COURT FILE NO.: CR-19-1-122 DATE: 20200807

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – NELSON NIYONGABO Defendant

Counsel: Brigid McCallum, for the Crown Rosalea Thompson, for the Defendant

HEARD: July 29, 2020 by video conference

SENTENCING Decision

SPIES J. (Orally)

Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way.

Overview

[1] On January 17, 2020 I convicted the defendant, Nelson Niyongabo, of one count of sexual assault, contrary to s. 271 of the Criminal Code. He is now before me for sentencing. With the consent of the parties, I heard this sentencing hearing by video conference with the assistance of a Registrar and a court monitor who recorded the proceedings. Mr. Niyongabo was also on the call from the Toronto South Detention Centre (“TSDC”), where he is currently detained.

[2] The trial in this matter commenced on September 30, 2019. Counsel made closing submissions on November 18, 2019. Judgment was reserved until January 17, 2020 and as already stated, on that date Mr. Niyongabo was convicted of sexual assault. While this charge was outstanding, Mr. Niyongabo was charged with a breach of his recognizance in relation to a breach of his curfew on November 25, 2019. He pleaded guilty to that charge on the same day and was sentenced to 21 days in custody. In addition, his outstanding bail order was cancelled at the Crown's request pursuant to s. 524 of the Criminal Code.

[3] On March 3, 2020, Mr. Niyongabo’s sentencing hearing was adjourned with the consent of the Crown to April 3, 2020 because his counsel advised that he was seeking a special assessment of Mr. Niyongabo. The hearing would not have proceeded on April 3rd in any event, as a result of steps taken by this Court in light of the COVID-19 pandemic. Mr. Niyongabo brought a bail review application which I heard on June 24, 2020. On that date, it was agreed that Mr. Niyongabo's sentencing hearing be adjourned to July 29, 2020. I dismissed Mr. Niyongabo’s application with reasons reported at R. v. Nelson Niyongabo, 2020 ONSC 3960 (“Bail Review Decision”).

The Facts

Circumstances of the Offence

[4] My detailed findings in support of Mr. Niyongabo’s conviction for sexual assault are set out in my Reasons for Judgment; R. v. Niyongabo, 2020 ONSC 308. A summary is as follows.

[5] The complainant was alone and met Mr. Niyongabo who was with a male friend after she left a bar at the corner of Yonge Street and Gerrard Street, at around 2:17 a.m. in the early morning hours of Saturday, April 21, 2018. They did not know each other. Mr. Niyongabo and his friend began a conversation with the complainant and Mr. Niyongabo pulled out a bottle of bourbon and offered her a sip which she accepted. He invited her to what she believed was his or his friend’s condo. Thereafter the complainant’s memory of what occurred is quite spotty, but I was able to determine, based on video surveillance evidence, where the complainant, Mr. Niyongabo and others were for some of the time on April 21, 2018 and how they were behaving, although there were significant gaps in the video surveillance.

[6] Mr. Niyongabo admitted that he had sexual intercourse with the complainant, but there was no admission as to when that sexual intercourse occurred during the early morning hours of April 21, 2018. I found it likely took place shortly before 8:10 a.m. when Mr. Aber discovered the complainant and Mr. Niyongabo in a small room with access to the elevator on the P2 level (“P2 Elevator Vestibule”) in the public, multi-level parking garage that is just to the west of 180 Dundas (“Parking Garage”), as he was entering the building from the Parking Garage. This room was carpeted, about 10 by 15 feet, with a window to the outside. When Mr. Aber entered the P2 Elevator Vestibule, he saw the complainant lying lifeless on the floor, naked from the waist down, and she was unresponsive to the intrusion. I found that she was asleep or possibly unconscious at this time. Mr. Niyongabo was barefoot and was clearly engaged in some sort of sexual activity with the complainant - likely performing oral sex on her. I found that this was the most likely time that Mr. Niyongabo engaged in sexual intercourse with the complainant given what Mr. Aber observed and given his friend had left by this time. I found that if this is when the sexual assault occurred, that the complainant not only did not consent, but she lacked the capacity to do so as a result of extreme intoxication.

[7] Because I could not rule out the possibility that the sexual intercourse occurred earlier, between 2:38 a.m. to 6:16 a.m., when I found that the complainant, Mr. Niyongabo and his friend were somewhere in the stairwell of the Parking Garage and did not appear on video, I considered this earlier period and concluded that although the Crown had not proven that the complainant lacked capacity during this time frame, because the complainant only showed obvious signs of intoxication after 6:16 a.m., the Crown did prove that she did not consent to any sexual intercourse during that period of time. In particular, I found that the video evidence corroborated the complainant’s evidence that she did not want to have sex with Mr. Niyongabo. At no point in any of the video evidence did the complainant act affectionately or in a manner that could be perceived as wanting to be touched by Mr. Niyongabo. The video evidence did not show two people getting more comfortable or forming an attraction, or meaningfully engaging with each other in any way. Rather it was the opposite. The video captured the complainant being standoffish with Mr. Niyongabo at 2:38 a.m. when he hugged her while she was leaning against the wall. She did not reciprocate the hug.

[8] Also relevant to this sentencing is the evidence surrounding my finding that the complainant lacked capacity to consent to sexual intercourse and that she was extremely intoxicated, as this clearly should have been known to Mr. Niyongabo. Although I found that there was no evidence that Mr. Niyongabo was aggressive or forceful with the complainant, or that he chased or restrained her, he did watch her as she appeared disoriented, stumbling and uncoordinated and weaving as she walked on the street, totally oblivious to her surroundings and the traffic. There was also no evidence that Mr. Niyongabo was suffering from intoxication and based on the video evidence I found that he was not. The video evidence conveyed his demeanor as calm and measured. I found that he intended to have sexual intercourse with the complainant even though he knew that the complainant had not communicated her consent to having sexual intercourse with him and that she was so intoxicated that she lacked the capacity to consent. He provided the complainant with alcohol and he spent hours with her, and he observed her walking on the street. Her state of extreme intoxication was obvious. Regardless of the reason for the complainant’s intoxication, Mr. Niyongabo must have known that she was so intoxicated when he engaged in sexual activity with her that it should have been obvious to him that she did not have the capacity to consent, or he was willfully blind or reckless to this fact. Furthermore, whatever sexual activity he was engaged in with the complainant, when Mr. Aber found them, he clearly took advantage of her at that time while she was unconscious or at least sleeping.

Circumstances of Mr. Niyongabo

[9] Mr. Niyongabo was born on May 25, 1996 in Burundi. I did not receive a Pre-Sentence Report, but Mr. Niyongabo was interviewed by a Registered Psychotherapist named Aaliyah Reckley. She prepared what she termed a “psycho-social assessment” based on a one- and one-half hour interview of Mr. Niyongabo on June 19, 2020. Ms. McCallum objected to the admission of the report on the basis that Ms. Reckley was not qualified to provide the opinions she expressed. After some discussion Ms. Thompson advised that she was only concerned that the information provided by Mr. Niyongabo to Ms. Reckley when she interviewed him, be considered on the sentencing hearing and on that basis, Ms. McCallum agreed that I could consider that information. Accordingly, I have the following additional information about Mr. Niyongabo’s background.

[10] Mr. Niyongabo is the eldest of his five siblings. He recalled that his parents were always struggling financially to provide for their family. When he was 10 years old, his stepfather informed him that he would have to drop out of school and begin to work to help provide for the family. Although Mr. Niyongabo reported that it was normal for the eldest child to work, he missed going to school. He reported in Burundi there was, and still is, a war going on. When questioned if he recalled or experienced any violence due to the war, Mr. Niyongabo stated that when he was seven years old, he remembers vividly playing soccer with a group of friends outside, when two men came up to the group of boys, grabbed two of the boys and killed them with a machete. Mr. Niyongabo reported being scared and horrified by this as it happened right in front of his own eyes. He stated it still shocks and scares him that he could have been one of those boys who died. He described the scene as horrific and he still has nightmares about this event in his life. Mr. Niyongabo still questions what would have happened to him and his family if he had been the child who was murdered.

[11] When they were living in Burundi, Mr. Niyongabo believed his stepfather was his biological father. He reported tension because he did not get along with his stepfather. They constantly argued and his stepfather would get mad at him for everything and anything he would do. Mr. Niyongabo always wondered why his stepfather would always treat him so badly and treat his siblings nicely. He decided to leave the family home and move in with one of his friends, but after a few months he returned home as his mother was worried and begged him to come back home.

[12] Mr. Niyongabo came to Canada with his family in September 2012, when he was 16. Ms. Thompson advised that his stepfather sponsored the family and that Mr. Niyongabo is a permanent resident. He reported being happy as he wanted to go back to school and complete his education. However, he had a hard time in high school, adjusting to Canadian society and trying to fit in at school. He reported being bullied while in high school and feeling ostracized because he was a new immigrant. Mr. Niyongabo stated he had a lonely lifestyle as he struggled with speaking English, which made it challenging to make friends.

[13] Mr. Niyongabo stated initially his stepfather was not living with his mother and siblings, so things were good for him as there were no arguments in the household. However, this quickly changed when his stepfather moved into the home. Every day, Mr. Niyongabo and his stepfather would argue. Even when he did not say anything to his stepfather, he would still get into trouble and be yelled at. Mr. Niyongabo reported speaking with his mother one day and asking her why his stepfather always treated him unfairly as compared to the other children in the house. It was at this time, at the age of 17, when Mr. Niyongabo's mother finally admitted to him that the man whom he believed was his father was really his stepfather. Mr. Niyongabo's mother had informed him that his brothers and sisters all came from his stepfather and that was one of the reasons why she believed he was treated differently.

[14] At this time, Mr. Niyongabo’s mother told him that back in Burundi, during the war, she was raped and became pregnant. She did not know the man who raped her and did not want to tell Mr. Niyongabo the truth until she felt he was old enough to handle it. Mr. Niyongabo reported feeling shocked and angry that his mother waited so long to tell him the truth and he described the hurt and pain he is still experiencing from learning the truth. He stated he did not know who his father was and would never know. Mr. Niyongabo reported not being able to concentrate and focus at school anymore. He stated that after the next big fight with his stepfather, he decided to leave the family home. One of his friends advised him that he could live in a shelter and not have to worry about his stepfather anymore.

[15] As a result, at the age of 18, Mr. Niyongabo was living in a shelter. He stated he continued going to school for almost a year but dropped out only one credit shy of graduating. He reported meeting some friends in the shelter who were not good influences on him. It was around this time that he began drinking heavily on a daily basis. He stated he was still very angry at his mother and stepfather and found alcohol took him away from his reality. Mr. Niyongabo stated he believes his drinking increased because he had so many thoughts in his mind regarding his mother who was raped and never knowing who his real father was. He just wanted to be happy and forget what was going on in his life. Mr. Niyongabo reported that he began to work various jobs to make a living.

[16] Mr. Niyongabo told Ms. Reckley that the charge in this case was a wakeup call to him to realize that his life was getting out of control and heading in the wrong direction. Since being incarcerated in jail, Mr. Niyongabo reports taking time to focus on himself and the poor choices he has made in his life. Mr. Niyongabo stated the way he was directing his life, drinking daily and being around bad friends, led him to make poor choices. Since being in jail, Mr. Niyongabo stated that he has had the opportunity to remain sober and gain valuable support in his sobriety. He reports recognizing that alcohol played an important role in his life and no longer wants to drink. He wants to seek specialized support for his addiction. While in jail, Mr. Niyongabo reports completing various programs in substance use, and attending an Alcohol Anonymous (“AA”) program. I note that as I will come to, there is evidence of one one-hour course that Mr. Niyongabo has taken on substance abuse but no evidence he took an AA course.

[17] Mr. Niyongabo has seen a psychiatrist at the TSDC, and he has been diagnosed with depression and anxiety and has been taking medication for the past five months. He reported disturbed sleep and not getting restful sleep due to his excessive thinking about the uncertainty of his future. He stated his mood has been sadder and down. Although Mr. Niyongabo stated that his mood is a bit more stable than before as he is on medication, lately he finds he is not able to focus and is finding it hard to concentrate.

[18] Mr. Niyongabo reported that he continues to feel stressed and worried about his sentencing and the possibility he will be deported to Burundi, but he recognizes the mistakes he has made and is learning from them. He stated he has learned a lot through personal reflection on the many reasons why he made the poor choices and drank excessively and the supports he has been utilizing while being detained. Mr. Niyongabo reported that after he is released, he hopes he is able to remain in Canada. He would like another opportunity to re-establish himself in Canada as going back to Burundi would destroy him. Burundi is still at war and he no longer has any family or friends to support him there should he be deported. His dream is to remain in Canada and work in order to be a productive member of society. Mr. Niyongabo reported that he wants the opportunity to show his parents that he can change and learn from the mistakes he has made in the past. Mr. Niyongabo stated he does not want to give up on himself and sees a bright future for himself.

[19] Mr. Niyongabo reported that he is on the waitlist for the St. Michael's Alcohol Addiction Program upon his release from jail. He advised Ms. Reckley that he has also been speaking with an individual from admissions in Centennial College about a program in HVAC. When questioned by Ms. Reckley about how he would support himself emotionally and financially upon release, Mr. Niyongabo clearly, and in great detail, outlined his plan to reconnect with his youth worker in YSM to help support him in obtaining Ontario Works and receiving government housing, instead of living in a shelter.

[20] The evidence on the bail review application was that Mr. Niyongabo has expressed to counsel, through phone conversations over the past period of months, that the medication he is taking is alleviating his symptoms of anxiety and depression and that he intends to continue to take this medication whether or not he is released. He also advised counsel that he is willing to take advantage of community supports that are available to him including those offered by the Yonge Street Mission (“YSM”) Helping Offenders on Probation Excel/Hope program and their in-house counselling services. Mr. Niyongabo also advised Ms. Reckley that he is willing to participate in the anger management group sessions and one-on-one counselling run by the YSM.

[21] Unfortunately, Mr. Niyongabo will not have any family support upon his release. I was advised during the course of his bail review application that his mother is not prepared to act as a surety and she has told him that he cannot come to live with her, his stepfather and siblings. In other words, Mr. Niyongabo is still homeless. On the bail review I concluded that there was more involved in Mr. Niyongabo’s curfew breaches than just a relatively benign breach of curfew in that some of them involved behaviour causing women concern while intoxicated. I concluded, at para. 27, that Mr. Niyongabo had not satisfied me that if he was released from custody that it was not substantially likely that he would not reoffend by at a minimum committing another breach of curfew. I was concerned that to the extent his prior breaches were driven by the fact that Mr. Niyongabo was homeless, that there was no evidence that he made efforts when he was out of custody to find shelter, and that if released he might not have access to a shelter bed despite the best efforts of Mr. Martinez. I was also found that there was a substantial likelihood that if released on the proposed terms, that Mr. Niyongabo would breach his curfew condition and that absent police intervention, as has occurred in the past, there was a substantial likelihood that he would consume alcohol and commit further serious offences against women who were in vulnerable states of intoxication or asleep and/or with mental health issues, at para. 28. It was for these reasons I found that Mr. Niyongabo should remain detained on the secondary ground.

[22] While in custody at the TSDC, Mr. Niyongabo has completed six one-hour courses run by the correctional officers as volunteers were not permitted in the institution. He has in the period from January to June 2020 completed a course in Substance Abuse, Recognizing Healthy Relationships, Problem Solving, Anger Management, Being an Efficient Father and Setting up a Budget.

[23] Mr. Niyongabo did not have a criminal record at the time he committed this offence. Accordingly, he must be sentenced as a young first-time offender. However, Mr. Niyongabo has accumulated a criminal record since the date of this offence and the information with respect to those convictions has some relevance to my assessment of the need for specific deterrence and the prospect of rehabilitation. These convictions were reviewed in detail in my Bail Review Decision. While Mr. Niyongabo was on release to the Bail Program on the charge before this Court, he was arrested for sexual assault on another female complainant. He was convicted for assault in March 2019 and given a conditional discharge. Based on the synopsis, Mr. Niyongabo was alleged to have consumed alcohol with the complainant and her friend in the complainant’s apartment. There was never an allegation of intercourse, but there was of unwanted touching, presumably leading to the assault conviction. Mr. Niyongabo has also been convicted of breaching his curfew on six occasions. On those occasions he was not only out after his curfew, but on some of those occasions he was seen drinking alcohol, or it was reported that he had been drinking and/or it was observed that he appeared to be intoxicated. In some cases, he was being a nuisance to females in the area.

[24] Mr. Niyongabo provided a handwritten letter to me that Ms. Thompson advised was his idea and written without her input. He begins his letter by stating that he writes with deep feelings of regret and of hope and goes on to write about the unimaginable genocide he saw in Burundi and his hope for a “second birth as a Canadian”. He speaks of the hope and promise that he feels as a young man in Canada with its “possibilities and responsibilities” and his deep regret and sorrow in failing to discharge his responsibilities of his citizenship. He attributes this to a:

lack of life experiences, lack of mentors, pain in my psyche, traumas of childhood and temptations of the devil all assault me and had overcome me to be the young criminal that I am today before you, sadly. I regret this position, I am deeply sorry for what I have done; and what I thought that led to my actions and what sickness there was in my heart. Your honour I am on my knees day and night, praying to Jesus to help, to chastise me, to cleanse me.

Mr. Niyongabo ends his letter by asking for my kindness and compassion and that I do what is best for him and his future and he promises that he will “live-up to your expectations”.

(a) Support Letter of Eddy Martinez

[25] Mr. Niyongabo provided a letter of support from Eddy Martinez who is a social worker and the HOPE Program Coordinator with the YSM Helping Offenders on Probation Excel/Hope program.

[26] The YSM Helping Offenders on Probation Excel/HOPE program attempts to address the complex needs of street youth that are on probation, parole and other conflicts with the law situations that require some level of monitoring or support. Mr. Martinez has been working with Mr. Niyongabo since before he was incarcerated due to his probation status. He has also made multiple visits during custody and apparently, he has come to an agreement with Mr. Niyongabo on the type of care he needs. If and when Mr. Niyongabo is released, Mr. Martinez advised that he and Mr. Niyongabo will be working on getting him housing. Mr. Martinez has already had discussion with Central Intake in regard to Mr. Niyongabo getting a shelter bed upon his release. Unfortunately, it is not possible to secure a shelter bed for Mr. Niyongabo prior to his release.

[27] Mr. Martinez states that he is currently having discussion with external partners at Restorative Justice Housing Ontario on Mr. Niyongabo’s behalf. Mr. Martinez advises that Mr. Niyongabo has agreed to participate in substance abuse and addiction counselling, and anger management group sessions. This will allow him to address conflict resolution issues and find coping strategies. While Mr. Niyongabo is in custody, YSM is limited in their support, but once released they would put their “gears in motion” and do what they can to “help reduce recidivism by our strategic and individual tailored based methods”.

[28] Although not refiled on the sentencing hearing, the evidence on the bail review application included a letter from Nazreth Mebrahtu from the YSM. Mr. Mebrahtu stated that Mr. Niyongabo is a client with the Mental Health & Counselling Services at YSM and that YSM will continue to support Mr. Niyongabo once he is out in the community. Information is provided as to the type of psychotherapy and anger management that YSM provides.

(b) Pre-Sentence Custody (“PSC”) Calculation

[29] Counsel were in agreement on the total time that Mr. Niyongabo has been incarcerated and that it should be enhanced at the rate of 1.5:1 established in R. v. Summers, 2014 SCC 26, 2014 1 SCR 575 (the “Summer’s PSC credit”) given that every day served in pre-trial custody does not count towards parole eligibility. He was incarcerated during the following periods:

April 30 – May 1, 2018 = 2 days May 21 – June 8, 2018 = 19 days June 9, 2018 – April 5, 2019 = 301 days May 11, – May 14, 2019 = 4 days July 16 – August 1, 2019 = 17 days August 22 – August 27, 2019 = 6 days Sept 16 – Sept 25, 2019 = 10 days Nov 25, 2019 – July 29, 2020 = 248 days TOTAL PSC = 607 days

Pre-sentence custody used towards guilty pleas: FTC July 31, 2019: 15 days’ sentence FTC August 27, 2019: 25 days’ sentence FTC Sept 23, 2019: 21 days’ sentence FTC Nov 25, 2019: 25 days’ sentence TOTAL PSC USED = 86 days

[30] On this basis counsel agreed that the period of incarceration of Mr. Niyongabo attributable to his conviction for sexual assault is 521 days (607-86) up to the time of the sentencing hearing. Enhanced for the Summer’s PSC Credit at 1.5 to 1, the credit equals 781.5 days or 2.14 years or two years and 51 days. In addition, Mr. Niyongabo has served an additional nine days to today’s date, which enhanced means another 13.5 days, bringing the total to Summer’s PSC Credit to 795 days.

(c) The Lockdown Evidence

[31] Based on Lockdown Reports from the TSDC for the period of December 15, 2019 to June 25, 2020, there were 90 full or partial lockdowns. In the period of June 9, 2018 to April 5, 2019 and June 22, 2020 to July 14, 2020 there were an additional 82 full or partial lockdowns for a total of 172 lockdown days. Virtually all of the lockdowns were due to staff shortages. There is no dispute that none were because of any misconduct on the part of Mr. Niyongabo.

[32] According to the notes at the end of these reports, a full lockdown means that all units were impacted by a lockdown. A partial lockdown means that some units were impacted. There is no way of knowing on the evidence before me if Mr. Niyongabo was impacted by the partial lockdowns and if so, how many times. During lockdowns, inmates are given 30 minutes to complete phone/showers and, in some cases, time in the yard. During normal operations inmates are in and out of their cells for up to 13 hours.

[33] Mr. Niyongabo provided an affidavit which set out some limited information as to the impact on him of the lockdowns and the COVID-19 pandemic. It was unsworn as counsel had not been able to attend the TSDC, but Ms. McCallum reasonably accepted it as true. In that affidavit Mr. Niyongabo stated that when the jail is on lockdown, he can’t leave his cell at all, which means that he can't call his lawyer. He states that this increases his feelings of anxiety because he wants to know what is happening with his case. Talking to his lawyer helps him to worry less and so when he is cut off from this contact, he feels anxious and depressed. In addition, he stated that since the COVID-19 pandemic, programming has become limited. Volunteers can no longer come into the jail and run programs that he would like to participate in. Correctional officers do run some programming, but it is much more limited.

Circumstances of the Complainant

[34] At the time of the alleged offence the complainant was 37 years old. She had worked in the service industry in the past and at the time of the trial advised that she continued to work managing a bar for a friend. At the time of the trial, she was collecting social assistance but was unsure whether she was covered by Ontario Works or Ontario Disability Support Payments for depression and anxiety. The complainant testified that she had been diagnosed with anxiety and insomnia, and following the sexual assault, with depression.

[35] The complainant did not provide a Victim Impact Statement (VIS). Ms. McCallum advised that the complainant stated that she did not want any more contact with the “criminal justice system”. That is understandable, as I recall that she was very emotional and had a lot of difficulty in giving her evidence, particularly during the lengthy cross-examination. As I stated in my Reasons for Judgment, the complainant testified over the course of three days and although she gave her evidence behind a screen, I observed that she was squeezing a stress ball as she gave her evidence initially and during her cross-examination, at one point a support person was arranged to attend with her.

[36] The complainant also endured the sexual assault examination performed at Mount Sinai. She testified that when she arrived at the hospital, she felt terrified and she was in physical pain. She had to be naked and sit through an invasive sexual assault evaluation where every inch of her body was examined. The sexual assault nurse who examined the complainant observed several new bruises on the inside of her upper thighs and one on each arm near the elbow in addition to three new abrasions on her right knee. The nurse also observed swelling near the injury on the complainant’s right arm and discoloration near her cervix, but the nurse could not say if this was an injury. The complainant was given a number of medications to combat the risks associated with unprotected vaginal intercourse. These medications can have harsh effects on the patient.

[37] Notwithstanding the absence of a VIS, I find that there can be no doubt that the impact on the complainant from this sexual assault has been significant and that she will feel the emotional impact of this assault for the rest of her life. As Cory J. stated for the Supreme Court of Canada in R. v. McCraw, [1991] 3 S.C.R. 72 at p. 83:

the psychological trauma suffered by rape victims has been well documented. It involves symptoms of depression, sleeplessness, a sense of defilement, the loss of sexual desire, fear and distrust of others, strong feelings of guilt, shame, sense and loss of self-esteem. It is a crime committed against women which has a dramatic, traumatic impact. ...

Legal Parameters

[38] The conviction for sexual assault carries a maximum sentence of ten years. There is no minimum sentence.

Position of Counsel

[39] The Crown seeks a custodial sentence of three years given the aggravating factors and the demeaning treatment of the complainant during the commission of the offence. The Crown additionally seeks four ancillary orders:

a) an order made under s. 109 of the Criminal Code prohibiting the defendant for the next ten years from owning, possessing or carrying any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance;

b) an order pursuant to s. 490.012 of the Criminal Code requiring the defendant to comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10 for a period of 20 years (being the applicable term provided for in s. 490.013(2)(b) of the Criminal Code);

c) an order on the primary ground pursuant to s. 487.051(1) of the Criminal Code authorizing the taking from the defendant such bodily substances as are necessary for the purposes of a forensic DNA analysis, and

d) an order pursuant to s. 743.21 of the Criminal Code that the defendant shall not communicate directly or indirectly with the complainant while in custody.

[40] The position of the Defence is that the appropriate sentence is two years less one day and that Mr. Niyongabo is in a time-served position, on the basis that he will have accumulated 521 days of pre-sentence custody as of the date of his sentencing hearing, July 29, 2020. In addition to the Summer’s PSC Credit, the Defence submits that Mr. Niyongabo’s circumstances justify a further enhanced credit on the basis that he has served pre-sentence custody during the COVID-19 pandemic, with a high incidence of lockdowns. On this basis, it is submitted that Mr. Niyongabo has already served a sentence in excess of two years. The Defence takes no issue with the ancillary orders requested.

Principles of Sentencing

[41] The fundamental purpose of sentencing, as set out in s. 718 of the Criminal Code, is to ensure respect for the law and the maintenance of a just, peaceful and safe society. The imposition of just sanctions requires me to consider the sentencing objectives referred to in that section and aim to achieve same with the sentence I impose. The objectives are denunciation, specific and general deterrence, separation of offenders from society when necessary, rehabilitation, reparation for harm done and the promotion of a sense of responsibility in offenders and acknowledgment of the harm which criminal activity brings to our community. In addition, in imposing sentence I must take into account the principle of proportionality and the applicable aggravating and mitigating circumstances relating to the offences as set out in s. 718.2.

[42] In this case, I must also consider the fact that Mr. Niyongabo is a youthful offender. He was 21 at the time he committed this offence. The Court of Appeal for Ontario in R. v. Priest, [1996] O.J. No. 3369 considered a case of a young first offender and stated at para. 17 that: “[t]he primary objectives in sentencing a first offender are individual deterrence and rehabilitation. Except for very serious offences and offences involving violence, this court has held that these objectives are not only paramount but best achieved by either a suspended sentence and probation or a very short term of imprisonment followed by a term of probation”. The court went on to say at para. 23, that: “…it is a well-established principle of sentencing laid down by this court that a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence”. [emphasis added].

[43] Similarly, in R. v. Borde, [2006] 168 O.A.C. 317 the court at para. 36 stated:

Aside from the gravity of the appellant's crimes, the overwhelming factor is his youth … the trial judge erred in principle in focusing almost exclusively on the objectives of denunciation and general deterrence, given the appellant's age and that this was his first adult prison sentence and his first penitentiary sentence. The length of a first penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciation and general deterrence. [emphasis added]

[44] However, the Court of Appeal has also recognized that an exception to the general rule is provided for serious crimes of violence, particularly sexual assaults. In R. v. Thurairajah, 2008 ONCA 91, 89 O.R. (3d) 99, at para. 41, Doherty J.A. held that, "[w]hile all of the principles of sentences remain important, including rehabilitation, for serious crimes involving significant personal violence, the objectives of denunciation and general deterrence gain prominence."

Sentencing Cases

[45] I received a very large number of cases from counsel, particularly the Crown, in support of their respective positions. Although I reviewed all of these cases, I will not summarize them all in this decision.

[46] The position of the Crown is that the range of custodial sentences for a sexual assault involving forced vaginal intercourse is 24 months to five years. Ms. McCallum submitted that the absolute floor now is a sentence of two years and that this is only appropriate in exceptional circumstances which are not present in this case.

[47] In advance of the hearing I provided counsel with my recent decision in R. v. P. M., 2020 ONSC 3325, where I found that R. v. Bradley, 2008 ONCA 179, 234 O.A.C. 363 has precedential value even though it was an endorsement from the Court of Appeal and that it established a range of sentence for a serious sexual assault of an adult complainant, who was not in a domestic relationship with the offender, of three to five years. I came to the same conclusion in R. v. McCaw, 2019 ONSC 3906, where at para. 59 I held that the range of sentence as established by the Court of Appeal in Bradley is three to five years for a single offence of sexual assault that was a completed act of unprotected vaginal intercourse. A similar conclusion was reached by Molloy J. in R. v. M.M., 2017 ONSC 1829 at paras. 38-39 and Code J. in R. v. A.J., 2018 ONSC 5153, at para. 34.

[48] Ms. Thompson did not take issue with my view that the range of sentence as established by Bradley is three to five years, but it was her position that the facts of this case justify a sentence of two years less one day.

[49] I accept that exceptional cases can fall above or below the range and of course it is trite to state that sentencing ranges are, at best, guidelines for the application of the relevant sentencing principles and objectives, and that sentencing remains a highly individualized process, subject to judicial discretion. The Court of Appeal observed in R. v. S.M.C., 2017 ONCA 107, at para. 7, that although the range of sentence imposed for similar offences can be helpful in fixing the appropriate sentence in a given case, the ultimate question is whether the sentence imposed is fit.

[50] The Crown’s position is that R. v. Mugabo, 2019 ONSC 6526, is the closest case factually to the case at bar. In that case the complainant was intoxicated, and the offender had unprotected sexual intercourse with her without her consent in her apartment building. The offence had a significant impact on the complainant. The offender was 22 years old, a refugee from Rwanda, addicted to drugs and alcohol and enrolled in university. He had a related criminal record and also stole from the complainant. The trial judge considered a number of cases including Bradley and McCaw and concluded that the appropriate range of sentence was two years less one day to five years. He sentenced the offender to 50 months.

[51] McCaw is a case that is quite similar factually to the case at bar. In that case I found that the first-time offender, who was six years older than the complainant who was on 18 years old at the time, knew that the complainant was severely inebriated. Nevertheless, he had unprotected vaginal intercourse while she was sleeping and ejaculated inside her exposing her to the risks of pregnancy and sexually transmitted diseases. The sexual assault had a profound impact on the complainant. I found that the risk of re-offending was low, as the offender who had expressed genuine remorse had engaged in counselling and had strong support from his family. I sentenced the offender to 40 months.

[52] I did consider a very recent case from the Court of Appeal, R. v. Ghadghoni, 2020 ONCA 24, provided by the Crown, that I was previously unaware of. I believe this is why Ms. McCallum suggested the range of sentence that she did, as the court stated at para. 48:

I further agree that the usual range identified in past jurisprudence for sexual assaults committed in similar circumstances has been between 18 months and three years: see, for example, R. v. Smith, 2015 ONSC 4304 (Ont. S.C.J.), at paras. 32-33.

[53] In that case, like the case at bar, the complainant was severely intoxicated and unconscious at time of the sexual intercourse and the offender was 22 years old with no criminal record. However, the offender suffered from a severe head injury that had caused serious cognitive deficits and the offence was found to be out of character. The court affirmed the trial judge’s sentence of two years less a day. Although I have difficulty with this decision because of the reference to Smith, which was a case I considered extensively in P.M. as it dealt with the sexual assault of a domestic partner, factually this case does not support the position of the Defence given the offender’s moral blameworthiness was much less than Mr. Niyongabo’s. It does suggest that a sentence of two years less a day in this case would be too low.

[54] I also considered R. v. Tweneboah-Koduah, 2018 ONCA 570; aff' 2017 ONSC 640, another decision provided by the Crown, to ascertain if it supported the position of the Defence. In that case during the 17-year-old complainant's first week of university, she was sexually assaulted through multiple acts while she was completely unconscious. She suffered a vaginal injury and the assault caused her to choke. The impact on the complainant was grave, and she suffered from suicidal thoughts and self-loathing. The offender was 18, enrolled at university and in Canada on a student visa. He has a favourable employment history, positive family support and through counselling had some insight into his behaviour. The trial judge stated at para. 50 that the Crown submitted that the usual range of sentence for a sexual assault of this nature was a term of imprisonment between 18 months and three years, relying on R. v. Smith, 2015 ONSC 4304 (S.C.J.), at para. 32; and R. v. J.F., 2015 ONSC 5763 (S.C.J.), at para. 36. I have difficulty with this conclusion. As I said in McCaw, at para. 46, I found Smith to be an outlier particularly in light of the fact that the Crown proceeded summarily. Furthermore, the trial judge in J.F. relied on R. v. Colbourne, 2013 ONCA 308, which has been considered an outlier as well; see M.M. at para. 39. I therefore do not agree with the position taken by counsel in that case as to the appropriate range. I appreciate that the Court of Appeal upheld the 26-month custodial sentence on appeal, noting at para. 34 that it was “entirely within the range of sentences imposed in similar circumstances”, but the court made no specific mention of the range as established in Bradley and so I do not rely on this decision.

[55] Ms. Thompson provided a decision of Davies J., R. v. H.P., [2019] O.J. No 5728 (S.C.J.) where the sexual assault occurred after a New Year's Eve party at a friend's apartment. The complainant was so intoxicated that she passed out on the stairs before she got into the apartment and the offender carried her up the stairs and put her in bed. He later joined her in the bedroom and touched her leg hoping to initiate sex with her. He then removed her underwear and started to have intercourse with her. The complainant woke up a few seconds after the offender penetrated her and yelled at him to stop. The Crown asked for two years and three years’ probation. Justice Davies found that the first-time offender, who was 24 at the time of the offence, had expressed remorse and had strong rehabilitation potential with ongoing support in the community from his current partner and his family, all of whom knew about his conviction, as well as a strong employment history. She sentenced him to 12 months in jail and two years’ probation, emphasizing restraint. No reference was made to any range of sentence established by the Court of Appeal and so in my view this case is limited to its facts.

[56] Ms. Thompson also referred to R. v. Mackenzie, [2019] O.J. No. 3451, (S.C.J.) where Turnbull J. considered a joint submission as to penalty of two years to be served in a federal penitentiary followed by two years of probation. He found that the first-time offender took advantage of the complainant, who knew him distantly, when she was clearly under the influence of alcohol and unable to communicate her disapproval of his conduct, which included oral sex and vaginal intercourse until it was too late. The offender had denied that he had sexually assaulted the complainant, so there was no evidence of remorse. Justice Turnbull also noted the devastating impact of this criminal act on the victim, psychologically and emotionally, which was clear from her VIS but stated that the offender did not physically injure the complainant nor threaten her with harm, but that in my view was not a mitigating factor although, had it been present, it would have been aggravating. The offender was 33 years old, married, a journeyman carpenter and a field supervisor and the father of a 9-month-old daughter. Turnbull J. also took into account that the offender was clearly under the influence of alcohol at the time of the offence, although he stated that this did not excuse his conduct.

[57] At para. 28, Justice Turnbull referred to the cases that he had been provided by counsel which he said reflected that sentences for similar offences in somewhat similar circumstances, involving relatively youthful first-time offenders, that fell within the range of fifteen months to three years. He made reference to two decisions of this Court, the two relied upon by the trial judge in Tweneboah-Koduah, namely Smith and J.F, which he stated supported the submission that an upper mid-range reformatory sentence was not inappropriate in these types of cases. First of all, given no reference to Bradley, I have difficulty with this conclusion. Furthermore, as I have already stated, both Smith and J.F. are in my view outliers. I therefore do not find Mackenzie to be of assistance.

[58] Finally, the Defence referred to R. v. Orwin, 2017 ONCA 841. In that case the court upheld a sentence of two years less one day and one year of probation in the case of a sexual assault where the two principals had been involved in a casual sexual relationship. The court did state at para. 56 that the trial judge accurately identified the range of sentence but did not state what that range was. I presume it did include two years less a day at the bottom of the range. The case is not very helpful; however, as the circumstances of the offence are totally different and the offender, although youthful, had mental health issues of some sort and the impact of sentence on his employment and employability was considered to be mitigating.

Determination of a fit sentence

[59] I turn then to what is an appropriate sentence in this case. For the reasons I have given, as this was a single offence of sexual assault that was a completed act of unprotected vaginal intercourse, the range of sentence that I consider applies is that as established by the Court of Appeal in Bradley of three to five years. As Ms. Thompson submitted, however, this does not mean that three years is akin to a minimum sentence. I must consider all of the circumstances of this case to determine what sentence is appropriate. The range of sentence that I have found applies, is only a guide.

[60] In terms of the goals of the sentence that I impose, clearly, I must consider denunciation and general deterrence, as I agree with Ms. McCallum that Mr. Niyongabo acted as a “predator of opportunity” when he found the complainant alone on the street, late at night, and eventually completely intoxicated. He knew that she did not consent to any sexual activity with him and although I was not able to determine what led to her intoxication, it was something Mr. Niyongabo was clearly aware of and he took advantage of the situation. He was not intoxicated and in my view the degree of his moral blameworthiness is high, suggesting the need for a strong denunciatory sentence. I must ensure that there is a strong message of general deterrence to express society’s abhorrence of this despicable conduct by Mr. Niyongabo of taking advantage of a vulnerable young woman who was too inebriated to take care of herself.

[61] This is particularly so as the impact on the complainant was necessarily severe. She suffered the humiliation of being found partially naked in an elevator vestibule by two men she did not know, and she had to endure a sexual assault examination and then three days of giving evidence in this trial. Although I have no VIS, I have no doubt that the complainant is still feeling the adverse impact of this assault on her life and that it will continue to haunt her.

[62] As for specific deterrence, I am concerned that the conclusion I came to recently in my Bail Review Decision is likely still the case, namely that there is a substantial likelihood that if released without proper support and without a home to go to that Mr. Niyongabo will commit further serious offences against women who are in vulnerable states of intoxication or asleep and/or with mental health issues. As I concluded at para. 28 of that decision, Mr. Niyongabo clearly has a serious addiction to alcohol and that is an illness that in my view has likely not been resolved even if he has had no access to alcohol while he has been detained. He will need to have support and participate in a substantial counselling program if he is to put this addiction behind him. He will also need counselling to assist him in understanding the importance of a woman’s sexual autonomy.

[63] As Ms. Thompson submitted, rehabilitation is also important in this case and there is a public safety component to rehabilitation as regardless of the actual sentence I impose, Mr. Niyongabo will be released at some point. The sentence I impose must aim to decrease the chance of Mr. Niyongabo reoffending. To that extent I agree with her that I must balance the principles of deterrence and rehabilitation and not pit them against each other.

[64] With these general principles in mind, I find that the aggravating factors in this case are as follows:

a) Mr. Niyongabo knew the complainant did not want to have sex with him. b) Mr. Niyongabo took advantage of the complainant’s vulnerability knowing that she was extremely inebriated and not in a position to protect herself. c) The intercourse was unprotected and subjected the complainant to fears of pregnancy and/or disease. d) Although there was no gratuitous violence, that is not a mitigating factor. In any event the complainant did suffer some minor injuries. e) The place where the sexual assault took place resulted in particular humiliation for the complainant as two male strangers witnessed the degradation to her body. f) The adverse impact of the sexual assault on the complainant was substantial.

[65] The fact Mr. Niyongabo insisted on his right to a trial is of course a neutral factor, but he does not get the mitigating effect of a guilty plea.

[66] The mitigating factors are as follows:

g) Mr. Niyongabo was 21 at the time he committed this offence. However, as Ms. McCallum submitted, in terms of considering sentences in other cases, this is a crime that is often committed by young men. h) Mr. Niyongabo has had a very difficult youth although as Ms. McCallum submitted, there is no evidence that the trauma he suffered in Burundi and his difficulties in adjusting to life in Canada caused or contributed to his decision to commit this offence. i) Although I agree with Ms. McCallum that Mr. Niyongabo’s main concern is how his sentence will impact him and the fact he may be deported, in his letter to me he has expressed some remorse for his actions and to that extent I accept he is remorseful for his actions. j) Mr. Niyongabo took some one-hour courses while in jail which demonstrates a commitment to better himself and he has stated he will participate in any counselling suggested by YSM. k) Mr. Niyongabo is willing to take the prescribed medication which will assist his anxiety and depression and hopefully reduce the need to resort to alcohol. l) Mr. Niyongabo has support in the community and particularly YSM. However, unfortunately he does not have the benefit of family support. As a result, whenever he is released his ability to avoid further difficulties such as those he experienced while on bail, will depend on him and his relationship with Mr. Martinez and YSM.

[67] In my view, considering the cases I have referred to and the aggravating and mitigating circumstances, a three-year sentence as suggested by the Crown is appropriate. The circumstances of this case do not justify a sentence as low as two years.

The Duncan Credit

[68] Ms. Thompson requested that this Court grant Mr. Niyongabo a pre-sentence credit in addition to the Summer’s credit because of harsh conditions while he was serving his pre-sentence custody due to lockdowns. As already stated, Mr. Niyongabo has provided some evidence as to how the lockdowns adversely impacted him, which Ms. McCallum did not challenge by way of cross-examination. She conceded that there should be some enhanced credit but submitted that it should not be very much. Ms. McCallum relies on R. v. Weir, 2018 ONSC 783, [2018] O.J. No. 2475 (S.C.J.) at para. 138. She advised that only what she considered were substantive lockdowns should be considered, not all partial lockdowns. She stated that inmates go to the cells at 9:30 p.m. and so if the lockdown started after 6 p.m. it should not be counted as it would not have a real impact on Mr. Niyongabo. On this basis of the total lockdown days of 172, only 85 lockdowns; about 50%, were all day i.e. substantial as defined by Ms. McCallum.

[69] Ms. Thompson disputed this and submitted that Mr. Niyongabo has stated in his affidavit that even when the jail is locked down for part of a day, his access to showers, phone, and yard are often affected. That is true but he does not state that he was in the unit impacted by each of the partial lockdowns.

[70] In R v. Duncan, 2016 ONCA 754, the Court of Appeal held that an offender may be given credit for time spent in custody in excess of 1.5 days per day served, given the conditions under which the offender was held in custody. The court held, at para. 6, that:

… particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in s. 719(3.1). In considering whether any enhanced credit should be given, the court will consider both the conditions of the presentence incarceration and the impact of those conditions on the accused. [Emphasis added]

[71] In my view, the combination of the information from the Lockdown Reports and the affidavit filed by Mr. Niyongabo provides a basis for this Court to give Mr. Niyongabo an enhanced credit pursuant to Duncan, but the issue is how should it be calculated. Courts have applied this credit differently, and there is no accepted formula associated with the calculation of the enhancement.

[72] I provided counsel with cases where I have considered the Duncan credit. In my earlier decision of R. v. Kabanga-Muanza, 2018 ONSC 1161, I considered several cases following the Duncan decision. Mr. Kabanga’s time in custody did not include triple bunking, but nevertheless the lockdowns were numerous and had an adverse impact on him. I was not prepared to follow the approach in Weir and at para. 112, I stated that I would not meticulously scrutinize the lockdown records to determine the length of the lockdowns in terms of hours, but I did reduce the number by 33% to reflect the fact that all of the lockdowns were not for a full day. In R. v. Burke, 2018 ONSC 5183, I also granted the offender a credit at the rate of 2:1 for the days spent in lockdown, which I found was justified even though Mr. Burke had been able to accomplish a lot while in custody despite adverse conditions. I did state, however, at para. 68, that I would not say that every case justifies a 2:1 credit.

[73] I will reduce the total number of lockdowns in this case for two reasons. First of all, it is likely that not all partial lockdowns involved the unit Mr. Niyongabo was in. Certainly, I have no evidence that he was impacted in every case. As for the lockdowns that did not last all day, I am not going to do a meticulous review but certainly a lockdown that begins after 6 p.m. could not have the same impact as one that began in the morning. I appreciate it is somewhat arbitrary, but I will reduce the total lockdowns of 172 to 115, which reflects a downward adjustment of about 33%. This means that I have found that of the 521 days Mr. Niyongabo has spent at the TSDC with respect to this offence, about 22% has been spent in lockdown.

[74] Having made this adjustment, I am prepared to give Mr. Niyongabo an additional credit of .5 days for the 115 days in lockdown or 57.5 additional days. I agree with Ms. Thompson that it is not satisfactory that the TSDC is still experiencing regular lockdowns due to staff shortages. This Court has repeatedly criticized this problem; see for example R. v. Jama, 2018 ONSC 1252, [2018] O.J. No. 1130 (S.C.J.) at paras. 20-21, R v J.B., 2016 ONSC 939, (S.C.J.) at para. 22 and most recently in R. v. Persad, 2020 ONSC 188, [2020] O.J. No. 95 (S.C.J.) a decision of Schreck J. where at paras. 31-37 he characterized these lockdowns as a form of deliberate state misconduct and granted a further credit of one and a half days of credit for each day spent in lockdown. In that case, however, the time in lockdown represented 47% of the offender’s time in jail. Furthermore, there is no doubt that some of the staffing issues now must be due to the pandemic. For these reasons I am not prepared to award Mr. Niyongabo a bigger credit.

[75] Having already found that the Summer’s PSC Credit at 1.5 to 1 equals 795 days, adding the Duncan credit brings the total credit to 852.5 days or two years and 123 days or about two years and four months.

Conditions of Custody due to the COVID-19 pandemic

[76] Ms. Thompson submitted that a further enhanced credit should be provided to Mr. Niyongabo because since mid-March 2020, he has been subjected to the limitations imposed as a result of the COVID-19 pandemic. She suggested an additional half day for every day since mid-March 2020. Although she submitted that there was a significant threat of infection and that this is concerning, she provided no evidence in support. The only evidence from Mr. Niyongabo as to how the COVID-19 pandemic has impacted him is his statement that programming has become limited because volunteers can no longer come into the jail and run programs that he would like to participate in. He did not give any specifics of programs that he would have liked to take but was unable to.

[77] Ms. McCallum submitted that there should be no additional credit since the risk of infection at the TSDC has not really materialized because they have taken appropriate action. She referred to a website, although did not produce a print-out, which stated that they currently have five COVID-19 cases and two have been resolved. She also pointed out that there is no evidence that Mr. Niyongabo is at any increased risk of COVID-19 and he has been able to receive some services, including seeing a psychiatrist and taking certain courses.

[78] In my view there are two questions to consider. First of all, should the Duncan credit be increased because of the additional impact of the pandemic on Mr. Niyongabo’s time in custody since March 2020, and in particular the lack of programming and secondly, since the pandemic is not going to go away any time soon, should there be any downward adjustment of the length of the sentence that I impose?

[79] The Court of Appeal has made it clear that a fit sentence cannot be shortened because of the impact of the pandemic, at least in the absence of any evidence that the offender is uniquely vulnerable to the virus. In R. v. Lariviere, 2020 ONCA 324 at para. 15-17, the court stated as follows:

15 The appellant does not in any way suggest that the original sentence imposed was unfit.

16 The COVID-19 pandemic does not impel us to intervene and disturb a sentence that is fit: R. c. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089. We adopt the approach from R. v. Morgan, 2020 ONCA 279 (Ont. C.A.), in which this court recognized the impact of this virus on our society, at para. 8:

We do, however, believe that it falls within the accepted bounds of judicial notice for us to take into account the fact of the COVID-19 pandemic, its impact on Canadians generally, and the current state of medical knowledge of the virus, including its mode of transmission and recommended methods to avoid its transmission.

17 However, there is nothing about the particular circumstances of the appellant’s incarceration, nor any indication of a unique or personal vulnerability, that would justify shortening the fit sentence that was imposed. [Emphasis added]

[80] Ms. Thompson referred me to R. v. Hearns, 2020 ONSC 2365, [2020] O.J. No. 1648, (S.C.J.) a decision of Justice Pomerance released in April 2020, a month before the release of Lariviere. She had been presented with a joint submission that the sentence imposed be time served plus probation. Pomerance J. took judicial notice of the fact that social distancing is very difficult to maintain in custodial settings and that inmates are consequently at a greater risk of infection; and that the risk of COVID-19 in prison settings translates into an increased risk for the community at large. At para. 15 she stated that the pandemic might soften the requirement of parity with precedent and she went on at para. 16 to state as follows:

COVID-19 also affects our conception of the fitness of sentence. … Fitness looks, not only at the length of a sentence, but the conditions under which it is served. As a result of the current health crisis, jails have become harsher environments, either because of the risk of infection or, because of restrictive lock down conditions aimed at preventing infection. Punishment is increased, not only by the physical risk of contracting the virus, but by the psychological effects of being in a high-risk environment with little ability to control exposure.

[81] After considering R. v. Lacasse, 2015 SCC 64, para. 58 Justice Pomerance stated at para. 18, that “specific circumstances,” which could result in a sentence that falls outside a particular range, would, in today's environment, include the ramifications of the current health crisis. She concluded at para. 20 that a sentence may be reduced where it is necessary to account for other punitive consequences, or where the sentence would have a more significant impact on an offender:

In this case, the impact is not attributable to the characteristics of the offender, though in some cases there may be heightened vulnerability. The impact is attributable to the social conditions of the time, which are very different than those in the past. COVID-19 is not a mitigating factor in the classic sense. However, it adversely affects conditions of imprisonment, and increases health risks for those in jail. On that basis, it is an important part of the sentencing equation.

21 I offer two caveats to this analysis.

22 First, I am not suggesting that the offender receive more than the statutory credit for pre-sentence custody. The accused is entitled to credit on a 1.5 to 1 basis and that is what he will receive. I am not at liberty to assign credit beyond that prescribed in the Code. The question is not whether, looking backwards, the offender is entitled to more credit. The question is whether, looking forward, the pandemic warrants reduction of the sentence yet to be served. The question is whether the sentence already served, calculated with 1.5 to 1 credit, is a sufficient penalty. Given the pandemic, it may be that a sentence of shorter duration is not only tolerable, but appropriate, in the interests of personal and public safety.

23. Second, I am not suggesting that the pandemic has generated a "get out of jail free" card. The consequences of a penalty - be they direct or collateral - cannot justify a sentence that is disproportionately lenient, or drastically outside of the sentencing range. It cannot turn an inappropriate sentence into an appropriate one or justify dispositions that would place the public at risk. See: R. v Day, [2020] N.J. No. 72, 2020 NLPC 1319 A00658 at para. 1. It is ultimately a question of balance. As noted by A.J. Goodman J. in R. v. T.K., 2020 ONSC 1935, at para. 74:

In summary, even in these very challenging times, the court must fully recognize the potential harmful health impact on detained persons in the various institutions, while at the same exercising the balancing required to sustain its fundamental role in the administration of justice and protection of the public.

24 That balance is best informed by our collective approach to these issues. During these challenging times, people are being asked to call upon their sense of community, decency and humanity. That humanity must obviously extend to all individuals, including those incarcerated due to criminal charges or convictions. There will be cases where release from custody is not a viable option. There must be consideration of the safety of the community and the need for a proportionate sentence. Where, however, a period of time served can address sentencing principles, even imperfectly, our sense of humanity tells us that release from prison is a fit and appropriate response. [Emphasis added]

[82] I am also familiar with some cases from the Ontario Court of Justice, where a COVID-19 credit was considered and granted because of the additional mental and physical hardship suffered by the offender. In some cases that has been inferred without evidence from the offender. In some of those cases an additional half day for each day served during the pandemic has been granted. Many of those cases were decided early on, however, before it was known how the pandemic would impact infections in the institutions.

[83] I accept that Mr. Niyongabo is at an increased risk of infection while incarcerated because it is difficult if not impossible to maintain social distancing. However, he gave no evidence that he is concerned about the threat of infection or that he is uniquely vulnerable. Furthermore, my understanding is that the TSDC has been able to handle the situation well. In any event, given that he would likely spend at least some time on release in a shelter given that he is homeless, I could not say that his situation if released would be different in terms of the risk of infection with the virus. Given Lariviere, in these circumstances, in my view, in the absence of any evidence of unique vulnerability to the virus, there is no basis to reduce what would otherwise be a fit sentence. I do, however, have the jurisdiction in my view to consider whether or not the Duncan credit should be increased because of the lack of programing since March 2020. I must be careful, however, not to give Mr. Niyongabo credit twice for the same set of circumstances as I have already considered what additional credit he should receive as a result of the lockdowns.

[84] I presume that there would have been better programing for alcohol addiction, such as the Alcoholics Anonymous course, had the volunteers been able to attend the TSDC, and it is reasonable to infer that Mr. Niyongabo would have taken advantage of that. I am prepared to give him an additional small credit for the lack of this type of programming. In my view an additional month is sufficient. This brings the total PSC credit for time served to two years and five months, which means he has seven months left to serve. Once he is released, a period of probation of two years will reinforce the objective of protecting the public.

Disposition

[85] For these reasons, Mr. Niyongabo, I sentence you as follows.

[86] With respect to your conviction on Count # 1 - sexual assault, contrary to s. 271 of the Criminal Code, I sentence you to three years in custody, less a pre-sentence credit of two years and five months, which means you have seven months left to serve.

[87] Once you are released from custody you will be subject to a period of probation for two years. In addition to the compulsory conditions of this probation order, provided for by section 732.1(2) of the Criminal Code, the additional conditions of the order pursuant to s. 732.1(3) of the Code are as follows:

i. Report within two working days of your release, in person, to a probation officer and thereafter when required by the probation officer; ii. Remain within the Province of Ontario unless written permission to go outside the Province is obtained from the court or the probation officer; iii. Reside at an address approved of by the probation officer; iv. Do not change your address without the prior approval of the probation officer; v. Abstain from the purchase, possession or consumption of any drugs, or other substances prohibited by law, except in accordance with a medical prescription; vi. Attend and actively participate in counselling programs or treatment program(s) for alcohol addiction, sexual autonomy and gender equality and other issues as recommended by your probation officer and sign releases to monitor compliance as needed; vii. Continue to see a psychiatrist for treatment of your mental health issues and take all medication as prescribed; viii. Make reasonable efforts to complete your high school diploma and further your education or vocational training and/or find and maintain suitable employment either as an employee or business owner and provide progress reports to your probation officer as directed; ix. Abstain from owning, possessing or carrying any weapon as defined in the Criminal Code; x. Do not apply for nor possess a firearms acquisition certificate or any other form of gun license; xi. Do not have any contact directly or indirectly with S.M., or be within 100 meters of where she is known by you to be; xii. Do not have any contact with, or be in the company of, or associate with anyone known by you to have a criminal record or who is the subject of criminal charges except for members of your family or persons you come into contact with because of your housing, employment, school or counselling.

[88] In addition, there will be a mandatory weapons prohibition order pursuant to s. 109(1) of the Criminal Code for 10 years.

[89] I also make a DNA order in Form 5.03 authorizing the taking of a DNA sample on the primary ground pursuant to s. 487.051(1) of the Criminal Code. The manner in which this sample is to be taken, given that Mr. Niyongabo is not able to come to the courthouse, is to be determined with input from the Crown, before the conclusion of this sentencing hearing.

[90] In addition, pursuant to ss. 490.012(1) and 490.013(2)(b) of the Criminal Code, I make an order in Form 52 that Mr. Niyongabo’s name be added to the Sex Offender Registry and that he complies with the Sex Offender Information Registration Act for 20 years.

[91] Finally, pursuant to s. 743.21 of the Criminal Code, Mr. Niyongabo shall not communicate directly or indirectly with the complainant, S.M., while he is in custody.

[92] Mr. Niyongabo, a copy of the Probation Order will be given to you at the TSDC and if any questions please contact Ms. Thompson. Please pay very careful attention to all of these conditions. I must tell you that breach of any of these conditions will be taken very seriously by this Court. You must appreciate that incarceration will likely result if any of the conditions of your probation are breached. I hope that the terms that I have imposed will bring home to you the seriousness of your conduct and assist you in remaining a productive and law-abiding member of our community once you are released from custody.

“Spies J.”

Spies J. Released: August 7, 2020 Edited Released: August 10, 2020

COURT FILE NO.: CR-19-1-122 DATE: 20200807 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – NELSON NIYONGABO Defendant

SENTENCING DECISION SPIES J. Released: August 7, 2020