offender testified that the photos and videos inaccurately portrayed what had occurred because they did not show what happened immediately before or after they were taken, during which times the victim was awake and either expressing or demonstrating her consent.

[9] The jury's verdict makes it obvious that they did not accept the offender's version of events. Having seen the videos myself, I have no trouble accepting their verdict. At no time during any of the videos did the victim move or show that she was anything other than unconscious.

The Offender

[10] I turn now to the circumstances surrounding the offender.

[11] The offender is 58 years old. He has lived in North Bay since he was about six years old. He is described by the author of the pre-sentence report ("PSR") as being of Jamaican Canadian descent. However, there is no suggestion that there are any Morris factors at work here.

[12] The offender was adopted from birth and raised along with two older siblings in what has been described as a "positive" family environment in which the offender was "well loved and cared for." However, the offender did tell the author of the PSR that he had been abused by the parent of a friend when he was eight years old. The incident appears to have been an isolated one that was not repeated after it was reported.

[13] The offender left high school at the age of 17 to join the workforce but, as I understand the PSR, completed high school as an adult. At the time of the trial, he was working as a trained hairstylist. At the time of the preparation of the PSR, he was working as a shipper-receiver.

[14] The offender began using drugs, including cocaine, in 2016. The victim testified that both she and the offender were drinking heavily while they were living together, and the offender told the author of the PSR that he was under the influence of drugs at the time of the offences that bring him before the court. According to the offender, he stopped using drugs in 2019, after these offences occurred. Although the offender denies having any "active issues" with respect to either drugs or alcohol, he admitted to the author of the PSR that he is resolved to becoming sober.

[15] The offender has no criminal record.

The Positions of the Parties

[16] The Crown seeks a penitentiary term of four years on the sexual assault conviction and one year, consecutive, on the voyeurism conviction. Crown counsel submits that, while a conditional sentence is legally available (see R. v. Basso, 2024 ONCA 168), a sentence as low as the two years less a day required to qualify for a conditional sentence would be too low in this case.

[17] On behalf of the offender, counsel submits that the lack of a criminal record and the positive PSR, reflecting the offender's efforts at rehabilitation, mitigate against the carceral sentence sought by the Crown and in favour of a community-based conditional sentence.

The Relevant Legal Principles

[18] Before I address counsel's submissions, I will briefly discuss the law of sentencing.

Fundamental Purpose of Sentencing

[19] The fundamental purpose of sentencing is to protect society, to contribute to respect for the law, and to maintain a just, peaceful, and safe society: Code, s. 718.1.

[20] Section 718 of the Code sets out a number of objectives to be achieved in fulfilling the fundamental purpose of sentencing. They include denunciation of the unlawful conduct and the harm caused by it, deterrence of the particular offender and others, and the rehabilitation of offenders. A sentence expresses denunciation by condemning the offender for encroaching on our society's basic code of values and expresses deterrence by discouraging the offender and others from engaging in criminal conduct: R. v. T.J., 2021 ONCA 392, at para. 26.

Fundamental Principle of Sentencing

[21] The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: Code, s. 718.1. The gravity of the offence includes both subjective gravity, meaning the circumstances that surround the commission of the offence, and objective gravity, meaning the severity of the crime itself. The objective gravity of an offence is reflected in the maximum sentence for the offence as set out in the Code: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 96.

[22] While sentencing is an individual exercise that must be tailored to the facts of each case, courts of appeal throughout Canada are free to set sentencing ranges or starting points that also reflect the objective gravity of an offence: Friesen, at para. 106. Since the decision of the Ontario Court of Appeal in R. v. A.J.K., 2022 ONCA 487, it has been clear that the starting point in Ontario for sexual offences involving the forced penetration of the victim, including the offender's intimate partner, is three years imprisonment: A.J.K., at para. 77.

[23] In this case, the offender is being sentenced for two offences. The principle of proportionality requires that a court imposing consecutive sentences take into account the totality of the sentence, so as to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender: R. v. M. (C.A.), 1996 SCC 230, [1996] 1 S.C.R. 500, at para. 42.

Aggravating and Mitigating Factors

[24] Section 718.2 of the Code requires that a sentence be increased or decreased to account for any aggravating or mitigating circumstances relating to the offence or the offender. The section lists a number of circumstances that are presumptively aggravating. Two of those circumstances are relevant in this case: (1) evidence that the offender, in committing the offence, abused the offender's intimate partner, and (2) evidence that the offence had a significant impact on the victim, considering her age and other personal characteristics: Code, s. 718.2(a)(ii) and (iii.1).

[25] In addition, s. 718.201 of the Code requires the court that imposes a sentence in respect of an offence that involved the abuse of an intimate partner to consider the increased vulnerability of female persons who are victims: Code, s. 718.201.

The Principles Applied

[26] I will begin by examining the aggravating factors in this case and I will then examine those that mitigate the sentence.

Aggravating Factors

[27] As I mentioned, there are two aggravating factors present in this case that are referred to specifically in s. 718.2 of the Code.

[28] The first is the fact that the victim was the offender's intimate partner. What makes intimate partner violence so reprehensible is the breach of trust that it involves. The victim let her guard down. She trusted the offender and he took advantage of that trust to commit the offences that he did.

[29] The second statutory aggravating factor is the effect that this breach of trust has had on the victim. Although counsel cooperated to reduce the extent to which the jurors had to watch the videos and look at the photographs, the effect of the trial process on the victim was nonetheless obvious, and profound.

[30] Of course, the effect of being victimized has extended well beyond the trial. Although the victim has been undergoing counselling, she feels ashamed and describes herself as "broken" and "crushed". She no longer trusts any man. While the PSR indicates that the offender has moved on to another relationship, the victim has not, and may never be able to do so.

[31] In short, the offences have had a predictably devastating impact on the victim.

[32] A third aggravating feature of the facts in this case is the degree of physical interference with the victim's bodily integrity: Friesen, at para. 138. As I have mentioned, the victim was penetrated with objects, obviously solely for the offender's pleasure. And by filming and photographing the assaults, the victim was penetrated not just for the offender's pleasure at the time, but for his pleasure at any time he later chose.

[33] I turn now to the mitigating factors.

Mitigating Factors

[34] There are several mitigating factors in this case.

[35] One of them is the fact that the offender has no criminal record.

[36] Another is the offender's solid work history.

[37] A third is that the offender has taken steps to address the substance abuse problem that contributed to the commission of the offences for which he is being sentenced. However, to have true rehabilitative potential, the offender must also accept responsibility for the offence: R. v. B.C., 2008 ONCA 486, at para. 57. It is not clear from the PSR that the offender has done that here. Although the report concludes, at p. 6, by saying that the offender "conveys accountability for his behaviour" and "acknowledges harm done to the victim", earlier in the report the author writes, at p. 4:

When questioned about the offence (sic) currently before the court, the subject attributes his risky behaviour and poor decision making to a substance use issue. He rationalizes his actions alluding to each partner having intimate photos of each other on their devices. He describes their relationship as unhealthy alleging the victim had a pattern of chronic alcohol use and violence.

[38] I conclude from this portion of the PSR that the offender has a distance yet to travel before he can be considered a good prospect for rehabilitation.

Appropriate Sentence

[39] Having considered the sentencing purposes and principles mentioned earlier, and all of the circumstances surrounding the offence, the offender, and the victim, I am respectfully unable to agree with the Crown that the appropriate sentence in this case is five years imprisonment. In my respectful view, given the presence of the mitigating factors and the absence of any additional aggravating factors beyond those to which I have referred, there is no reason to impose a sentence for the sexual assault beyond the starting point referred to in A.J.K. However, I do agree with the Crown that a sentence of one year, consecutive, is appropriate for the offence of voyeurism.

[40] For the foregoing reasons, I hereby sentence the offender to a term of imprisonment of four years.

Ancillary Orders

[41] In addition, the following ancillary orders will also be made:

(1) the offender shall provide a sample of his DNA under s. 487.051 of the Code;

(2) he shall be prohibited from possessing any firearm, ammunition, or other thing mentioned in s. 109 of the Code for a period of 10 years; and

(3) he shall be prohibited from communicating, directly or indirectly, with the victim during the duration of his sentence, pursuant to s. 743.21 of the Code.

[42] I have considered the provisions of the Code as they relate to the making of an order under the Sex Offender Information Registration Act. The making of an order under that Act is discretionary in this case because the complainant was not under the age of 18 and the offender has no criminal record. However, given the conviction for the offence of sexual assault and the failure of the offender to establish under s. 490.012(3) of the Code that the order should not be made, the offender will be registered under s. 490.013(2)(b) for a period of 20 years.

M.G. Ellies J.

Released: September 25, 2025