R. v. S.F.M., 2022 NSSC 90

SUPREME COURT OF Nova Scotia Citation: R. v. S.F.M. , 2022 NSSC 90 Date: 20220302 Docket: CRH 486708 Registry: Halifax Between: Her Majesty the Queen v. S.F.M. Restriction on Publication: ss. 486.4 , 486.5 , and 539(1) Criminal Code SENTENCING DECISION Judge : The Honourable Associate Chief Justice Patrick J. Duncan Heard : July 15, 2021 and December 8, 2021; January 19 and March 2, 2022, in Halifax, Nova Scotia Oral Decision: March 2, 2022 Written Decision : March 31, 2022 Counsel : Alicia Kennedy, for Her Majesty the Queen James M. C. Giacomantonio, for S.F.M. Order restricting publication — sexual offences 486.4

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or

(

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). Mandatory order on application

(2) In proceedings in respect of the offences referred to in paragraph (1)(

a) or (b), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (

b) on application made by the victim, the prosecutor or any such witness, make the order. Victim under 18 — other offences

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. Mandatory order on application

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (

a) as soon as feasible, inform the victim of their right to make an application for the order; and (

b) on application of the victim or the prosecutor, make the order. Child pornography

(3) In proceedings in respect of an offence under

section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. Limitation

(4) An order made under this

section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15 , c. 43, s. 8; 2010, c. 3, s. 5 ; 2012, c. 1, s. 29 ; 2014, c. 25, ss. 22, 48 ; 2015, c. 13, s. 18 ; 2019, c. 25, s. 190 . Order restricting publication — victims and witnesses 486.5

(1) Unless an order is made under

section 486.4 , on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice. Justice system participants

(2) On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

Offences

(2.1) The offences for the purposes of subsection (2) are (

a) an offence under

section 423.1, 467.11, 467.111, 467.12 or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization; (

b) a terrorism offence; (

c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act ; or (

d) an offence under subsection 21(1) or

section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c). Limitation

(3) An order made under this

section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community. Application and notice

(4) An applicant for an order shall (

a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and (

b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies. Grounds

(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice. Hearing may be held

(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private. Factors to be considered

(7) In determining whether to make an order, the judge or justice shall consider (

a) the right to a fair and public hearing; (

b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed;

(

c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation; (

d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process; (

e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant; (

f) the salutary and deleterious effects of the proposed order; (

g) the impact of the proposed order on the freedom of expression of those affected by it; and (

h) any other factor that the judge or justice considers relevant. Conditions

(8) An order may be subject to any conditions that the judge or justice thinks fit. Publication prohibited

(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way (

a) the contents of an application; (

b) any evidence taken, information given or submissions made at a hearing under subsection (6); or (

c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15 ; 2015, c. 13, s. 19 . Order restricting publication of evidence taken at preliminary inquiry 539

(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry (

a) may, if application therefor is made by the prosecutor, and (

b) shall, if application therefor is made by any of the accused, make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused, (

c) he or she is discharged, or

(

d) if he or she is ordered to stand trial, the trial is ended. NOTE: In reducing to writing the oral decision rendered in this matter, editing has taken place to include omitted citations and quotes from secondary sources and to make changes to format or to grammar for readability. No changes have been made to the substantive reasons for decision. By the Court (Orally): Introduction [ 1 ] The accused, S.F.M., was charged in a five count Indictment. Three of the counts alleged that he committed sexual assaults upon his wife.

The Indictment also contained a charge of assault and one of uttering threats to cause his wife bodily harm or death.

All of the offences were alleged to have occurred during the course of their marriage, at various times between September 23, 2013, and August 31, 2017. [ 2 ] Following several days of pretrial applications, a trial was held over a period of 8 days after which, on July 6, 2021, I rendered an oral decision in which I found S.F.M. to be guilty in relation to counts 1, 2 and 4 which state that: 1. he between the 23rd day of September 2013 and the 25th of August, 2017 at, or near Halifax, in the County of Halifax in the Province of Nova Scotia, did unlawfully commit a sexual assault on [S.K.], contrary to

Section 271 of the Criminal Code . 2. AND FURTHER that he between the 1st day of September and the 30th day of September 2016 at the same place aforesaid, did unlawfully commit a sexual assault on [S.K.], contrary to

Section 271 of the Criminal Code . 3. … 4. AND FURTHER that he between the 23rd day of September 2013 and the 25th day of August, 2017 at the same place aforesaid, did unlawfully assault [S.K.], contrary to

Section 266 of the Criminal Code . 5. … [ 3 ] Verdicts of not guilty were entered in relation to counts 3 and 5. [ 4 ] Following the verdict, I accepted the defence request for an Impact of Race and Culture Assessment (IRCA) to provide information on the background of racism in Nova Scotia towards Black people, the effects of that racism, and how those systemic and background factors affected the moral culpability of the accused. [ 5 ] That report forms part of the information before the court for this sentencing determination.

I also have letters speaking to S.F.M.'s character; a Pre-Sentence Report (PSR); a statement of the victim, [S.K.]; submissions of counsel made in December 2021, and a statement made by S.F.M. in accordance with the provisions of

section 726 of the Criminal Code . [ 6 ] Regrettably, the imposition of sentence scheduled for January 2022 was delayed due to the most recent wave of Covid 19. Circumstances of the Offences [ 7 ] I provided a comprehensive analysis of the circumstances of these offences in my decision as to verdict rendered orally on July 6, 2021 (reported at 2021 NSSC 368 ).

The following are my conclusions from that decision. [ 8 ] In relation to Count 1: Throughout the course of the marriage there were a number of instances in which S.F.M. ignored the clear communication of a lack of consent or was reckless or wilfully blind to the lack of consent by the complainant to acts of sexual intercourse. The complainant found acts of intercourse to be painful and when this was the case she would say "no". The offender was persistent and either overrode her objections or would engage in what he described as a form of "negotiation".

It was his view that he had the right to have intercourse with her and she had the obligation to engage in this activity. He contended that this was a duty of a wife in a Muslim marriage. In my assessment he rationalized that the conversations they had provided him the right to proceed. In my view, he was engaging in a form of coercive intimidation. It was not possible to assess the number of times this occurred. I concluded that it was not as often as the complainant alleged but am comfortable in concluding that it was greater than 10 times over the course of the four years of marriage.

The fact that it was part of a pattern of criminal behaviour over an extended time in a domestic relationship is the salient factor for assessing penalty. (see, Verdict at paras. 262-290) [ 9 ] In relation to Count 2: There was evidence that the complainant engaged in oral sex consensually with the offender on a number of occasions and so saw this act in a different light than the acts of intercourse which were physically painful. However, the complainant testified, and I accept, that there was a single act of oral sex that took place shortly after she delivered a baby.

Having regard to her physical state and the circumstances she described, she did not want to perform oral sex on S.F.M.. She said that she had expressly stated this to him and again he persisted. He had their baby in his arms. The complainant agreed to perform oral sex in order to get him to turn their baby over to her. I concluded that the victim was not consenting when performing this act. (see, Verdict at paras. 262-291) [ 10 ] Count 4 is an allegation that during the course of the marriage in 2013 to 2017, S.F.M. unlawfully assaulted [S.K.] contrary to s. 266 of Criminal Code .

I concluded that S.F.M. is guilty of committing two assaults during the time stipulated in the Indictment. (see, Verdict at paras. 297-311) [ 11 ] The first incident occurred in January of 2017. During the course of an argument, S.F.M. struck the complainant causing a

black eye. There is evidence that the complainant may have struck him first. Whether that occurred or not, it is apparent that he lost his temper and instinctively struck her after she made a rude comment to him. Both parties expressed regrets at the time for their conduct. [ 12 ] The second incident occurred on August 25, 2017, when S.F.M. kicked S.K. in the left hip causing her to fall off the mattress and onto the floor. She was not injured.

Circumstances of the Offender [ 13 ] I have had the benefit of a Pre-Sentence Report, an IRCA and letters of friends and business associates that together with the evidence in the trial provides insight into S.F.M.'s personal circumstances. I will speak to the contents of the PSR now and the IRCA in my analysis of what constitutes a fit and proper sentence. [ 14 ] S.F.M. is now 38.

He was between the ages of 30-34 at the time of the offences. [ 15 ] Although he was born in Halifax, he spent most of his formative years living in Québec with his mother who separated from S.F.M.'s father when the offender was four years old. His father was in the military and his mother is a schoolteacher. [ 16 ] Through his teenage years S.F.M. experienced behavioural issues, some of which included being subject to bullying with resulting physical confrontations.

He had a conflict with his mother's new partner and at one point was asked to leave the residence. [ 17 ] In or about 2009, at the age of 26, he returned to Nova Scotia to become more involved in the local Muslim community. [ 18 ] He married and later separated from his first wife in February 2013. Shortly thereafter he met the victim in the current matter. At that point he was involved in volunteer programming at a local mosque and community centre. In September 2013 he and the victim entered into a religious form of marriage.

The nature of their relationship is canvassed at length in the evidence at trial and as reviewed in my decision. [ 19 ] Currently, S.F.M. is living on his own and appears to have limited contact, if any, with his children. [ 20 ] An interview with his mother indicated her support for him although she has formed an opinion that the victim used the criminal proceeding for leverage in the custody dispute that existed between the offender and the victim. His mother confirmed the family history.

She described S.F.M. as someone who could be stubborn and inflexible in his ideology, wanting to achieve his desired goals in his own way. [ 21 ] She acknowledged his conversion from the Baptist religion to the Islamic faith several years ago and attributes this to his need for greater structure in his life. In her opinion, S.F.M. has matured a lot over the past 5 to 6 years and, as I will describe later, spoke positively of his various achievements in furthering his education and developing his business ventures.

She noted the negative collateral effects of this proceeding in his loss of business opportunities and impact on his ability to have a relationship with his children. [ 22 ] S.F.M. obtained a grade 11 education while living in Québec. In 2016 he completed his grade 12 education through the Nova Scotia Community College. In 2019 he obtained a Diploma in Information Technology Data Analytics from the Community College.

During his time in these programs, he distinguished himself in positive ways including: • as a member of the Student Council and president of the Student Association at NSSC; • he managed an information technology development job fair for prospective students; • he was the recipient of the Shift Recognition Award for Business Innovation and Leadership; and • he was the recipient of the NSSC Alumni Award for his contributions as a student. [ 23 ] The offender has demonstrated a general commitment to maintaining employment since his teen years.

His work history shows him to have demonstrated initiative, creativity and as a self-starter. Together with a partner he developed a corporation called "Bursity". In 2021 the Globe and Mail recognized him with the "2021 Report on Business Changemaker" award. Unfortunately, this business failed during the course of the pandemic.

In the months leading up to my decision he was employed as a Program Coordinator and a New Venture Service Lead with Innovacorp, a position which was terminated upon his conviction. [ 24 ] Edward Ma, a former business partner, described S.F.M. as has having been a good friend over the years and described him as a "stand-up guy" who is always helping others and who tends to approach matters in a straightforward manner. They attended the NSSC together and he confirmed their work together in Bursity. Mr.

Ma noted that they have always worked well together and explained that S.F.M. is the kind of person people seek out to discuss new ideas due to his willingness to work with others seeking out various "social enterprises". [ 25 ] S.F.M. remains unemployed and in receipt of employment insurance benefits which are sufficient to meet his needs. He has some personal debt outstanding. [ 26 ] Consistent with his lifestyle history, S.F.M. has no health concerns at this time, does not consume alcohol or partake in the use of drugs or gambling.

He previously was a cigarette smoker but discontinued that some time ago. [ 27 ] I take note of his comments today with respect to the consequences of the finding of guilt and his resulting depression and understand that quite well in the circumstances. [ 28 ] He has a history as a youth with anger management concerns, and it is evident from both the conduct that led to the charges in this case and from his overall history that he would benefit from further assessment and counselling. It will be for professionals to assess what is the most appropriate form.

I will speak to this again and with more detail later in my decision.

[ 29 ] S.F.M. has a demonstrated commitment to volunteerism in the community that predates his involvement with the criminal courts. It had continued until his convictions in this case caused him to withdraw from these activities. [ 30 ] Marcus James was interviewed for the report, and also provided a letter and was interviewed for the IRCA. I should point out that Mr. James is known to this court for his work as a founder of the "902 ManUp" program working with black men who are trying to give back and make a difference within the black communities, in particular, and this was my familiarity with Mr.

James, as an organization that works with black youth in conflict with the law. I noted that in the IRCA he was complimented for his role in the community and that is consistent with my observations as a witness before me in other matters in the past. [ 31 ] Mr. James has known S.F.M. and his family for many years and describes him as "… always looking for ways to get involved in helping the community." I am going to quote from the Pre-Sentence Report: Mr. James expressed that [S.F.M.] had appeared ashamed and embarrassed when he had informed him of the matters he presently has before the Court. Mr.

James stated he had been surprised to learn of these offences and noted [S.F.M.] appears to understand the severity and the impact on his relationship with his children. Mr.

James was of the opinion, because [S.F.M.] tends to keep his personal matters private to most, he may be misunderstood as being arrogant and or not remorseful. [ 32 ] S.F.M. created a positive impression with the author of the Pre-Sentence Report, who described him as: … presented in polite, pleasant manner and co-operative throughout the PSR process by answering all questions asked of him and followed up by providing collaborating documents as requested. [ 33 ] The Pre-Sentence Report author opined that S.F.M. appeared to demonstrate a high level of maturity and self-awareness of his personal strengths.

Throughout the interview, S.F.M. frequently expressed his desire to help others who have come from a similar socioeconomic background as himself. [ 34 ] The author of the Pre-Sentence Report noted S.F.M.'s commitment to education and his efforts to establish his business, as well as his community work with persons who have come from a disadvantaged background. Support for him in the community and by his mother were noted.

The Pre-Sentence Report writer felt that S.F.M. that could benefit from "assessment and counselling in anger management, specific to spousal/partner violence intervention" as well as a community-based sex offender treatment program. [ 35 ] I referred earlier to the fact that the court was provided with reference letters of people who know S.F.M.. One of these was Mr. James, whose letter elaborated further as to Mr. James' commitment to volunteerism, and Mr.

James' belief that when S.F.M. is ultimately released from prison there will be a support system in place for him in the community. [ 36 ] A letter was provided as well from Omar Khartabil who spoke to the positive contributions that S.F.M. made in the Muslim community and in particular at the mosque and community centre. [ 37 ] Amoye Henry is a friend and colleague in work conducting national research and in development of capacity building organizations to provide resources for underserved black founders of businesses in Canada. As with the other references, Ms.

Henry was aware of the crimes for which S.F.M. has been found guilty. She too was very surprised to learn of the offences. [ 38 ] I will address the contents of the IRCA at a later point. [ 39 ] S.F.M. has a related criminal history for domestic violence. On May 15, 2014, he was discharged on condition that he comply with the terms of a probation order for a period of 18 months, which required him to complete 30 hours of community service and to attend for assessment, treatment and counselling in partner/spousal violence intervention and prevention.

He also was subject to a firearms prohibition order for a period of five years, pursuant to s. 110 of the Criminal Code . [ 40 ] The offences for which he was sentenced were, in chronological order: 1. Assault upon his first wife, [A.S.], contrary to

section 266 of the Code , which took place between July 29, 2012 and August 12, 2012. 2. Failure to comply with the conditions of an Undertaking contrary to Section 145 (5.1) of the Code , which took place on September 24, 2012. 3. Assault of [A.S.] again contrary to

section 266 of the Code , which took place on September 24, 2012. 4. Failure to comply with the conditions of a Recognizance or Undertaking on September 30, 2012. [ 41 ] Although no convictions were entered in relation to these charges, the timing and circumstances of these offences are relevant to this proceeding. [ 42 ] S.F.M. assaulted his first wife in late July or early August 2012 and was released on conditions. He assaulted her again on September 24, which constituted a breach of his earlier release conditions.

He was determined to be guilty of breaching a court order a second time for actions just six days later, on September 30. [ 43 ] Sentencing on all four of these charges did not take place until May of 2014, eight months after he married the complainant in this matter. His probationary period continued to November 2016. As such, some of his criminal conduct in the matters he faces before the court today occurred during a period that he was subject to a probation order.

Had these matters been known to the court during the period of his probation, its fair to speculate that his conditional discharge would clearly have been put in jeopardy. [ 44 ] The prosecution has noted as well that some of the current offences occurred after he was said to have successfully completed the "New Start" program, a domestic violence counselling service.

[ 45 ] I will balance the aggravating features of this history in one respect. S.F.M. has been subject to court-ordered release conditions in this case since March of 2018, a period of four years, and there is no indication that he has failed to comply with the terms of that order. This offers a reasonable basis upon which to conclude that he will comply with further orders of the court, or of conditions of parole, should he be offered that opportunity. Victim Impact Statement [ 46 ] Ms. K. submitted a Victim Impact Statement.

I note that her testimony during the trial provided a significant insight to the realities of her married life and the impact of the conflict on her mentally and physically. Her Victim Impact Statement puts these events in the larger context of her life before her marriage and how it has impacted her since the final separation in 2018. [ 47 ] Ms. K. had expectations of a marriage that combined faithfulness to the tenets of Islam while maintaining a modest lifestyle consistent with the independence that a woman has as a Canadian citizen.

She entered the marriage believing she shared a common understanding of this with S.F.M.. Instead, she describes her inner conflict during the marriage of trying to sustain the marriage and the family unit while being increasingly constrained by what she characterized as, rigid rules imposed by S.F.M. and presented to her as her religious obligations. Ultimately she was left feeling that her self-respect, her dignity, and her love for life were lost. She describes ongoing fear for her own safety and of those who support her for having brought forward her complaints to the police. [ 48 ] Ms.

K. has undergone counselling to rebuild her life with her children as she attempts to regain the confidence and self-esteem she once felt. She concludes that while "the wounds are healing, … the scars will remain as a constant reminder of the pain, suffering and anxiety" that she has felt. Position of the Prosecution [ 49 ] The prosecution reviewed the statutorily and factually aggravating circumstances of these offences and of the offender and submits that a fit and proper sentence is the imposition of a period of incarceration for five to six years.

In support of this position, the prosecution says that such a penalty appropriately stresses the principles of denunciation and deterrence called for in cases of domestic violence of the frequency and type inflicted by S.F.M..

The Crown Attorney emphasized these factors: • that S.F.M. has a relevant history of domestic violence against his first wife; • that the gravity of the offences or seriousness of his offences are not diminished by information contained in the IRCA or the Pre- Sentence Report; • that he has demonstrated a lack of insight to his conduct; and • that there are no mitigating factors to balance against the many aggravating circumstances that exist in this case.

Position of the Offender [ 50 ] Counsel for S.F.M. submits that a fit and proper sentence is a period of two years custody in a federal institution to be followed by 24 to 36 months of probation. [ 51 ] It has been submitted that a review of relevant caselaw shows the range of sentence in similar cases to be between two and four years of incarceration and that while the proposed sentence is at the low end of the range it nevertheless is in the range.

The circumstances offered in support for this recommendation, and as contrasted to the submissions of the prosecution, include: • The prosecution submission erroneously fails to attach any weight to the IRCA report and what it says of the circumstances of the offender. • That his prior history of domestic violence is dated and should not be afforded the weight the prosecution urges. • That his personal circumstances as discussed in the IRCA explain his world view and the tools he has adopted to confront his troubled upbringing by living a committed life to Islam since the age of 26. • That his apparent rigidity and authoritarianism is a result of "adverse race-based trauma" which should impact on the court's assessment of his moral culpability. • That he has in his life, outside of his marriage and since, provided positive guidance to young black men and women. • That he has lost leadership positions and employment as a result of these charges. • That the proposed sentence should be a reflection of the individualized process of sentencing as discussed in the NSCA case of R. v.

Anderson , 2021 NSCA 62 . • That the sentence proposed properly emphasizes deterrence and denunciation while paying heed to his prospects for rehabilitation. • That the accused has no prior period of incarceration. • That the offender, according to Mr. Giacomantonio, spent six days remanded into custody. Range of Sentence [ 52 ] I have reviewed the cases submitted by both the Crown and the defence. I would say that, for the most part, what the cases presented provide me is confirmation of the well-understood principles of sentencing, including some more recent judicial statements of

the law of sentencing in relation to crimes of violence, and crimes of sexual violence in particular. For example, in the case of R. v.Kanatewat, 2020 QCCQ 3293, provided by Mr. Giacomantonio, individualized sentencing was stressed, in that case for an indigenousoffender. I am urged to apply that in this case as well. My discussion of the IRCA will speak to that aspect of the sentencing. [53] I am not going to go through all of the decisions, in the interest of time. I have read them. There are some that I will commenton specifically, but I do not intend to deal with all of them.

The principles of sentencing that they speak to and the general approaches tosentencing in this type of case are familiar to me and they speak to it according to the individualized circumstances of each of thosecases. [54] I spoke a moment ago about Kanatewat, supra, which of course in its facts is not similar to the facts in this case, but it doesspeak to the benefits of a Gladue report in assessing sentence.

In that case there was a discussion about the circumstances where, eventhough there was very serious subjective gravity and profound lasting impact upon the victim, the evidence supported a sentence thatwas individualized, using the community supports available that included active healing activities, through the cultural rooted help of theelders and professional therapies. [55] The decision of R. v.

C.G., 2020 ONCJ 459, provides some comments that I think merit repeating here. [56] Following trial, the court concluded that while in a domestic relationship and on various occasions over a period of severalmonths, the offender touched the victim in a sexual manner without her consent and failed to stop sexual intercourse when she withdrewher consent. [57] In that case, and why it is different than this matter, the prosecution proceeded summarily, so the sentence imposed cannot beseen as sufficiently similar to the circumstances before this court.

However, the sentencing judge made pertinent findings which Iconclude apply in the current case: 30 As indicated in Shah, C.G.'s potential for successful rehabilitation is directly related to his level of insight and awareness into whatprecipitated his sexual assault of C.P. As I indicated in my reasons for judgment, C.G.'s comments and demands to C.P. in his textmessages reflect an individual who views sexual relations with his common-law partner as his right -- something he expects to happenwhen he requests it.

In my view this attitude reflected by these text messages raises concerns for C.G.'s future rehabilitation and whetherhe will be specifically deterred. Engaging in sexual relations with your spouse or common-law partner is not a right simply because ofthe existing intimate relationship -- "No does not mean yes." C.G. was required to stop when C.P. told him to stop and he was required toobtain a clear and unequivocal "yes" before continuing (see R. v.

Ewanchuk, (SCC), [1999] 1 S.C.R. 330, at paras. 51-52). … 36 Finally, another aggravating circumstance is the significant impact of C.G.'s persistence in pressuring C.P. to engage in sexualrelations when she was recovering from the birth and delivery of their daughter. I found C.G. was fully aware of C.P.'s decision not toengage in sexual activities with C.G. due to her continuing pain and discomfort, yet he frequently demanded she should give into hisdemands because he needed sex.

Pursuant to s. 718.2(a) (iii.1) the significant impact on C.P., as reflected in her testimony and in her VISis to be considered as an aggravating circumstance. [58] The R. v. C.P., 2020 ABQB 704, case was a jury trial with factual similarities that resulted in a sentence of 4.5 years. I haveelected not to consider it for two reasons. First, the matter was overturned on appeal and a new trial has been ordered, so I cannot adoptthis decision. Also the court relied entirely on Alberta sentencing precedents and particularly on the R. v.

Sandercock decision (1985ABCA 218), which adopted a starting point sentencing that we have not adopted in Nova Scotia. So, I do not find C.P. particularlyhelpful. Principles of Sentencing [59] The statutory prescribed purpose and principles of sentencing are set out in

Part XXIII of the Criminal Code.

Section 718identifies the purpose in these terms: Purpose 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect forthe law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the followingobjectives: (

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. [60] There are some other provisions that are relevant to the matter before me:

Fundamental principle 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Other sentencing principles 718.2 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 the offence or the offender, and, without limiting the generality of the foregoing, (i) … (ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (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, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, (

v) evidence that the offence was a terrorism offence, or (vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under

section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act 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 ; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances ; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders .

Additional consideration — increased vulnerability 718.201 A court that imposes a sentence in respect of an offence that involved the abuse of an intimate partner shall consider the increased vulnerability of female persons who are victims, giving particular attention to the circumstances of Aboriginal female victims. [Emphasis Added] Analysis [ 61 ] I agree with much of what the Prosecution has proffered as reasons to impose a sentence weighted toward lengthy incarceration as the means to emphasize denunciation and deterrence – both general and specific.

There are a number of aggravating factors: • S.F.M. violated the trust that exists in a domestic relationship. • He did so repeatedly. • He inflicted mental anguish during the commission of these offences. • He violated the person of his wife repeatedly over the course of their marriage by using coercive intimidation to obtain her compliance to sexual acts that I concluded she did not consent to. • There has been residual psychological damage to Ms.

K., as she has described in her Victim Impact Statement. [ 62 ] The Prosecution also takes the view that the prospects for rehabilitation are sufficiently bleak as to offer no support for a sentence such as that proposed by counsel for the offender which includes a period of probation.

In this respect I accept that: • S.F.M.'s potential for rehabilitation is brought into question by his lack of insight to his wrongdoing. • That his relationship with his first wife involved assaultive behaviours in a domestic relationship which resulted in his participation in the New Start program which he was said to have completed successfully at some point in the probationary period of May 2014 to November 2016, which, as I noted previously, overlaps with his criminal conduct in this case.

• I respectfully disagree with the Pre-Sentence Report author who suggested S.F.M. might benefit from the same program as part of the disposition in this case.

In my view, a different approach to counselling for S.F.M. will be necessary to assist him in his rehabilitation. • This same history would suggest that any sentence imposed must reflect not only the general deterrence that domestic violence offences should attract, but one that will serve to deter S.F.M. from re-offending. [ 63 ] I think it is important to point out at this juncture that S.F.M. is entitled to maintain his innocence as he has, and I respect that he does not acknowledge the criminality of his conduct, though the court has found otherwise. That is his right.

This is not an aggravating factor, but neither does he have the benefit of mitigation that results from the admission of responsibility. [ 64 ] The challenge in arriving at a fit and proper sentence in a case of this nature is how to balance the objectives set out in s. 718 to appropriately respect the fundamental principle of providing for the protection of the public. [ 65 ] Sexual violence in our society has consistently attracted judicial statements that the most appropriate response is the imposition of lengthy periods of incarceration. The Supreme Court of Canada in R. v.

Friesen , 2020 SCC 9 , sent a strong message that sexual offences against children or violent crimes that wrongfully exploit children's vulnerability and cause profound harm to children, and their families or communities, must be addressed by increased periods of incarceration. [ 66 ] I have already pointed out that s. 718.2(a)(ii) deems it to be an aggravating circumstance where evidence that the offender, in committing the offence, abused the offender's intimate partner or a member of the victim or the offender's family. This of course, as I've indicated, applies in the current case.

Courts have frequently held that the nature of spousal violence calls out for sentences that stress denunciation and general deterrence. [ 67 ] The analysis of the prosecution rests on these principles. In its pre-sentence brief, as I’ve pointed out previously, the Crown submitted that there are no mitigating factors in the present case.

Further it was submitted that support from individuals who know the accused "… in his public life is of limited value when considering the intensely private nature of the offences before the court." [ 68 ] I agree with the dichotomy that exists between a person who lives an apparently law-abiding and positive public life while committing serious crimes in the privacy of their own home.

That is one of the hallmarks of domestic violence that makes it so difficult to detect, that hinders reporting of complaints, and ultimately provides significant challenges the courts in sentencing. [ 69 ] In relation to this latter point, there many cases where the courts have taken the position that it is because of the public face of an offender that they are able to commit their crimes with the degree of impunity. [ 70 ] Having said that, there is also the reality that the offender, such as S.F.M., will return to live in the community and so there is an obligation on the court to consider the indicators for his successful reintegration to society following a period of incarceration.

That obligation rests on the court and is created by s. 718(

e) of the Code . In saying this, I am not suggesting that it is the court's role to consider factors that are more properly dealt with as part of early release programs within the correctional statutory and regulatory regimes.

Rather, it is to decide where an offender should be placed on the spectrum of being an excellent candidate for rehabilitation and reintegration to one who is irredeemable. [ 71 ] With respect, I disagree with the prosecution's conclusion that there are no mitigating circumstances. [ 72 ] S.F.M.'s criminal conduct defines a deeply flawed part of his world view, but it does not diminish the many other positive things he has done with his life. In a simplistic analysis, his teen years were difficult and could easily have resulted in his commitment to an antisocial lifestyle.

Instead he employed his intelligence and energies to adopt a prosocial lifestyle. He pursued adult education and achieved good results. He attracted some acclaim for his successes at the NSCC and with Bursity. His references and comments in the Pre-Sentence Report shows that his public face was not driven by self aggrandizement or some level of narcissism but rather as a person who sought to assist those in the black community that he felt he could assist by using the experiences he went through on his journey from that of a maladapted teen to a successful student and entrepreneur.

As I noted earlier these volunteer activities predate his conflicts with the law. [ 73 ] So, he has tools that he can call on to lead a constructive life. In this effort he will also have the support of family and friends in the community to assist him. [ 74 ] There are also indicators that, irrespective of whether he has insight to the criminality of his conduct, he has at least reacted to his apprehension appropriately. At the time leading up to the criminal charges being brought he could not accept that his marriage was over and persisted in contacting the complainant, despite being warned by Ms.

K. repeatedly that his pleas for reconciliation were unwelcome. [ 75 ] However, as discussed, he has complied with the conditions of his court-ordered release for a period of four years. That is consistent with a person who apprehends their jeopardy and has the capacity to benefit from correctional measures whether in prison or in the community. [ 76 ] Further, he did not stop pursuing positive lifestyle choices even in the face of possible significant negative consequences for his conduct.

That is, he continued his pursuit of education, entrepreneurship and volunteerism in the community until the verdict in this case. He faced his friends and employer by acknowledging the circumstances of his offences and confessing that he had been found guilty. [ 77 ] Looking at his personal history and make up as described in the IRCA and by his friends and family, it is apparent that he has lost a great deal of the life he built for himself. He has also lost the opportunity to be a father to his children. [ 78 ] I have not lost sight of that part of him that committed these offences.

It is a side that the public did not see but which is no

longer hidden. The question is how to use the generally blunt tools of criminal sentencing to address that other person that exists inside him – the one who sought to control, to cajole and to intimidate to have his wife satisfy his desires for sexual pleasure even when she was not truly consenting; that man, who could rationalize his behaviours by framing the relationship in a religious construct, where it was his wife's duty to pleasure him, even when she did not want to.

Impact of Race and Culture Assessment (IRCA) [ 79 ] It is at this point that I think the observations contained in the IRCA provide insight to how these two distinct aspects of his character can co-exist, and what remedy may contribute to addressing that part which puts him before the court. [ 80 ] Let me begin by saying that the IRCA is very detailed and to completely understand its conclusions would require including significant parts of it to be included in this decision. That is not practical.

Instead I will focus on certain observations and recommendations that are especially pertinent to my decision. [ 81 ] As stated in the assessment, the overarching goal of the report is to provide the court with a similar context to the Gladue decision, when the Supreme Court of Canada recognized that there are mitigating social factors and historical circumstances that should be considered when sentencing aboriginal offenders.

The goal of the IRCA writer is to provide the court with a similar framework to explore and contextualize the historical and social realities of the historical African Nova Scotia communities. [ 82 ] In the context of this case, it is meant to provide a review of the impact of S.F.M.'s social cultural and racial identity development within the context of contemporary black male urban worldviews.

As stated at page 6 of the Assessment, S.F.M.'s worldview was shaped within a complex family of origin dynamic, a lack of positive racial and cultural identity development, his commitment to his faith practice and lack of community connections. S.F.M. has developed various adaptive coping skills to avoid negative feelings such as emotional vulnerability.

Initially, S.F.M. can present as defensive; however, from a cultural, race and gender lens such presentation masks the negative emotions to hide from the various psychological harms from adverse childhood experiences to the impacts of exposures to systemic racism which black males encounter daily. [ 83 ] There is much greater biographical detail contained in the assessment than is set out in the Pre-Sentence Report. It describes how S.F.M.'s upbringing was negatively impacted by observing intimate partner violence in his own home as a young child.

Living in Québec took him away from the community of his ancestors who were well known entrepreneurs in Halifax. He only became familiar with that part of this family history when he returned to this area as a young adult. However, as he had been an outsider in the Québec community, he soon found that he was also an outsider in the black community within Halifax. [ 84 ] While living in Québec, his relationship with his mother was very poor and sometimes abusive. He saw his mother as choosing her white male partner and his sister over him.

There was lots of conflict at home and within the schools. [ 85 ] S.F.M. described how, at a young age, he was exposed to various types of pornography which, as the assessor noted, can impact on the cognitive functioning, physical, mental health, sexual attitudes and beliefs of an individual in later years.

Pornography can influence the young person's expectations about sex and can shape sexual practices and later influence how the child will interact with women in his life. [ 86 ] The assessor opined that S.F.M. presents with a core belief through his life to date as being on the outside, or on the periphery of the social, cultural, faith and racial communities of care. He echoes the same sentiment with respect to his family of origin. His worldview and core belief system can present as authoritarian to mask the race-based trauma and adverse childhood experiences he was exposed to at an early age.

This included from age 10 into his mid-20s, daily exposure to pornography as an early influence on the development of his worldview toward sex and gender roles as a young black male. [ 87 ] S.F.M., during his youth, had issues with anger and began to use drugs and involved himself with gang activity. Converting to Islam enabled him to escape the gang culture and to create a more prosocial life path. [ 88 ] The assessor offered some observations in relation to the conflict that existed as between the accused and the victim in this matter.

S.F.M. felt that he would be embraced in the Muslim community but learned that he was still an outsider. While he and Ms. K. shared certain faith practices, they did not share many race or cultural experiences.

They were, in my assessment, from different worlds, from what I saw and heard in this trial and what I have read for today which, as the evidence suggested, made their lives together difficult from the outset of the marriage. [ 89 ] Overall, the assessor noted, at page 18, that S.F.M.: … continues to struggle with affect management and does not have the insight into how to develop this capacity to address the psychosocial harms that continue to impact on his life. [ 90 ] He is also now impacted by his views that since being found guilty of these offences he was obligated to withdraw from his communities of support in the Muslim community and in the Black community. [ 91 ] The assessor summarizes, at page. 25, as follows: In short, the impacts [of] race and culture which present in S.F.M.’s life include: • Historical and contemporary impacts of racialized and intergenerational trauma; • Impacts of Adverse Childhood Experiences; • Impacts of race in education and employment;

• The consideration on the impacts of racial, faith and cultural socialization and • The overrepresentation of [African Nova Scotians] in the criminal justice system. [ 92 ] The assessor concludes that S.F.M. has culturally competent counselling available to him and that he should take advantage of the mentorship and community outreach support that is available to him in the African Nova Scotia community.

In the closing paragraph of the report, at page 26, the author concludes: When framed from a critical race and trauma informed lens, S.F.M.’s life to date has demonstrated resilience; however, his worldview has placed him before the Court.

The impacts of generational systemic racism and internalized racism, manifested through [Adverse Childhood Experiences], "vacant esteem", his strong convictions to his faith have all influenced his worldview and have played a major role in S.F.M.’s life and the charges for which he is being sentenced. [ 93 ] I have been referred by both counsel to the decisions of the Court of Appeal in R. v. Anderson , 2021 NSCA 62 and of the Ontario Court of Appeal in R. v. Morris, 2021 ONCA 680 .

I do not propose to delve into the approaches adopted by these courts in relation to the role that historic injustice and racial discrimination plays in informing the sentencing of S.F.M.. [ 94 ] In my view, the imposition of sentence has always been about taking into consideration all of the factors that influence the commission of an offence. The better the information that is available to the court about an individual's circumstances, the better informed the conclusion of the court can be.

Society has recognized that certain segments of society have suffered unique intergenerational discrimination which may have influenced how and why a person comes into conflict with the law. There is also recognition that historically the courts have not done a particularly good job of understanding the context in which these same offenders arrive before the courts. That is why, for example, Gladue reports are now required – to better inform the sentencing judge.

And that is why an assessment such as I have had the opportunity to review in this matter is so important. [ 95 ] At the same time, it is not appropriate to ignore the level of moral blameworthiness that attaches to S.F.M.'s actions in this case. I will acknowledge that the circumstances of these offences are distinguishable from others in one particular respect. S.F.M. overcame the victim's lack of consent to sexual activity which, of course, themselves are acts of violence, however they were not accompanied by extreme acts of physical violence as we often see.

It was, as I have characterized it, compliance by the victim in response to a form of coercive intimidation. Having regard to the information provided by the assessor, and my observations of the witnesses during the course of the trial, how and why this occurred in this manner becomes easier to comprehend. It does not however make the conduct less blameworthy.

Conclusions [ 96 ] It is interesting to note that both counsel have suggested penalties that would have S.F.M. under the supervision of correctional authorities for a period of five years, although in very different ways. [ 97 ] I have concluded that the prosecution recommendation has inadequately accounted for the rehabilitative prospects of S.F.M.. I also feel that it does not give proper weight to the impact of the IRCA information.

I do not accept that a period of five to six years of incarceration properly responds to the circumstances of both the offences and the offender. [ 98 ] A sentence as recommended by counsel for S.F.M. of two years plus three years' probation would provide for community- based monitoring and counselling, which is always an important option to consider where the prospects for an offender to successfully reintegrate to society appear reasonable. I am not convinced that a sentence of greater than two years' imprisonment is required to effect specific deterrence.

However, I cannot accept this recommendation either having regard to the circumstances of these offences and of this offender. It would not adequately speak to the denunciation and general deterrence objectives of sentencing in crimes of domestic violence. [ 99 ] Both counsel and S.F.M. recognize that the sentence imposed must involve incarceration in a federal institution.

Other than six days spent on remand, S.F.M. has never been in a prison, provincial or federal, so it will be a significant jump for him. [ 100 ] It is clear that S.F.M. needs psychological counselling to address that part of him that puts him before the court.

His attempts to self educate himself to address issues of anger and social isolation have not been successful and so I am strongly of the view that he needs to be properly assessed and counselled to ensure that he does not repeat this behaviour but instead resumes making positive contributions to his community, but without anti-social behaviours in his private life or otherwise. [ 101 ] The Pre-Sentence Report describes the types and duration of available counselling for persons convicted of sexual offences.

It advises that moderate to high intensity programs appropriate for high-risk offenders are available, primarily, within Federal institutions operated by the Correctional Service of Canada. I do not have the benefit of an assessment indicating whether S.F.M. would need this type of counselling or other types of counselling such as anger management. Based on the information that has been provided counselling, if needed, would take two to three years to complete.

The sentence to be imposed should reflect this fact. [ 102 ] In assessing the penalties and applying the totality principle, I have concluded that the sentences shall be made concurrent one to the other. Conclusions [ 103 ] In relation to Count 1: 1. he between the 23 rd day of September 2013 and the 25 th of August, 2017 at, or near Halifax, in the County of Halifax in the Province of Nova Scotia, did unlawfully commit a sexual assault on [S.K.], contrary to

Section 271 of the Criminal Code .

[ 104 ] The sentence of the court is three years and three months in a federal institution. [ 105 ] In relation to Count 2: 2. AND FURTHER that he between the 1 st day of September and the 30 th day of September 2016 at the same place aforesaid, did unlawfully commit a sexual assault on [S.K.] contrary to

Section 271 of the Criminal Code . [ 106 ] The sentence of the court is 18 months to be served concurrently with the sentence imposed in relation to count 1. [ 107 ] In relation to Count 4: 4. AND FURTHER that he between the 23 rd day of September 2013 and the 25 th day of August 2017 at the same place aforesaid, did unlawfully assault [S.K.], contrary to

Section 266 of the Criminal Code . [ 108 ] The sentence of the court is 30 days concurrent to the sentences imposed for counts 1 and 2. Ancillary Orders [ 109 ] In addition to the period of incarceration, there are ancillary orders: 1. S.F.M. has been convicted of two offences contrary to s. 271 of the Code which are designated offences under s. 490.011(1) (

a) of the Code , which requires that I make an order that he comply with the provisions of the Sexual Offender Information Registration Act for life. (see, ss. 490.012 and 490.013(2.1) of the Code .) 2. S.F.M. is subject to a mandatory prohibition order made pursuant to s. 109 of the Code .

He will be prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. (Per 109(2)(b)); and Any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance for a period of ten years . 3. Offences contrary to s. 271 are primary designated offences under s. 487.04. Therefore S.F.M. is ordered pursuant to s. 487.051 of the Code to provide a DNA sample. 4.

Pursuant to s. 743.21(1) there will be an order prohibiting the S.F.M. from communicating, directly or indirectly, with [S.K.] during the custodial period of the sentence, except through a lawyer. Victims of Crime Fund Surcharge [ 110 ]

Section 737 of the Code sets a fine surcharge for an indicatable offence where no other fine is imposed of $200.00 per offence.

That may be waived by the court in cases where to make the order would cause undue hardship, which the Code specifies is not automatically assumed to be the case because the offender is ordered to serve a prison sentence. [ 111 ] In this case, due to the length of the incarceration and no indication as to when he will be able to re-establish himself as self- sufficient living in the community it is not possible to determine what would constitute a "reasonable time" in which to pay a victim of crime fund surcharge.

I did note his financial circumstances in the Pre-Sentence Report, the employment insurance benefits that depend upon his availability for work, so that will no longer be available to him, and he has debt. In the consequence of these facts, I am prepared to waive the imposition of the victim of crime fund surcharge. Duncan, ACJ.