Darren J. Hogan

Following convictions after trial for multiple counts of sexual assault and sexual interference against young children in a position of trust, the court determined the appropriate global sentence and addressed a constitutional challenge concerning pre‑sentence custody credit.

The offender argued that applying the Truth in Sentencing Act to limit enhanced credit would violate s. 11(i) of the Charter because the offences were committed before the Act came into force.

The court held that pre‑sentence custody constitutes “punishment” for the purposes of s. 11(i) and that retroactive application of the Act would increase the punishment by eliminating the then‑usual practice of granting 2:1 credit.

The relevant provisions of the Act were therefore declared of no force and effect as applied to the offender.

A global sentence of seven years’ imprisonment was imposed with credit for pre‑sentence custody at a 2:1 ratio.

The accused, a personal care attendant at a long-term care facility, was charged with sexual assault and sexual exploitation of two elderly female residents with advanced dementia.

The Crown proceeded by indictment on four counts arising from two separate incidents in December 2011.

The accused was acquitted on three counts but convicted on one count of sexual assault.

The court found that while the Crown failed to prove direct penile contact as required for the sexual exploitation charge, the conduct constituting the sexual assault—allowing himself to be undressed while caring for a naked resident with his genitals in close proximity to her face—violated the resident's sexual integrity and constituted sexual assault under the objective test established in R. v. Chase.