Court of Appeal decides sentence ‘demonstrably unfit’ in sex assault

Law360 Canada (April 30, 2024, 12:55 PM EDT) --

John L. Hill

Many criminal defence lawyers think in terms of winning and losing. Yet, sometimes, there is a grey area where either term is inappropriate. The case of R. v. S.W., [2024] O.J. No. 1224 is just such a case.

S.W. was found guilty of sexually assaulting a woman in June 2019. S.W. and the complainant had been in an intimate relationship since January. The complainant had agreed to a sleepover at S.W.’s home. That day, June 23, 2019, S.W. had consumed 13 bottles of beer. The complainant was in bed, almost asleep, when S.W. entered the room and had sexual intercourse without protection for five to 10 minutes. He pulled his trousers up and left the bedroom but repeated the act three more times in the ensuing two hours. The complainant faked being asleep and did not scream out for fear of waking S.W.’s three children, a 12-year-old and 10-year-old twins.

The complainant packed her bags and left to stay with her father the next day. She had text messages with S.W. At first, S.W. denied the assaults or claimed to have no memory of them. Eventually, he admitted that he had “failed” and felt “horrible” about it.

S.W. was charged with sexual assault and remained on bail for three years and 10 months without breaching conditions. He remained employed as a fast-food restaurant manager and was considered a valued 16-year employee. He voluntarily attended counselling while on bail.

S.W. went on trial as a first-time offender. The trial was brief. S.W. opted not to give evidence. The trial judge said that if it had not been for the text messages, he would have found S.W. not guilty. The trial judge considered a pre-sentence report and a victim impact statement and imposed a two-year less-a-day conditional sentence.

No Sexual Offender Information Registration Act (SOIRA) order was imposed because the Supreme Court had, just before sentencing, declared the mandatory provisions of the Act were unconstitutional (R. v. Ndhlovu, 2022 SCC 38), and Parliament had not yet enacted alternative guidelines. The trial judge considered that S.W. did not present a risk of reoffending. Counsel at trial submitted that the appropriate sentencing range was eighteen months to three years.

The judge’s review convinced him that the proper range would span from a conditional sentence to a penitentiary term. The trial judge determined that “exceptional circumstances” were mitigating against a jail term, although he did not specify what those circumstances included.

Ordinarily, an appellate court will not interfere with a sentencing decision unless it can be shown the sentence is demonstrably unfit or an error in principle has been made (R. v. Friesen, 2020 SCC 9), even if the appellate court would have made a different disposition (R. v. W. V., 2023 ONCA 655).

However, the Supreme Court has held in R. v. Lacasse, 2015 SCC 64, that where a sentence “departs significantly and for no reason from the contemplated sentences,” it may indicate that it is demonstrably unfit. This notion was reinforced in R. v. Parranto, 2021 SCC 46.

The Court of Appeal found that the sentence was demonstrably unfit in this case. A conditional sentence is allowable only if the sentence imposed is less than two years. In R. v. R.S., 2023 ONCA 608, a conditional sentence for a violent sexual assault was set aside, and a penitentiary term of three to five years was deemed appropriate.

The Court of Appeal held that the old Bradley/Smith distinction was no longer applicable. R. v. Bradley, 2008 ONCA 179, suggested a range of three to five years where the victim was non-intimate; the R. v. Smith case (2011 ONCA 564) said that where the victim was a spouse or former spouse, the range was 21 months to four years. R. v. A.J.K., 2022 ONCA 487, held the Bradley/Smith distinction was a sentencing artifact and that all sexual assaults are severe acts of violence regardless of the degree of intimacy.

In this case, the Crown sought a three-year penitentiary placement. The court agreed this was just. However, it was not a total loss for S.W. The court credited him for the nine months of the conditional sentence he had already served out of jail. Since no SOIRA decision had been made that could have saddled S.W. with a 20-year registration, there was no basis to appeal that omission.

S.W. will be off to a federal facility to serve the term imposed by the Court of Appeal. He may consider he lost in the appellate court. However, the sentence for sexual assault is at the lower end of the sentencing range, and he served a good portion while non-incarcerated. He will not have to face a SOIRA registration.

Sometimes, winning is doing better than what could have been the case.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.

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