Reasons for Decision – Sentencing

Court File No.: CR-22-40000075
Date: 2025-01-28
Superior Court of Justice – Ontario
Between:
His Majesty the King
and
Jason Curnew

Before: S.F. Dunphy
Counsel:
Stephanie Abrahams, for the Crown
Dragi Zekavica, for the Defendant
Heard at Toronto: 2025-01-23

NB: These reasons are subject to a ban under s. 486.4(1) of the Criminal Code prohibiting the publication of any information tending to identify the complainant. These reasons have been anonymized and are authorized to be published in any digest or collection of judicial decisions.

Introduction

[1] On December 10, 2024 I found Mr. Curnew guilty on a single count of sexual assault against Ms. AS following a trial before me sitting as judge alone. He is before me today for sentencing.

Circumstances of the Offence

[2] I described the circumstance of the offence in my (oral) reasons for judgment which I shall only summarize here.

[3] The complainant, Ms. AS was hired as a contract employee to assist Mr. Curnew on a project. She was given a six-month contract in early 2020 shortly before the onset of the pandemic. Mr. Curnew was her immediate supervisor although Mr. Curnew’s own supervisor was ultimately responsible for her.

[4] Ms. AS and Mr. Curnew worked together in a windowless office giving on to an area with other employees via a doorway which Mr. Curnew kept closed for most of the time Ms. AS worked for him.

[5] An initial incident occurred in the March–April time frame. Ms. AS had come to work in an emotional state following a dispute with her husband. Mr. Curnew closed the door and asked Ms. AS to hug with him. While hugging her and without any prior discussion or warning, Mr. Curnew reached down her jeans and inserted his finger in her vagina briefly. Ms. AS was shocked but Mr. Curnew simply withdrew his hand, laughed, said he was sorry and went back to work.

[6] A week or two following this first incident, and following sexual banter via text messages, Mr. Curnew announced to Ms. AS that they would have sex. She told him she could not and was married. This occurred during the time just prior to the shift change at the office (at 2 pm) when there were no supervisors in the area. Despite her vocal objections, he lifted her up, lowered her jeans to her knees and placed her on the desk where he proceeded to penetrate her vagina with his penis without a condom. He ejaculated into a cup. She went to the washroom afterwards and the incident had caused her period to arrive early. She returned to the office crying. He said he was sorry and that this would not happen again. It did, and several more times.

[7] There were three or four other incidents which followed this same pattern, each time occurring in the office at the time leading up to the afternoon shift change. On each such occasion, Mr. Curnew initiated the contact, ignored her objections and penetrated her vagina with his unprotected penis after placing her on the desk, finishing into a cup. The stress of the incidents disrupted her menstrual cycle and caused Ms. AS to experience pain and bleeding. Mr. Curnew apologized each time and said he could not control himself.

[8] There were two other incidents which departed from this pattern. On one occasion, he came at her from behind in the office, lowered her jeans and entered her without a condom and without withdrawing. On another occasion, he compelled her to give him fellatio.

[9] Ms. AS’s menstrual cycle was thrown into disarray by these incidents. Mr. Curnew would frequently inquire about whether she was still bleeding or simply checked for himself by pulling down her underwear. On several other occasions where she was experiencing bleeding, he compelled her to kiss him while he masturbated in front of her.

[10] I have found beyond reasonable doubt that all these events occurred substantially as described by Ms. AS and in the general time frame described by her. In each case, her lack of consent was explicit and vocal, admitting of no room whatsoever for reasonable doubt as to the state of Mr. Curnew’s mind in relation to the matter of the consent of Ms. AS.

Circumstances of the Offender

[11] I have some background information regarding Mr. Curnew from the pre-sentence report that I requested following his conviction. He is currently 42 years of age. His mother had two daughters from a previous marriage before he was born. His own father left the family shortly after he was born. He had little contact with him thereafter until his teen years but developed a relationship with some continuing contact thereafter (his father lives abroad). His relationship with his mother was somewhat strained, particularly after his own marriage. It appears that his older sisters played a very significant role in helping to raise him while his mother worked. Overall, the pre-sentence report describes a somewhat unsettled childhood – frequent moves due to the precarious financial situation of his mother and being left in the care of his older sisters frequently.

[12] Mr. Curnew married at the age of 21 and the couple had three children. That relationship ended in 2019.

[13] After graduating high school, Mr. Curnew went to college briefly to pursue a technical vocation that he left after a year. He worked steadily thereafter, working in the public service and advancing steadily through the ranks for more than ten years prior to his arrest on this matter.

[14] In 2019, Mr. Curnew was arrested on two counts of sexual interference under s. 151 of the Criminal Code and one count of accessing child pornography under s. 163.1(4.1) of the Criminal Code. The victims were very young girls – the elder of the two being 11 years old. The sexual touching in that case involved him reaching his hands down her clothing and fondling her vagina. Following his conviction, he was sentenced on September 1, 2023 receiving consecutive sentences totaling 6.5 years plus a s. 161 prohibition order with a duration of 20 years.

[15] He has approximately 5 years and one month of that sentence left to run.

Aggravating and Mitigating Circumstances

[16] I find the following aggravating circumstances have been proved beyond reasonable doubt:

a. Abuse of position of authority (s. 718.2(a)(iii)): I find that Mr. Curnew was the principal supervisor of Ms. AS on a day-to-day basis, assigning her tasks and receiving the output of her work. She was hired – even if by Mr. Curnew’s own supervisor – to assist him and he had input into her hiring. Ms. AS had been hired on a temporary basis and Mr. Curnew knew by reason of conversations with her over time that she was under some financial strain, that there were strains in her marriage and that she very much wanted to convert her contract position into a full-time position. His position of authority played a significant role in the crime with which he is charged including in the almost one year before she made her complaint to police.

b. Significant impact upon the victim (s. 718(a)(iii.1)): The impact upon this victim has been particularly devastating and long-lasting. Her testimony at trial added further depth to the Victim Impact Statement. She testified as to the degree of humiliation his conduct caused her and the physical and mental pain inflicted. When he was not forcing unprotected vaginal intercourse or fellatio upon her over her voiced protests, he was inserting his fingers in her vagina, checking her underwear for signs of a period or forcing kisses upon her while he masturbated. He treated her as his wife before other employees causing her further humiliation. To the moral pain was added physical pain of the events themselves and the aftermath which included significant disruption to her menstrual cycle and stomach and other pains.

c. The sexual violence took place in the workplace environment: this circumstance is in some ways an aspectof the preceding two aggravating circumstances.

d. The duration and frequency of the sexual violence: While there is but a single charge, the number of incidents proved by the Crown to have taken place beyond reasonable doubt over a comparatively short – approximately 2.5 months – time frame is an aggravating circumstance. This circumstance is evidence of an enhanced degree of moral culpability and blameworthiness. Proved instances of sexual violence took place on or near a weekly basis over this time frame.

e. The degree of physical interference: As described, the incidents proved by the Crown include numerous instances of forced vaginal intercourse – six or more in number – none of which involved the use of a condom and one of which involved ejaculation inside the victim’s vagina. There was an instance of forced fellatio which included ejaculation into her mouth. There were other instances involving a lesser degree of physical interference including pulling down her underwear to check the status of her period or forcing kisses upon her while masturbating. The degree of physical interference and the resulting harm to the victim was thus on the higher end of the spectrum.

f. Mr. Curnew was on bail facing other charges at the relevant time: Mr. Curnew was at liberty on bail for charges before Ms. AS began work as his assistant even if he was not convicted and sentenced on those charges until after the incidents in this case.

[17] I find the following mitigating circumstances:

a. History of steady employment: Mr. Curnew has been gainfully and steadily employed since he left high school and following a brief pursuit of a college trade program that he ultimately found unsuitable for him. Prior to his arrest he had a successful career in the public sector having worked his way up over more than ten years of service.

b. Strong family support: Mr. Curnew’s elder sister in particular has been supportive of him including through his more recent legal proceedings. His father has re-established a connection with him – albeit from abroad. Mr. Curnew also developed a close relationship with a woman he met prior to the charge in this case being laid and remains close to her despite his subsequent incarceration on the prior charges and his conviction on this charge.

Victim Impact Statement

[18] Ms. AS prepared a Victim Impact Statement which she asked the Crown to read for her. Aspects of her statement also arose during her testimony at trial and I accept her statement as a fair summary of the impact of this crime upon her. In her statement, she noted the long path her recovery from the abuse inflicted upon her by Mr. Curnew has taken. It was a year before she felt able to begin re-applying for new positions and two years before she was able to obtain a job in a field related to her experience. During this hiatus from the workforce, her husband - already suffering from significant health issues – was required to carry an additional support load working long hours to make ends meet. Her own sex life has been thoroughly damaged and this too has had a significant impact on her marriage. She reports feeling “like I am carrying a dead person inside my body and my mind” and fears this feeling will be with her till the end of her life, describing this as a wound “that eat[s] away my soul like a leprosy”.

Position of the Parties

[19] The Crown seeks a sentence of eight years consecutive to the earlier sentence imposed on September 1, 2023. The Crown submits that its proposed eight-year sentence fully accounts for the application of the totality principle as well as the other applicable sentencing principles.

[20] The defence took the position that a three-year consecutive sentence on the single count before me for sentencing is adequate in the circumstances and fulfills the necessary sentencing objectives. The defence took the position that a longer consecutive sentence than three years would result in an overall sentence that would be unduly harsh having regard to the totality principle.

[21] I shall refer to the jurisprudence and arguments cited by both in reviewing the applicable sentencing principles below.

[22] In terms of ancillary orders, the Crown seeks the mandatory orders arising from this conviction: an order requiring a DNA sample, s. 109 prohibition and a SOIRA order. In addition, the Crown seeks an order pursuant to s. 743.21 prohibiting any attempt by Mr. Curnew to contact the complainant Ms. AS. The defence opposes none of these proposed ancillary orders save and except a request that the SOIRA order of 20 years should be concurrent with and not consecutive to the SOIRA order arising from his 2023 sentence which position the Crown agreed to when it was raised.

Application of Sentencing Principles

(a) Discussion of General Principles

[23] The principles generally applicable to sexual assault sentencing have been frequently stated and summarized and need not be repeated at length here. While the case of R. v. Friesen, 2020 SCC 9 concerned sexual offences involving children, it contains valuable guidance applicable to sentencing in sexual assault cases more generally including the present case that involves an adult victim. In particular the following observations in Friesen are of particular applicability to the present case:

a. the Supreme Court emphasized the need to recognize the disproportionate impact of this crime on women (c.f. Friesen para. 68 “Like the sexual assault of adults, sexual violence against children is highly gendered”);

b. sentences must reflect the gravity of the offence, the inherent wrongfulness of the crime and the harm to the victim all of which bear upon the degree of responsibility of the offender: Friesen paras. 75-79;

c. the aggravating factor of breach of trust or abuse of a position of authority is aggravating because of the increased degree of responsibility of the offender as well as the moral blameworthiness of the conduct: Friesen para. 126, 129-130;

d. duration and frequency of sexual violence and the degree of interference are both important factors in sentencing: Friesen para. 131-133 and para. 138-142.

[24] I also concur in the comments of I.F. Leach J. in R. v. C.G., 2024 ONSC 6699 at para. 31 that “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”. This decision contains an extensive review of the principles derived from Friesen and other recent jurisprudence which I have relied upon extensively in my analysis of this case.

(b) Proper Weight of Prior Occurrences but Subsequent Convictions

[25] During the time frame covered by the indictment upon which Mr. Curnew was convicted he was on bail awaiting trial on the 2019 charges. He was convicted and eventually sentenced on September 1, 2023 well after the relevant time frame. He cannot therefore be said to have had prior convictions at the time of the offence and the subsequent convictions cannot logically be considered as “prior convictions” from the perspective of aggravating circumstances. He had not yet been convicted or sentenced. It cannot be said, for example, that a lengthier sentence is required given the lack of behavioural change following the first conviction. The fact that Mr. Curnew was on bail when the offence was committed is legitimately available to be considered and weighed as an aggravating circumstance even in the absence of a charge under s. 145 of the Criminal Code.

[26] While there are very significant distinguishing features associated with the prior occurrences of which the age of the victims and the frequency and degree of interference are the most obvious, the prior occurrences that resulted in a subsequent (to the incident before me) conviction are sexual crimes and may fairly be considered to have a bearing on the rehabilitation prospects of the offender as well as his degree of responsibility and moral culpability.

(c) Proper Weight of Multiple Incidents in a Single Count

[27] As noted, the indictment before me covers a considerable span of time and the evidence led by the Crown at trial covered a significant number of related incidents. There were common threads in terms of the victim, the location and context of the offence among others.

[28] I consider that I may not treat each proved incident of sexual assault as if it had been separately charged from a sentencing perspective. The Crown did not so charge the accused and that is not the case that was defended. I cannot, for example, examine precedents where incidents were separately charged and separately sentenced with consecutive sentences – again, that is simply not the case that was before me for trial.

[29] In my view, the correct approach is to consider the evidence of the multiple incidents as aggravating factors going to both frequency and degree of interference (applying generally the Friesen framework to the analysis of sexual assault sentencing). That is the approach I have adopted here.

(d) Proper Application of the Totality Principle

[30] I have reviewed the case of R. v. Wisdom, 2024 ONSC 4047 (at paras. 58 and following) where Justice Code reviewed the recent jurisprudence on the totality principle in the context of consecutive sentences. I am persuaded that the proper approach is the one followed by Code J. in Wisdom which consists of establishing the fit and proper sentence for each offence that is to be served consecutively and then examining the cumulative sentence arising to determine whether the combined sentence is unduly harsh and exceeds the overall culpability of the offender.

[31] The complicating factor here is that another judge assessed the degree of responsibility of the offender and the other applicable sentencing principles in the prior case. I am in no position to sit in judgment on the adequacy of that assessment still less to compare the gravity of the offence before me to the prior case that was sentenced in 2023. The details of those offences are before at only the highest of levels. The fit and proper sentence on the offences from the first case must be taken by me as a given when undertaking the totality analysis in relation to the offence before me for sentencing.

[32] Accordingly, my approach here shall be to determine a fit and proper sentence first and then to consider whether the cumulative sentence is unduly harsh. Since I cannot reduce the first sentence (which is not before me), the only measure open to me as sentencing judge on the present offence is to reduce an otherwise fit and proper sentence to a level that produces a cumulative result that is in keeping with the totality principle.

(e) Application of Principles to This Case

[33] My review of the aggravating circumstances I have found to be present in this case makes clear that the moral blameworthiness and degree of responsibility of this offender are both near the higher end of the spectrum. These considerations and the frequent and recent exhortations of appellate authority in this area all require a sentence that gives primary weight to denunciation and deterrence as primary sentencing goals.

[34] Mr. Curnew’s prospects of rehabilitation and successful re-insertion into society are difficult to gauge. His solid work history and strong family supports are definitely assets but his behaviour vis-à-vis Ms. AS and vis-à-vis the victims of the 2019 charges are indicative of significant sexual impulse control issues which to date at least are unaddressed and with an unknown prognosis for successful treatment.

[35] While evidence of remorse is absent in the circumstances, there is some evidence of insight into his behaviour on a more general plane that augurs cautiously well. He has recognized some responsibility for putting himself in a position that even the consensual relationship he alleged occurred in the workplace given his own prior experiences. His sister – with whom he is close – has expressed the view that he would benefit from therapy and Mr. Curnew himself told the author of the PSR that he is “wide open” to anything beneficial including therapy. Mr. Zekavica noted that Mr. Curnew has been held in Toronto East Detention Centre since his incarceration following sentencing on September 1, 2023, and has thus not undergone intake into the Federal system which has the potential to make available to him more intensive therapy options.

[36] I approach the question of the appropriate sentencing range in this and every case with some trepidation. Ranges are only a starting point in the analysis leading to a fit and proper sentence. The individualized nature of the sentencing process cannot be highjacked by the rigid application of sentencing ranges. While the parity principle is intended to lead to “like being treated alike”, it is also trite but true to observe that each case is different. There are always features to distinguish this fact pattern from that. Despite this, parity must maintain its status as a fundamental sentencing principle failing which sentencing should risk becoming arbitrary and dependent more upon the personality and whims of the sentencing judge than upon the circumstances of the offences and the offender. Such is the balancing exercise Parliament has directed sentencing judges to undertake. We must consider and apply these apparently opposite-pulling factors into a harmonious and just determination of sentence. We are directed to apply our best judgment to weigh and apply all of them. This represents my best effort to do so.

[37] What then does the parity principle and precedent suggest in terms of an appropriate range for similar cases?

[38] The Crown relied primarily upon the following authorities:

a. R. v. C.G., 2024 ONSC 6699: the accused was charged with two counts of sexual assault involving vaginal intercourse (one without a condom), a significant age differential with a victim who was the daughter of the intimate partner of the accused. Strong rehabilitation potential was noted. Consecutive sentences of 3 years for each of two counts.

b. R. v. M.S., 2024 ONSC 1776: on a retrial post-Friesen on a single charge of sexual assault involving two alleged incidents, one involving attempted intercourse the second involving full vaginal penetration. The accused was the stepfather of a young teen victim. Findings were made of serious impact on the victim and high blameworthiness. No prior record and strong family supports noted. Global sentence of seven years.

c. R. v. R.G., 2024 ONCA 917: two counts of sexual assault and one of forcible confinement arising out of single extended incident involving an intimate partner over one night resulted in a global five-year sentence.

d. R. v. Silveira, 2024 ONSC 757: a single occurrence of sexual assault but of a relatively long duration and involving vaginal penetration without a condom and resulting in significant harm to the victim. Youthful offender without prior convictions, strong family support and rehabilitation potential. Sentence of 3.5 years.

e. R. v. Vergara, 2023 ONSC 2477: accused managed an adult massage parlour and was convicted of sexually assaulting six adult female employees on separate occurrences over an eight-year period. Global sentence of five years, eight months imposed.

[39] The defence relied upon the following cases:

a. R. v. Vigon-Campuzano, 2020 ONSC 5702: massage therapist convicted of two counts of sexual assault involving unwanted breast massages in one case and unconsented-to digital penetration of her vagina in the other. Breach of trust aggravating factor found and psychological injury resulting. Sentence of 6.5 months consecutive for each of two counts (13 months total).

b. R. v. P.M., 2022 ONCA 408: 37-year-old first time offender convicted of sexual assault for forcible intercourse against intimate partner. Three-year sentence upheld.

c. R. v. McKenzie, 2017 ONCA 128: single instance of sexual assault at an office Christmas party with significant age disparity and attempted anal penetration partly successful but interrupted by a third party after 20 to 35 seconds. Out of character offence with excellent rehabilitation prospects. Nine-month sentence upheld.

[40] It is of course difficult to find cases that offer a precise match of aggravating and mitigating circumstances. However, I am persuaded that the degree of violation of the sexual integrity of the victim in this case was at the high end of the scale both in terms of severity, frequency and impact upon the victim. The exploitation of Mr. Curnew’s position of authority was absolutely central to this crime. None of the defence cases approach the present case in terms of the combination of severity, frequency and victim impact in particular. The parallels this case presents with the cases cited by the Crown are not exact, but I find the jurisprudence strongly supports an appropriate sentencing range of six to eight years for cases broadly similar to this.

[41] On balance, and prior to consideration of the totality principle, I am persuaded that a seven-year sentence strikes an appropriate balance among the applicable sentencing principles discussed. There is no basis on the facts to make the sentence I must render in this case concurrent to the sentence currently being served by Mr. Curnew arising from charges involving different victims in different circumstances and separated by more than a year in time from the facts underlying this charge. The circumstances clearly require a consecutive sentence to be imposed.

[42] Mr. Curnew is currently one year and five months into what is effectively a 6.5 year prior sentence. He thus has about five years and one month left to serve on that sentence. It is not open to me to alter the prior sentence. Any adjustment to reflect the totality principle can only be made to the sentence I am imposing.

[43] There is no doubt in my mind that the aggregation of the prior sentence with a seven-year consecutive sentence here would produce a very severe and harsh outcome. A five-year sentence here seems slightly below the range I would consider appropriate for this case viewed in isolation, but not unduly so. On the other hand, the resulting aggregate sentence would be less crushing and harsh and leave open the prospect of an offender emerging from custody with some prospect of reassembling his life and a reason to pursue rehabilitation with diligence.

[44] In my view, a sentence of five years – when viewed in the context of the time remaining to be served on the other charges – is a fit and proper sentence for this charge that does not result in a combined sentence that is unduly long or harsh.

Disposition

[45] For the foregoing reasons, I sentence Mr. Curnew as follows:

a. He shall be sentenced to a penitentiary term of five years to be served consecutively to the sentence he is currently serving (from September 1, 2023);

b. The following ancillary orders shall be made:

i. Pursuant to subsection 487.051(1) of the Criminal Code, a mandatory order in Form 5.03 shall issue, compelling him to provide the number of samples of bodily substances reasonably required for the purpose of forensic DNA analysis;

ii. Pursuant to subsections 109(1)(a) and 109(2) of the Criminal Code, he shall be subject to a weapons prohibition order as described therein, for life;

iii. Pursuant to section 743.21 of the Criminal Code, an order shall issue prohibiting him from communicating directly or indirectly with Ms. AS, during the custodial sentences I have imposed, with the complainant; and

iv. Pursuant to the provisions of subsection 490.012 of the Criminal Code, he shall be subject to a further order in Form 52 requiring him to comply with the Sex Offender Information Registration Act ("SOIRA"), for a period of 20 years. For greater certainty, the 20-year period specified is not consecutive to the prior SOIRA order made on September 1, 2023 in the other proceedings.

[46] Mr. Curnew has been in custody serving his sentence on the prior charges. There is no pre-sentence custody to credit him with.

[47] Orders to be issued in accordance with these reasons.

S.F. Dunphy

Date: January 28, 2025