Last fall, in imposing a 90-day intermittent jail term on 57-year-old James Garrett for a sexual assault that occurred in 2010, Ontario Court Justice Melanie Dunn said while Garrett had led an exemplary life for more than 50 years and was at little to no risk to re-offend, this must be balanced with the act of non-consensual sex that occurred in the victim's home and the significant effect it had had on her.
Dunn may have thought she had done a fine job of balancing things but neither Garrett nor the Crown did.
Garrett appealed his conviction and the Crown, not to be outdone, appealed his sentence.
And it now turns out the Court of Appeal for Ontario didn't think it was a fine balancing act either.
As The Sault Star reported this week, a three-judge panel of the appeal court dismissed Garrett's appeal of his conviction and allowed the Crown's appeal of sentence.
In doing so, it set aside Dunn's sentence and imposed imprisonment for 18 months. It allowed to stand Dunn's order that Garrett be placed on two years probation once he completes his sentence and that he be registered as a sex offender for 20 years.
The court agreed with the Crown that a 90-day sentence to be served on weekends with house arrest and a curfew covering the rest of the week just didn't rate as a sentence for what once would have been more appropriately termed rape, rather than the benign offering of sexual assault.
Dunn had found Garrett not guilty of sexual assault causing bodily harm, but guilty of the lesser included offence of sexual assault.
I have never agreed with rape being replaced in the Criminal Code of Canada with the term sexual assault. I think it should have remained part of the package of sexual offences, rather than just being a heading in the Criminal Code that refers you to the heading Sexual Assault in another section.
Rape had a punch to it. You knew immediately how serious the charge was, that an unwilling person had been penetrated sexually.
This, two courts have decided, was what happened in the case at hand.
But the presiding judge at trial didn't seem to see it as requiring a sentence as serious as the crime, something the appeal court had no trouble recognizing.
Dunn did say denunciation and deterrence are significant factors in the sentencing and call for a term of imprisonment, but then she questioned what amount of time would send the message that that type of conduct would not be tolerated.
Considering she also said that non-consensual sexual intercourse under any circumstances constitutes a profound violation of a person's dignity, equality, security of the person and sexual autonomy, it is hard to figure out how she came up with such a mild sentence as 90 days to be served on weekends.
Garrett appealed his conviction on the basis Dunn had made two errors but neither argument was accepted by the appeals panel.
In the sentence appeal, both parties agreed the sentence was outside the usual range of two to three years imprisonment. The Crown said the case represented a classic date-rape scenario and warranted a higher sentence while Garrett argued the factors considered by the trial judge supported a lenient sentence outside of the usual range.
The appeals court agreed the sentence was outside the usual range, adding it was manifestly unfit.
It did not see the circumstances as unique, as Dunn had.
Where Dunn had commented that the date-rape offences which attract sentences of two to three years involve moral blameworthiness, gratuitous violence, demeaning behaviour or contemptuous disregard for the feelings and personal integrity of the victim, the appeal court said the complainant repeatedly told Mr. Garrett to stop and he did not, which in itself constitutes demeaning behaviour and contemptuous disregard for the personal integrity of the complainant and engages the predominant sentencing principles of denunciation and deterrence.
It added the complainant's initial consent to kissing did not render less serious the subsequent non-consensual intercourse.
Chalk one up for the good guys and another for women as a group.
It is time the courts got serious when considering rape offences. Pardon me, make that sexual assaults.
In regard to the original sentence levied on Garrett, convicts allowed to do time on weekends get credit for three days, not two, as they check in Friday night and check out Sunday night. Therefore he actually would have served only 60 days. But wait. No one serves a full sentence. They are required to serve only two-thirds. This cuts it back to 40 days. But wait. There is good time still to come and, to think the impossible, could there even be day passes on weekends?
He could have been back on the streets in 20-25 days.
Extrapolate all this to the 18-month sentence and he could be out in six months and on day passes even sooner.
A big thing these days is Post Traumatic Stress Syndrome which is affecting not only those in our armed services who take tours of duty overseas but also some in civilian roles such as police, fire and the paramedic field.
Considering the testimony of those who have been subjected to sexual assault, the lasting affect it has on them, it would not seem out of order to apply the term PSTD to them.
When victims of sexual assault are handed a sentence that can last a lifetime, something more than 90 days has to be handed the perpetrators.
Somehow the word has to get out that No does mean No.
I realize many males will argue that during the seduction process, if I can call it that, the word may come up early on but they know the woman doesn't mean to call and end to things.
I can agree with that assessment. There will be times like that.
But the problem is that many of them don't recognize or simply ignore when the course of action has changed, when the woman says No and means it.
I really don't think the sentence imposed by the appeal court in the Garrett case is meant as a deterrence to him. I agree with Dunn that he probably is at little or no risk to re-offend.
I look at it as being a more appropriate punishment for the crime.
But what I also would hope is that the publicity surrounding the case would bring home to the men out there on the dating scene what their fate will be if , in a sexual encounter, they carry on beyond what is agreed to by the woman.