R. v. Wicker, 2025 ONSC 930

Court File No.: CR-23-29
Date: 2025/02/10
Ontario Superior Court of Justice

Between:
His Majesty the King
– and –
Jeremy Wicker, Defendant

Appearances:
L. Fritzley, for the Crown
J. Manishen, for the Defendant

Heard: January 15, 2025

Judgment on Sentence
A. D. Hilliard

Background

[1] Mr. Wicker was convicted by me of one count of sexual assault against his former spouse, Josephine Wicker[^1] after a trial. Acquittals were entered on all of the other counts on the indictment for reasons delivered orally.[^2]

[2] In my reasons for judgment on the trial, I accepted Ms. Wicker’s evidence that Mr. Wicker sexually assaulted her in their pool by digitally penetrating her vagina with his finger or thumb. After digitally penetrating Ms. Wicker’s vagina, Mr. Wicker uttered, “see how easy it would be to violate you?” At the time of the incident, Mr. and Ms. Wicker were married and residing together. The sexual assault took place at their home in the context of an argument about Ms. Wicker going on vacation to Jamaica without Mr. Wicker.

[3] After judgement was rendered, the matter was adjourned for a pre-sentence report to be prepared. Submissions on sentence were then heard on January 15, 2025 and the matter was adjourned for the preparation of this judgment.

Positions of the Parties

[4] The Crown takes the position that the appropriate sentence for this offence on the facts of this case is three (3) years. However, based on Ms. Wicker’s ongoing fear of Mr. Wicker and the consequent need for there to be a prolonged period of supervision once Mr. Wicker is released from custody, the Crown advocates for a two (2) year jail sentence followed by a period of probation for three (3) years.

[5] Mr. Wicker argues that a conditional sentence should be imposed. He argues that a conditional sentence is a sufficiently denunciatory sentence for the brief nature of the sexual assault Mr. Wicker was found guilty of. He submits that a just and appropriate sentence should be imposed and no more, given the circumstance of the offence and the offender. Mr. Wicker concedes that if I find that a conditional sentence is not appropriate, a two-year penitentiary sentence followed by a period of probation for three years is within the range of sentence appropriate for this offence.

[6] It was also argued by Mr. Wicker that I should exercise my discretion and not impose the SOIRA order being sought by the Crown.

Caselaw

[7] Both counsel provided me with a number of cases in support of their respective positions.

[8] There is no real dispute that the leading case from the Ontario Court of Appeal is R. v. A.J.K., 2022 ONCA 487. In that case, the Court held at paragraph 77 that forced penetration of another person typically attracts a sentence of at least three (3) years in the penitentiary. Fairbairn, A.C.J.O. also conducted an analysis of the previous caselaw that suggested that sexual assaults in a domestic context attracted a lower range of sentences than sexual assaults where the victim and perpetrator were strangers. That premise was resoundingly rejected by the Court, noting that violence in a domestic context is now a statutorily aggravating factor to be considered on sentence and that there is no reason why sexual assault in a domestic context should attract a lower range of sentence.

[9] The case of R. v. Holland, 2022 ONSC 1540, although subsequently upheld on appeal, was released prior to A.J.K. and in my view, the conclusions reached about the range of sentence and the distinction about penile versus digital penetration have been overturned by A.J.K. I would also note that there were distinguishing factual features in that case as well, including that Schreck J. found that there were collateral consequences Mr. Holland faced as a result of the conviction and the Crown was only seeking a sentence of 16 months.

[10] R. v. Wong, 2024 ONSC 7122, albeit released after A.J.K., is easily distinguishable on the facts. In that case, Mr. Wong entered a guilty plea. At paragraph 37, Goldstein J. distinguishes A.J.K. noting that the defendant was convicted after a trial and showed no insight or remorse. He then went on to write at paragraph 38, “this is a very close call. In the absence of Mr. Wong ‘manning up’ and taking responsibility he would undoubtedly be going to jail.” However, I rely on the very helpful and thorough review of recent caselaw in this area set out in Wong.

[11] R. v. Dickson, 2023 ONSC 2776, is also distinguishable from the present case as the victim specifically wanted the defendant to stay out of jail in order to allow him to continue providing financial support for her and the children. I also note that in Dickson, Himel J. at paragraph 26 indicated that there were “highly mitigating factors” that supported the imposition of a conditional sentence. This was also a sentencing where the defendant had entered a guilty plea rather than having been found guilty after a trial.

Analysis

Mr. Wicker’s Background and Personal Circumstances

[12] Mr. Wicker is 54 years old, currently single with no dependants. He operates an insurance brokerage, a family business that he inherited from his father. He has no criminal record.

[13] The family history is set out in the pre-sentence report. Mr. Wicker is the only child of his parents. Mr. Wicker’s father was confined to a wheelchair after an accident in the pool when Mr. Wicker was just a toddler. For some period, Mr. Wicker’s mother was struggling with alcohol misuse but has reportedly been attending Alcoholics Anonymous for 42 years now. She has had multiple heart attacks and needs some assistance from Mr. Wicker in attending appointments out of town. In 2013, Mr. Wicker’s father committed suicide.

[14] Mr. Wicker and Ms. Wicker met when they were teenagers and were in a relationship for approximately 30 years, married for 22 of those years. After his separation from Ms. Wicker, Mr. Wicker was in a relationship with a woman who was on dialysis and had a special needs daughter. That woman died a year and a half into their relationship.

[15] Mr. Wicker has commenced a new relationship with a woman who wrote a reference letter on his behalf with only positive things to report and who indicated that she intends to continue to support Mr. Wicker throughout this process.

[16] There were several other reference letters that were filed on Mr. Wicker’s behalf all attesting to their opinion of Mr. Wicker’s upstanding character, reporting nothing but positive pro-social behaviour in the community.

[17] A medical report was also filed as part of the defence sentencing materials confirming that Mr. Wicker suffers from poorly controlled diabetes, high cholesterol, hypertension, knee pain from a prior surgery on his left knee, sleep apnea, chronic anemia, anxiety, depression and diverticulitis.

Aggravating and Mitigating Circumstances

[18] That Mr. Wicker has no other criminal history or involvement with the criminal justice system in over five decades of life is a mitigating factor. He is a pro-social member of his community. The pre-sentence report and character reference letters confirm that through his business he has assisted the community both through the insurance services that he provides as well as by donating to local charitable or non-profit causes.

[19] Mr. Wicker maintains that he is innocent and denies that this incident occurs. That is his right, but he does not, therefore, have the mitigating factor of remorse or acceptance of responsibility.

[20] Although I denied a pre-trial motion seeking to introduce prior discreditable conduct evidence that the Crown sought to lead for the purpose of demonstrating that Mr. Wicker was engaging in coercive and controlling intimate partner violence, I can still consider the context of the offence I did find Mr. Wicker guilty of as it is an aggravating factor. The sexual assault was committed during an argument about whether or not Ms. Wicker should travel to another country on holiday alone. This context is worthy of note because the offence was committed not for the sexual gratification of Mr. Wicker but rather to demonstrate to Ms. Wicker how vulnerable she was to being sexually violated. This act of dominance in a domestic context is particularly aggravating as Ms. Wicker should have been able to feel safe and secure swimming in her own pool in her own home.

[21] The impact on Ms. Wicker is another aggravating circumstance to be considered. The Victim Impact Statement viscerally sets out the devastating impact this crime has had on Ms. Wicker. She describes being reduced to a woman who is afraid of being out in public, who can no longer work, and who safety plans even the most minute details of her day in order to address her acute anxiety of being found by Mr. Wicker.

Appropriateness of a Conditional Sentence

[22] I acknowledge that a conditional sentence is an available sentence for this offence, but on the facts of this case, it is not an appropriate sentence.

[23] None of the mitigating circumstances that were present in the cases relied on by Mr. Wicker are present here. Mr. Wicker does not have the benefit of having entered a guilty plea. He has not expressed any remorse nor taken responsibility for his actions.

[24] This is not a situation where Mr. Wicker has minor dependents who rely upon his financial assistance that would terminate were he to be imprisoned. He also is not the primary caregiver for his mother or any other minor or adult dependents. Although I acknowledge and accept that Mr. Wicker has indicated that he does provide some care and assistance for his aging mother, there is nothing before me to indicate that Mr. Wicker’s mother has no other supports available to her in the community should Mr. Wicker be sent to jail.

[25] I have considered Mr. Wicker’s business, specifically his employees. However, I am not satisfied that there is sufficient evidence before me to conclude that his business cannot continue to operate while he is in jail. Furthermore, even if there was evidence to support this conclusion, the impact of Mr. Wicker’s imprisonment on the continuation of his business, and by extension his employment of other individuals, is not a factor that supports the imposition of a conditional sentence. Put another way, I am not satisfied that the potential closure of Mr. Wicker’s insurance brokerage for the period of his incarceration is a factor supporting a conditional sentence.

[26] I am not satisfied that the imposition of a conditional sentence would uphold the principles of specific deterrence and denunciation, given the context in which this offence occurred. Norfolk County has declared intimate partner violence an epidemic. Parliament has now amended the Criminal Code to make domestic violence an aggravating factor on sentencing. Although this offence was not committed for the purpose of Mr. Wicker’s sexual gratification, it is relevant to consider that the context of this offence was Mr. Wicker demonstrating to Ms. Wicker how vulnerable she is to sexual predators. This context of dominance and control is relevant to the determination of whether or not a conditional sentence is appropriate.

[27] Mr. Wicker would not be the only or the first person to commit serious violent offences in the privacy and seclusion of his home while outwardly presenting to the community as an upstanding citizen. Although I have reviewed and considered all of the character letters filed on Mr. Wicker’s behalf, I find that the perception of Mr. Wicker held by even his closest friends and employees is not necessarily incompatible with an individual who felt justified in asserting his dominance and authority over his wife in the privacy of their remote rural residence. I am not satisfied that allowing Mr. Wicker to serve his sentence in the small community where this offence was committed, living in his home, attending work as he always has, will adequately deter conduct of this kind in the future nor sufficiently denounce the offence he committed.

[28] In assessing the appropriateness of a conditional sentence, I have also considered the things Mr. Wicker said in his address to me after sentencing submissions were complete. Although Mr. Wicker apologized to Ms. Wicker, I note that he immediately thereafter indicated that he never had any intentions of hurting her either mentally or physically. He went on to state that he loved her very much and that he remembers their relationship differently than she does. The remainder of his statement was about the impact the criminal justice process has had on him and the impact on him and his business were he to be sent to jail. There was no indication of remorse, insight or even having taken the past few years to reflect on his own actions and choices.

[29] Mr. Wicker’s own statement serves to reinforce my conclusion that a conditional sentence is not appropriate and would not adequately address the principles of specific deterrence and denunciation. Mr. Wicker clearly does not believe that he has done anything wrong and is not planning to take any steps to address his behaviour or even to explore appropriate boundaries in intimate relationships, all of which were factors militating in favour of conditional sentences when they were imposed in the cases I referenced above.

[30] For all of these reasons, I have concluded that a real jail sentence is necessary.

SOIRA

[31] The Crown seeks a SOIRA order for 20 years. Mr. Wicker resists that request.

[32] Mr. Wicker argues that a SOIRA order is not necessary and would be disproportionately intrusive in the circumstances. He relies on two recent decisions in support of his argument against a SOIRA order.

[33] R. v. M.L., 2024 ONCJ 372, is a decision from Justice Brock Jones of the Ontario Court of Justice. In that case, the defendant was a “relatively young, first-time offender” who had been found guilty of multiple offences, including sexual assault in a domestic context. The factual circumstances of the sexual assault in M.L. were similar insofar as there was digital penetration, but distinct in that M.L. was attempting to have forced sexual intercourse with the complainant at the time of the penetration. There was a struggle and ultimately M.L. was unsuccessful in forcing intercourse on the complainant. In declining to make a SOIRA order, Justice Jones found that M.L. was at low risk to re-offend and reminded himself that SOIRA orders are not imposed as part of an offender’s punishment but rather to assist the police in investigation and prevention of sex crimes. Ultimately, Justice Jones was not satisfied that a SOIRA order in M.L.’s case would assist police in either prevention or investigation of crimes.

[34] R. v. A.R., 2024 ONSC 3786, is the sentencing decision of Barnes, J. after a jury convicted A.R. of four counts of assault and one count of sexual assault against his former intimate partner. As in M.L., Barnes J. found that A.R.’s prospects for rehabilitation were “promising” and that he was at low risk of reoffending. A.R. had also completed the Partner Assault Response (PARprogram) prior to sentencing and was engaged in therapy. Barnes, J. considered the lack of any indication of remorse and a concern about whether A.R. had insight into his offences along with the harm caused to the complainant, but still found that A.R. was at low risk to re-offend and declined to make the SOIRA order requested by the Crown.

[35] Mr. Wicker argues that he has met the requirements in both subsections 490.12(3)(a) and (b) and therefore I should be satisfied that a SOIRA order is not necessary. Specifically, Mr. Wicker submits that there is no connection or evidentiary basis upon which I could conclude that making a SOIRA order in his case would assist the police in investigating sexual offences. He further argues that a SOIRA order would be grossly disproportionate considering the offence arose out of a single incident that was brief in duration in the larger context of an almost 30-year relationship.

[36] I accept that there is no evidence before me to support a conclusion that making a SOIRA order in this case would assist police in preventing or investigating sexual offences. This offence took place in the context of a long-term domestic relationship. There was no issue about the identity of Mr. Wicker. There was no indication that Mr. Wicker attempted to evade police. I am also satisfied that a SOIRA order in this case would be grossly disproportionate in the circumstances. Mr. Wicker resides in a small community and is well-known within that community. Again, there is no indication that there was any issue with police locating Mr. Wicker once he was the subject of an investigation. He is a first-time offender and although I am mindful that there is notable lack of remorse and insight shown by Mr. Wicker, I also cannot find that he is at high risk to re-offend.

[37] Consequently, Mr. Wicker has satisfied me that a SOIRA order is neither necessary nor appropriate in these circumstances.

Conclusion

[38] I accept that the appropriate range of sentence in this case is 3 – 5 years in the penitentiary. However, given that the Crown is seeking a jail sentence of only 2 years, I will not exceed that requested sentence.

[39] Mr. Wicker takes no issue with the weapons prohibition requested by the Crown and sexual assault is a primary designated offence for the purposes of a DNA order.

[40] Consequently, Mr. Wicker will be sentenced as follows:

• A jail sentence of 2 years followed by a period of probation for 3 years.
• An order pursuant to section 109 of the Criminal Code.
• An order pursuant to section 743.21 that Mr. Wicker shall not have any contact with Josephine Wicker while in custody except through legal counsel.
• A DNA order will issue and remain in effect until executed.
• Given the time in custody, the victim fine surcharge will be waived.

A. D. Hilliard
Released: February 10, 2025

Publication Ban

[^1]: At the sentencing hearing, the Crown brought an oral application at the request of the victim to remove the publication ban protecting the victim’s identity. That application was granted and an order was made accordingly. Therefore, the usual publication ban protecting the identity of the victim in cases such as this no longer applies to this case or this judgment.

[^2]: My reasons for judgment on the trial were not sent for publication but were provided in written format to counsel.