R. v. Sawicki, 2023 ONCJ 378

CITATION: R. v. Sawicki , 2023 ONCJ 378 DATE: 2023.09.04 St. Catharines ONTARIO COURT OF JUSTICE BETWEEN: HIS MAJESTY THE KING — AND — MICHAEL SAWICKI Before Justice Fergus ODonnell Reasons for sentence imposed on 10 February, 2023 Written reasons released 4 September, 2023 Mr. Michal Sokolski......................................................................................... for the Crown Mr. Jonathan Shime................................................. for the defendant, Michael Sawicki Fergus ODonnell J.: Overview 1 .

Michael Sawicki appears before me today for sentencing on his guilty pleas to two counts of criminal negligence causing bodily harm. The Crown seeks a sentence of six months’ imprisonment or “real jail” plus eighteen to thirty-six months of probation. Mr. Shime says that a custodial sentence is not required for Mr. Sawicki, who is a youngish first offender; Mr. Sawicki should, says Mr. Shime, be given a suspended sentence with twelve to eighteen months of probation and community service. If custody is required, Mr.

Shime says it should be in the form of a conditional sentence, served in the community in the form of a nine to twelve-month conditional sentence, with six months of that under house arrest and the balance on curfew. If it absolutely must be real jail, Mr. Shime says it should be an intermittent sentence in light of Mr. Sawicki’s employment. The Procedural History 2 . The offences date back to the latter half of 2016, when Mr. Sawicki was 23 years old, going on 24 and run up to mid 2019, when Mr. Sawicki was 26 ½ years old. The offences involve the transmission of the HSV-2 herpes simplex virus from Mr.

Sawicki to two intimate partners, with one of whom he had a fairly long-term relationship from mid-2016 to 2019, with a four-month gap in mid-2017. The second relevant relationship, in mid-2019, was much shorter. 3 . There have been various counsel involved, both for the Crown and for the defence over Mr. Sawicki’s journey through the courts. I do not have any piercing insight into the discussions among them, about who made what decisions or all of the factors considered by them that lead us to where we are today.

Each of them is a seasoned and capable practitioner and each plays a vital role in the process that is different than my role. Nothing I say in these reasons should be taken as criticism of how they have done their jobs, even if I at times disagree with arguments made or positions advanced. 4 . Mr. Sawicki was originally charged in 2020 with sexual assault and pleaded guilty to two such charges in January, 2021, assisted by counsel other than Mr. Shime. Mr. Sawicki then sought to withdraw that guilty plea, which necessitated the withdrawal from the proceedings of Mr.

Sawicki’s original defence counsel and of the Crown Attorney for Niagara, Mr. Sokolski, who had originally had carriage of the matter and might have become a witness in the application to strike the plea. Mr. Shime and a Crown from outside the region then engaged on the issue of the withdrawal of Mr. Sawicki’s sexual assault pleas and ultimately came back to court with an agreement for the pleas to be struck and for Mr. Sawicki instead to enter pleas to two counts of criminal negligence causing bodily harm, founded on basically the same misconduct that underlay the sexual assault charges.

They agreed to disagree on the issue of sentence. With Mr. Sokolski no longer a potential witness in the application to strike the proceedings, the outside Crown exited stage left and Mr. Sokolski resumed carriage of the matter after these pleas were entered, for the purpose of sentencing submissions. I do not know who chose the Crown’s position on sentence. 5 .

I put counsel for the Crown and defence on notice that I wanted to hear submissions on the question of restitution in light of what was disclosed in the victim impact statements and on the issue of whether or not I should exceed the sentence sought by the Crown. I received a joint, written response on the latter issue, which was formalized at the next appearance and I heard submissions on restitution also.

6 . The Crown elected to proceed by

summary conviction. At the time of these offences, the maximum sentence available for each offence on a

summary conviction election was six months’ imprisonment. [1] The Facts [2] 7 . Mr. Sawicki is now thirty years old. As noted above he was a few to several years younger when he committed the offences. He has no previous criminal record. 8 . Mr. Sawicki was diagnosed with Herpes simplex virus type 1 (HSV-1) in 2013. There is another type of HSV, namely HSV-2. Neither type can convert into the other. HSV-1 is usually transmitted orally, causing oral herpes, but can cause genital herpes. Two-thirds of the world population under fifty years old have HSV-1.

One eighth of the world’s population between 13 and 49 years old suffer from HSV-2, which is a sexually transmitted infection that causes genital herpes. 9 . Most HSV infections are asymptomatic and both types of HSV can cause painful blisters or ulcers of varying degrees of severity; transmission can occur even when a person appears asymptomatic. The agreed statement of facts discloses that, “Mr. Sawicki was referred to a website with information about herpes when he was diagnosed.” Although Mr.

Sawicki experienced lesions on his genitals between his 2013 diagnosis and his arrest, he never had those lesions tested. Despite that he engaged in unprotected sexual intercourse with the two victims. 10 . Mr. Sawicki was 23 years old when he started dating the first victim in the summer of 2016. She was seventeen years old, a high- school student with an 87% average and a virgin. Mr. Sawicki was her first intimate relationship.

They dated from July, 2016 to April, 2017 and got back together four months later, with the first victim ending her relationship with him after learning of his relationship with the second victim. From the victim impact statement, it seems clear that she got back together with him because his infection of her with HSV-2 left her in an entirely untenable situation in terms of developing relationships with other men. 11 . During their relationship, Mr.

Sawicki had a “rash” on his genitals at times, which he told her was because he was uncircumcised; this “rash” caused him to feel generally unwell and to experience pain. He would refuse to show the first victim the rash. 12 . The first victim had an outbreak on her genitals in September, 2016, which tested negative for chlamydia and gonorrhea, but it is unclear if she had any herpes testing at that time. In April, 2017 she had a second, more severe, outbreak and tested positive for HSV-2, with the test results coming back after they had broken up temporarily. 13 . The first victim contacted Mr.

Sawicki upon receiving her results and told him of her diagnosis. On meeting a week later, he told her he felt bad about giving it to her but said he had no idea he had it; he refused to get tested. The next month he denied it was he who had transmitted the disease to her and repeated the lie about his own rashes being due to his uncircumcised state. They eventually got back together because the first victim was afraid of being eighteen years old and having to date, “with a lifelong infection that she would need to disclose to any potential partners.” 14 .

Two years after the first victim disclosed her diagnosis to Mr. Sawicki, he had a brief relationship with the second victim, who had not had unprotected sex with anyone for three years, who had never had any kind of outbreaks and who had screened negative for any sort of sexually transmitted infection between her last relationship and her involvement with Mr. Sawicki. She and Mr. Sawicki had sex with a condom once and unprotected sex three times in the period from 11-16 June, 2019. The following day, the second victim had her first flare-up. She told Mr.

Sawicki about it and he denied having herpes or any other sexually transmitted infection. The second victim would not have had intercourse with him if she had been aware he had any kind of herpes. 15 . The second victim then contacted the first victim and told her that she suspected she had contracted herpes from Mr. Sawicki. Mr. Sawicki was charged in May, 2020. A month after his plea to sexual assault, Mr. Sawicki had a blood test that was positive for HSV-2 antibodies. 16 . It is agreed that:

(1) Mr. Sawicki knew of his HSV-1 diagnosis since 2013 and told neither the first nor second victim about it; (2) he also did not tell the second victim about the first victim’s experience with him; (3) neither victim would have had intercourse with him if they had known he had either form of herpes, and, (4) his behaviour showed reckless disregard for both victims’ safety. The Victim Impact Statements 17 . The doctrine of proportionality lies front and centre in the law of sentencing. One of the dual heads of proportionality is the seriousness of the offence.

It is impossible to begin to measure the seriousness of Mr. Sawicki’s offences without a fairly deep dive into the victim impact statements here. 18 . Mr. Sawicki’s crimes are ones where the impact on the victims must necessarily drive the analysis of the seriousness of the offences. When it comes to how Mr. Sawicki’s selfishness has affected the victims and how his self-indulgent choices and his denial of their informed right to choose will ripple throughout their lives for half a century, I cannot imagine that there are any characterizations more apt than the very words of the victims themselves.

What follows is of necessity a limited selection of their comments, mostly verbatim. Given my impression that several members of the public have not had the benefit of both sides of Mr. Sawicki’s story, it is important that these words play a prominent role in these reasons, and at some length. 19 . The first victim said: a . “I called Mike as soon as I got to the parking lot [after the diagnosis] as I knew right away I had got it from him. He denied knowing he had it. He blamed me and told me he had to go back to work and hung up on me. I was completely alone.

I did not tell my friends or my family as I was extremely traumatized and scared. I was eighteen years old when I was diagnosed and I no longer care about my life. I truly believed that I was disgusting. I had failed, and I did not understand how to handle the pain and confusion. Before I was diagnosed, I remember Mike constantly telling me he had rashes on his penis and he assured me over and over that it was just from him not being circumcised. I asked him if he had gotten checked, he told me he did.

I was a virgin when I met Mike so I was not experienced enough to be able to distinguish such a lie.” b . “There are still people from our lives that mention him or ask about him. I feel trapped. I cannot tell them what happened to me because if I do, I am disclosing something incredibly personal. I hate that he has that power over me. As I am physically and emotionally suffering, his integrity, reputation, and life all remain intact. One example of how coming out about this investigation has caused me more depression and anxiety is that people judge me for how this would affect his life.

After the media release of Mike pleading guilty, I received a text message from his mom saying, “How could you”. Some of the reactions from others from speaking my truth and seeking justice for not only myself but the other woman Mike

has done this too [sic], has also caused me to do deeper into my negative thoughts.” c . “Some days the depression and anxiety is so bad I isolate myself from my life. I had no idea how emotionally and physically painful it would be to tell a sexual partner. When I tell a partner, I spend the majority of the week that follows depressed in bed. It feels like a part of myself is being ripped out and given away. Mike took away my right to have a normal dating life.

I have not been in a relationship since Mike because I am terrified that even though I am as safe as I can try to be, there is still always a chance they can contract it. That is an incredible amount of pressure that my anxiety can’t handle.” d . “I was not one of the lucky ones who have mild symptoms. The pain for my outbreaks some days are so bad I can’t sit down or have to pee in the bathtub. I have missed work from not being able to put pants on. I have missed school and special occasions from the flu-like symptoms and discomfort.

Sometimes when the outbreaks are so severe, the scabs have been ripped off when I take my underwear off. It is something I feel very alone dealing with. No one wants to hear about you bleeding, scabbing and blistering from a STD. It has been a silent battle my body and I have been dealing with.” e . “Mike has permanently left his mark on my body, my health, my life, my education, my mind, my sex life, my relationships, my family, my friends and other future aspects I have yet to explore…He willingly hurt the people he claimed to have loved and cared about.

Mike did not just give my body a permanent STD, he gave me a life sentence of pain and suffering that affected all areas of my life.” f . The first victim goes on to recount her overwhelming desire to be a mother but the awareness that she could not conceive without in vitro fertilization because vaginal insemination would put the father’s health at risk.

She speaks of how her grades plummeted from 87% to 52% over the course of a year, the costs of extra classes, the costs of therapy, her loss of the ability to pay for therapy when she lost coverage after graduating from university and the retardation of her recovery as a result. 20 . The second victim wrote: a . “This entire experience has absolutely diminished my mental health in the most humiliating and violating way.

The first outbreak made me so physically and mentally ill, I could barely walk, leave bed, eat or talk for many days as depression and suicidal thoughts began immediately and continued to occur for 3-4 months. I truly wanted to die from the inside out, the outbreaks were so painful and inside my body in the most intrusive and intimate place, a place where you do not want to feel pain.

My anxiety and depression is triggered each time an outbreak occurs, HSV-2 is more intrusive and occurs more frequently and each and every time it happens, I feel completely violated again….Every time I have to go stand in line at the pharmacy or doctors to get help and medication is humiliating and a reminder that there is NO cure and I will have this disease inside of me for the rest of my life….Not a single day goes by that this traumatic experience doesn’t consume me, not a single month goes by without a violating and intrusive outbreak.” b . “The way an outbreak makes me feel is so violating, triggering and painful.

I cannot walk, sit, sleep, use the bathroom, shower or even move without a sharp, blistering pain for days, sometimes a week long. Every time it happens it triggers my depression, horrible sleep patterns and overall health and leaves me anxious, sometimes throwing up and with flu like symptoms.

I suffer migraines and dizziness, numbness in legs and limbs, extreme physical discomfort inside of me, inside my most private areas….There are also side effects of the medication needed to treat the severity of the outbreaks: nausea, dizziness, headaches, stomach pain, loss of appetite, extreme fatigue, and risks of damage to blood cells, kidneys and other important organs” c . “I was PETRIFIED of running into the person who did this to me. Terrified of the person who RUINED me physically and mentally in the most intrusive and violating way possible. Scared to run into anyone who knows him.

This made it difficult to have a social life as my anxiety would take over anytime I went in public or had plans to go in public. I ultimately left the province to avoid these anxieties.” d .

The second victim also spoke of having to take almost two weeks off work for the first outbreak, the ongoing need to take a few days off every time there is a new outbreak, the time needed to attend court and the cost of medications either off insurance or in excess of insurance. e . “Ultimately, I want to say that what happened to me has been an extremely traumatic experience that weighs heavy on my mind and body everyday and will continue to have a negative effect of each and every aspect of my mental and physical health, for the rest of my life.” Mr. Sawicki’s Pre-Sentence Report and Letters 21 . Mr.

Sawicki’s pre-sentence report tells of his life as one of two sons in a stable, abuse-free and close-knit family that remains so to the present time. He is in a supportive relationship that began a few months after the end of his relationship with the second victim. That girlfriend said that he had disclosed his HSV-2 status to her before they became intimate and takes great care to reduce the risk of transmission to her. She describes his offences as “a mistake”, not done with cruel intentions or deceit.

Her letter was submitted as part of a substantial compilation of letters from associates, friends and family, all with similar glowing descriptions of Mr. Sawicki as a wonderful and selfless son, friend and colleague who treated women with great respect. 22 . Mr. Sawicki did well in school, displayed no behavioural issues and was described as a leader and involved in extracurricular activities. After taking a break-year he completed a two-year college programme. He has since completed a bachelor’s degree. He has worked at miscellaneous jobs since he was a teenager including a long period with a St.

Catharines company, a position that was terminated after publicity about these charges led his employer to see him as a liability to the company. It seems clear that he has a powerful and admirable work ethic. 23 . Mr. Sawicki said that he began drinking at the age of seventeen and that his consumption increased while he was in college, asserting that he used it as a crutch for any issues he was encountering—consuming daily and to excess. He says his alcohol use was a factor in the present offences, but that he has been sober since about a year after his arrest.

It is noteworthy that his mother said she had never known him to have an alcohol problem, although his girlfriend said he had drunk quite a bit in the past. He made occasional use of cocaine from when he was twenty-four to twenty-six years old and said he currently uses ecstasy sometimes and he uses marijuana for anxiety and as a sleep aid. He has been engaged with Community Addiction Services of Niagara 24 . As I mentioned earlier, Mr.

Sawicki has provided about a dozen-and-a-half letters from family and friends, almost all from people who have known him a decade or longer and all of whom speak very highly of him. These letters are of value as they show how

Mr. Sawicki has presented over a long time in a variety of contexts. They speak uniformly of how his offences are out of character and certainly, in the eyes of the authors, not to be repeated. Most of the letters speak of Mr. Sawicki’s openness and expressions of remorse since he was charged. The support of this circle of friends and family will be of great value to Mr. Sawicki in his rehabilitation. 25 . The pre-sentence report and letters provide no meaningful insight into why Mr.

Sawicki failed to disclose his status to the two victims or why he did not take measures such as condom use to mitigate the risk of life-long harm to them. His letter to the victims says he acted out of fear of rejection rather than malice. Indeed, reading those documents it seems as if the crimes attributed to Mr. Sawicki would be antithetical to who he is, or more accurately to how he projected himself. His current girlfriend writes of unspecified family turmoil at the time of the offences, of which she appears to have no direct knowledge and which is not developed anywhere else in the voluminous materials.

There is no explication of the relationship between his offences and his supposed alcohol dependence, a dependence to which I believe only Mr. Sawicki and his current girlfriend (not his girlfriend at the time of the offences) make reference, or any explication of the details of the supposed turmoil and what relationship it might have to his offending in relation to two different victims over a three-year period. The CASON attendance letter and the psychotherapist’s letter do not provide any diagnostic insight into any supposed linkage between the supposed alcohol dependency and the offences, just that Mr.

Sawicki attended a significant number of sessions. 26 . It is impossible to leave the subject of the pre-sentence report and the defence sentencing materials without commenting on what appears to be a significant imbalance on the part of some of his friends in the form of a diminution of his personal responsibility for his crimes and a paucity of expressed awareness and/or concern about the impact of these events on his victims as opposed to their concern for the impact of these events on Mr. Sawicki. [3] As I have said above, it is important that Mr.

Sawicki have the support of family and friends as part of his rehabilitation, but to characterize his conduct as, “poor judgement at a bad time in his life, not a deceitful act”, which is a shocking minimization of his behaviour, does no favour to anyone and puts the judgment and objectivity of any such writer in question. Language like that is not limited to one writer. Another writer bemoaned (twice) the “defamation” to which Mr.

Sawicki had been subjected, without providing any details, but public exposure of serious crimes is not defamation; to the contrary, it lies at the heart of the legal concept of general deterrence. Even the therapist, in a letter written two months after Mr. Sawicki pleaded guilty, wrote of the “allegations” against him. They are not now, and were not then, allegations. By that time, they were admitted facts. 27 . Whoever Mr.

Sawicki may be now, which strikes me as still very much an open question, in committing these offences he demonstrated a cruel, deceitful, duplicitous and selfish nature without any consideration of the impact of his predation on others. The two distinct lives reflected in his reference letters and in his offences are truly reminiscent of R.L. Stevenson’s Dr. Jekyll and Mr. Hyde. None of us is perfect, far from it, but the person Mr. Sawicki’s friends write of, strayed very far from that image and not for a short period of time. Counsel’s Submissions 28 . I do not propose to go through counsel’s submissions

chapter and verse, but shall touch on some parts of their submissions. 29 . Mr. Sokolski sought a six month real-jail sentence with eighteen to thirty-six months probation. He emphasized the statutory aggravating factors of intimate partner violence and of one victim’s age as well as the long-term and significant impact on the victims. He noted that the sparse sentencing authorities range up to one year in jail for a single victim, with the one-year sentencing for one victim being imposed after trial.

He referenced the Supreme Court of Canada cases dealing with the transmission of HIV and emphasized the callous and selfish nature of Mr. Sawicki’s behaviour for his own pleasure and his total lack of concern for the serious and life-long impacts his acts had on the victims’ personal and sexual integrity and their lifelong health and enjoyment of life. He emphasized that choices like those made by Mr.

Sawicki must have meaningful consequences and that, in the context of the seriousness of the offences and the harm done, the mere imposition of a criminal conviction or even of a conditional sentence was not at all proportional and fell far short of what was necessary to send the appropriate message to other potential offenders. He argued that anything short of real jail constituted an invitation to future potential offenders to take the chance at non-disclosure for their own sexual gratification and thereby imposes unthinkable burdens on victims who might otherwise have been protected by the courts.

The need for real jail, he said, persists even in the face of a first offender who has pleaded guilty. Mr. Sawicki concealed his multiple, serious offences and his ongoing deceit with intimate partners from the authors of the defence reference letters for years. 30 . Mr. Shime stressed the combined impact of the Crown’s election to proceed by

summary conviction (with a six-month maximum sentence available) and the “worst-offence/worst-offender” principle on the ultimate outcome of the sentencing hearing, which he said meant the Crown was asking for the maximum available sentence of six months’ imprisonment. The first-offender Mr. Sawicki, who had pleaded guilty, could not possibly face a six-month sentence of real jail when seen against that template, he said. Instead, Mr. Shime said, the appropriate sentence would be a suspended sentence with twelve to eighteen months of probation.

His fallback position was a conditional sentence of nine to twelve months or an intermittent sentence of real jail to accommodate Mr. Sawicki’s employment. He said that Mr. Sawicki did not require specific deterrence and that a conditional sentence could provide deterrence. He said the Sherman [4] decision imposing a twelve-month sentence for non-disclosure of herpes was not particularly helpful because Mr. Sherman was convicted of multiple offences and the material available did not define how that sentence was apportioned for each count. There were two decisions Mr. Shime said were comparable to Mr.

Sawicki (albeit with a single victim), where conditional discharges were imposed. Mr. Shime also said the paucity of other sentencing cases demonstrated that there was no need for general deterrence in relation to this type of offence. He stressed Mr. Sawicki’s strong work history and the fact that he lost a good job when his offences were disclosed by an anonymous tip to his employer. He characterized Mr. Sawicki as a model member of society other than his commission of these offences and that he was remorseful upon being charged. The Appropriate Sentence 31 . Determining an appropriate sentence is complicated.

It is governed by a series of rules set out in the Criminal Code and a series of sentencing principles established by judicial decisions over the years.

32 . The starting point of any sentencing discussion must be the question of what sentencing is supposed to achieve. This is set out in s. 718 of the Criminal Code , which says that a sentence should, through the use of just sanctions, protect society, enhance respect for the law and contribute to the, “maintenance of a just, peaceful and safe society.” 33 . In order to achieve that purpose, the sanctions applied should aim to achieve one or more listed objectives.

Achieving some of those objectives may be hard to align with achieving other listed objectives, which means that one or more objectives may be more dominant than others, depending on the nature of the specific case. The objectives of these sanctions are to: a . To denounce unlawful behaviour and the harm done by it. b . To deter the specific defendant (here Mr. Sawicki), and other members of society from breaking the law; these are the concepts of specific and general deterrence. c . To separate offenders from society if required. d .

To rehabilitate offenders; rehabilitation is always an important objective as, in the long term, rehabilitation is a powerful building block of safety. e . To provide reparations to victims and/or society. f . To acknowledge the harm done and to promote an offender’s sense of responsibility. 34 . As I have said, the nature of particular offences or the history of a particular offender may result in particular emphasis being given to one or more of these objectives. The Criminal Code itself defines some of the situations where one objective should dominate the conversation.

For example, if the offence involved abuse of a person under the age of eighteen years, denunciation and deterrence are the primary concerns (Section 718.01). There was no dispute that Mr. Sawicki’s first victim was under eighteen years old. 35 . The Criminal Code also defines certain aggravating or mitigating factors. There are definitely codified aggravating factors present here: a .

Section 718.2 (a)(ii) of the Criminal Code , as worded at the time of both offences, makes it an aggravating factor if the offence involved abuse of the offender’s spouse or common law partner. The evidence before me does not establish that either victim fits that strict language, but the Court of Appeal has long made it clear that the same principle applies to an intimate partner relationship, even before the wording of the Criminal Code was amended to reflect the “intimate partner” terminology on 19 September, 2019 (after both of these offences). [5] In effect, the 2019 amendment simply brought the Criminal Code in line with the common law. b .

Section 718.2(iii) makes it an aggravating factor if the offender violated a position of trust in relation to the victim. The Court of Appeal has recognized that abuse within an intimate relationship meets that standard. [6] This has arisen in a context similar to the present cases in R. v. McGregor where the Court of Appeal noted: [7] Abuse of trust [30]

Section 718.2 (a)(iii) of the Code provides that the abuse of a position of trust in the commission of an offence is an aggravating circumstance on sentencing. The respondent did not occupy a traditional position of trust in relation to M.M.

However, any intimate relationship of the type entered into by the respondent with M.M. is based on a certain amount of trust and confidence, at least to the extent that each participant may reasonably expect that he or she will not knowingly be exposed by the other to a dangerous contagious disease: see , for example, Cuerrier , at para. 119 . [31] The respondent was M.M.'s boyfriend. For the full duration of their 18-month relationship, he withheld from M.M. information vital to her health and well-being.

On two occasions when a clear and real potential for M.M.'s exposure to HIV existed, the respondent continued his pattern of deception by failing to inform M.M. of his HIV-positive status. In so doing, the respondent breached that element of trust that formed the basis of his relationship with M.M. [32] The respondent's non-disclosure of his HIV-positive status meant that M.M. was essentially duped, for a prolonged period, into having sexual relations with the respondent. The [page508] respondent's failure to disclose that he had HIV vitiated M.M.'s consent to sexual intercourse with him.

In Cuerrier , at para. 127 , the Supreme Court of Canada bluntly warned: Without disclosure of HIV status there cannot be a true consent. The consent cannot simply be to have sexual intercourse. Rather, it must be consent to have intercourse with a partner who is HIV-positive. True consent cannot be given if there has not been a disclosure by the accused of his HIV-positive status. A consent that is not based upon knowledge of the significant relevant factors is not a valid consent. c .

While I am alive to the danger of citing multiple, somewhat overlapping aggravating factors, it bears noting that there was a very significant age gap between Mr. Sawicki and his first victim; she was seventeen and he was twenty-three. As she fairly pointed out in her victim impact statement, they were at entirely different life stages. 35 .

Finally, s. 718.1 of the Criminal Code , which the Supreme Court of Canada has characterized as the cardinal principle of sentencing, requires that, “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” This is the foundation stone of individualized sentence determination for each specific offender and his or her specific offences. 36 . It is relatively easy to express these guiding principles. It is less simple to apply them in a particular case. 37 . I wish to start by addressing a few issues raised by counsel during submissions: a . Mr.

Shime said the sentence sought by the Crown (six months’ imprisonment) was the maximum available sentence, which I challenged, whereupon he conceded that was the maximum unless I imposed consecutive sentences. The maximum available prison sentence is twelve months and, on the facts of this case the presumption would be for the sentences to be consecutive to one another because they are entirely different offences involving two different victims, years apart.

The presumption of consecutive sentences that applies here is, of course, subject to the requirement that the total sentence be fit based on all relevant factors. b . Mr. Shime suggested that the sentence to be imposed was subject to the “worst offender, worst offence” rule, i.e. that a sentence at or approaching the maximum available could not be imposed because Mr. Sawicki, as a first offender, cannot be the worst offender imaginable and that his offences were not the worst offences imaginable under the offence category. These contentions are not sustainable.

First, the “worst offender, worst offence” rule is well past its sell-by date. A quarter century ago, the Court of Appeal in R. v. Mesgun [8] stated: “ it would, in our view, be unwise to strait-jacket the sentencing process by requiring that the maximum sentence be imposed only in a case of the worst offence committed by the

worst offender. As Lamer C.J.C. said in R. v. M. (C.A.) , [9] "[s]entencing is an inherently individualized process". This process is surely best served by an approach hallmarked by flexibility rather than rigidity.” c . In addition, even if the “worst offender, worst offence” concept remained in force, it would have greatly diminished significance in matters where the Crown proceeded by

summary conviction on a hybrid offence, a situation where the available range of sentence is necessarily quite narrow. In R. v. J.W.M. [10] the court noted: Where the prosecution proceeds summarily in an instance of a sexual assault of a particularly grave type, as here, it may have one or more valid reasons for doing so, i.e. concerns respecting the complainant's health were she to testify at both the preliminary inquiry and again at trial. This said, in my view, the worst offender/worst offense principle is inapplicable to imposition of the 18-month maximum allowable punishment for sexual assault of this severity in a

summary conviction proceeding for sexual assault. Similar reasoning has led to the rejection of the “worst offender, worst offence” notion to limit upper-end sentences in relation to young offenders for the same reason, i.e. that the maximum available sentence is somewhat artificially compressed. [11] d . In reliance on the trial and

summary conviction appeal decisions in R. v. J.H. [12] , Mr. Shime suggests that the paucity of reported cases on offences like this in the intervening decade demonstrates that there is no need for general deterrence. He contrasts this with the thousands upon thousands of impaired driving cases that have been decided in that same period. It is not remotely an apt or a persuasive argument. Driving is a highly regulated activity, conducted in public, subject to the constant risk and reality of police enforcement arising from 911 calls from other drivers, collision responses and RIDE programmes.

It is in this context that impaired drivers are routinely apprehended. One could debate until the cows came home about the optimal model of eliminating impaired driving, but that is not the issue here. The issue here is whether a paucity of reported cases means nobody is committing offences like Mr. Sawicki’s and thus there is no need for deterrence. By contrast to impaired driving, sexual interaction tends to take place in private, subject to no state or public oversight. There are almost never any witnesses.

The consequences of an offender failing to disclose his or her infectious status are not likely immediately apparent even to the victim and never apparent to anyone else unless the victim shares that knowledge. As with all forms of sexual offence victimization, victims will be extremely reluctant to raise the hue and cry over what has been done to them. One does not need any form of special awareness to understand that reality. In addition, we have specific confirmation of that embarrassment and reluctance to disclose on the facts of this case. Indeed, in his own submissions Mr.

Shime said that it is not surprising that Mr. Sawicki himself failed to disclose his status to his own family. A lack of reported cases tells us absolutely nothing about the prevalence of these offences in the community. In addition to the internal and societal influences that will limit complainants from coming forward, which include society’s generally poor track record in dealing with more obvious sexual assaults, investigators and prosecutors will, in many cases struggle with concerns including provability of the offences. Contrary to what Mr.

Shime argues, our knowledge of the historically very low rates of reporting of sexual assaults allows us to reach only one rational conclusion about Mr. Sawicki’s offence: the number of cases leading to prosecutions is undoubtedly a tiny fraction of the actual offences committed. 38 . Mr. Sokolski and Mr. Shime took me through the limited range of available sentencing authorities in an attempt to define the appropriate sentence parameters for Mr. Sawicki’s crimes. As with counsel’s submissions, I shall not canvas the authorities at huge length, but shall instead hit on some of the key elements of the case. 39 .

Having said that, I shall cite a few choice paragraphs from decisions of the Supreme Court of Canada insofar as they demonstrate for how long the concepts of informed consent and bodily integrity been established in the laws of this country, and how forcefully so. For example, almost twenty-five years ago (and reaching back another two-hundred years beyond that), the Supreme Court of Canada in R. v. Ewanchuk, [13] made the following observations: 27…..for the purposes of determining the absence of consent as an element of the actus reus , the actual state of mind of the complainant is determinative.

At this point, the trier of fact is only concerned with the complainant’s perspective. The approach is purely subjective. 28 The rationale underlying the criminalization of assault explains this. Society is committed to protecting the personal integrity, both physical and psychological, of every individual. Having control over who touches one’s body, and how, lies at the core of human dignity and autonomy. The inclusion of assault and sexual assault in the Code expresses society’s determination to protect the security of the person from any non-consensual contact or threats of force.

The common law has recognized for centuries that the individual’s right to physical integrity is a fundamental principle, “every man’s person being sacred, and no other having a right to meddle with it, in any the slightest manner”: see Blackstone’s Commentaries on the Laws of England (4th ed. 1770), Book III, at p. 120. It follows that any intentional but unwanted touching is criminal. 41 . Halfway between Ewanchuk and now, the Supreme Court in R. v.

Mabior, [14] made the following observation: [48] In keeping with the Charter values of equality and autonomy, we now see sexual assault not only as a crime associated with emotional and physical harm to the victim, but as the wrongful exploitation of another human being. To engage in sexual acts without the consent of another person is to treat him or her as an object and negate his or her human dignity. [15] 42 .

There is, of course, a “competing” line of reasoning which argues that matters such as these should be the object of a public health rather than a criminal law response and that the use of the criminal law is a blunt tool that stigmatizes people suffering from what is at core a health issue. I stress that Mr. Shime did not advance this argument, but the argument tends to pervade discussion of cases like this on some level or another. 43 .

It is self-evident by now that people suffering from health issues, be they sexual diseases or mental health challenges or whatever physical or mental ailment it might be should bear no stigma from that, no more than someone enduring cancer or coronary

illness. There is, however, a world of difference between suffering from a sexually transmissible disease and wilfully engaging in conduct that exposes another person to that disease and thereby exposing them to what, in these cases before me for certain, are life-long and debilitating consequences. People are entitled to make their sexual decisions on the basis of a full understanding and anything short of that vitiates consent and makes out a criminal offence. This is what Mr. Sawicki did. His concealment deprived his victims of the right to choose. 44 . In R. v.

Cuerrier, [16] an HIV aggravated assault case, the Supreme Court addressed this issue. While enormous advances in medicine since then mean that HIV is no longer an automatic death sentence and while the impacts inflicted on his victims by Mr. Sawicki did not include the risk of death, the underlying reasons for a forceful criminal law deterrent response to people who commit offences such as Mr. Sawicki’s is clearly made out. As Cory, J. wrote at paragraph 142 of Cuerrier: 142 Where public health endeavours fail to provide adequate protection to individuals like the complainants, the criminal law can be effective.

It provides a needed measure of protection in the form of deterrence and reflects society’s abhorrence of the self-centered recklessness and the callous insensitivity of the actions of the respondent and those who have acted in a similar manner. The risk of infection and death of partners of HIV-positive individuals is a cruel and ever present reality. Indeed the potentially fatal consequences are far more invidious and graver than many other actions prohibited by the Criminal Code .

The risks of infection are so devastating that there is a real and urgent need to provide a measure of protection for those in the position of the complainants. If ever there was a place for the deterrence provided by criminal sanctions it is present in these circumstances. It may well have the desired effect of ensuring that there is disclosure of the risk and that appropriate precautions are taken. 45 . A sparse few sentencing cases were put before me, not I was assured from lack of diligence on the part of counsel, but rather from the scarcity of cases. Two, or rather one, of these cases were R. v.

J.H. [17] , which involved a sentence imposed in the Ontario Court of Justice and a Crown appeal of that sentence. J.H. had pleaded guilty to sexual assault (part way through a series of pre- trial motions relating to the complainant’s previous sexual history and her medical records). The offence was based on J.H. having had intercourse with the victim without disclosing to the victim that he suffered from HSV-2, a detail that would have led her to withhold consent if she had known it.

She suffered, in the restrained language of the sentencing reasons, “most unfortunate consequences.” J.H. was a first offender in his mid-30s, employed, remorseful and otherwise of good character. Although he had lived in Canada for ten years, his conviction “may well lead” to his deportation because he was a permanent resident and not a Canadian citizen. 46 . The trial judge’s reasons leading to his granting of a conditional discharge in J.H. are characteristically thorough and thoughtful.

That being said, despite considered review I cannot conceive of how he got from the facts of the case to the sentence imposed unless the possibility of J.H.’s deportation was permitted to drive the sentencing decision, which the Supreme Court has since made clear ought not to be the case. [18] J.H. chose to have unprotected intercourse with a partner from whom he concealed his medical state and she suffered truly awful and enduring consequences, like Mr. Sawicki’s victims.

Whether J.H. was a ”test case” on sentencing or not (inflicting this sort of damage through any other form of assault would hardly have led to the same outcome), I find myself entirely unable to reconcile the result with the proper application of the principles of sentencing. I do not see the characterization of offenders such as J.H. as, “a lamb to be sacrificed on the altar of general deterrence” as an apt description. To the contrary, such offenders, offenders like Mr.

Sawicki, are persons who, whatever else might be said for them, have made a conscious choice to deprive a sexual partner of autonomy over their own sexual integrity and their own health, for the facilitation of their own gratification and damn the consequences for the victim. A firm criminal-law response to such callous actions is not a ritual sacrifice; to the contrary it is the application of societal denunciation of conduct that reflects deep moral shortcomings and objectifies the sexual partner and negatives their right to choose, likely for life. 47 .

I note that on appeal, Trotter J declined to interfere with the conditional discharge. I also note that he observed that another sentencing judge might have imposed jail on J.H. and might do so in the future. However, Trotter J. concluded that the trial reasons were, “thoughtful and fair.” In doing so, I perceive that Trotter J. in effect determined that the concept of appellate deference in reviewing sentencing decisions carried the day. For a variety of reasons, I am required to consider the trial reasons in J.H. in making my decision in relation to Mr.

Sawicki, but I am not bound by them [19] and nothing in the appeal reasons of Trotter J suggests that the imposition of a real jail sentence on Mr. Sawicki would be out of bounds. 48 . I was also presented with the endorsement of the Court of Appeal for Ontario in R. v. Sherman. [20] I do not propose to go into that case in detail since the consideration of sentence consists of four lines and there were a variety of different offences that made up the sentence.

However, the sentencing reasons presented do show that the sentence for the failure to disclose Sherman’s herpes-positive status was nine months (on a charge of criminal negligence causing bodily harm). Mr. Sherman, however, committed the offence while on probation, unlike Mr. Sawicki. 49 . Among the factors that I consider relevant in determining an apt sentence for Mr. Sawicki are the following: a . He was a youngish offender at the time of the first of these offences. b . He has no previous criminal history. c . He has been on bail for a long time with no breaches alleged. d .

He has pleaded guilty, which saves court time and saves the victims from having to testify about personal matters in court. He is entitled to credit for that. e . He has a positive academic and employment history. f . He has presented as a pro-social member of society over a long time to those in his circle.

The value of that good character evidence, however, must be significantly discounted by the inescapable fact that his offences demonstrate that his public presentation and his private behaviour were enormously out of sync with each other and that deceitful divergence was neither singular nor of short duration. Contrary to his friends’ and family’s views, these offences were not isolated or momentary lapses in judgment. g . He has suffered significant expense in defending the charges against him and lost his dream job as a result of the publicity.

At the same time, these are risks that every offender takes, risks that increase the more serious the crime. h . He has, since his arrest, engaged with community resources to gain insight into some of his issues, although precisely what those issues are, how serious they were (e.g. the serious alcohol problem that only he and his now girlfriend advert to as an explanation for his offences), and how they relate to his offending is not even remotely clear. i .

He has made a clear and unqualified apology in court, including a wish that his present self could speak to his younger self, which, notwithstanding my concerns about the stark contrast between his earlier public and secret personas, I cannot dismiss

as insincere. Similar expressions of his regret resonate through the letters from his family and friends.j. He has strong community supports in the form of his partner, his family and his friends and the likelihood of strong futureemployment opportunities rooted in his powerful work ethic, all of which bode well for his rehabilitation.k. I should consider each available sanction and apply the least intrusive sanction that reasonably responds to the nature of theoffence and the offender, taking into account the principles and objectives of sentencing.l.

I must use jail only when necessary and, even when jail is necessary, I must use it only to the minimum extent necessary.m. While actual incarceration may serve the objectives of deterrence and denunciation more powerfully than other sentencingoptions, actual incarceration does not have a monopoly in achieving those ‘harder’ objectives of sentencing.n. Other than as prescribed by the Criminal Code, there are no categories of offence that are automatically disqualified fromconsideration for a conditional sentence if the sentence range is under two years’ imprisonment.o.

While a judge is not bound by the upper sentence advocated by the Crown, one should be circumspect before venturingbeyond that position.50. I must also consider the following factors:a. There was not one offence, but two separate offences, affecting two separate victims, years apart.b. Mr. Sawicki was not “young” at the time of the second offence. c. The age gap between Mr. Sawicki and the first victim would necessarily create a relevant power imbalance.d. The first victim’s age establishes in law that deterrence and denunciation are the primary sentencing objectives for thatoffence.e. Mr.

Sawicki’s crimes are aggravated because they occurred within intimate relationships, which also qualify as breaches oftrust.f. Mr. Sawicki effectively gaslighted the youthful first victim when she confronted him with what he had done.g. Mr. Sawicki learned nothing from the first offence and exposed the second victim to the same consequences years later.h. Mr. Sawicki’s concealment of his condition constituted a wilful and self-indulgent fraud on both victims, vitiating any notionof their meaningful consent.

That fraudulently obtained “consent” entirely undermined their personal autonomy in one ofthe most personal choices they would make in their lives.i. The health consequences of Mr. Sawicki’s crimes were entirely foreseeable, incurable, physically and emotionally andfinancially devastating, and will enormously compromise their enjoyment of life and their health forever, effectively asentence in the range of fifty or sixty or seventy years for each victimj.

The parties’ positions on sentence do not strait-jacket a sentencing judge except in the case of a joint submission, which isgoverned by a particular set of rules. A sentencing judge is entitled to go above or below the parties’ positions on an opensubmission if the circumstances justify it and if he or she has given the parties an opportunity to address his or her concerns. Mr. Shime, speaking for both parties, provided me with thoughtful submissions on what I should consider before exceedingthe Crown’s position.

I think that the considerations he outlined, and the sentencing options, while not unknown to me,were relevant and fair, but do not persuade me that I can impose a fit sentence while remaining within the lines drawn by theparties.51. I have come to the conclusion that none of the sentencing options put forward by Mr. Shime comes anywhere close to a fitsentence in the circumstances of this case. I have also concluded that the six-month jail sentence recommended by the Crown,while closer to the mark, also falls well short of what is required here.52. Mr.

Sawicki had sexual intercourse with both victims through out-and-out fraud. Unlike the situation with sexual offenders whoviolate a person’s sexual integrity by physical force, Mr. Sawicki’s two victims did not, at the very time of their engagement withhim know that their right to choose had been ignored or overcome, because Mr. Sawicki simply used a more subtle, but no lessodious, manner of overcoming their right to choose. The fact that Mr.

Sawicki’s victims were not subjected to physical harm orthreats in the moment is of no comfort to either of them or to society in light of what lay ahead of them, and continues to lie aheadof them, once they realized that their consent had been obtained by a blatant fraud.53. There is nothing even remotely complex about this. It is not rocket science. Whether this issue was or was not a “test case” inprevious decisions (and with great respect to both judges in that case, the simplicity of the issues did not call for a “test case”), it isnot a test case now.

It is, and always has been, a simple proposition that requires no legal acumen but only simple common senseand a modicum of decency: one does not obtain valid “consent” to sexual activity from another person by concealing highlyrelevant facts that that person is entitled to know and the concealment of which both undermines the right to make an informed andautonomous choice about their sexual integrity and exposes them to horrific, life-changing and life-long consequences. Period. Full stop. End of discussion.

Some legal concepts are unavoidably complicated, but if the foregoing proposition needs to be anymore complicated than I have expressed it, then, to borrow from Mr. Bumble, “the law is a ass.” Offenders such as Mr. Sawicki,and those who minimize his behaviour as some of his circle very clearly did, merit society’s resounding opprobrium.54. Yet that is what Mr. Sawicki did. To two different women in the circumstances set out above. His offences were inherentlypalpably very, very serious and the consequences of them aggravate them more.

There is nothing on the record before me that canrealistically diminish his moral responsibility below wanton disregard for the integrity and safety of two other human beings forthe sake of his own sexual gratification. To grant him a suspended sentence, for example, would be entirely detached from therelevant principles of sentencing.55. The Court of Appeal’s decision in R. v. Priest, is often, and rightly, cited for the proposition that a jail sentencefor a first offender will very rarely be the right option.

In the vast majority of cases, that stricture will hold true, but it is importantto remember the precise language of Justice Rosenberg in that case and the limiting words in the opening clause: The primary objectives in sentencing a first offender are individual deterrence and rehabilitation. Except for very serious offences andoffences involving violence, this court has held that these objectives are not only paramount but best achieved by either a suspendedsentence and probation or a very short term of imprisonment followed by a term of probation. Mr.

Priest was a nineteen-year-old first offender who pleaded guilty to breaking into a convenience store, admitted his guilt immediatelywhen later confronted by the victim and was sentenced to imprisonment for six to twelve times longer than the Crown asked. It is in thatcontext that the Court of Appeal understandably spoke out against routinely imposing significant, or even any, jail for lower-leveloffences. Mr. Sawicki’s crimes were “very serious offences” and engaging in sexual intercourse by fraud, i.e. engaging in sexualintercourse where there is no valid consent, is a crime of violence.

In its most basic form, a crime of violence is the application of force

to another human being without their consent and there was no valid consent here. The force used here was sexual and penetrative in nature, which is justly recognized as a serious crime. 56 . Conditional sentences are one of the most significant and most constructive criminal law developments of the past century. As a sentencing option they should be, and have been, enthusiastically accepted by the judiciary in relation to a very broad range of offences and for a very broad range of offenders. It is fair to say that Mr. Sawicki ticks off most of the boxes to be theoretically eligible for a conditional sentence.

There is no mandatory minimum sentence of imprisonment for these offences. The maximum available sentence is twelve months, which is obviously within the two-years-less-a-day limit within which conditional sentences can be granted. His offences are not excluded offences from the conditional sentence regime. That being said, a conditional sentence will not always be a fit sentence even if, for example it falls within the length pre-condition, is not an excluded offence, etc. In the present case I cannot accept that a conditional sentence would be an appropriate sanction for these offences. 57 .

There are at least two reasons to deny Mr. Sawicki a conditional sentence. They are both found in s. 742.1 (

a) of the Criminal Code , which imposes the conditions precedent for a conditional sentence that I be, “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 purposes and principles of sentencing set out in sections 718 to 718.2 ”. 58 . The “safety of the community” standard encompasses two elements, namely the nature of the risk that Mr. Sawicki might reoffend and the nature of the harm that would ensure from that. With respect to the first of those, much of the material relating to Mr.

Sawicki suggests that he has come a long way down the path of reformation and remorse. It is possible that that is true. However, the cold, hard reality of this case is that Mr. Sawicki led a double life for years and years, presenting as everyone’s best friend to the broad society around him while conducting himself as a callous, cruel, deceitful, gaslighting, selfish user of women. The possibility that Mr. Sawicki has in fact turned himself around one-hundred-and-eighty degrees depends very heavily on him having forsaken entirely the Jekyll-and-Hyde personality he lived for years before.

I am not convinced that is made out. As for the second criterion, the nature of the damage Mr. Sawicki would inflict if he reoffended can only be described as horrific—between them, Mr. Sawicki’s victims face over a hundred years of suffering and compromised quality of life in both their physical and emotional wellbeing. Therefore, the “safety of the community” standard is not made out. 59 .

With respect to the fundamental principles and policies of sentencing, it goes without saying that a conditional sentence can in appropriate cases serve the sharper objectives of sentencing such as deterrence and denunciation. The cases have consistently said that and I believe that to be true. That being said, there will be cases where only a sentence of real jail will achieve those objectives, objectives that are the pre-eminent considerations in cases like this. Mr.

Sawicki’s offences are among the offences that cry out most compellingly for society through the courts to denounce his truly awful and repeated devastation of lives. A conditional sentence is not up to that denunciatory task, nor is it up to the task of deterrence here. If one were to rank the things society most values, surely life, health and freedom would be the top three. Canadian courts cannot take a person’s life or a person’s health (although ironically, offenders like Mr. Sawicki can do the latter).

A court can, however, take his freedom in various ways and it is only through deprivation of the highest form of freedom that society can adequately denounce what Mr. Sawicki has done, that is by incarcerating him in a real prison. 60 . It is the duty of this court to denounce, without ambiguity, the crimes Mr. Sawicki committed against his victims and to make it inescapably clear to all of society that very real, tangible and impactful consequences will follow for people convicted of such offences. Those consequences will pass, even though the victims’ suffering will not.

Even if I were to accept that there may be no need for specific deterrence in relation to Mr. Sawicki, there is a compelling need for general deterrence insofar as these offences relate to the sexual and bodily integrity of the victims and insofar as the consequences for the victims are both extremely serious and life-long. To this end, the separation of Mr. Sawicki from society is required.

No consequence short of real jail would suffice to send that message, certainly in the circumstances of this case and, I would think, in all or virtually all other cases in the absence of some clear distinction such as significant cognitive limitations on the part of the offender. 61 . I stress that this does not mean that Mr. Sawicki is irredeemable or that rehabilitation does not matter. I do not believe either of those to be true. It is simply that they matter less for his offences. Much less. Mr. Sawicki will rebound from this. He took away his victims’ chance to rebound from what he did to them.

This sentence will not crush Mr. Sawicki. His offences have crushed his victims. 62 . I have concluded that the appropriate sentence for Mr. Sawicki is imprisonment for a total of ten months, to be followed by two years’ probation. Even allowing for the requirement that jail be used with restraint and especially so for a youngish first offender, any sentence below that would strike me as unfit in the circumstances of this case. Indeed, for the same offender, if the Crown had proceeded by indictment [21] a substantially longer sentence could reasonably have been imposed. 63 .

The ten-month sentence shall be broken into two consecutive sentences, of five months on each count. 64 . The probation order shall require as follows: a . Mr. Sawicki is to report to probation within 72 hours of his release from custody and thereafter as required by probation. b . His reporting obligation ends when probation is satisfied that he has completed all assessment and counselling to their satisfaction. c . He is to live at an address approved of by probation in advance. d . He is to have no contact or communication directly or indirectly with either victim or with V.B., T.B. or T.R. e .

He is to disclose any new potential intimate partner to your probation officer and provide probation with the new partner’s contact information. f . He is to disclose all sexually transmitted infections to any new or current partner. g . He is to attend for assessment and counselling as directed by probation. h . He is to sign releases and provide proof of compliance. i . He is to make reasonable efforts to obtain and maintain employment. 65 . Mr. Sawicki shall provide a sample of his DNA for inclusion in the DNA data bank.

The balancing of his privacy interests against the public interest in the data bank clearly favours the public interest here, even for a first offender. 66 . There will be an order under s. 743.21 prohibiting Mr. Sawicki from communicating with either of the victims during his time in custody. Released: 4 September, 2023