WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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).

(2) MANDATORY ORDER ON APPLICATION — 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.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: 2020-04-29

Court File No.: Brampton 3111 998 18 11123

Parties

Between:

Her Majesty the Queen

— and —

D.D.

Before: Justice G.P. Renwick

Written Submissions Received on: 10, 15, 21, 27, and 28 April 2020

Reasons for Judgment Released on: 29 April 2020

Counsel

D. Galluzzo — counsel for the Crown

D. Gravesande and C. Fearon-Forbes — counsel for the Defendant D.D.

RENWICK J.:

INTRODUCTION

[1] Following a six-day trial, I found the Defendant guilty of sexual assault and not guilty of sexual interference and invitation to sexual touching on 14 February 2020.

[2] The sentencing hearing was adjourned from 26 February to 30 March 2020 at the Defendant's request. Although counsel did not request a pre-sentence report, counsel wanted time to prepare for the sentencing hearing.

[3] By 30 March, the World Health Organization had already declared that a novel coronavirus (now referred to as "COVID-19") had become a global pandemic. The Chief Justice of the Ontario Court of Justice understandably suspended the operation of most courts in response to public health calls for "social distancing" and other isolation measures to stop the spread of the virus.

[4] On 27 March 2020, in anticipation of the sentencing hearing being further delayed, I wrote to both parties to suggest a written sentencing hearing. Counsel agreed to the timelines I had set and gave written submissions in support of their respective positions. Shortly after receiving the written sentencing submissions, I wrote to counsel again, to clarify that they were also entitled to submit any other materials (beyond the sentencing submissions), upon which they wanted the court to rely in sentencing the Defendant.

[5] The prosecutor did not provide any other materials. The Defendant provided four character letters.

[6] When considering the materials that had been submitted, I recognized that there was a mandatory minimum sentence for a sexual assault committed upon a person under 16 years of age. In this case, the Defendant was found guilty of a sexual assault that was alleged to have been committed between September 2016 and September 2017. The complainant testified that she was born in November 2001. This evidence raised the possibility that the mandatory minimum sentence might apply. Accordingly, I contacted counsel on 27 April 2020 to draw the mandatory minimum sentence to their attention and to seek their input.

[7] Both parties agreed that the evidence of when the sexual assault took place was equivocal, as was the complainant's age at that time. Also, the parties agreed that it was not proven beyond a reasonable doubt that the complainant was under the age of 16 at the time of the offence.

[8] As a result, I find that it has not been established beyond a reasonable doubt that the complainant was less than 16 years old when this offence occurred and the mandatory minimum sentence within s. 271(b) of the Code does not apply.

[9] For the purpose of the record, the following items are exhibits on the sentencing hearing:

i. Exhibit 1 – Email correspondence from the court to counsel, 27 March 2020;

ii. Exhibit 2A – Prosecutor's Sentencing Submissions, received 10 April 2020;

iii. Exhibit 2B – Defendant's Sentencing Submissions, received 15 April 2020;

iv. Exhibit 3 – Email correspondence from the court to counsel, 16 April 2020;

v. Exhibit 4A – Letter of Donna Campbell, received 21 April 2020;

vi. Exhibit 4B – Letter of Nicole Douce, received 21 April 2020;

vii. Exhibit 4C – Letter of Peter-John Ebanks, received 21 April 2020;

viii. Exhibit 4D – Letter of Donna McIlroy-Hamelin, received 21 April 2020;

ix. Exhibit 5 – Email correspondence from the court to counsel, 27 April 2020;

x. Exhibit 6A – Email correspondence from the prosecutor, 27 April 2020; and

xi. Exhibit 6B – Email correspondence from defence counsel, 28 April 2020.

[10] The prosecutor seeks a reformatory jail sentence of 90 days plus three years of probation and a DNA order and sex offender registration for 10 years.

[11] The Defendant seeks an absolute discharge with a peace bond for 12 months.

DISCUSSION

[12] On 02 April 2020, the Supreme Court of Canada released its decision in R. v. Friesen, a case involving horrific sexual violence and degradation. The prosecutor relies on this decision in its written submissions.

[13] Friesen will have a lasting impact on sentencing in child sexual assault cases. Our highest court has sought to underscore the need of sentencing decisions to recognize the gravity of sexual violence against children and to give meaning to "a larger shift, as society has come to understand that the focus of the sexual offences scheme is not on sexual propriety but rather on wrongful interference with sexual integrity."

[14] This decision has re-ordered the calculus in sentencing child sexual predators:

This emphasis on personal autonomy, bodily integrity, sexual integrity, dignity, and equality requires courts to focus their attention on emotional and psychological harm, not simply physical harm. Sexual violence against children can cause serious emotional and psychological harm that, as this Court held in R. v. McCraw, [1991] 3 S.C.R. 72, "may often be more pervasive and permanent in its effect than any physical harm" (p. 81).

[15] The harm caused by sexual assault is heightened for children:

These forms of harm are particularly pronounced for children. Sexual violence can interfere with children's self-fulfillment and healthy and autonomous development to adulthood precisely because children are still developing and learning the skills and qualities to overcome adversity. For this reason, even a single instance of sexual violence can "permanently alter the course of a child's life". As Otis J.A. explained in L. (J.-J.), at p. 250:

[TRANSLATION] The shattering of the personality of a child at a stage where [the child's] budding organization as a person has only a very fragile defensive structure, will result -- in the long term -- in suffering, distress and the loss of self-esteem.

[16] The Supreme Court noted that the injury to a child is not the only cost of sexual assault:

The ripple effects of sexual violence against children can make the child's parents, caregivers, and family members secondary victims who also suffer profound harm as a result of the offence.

Beyond the harm to families and caregivers, there is broader harm to the communities in which children live and to society as a whole. Some of these costs can be quantified, such as the social problems that sexual violence against children causes, the costs of state intervention, and the economic impact of medical costs, lost productivity, and treatment for pain and suffering (see Hajar, at para. 68; R. v. Goldfinch, 2019 SCC 38, at para. 37; United Nations, Report of the independent expert for the United Nations study on violence against children, U.N. Doc. A/61/299, August 29, 2006, at p. 12).

[17] Compounding the situation, sexual assault undermines gender-equality:

Sexual violence also has a disproportionate impact on girls and young women. Like the sexual assault of adults, sexual violence against children is highly gendered. The "intersecting inequalities of being young and female" thus make girls and young women especially vulnerable to sexual violence. In 2012, 81% of child and youth victims of police-reported sexual offences were female and 97% of persons accused of such offences were male (Police-reported sexual offences against children and youth in Canada, 2012, at pp. 10 and 14). Sexual violence against children thus perpetuates disadvantage and undermines gender equality because girls and young women must disproportionately face the profound physical, emotional, psychological, and economic costs of the sexual violence (see R. v. Osolin, [1993] 4 S.C.R. 595, at p. 669; Goldfinch, at para. 37). Girls and young women are thus "still punished for being female" as a result of being disproportionately subjected to sexual violence (see The Hon. C. L'Heureux-Dubé, "Foreword: Still Punished for Being Female", in E. A. Sheehy, ed., Sexual Assault in Canada: Law, Legal Practice and Women's Activism (2012), 1, at p. 2).

[18] There is also a recognition in Friesen that children from vulnerable or marginalised groups are victimized disproportionately.

[19] An appropriate sentence will take into account the wrongfulness (moral blameworthiness) and harmfulness (the impact) of sexual assault against children.

[20] The Friesen decision aims to provide trial judges with guidance beyond characterization of sexual offending against children:

It is not sufficient for courts to simply state that sexual offences against children are serious. The sentence imposed must reflect the normative character of the offender's actions and the consequential harm to children and their families, caregivers, and communities (see M. (C.A.), at para. 80; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at para. 35). We thus offer some guidance on how courts should give effect to the gravity of sexual offences against children. Specifically, courts must recognize and give effect to (1) the inherent wrongfulness of these offences; (2) the potential harm to children that flows from these offences; and, (3) the actual harm that children suffer as a result of these offences. We emphasize that sexual offences against children are inherently wrongful and always put children at risk of serious harm, even as the degree of wrongfulness, the extent to which potential harm materializes, and actual harm vary from case to case.

[21] It will be helpful at this point to consider the specific features of this offence and this Offender in order to determine an appropriate sentence.

Mitigating and Aggravating Features of this Offence

[22] At trial, I found that the Defendant had been a crisis counselling caseworker of the complainant's leading up to the sexual assault. Although their formal relationship had ended, the Defendant offered to take the complainant to an amusement park. When they learned that the park was closed, the Defendant took the complainant, his daughter, and his niece to an amusement arcade and then he had made several stops before returning with the girls to his home. The assault involved the Defendant having touched the complainant outside of a car wash by putting his hands on her waist for 15-30 seconds while calling her "sexy" and remarking that she had a "nice shape."

[23] There are few mitigating features:

i. The offence was brief in duration (15-30 seconds);

ii. The violation of the complainant's sexual and bodily integrity caused no physical injury;

iii. The sexual touching occurred over the complainant's clothing;

iv. The Defendant has no prior criminal record; and

v. The Defendant has a supportive family and community.

[24] There are several aggravating features:

i. The Offender was in a position of trust – he had been a crisis counselling caseworker of the complainant's;

ii. The offence was perpetrated by an adult upon a child;

iii. The sexual touching involved comments that sexualised a teenager. The Defendant told the complainant that she had a "nice shape" and she was "sexy";

iv. The complainant is from an historically disadvantaged group (she is an African-Canadian), who had been suffering a mental health issue when she met the Defendant; and

v. The offence had a significant psychological effect upon the complainant for an extended period of time (approximately one year), until she reported it in September 2018.

The Offender's Background and Character

[25] Although the Defendant did not offer a statement or allocution, there is some evidence of his general character and reputation in our community.

[26] The Defendant's sentencing submission gives the following introduction of him:

Mr. D. is 57 years old with a date of birth of March 9, 1967. He has 3 children, one of whom is deceased. He presently resides with his spouse of 12 years, his 11 year-old daughter, his five year-old son and his foster son, who is 27 years old and who has been living with the family since he was 12 years old.

[27] The Defendant is described in the character letters filed on his behalf as "selfless," "a man of God … kind-hearted…generous," "thoughtful, hardworking … always very giving of his time," and "sincere, intelligent and kind."

[28] During the trial, the Defendant was attentive, punctual, well-dressed, and respectful. He appears by all external circumstances to exemplify the traits used by his supporters to describe him.

[29] I accept that the Defendant has led a challenging but positive life and he has contributed to our community in many ways until this offence. The Defendant is a family-man with a stable work history. According to his character references, the Defendant is spiritual, well-liked, and someone upon whom one can count for support. Unsurprisingly, the Defendant has no prior criminal history.

DETERMINING AN APPROPRIATE SENTENCE

[30] Some believe that determining an appropriate sentence is more art than science. Support for this view may be found in R. v. Lacasse, where the Supreme court held that:

The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision.

[31] The fundamental purpose of sentencing as expressed in section 718 of the Criminal Code (R.S.C. 1985, c. C-46) is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation, deterring the offender and other persons from committing offences, separating offenders from society, where necessary, assisting in rehabilitating offenders, providing reparation for harm done to victims or to the community, and promoting a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community.

[32] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence. The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender.

[33] In R. v. Hamilton and Mason, Justice Doherty of the Ontario Court of Appeal stated:

The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence…

The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime.

[34] The Court quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v. Priest:

The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.

[35] Section 718.1 of the Code ensures that proportionality is the fundamental principle of sentencing. However, proportionality is not the sole principle to be considered. A sentence should be similar to those imposed on similar offenders for similar offences.

[36] In the circumstances of this case, where the parties are at opposite ends of the sentencing spectrum, it is trite to note that s. 718.2 of the Code requires that "an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances" and "all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders." Obviously, as a sentencing tool, imprisonment is to be used only as a last resort when required by the circumstances of the crime and the background of the perpetrator.

[37] Our Supreme Court has instructed that section 718 requires a sentencing judge to consider more than simply denunciation and deterrence. The court must also consider the restorative goals of repairing the harms suffered by the complainant and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender. Although the rehabilitation of the Defendant is a much reduced consideration in the overall sentencing calculus in this case, it is still a factor I must consider.

[38] The Defendant seeks one of the most lenient outcomes after a finding of guilt (an absolute discharge and a peace bond), while the prosecutor seeks a short period of incarceration. Although various cases were presented by the parties to justify their submissions, with the exception of Friesen, I did not find the submitted cases helpful.

[39] I have considered and rejected the submission for an absolute discharge. Though it may well benefit the Defendant to receive a discharge, for at least two reasons it is not in the public interest to impose any form of discharge in this matter.

[40] A discharge would not appropriately denounce the Defendant's conduct, nor would it deter other like-minded individuals from engaging in similar behaviour. As Friesen makes clear, addressing the harm caused by this offence requires a meaningful sentence.

[41] Respectfully, this is not the most minor of sexual offences against a child, nor is the Offender in the most favourable circumstances. The Defendant was a middle-aged man in a position of trust and authority over an impressionable, emotionally-troubled teenaged girl. He abused his position and the trust inherent in how he came to know the complainant by touching her in a way that was clearly wrong, that caused her and her mother emotional upset, and he has failed to accept responsibility for this offence.

[42] Even a conditional discharge and probation would fail to send the message recently re-iterated by the Supreme Court that the sexual assault of minors by persons in positions of trust is an egregious violation of community norms, parental confidence, and a child's autonomy and bodily integrity. I leave it to others to determine when a discharge is appropriate for sexual offenders of children, but given all of the circumstances and the prevalence of this offence in our region, a discharge is not appropriate for this offence.

[43] The court heard evidence about the effects of this offence. The complainant was uncomfortable and it bothered her for many months until she reported it to school authorities. Her mother testified that the complainant withdrew from counselling as a result of this offence.

[44] On the basis of the evidence and judicial understanding of the effects of this type of offence, I conclude that it is reasonable to expect that the complainant has and will experience shame, embarrassment, unresolved anger, a reduced ability to trust others, and fear that people could and would abuse her body. The complainant, who, according to the evidence I accepted, suffered body image issues at the time, may well carry a sense of shame or a negative body image from this offence for several years to come.

[45] Although the registering of a conviction is generally a significant sanction for a first offender, I find that a suspended sentence and probation would not meet the goals of denunciation and deterrence in this case.

[46] The Defendant was not a young man. Over the course of their relationship, on more than one occasion the Defendant had held the complainant's hand, he had requested hugs, and on the day in question things had progressed to the point where the Defendant made sexualised comments and he assaulted the complainant in a surprising and unprovoked way. In finding the Defendant guilty, I specifically held that the complainant felt uncomfortable at the arcade by the extended hug of the Defendant, while standing in between his open legs as he sat in a raised bar-stool. Although there is no evidence that the Defendant was aware of the effect of his conduct on the complainant, he was certainly not blind to the reality that he was a grown man in the company of a pubescent female who was under his supervision at the time. While not unlawful, it is apparent in our society that adults do not usually seek repeated physical contact or affection from teenagers who are unrelated to them.

[47] That said, I do not propose to sentence the Defendant because his behaviour may fairly be characterized as "creepy." Rather, the Defendant's conduct must be viewed in its complete context (his age relative to the complainant's, his prior professional relationship with the complainant, the position of trust he occupied by virtue of his status as her chaperone that day, the presence of two other female children who might have viewed the sexual assault, and the vulnerabilities of the complainant, the general nature of which would have been known by the Defendant).

[48] The words and actions of the Defendant cannot be minimised as some misguided attempt to bolster the complainant's self-esteem. Despite the age of the complainant (which may not have been obvious to someone unfamiliar with her), an on-looker observing the sexual assault may well have thought that the Defendant was on a date. His behaviour and conduct was not only the antithesis of what one would expect of an adult taking care of another person's teen-aged child, it was pernicious.

[49] Moreover, the Defendant did not plead guilty, he has not expressed any remorse for this offence or the harm caused to the complainant, nor is it clear that he accepts any responsibility for his crime. These important mitigating factors are completely absent. And while these are not aggravating factors and the Defendant ought not to be penalized for exercising his fullest enjoyment of the presumption of innocence, he cannot expect the benefit of a sentence that would be otherwise reduced following a guilty plea.

[50] The Defendant has high moral culpability and there is a need for both specific and general deterrence of this behaviour. For all of these reasons, I have determined that a short-sharp period of incarceration is an appropriate sentence for this Offender.

The COVID-19 Pandemic

[51] Several Ontario courts have already considered what, if any, effect the global pandemic should have in fixing a fair sentence: R. v. Dakin, [2020] O.J. No. 1749 (C.J.) per C. Applegate J.; R. v. Hearns, 2020 ONSC 2365, [2020] O.J. No. 1648 (S.C.J.) per R. Pomerance J.; R. v. O.K., [2020] O.J. No. 1600 (C.J.) per L.C. Pringle J.; R. v. Kandhai, 2020 ONSC 1611, [2020] O.J. No. 1254 (S.C.J.) per D.E. Harris J.; R. v. Laurin, [2020] O.J. No. 1266 (C.J.) per K. Crosbie J.; R. v. McConnell, [2020] O.J. No. 1514 (C.J.) per R.F. Kwolek J.; R. v. McGrath, [2020] O.J. No. 1630 (C.J.) per D. Berg J.; and R. v. Wilson, [2020] O.J. No. 1515 (C.J.) per R.F. Kwolek J.

[52] Obviously, a balance must be struck between the potential risk to the community of releasing offenders who pose a safety threat, and for whom custody is generally appropriate, and the risk of spreading this potentially lethal virus by ordering people into confines which undermine all public health interventions to maintain social distance and reduce the spread of infection.

[53] Neither party adduced any evidence of known COVID-19 cases in provincial reformatories (or any provincial or federal carceral institutions in Ontario) or any evidence respecting the Defendant's overall health or risk of infection.

[54] I accept that the current crisis in long-term care facilities in Ontario serves as an appropriate proxy for the potential of this virus to harm the inmates of custodial facilities given the reliance on staff who move freely about an institution, the use of central nutritional facilities, the use of communal recreational spaces (and in jails communal bathing areas), and the physical inability to employ social-distancing. If anything, custodial facilities may be worse as inmates are required to share sleeping spaces and bathrooms, and there is likely a far greater flux of admissions and discharges than within long-term care homes. While there may be far fewer cases of COVID-19 in jails reported to date, and certainly fewer custodial-virus-related deaths, this may equally be the result of happenstance or precautions. There is also the possibility that testing in custodial facilities is less frequent than within the broader community, and/or that the media is unaware of the actual number of infected people held at the state's behest.

[55] So, while it may appear that being imprisoned poses no greater risk of infection than one faces in the community, one thing is certain: congregate living is a potential timber box which can quickly become an incinerator if introduced to a spark.

[56] Given the low-level of violence employed in committing this offence, and the registration of the Defendant as a sex-offender, I am satisfied that the risk of recidivism is fairly low. On this basis, I conclude that it would not endanger the public to have the Defendant serve a conditional sentence of imprisonment, in lieu of institutional imprisonment.

[57] Were it not for the global pandemic, I would have sentenced the Defendant to 45 days imprisonment plus probation. In light of the foregoing, the enhanced risks of infection in an institutional setting, and in recognition of the Defendant's prior good-character, I am satisfied that the terms of a Conditional Sentence Order, followed by probation, with ancillary orders, will protect the public and meet the need for a strong message of denunciation and deterrence, while promoting a sense of responsibility in the Offender.

CONCLUSION

[58] D.D. is sentenced to serve a Conditional Sentence of Imprisonment for 9 months, with the following terms:

1. Keep the peace and be of good behaviour;

2. Appear before the court when required;

3. Report to a Conditional Sentence Supervisor on Monday 04 May 2020 and thereafter as required, and not less than once per month for the first six months of the Conditional Sentence Order;

4. Remain in Ontario unless prior written permission to go outside the jurisdiction is obtained from the court or the Conditional Sentence Supervisor;

5. Notify the court or the Conditional Sentence Supervisor in advance of any change of name, address, and promptly notify the court or the Conditional Sentence Supervisor of any change of employment or occupation;

6. For the first 6 months of this Order D.D. will observe a condition of house arrest, to be in his residence at all times unless authorized in writing by his Conditional Sentence Supervisor, which authorization he must carry with him at all times when outside of his residence and which must be provided to any police officer seeking his identification, while outside of his residence for the following purposes:

   i. Travelling to, from, and while at his place of employment;

   ii. Travelling to, from, and while attending medical appointments for himself, his spouse, or his children;

   iii. Seeking emergency medical treatment for himself, his spouse, or his children;

   iv. Travelling to, from, and while attending a place of worship if permitted by law, on a day designated by the Conditional Sentence Supervisor; not to exceed once per week; and

   v. For any other purpose approved in writing by the Conditional Sentence Supervisor;

7. When outside of the residence for any reason, D.D. is not to possess any amount of Canadian or American currency beyond a reasonable amount to travel from and return to his residence;

8. D.D. is prohibited from having any direct or indirect contact with the named complainant (H.I.) or her mother;

9. D.D. must not attend at or within 100m of any place where the complainant (H.I.) or her mother is known to live, work, attend school, worship, or any other place he knows or finds her or them to be;

10. D.D. is prohibited from possessing any weapon as defined by the Criminal Code;

11. D.D. will complete any releases of information in favour of his Conditional Sentence Supervisor to permit the monitoring of his attendance at any training, education, employment, medical appointments, or any other authorized or emergency absence from his residence; and

12. For the final three months of the Conditional Sentence Order D.D. will observe a curfew to be in his residence from 9:00 p.m. until 6:00 a.m., unless authorized in writing by his Conditional Sentence Supervisor, which authorization he must carry with him at all times when outside of his residence and which must be provided to any police officer seeking his identification.

[59] These terms give significance to the fact that D.D. is serving a jail sentence in the community for the next 9 months. Possessing currency is a luxury and a liberty D.D. will only be permitted to observe in the amount that is reasonable for the mode of transportation to leave the house for the purposes permitted by this Order, or approved by his Conditional Sentence Supervisor, and to return. That means, the Offender will not possess extra cash in an amount that exceeds a reasonable amount for his mode of travel at any given time while outside of his residence. This is to make it obvious that this is a jail sentence which is authorized to be served in the community.

[60] The Conditional Sentence is to be followed by 15 months of probation, the terms of which are:

1. Keep the peace and be of good behaviour;

2. Appear before the court when required;

3. Report to a Probation Officer within 5 business days of the completion of the Conditional Sentence Order, and thereafter as required, and not less than once per month for the first six months of this Order;

4. Remain in Ontario unless prior written permission to go outside the jurisdiction is obtained from the court or the Probation Officer;

5. Notify the court or the Probation Officer in advance of any change of name, address, and promptly notify the court or the Probation Officer of any change of employment or occupation;

6. D.D. is prohibited from having any direct or indirect contact with the named complainant (H.I.) or her mother;

7. D.D. must not attend at or within 100m of any place where the complainant (H.I.) or her mother is known to live, work, attend school, worship, or any other place he knows or finds her or them to be;

8. D.D. is prohibited from possessing any weapon as defined by the Criminal Code;

9. D.D. must attend any counselling directed by his Probation Officer for sexual boundaries and consent; and

10. D.D. must complete any releases of information in favour of his Probation Officer to monitor his attendance, participation in and completion of any counselling, or other training, education, or employment.

[61] D.D. will receive a copy of each Order and it will be explained to him and he will have to sign for that copy so that he acknowledges his understanding. But, if D.D. fails or refuses to comply with the terms of either of these Orders, he can be charged and prosecuted, and in respect of the Conditional Sentence Order he can be required to serve the remaining term of the jail sentence in an actual institution or the terms of the Order can be varied. With respect to the Probation Order, if D.D. fails or refuses to comply with that and he is prosecuted, he could face jail of up to four years, a fine of $5000, or both.

Ancillary Orders

[62] Sexual assault is a primary designated offence pursuant to s. 487.04 of the Criminal Code, making this Order mandatory. D.D. is ordered to provide a suitable sample of his DNA to the Peel Regional Police by noon on 08 May 2020 at 7750 Hurontario Street, Brampton, Ontario. The sample is to be provided in circumstances that are hygienic and that respect the privacy and health of D.D.

[63] D.D. is ordered to register as a sex-offender pursuant to the provisions of the Sex Offender Information Registration Act, for 10 years.

Released: 29 April 2020

Justice G. Paul Renwick