Lindsay Taylor Lubberdink

The Crown appealed a sentence for sexual assault in which the respondent received a conditional discharge with probation terms including six months of house arrest and electronic monitoring.

The court held the appeal was not moot despite completion of the sentence because entry of a conviction carried continuing consequences.

Applying sentencing appeal principles, the court found the sentencing judge unlawfully used probation as a disguised conditional sentence and gave undue weight to immigration-related collateral consequences, producing a demonstrably unfit sentence.

The appeal was allowed, a conviction was entered, and a four-month conditional sentence was imposed but stayed because the respondent had already completed an equivalent community-based sentence.

The court separately declined to make a SOIRA order under s. 490.012.

R.D. was found guilty by a jury of three counts of sexual assault, three counts of sexual interference, and one count of invitation to sexual touching against N.W., a young child and his de facto stepdaughter.

The court considered aggravating factors including abuse of trust, the victim's young age (6-7), multiple instances of abuse, and the offender's prior criminal record.

R.D. denied the offences and expressed no remorse.

Emphasizing denunciation and deterrence, and guided by R. v. Friesen, the court imposed a global sentence of 5.5 years imprisonment, reduced to an effective sentence of 4 years after accounting for pre-sentence custody credits, including a substantial Duncan credit for harsh conditions at Maplehurst Correctional Complex.

Ancillary orders were also imposed.

The Crown sought to admit a video-recorded statement of the complainant, N.W., into evidence at trial under s. 715.1(1) of the Criminal Code.

The complainant was six years old at the time of the alleged sexual offences and made the statement seven years later when she was 13.

The respondent resisted the admission, arguing the statement was not taken within a "reasonable time." The court dismissed the Crown's application, finding that a seven-year delay was too long to ensure an accurate and early account, and that the complainant, now 18, was capable of giving viva voce evidence, thus not fulfilling the primary purposes of the statutory provision.