R v Hay, 2023 ABCJ 191

In the Court of Justice of Alberta Citation: R v Hay, 2023 ABCJ 191 Date: 20230829 Docket: 191258870P1 Registry: Calgary Between: His Majesty the King - and - Jason Donald Hay Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify [SF] must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Judgment of the Honourable J ustice S.E. Pepper BACKGROUND [ 1 ] On March 12, 2021, Jason Donald Hay was acquitted by this court of a single count of sexual assault pursuant to s. 271 of the Criminal Code [ R v Hay , 2021 ABPC 93 ]. On March 9, 2022, the Alberta Court of Appeal overturned the acquittal and sent the matter back for sentencing [ R v Hay , 2022 ABCA 246 ].

A challenge to the Supreme Court of Canada by Mr. Hay to the Court of Appeal’s finding was unsuccessful [ R v Hay , 2023 SCC 15 ]. [ 2 ] The primary findings of fact made by this court were not disturbed by either the Court of Appeal or the Supreme Court of Canada. [ 3 ] The parties argued their respective positions on sentence on June 23, 2023. This is the decision on Mr. Hay’s sentence.

[ 4 ] Mr. Hay will be sentenced to a period of incarceration of 2 years less a day to be served in the community on a Conditional Sentence Order. FACTS [ 5 ] Jason Hay met the complainant SF through an online dating application. They began dating in August of 2019. Mr. Hay and SF were mature adults when they met. [ 6 ] On September 13, 2019, Mr. Hay and SF had consensual sexual activity. The consensual acts included fondling, oral sex, and vaginal intercourse. [ 7 ] The evidence of Mr. Hay and the complainant differed respecting the sexual activities involving the complainant’s anal area.

This court conducted a “WD” analysis and made the following findings of fact: ▪ At a certain point, while they were having consensual vaginal intercourse, Mr. Hay inserted a finger into SF’s anus. She responded approvingly and said “Ooh I love it when you play with my ass” [TT Dec. 11, p. 12; lines 10-11]. They continued this act for 2 or 3 minutes. ▪ After this act, they changed position and the complainant got on her hands and knees and they began having vaginal intercourse from behind. At a certain point, Mr.

Hay stated that his penis fell out and he grabbed in with his hand and inserted it into SF’s anus. ▪ At the moment of insertion, SF “snaps forward” and then got really angry and asked him to leave the house. ▪ Mr. Hay described feeling “stunned…I put my hands up and I just said. I’m sorry” [TT Dec. 11, p. 14; lines 12-16]. [ 8 ] Mr. Hay did not obtain consent for the act of anal intercourse. He did not take reasonable steps to ascertain if SF consented to this sexual act. [ 9 ] The assault caused a small split in the mucosa of the anus and SF reported soreness in that area for approximately 3 days. [ 10 ] Mr.

Hay did not use any lubricant or condom. VICTIM IMPACT STATEMENT [ 11 ] The complainant filed a victim impact statement. In that statement she reports that she is not the same person she was before the assault. She says that the assault has left her with constant anxiety and a feeling of isolation, and she describes the situation as “sheer hell.” [ 12 ] SF reports having had trouble working, sleeping, eating, and looking after herself for about 6 months after the assault and she states that she has still not recovered and struggles to move on.

She also reports an inability to have a normal sex life due to a lack of trust in other people and in her own judgement. [ 13 ] It is clear that the complainant has suffered additional harm by the protracted nature of this case as it made its way through the appellate process. CIRCUMSTANCES OF MR. HAY [ 14 ] Mr. Hay was 44 at the time of the offence and is 47 at the time of sentencing. He works in the electronics audio/visual industry and has his own company. He travels to other provinces regularly for work. He has family support in Calgary. At the time of the offence, he had just ended a long marriage.

He has no children. [ 15 ] A letter from his family doctor was presented to the court. In that letter, the Doctor describes Mr. Hay as having experienced desperation, fear, and shock after the charges were laid. [ 16 ] The Doctor explains that he arranged for private counselling for Mr. Hay and that Mr. Hay has been undergoing that counselling at his own expense. He says that he has also met with Mr. Hay every two weeks since the charges and states in his letter that he “has been very impressed at his dedication towards healing and personal growth.” [ 17 ] The Doctor states that “Mr.

Hay is absolutely not the same person today that he was at the time of the events that led to his charges and convictions, and he has improved in maturation to a degree that I witnessed only rarely in my 25 years as a Physician.” [ 18 ] Mr. Hay has no prior criminal record. CROWN POSITION [ 19 ] The Crown seeks a 3-year period of incarceration. They argue that this sentence reflects the primary principles of denunciation and deterrence that a major sexual assault such as the one before this court should attract. [ 20 ] The Crown concedes no mitigating factors. They argue that the fact that Mr.

Hay has no criminal record and is of otherwise good character is not mitigating. They contend that good character is already assumed in the starting point of 3 years.

[21] They point to the psychological and physical effects on the complainant, the vulnerability of the complainant, and the lack ofuse of lubricant or a condom as aggravating factors. [22] The Crown argues that this court should be guided by the starting point sentences developed by the Alberta Court of Appealwhich suggests a 3-year sentence for a major sexual assault. [23] The Crown argues further that Mr. Hay does not have diminished moral culpability despite stopping the sexual assault assoon as there was resistance to the act.

The Crown argues that the brief nature of the assault is not mitigating but merely a neutral factor. DEFENCE POSITION [24] Defence counsel for Mr. Hay submits that an appropriate sentence would be a 1-year jail sentence. He argues further that thissentence should be served in the community on a Conditional Sentence Order (CSO). [25] Defense counsel urged me to consider Mr. Hay’s good character as a mitigating factor. Counsel also points to the challengesthat Mr.

Hay has encountered, such as the expense that he has incurred in his defence and the limitations on his job opportunities asrelevant collateral factors. [26] Also relevant, according to Defence counsel, is Mr. Hay’s reduced moral culpability. Defence counsel points out that Mr.Hay’s mens rea was recklessness as opposed to intent as he did not overcome resistance and stopped his actions immediately uponresistance being encountered. LEGAL PRINCIPLES Fundamental Purpose and Principles of Sentencing [27]

Section 718 of the Criminal Code directs that the fundamental purpose of sentencing is to protect society and to maintain ajust, peaceful, and safe society by imposing just sanctions that meet several objectives. These objectives are denunciation; deterrence,both specific and general; separation of offenders from society; rehabilitation; repairing harm to victims where possible; and promotionof a sense of responsibility in offenders. Proportionality [28] The broad objectives of sentencing are achieved through the principle of proportionality. Under

section 718.1 of theCriminal Code, it is a fundamental principle of sentencing that a sentence be proportionate to the gravity of the offence and the degree ofresponsibility of the offender. As stated in R v Lacasse, 2015 SCC 64 , [2015] 3 S.C.R. 1089: ...proportionality is the cardinal principle that must guide appellate courts in considering the fitness of a sentence imposed on anoffender. The more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier thesentence will be.

In other words, the severity of a sentence depends not only on the seriousness of the crime’s consequences, but also onthe moral blameworthiness of the offender. Determining a proportionate sentence is a delicate task. [para 12] [29] In R v Pettitt, 2021 ABQB 773, at paragraph 28, Justice Renke explains: The “gravity” aspect of proportionality focuses on the act and its consequences or on what was done.

The “responsibility” aspect ofproportionality focuses on the actor, the offender’s level of fault in committing the offence, how the act was done, why the act was done,and by whom the act was done. [30] It is through imposing a proportionate sentence that the public can gain and maintain confidence in the administration ofjustice. A sentence that is reflective of the seriousness of the crime and the moral responsibility of an offender will be a fair sentence; adeserved sentence. [R v Arcand, 2010 ABCA 363, para 52] The Parity Principle [31]

Section 718.2(

b) provides that a sentence should be similar to sentences imposed on similar offenders for similar offencescommitted in similar circumstances. [32] In R v Friesen, 2020 SCC 9, the Supreme Court of Canada provides direction to trial judges on giving effect to the principleof parity. At paragraphs 32 and 33 the Court states: Parity and proportionality do not exist in tension; rather, parity is an expression of proportionality. A consistent application ofproportionality will lead to parity.

Conversely, an approach that assigns the same sentence to unlike cases can achieve neither parity norproportionality (R v L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at paras. 36-37; R v Ipeelee, 2012 SCC 13[2012] 1 S.C.R. 433, at paras.78-79). In practice, parity gives meaning to proportionality. A proportionate sentence for a given offender and offence cannot be deduced fromfirst principles; instead, judges calibrate the demands of proportionality by reference to the sentences imposed in other cases.

Sentencingprecedents reflect the range of factual situations in the world and the plurality of judicial perspectives. Precedents embody the collective

experience and wisdom of the judiciary. They are the practical expression of both parity and proportionality. The Restraint Principle [33] The restraint principle operates to prevent offenders from being easily incarcerated by making it clear that prison should bethe sanction of last resort. The principle of restraint is codified in ss. 718.2(

d) and (e). Both provisions are intended to remedy theacknowledged overuse of incarceration as a criminal sanction in Canada. The restraint principle operates both when deciding whetherincarceration is an appropriate disposition and, if it is, when fixing the length of that incarceration. The restraint principle, however,operates within the boundaries set by the fundamental principle of proportionality. [34] Although the restraint principle applies when sentencing all offenders, s. 718.2(

e) applies with “particular attention to thecircumstances of Aboriginal offenders.” Starting Point Sentences and Major Sexual Assault [35] The Crown’s position is based on the starting point sentencing guidelines which posits a 3-year sentence for a major sexualassault for an adult offender who has no criminal record. [36] Major sexual assaults are those that are likely to cause serious psychological or emotional harm but do not necessarily involvethe application of force.

In R v Arcand, 2010 ABCA 363, the court explains: A sexual assault is a major sexual assault where the sexual assault is of a nature or character such that a reasonable person could foreseethat it is likely to cause serious psychological or emotional harm, whether or not physical injury occurs. The harm might come from theforce threatened or used or from the sexual aspect of the situation or from any combination of the two. A major sexual assault includesbut is not limited to non-consensual vaginal intercourse, anal intercourse, fellatio and cunnilingus.

We are satisfied that assessingwhether a sexual assault is a major sexual assault is well within the capacity of sentencing judges. [para 171] [37] The 3-year starting point for major sexual assaults in Alberta can be traced back to R v Sandercock, 1985 ABCA 218. InArcand, the Alberta Court of Appeal was asked to reconsider this starting point. The Court set out a three-step process detailing howsentencing starting points are determined by appellate courts and applied by sentencing courts. First, appellate courts define categories(such as major sexual assault).

Then they establish an appropriate starting point for the category. Finally, sentencing courts consider theparticular facts before them to vary individual sentences from that starting point: Starting point sentencing does not fetter judicial discretion but ensures that its exercise is based on proper factors. Starting pointsentencing involves a three-step process. The first step is for the court of appeal to clearly describe the category created. The second stepis to set a starting point for that category. The appeal court’s selection of the number to use as a starting point is based on severalconsiderations.

This includes collective court experience, comparisons to other cases, and a consensus view of the social values andpolicy considerations relating to the category of crime in question. All are applied in determining the gravity of the offence and degree ofresponsibility typically associated with it. Factored into the analysis are the relevant sentencing principles and objectives of sentencing.[para 104] The third step is for the sentencing judge to refine the sentence to the specific facts of the individual case and offender.

That includesconsidering all the relevant aggravating or mitigating circumstances relating to the offence or offender under s. 718.2(a). At this stage,all relevant facts go on the sentencing scale, including those relating to the context in which the crime occurred. For example,evidence as to motive may affect sentence.

The sentencing judge evaluates those facts in light of the relevant starting point, sentencingobjectives and secondary principles and determines a fit sentence that satisfies the proportionality principle. [para 105] [emphasis added] [38] The Supreme Court returned to the discussion of starting points and sentencing ranges in Friesen. The Court noted thatAlberta is somewhat unique in preferring starting points over sentencing ranges, but that “[s]imilar principles apply to either form ofguidance” (at para 36).

The Court stressed that starting points and sentencing ranges should be considered as sentencing guidelines andthat it is not an error to deviate from these guidelines or even omit reference to them entirely: This Court has repeatedly held that sentencing ranges and starting points are guidelines, not hard and fast rules (R. v. McDonnell, (SCC), [1997] 1 S.C.R. 948, at para. 33; R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, at para. 45; R. v. Nasogaluak, 2010SCC 6, [2010] 1 S.C.R. 206, at para. 44; Lacasse, at para. 60).

Appellate courts cannot treat the departure from or failure to refer to arange of sentence or starting point as an error in principle. Nor can they intervene simply because the sentence is different from thesentence that would have been reached had the range of sentence or starting point been applied (McDonnell, at para. 42). Ranges ofsentence and starting points cannot be binding in either theory or practice, and appellate courts cannot interpret or apply the standard ofreview to enforce them, contrary to R. v. Arcand, 2010 ABCA 363, 40 Alta. L.R. (5th) 199, at paras. 116-18 and 273.

As this Court heldin Lacasse, to do so would be to usurp the role of Parliament in creating categories of offences (paras. 60-61; see also McDonnell, atparas. 33-34). [para 37] [39] In R v Parranto, 2021 SCC 46, the Supreme Court again discussed the appropriateness of the use of starting points insentencing. On the issue of starting points, the reasons of Justices Brown and Martin were concurred in by Chief Justice Wagner along

with Justices Kasirer and Karakatsanis, providing a narrow majority on this point. Justices Brown and Martin again referred to startingpoints as guidelines to assist sentencing judges by affording a place from which to begin their individualized sentencing deliberations: Quantitative appellate guidance generally takes one of two forms: starting points, or sentencing ranges. These tools are best understoodas “navigational buoys” that operate to ensure sentences reflect the sentencing principles prescribed in the Criminal Code.

Busysentencing judges face a challenging task; the Code often provides for a wide range of possible sentences and the factual circumstancesof each case vary infinitely. Sentencing must begin somewhere, and both starting-point and range methodologies assist sentencing judgesby providing a place to start in the form of either a single number or a range. As this Court has recognized, however, “there is no suchthing as a uniform sentence for a particular crime” (M. (C.A.), at para. 92).

Neither tool relieves the sentencing judge from conducting anindividualized analysis taking into account all relevant factors and sentencing principles. [para 16] [40] Justices Brown and Martin confirmed the three-step methodology for determining and applying starting points as set out inArcand, but noted that the chosen starting point should effectively fall in the middle of the appropriate range of sentences for a givenoffence.

Contrary to the comments of the Court of Appeal in Arcand, at para. 148, this Court has subsequently and expressly held that startingpoints are an “alternative” to ranges, with “[s]imilar principles” applying to both (Friesen, at para. 36). The starting-point methodologyhas three stages: (1) defining the category of an offence to which the starting point applies; (2) setting a starting point; and (3)individualization of the sentence by the sentencing court (Sandercock, at p. 269).

Both ranges and starting points are attached to “acategory of offences that share enough common features that it is useful to judge them by the same rubric” (Friesen, at para. 39). At thesecond stage, the court of appeal must choose a “reasonable” number which “may be viewed as the mid-point in the traditionalrange of sentences for a particular sort of crime” (R. v. McDonnell, (SCC), [1997] 1 S.C.R. 948, at para. 60,per McLachlin J.; contra, Arcand, at paras. 150-56).

At the final stage, the sentencing judge considers whether aggravating or mitigatingfactors justify moving the sentence up or down from the starting point (McDonnell, at paras. 79-80). [para 18] [emphasis added] [41] As the Court in Parranto makes clear, the starting point does not operate as a minimum sentence.

A starting point shouldnot be considered the floor for a sentence, and there should be room to vary a sentence from the starting point downwards as well asupwards when the individual circumstances of the case, aggravating and mitigating factors, and sentencing principles are weighed. [42] Justices Brown and Martin in Parranto summarized the use of starting points in sentencing at paragraph 36, noting that nopart of the starting point analysis is binding on sentencing judges. The key principles are as follows: 1.

Starting points and ranges are not and cannot be binding in theory or in practice (Friesen, at para. 36); 2. Ranges and starting points are “guidelines, not hard and fast rules”, and a “departure from or failure to refer to a range of sentenceor starting point” cannot be treated as an error in principle (Friesen, at para. 37); 3. Sentencing judges have discretion to “individualize sentencing both in method and outcome”, and “[d]ifferent methods may evenbe required to account properly for relevant systemic and background factors” (Friesen, at para. 38, citing Ipeelee, at para. 59); and, 4.

Appellate courts cannot “intervene simply because the sentence is different from the sentence that would have been reached hadthe range of sentence or starting point been applied” (Friesen, at para. 37). The focus should be on whether the sentence was fit andwhether the judge properly applied the principles of sentencing, not whether the judge chose the right starting point or category (Friesen,at para. 162). These principles settle the matter. Contrary to the Crown’s submission, it is not an open question whether sentencing judges are free toreject the starting-point approach.

Sentencing judges retain discretion to individualize their approach to sentencing “[f]or this offence,committed by this offender, harming this victim, in this community” (R. v. Gladue, (SCC), [1999] 1 S.C.R. 688, atpara. 80 (emphasis in original)). There is no longer space to interpret starting points (or ranges) as binding in any sense. [43] Though not binding, Justices Brown and Martin still noted the utility of starting points and provided further guidanceregarding how to approach individualizing a sentence in light of an established starting point.

When determining an appropriate sentencevis-à-vis a starting point, a sentencing judge must consider the gravity of the offence, the circumstances of the offender, the offender’smoral culpability, and all relevant sentencing principles. The weight given to these factors by a sentencing judge will determine whethera sentence is increased or decreased from a starting point. While not binding, however, sentencing ranges and starting points are useful tools because they convey to sentencing judges anappreciation of the gravity of the offence.

And, as we have already observed, they offer judges a place to begin their thinking. Whenapplying these tools, sentencing judges must individualize the sentence in a way that accounts for both aspects of proportionality: thegravity of the offence and the offender’s individual circumstances and moral culpability. At the stage of individualizing the sentence, thesentencing judge must therefore consider “all of the relevant factors and circumstances, including the status and life experiences, of theperson standing before them” (Ipeelee, at para. 75).

Those factors and circumstances may well justify a significant downward or upwardadjustment in the sentence imposed. [para 44] [44] Starting points do not relieve the sentencing judge from considering other relevant principles of sentencing:

Starting points also do not relieve the sentencing judge from considering all relevant sentencing principles. The principles of denunciation and deterrence are generally built into starting points and reflected in ranges, but those objectives “cannot be allowed to obliterate and render nugatory or impotent other relevant sentencing objectives” ( R. v. Okimaw , 2016 ABCA 246 , 340 C.C.C. (3d) 225, at para. 90 ). When conducting an individualized analysis, sentencing judges are expected to account for other relevant sentencing objectives, including rehabilitation and restraint .

Indeed, this Court has held that the 1996 sentencing reforms were intended to both ensure courts consider restorative justice principles and to address the problem of over-incarceration in Canada ( Gladue , at para. 57 ; Proulx , at paras. 16-20). Sentencing judges have discretion over which objectives to prioritize ( Nasogaluak , at para. 43 ; Lacasse , at para. 54 ) and may choose to weigh rehabilitation and other objectives more heavily than “built-in” objectives like denunciation and deterrence.

Appellate courts should not lose sight of these principles — nor the deferential standard of review — when reviewing sentences that depart from a starting point or range. [ Parranto , para 45] [emphasis added] Good Character is not part of the Starting Point [ 45 ] Further, and contrary to the Court of Appeal’s suggestion in Arcand , Justices Brown and Martin stated that though starting points often assume the good character of an offender, they should not properly incorporate any mitigating factors, nor any sentencing principles that might generally serve to reduce a sentence from a starting point: One objection to starting points advanced in these appeals is that they can easily harden into de facto minimums because they build in the mitigating factor of prior good character, thus preventing sentencing judges from relying on that factor to justify a downward departure (A.

Manson, The Law of Sentencing (2001), at p. 72; R. v. Kain , 2004 ABCA 127 , 35 Alta. L.R. (4th) 5, at para. 32 , per Berger J.A.). But the same is sometimes true of ranges ( Cunningham ; Voong ). Importantly, neither tool incorporates other potential mitigating circumstances or Gladue factors, nor should it. Appellate sentencing guidance ought not to purport to pre-weigh or “build-in” any mitigating factors ( contra , Arcand , at para. 135 ).

Likewise, since starting points are intended to reflect the gravity of the offence and the resulting need for deterrence and denunciation, they should not be viewed as incorporating sentencing principles such as restraint or rehabilitation, contrary to the suggestion in Arcand , at para. 293 . Where sentencing judges choose to refer to the starting point or range, they are not precluded from considering any factor that is “built in” as mitigating in the individual circumstances, and they retain the discretion to consider and weigh all relevant factors in their global assessment of a fit sanction.

This comports with the principle that the sentencing judge must always consider all relevant individual circumstances in reaching a fit sentence tailored to the offender before the court. [para 46] [emphasis added] [ 46 ] Post Parranto , the Alberta Court of Appeal discussed starting points in sexual assault sentencing in R v Quintero-Gelvez , 2023 ABCA 64 . The majority noted that “when setting starting points and ranges, appellate courts must be mindful of what is built into those forms of guidance and are restricted to offence-based considerations” (para 15).

The majority further said that the assumption of prior good character should be removed from the three-year starting point for major sexual assault (para 19).

Summary of Post Parranto Principles [ 47 ] Following Parranto , several points regarding the use of starting points in sentencing major sexual assaults can be synthesized: ▪ The three-year starting point for major sexual assaults is only a guideline. ▪ Sentencing judges maintain the discretion to individualize a sentence to a particular offender, offence, and set of circumstances.

Provided that the principles of sentencing are properly applied, and the sentence is fit in the circumstances, it is not an error to reach a sentence above or below the three-year starting point. ▪ The three-year starting point for major sexual assaults falls around the middle point of the range of sentences available for these offences.

Therefore, the three-year starting point itself recognizes that sentences for major sexual assaults may be above or below three years, depending on the circumstances. ▪ The primary purpose behind the use of the three-year starting point guideline in major sexual assaults is to achieve proportionality in sentencing. ▪ All sentencing principles must still be considered when using starting points, though the principles of denunciation and deterrence are already part of the three-year starting point for major sexual assaults. ▪ The principles of rehabilitation and restraint should not be pre-incorporated into the three-year starting point. ▪ Though the three-year starting point has been previously premised on the prior good character of the offender, no potentially mitigating factors should form part of the three-year starting point.

Conditional Sentences in Sexual Assault [ 48 ] The Conditional Sentence Order was introduced in September of 1996. The Supreme Court of Canada in R v Proulx , 2000 SCC 5 , set out the

interpretation and application of the conditional order sentencing regime under

section 742.1 of the Criminal Code . At paragraph 15, the Court found that Parliament’s purpose in enacting the conditional sentence was to reduce the reliance on prison as a sanction and to increase restorative justice principles in sentencing.

[ 49 ] From 1996 to 2007,

section 742.1 made CSOs available to sentencing judges for any offence, including sexual assault, as long as the sentence was less than two years, there was no mandatory minimum term of imprisonment, the court was satisfied the public would not be in danger by the offender being in the community, and the sentence was consistent with the purpose and principles of sentencing. [ 50 ] However, in 2007, the Criminal Code was amended to restrict the availability of CSOs, and they became unavailable for “serious personal injury offences” as defined under

section 752 of the Criminal Code , which included sexual assault offences. [ 51 ] In 2012, the Criminal Code was further amended. The phrase “serious personal injury offences” was removed but

section 742.1 (f), was added which specifically precluded the availability of CSOs for sexual assault offences that were prosecuted by way of indictment. [ 52 ] On November 17, 2022,

An Act to amend the Criminal Code and the Controlled Drugs and Substances Act, SC 2022, c. 15 became law, and section 14(2) of that Act repealed paragraphs 742.1 (

e) and (

f) of the Criminal Code . For the first time since 2007, CSOs are now a permissible sentencing option for sexual assault offences under

section 271 (

a) of the Criminal Code . [ 53 ] The current version of

section 742.1 reads as follows: 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. [ 54 ] A CSO is a form of incarceration that is served in the community under strict conditions for up to two years less a day.

Sentencing principles such as rehabilitation can be incorporated but the sentence is also capable of addressing denunciation and deterrence. [ 55 ] In Proulx , the court stated that while incarceration will usually provide more denunciation than a conditional sentence, a conditional sentence can still provide a significant amount of denunciation.

This will be “particularly so when onerous conditions are imposed and the duration of the conditional sentence is extended beyond the durations of the jail sentence that would ordinarily have been imposed in the circumstances” (para 102). [ 56 ] The Supreme Court of Canada in Proulx , also made clear that CSOs should not be reserved for minor offences and that sentencing judges have the discretion to craft a fit sentence.

The Court held at paragraphs 81-82: In my view, while the gravity of such offences is clearly relevant to determining whether a conditional sentence is appropriate in the circumstances, it would be both unwise and unnecessary to establish judicially created presumptions that conditional sentences are inappropriate for specific offences. Offence-specific presumptions introduce unwarranted rigidity in the determination of whether a conditional sentence is a just and appropriate sanction.

Such presumptions do not accord with the principle of proportionality set out in s. 718.1 and the value of individualization in sentencing, nor are they necessary to achieve the important objectives of uniformity and consistency in the use of conditional sentences. This Court has held on a number of occasions that sentencing is an individualized process, in which the trial judge has considerable discretion in fashioning a fit sentence.

The rationale behind this approach stems from the principle of proportionality, the fundamental principle of sentencing, which provides that a sentence must be proportional to the gravity of the offence and the degree of responsibility of the offender. Proportionality requires an examination of the specific circumstances of both the offender and the offence so that the “punishment fits the crime”.

As a by-product of such an individualized approach, there will be inevitable variation in sentences imposed for particular crimes. [ 57 ] The Supreme Court of Canada in Proulx , at paragraph 127 , held that sentencing judges “should give serious consideration” to the possibility of imposing a CSO by examining whether it is consistent with the principles of sentencing set out in sections 718 to 718.2 of the Criminal Code .

The Court conceded, however, that although a CSO can provide significant denunciation and deterrence, there may be some cases where the need for denunciation and deterrence is so high that only a period of incarceration in a custodial facility will be a suitable sentence. Crown and Defence Cases

[ 58 ] The Crown relies on the starting point case authorities and also provides several other cases for consideration. There are three main types of cases cited by the Crown, all of which involve major sexual assault. There are cases involving an unconscious victim, cases with significant acts of overcoming resistance through force, and cases where consent is removed but the assault is discontinued with no act of overcoming resistance. [ 59 ] The Defence relies heavily on the case of R v Simkins , 2023 ABPC 30 from the Alberta Court of Justice.

That was a case where mistaken belief in consent was argued but Justice Fradsham held that the accused did not take reasonable steps to ascertain consent. The assault was discontinued after approximately 10 seconds, with no attempt to overcome resistance. It is the case most factually similar case to Mr. Hay’s case. Cases of Unconscious Victims [ 60 ] In Arcand , the victim allows the offender to sleep in her family home. She talked and drank with the offender and then fell asleep. She woke to find him on top of her with his penis in her vagina. The offender was an 18-year-old with diminished capacity.

He had suffered abuse as a child and had an extensive history of substance abuse. The trial court gave him a sentence of 90 days and 3 years probation. The Court of Appeal increased the sentence to 2 years less a day plus 2 years probation . [ 61 ] The Court of Appeal found that the trial court erred in failing to find that the unconsciousness of the victims was an aggravating factor.

It is aggravating because “since the offender knows full well that the person is not consenting, this reveals an enhanced degree of calculation and deliberateness by the offenders,” thus elevating the moral blameworthiness of the offender. [ Arcand , para 283] [ 62 ] In R v Shrivastava, 2019 ABQB 663 , the Alberta Court of King’s Bench considered the sentencing of an accused who forced vaginal intercourse on an unconscious complainant. No condom was used in the assault and there were significant effects on the victim. The Crown sought a sentence of 4-5 years and the defence argued for a sentence of 8-12 months.

The court conducted a thorough review of the cases on sleeping or otherwise unconscious victims including the case of Arcand noting that an unconscious victim is a significant aggravating factor as she was at her most vulnerable. [ 63 ] The court in Shrivastava allowed some mitigation for Mr. Shrivastava’ youth but found his loss of reputation, lack of remorse, good character, including lack of criminal record to be neutral factors.

The court imposed a sentence of 3.9 years . [ 64 ] In R v Quintero-Gelvez , 2023 ABCA 64 , the Alberta Court of Appeal upheld the trial judge’s sentence of 4.5 years for the sexual assault on an unconscious victim notwithstanding finding that the trial judge had improperly applied the law of starting point sentences. In that case, the victim passed out from drinking and woke to find one man vaginally penetrating her while Quintero-Gelvez held her hands. She told the men to stop but they continued for a couple of minutes.

The trial judge erred in finding the starting point sentence binding as this conflicts with Parranto . However, the court found that the result was fit and the reasoning of the Judge correct. [ 65 ] In R v Abreha , 2022 ABKB 830 the court imposed a sentence of 3.9 years on an offender who had sex with an unconscious woman, causing her to become pregnant. The court found her unconsciousness, as well as the unprotected nature of the sex, to be aggravating factors. The court found that the complainant’s “passed out” state was aggravating. The court noted that, while

an act of penetrative sex is highly violative, it was not additionally aggravating as it is already built into the understanding of major sexual assault (para 63). Cases of Overcoming Resistance [ 66 ] In R v Garrett , 2014 ONCA 734 , the Ontario Court of Appeal, raised a sentence of 90 days to 18 months on a Crown appeal of sentence. The complainant and the accused knew each other. They went out on a date and had dinner and drinks. They engaged in consensual kissing but then the complainant told the accused to stop.

He did not stop and instead forced vaginal intercourse on her over her constant objection, causing bruising to the complainant’s tailbone and inner thigh. [ 67 ] The trial judge in Garrett , found that the case was unique because there was no gratuitous violence, demeaning behaviour or contemptuous disregard for the feelings or personal integrity of the victim. The Court of Appeal held that the trial judge’s finding that the facts were exceptional and unique was not accurate.

They found instead that the case represents a “classic date rape” scenario and so the primary sentencing objectives should be denunciation and deterrence. The Court of Appeal held the act of continuing to force sexual intercourse on the victim despite her repeated objections “constitutes demeaning behaviour and contemptuous disregard for the personal integrity of the complainant” (para. 19). [ 68 ] In R v Nikdima , 2021 SKCA 60 , the Court of Appeal substituted a sentence of 3.6 years up from the 3 years the trial court imposed for a sexual assault causing bodily harm.

In Nikdima the offender met the complainant on a dating website. The two parties went on a date and there was some consensual kissing. After this, the offender forced digital, vaginal, and anal sex on the complainant. He ejaculated while in the course of forced anal intercourse, ignoring her screams. She suffered a 3 cm laceration to her anus. [ 69 ] The Court of Appeal in Nikdima found that the trial court erred in treating the lack of additional physical violence, aggression or trickery and the consumption of alcohol as mitigating factors instead of as a lack of further aggravating factors.

The court also noted significant violence was a part of the assault. [ 70 ] In R v Sandhu , 2022 ABQB 332 , the Alberta Court of King’s Bench imposed a sentence of 5 years on a man who forced vaginal intercourse with the complainant. The complainant was with the offender and two other men in a motor vehicle. She did not consent to any sexual activity. She was confined by the men in the motor vehicle for up to 30 minutes and sexually assaulted vaginally by all three of them. The complainant was 18 years old and indigenous.

[ 71 ] In R v Cummings , 2022 ABPC 191 , the Alberta Court of Justice sentenced an offender to 2 years less a day plus probation for

an act of nonconsensual, anal unprotected sex. The offender had met up with the complainant to have sex but the agreement was that a condom must be used for anal sex. The offender ignored this agreement and held the complainant’s hands down so that he could have unprotected anal sex. The offender was HIV positive, although it was not proven that he knew that at the time. The court noted that the seriousness of the crime was not diminished because it began as a consensual encounter (para 30).

Consent is withdrawn or not properly obtained and assault stops with no act of overcoming resistance [ 72 ] In R v TCF , 2022 ABKB 643 , the 17-year-old complainant agreed to have rough sex with the offender and 2 other individuals.

At one point, she withdrew her consent by making sounds which indicated she was in pain and by saying “no.” The offender took no steps to ensure that consent remained and instead persisted in having her perform oral sex on him for some 39 seconds. [ 73 ] The court imposed a sentence of 2 years noting the aggravating factors of the complainant’s age, the fact that the assault was recorded on a cell phone, and that the offence took place during a group endeavour.

Justice deWit found mitigation in the offender’s expression of remorse and his young age. [ 74 ] Justice deWit rejected the Defence argument that the fact that some of the sexual activity was initially consented to was a mitigating factor. At paragraph 71, he states: I disagree that this [consent to other activity] could be a mitigating factor in the circumstances of the case at bar. It perpetuates that consenting to prior sexual activity makes the offence that follows less serious or that it matters less because consent was previously given.

In my view this reasoning is flawed and is based on myths and stereotypes, fails to consider that continuing with sexual activity that is not consented to will have significant negative effect to the victim. [ 75 ] Justice deWit also found that the brief nature of the assault was a neutral, not a mitigating, factor as the assault resulted in significant harm to complainant (para 66). R v Simkins , 2023 ABPC 30 [ 76 ] The offender Simkins and the complainant were friends. While visiting Simkins at his home, the complainant and Simkins began consensual kissing.

The kissing progressed and Simkins removed the complainant’s underwear with the assistance of the complainant. Then Simkins began performing oral sex on the complainant without obtaining consent for that act. The complainant appeared startled and, after about 10 seconds, Mr. Simkins stopped performing oral sex on the complainant. [ 77 ] A defence of mistaken belief in consent was advanced but it was not successful and Mr. Simkin’s was convicted by Justice Fradsham of the Alberta Court of Justice. The court found that Mr.

Simkins did not take reasonable steps to obtain consent and just assumed the complainant was consenting to the act of oral sex. [ 78 ] Mr. Simkins was 42 years old with no criminal record. He was deemed a low risk to commit another sexual assault by a psychiatrist. [ 79 ] The Crown sought a sentence of 3 years incarceration and the Defence suggested a sentence of 2 years less a day to be served conditionally in the community under a Conditional Sentence Order. [ 80 ] The court found that the nature of the assault as a major sexual assault was an aggravating factor.

Also aggravating was the fact that no condom was used which put the complainant at some risk for infection, and there were significant impacts on the complainant as demonstrated by the victim impact statement. The court found mitigating factors in Mr. Simkins demonstration of remorse and the fact that Mr. Simkins was an otherwise productive member of society, had a supportive family, had suffered collateral consequences (he suffered suicidal ideation after the assault and struggled with mental health), and had good prospects of rehabilitation. [ 81 ] The court found that Mr.

Simkins’ lack of criminal record and the short duration of the sexual assault were neutral factors. [ 82 ] The court took guidance from TCF , wherein Justice deWit held that the length of time of the assault is a neutral fact in sentencing ( TCF , para 66 ). Justice Fradsham noted, however, in TCF the offender was given a sentence of 2 years notwithstanding the more aggravating circumstances of that assault (complainant was 17, the offence was recorded on a cell phone and there were 3 in a group sex situation). [ 83 ] Justice Fradsham imposed a sentence of less than 2 years incarceration.

He then went on to consider whether a CSO was appropriate. He conducted a thorough review of the case law involving conditional sentences. [ 84 ] Justice Fradsham examined the cases of R v Jensen , 2019 ABQB 873 , R v TA , 2020 ABPC 114 , R v Paul , 2008 ABQB 273 , R v Nolan , 2009 ONCA 727 , R v Nelson , 2001 BCCA 430 , R v Sampson , 2008 ONSC 1665, R v Tony , 2002 SKQB 226 , R v R(LE ), 2000 CarswellNB 405 , R v Kennedy , 2018 ONCJ 600 , R v Laidman , 2017 ONCJ 792 , R v AO , 2006 ONCJ 117 , and R v Paulin , 2011 ONSC 5027 .

In each of these cases, offenders received CSOs even though they were convicted of committing major sexual assaults and there was some level of either overcoming resistance or an unconscious/sleeping complainant. In all of the above cases, the crown proceeded by

summary conviction. [ 85 ] Justice Fradsham also discussed two recent cases where the courts considered the availability of a CSO in a major sexual assault where the Crown had proceeded by indictment but the change in the law allowing CSOs was anticipated.

[ 86 ] In R v GT , 2022 ONSC 2619 , the offender and the complainant had consensual oral sex and vaginal intercourse. The offender attempted to insert his penis into her anus and she told him no. Later, while performing oral sex, the offender put his finger in her anus. She told him again to stop. He did it again. The offender was 23 years old with no criminal record. The Crown proceeded by indictment. The CSO amendments to the Criminal Code had yet to come into force.

However, Justice James found that the prohibition against conditional sentences for an indictable sexual assault conviction was of no force and effect because it violated the Charter. The offender was sentenced to a 12-month CSO . [ 87 ] In R v Holland , 2022 ONSC 1540 , the complainant was intoxicated at a club and invited to the “VIP” area by the offender, who was the club promoter. The offender kissed the complainant, pulled down her pants, and penetrated her vagina with what she believed to be his penis or finger. The complainant said, “stop,” and the offender did. The sexual assault lasted 10 to 15 seconds.

The offender had no criminal record and lost his job as a result of the conviction. The amendments to the CSO provisions of the Criminal Code had yet to come into force, but Justice Schreck found that the prohibition against conditional sentences for an indictable sexual assault conviction was of no force and effect because it violated the Charter. His Honour sentenced the offender to an 8-month CSO. [ 88 ] Justice Fradsham found that a carefully crafted CSO could provide sufficient denunciation in the circumstances of that case.

He applied the principle of restraint .and found that a jail sentence of two years less one day, served in the community with appropriately punitive and rehabilitative conditions, followed by 18 months of probation, was proportionate to the gravity of the offence and the degree of responsibility of Mr. Simkins. Justice Fradsham found that such a sentence would achieve the sentencing objectives of deterrence and denunciation by imposing upon Mr.

Simkins a lengthy period of incarceration which, even though served within the community, would sufficiently restrict his liberty so as to send the appropriate messages both to the offender and the public (para 94). FINDINGS THE GRAVITY OF THE OFFENCE [ 89 ] The offence of sexual assault is a very serious offence. It strikes at the core of a person’s integrity and sense of personal safety. It can cause significant emotional damage. Indeed, this is true in this case. [ 90 ] A nonconsensual act of anal penetration is a major sexual assault.

The starting point regime for major sexual assaults began as a way to meaningfully acknowledge the gravity of the crime of major sexual assaults. [ 91 ] While all sexual assault is serious, like all crime, it exists on a spectrum of seriousness. Some factors that will push a crime toward a longer sentence often involve planning and deliberation, violence, injury, restraint, multiple offenders, a young or otherwise vulnerable complainant, or an unconsciousness complainant.

A crime of sexual assault that does not contain these aggravating elements, can attract sentences of shorter duration. [ 92 ] The range of sentencing in major sexual assault is reflected in the cases that have been reviewed above. Cases where there is an unconscious complainant or significant acts of overcoming resistance often see sentences in excess of 3 years.

Of course, this is not always true, as sentencing is an individualized process. [ 93 ] Cases where consent is removed, or where it was not obtained, but where no other acts of overcoming resistance are present, can attract lower sentences in the overall spectrum of sexual assault. However, even in these circumstances, a review of the case law makes plain that the violation of dignity that comes with a major sexual assault is so serious that it will almost always attract a jail sentence of some length.

MORAL BLAMEWORTHINESS [ 94 ] As in every sentencing, a judge is to consider all of the principles of sentencing articulated in

section 718 of the Criminal Code , including any relevant aggravating or mitigating circumstances relating to the offence and the offender. These factors assist in determining moral blameworthiness. This court must also consider the offender’s state of mind and actions in committing the offence to determine overall moral blameworthiness. Mitigating Factors [ 95 ] I do not agree with the Crown that there are no mitigating factors in this case. [ 96 ] Mr. Hay has no criminal record and is of otherwise good character.

It is settled law that a lack of a criminal record is a neutral factor. [ 97 ] The use of good character evidence has been the subject of much analysis. Sexual offences are committed in private so someone’s character in public is perhaps less revealing of their moral blameworthiness to these private acts. Often social success is achieved through wealth and advantage. Moreover, one should not receive undue mitigation for generally behaving in society ( Shrivastava , paras 72-93 ).

[ 98 ] The Crown argues that good character is already taken into account in the starting point. Indeed, this was the law post Sandercock but the Supreme Court of Canada in Parranto makes clear that good character is not to be considered in the starting point. Inferentially, this finding suggests that good character can still be a mitigating factor on sentence. [ 99 ] I find that Mr. Hay’s character is a part of an overall assessment of who he appears to be as a person. He has been an otherwise productive member of society and appears to have family support.

He has also taken some steps toward rehabilitation with regular counselling taken on at his own expense. His doctor, who has also been his counsellor, is of the view that he has matured as a person and made significant progress toward personal growth. His character can therefore offer some mitigation. [ 100 ] Mr. Hay did not express remorse to this court. As he challenged the charge in a trial, as is his right, that is perhaps not surprising. His lack of remorse cannot be an aggravating factor. However, neither is it mitigating. I do note that Mr.

Hay did apologize to the complainant at the time of the offence when he encountered resistance. He indicated that he was sorry. This factor does go to his state of mind at the time of the offence and, as such, it is relevant to an assessment of proportionality, but it cannot be considered the same as a genuine expression of remorse or empathy for the complainant. [ 101 ] While neither party argued the point in this case, it is not mitigating that Mr. Hay and SF were engaged in consensual sexual activities before the assault.

Many sexual assaults start as consensual encounters and the law is clear that this early consent does not confer continuing consent. Therefore, to find mitigation in early or prior consent would be an error based on an outdated and incorrect understanding of sexual activity and the law of consent. Aggravating Circumstances [ 102 ] There are some aggravating circumstances to consider. [ 103 ] Given that this is

an act of nonconsensual anal intercourse, this is a major sexual assault. It is a serious violation of the complainant’s sexual integrity and is an aggravating factor. [ 104 ] Mr. Hay did not use protection. This factor is aggravating, as it exposed the complainant to the risk of infection. [ 105 ] The sexual assault had a major effect on the complainant as is reflected in the victim impact statement. It seems clear that the complainant still suffers negative consequences from the assault in the form of anxiety and feelings of isolation.

She is still clearly very angry over what happened and has been left with no real feeling of resolution. [ 106 ] The Crown argues that Mr. Hay abused his position of trust with the complainant. She argues further that the fact that the complainant is facing away from Mr. Hay when the assault occurs is an aggravated breach of this trust. I find that the characterization of this offence as a major sexual assault already contemplates a trust relationship as typically exist in sexual relationships. Sexual activity occurs in private, in what most people would consider to be a state of vulnerability.

A major sexual assault is a violation of this trust. However, as the complainant is not in any special relationship of trust or vulnerability with Mr. Hay, I do not find the breach of trust an additional aggravating factor beyond the finding that this is a major sexual assault. [ 107 ] The fact that the assault occurred when the complainant was facing away from Mr. Hay is similarly already factored into the finding that this is a major sexual assault.

Brief Nature of the Assault [ 108 ] The Crown argues that this court made no finding of fact as to how long the assault lasted and that its short duration is a neutral factor in any event. [ 109 ] The Crown further argues that it was not Mr. Hay who stopped the assault, but rather the complainant when she jumped forward. I found as fact that the assault stopped as soon as the complainant jumped forward and that this jump forward happened immediately after the assault occurred. I found that Mr. Hay did not make any attempt to resume the assault and immediately apologized to the complainant.

It is speculative to suggest that Mr. Hay would have continued the assault had the complainant not resisted. It is also not what happened. [ 110 ] I find that the assault stopped as soon as it occurred when the complainant jumped forward. It was therefore very brief in nature. [ 111 ] The brief nature of the assault has been put forward as a mitigating circumstance. I agree with Justice Fradsham and Justice deWit that it is best understood as a neutral factor. To suggest otherwise is to say that, in all circumstances, there is a discount given to those who commit sexual assaults that are shorter in duration.

A brief assault can cause significant damage and can be a very serious assault. [ 112 ] However, the duration of

an act of sexual assault is not irrelevant. The length of the assault can go to the state of mind of the person committing it. A person who stops the moment they encounter resistance is not necessarily morally the same as one who knows they do not have any form of consent or someone who uses violence or restraint to overcome resistance. Of course, there may be circumstances where the act itself is so egregious that, even if brief and stopped right away, is still indicative or a more guilty state of mind. [ 113 ] The courts have been very clear that sentencing is an individualized process.

As Justice Renke states in Pettitt , “The ‘responsibility’ aspect of proportionality focuses on the actor, the offender’s level of fault in committing the offence, how the act was done, why the act was done, and by whom that act was done” (para 28). These questions are the very core of an individualized approach

to sentencing which must determine how morally blameworthy an individual is in the circumstances. [ 114 ] The length of the assault, in this case and on these facts , is relevant to an assessment of Mr. Hay’s moral blameworthiness. Mr. Hay made a decision in the moment not to take steps to ensure that he had consent to the act of anal sex. That decision is a criminal act and it caused pain and suffering to the complainant and compromised her sexual integrity. It is why he will receive a jail sentence today. However, he did not continue the assault and stopped as soon as he encountered resistance.

He apologized to the complainant at the time, which suggests he did not intend to continue the assault. His moral culpability is therefore lower than if he had disregarded the withdrawal of consent or used force or threats to continue the sexual assault. [ 115 ] It makes no sense in law, or in experience, to conclude, as the Crown would have me do, that there is presumptively no difference in the state of mind of a person who stops right away when resistance is encountered and one who uses force to continue an assault. To draw the conclusion that Mr.

Hay’s state of mind is irrelevant to an assessment of proportionality is to overweigh the gravity of the offence while glossing over the measuring of moral blameworthiness.

It is also to misapply the law of starting point sentencing by considering a major sexual assault a presumptive floor instead of the midpoint in a range. [ 116 ] I gain some assistance from the Court of Appeal in R v Stewart , 2021 ABCA 79 , which upheld a sentence of 30 months for wholesale cocaine trafficking due to the offender’s reduced moral culpability,, despite the starting point for such offences being four and a half years (at paras 1-3).

The Court of Appeal echoed much of the Supreme Court’s commentary in Friesen regarding the use of starting points. [ 117 ] The Court of Appeal agreed with the sentencing judge that because the offender reasonably did not know that she was transporting cocaine in addition to marijuana, her moral culpability mitigated in favour of a sentence well below the usual starting point for trafficking cocaine: In essence, the Crown asks that we approach sentencing through the singular lens of a conviction for wholesale trafficking in cocaine.

In our view, this siloed approach focuses solely on the gravity of the offence, and fails to properly assess the moral blameworthiness of this offender. Sentencing is, of necessity, a particularized inquiry. The essence of a proportionate sentence engages a careful balancing of both considerations. [para 38] Simply put, proportionality requires that Ms. Stewart’s moral culpability for the purposes of sentencing should not be equated with the culpability of someone who knew the bags contained both marijuana and cocaine. Sentencing is a highly individualized exercise in which Ms.

Stewart’s own moral culpability is a key factor: R v Nur , 2015 SCC 15 at para 43 . This is consistent with considering, in the determination of a fit sentence, the state of mind of an offender who sells something held out to be a controlled substance, while knowing that it is not: R v Churchill , 2019 ABCA 261 at para 8 . Just as that offender’s moral culpability was lower than that of one who knowingly sells drugs, so too is Ms Stewart’s. [para 39] [ 118 ] In conclusion, I find that while the brief nature of the assault is not a factor that in and of itself offers mitigation, it does go to Mr.

Hay’s state of mind at the time of the assault. It is indicative of reduced moral culpability when viewed in the overall context of sentencing ranges for major sexual assault. Or, to put it another way, it is one of the reasons to bring the sentence under the starting point of 3 years for a major sexual assault. Length of Sentence [ 119 ] A jail sentence is appropriate in this case to reflect the principles of denunciation and deterrence and to acknowledge that this is a major sexual assault. The starting point of 3 years for a major sexual assault is an important factor in determining this position.

The range of sentencing, as reflected in the cases considered in this judgment, is also instructive. [ 120 ] The Crown urges a sentence of 3 years, consistent with the starting point for a major sexual assault. However, a review of the cases provided by the Crown makes it clear that cases attracting sentences of 3 years and higher contain aggravating factors not found in this case.

They involve unconscious victims, acts of overcoming resistance, violence, multiple assailants, vulnerable victims, injury, and other aggravating factors. [ 121 ] The cases most similar to the facts before this court are TCF and Simkins . In TCF , the sentence was 2 years incarceration, but there were several aggravating factors that are not present in this case; multiple participants in the assault, a recording of the event, and a very young 17-year-old victim. In Simkins , the sentence was 2 years less a day served in the community on a CSO.

CSOs are often appropriately longer than actual jail sentences in order to ensure deterrence and denunciation. [ 122 ] Considering the principles of sentencing set out in the Criminal Code , including the principles of proportionality, parity, restraint, rehabilitation, and the need to effect denunciation and deterrence; and considering the aggravating and mitigating factors of this case, as well as all of the cases provided to me, I find that the appropriate length of sentence is under 2 years, between 12 and 18 months.

Conditional Sentence Order [ 123 ] As a result of finding that a sentence of 2 years less a day is appropriate, I must now turn to consider whether Mr. Hay should serve his sentence in the community. [ 124 ] I find that Mr. Hay would not endanger the safety of the community were he to serve the sentence in the community. Mr. Hay has no criminal record and has been on release for several years with no reported breaches of that release. He has been undergoing counselling for this offence and has already achieved some level of rehabilitation. He has support in the community and connection to

the community. His continuing prospects for rehabilitation appear to be good. I find that in all of these circumstances, he is not an ongoing danger to the community. [ 125 ] I also find that a CSO would be consistent with the fundamental purposes and principles of sentencing set out in

section 718 and 718.2 of the Criminal Code . [ 126 ] While I recognize that the paramount principles of sentencing in a major sexual assault are denunciation and deterrence, I find that a carefully crafted conditional sentence order can achieve these goals. The CSO will have denunciatory conditions such as a curfew and community service hours and it will be longer than a jail sentence served in a correctional centre. Mr. Hay will not be able to live a free and normal life for 2 years (less one day).

He will get no discount for this time as he would in a correctional facility. [ 127 ] I find that a CSO is also consistent with the principles of restraint and rehabilitation. Mr. Hay can continue his counselling in the community where he has established relationships. [ 128 ] I sentence Mr. Hay to a conditional sentence order of maximum length. Among the conditions I will impose, Mr. Hay will abide by a 24-hour house arrest for the first 12 months of the CSO, and a curfew of between 10:00 am and 6:00 am for the second 6 months.

He will perform 200 hours of community service and he will not be able to consume alcohol or other intoxicating substances or attend bars or lounges. He will also have obligations to continue counselling as directed. He will not be allowed any contact with the complainant, and he will not go to any known address, place of business, worship, or education of the complainant. [ 129 ] I sentence Mr. Hay to a period of incarceration of two years less one day to be served within the community under the terms of a

section 742.1 Conditional Sentence Order. Ancillary Orders [ 130 ] I make the following ancillary orders: 1. A

section 487.051(1), primary designated offence, DNA order in Form 5.03. 2. A

section 490.012(1) Sex Offender Information Registration Act order in Form 52 for a period of 20 years. 3. A

section 109 firearms prohibition of 10 years. All prohibited items will be surrendered within 24 hours of this order. Delivered orally on the 22 nd of August, 2023. Dated at the City of Calgary, Alberta this 29 th day of August, 2023. S.E. Pepper A Justice of the Alberta Court of Justice Appearances: Janice Walsh for the Crown Balfour Der, K.C. for the Defence