CITATION: R. v. C.I., 2021 ONCJ 296 DATE: May 20, 2021 Information No. 19 – 8672 ONTARIO COURT OF JUSTICE (at St. Hamilton, Ontario) B E T W E E N: HER MAJESTY THE QUEEN - and - C.I. Ms. R. Branton for the Crown Ms. L. Wilhelm for C.I. Reasons for Judgment An order has been made under s. 486.4 directing that any information that could identify the complainant, M.P., shall not be published in any document or broadcast or transmitted in any way.

Headings Guide Introduction @ paragraph [1] The Hot Sauce Incident @ paragraph [5] Other Sexual Assaults @ paragraph [14] Assault Level 1 @ paragraph [20] The Pre-Sentence Report @ paragraph [22] Further Sentencing Exhibits @ paragraph [35] The Crown’s Submissions @ paragraph [38] The Defence’s Submissions @ paragraph [50] The Crown’s Reply @ paragraph [75] C.I.’s s. 726 Statement @ paragraph [77] Discussion @ paragraph [78] Other Sentencing Principles @ paragraph [82] Statutorily Aggravating Factors @ paragraph [83] Proportionality @ paragraph [86] Totality @ paragraph [88] Parity @ paragraph [89] Sexual Assault Sentencing Cases @ paragraph [93] Can Smith and Bradley be reconciled in paragraph [134] Justice Spies on ss. 718.2(a)(ii) in paragraph [136] Justice Spies on ss. 718.2(a)(iii) @ paragraph [139]

Additional Aggravating Factors @ paragraph [141] Mitigating Factors @ paragraph [143] Victim Impact Statement @ paragraph [145] Conclusion and Imposition of Sentences @ paragraph [149] NADEL, J .: Introduction [ 1 ] On January 25, 2021, after a trial by indictment, I found C.I. guilty of four offences that he committed against, M.P., his domestic partner: [i] sexually assaulting her, contrary to s. 271 of the Code , during the period between December 1, 2017 and July 8, 2019; [ii] assaulting her with a rope, contrary to s. 267(

a) of the Code , during the period December 1, 2017 and July 8, 2019; [iii] assaulting her, contrary to s. 266 of the Code , during the period between December 1, 2017 and July 8, 2019; and, [iv] sexually assaulting her with a weapon, contrary to s. 272(1)(

a) of the Code , during the month of October of 2018. [ 2 ] The couple lived together from near the end of 2017 until July 9, 2019, when M.P. left the home that they shared at […] Street in Hamilton. [ 3 ] M.P. met C.I. by happenstance when they both lived in the same apartment building. They dated, quickly became a couple and moved in together. [ 4 ] During their relationship M.P. believed that C.I. was being unfaithful to her. Those fears caused her to attempt to find proof of his infidelity by checking his facebook account in October of 2018.

That effort led to the count of sexual assault with a weapon that was referred to in this trial as the hot sauce incident. The Hot Sauce Incident [ 5 ] C.I. is about a foot taller and about 50 pounds heavier than M.P. [ 6 ] In mid-October of 2018 M.P. tried to access C.I.’s facebook account to see if he was being unfaithful to her. He received a security notice about an attempted entry into his account. He asked her if she was responsible for the attempted entry and she initially lied and denied having done so. When she finally admitted being the culprit C.I. became very angry.

At first, he was merely verbally abusive. He began to denigrate her. He told her that she was isolated, that she had no where to go, that she was stuck (with him); that no one loved her and that she deserved to have her dog die. [ 7 ] Then be became physically assaultive. He made her get naked and hog-tied her. He then forced hot sauce into her mouth and taped her mouth shut with painters’ tape. As she tried to spit the hot sauce out the painters’ tape came off and what she spewed out got into her eyes.

She managed to free her bonds and rushed to the only bathroom in the home in terrible pain. [ 8 ] One of her co-tenants gave M.P. some cortisone cream to alleviate her burns and forced C.I. to take M.P. to a hospital by threatening to contact the police if he did not do so. [ 9 ] The hot sauce caused M.P. excruciating and blinding pain as it got into her eyes and onto her skin. M.P. has a very pale completion and her skin became very red. She appeared to have sustained a chemical burn according to one witness who saw her. [ 10 ] Although C.I. and M.P. went to St.

Joseph’s Hospital, at M.P.’s request, they did not stay to allow her to be seen by medical staff. Instead, they returned home to […] Street. [ 11 ] When they returned from the hospital M.P. was exhausted and still in discomfort. She wanted to go to sleep because she was to start a new job the next morning. Despite her condition and her desire to do nothing but go to sleep, C.I. forcefully made her fellate him and then forced her to submit to vaginal intercourse. [ 12 ] The Crown characterized this sexual assault with hot sauce as a punishment inflicted by C.I. because M.P. had lied to him. I agree.

M.P. testified that on the way home from the hospital C.I. asked her if she “had learned her lesson” and he extracted her commitment not to lie to him again. In addition, Ms. Eckensviller, the tenant who gave M.P. the cortisone creme testified that as M.P. was trying to wash away the hot sauce C.I. said things to M.P. like, “This is what you get” and “You deserve this.” [ 13 ] While this act of sexual assault with a weapon was the major incident testified to at this trial, M.P. was also victimized by C.I. in many other ways.

Other Sexual Assaults [ 14 ] Over the course of their relationship C.I. forced M.P. to engage in several acts of non-consensual fellatio and multiple acts of non- consensual vaginal intercourse. [ 15 ] The forced fellatio would be initiated by C.I. when she was awake. She testified that on several occasions, other than the hot sauce incident, he wanted to be fellated and she did not want to do so. Despite her lack of consent, he persisted and forced himself upon

her. She described how he did that. [16] He would straddle her by sitting on her chest area and then using his knees he would pin or lock her arms up beside her head andthen force his penis into her mouth. [17] In addition and much more commonly, he would force her to submit to non-consensualvaginal intercourse, which he would often initiate when the couple retired to bed. [18] When she did not want to engage in sex, she would spurn his request. He was not prepared to accept her rejection and would saythings like “We’re going to do this” and would force himself upon her.

M.P. testified that this happened so frequently that she could notprovide specific times or dates as it was a fixture of their relationship. Sometimes he would initiate intercourse while she slept withouther consent. Regardless of the circumstance, sex would often occur without her consent. Assault with A Weapon [19] There was another form of abuse that occurred regularly in their relationship. When M.P. was only wearing panties or was nakedbelow the waist, C.I. would often whip her with a belt or a rope. She objected to his doing so but he persisted despite her objections.

Hisactions would often make her cry and she would cower away and sometimes curl up in a fetal position to avoid being struck. This kind ofresponse made him laugh and he would call her a baby. This whipping behaviour became so frequent that she began to avoid disrobingin his presence as the sight of her in her panties or nude below the waist would incite that kind of behaviour by him. Assault Level 1 [20] Finally, M.P. identified one act of non-sexual assaultive behaviour that she recalled.

In May of 2019, while they were walkingdown their stairwell to the first floor C.I. pushed her against a wall and squeezed her neck for about five seconds for no reason that she could ascertain. [21] All of these applications of force were non-consensual. The Pre-Sentence Report [22] A pre-sentence report about C.I. was filed as Exhibit “1” on sentence. [23] In addition to outlining aspects of C.I.’s biography and background, the pre-sentence reporter sought input from C.I. about theoffences.

The pre-sentence reporter also invited the victim to offer commentary about the offences, which led her to comment onmatters not covered by my findings of fact. I was concerned that both of these avenues of inquiry went beyond the proper ambit of a pre-sentence report and raised my concerns with counsel. [24] S. 721(3)(

a) directs that unless the court specifies otherwise a pre-sentence report must wherever possible contain information onthe offender’s age, maturity, character, behaviour, attitude and willingness to make amends. Given those directions it is understandablehow a pre-sentence reporter might exceed the bounds of proper inquiry in good faith. However, the author of that report ought not tohave questioned C.I. about his view of the facts as found by me.

Additionally, asking questions of the victim about the offences almostinvariably results in comments beyond the facts found. [25] As a result, in a manner analogous to s. 722(8), (that deals with inappropriate comments contained in a victim impact statement),I disregard those portions of the pre-sentence report that exceeded the bounds of proper comment. [26] Out of an abundance of caution Ms. Wilhelm outlined the specific areas of the pre-sentence report that I ought to disregard.

Shedid so out of a concern that a copy of that report along with my reasons for sentence, (and potentially a transcript of the sentencingsubmissions), would follow C.I. to the institution where he would be classified and housed. [27] One example of the author’s inappropriate comments was the repeated references to C.I. as a “repeat offender” when he had noprior record of conviction. [28] In addition, Ms. Wilhelm pointed to the second paragraph of page five, which purported to identify alleged but unchargedcriminality as well as evidence of bad character not properly before me.

Likewise, similar inappropriate comments appear beginning atthe top of page seven that continue for the balance of that page through to the next subject heading. [29] Finally, the “Assessment” or

summary

section of the report repeats some of these inappropriate comments at the fifth paragraphof that

section on page eight as well as on page nine in the first full paragraph on that page. [30] Likewise, the third paragraph up from the bottom of page nine contains commentary that ought not to have been included, or at aminimum, not in the fashion written. [31] In response, Ms. Branton submitted that a demonstration of insight by an offender into the inappropriate nature of the conductproved, was a proper matter of discussion in a pre-sentence report.

The existence of insight spoke to the offender’s prospects forrehabilitation as well as to gauging the need for the specific deterrence of that offender. [32] The matter is not without difficulty. It seems to me that while there is nothing objectionable to an offender voicing remorse orbeing contrite, so that those kinds of reactions may properly be the subject of comment in a pre-sentence report, as noted by the Court ofAppeal in R. v.

Kozy (1990), (ON CA), 58 C.C.C. (3d) 500 at 506:“… an accused should never apprehend that apenalty will flow from a plea of not guilty, …” [33] The proper limits of a pre-sentence report have been discussed in several cases. R. v. Bal, [2014] O.J. No. 2645 contains a usefulreview of the purposes and limits of a pre-sentence report:

44 The preparation and submission of PSRs for use on sentencing is governed by s. 721 of the Code which requires that the report contain specific information, including details as to "the offender's age, maturity, character, behaviour, attitude and willingness to make amends." 45 The purpose of the PSR is to assist the court in imposing a fit and just sentence. 46 Trotter J. in R. v. Green , 2006 ONCJ 364 con sidered the proper content of a PSR and stated as follows, at para. [13]: Numerous courts have pronounced on the proper content of pre-sentence reports .

In his book The Law of Sentencing (Toronto: Irwin Law, 2001), Professor Alan Manson states at p. 187: "There is judicial agreement that the PSR should not include any facts or commentary which relate to the offence or the offender's role in it." 47 Trotter J. further referred, at para. 13, to the comments of Chief Justice MacKeigan in Regina v. Rudyk (1975), 1 C.R. (3d) S 26, where he stated as follows, at p. S - 31: I would here urge that a pre-sentence report be confined to its very necessary and salutary role of portraying the background, character and circumstances of the person convicted.

It should not, however, contain the investigator's impression of the facts relating to the offence charged, whether based on information received from the accused, the police or other witnesses, and whether favourable or unfavourable to the accused. And if the report contains such information the trial judge should disregard it in considering sentence. [34] A similar discussion is contained in the following footnote. [1] Further Sentencing Exhibits [35] In addition to the pre-sentence report, Exhibit “2” is M.P.’s victim impact statement.

Its substance has been copied into these reasons infra . [36] Exhibit “3” is a medical letter written by Dr. W.T. Evans about his patient C.I. [37] Exhibit “4” is a letter to the court written by C.I.’s parents and Exhibit “5” is a letter from C.I.’s aunt. The Crown’s Submissions [38] The primary sentencing objectives in this case are denunciation and deterrence, both specific and general deterrence, as this is a case of violence and sexual violence against an intimate partner. The Criminal Code designates a number of the features of these crimes as aggravating.

The fitness of C.I.’s sentence must be informed by those aggravating features and by the sentencing objectives of denunciation and deterrence. [39] Given that, the Crown contended that a four-year period of incarceration is a fit sentence, together with three ancillary orders: DNA, SOIRA and s. 109. [40] The statutorily identified aggravating features are found in s. 718.2 and s. 718.201 of the Code : 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased … to account for any relevant aggravating … circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (ii) evidence that the offender, in committing the offence, abused the offender's intimate partner … , (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, shall be deemed to be aggravating circumstances;

718.201 A court that imposes a sentence in respect of an offence that involved the abuse of an intimate partner shall consider theincreased vulnerability of female persons who are victims, giving particular attention to the circumstances of Aboriginal female victims. [41] Ms. Branton noted that C.I. abused M.P. over a long period of time during their intimate relationship. The abuse includedmultiple acts of non-consensual vaginal intercourse, several acts of forced fellatio, the whipping of the victim’s buttocks with a belt orrope on multiple occasions and one incident of choking for several seconds.

In addition to all of that, in mid-October of 2018 C.I. forcedM.P. to undress, “hog-tied” her, forced habanero hot-sauce into her mouth and then taped her mouth shut with green painter’s tape. Thathot sauce got into M.P.’s eyes, seriously irritated her skin and caused her excruciating pain. [42] The Crown submitted that this was an incident of gratuitous and degrading violence, which is inherently aggravating. Previously, Ms. Branton had noted that this was

an act of punishment inflicted by C.I. upon M.P. because she had attempted to ascertainif C.I. was being unfaithful to her. [43] Ms. Branton next turned to the effect these crimes had upon M.P. Based upon the effect that these crimes had upon her[2], theCrown submitted that s. 718.2 (a) (iii.1) applies, as an aggravating factor on sentence. [44] As Ms.

Branton noted, there are four identified statutorily aggravating features of C.I.’s crimes: • evidence that the offender, in committing the offence, abused the offender's intimate partner; • evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim; • evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, includingtheir health and financial situation; and, • a court that imposes a sentence in respect of an offence that involved the abuse of an intimate partner shall consider the increasedvulnerability of female persons who are victims. [45] Respecting this last bulleted point, the trial evidence was that C.I. was about a foot taller and about 50 pounds heavier than M.P.

Further, C.I. stressed to her, at least during the hot-sauce incident, how socially isolated she was. In addition, because the two livedtogether, C.I. had ready access to M.P. and was able to commit these continuing and repeated offences as a result. [46] The Crown proceeded by indictment. The maximum sentences for these offences are: • sexual assault with a weapon carries a maximum sentence of 14 years; • sexual assault carries a maximum sentence of 10 years; • assault with a weapon each carries a maximum sentence of 10 years; and, • assault level one carries a maximum sentence of five years. [47] Ms.

Branton submitted that the total sentence urged by her takes the aggravating circumstances and the principle of totality intoaccount. It is in the middle of the three to five year range of sentence identified by the Court of Appeal as appropriate for a single act ofsexual violence.

The Crown stressed the repetitive nature of theses sexual assaults committed during the course of an intimaterelationship. [48] The Crown submitted that a sentence of four years was a fit sentence and that reducing it any further, as a result of Covid-19concerns or any other collateral consequences would render it unfit, contrary to s. 718.1. This is especially so because denunciation anddeterrence are the primary sentencing objectives in this case. [49] Ms. Branton did not suggest how the sentences totalling four years globally ought to be apportioned. The Defence’s Submissions [50] Ms.

Wilhelm contended that C.I.’s age, antecedents and prospects for rehabilitation, taken together with the Covid-19 pandemicand the principle of restraint, militate in support of two years of incarceration and probation as being a fit sentence. [51] The defence took no issue with the ancillary orders required. Moreover, no claim or credit was made for the three days of pre-sentence custody served by C.I.[3] [52] After outlining her submission, Ms. Wilhelm acknowledged what was not in issue. She accepted that the statutorily aggravatingfeatures identified by Ms. Branton apply.

In addition, the defence accepted that denunciation and deterrence are the predominantsentencing principles that ought to drive this the sentence. [53] Finally, Ms. Wilhelm submitted that despite the conflict between Bradley and Smith, (that I will formally cite and review later inthese reasons), the sentence urged by her does not require the court to deal with that apparent conflict. Rather, the defence’s position ispremised on the collateral consequences of being sent to the penitentiary during the Covid-19 pandemic augmented by the principle ofrestraint in sentencing.

That position was delineated in Madam Justice Pomerance’s discussion in R. v. Hearns, 2020 ONSC 2365, [2020] O.J. No. 1648, particularly at paragraphs [16] and [20] reproduced later in these reasons. [54] C.I. is 31 years old. Ms. Wilhelm characterized him as being relatively youthful. Being youthful, in and of itself, tends tosupport the principle of restraint in sentencing.[4] However, in my view, 31 is hardly youthful. Q.B. in the case footnoted at “4” was

only 18. [55] A similar theme was discussed by Mr. Justice Martin in R. v. Vandale, (ON CA), [1974] O.J. No. 1047(C.A.). I have pasted much of that relatively short case into the following footnote and have highlighted portions of it.[5] [56] Ms. Wilhelm repeatedly urged the application of restraint in the imposition of sentence. While acknowledging that hersubmission was at the low end of the Smith range and outside of the range identified in Bradley she stressed that ranges are notstraightjackets and that sentencing is an individualized exercise.[6] [57] Ms.

Wilhelm contended that her submission was appropriate given the pandemic, the principle of restraint and what shecharacterized as the “very clear need for a rehabilitative intervention that jumps out from the way the evidence unfolded at trial, from thepre-sentence report and from the input of family and friends.” [58] Without taking me through the PSR in detail she stressed his relative youth and the fact that C.I. was a first offender.[7] Inaddition, that report and the reference letters from his parents and aunt demonstrated that he had academic and intellectual capability;that he was someone with a personality beyond the negative side shown by the facts found at this trial. [59] Counsel submitted that there was a clear need for mental health intervention from the facts of the case, from the letter from hisdoctor and some commentary from his collateral sources.[8] [60] Ms.

Wilhelm returned to her theme of restraint in sentencing being especially pressing where, despite being guilty of seriousoffences, the offender is youthful and without any prior record of conviction and with any prior experience of incarceration. As a result,she submitted that the length of sentence required to achieve the goals of sentencing for a person in C.I.’s circumstances is lessened fromwhat might be required for deterrence both general and specific, when compared to a recidivist. [61] Ms.

Wilhelm contended that the predominant sentencing directives of deterrence and denunciation do not turn off all concernsabout rehabilitation albeit she conceded that that tap was turned down, so to speak. Rehabilitation has to have some functionality even ifit is not a predominant goal. In a case such as this, it remains a goal to be achieved in some fashion.[9] [62] Ms. Wilhelm further urged that, given the statutory obligation set out in s. 718.2 (

c) not to make consecutive sentences undulylong or harsh, C.I.’s fragile mental health had to be considered.

In addition, his gastro-intestinal frailties will also make his incarcerationmore onerous for him than for someone more physically and mentally robust. [63] In short, the defence submitted that restraint must operate in balance with the other principles to attenuate the sentence so that thesentence is not so crushing as to be oppressive or counter productive and to be consistent with the obligation to impose the least oneroussentence that with will meet the ends of justice. [64] While conceding that rehabilitation is clearly not the primary sentencing goal in a case such as this Ms.

Wilhelm returned to theconcept, again. She submitted that C.I. has the intelligence and capability to be pro-social, “when he puts his mind to it” (sic) and that that submission was borne out in hisletters of support and in the PSR. [65] More directly Ms. Wilhelm’s submission was that C.I. was not bereft of positive traits, albeit those positive traits have not beenexhibited predominantly in his recent behaviour. Further, Ms.

Wilhelm implied that to accede to the Crown submission would be toignore the goal of rehabilitation in this case, which would do a disservice to C.I. and less directly to society generally. [66] Counsel’s contention was that the criminal sanction is premised on people being rehabilitable so that an element of the sentenceto be crafted must acknowledge that prospect.

That acknowledgment must be manifested in an attenuation of the length of sentence. [67] Counsel continued by submitting that the prospect of rehabilitation takes on added weight when one is subjected to a substantialsentence in a congregate setting in the time of Covid-19. While expressly acknowledging that Covid-19 is not a get out of jail free cardit is a factor to be considered in the overall fitness of the sentence to be imposed. [68] Ms. Wilhelm stressed Justice Pomerance’s reasoning in R. v. Hearns, 2020 ONSC 2365 , [2020] O.J. No. 1648 (SCO),especially at paragraphs [16] and [20].

To place those paragraphs in context I have included the intervening paragraphs as well. 16 COVID-19 also affects our conception of the fitness of sentence. Fitness is similar to proportionality, but not co-extensive with it.Proportionality dictates that the sentence should be no more than is necessary to reflect the gravity of the crime and the moralblameworthiness of the offender. Fitness looks at a broader host of factors. A sentence may be fit even if it is not perfectly proportionate.Fitness looks, not only at the length of a sentence, but the conditions under which it is served.

As a result of the current health crisis, jailshave become harsher environments, either because of the risk of infection or, because of restrictive lock down conditions aimed atpreventing infection.

Punishment is increased, not only by the physical risk of contracting the virus, but by the psychological effects ofbeing in a high-risk environment with little ability to control exposure. 17 Consideration of these circumstances might justify a departure from the usual range of sentence, such as that contemplated in R. v.Lacasse, 2015 SCC 64, para. 58: There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself adesirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot bedisregarded.

The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purelymathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that asentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is notdemonstrably unfit. Once again, everything depends on the gravity of the offence, the offender's degree of responsibility and the specificcircumstances of each case. [Emphasis added.]

18 The "specific circumstances of each case" would, in today's environment, include the ramifications of the current health crisis. 19 The Supreme Court has, in other cases, used extraneous circumstances to reduce a sentence. In R. v. Nasogaluak, 2010 SCC 6, [2010]1 S.C.R. 206, it was held that state misconduct, falling short of a Charter violation, could operate in this fashion. This flowed from theoperation of basic sentencing principles and did not require a constitutional analysis. In R. v.

Suter, 2018 SCC 34, [2018] 2 S.C.R. 496,the court found that misconduct by private citizens, who engaged the offender to a brutal act of vigilante violence, warranted a reductionin penalty.

Characterizing the violence as a collateral consequence, the court clarified the scope of that doctrine, in three respects: 1.A collateral consequence includes "any consequence arising from the commission of an offence, the conviction for an offence, or thesentence imposed for an offence, that impacts the offender"; 2."The question is not whether collateral consequences diminish the offender's moral blameworthiness or render the offence itself lessserious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on theoffender because of his or her circumstances"; and 3.There is no requirement that collateral consequences emanate from state misconduct in order to be considered as a factor at sentencing. 20 In the current context, the issue is not state misconduct.

No one is to blame for the pandemic. I accept that those in charge of jails aredoing their best to control the spread of infection. Nor does the issue fall neatly into the category of collateral consequences. There isnothing collateral about the conditions of imprisonment - they are as direct a consequence as one can imagine. Yet, the impact of thepandemic is a matter that is extraneous to the pillars of proportionality - the gravity of the offence and the moral blameworthiness of theoffender.

The point to be taken is this: a sentence may be reduced where it is necessary to denounce state conduct, or where it isnecessary to account for other punitive consequences, or where the sentence would have a more significant impact on an offender. In thiscase, the impact is not attributable to the characteristics of the offender, though in some cases there may be heightened vulnerability. Theimpact is attributable to the social conditions of the time, which are very different than those in the past. COVID-19 is not a mitigatingfactor in the classic sense.

However, it adversely affects conditions of imprisonment, and increases health risks for those in jail. On thatbasis, it is an important part of the sentencing equation. [69] Ms. Wilhelm highlights two points from these passages. First, fitness has a wider ambit than proportionality so that a lessersentence may be fit even if it is not proportionate.

Second, punishment is increased, not only by the physical risk of contracting the virus,but by the psychological effects of being in a high-risk environment with little ability to control exposure. [70] The defence submission is that these factors can justify a departure from the three to five year sentence range identified inBradley. While the defence position is below that range, it is above the low end of the range identified in Smith. Either way, thesentence to be imposed must be mitigated by the impact of the global pandemic.

That pandemic transforms a sentence that was alwaysgoing to be harsh into one that one that has this additional component to it that ought to be factored in. [71] The defence submission is that Hearns provides broad principled guidance, while acknowledging, (as noted in R. v. Morgan,2020 ONCA 279 , [2020] O.J. No. 1978 (C.A.)), that the pandemic is not always going to result in a discounted length. Nonetheless, Ms.

Wilhelm’s position is that if a sentence, while remaining relatively proportionate, is fit in all the circumstances,including the pandemic, then that is the sentence that the court ought to craft. [72] On that basis and considering all of the individualized facts and circumstances in C.I.’s case, including that this is to be a firstperiod of immediate incarceration in a penitentiary setting, two years is a fit sentence. [73] A final point raised by Ms.

Wilhelm was her submission that it has been her experience that inmates are not being sent out topenitentiaries due to Covid-19 lockdowns; that inmates are not getting sent out to be classified and given their correctional plan. Giventhat, C.I. will not be able to access the rehabilitative functions that a penitentiary sentence is intended to provide.

Accepting that, alengthy period of probation that can be attached to a two-year penitentiary sentence will allow him access to those rehabilitativefunctions one expects to be provided by a penitentiary sentence. [74] This is significant because the defence suggests there is a real prospect that C.I. will spend most if not all of a two year sentencein the Hamilton Wentworth Detention Centre. The Crown’s Reply [75] The Crown made two points in reply. First, Ms. Branton said that this last defence submission was speculative and unsupportedby any substantively admissible evidence.

Further, it is not a matter for judicial notice. [76] Second, the Crown submitted that Hearns does not speak to a prospective sentence to be served. Rather, it dealt with whether atime served disposition would be fit in the circumstances of that case. Moreover, Hearns has been interpreted by Justice Fiorucci in R. v.Aiton-Poore, [2021] O.J. No. 644 (OCJ) to mean that the defence cannot double-dip by obtaining a Covid-credit for pre-sentencecustody and also obtain a further reduction for a prospective sentence to be served.

C.I.’s Statement [77] Pursuant to s. 726 I asked C.I. whether he had anything to say about the sentence that I am obliged to craft. He said that he wassorry for the damage he had caused to both his family and to M.P.’s family and to M.P. He went on to say that he wanted to seek help toreintegrate into society and to seek help to make better choices in the future as well as seeking help in understanding his actions.

Discussion [78] In R. v. C.A.M.[10] Chief Justice Lamer summarized the duty of a sentencing judge in these words: The overarching duty of a sentencing judge is to draw upon all the legitimate principles of sentencing to determine a “just andappropriate” sentence, which reflects the gravity of the offence committed and the moral blameworthiness of the offender. [79] That fundamental principle of sentencing is now enshrined in s. 718.1: A sentence must be proportionate to the gravity of theoffence and the degree of responsibility of the offender [80]

Section 718 of the Code is the starting point for all sentencing matters. That

section states: The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for thelaw and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [81] In this case counsel are agreed that the principles of denunciation and deterrence are the most pressing objectives to address,although, as a first offender, Mr. Smith’s rehabilitation must also be considered. Other Sentencing Principles [82] The other sentencing principles and objectives set out in

section 718.2 of the Code, include aggravating factors, proportionality,totality and parity. They must not be ignored. Statutorily Aggravating Factors [83]

Section 718.2(

a) of the Code states that: A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to theoffence or the offender, and, without limiting the generality of the foregoing, (ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner … (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances,including their health and financial situation, … Shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; [84] In addition, s. 718.201 mandates the following: A court that imposes a sentence in respect of an offence that involved the abuse of an intimate partner shall consider the increasedvulnerability of female persons who are victims … [85] All of the statutory directives set out in the preceding two paragraphs apply to the sentence to be imposed upon C.I. Proportionality [86] The principle of proportionality set out in

section 718.1 of the Code, was addressed in R. v. Ipeelee, 2012 SCC 13 ,[2012] S.C.J. No. 13, at paragraph [37]: The fundamental principle of sentencing, (i.e. proportionality), is intimately tied to the fundamental purpose of sentencing -- themaintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord tothe various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle ofproportionality. Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of

the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in thejustice system. As Wilson J. expressed in her concurring judgment in Re B.C. Motor Vehicle Act, (SCC), [1985] 2S.C.R. 486, at p. 533: It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a "fit" sentenceproportionate to the seriousness of the offence.

Only if this is so can the public be satisfied that the offender "deserved" the punishmenthe received and feel a confidence in the fairness and rationality of the system. Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness ofthe offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadiancriminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense ofthe other. [87] As noted in R. v.

Pham, 2013 SCC 15 , [2013] 1 S.C.R. 739, sentencing is an individualized act in which both theoffence and the offender must be considered.[11] Totality [88] Neither counsel made submissions about how the sentences to be imposed ought to be attributed to each count. As discussedsubsequently, appellate courts in different provinces have differed on the approaches that they have directed. Regardless of the approach“where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh”. (s. 718.2 (c)) Parity [89]

Section 718.2(

b) of the Code states that “a sentence should be similar to sentences imposed for similar offenders for similaroffences committed in similar circumstances.” [90] “… Parity, however, does not mean uniformity. The proportionality principle, and the individual nature of sentencing means thatdisparity can exist where circumstances warrant. Such disparities, however, should not be egregious, or unjustified.” [12] [91] Our Court of Appeal addressed the issue of parity in R. v. Devaney, (ON CA), [2006] O.J.

No. 3996 atparagraph [13] in the following terms: "... it is appropriate for trial judges to consider a starting point or range of sentence for aparticular offence committed in particular circumstances. This approach accords with the principle that like crimes will attract likesentences. In many if not most cases, after considering all the relevant factors that affect sentence, a trial judge will impose a sentencethat is within the developed range." Clearly, this instruction is not a constraint. It pre-dates both R. v. Lacasse, 2015 SCC 64 ,[2015] 3 S.C.R. 1089 and R. v.

Pham, 2013 SCC 15 , [2013] 1 S.C.R. 739 which stress the individualized nature of sentencing. [92] In order to ensure that the sentences crafted comply with these various principles and aggravating factors it is helpful to considersentences imposed in other cases. Sexual Assault Sentencing Cases [93] On behalf of the Crown, Ms. Branton referred me to five cases in support of her sentencing submissions. I shall briefly reviewthem in chronological order. [94] The first in time is R. v. Bradley, 2008 ONCA 179 , [2008] O.J. No. 955 (C.A.). This was an appeal from bothconviction and sentence.

Bradley’s conviction appeal was dismissed. The decision was offered for the instruction provided on thesentence appeal. [95] The appellant was an experienced police officer who befriended the victim, a young aboriginal woman. Three years after theymet, while the victim was home from college, she invited Bradley to her home where he raped her vaginally and anally, demanded oralsex from her and made degrading comments to her[13]. Bradley was 39 and she was 21 at the time. [95] At trial, Bradley was sentenced to four year’s imprisonment.

His appeal against sentence was allowed and his sentence wasreduced to three year’s imprisonment because the trial judge erred by treating the appellant's "fabricated" evidence as an aggravatingfactor. 17 It is apparent from the reasons that the trial judge increased the sentence because of the appellant's untruthful evidence at trial. Asthat was a clear error, it falls to this court to establish a fit sentence. [96] The Court accepted that the appropriate range of sentence for Bradley was three to five years.

They found that a sentence at thelow end was appropriate because: • the conviction was for a single count of sexual assault; • there was no violence apart from that which is inherent in such an offence; • the offence had occurred many years prior to trial; • the appellant, a man in his early fifties, had no prior criminal record; • there was much evidence of his otherwise unblemished character; and, • he played a role as a father, especially to his two youngest children.

[97] Bradley is clearly distinguishable from C.I.’s case. His crimes of violence and sexual violence were not limited to one incident. He committed other gratuitous violence against M.P. on an ongoing basis and the hot sauce incident was a particularly egregious act ofdomination that concluded, (after the hospital visit), with acts of forced fellatio and sexual intercourse. [98] The second case that the Crown referred to was R. v. D.J., [2010] O.J. No. 5878, (SC0), a decision from Mr. Justice Casey Hill. [99] D.J. pleaded guilty to a charge of sexually assaulting M.W.

The couple were involved in a long-term relationship marked byseparations and reconciliations. As a result of M.W.’s complaint of harassing phone calls, she spoke to the police and disclosed a patternof sexual abuse and physical abuse at the hands of the offender over the course of much of their relationship and specifically betweenMay 1, 2005 and June 3, 2007. [100] As in C.I.’s case, the victim in D.J. provided detail with respect to one incident in particular.

The details of the facts as found byJustice Hill with respect to that incident and the extent of the spousal rape committed by are detailed in a footnote, below.[14] [101] The offender in D.J. made written admissions about some of his sexual assaults. They are a very rough analogue to C.I.’s writtenadmissions as detailed in my reasons for judgment. Moreover, and like M.P., M.W. filed a victim impact statement that detailed Top ofFormthe emotional impact that she suffered and that spoke to her fears as a woman victimized within a domestic relationship. [102] D.J. was 47 when sentenced.

He had a prior criminal record of modest proportion in Canada, but he was imprisoned for fiveyears in Texas for breaking and entering. Additionally, he had a long history of drug and alcohol abuse, as well as suicidal ideation andprior attempts at suicide together with a history of being abused as a child. [103] He also had a documented diagnosis consisting of: (

i) Chronic polysubstance abuse; (ii) Chronic Post Traumatic Stress Disorder;(iii) Adjustment Disorder with depressed mood and anxiety; and (iv) Antisocial traits/personality disorder. [104] While there are some aggravating features in D.J. that do not apply to C.I., the following aggravating features, identified byJustice Hill do apply to C.I.: 1. The offender's criminal behaviour, directed toward his common law partner, breached a position of trust, an aggravatingcircumstances identified in ss. 718.2(a)(ii) and (iii) of the Criminal Code. 2.

The sexual abuse was significant and persisted for a prolonged period. 3. The sexually assaultive behaviour involved serial rape -- a grossly violative intrusion on physical, emotional and psychologicalautonomy and dignity. 4. The victim has been permanently affected by the abuse. [105] Both the Crown and the defence joined together to recommend a three-year term of incarceration as a fit disposition in all thecircumstances.

That distinguishes it from C.I.’s situation. [106] Hill J. noted that the principles of denunciation and deterrence are of paramount importance in cases involving domestic violenceand cited a number of authorities in support of that principle at paragraph [19] of his decision but pointedly noted that this jointsubmission was at the low end of an acceptable range, given the extreme moral blameworthiness of the criminal conduct. Thedefence’s sentencing position for C.I. is well outside that range and C.I.’s conduct was equally morally blameworthy criminal conduct. [107] The third case cited by the Crown was R. v.

Smith, 2011 ONCA 564 , [2011] OJ. No. 3832 (C.A.), a conviction andsentence appeal after a trial by judge alone. Smith was convicted of ten offences - five counts of assault, two counts of assault causingbodily harm, two counts of sexual assault and one count of uttering a threat. He was sentenced to three years' imprisonment on eachcount, with each sentence running concurrently. [108] The court, in a footnote, noted that the proper approach to sentencing an offender for multiple offences was unsettled. “The courtsof appeal of various provinces have set out two competing approaches.

One requires a sentencing judge to fix an appropriate globalsentence first and then assign sentences for each individual offence and designate them concurrent or consecutive to fit within the alreadydetermined global sentence: see R. v. Jewell (1995), (ON CA), 83 O.A.C. 81 (C.A.). The alternative approach requiresa sentencing judge first to assign fit sentences for each offence and designate those sentences as concurrent or consecutive and only then,as a final step, consider the total sentence to ensure it does not offend the principle of totality: see R. v.

Adams (2010), 2010 NSCA 42, 291 N.S.R. (2d) 206 (C.A.), R. v. Wozny, 2010 MBCA 115 , [2011] 2 W.W.R. 630 (C.A.). Here, the trial judgefollowed the approach set out by this court in Jewell.”[15] [109] I am obliged to follow the approach set by the Ontario Court of Appeal in Jewell. [110] Smith was charged with 13 offences arising out of his relationships with three long-term partners. His appeal was allowed inrelation to counts one, two, four, five, six and eight and those convictions were quashed, and a new trial was ordered on those counts.

His appeal was dismissed in relation to all other counts. [111] The panel held that it was necessary to consider only the sentences imposed on counts nine, ten and 12 and provided thefollowing guidance on ranges of sentence for various offences: 85 In this province, sentences for uttering a death threat in circumstances similar to those in this case tend to range from the impositionof a suspended sentence to six months imprisonment: (cases cited in the original) 86 The jurisprudence of this court suggests that a sentence of one to two years will generally be appropriate for a conviction for common

assault based on facts such as those comprising count ten, committed against a spouse or domestic partner in the context of a lengthypattern of domestic abuse: (cases cited in the original) 87 Finally, in cases of sexual assault involving forced intercourse with a spouse or former spouse, sentences generally range from 21months to four years: (cases cited in the original) [112] The court then turned to the issue of whether sentences for these offences ought to be served concurrently or consecutively.

Despite finding fault with the trial judge for failing to offer any justification for making the sentences all run concurrently, given that theCrown had not cross-appealed sentence, the sentence that the court imposed for the three counts under consideration could not exceedthe three years imposed at trial.[16] [113] The fourth case provided by Ms. Branton was R. v. H.N., 2017 ONSC 2493 (SCO), a decision of B.A. Allen J. sitting with a jury,which found the offender guilty of three counts of sexual assault and one count of common assault, against his wife. [114] H.N. was abusive and controlling.

The sexual assaults and common assault occurred in the nine months that the couple livedtogether after their marriage before the offender forced his wife to leave the matrimonial home. [115] The sexual assaults involved three episodes of forced fellatio and forced vaginal intercourse and an assault level one on anoccasion.

These crimes are similar to some of C.I.’s crimes. [116] Justice Allen noted, inter alia, the statutorily aggravating features of spousal abuse and evidence that the offender in committingthe offence abused a position of trust or authority in relation to the victim that required the sentencing judge to give primaryconsideration to the principles of denunciation and deterrence when sentencing an offender who has committed domestic violence. These factors apply to C.I.’s crimes.

Likewise, as in N.H., C.I. does not enjoy the advantage, as a mitigating factor, that a guilty pleawould offer. [117] Justice Allen provided thumbnails of three roughly similar cases at paragraph [25]: R. v. D.D., 2015 ONSC 5865 , [2015] O.J. No. 4888 (Ont. S.C.J.) -- offender, age 38, sexually assaulted domestic partner twicetwo days apart; prior unrelated criminal record; suffered from psychiatric conditions and drug addictions; mother abandoned him at earlyage and father was abusive; sentenced to three years, six months for each sexual assault to be served concurrently. R. v. D.J., [2010] O.J. No. 5878 (Ont.

S.C.J.) -- offender, age 47, in six-year common law relationship; guilty plea; offender and spousein bed and offender wanted sex, spouse did not; complainant ran into washroom and offender forced entry; put towel over spouse's headto muffle her screams; she struggled, struck at him but he overtook her and penetrated her vaginally; their five year old child was outsidebathroom door during sexual assault; good prospects for rehabilitation; sentenced to three years' imprisonment.[17] R. v. N.T., [2011] O.J. No. 551 (Ont.

C.A.) -- offender charged with two counts of assault bodily harm; sexual assaults against his wifethroughout marriage; used violence to force sex; on one occasion grabbing her by the hair and throwing her down; appeal court upheldthe four-year sentence. [118] In dismissing N.T.’s sentence appeal, the Court of Appeal quoted and noted the trial judge’s comments[18], inter alia, that N.T.did not only physically abuse his spouse at will, but he also verbally abused her. C.I. did the same to M.P. [119] In my view the facts of N.T. are roughly analogous to C.I.’s crimes.

The hot sauce incident amounts to or at a minimum is veryclose to amounting to bodily harm. The pain that C.I. inflicted on M.P. was neither transitory nor trifling. Further, C.I.’s assaults with aweapon attract the same penalty as assault occasioning bodily harm. Similarly, his repeated sexual assaults including several acts offorced fellatio and multiple acts of non-consensual sexual intercourse are similar to the crimes committed in N.T.

I do note, however,that C.I. used no more force than was necessary to overcome M.P.’s resistance; that is to say that he did not inflict gratuitous violence onher when committing his sexual assaults. The same, however, cannot be said for his multiple acts of whipping her to satisfy his sexualdesires. [120] In H.N. the defence sought a two-year penitentiary term. Justice Allen rejected that submission concluding that a sentence thatlow would be inappropriate on the facts of H.N.

He concluded that cases with lower sentences than four years involve circumstances notpresent in the case at hand such as: a guilty plea and a show of remorse; fewer incidents of sexual abuse; less violent and controllingrelationships; an abusive upbringing; psychiatric and drug addiction problems; and good prospects for rehabilitation. [121] Rather, he found parity most aligned with N.T. where a four-year sentence was imposed in a domestic abuse situation where thehusband was very controlling and physically abusive toward his wife.

Moreover N.T. was convicted on one count of sexual assaultwhere N.H. was convicted on three counts and so a sentence of four years of imprisonment was imposed on N.H. [122] The final decision that the Crown asked me to consider was R. v. P.M., 2020 ONSC 3325 (SCO), a judgment rendered by MadamJustice Spies after a judge-alone trial. [123] Justice Spies found P.M. guilty of sexual assault, assault level one and threatening to cause his spouse bodily harm. [124] For the reasons reviewed in her sentencing decision this sentence was imposed on P.M. in absentia.

Given the potential for asubstantial period of incarceration and given the absence of counsel on behalf of the offender Justice Spies appointed Richard Litkowskias amicus curiae.

[125] Mr. Litkowski was to provide submissions on Top of Formone discrete issue: how to reconcile R. v. Smith, 2011 ONCA 564, [2011] O.J. No. 3832 (C.A.) and R. v. Bradley, 2008 ONCA 179 , [2008] O.J.

No. 955 (C.A.), as these Court ofAppeal cases set out two different ranges of sentence for sexual assaults: • Smith identified the range to be 21 months to four years for spousal sexual assaults. • Bradley identified the range to be three to five years for sexual assaults on non-spouses. [126] In addition to these ranges, Justice Molloy noted several other applicable principles that are not easily reconcilable. • The principles of denunciation and deterrence, both general and specific, are of paramount importance in cases involving domesticviolence – sentences "must be such that they will foster an environment in which individuals can feel free to leave romantic relationshipswithout fear of harassment or harm, and without fear of violence aimed at forcing a return to a no longer wanted relationship.” (R. v.Boucher (2004), (ON CA), 186 C.C.C. (3d) 479 (Ont.

C.A.), at paragraph [27]) • Where a custodial sentence is appropriate, a first sentence of imprisonment should be as short as possible and tailored to theindividual circumstances of the defendant rather than solely for the purpose of general deterrence. (R. v. Priest (1996), (ON CA), 30 O.R. (3d) 538 (C.A.) at paragraph [23]) • Despite Priest, for serious crimes of personal violence and sexual assaults in particular, while rehabilitation and other sentencingobjectives remain important, denunciation and general deterrence "gain prominence". (R. v.

Thurairajah, 2008 ONCA 91, 89 O.R. (3d)99, at paragraph [41]) [127] The facts of the offences in P.M. were summarily delineated by Justice Spies beginning at paragraph [15] of her judgment, whichI shall include by way of a footnote.[19] [128] The VIS of P.M.’s victim focused on how her life had changed for the worse at his hands. That victim’s comments echo the VISin D.J. viz.: very real emotional impact and legitimate fears of a female victimized within a domestic relationship.

The same can be saidof M.P.’s VIS, which commences at paragraph [145] below. [129] The Crown sought a sentence of three and one-half years. [130] Justice Spies accepted that the offender had abused a spouse and that that was a statutorily aggravating factor. Moreover, sheaccepted that in doing so he abused a position of trust, which was also a statutorily aggravating feature.

Finally, Her Honour noted thatour Court of Appeal has declared that the principles of denunciation and deterrence are of particular importance in cases involvingdomestic violence. [131] With those principles in mind, Her Honour grappled with the apparent conflict in the two ranges identified in Smith and inBradley, with the assistance of extensive submissions from the Crown and amicus. I do not intend to review that edifying discussion,which dealt, inter alia, with the precedential value of endorsements issued by our Court of Appeal versus the precedential effect ofjudgments.

Bradley was an endorsement while Smith was a judgment. [132] Notably, both ranges of sentence had been approved of or followed in prior judgments. Her Honour gave several examples in herjudgment, including the following. • The Smith range, (21 months to four years), was approved of in R. v. H.E., 2015 ONCA 531, 336 O.A.C. 363, at para. 44, whereJustice Benotto for the court added that cases at the lower end of the range of 21 months to four years involve single events.” (thisemphasis does not appear in the original) • In R. v.

McCaw, 2019 ONSC 3906, at paragraph [59], Justice Spies held that “the range of sentence as established by the Courtof Appeal in Bradley is three to five years for a single offence of sexual assault that was a completed act of unprotected vaginalintercourse. (this emphasis does not appear in the original) • R. v. A.J., 2018 ONSC 5153, at paragraph [34] Code J. stated: “In my view, the case law in this province is to the effect that threeto five years is the appropriate range of sentence for a serious sexual assault against an adult victim, such as the ones committed in thiscase.

Exceptional cases can fall either above or below that range. (cases provided in the original) [133] Justice Spies ruled that the range set in Bradley, (three to five years for a serious sexual assault of a stranger), had precedentialvalue.

She was careful to note that the precedential value of an endorsement varies depending on the extent to which the courtconsidered, decided and articulated a proposition of law.[20] [134] Having determined that Bradley was good law, Her Honour provided a short exegesis on the role of sentence ranges and whatcourt was best suited to setting those ranges and how that applied to her conclusion on the case that she was deciding. That discussionappears at paragraphs [87] to [93]. Once again, I see no need to recapitulate that discussion in order to arrive at a fit sentence for C.I.

That said, Justice Spies’ conclusion about whether Smith and Bradley can be reconciled bears quoting. Can Smith and Bradley be reconciled? 94 It is clear from the caselaw that the consistent application of Bradley and Smith in two different contexts has created two parallellines of sentencing in sexual assault cases.

As [the Crown] submits, the fact of whether the sexual assault was within the context of anintimate partner relationship has been adopted as a "toggle" that attracts one line of cases or the other; in this sense, the lines createdby Bradley and Smith never cross and the rationality for drawing a distinction based on the intimate partner context has never beenexamined.

95 I am advised that Smith and Bradley have only once been cited together in a 2019 case: R. v. O.K.S., 2019 ONCJ482. O.K.S. involved an offender who had been convicted of several charges including sexually assaulting his long-time spouse. RahmanJ. applied the lower Smith range in that case, but he acknowledged the existence of Bradley in a footnote where he noted that thesentencing range for spousal sexual assault -- even when it occurs repeatedly -- appears to be different than that for sexual assaultcommitted by non-spouses.

Referring to Bradley, which in his view accepted that the range of sentence for sexual assault was three tofive years, he observed that one instance of forced intercourse by a non-spouse will often result in a penitentiary sentence, even for a firstoffender (at para. 18).

Rahman J. found this distinction in sentencing ranges "difficult to understand" and he was unclear how it haddeveloped given that it had been over thirty years since Parliament removed the spousal defence to sexual assault and because spousalassaults are statutorily aggravating; in his view, it was hard to imagine a greater breach of trust than a sexual assault by a spouse.

I agreewith his observations. [135] Her Honour then reviewed a number of cases of forced oral sex that attracted three or more years of penitentiaryincarceration.[21] [136] Ultimately, Her Honour concluded that the two ranges cannot be rationalized or reconciled on any basis other than by resort to abelief “that the bodily integrity or autonomy of complainants who have a pre-existing intimate relationship with a defendant is lessimportant. Such beliefs are outdated and have no place in our jurisprudence.

As the Crown submits, the notions underlying theminimization of sexual assaults in the intimate partner context have been repeatedly debunked in academic literature and admonished inCanadian jurisprudence. Consequentially, there is no principled reason to continue perpetuating the notion that sexual assault casesinvolving intimate partners should be treated less severely than those involving acquaintances/strangers.” (at paragraph [100]). Giventhat conclusion Her Honour followed Bradley.

Justice Spies on ss. 718.2(a)(ii) of the Criminal Code [137] “In 2019, Parliament amended s. 2 and ss. 718.2(a)(ii) to reflect the common law. Subsection (ii) now provides that "a sentenceshould be increased or reduced to account for ... evidence that the offender, in committing the offence, abused the offender's intimatepartner ... , while s. 2 defines "intimate partner" to mean a "current or former spouse, common-law partner and dating partner.” (atparagraph [108]) [138] “…[C]ourts in Ontario have taken a more flexible approach in finding that a spousal or common law relationship need not bepresent. In R. v.

McLeod (2003), (ON CA), 177 O.A.C. 385 (C.A.), at para. 17 the Court of Appeal found that the trialjudge had erred in being of the opinion that a distinction should be made because Mr. McLeod and the deceased were boyfriend andgirlfriend rather than spouses or living together when considering whether or not to increase the minimum period of parole ineligibility.The court held that: Although

section 718.2(a)(ii) speaks of spouses and does not mention a boyfriend-girlfriend relationship the same principle is applicable.See R. v. McMaster (1998), (ON CA), 122 C.C.C. (3d) 371 (Ont. C.A.) and R. v. Barry, [1993] O.J. No. 3955 (Ont.C.A.), where the victim murdered in each case was the girlfriend of the appellant and the period of parole ineligibility was 12 years.

Inthose cases the court was also dealing with a murder where the victim is involved in a relationship of trust and intimacy between thevictim and the attacker.” (at paragraph [109]) Justice Spies on ss. 718.2(a)(iii) of the Criminal Code [139] “Even where the defendant does not occupy a traditional position of trust in relation to the complainant, the Ontario Court ofAppeal has held that ss. 718.2(a)(iii) is engaged if the offence consisted of abusing the element of trust that formed the basis of theintimate relationship between the defendant and the complainant: see R. v.

R. (C.), 2010 ONCA 176, at paras. 84-86, and R. v.McGregor, 2008 ONCA 831, at paras. 30-31. More recently in R. v. Kormendy, 2019 ONCA 676, at para. 28, Feldman J.A. for the courtstated that domestic partner victims are "uniquely vulnerable because they are in a relationship of trust with the perpetrator." (paragraph[112]) [140] Clearly, both of these statutorily aggravating factors apply in C.I.

Additional aggravating Factors [141] Justice Spies held that the fact that an assault occurs in one’s home, a place that was meant to be one of comfort and security isan additional aggravating factor. [142] In addition, Her Honour held that the significant emotional harm caused by an assailant is a further aggravating factor. Onceagain, both factors apply to C.I. Mitigating Factors [143] C.I. has no prior record. In addition, while not youthful he is young enough to have reasonable prospects of becoming aproductive member of the community once he has completed the sentences to be imposed upon him.

Those prospects for rehabilitation

are based upon his intelligence and the family support that he has. His s. 726 statement of contrition also provides some hope that hewill not commit further offences once he has completed his sentences. While the medical letter referred to in footnote 9 sets out, interalia, that C.I. suffers from dysthymia and post-traumatic stress disorder that exhibit does not relate those diagnoses to his commission ofthese offences.

As a result, I do not view those diagnoses as being a mitigating factor that can make any weight in the sentences to beimposed. [144] While not a mitigating factor, per se, I do observe that the acts of forced fellatio and the multiple acts of forced sexual intercoursewere not committed using gratuitous violence. That said, I am of the view that forcing himself upon his intimate partner after the hotsauce sexual assault was particularly serious, even though no gratuitous violence was used in the commission of those sexual assaults.

The Victim Impact Statement of M.P. [145] Emotional Impact: “What happened to me throughout the course of my relationship with C.I. has left me a fundamentallydifferent person. I have had to continuously work very hard to rebuild my sense of self, my confidence, my self-esteem, and my sense oftrust in others. Still, not a day goes by that I do not have an intrusive memory or flashback that takes me right back to that dark place. Ican still feel the pain so clearly and deeply. It has been incredibly isolating navigating my healing process.

What C.I. did to me affectedme greatly, but the details are so horrific that I have not yet had the strength to share my experience with most close friends and familymembers. Constantly reliving these events in my mind is bad enough... but having to see the look of shock and disgust on someone else’sface every time I tell my story hurts me in ways that I cannot put into words. Every single day is an uphill battle to fight against PTSDsymptoms of depression, anxiety, and flashbacks.

I fight every single day to try to get back to my true self before C.I. hurt me, but I knowI will forever be affected by this trauma.” [146] Physical Impact: “As a result of C.I.’s actions, my physical health has declined significantly. Prior to being with C.I. I was veryactive and physically healthy. I used to be so passionate about maintaining a healthy mind, body, and lifestyle, but now I struggle to keepmy appetite or a healthy weight. Sleep is supposed to be an activity of rest for most people, but for me it is not anymore.

To this day,every single night when I try to fall asleep I am plagued by memories and intrusive thoughts. When I do eventually sleep, I often havedreams and nightmares that leave me feeling even more tired than when I went to bed. For almost a year after I left C.I. I would wake upin the middle of the night having panic attacks, often taking hours to calm down.” [147] Economic Impact: “My ability to work steady hours has been impacted as a result of these events. Living with anxiety and PTSDmakes it hard to manage a fulltime job, especially when I feel emotionally and physically drained almost all the time.

There have beenperiods where I have had to take time off work or a reduced amount of hours in order to cope. This has resulted in financial loss from somuch time missed from work.” [148] Fears for security: “Everywhere I go, I constantly feel on edge and on guard. I am alwayslooking over my shoulder and paranoid of seeing C.I. Public places that I used to frequent, I now avoid out of worry that he may be there.To this day, every time I see a vehicle that resembles his, I become overwhelmed with anxiety. I still fear all the time that he is going tohurt me again.

I have to actively remind myself of the fact that he can’t hurt me anymore.” Conclusion and Imposition of Sentences [149] I have outlined the charges, the facts and the positions of the parties. I have spent a considerable amount of time reviewing anumber of sexual assault sentencing cases and on occasion I have noted where the facts in those cases are analogous to C.I.’s crimes. [150] On behalf of C.I., Ms. Wilhelm did not take issue with the Crown’s submission that denunciation and deterrence are theprinciples which primarily drive the sentences that I must impose.

Rather, she urged that those principles can be met by a sentence ofhalf the length urged by the Crown because of C.I.’s prospects for rehabilitation and because any sentence will send him into acongregate setting while the Covid-19 pandemic continues to rage. [151] As noted above when I reviewed Ms. Wilhelm’s submissions, one of the main points she made was the court’s obligation toexercise restraint in imposing sentences. That principle of restraint was explained in R. v. Batisse, 2009 ONCA 114 at paragraphs [32] to[35]: [32] The principle of restraint operates in three ways in the present case.

First, it is an important consideration because the appellant wasa first offender. As such, the restraint principle requires that the sentencing judge consider all sanctions apart from incarceration andwhere, as here, incarceration must be imposed, the term should be as short as possible and tailored to the individual circumstances of theaccused: see R. v. Priest (1996), (ON CA), 30 O.R. (3d) 538, [1996] O.J. No. 3369 (C.A.), at p. 545 O.R. [page651] [33] Second, the principle of restraint requires the sentencing judge to consider rehabilitation in determining the appropriate length of thesentence.

In lowering a sentence given to a first offender, this court stated in R. v. Blanas, (ON CA), [2006] O.J. No.364, 207 O.A.C. 226 (C.A.), at para. 5: [G]eneral deterrence cannot be the sole consideration. The appellant is relatively youthful and has no prior record and appears to havethe full support of her family and community. Appropriate consideration must be given to the rehabilitation of the appellant. [34] In serious cases and cases involving violence, rehabilitation alone is not the determinative factor -- general deterrence anddenunciation are also significant factors to be considered.

However, as this court ruled in R. v. Dubinsky, [2005] O.J. No. 862, (C.A.), at para. 1, it is an error to focus almost exclusively on general deterrence and fail to consider individual deterrenceand rehabilitation, especially when sentencing a first offender. [35] Third, Parliament has codified the principle of restraint to limit the use of incarceration as a sentencing alternative, particularly forAboriginal offenders. Subsection 718.2(

d) of the Criminal Code provides that "an offender should not be deprived of liberty, if less

restrictive sanctions may be appropriate in the circumstances". Subsection 718.2 (

e) provides: 718.2 A court that imposes a sentence shall also take into consideration the following principles: . . . . . ▪ (e)all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. [152] I am unable to accept the defence’s position. The sentence espoused by Ms. Wilhelm is outside the range identified in Bradley for a single act of sexual violence. It is at the low end of the range identified in Smith . I accept without question that ranges are not fixed and inflexible.

Nonetheless, despite C.I. being a first offender and despite accepting that a first penitentiary sentence should be as short as possible and tailored to his specific circumstances I cannot accept that a sentence of two years is proportionate and fit in this case.

I come to that conclusion for a variety of reasons. [153] While there are some mitigating factors, they are not of such a magnitude or weight as to be an effective counter-balance to the many aggravating features of these crimes. [154] To begin with there are the multiple statutorily aggravating factors referred to earlier in these reasons. [155] In addition, and in my view significantly, other than the choking count charged as an assault level one, these crimes were not isolated or singular incidents. C.I. forced M.P. to submit to sexual intercourse on multiple occasions.

Those spousal rapes were a fixture of their relationship. While the several acts of forced fellatio were far fewer in number, they, too, were crimes he repeatedly committed against her. [156] I have noted previously that C.I. used no more force in committing these crimes of sexual assault than was necessary to make M.P. submit to his will and wishes. That is not a mitigating factor.

Rather, it is a lack of an aggravating factor so far as those crimes are concerned. [157] However, the fact that C.I. forced M.P. to fellate him and then forced her to submit to sexual intercourse after punishing her by sexually assaulting her with hot sauce, is a very aggravating feature of this case. [158] Likewise, his assaults on her with a belt and rope and his act of sexual assault with a weapon – the hot sauce incident – were demeaning acts of domination. [159] Based upon the mitigating factors, while taking into account the multiple aggravating factors reviewed earlier in these reasons, together with the ranges of sentences imposed on similarly situate offenders for the commission of similar crimes I am of the view that the sentence advocated for by the Crown is appropriate. [160] In my view sentences totaling that length evince the principle of restraint and acknowledge C.I.’s prospects for rehabilitation.

Put more formally, I am of the view that sentences totalling four years are fit on these facts and circumstances, including the existence of the Covid-19 pandemic. As succinctly noted by the Court of Appeal in R. v. Bell , 2021 ONCA 315 at paragraph [9] , “… any credit for the pandemic cannot render the sentence unfit.” [161] C.I. is entitled to credit for the three days of actual custody previously served. I credit those days at one and a half to one and give him a grossed up credit of four and a half days of time served. [162] On that basis I impose sentences as follows: (

a) after giving C.I. four and a half days of time served credit, on the count of sexual assault, contrary to s. 271 of the Code , during the period between December 1, 2017 and July 8, 2019 I impose a sentence of two years, eleven months and twenty-five days; (

b) on the count of sexual assault with a weapon, contrary to s. 272(1)(

a) of the Code , during the month of October of 2018 I impose a sentence of one year consecutive to the sentence imposed in paragraph (a); (

c) on the count of assault with a weapon, contrary to s. 267(

a) of the Code , during the period December 1, 2017 and July 8, 2019 I impose a sentence of 15 months, concurrent to the sentence imposed in paragraph (a); and (

d) on the count of assault, contrary to s. 266 of the Code , during the period between December 1, 2017 and July 8, 2019 I impose a sentence of three months concurrent to the sentence imposed in paragraph (a). [163] To be clear, having found that a total sentence of four years is appropriate, I have attenuated the sentence that I have imposed for the sexual assault conviction, as I feel that the sexual assault with a weapon count merits an independent and consecutive sentence.

If the total sentence had been long enough to accommodate it, I would have imposed a four year sentence on the sexual assault count alone, as fit. [164] In addition to those sentences I make the following ancillary orders: • On the primary designated offences, I make concurrent DNA orders that remain in effect until carried out; • On all counts I impose concurrent s. 109 orders as provided for in that section; and,

• I impose a lifetime SOIRA order. [165] Finally, under s. 743.21 I order that C.I. shall be prohibited from communicating directly or indirectly with M.P. during hiscustodial period. Dated at Hamilton this 20th day of May 2021 _____________________________ J.S. Nadel, (OCJ) [1] Justice Trotter had this to say in R. v. Aleksev, 2016 ONSC 6080 , [2016] O.J. No. 5013: (b)The Pre-Sentence Report 23 As I noted in paragraph 6 above, there are serious problems with the PSR. Among them are the following: o (i)The author reported the views of the Officer in Charge that, from her observations of Mr.

Aleksev throughout the trial, he did notappear remorseful; o (ii)The author reported the views of the Officer in Charge that Mr. Aleksev had acted inappropriately at the scene by not renderingassistance to Mr. Dudzicki; o (iii)The author reported that the Officer in Charge endorsed the position of the Crown that Mr. Aleksev should receive a penitentiarysentence; o (iv)The author devoted a lengthy

section of the PSR to "Comments of the Family"; and o (v)The author expressed the opinion that Mr. Aleksev was not a suitable candidate for community supervision and should receive asentence in a "structured environment," which I take to be an obvious reference to imprisonment. 24 The inclusion of this material is inappropriate and beyond the scope of s. 721(3) of the Criminal Code, which requires that PSR'sfocus on "the offender's age, maturity, character, behaviour, attitude and willingness to make amends." As O'Connor A.C.J.O. said in R.v. Junkert (2010), 2010 ONCA 549 , 259 C.C.C. (3d) 14 (Ont.

C.A.), at p. 26: "A pre-sentence report is intended to be anaccurate, independent and balanced assessment of an offender, his background and his prospects for the future." While probation officersmay seek input from police officers, they are limited in what they may include in a PSR. As Fairburn J. said in R. v. Carrera-Vega, 2015ONSC 4958, at para. 22: "Reports cross the line when they focus on an officer's views of an offence or offender, to the exclusion of otherinformation.

They also cross the line where an investigator's 'impressions of the facts relating to the offence charged' are related:" R. v.Rudyk, (NS CA), [1975] N.S.J. No. 33 (C.A.); R. v. Green, 2006 ONCJ 364. See also R. v. McPherson, 2013 ONSC1635. 25 This PSR crosses the line. While police officers may provide information to assist in the preparation of a PSR, it is not an opportunityto weigh in on the issue of what sentence should be imposed. Moreover, a PSR is not a platform for an officer's opinions about anoffender. Similarly, a PSR is not a forum for the expression of views by those impacted by the offence.

There is a separate procedure forobtaining input from victims in s. 722 of the Criminal Code. This procedure was used in this case, yielding very helpful information fromthose affected by the offence. This information should not have been repeated in the PSR. All told, the PSR is unbalanced, unfair andunhelpful. 26 There is another dimension to this problem. As I explain in the next section, Mr. Aleksev must receive a custodial sentence. The PSRwill follow him as he makes his way through the correctional system. It will form part of his institutional file.

Correctional andparole authorities may rely upon it in their assessments of Mr. Aleksev. This is why it is imperative that the document bebalanced and fair. (emphasis added and not in the original) 27 When a PSR contains inappropriate content, a sentencing judge has a number of options, including: (1) striking the PSR and orderingthat a new one be prepared; or (2) ignoring the inappropriate parts of the PSR. As counsel submitted, the second option is preferable.Expunging the i

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