Court File and Parties
COURT FILE NO.: 247/19 DATE: 20210702 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Storey
BEFORE: CM Smith J.
COUNSEL: Lisa Wannamaker, Counsel for the Crown Lydia Riva, Counsel for the Defendant
HEARD: January 26, 2021
Reasons for Sentence
Introduction
[1] On September 29th 2020 I convicted Mr Chad Storey of one count of possession of child pornography contrary to section 163.1(4) of the Criminal Code of Canada (“the Code”), one count of making sexually explicit material available to a child contrary to section 171.1(1) b of the Code, one count of sexual interference contrary to section 151 of the Code and one count of assault contrary to section 266 of the Code. One count of luring a child contrary to section 172.11 B of the Code and one count of invitation to sexual touching contrary to section 152 of the Code were dismissed.
Positions of the Parties
[2] The Crown seeks a penitentiary sentence of 6 years. The Crown argues that as there are two complainants involved in two distinct incidents that sentence should be apportioned between the two matters consecutively so as to total 6 years.
[3] The defence seeks a sentence of 90 days on the making sexually explicit material charge, which is the statutory minimum. The defence also seeks a concurrent sentence of 90 days on the sexual interference charge and 30 days on each of the common assault and possession of child pornography charges, also concurrent. The custodial sentence would be followed by a lengthy probationary term. The defence bases this submission on the fact of the defendant’s intellectual challenges and the fact that he was on stringent bail conditions from the time of his arrest in January 2017 through and including this date.
Circumstances of the Offences
[4] This matter arises as a result of a brief relationship of some two to three months between Mr Storey and the complainant, HW, in the fall of 2016. At that time Mr Storey was 21 years of age while the complainant was only 13. The relationship very quickly advanced to full sexual intercourse on a number of occasions. Mr. Storey did not use a condom. The ability of HW to consent to the activity in question was vitiated by virtue of her age and the provisions of section 150.1(1) of the Code.
[5] The brief relationship ended sometime near the end of November or beginning of December 2016 when the parties became involved in an argument which culminated in a physical confrontation. Shortly thereafter HW made an assault complaint to the police. When police eventually learned of HW’s sexual relationship with Mr. Storey, charges of sexual touching and sexual interference were laid in addition to the common assault charge. Mr Storey was arrested and charged with those offences on December 6, 2016. He was interviewed by police and released on a promise to appear.
[6] Sometime after December 6, 2016 the police developed reasonable probable grounds to believe that Mr Storey had been engaging in inappropriate communication of a sexual nature over social media with another young girl named A.D. Mr. Storey had become acquainted with AD through HW as the two girls were friends. This communication involved suggestions by Mr Storey that she engage in sexual activity with him. There was also an exchange of inappropriate intimate photographs. Mr Storey was re-arrested on January 4, 2017 and charged with luring, possession of child pornography and making sexually explicit material available to a minor.
Circumstances of Mr Storey
(a) General background
[7] Defence counsel declined my offer of a pre-sentence report in this matter preferring instead to rely on the contents of the assessment prepared in this matter by Dr. Erica Martin Ph.D., C. Psych. of the CORE Therapy and Assessment Centre. Dr. Martin is a clinical and forensic psychologist who was retained by the defence to prepare a psychological assessment about Mr Storey including his background and the history underlying his intellectual disability. Dr. Martin gave viva voce evidence about that disability at the voluntariness voir dire held in this matter. Dr. Martin’s assessment, dated December 2, 2019, was made exhibit 2 in this sentencing proceeding.
[8] Mr Storey was born February 22, 1995 making him 21 years of age at the time of these offences. He was in the mainstream system at an elementary school from kindergarten through grade 6 at which point he switched to the special education stream for grades seven through eleven.
[9] Mr Storey spends his days skateboarding and riding his BMX bike. He aspires to become a professional BMX bike racer. He is also quite passionate about fishing.
[10] Mr Storey supports himself by way of the ODSP disability pension program as a result of his intellectual disability. He resides with his parents who have been very supportive of him throughout his life. That support continues.
[11] Mr Storey was on strict, house arrest bail conditions from the time of his arrest in January 2017 until the present time.
[12] Mr Storey has a criminal record which was made exhibit 1 on the sentencing hearing. It is limited to a conviction for uttering threats when he was 16 as well as a more recent conviction for break and enter for which he received a suspended sentence and probation. Since his arrest on these charges Mr Storey was convicted of 1 count of breaching his recognizance for which he was sentenced to one day in jail.
[13] Mr Storey has a limited work history. He worked for a brief period of time in the construction industry “hauling bricks”. He also worked at a local pizza restaurant and a car wash through his high school co-op program.
(b) Mr. Storey’s intellectual disability
[14] Doctor Martin opines that Mr Storey has an IQ of 50 which places him in the lowest 1% of the IQ range, the average IQ being somewhere between 90 and 110. In other words, 99% of similarly aged peers of Mr Storey have a higher intellectual ability.
[15] Mr Storey apparently functions in the extremely low range in terms of adaptive functioning, adaptive skills needed to effectively and independently care for oneself, respond to others and meet environmental demands at home, school, work, and in the community.
[16] Mr Storey’s social cognition was tested by Dr. Martin. His results on those tests show him to be in the 1st percentile in all areas looked at in the test which included nonverbal communication, emotional memory and learning, emotion and affect regulation, incentive sensitivity, comprehension of others and one’s own emotions and moral and ethical judgement. Doctor Martin testified that 99.99% of people in Mr Storey’s age group would have better overall cognitive and adaptive functioning skills.
[17] Dr. Martin concluded that Mr Storey meets the criteria for an intellectual disability in the mild to moderate range. In the concluding paragraph of her report Dr. Martin summarized Mr. Storey’s situation as follows:
Based on the results of the current assessment, at this time it is difficult to determine with certainty whether Mr Storey has a fulsome understanding of the nuances of language (both verbal and non-verbal) as well as a more general comprehension of social norms, social cues, emotional language, prosodie and its relationship to the meaning of what was said, and other such factors that would be relevant in social interactions and the understanding of what is appropriate or not with respect to behavior. Given that Mr Storey is functioning in the mild - moderate range of intellectual disability, and specifically with a FS IQ in the extremely low range, his interpretations and understandings of the world are concrete, and have likely contributed to problematic behavior across the lifespan.
Victim Impact Statements
[18] Neither AD nor HW chose to prepare victim impact statements.
Mitigating Factors
[19] There can be no doubt that Mr Storey faces a number of challenges. His intellectual disability apparently precludes him from obtaining meaningful work and has had a negative effect on his educational career.
[20] Mr Storey’s criminal record is largely unrelated and consists of only three entries. His only prior custodial sentence was for one day on the breach of recognizance charge.
[21] Mr Storey comes from a very supportive home. One or both of his parents were in attendance at court on each day of this proceeding. It is my understanding that they chose to do so out of concern for their son, not simply because of Mr. Storey’s strict bail conditions.
Aggravating Factors
[22] The most significant aggravating factor in this case is the fact that Mr Storey, an adult male, decided to engage in sexual activity with a child aged 13, apparently without any real or appropriate consideration of the victim's age.
[23] The sexual activity in question involved multiple acts of full vaginal intercourse through to ejaculation. Mr. Storey did not wear a condom. There was also at least one act of fellatio.
Prospects for Rehabilitation
[24] There is nothing before me to suggest that Mr Storey is anything other than a good prospect for rehabilitation through whatever counseling, treatment and therapy might be made available to him. In fact, Dr. Martin’s report outlines a long history of Mr. Storey participating willingly in counselling and therapy sessions, seemingly without complaint. I therefore have no reason to believe that he would be anything other than a willing participant in such programs.
Purpose and Principles of Sentencing
[25] I have carefully considered the purpose and principles of sentencing set out in s. 718 of the Code. The objectives of that section include denouncing unlawful conduct and the harm done to victims, deterring offenders and other persons from committing offences, separating offenders from society where necessary, rehabilitating offenders, to provide reparations for harm done to victims and to promote a sense of responsibility in offenders.
[26] I have also paid particular attention to the provisions of section 718.01 of the Code which directs me to give primary consideration to the objectives of denunciation and deterrence when imposing a sentence for the abuse of a person under the age of 18 years.
[27] One of the fundamental principles of sentencing is set out at section 718.1 which requires a sentence to be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[28] Other sentencing principles are to be found in section 718.2 which requires that a sentence be increased or reduced to account for any relevant aggravating or mitigating factors relating to the offence or the offender. The aggravating factors set out therein include evidence that an offender in committing the offence abused a person under the age of 18 years as well as evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation. That section also provides for comparable sentencing in cases involving similar offenders and similar offences committed in similar circumstances. The importance of not depriving an offender of liberty where less restrictive measures would be appropriate is also emphasized.
The Case Law
[29] Counsel have supplied me with a number of authorities in support of their respective positions.
[30] The Crown in this case relies solely on the recent decision of the Supreme Court of Canada in the case of R. v. Friesen, 2020 SCC 9, [2019] S.C.J. No. 100. In that case the court held that sentences for offenders who sexually abused children need to go higher. I quote from paragraph 116 of the decision:
While sexual violence against either a child or an adult is serious, Parliament has determined that sexual violence against children should be punished more severely. First, Parliament has prioritized deterrence and denunciation for offences that involve the abuse of children (Criminal Code, s. 718.01). Second, Parliament has identified the abuse of persons under the age of 18 as a statutory aggravating factor (Criminal Code, s. 718.2 (a)(ii.1)). Third, Parliament has identified the abuse of a position of trust or authority as an aggravating factor; this is more common in sexual offences against children than in sexual offences against adults (Criminal Code, s. 718.2 (a)(iii); L.V., at para. 66). Fourth, Parliament has used maximum sentences to signal that sexual violence against persons under the age of 16 should be punished more severely than sexual violence against adults. The maximum sentence for both sexual interference and sexual assault of a victim under the age of 16 is 14 years when prosecuted by indictment and is 2 years less a day when prosecuted summarily. In contrast, the maximum sentence for sexual assault of a person who is 16 years or older is 10 years when prosecuted by indictment and 18 months when prosecuted summarily (see Criminal Code, ss. 151 (a) and (b), and 271 (a) and (b)). This is a clear indication in the Criminal Code that Parliament views sexual violence against children as deserving of more serious punishment. These four legislative signals reflect Parliament’s recognition of the inherent vulnerability of children and the wrongfulness of exploiting that vulnerability.
[31] The Court particularized this approach in paragraph 114 of the decision where it held as follows:
D. (D.), Woodward, S. (J.), and this Court’s own decisions in M. (C.A.) and L.M. make clear that imposing proportionate sentences that respond to the gravity of sexual offences against children and the degree of responsibility of offenders will frequently require substantial sentences. Parliament’s statutory amendments have strengthened that message. It is not the role of this Court to establish a range or to outline in which circumstances such substantial sentences should be imposed. Nor would it be appropriate for any court to set out binding or inflexible quantitative guidance — as Moldaver J.A. wrote in D. (D.), “judges must retain the flexibility needed to do justice in individual cases” and to individualize the sentence to the offender who is before them (at para. 33). Nonetheless, it is incumbent on us to provide an overall message that is clear (D. (D.), at paras. 34 and 45). That message is that mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances. We would add that substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim, as in this case, Woodward, and L.M. In addition, as this Court recognized in L.M., maximum sentences should not be reserved for the “abstract case of the worst crime committed in the worst circumstances” (para. 22). Instead, a maximum sentence should be imposed whenever the circumstances warrant it (para. 20).
[32] At paragraph 136 of the decision the Court expressed particular concern about cases involving victims who were adolescent girls;
At the same time, courts must also be particularly careful to impose proportionate sentences in cases where the victim is an adolescent. Historically, disproportionately low sentences have been imposed in these cases, particularly in cases involving adolescent girls, even though adolescents may be an age group that is disproportionately victimized by sexual violence (Benedet, at pp. 302, 304 and 314; L. (D.O.), at pp. 464-65, per L’Heureux-Dubé J.). In particular, sexual violence by adult men against adolescent girls is associated with higher rates of physical injury, suicide, substance abuse, and unwanted pregnancy (I. Grant and J. Benedet, “Confronting the Sexual Assault of Teenage Girls: The Mistake of Age Defence in Canadian Sexual Assault Law” (2019), 97 Can. Bar Rev. 1, at p. 5; “The ‘Statutory Rape’ Myth”, at p. 269; R. v. Hess, [1990] 2 S.C.R. 906, at pp. 948-49, per McLachlin J.).
[33] I also note the Court also acknowledged, at paragraph 91, that “offenders who suffer from mental difficulties that impose serious cognitive limitations may have a reduced moral culpability”.
[34] In my view the Friesen decision is the controlling authority when it comes to sentencing decisions in cases involving sexual offences generally and particularly against adolescent girls.
[35] The first case proffered by the defence is R. v. M.C., [2020] O.J. No. 3226, a decision of De Fillipis J. of the Ontario Court of Justice. M.C. was a 66-year-old friend of the 8-year-old complainant’s family. When the complainant stayed over at his home one-night M.C. put his hand down the complainant’s pants and briefly fingered her genital area. He stopped when asked to do so. M.C. eventually pleaded guilty to one count of sexual interference. The Crown in that case sought a custodial sentence of 6-9 months while the defence suggested a conditional sentence. Notwithstanding the Defendant’s unblemished record, obvious remorse and difficult family situation De Fillipis J. found that the defendant had a high degree of moral culpability and sentenced him to three months in custody. In doing so he cited and considered the decision in the Friesen case.
[36] In my view the M.C. case is of little assistance given the huge disparity between the facts of that case and those of the case at hand. Furthermore, the M.C. case involved a guilty plea and a heartfelt demonstration of remorse, both of which appear to be absent in this case.
[37] The defence also cited the case of R. v. Basit, [2011] O.J. No. 4246, another decision of the Ontario Court of Justice. That case involved a 19-year-old accused who had regular weekly sexual intercourse for almost two years with a girl who was only 11 years old when the abuse started. Oddly, the accused was apparently warned by police to have no further sexual contact with the girl. When he chose to ignore that instruction he was charged. Mr Basit pleaded guilty to sexual assault and sexual interference and was sentenced to 23 months imprisonment. The trial judge felt that denunciation and deterrence were the primary considerations notwithstanding Mr. Basit’s youth, unblemished history, expression of remorse and an expert’s report that indicated a lack of underlying pathology.
[38] Again, this case is of little assistance to me given that it involved a guilty plea coupled with an expression of remorse. More importantly though, the Basit case would appear to be what the Supreme Court of Canada had in mind in Friesen when it suggested that sentences for offenders who sexually abuse children need to go higher: see Friesen, paragraph 116. In my view, were Basit being heard today, rather than ten years ago, on those facts Mr. Basit would likely be heading off to the penitentiary for an upper single digit term.
[39] The defence has also directed me to the case of R. v. Hales, 2013 ONCJ 343, [2013] O.J. No. 2915, also a decision of the Ontario Court of Justice. There the accused pleaded guilty to a variety of offences, including one count of sexual interference, arising from an 18 month relationship with a complainant who was between 13 and 15 years of age at the time, while the accused was somewhere between 20 and 22. The relationship included “occasional” sexual intercourse which did not begin until the complainant turned 14. Nadel J. took into account the fact that the complainant in that case apparently “consented” to the activity in question, that her mother knew about the sexual activity and took no steps to stop it, and the fact that the accused was maturing and taking positive steps to become successful. Mr. Hale was sentenced to the minimum sentence then allowed by law, namely, 45 days plus probation.
[40] I have also been supplied with a copy of the sentencing decision in the case of R. v. R.J.B., 2007 ABPC 61, [2007] A.J. No. 223, a decision of the Alberta Provincial Court. In that case a 19-year-old accused who pled guilty to sexual interference for having protected sexual intercourse twice with a 13-year-old complainant was sentenced to the minimum sentence of 45 days plus two years probation. There the court considered the complainant’s willingness to engage in the sexual activity in question as well as her reluctance to participate in the court proceedings. The court also found that the accused’s risk to reoffend was very low, he had no prior record, he was moderately impaired intellectually and he suffered from epilepsy.
[41] Again this case is of little assistance to me given that it is a decision of a provincial court from another province, and that it is rather dated. It also involved an accused who pleaded guilty, as well as a “willing” complainant who was reluctant to participate in the prosecution. I do recognize though that defence counsel proffered this case because one of the factors that the trial judge took into account in imposing the minimum sentence available was the fact that the accused in that case had a moderate intellectual impairment and suffered from epilepsy.
The Appropriate Sentence in this Case
[42] As I have already indicated, I take the view that the Friesen case is now the controlling authority in cases of this nature. Friesen establishes quite clearly that the only fit and appropriate sentence for a case involving sexual intercourse between an adult male and a 13-year-old child is a penitentiary sentence, the only question being the number of years.
[43] The court in Friesen suggested that a mid to upper single digit sentence is appropriate even for a first offender convicted of a single incident of this nature. This case involves several such incidents. It also involves 2 complainants.
[44] The words “mid single digits” can only mean one thing: the midpoint between one and 9, being 5 years.
[45] The Crown seeks a sentence of 4 to 5 years for the sexual offences involving the complainant HW and a further three months consecutive to that for the common assault charge involving HW. The Crown seeks a further consecutive sentence in the range of 9 to 21 months for the offences involving AD such that the aggregate sentence is six years. The Crown submits that such a sentence would most effectively address the need to denounce both the offender and the offences, as well as deterring others from engaging in similar behavior. The Crown submits that such a sentence constitutes a fit and appropriate sentence in all of the circumstances of this case. I agree.
Other factors to be Considered
[46] Having determined a fit and appropriate sentence for this case, I turn now to a consideration of three other factors which need to be considered before I impose sentence in this matter. Those are, of course, what impact, if any, the fact of Mr Storey’s intellectual challenges, his lengthy time under restrictive bail conditions, his pre-trial custody, and the current COVID-19 crisis, should have on his sentence.
(i) Intellectual challenges
[47] Canadian courts have for a long time recognized that in some cases an accused’s moral blameworthiness is reduced for the purposes of sentencing by virtue of a recognized and diagnosed intellectual disability. As is the case with most aspects of sentencing the assessment of the impact of an individual’s intellectual disability is a fact-specific exercise and not an automatic rule: see Friesen at para 23. Also see R. v. Manitowabi, 2014 ONCA 301 at paras 55-57 and R. v. Ellis, 2013 ONCA 739 at paras 107-127.
[48] Canadian courts have also cautioned sentencing judges dealing with this issue about committing one of two potential errors, each of which is the flip side of the other. The first such error occurs when a judge is indifferent to the question of whether the offender’s intellectual disability has reduced his moral blameworthiness. The second such error is the reverse of that, namely assuming an offender’s moral blameworthiness for an offence is reduced automatically by virtue of the intellectual disability: see R. v. Okemow 2017 MBCA 59, [2017] M.J. No.173 at para 73.
[49] In its decision in Okemow the Manitoba Court of Appeal suggests a series of 3 questions that a sentencing judge might wish to consider when sentencing offenders with some form of intellectual disability. It is a sensible approach. Those questions are as follows:
(1) Is there cogent evidence that the offender suffers from a recognized mental illness or some other cognitive limitation? (2) Is there evidence as to the nature and severity of the offender’s mental circumstances such that an informed decision can be made as to the relationship, if any, between those circumstances and the criminal conduct? (3) Assuming the record is adequate, the sentencing judge must decide the offender’s degree of responsibility for the offence taking into account whether and, if so, to what degree, his or her mental illness or cognitive limitation played a role in the criminal conduct.
[50] I would answer the first question in the affirmative as in my view Dr. Martin's report constitutes cogent evidence that Mr Storey suffers from a cognitive limitation.
[51] As for the second question I note that Dr. Martins report runs to some 17 pages. The background information portion alone accounts for five of those 17 pages. It includes information about Mr Storey’s childhood, his education and work history, his relationships, his mental health history and current functioning as well as his substance use and legal history. A great deal of the content of those sections comes directly from Mr Storey himself. His parents also made an extensive contribution to that portion of the report.
[52] The balance of Dr. Martin's report is made up of current assessment findings based on a variety of assessment tools, being psychological tests, which were used by Dr. Martin to measure the extent of Mr. Storey’s intellectual disability. Those tests included the Weschler Adult Intelligence Scale, Fourth Edition (WAIS-IV), the Adaptive Behaviour Assessment System, Third Edition (ABAS-3), and the Advanced Clinical solutions for WAIS-IV and WAIS IV (ACS), Social Cognition.
[53] The results of those tests caused Dr. Martin to find as follows:
Specifically, Mr Storey meets DSM-5 criteria for an intellectual disability as follows:
Criterion A; Mr Storey demonstrates deficits in several areas of intellectual functioning, including overall IQ, poor judgment, deficits in academic learning, impaired abstract thinking, poor reasoning and problem solving.
Criterion B: Mr Storey demonstrates deficits in adaptive functioning across all domains that limit his ability to participating (sic) independently in several activities of daily life, across multiple environments.
Criterion C: The onset of Mr Storey’s intellectual and adaptive deficits is in early childhood.
[54] Ultimately Dr. Martin concluded that “Mr Storey meets DSM-5 criteria for an intellectual disability in the mild-moderate range.”
[55] I am therefore satisfied that Dr. Martin’s Report provides the requisite detail about the nature and severity of Mr Storey’s mental circumstances to allow an informed decision to be made as to the relationship, if any, between his circumstances and the criminal conduct that brings him before this court.
[56] Having answered questions 1 and 2 in the affirmative I turn now to a consideration of whether and, if so, to what degree Mr Storey’s mental illness played a role in the criminal conduct that brings him before this court.
[57] In order to properly answer that question it seems to me that it is necessary to consider whether Mr. Storey’s intellectual disability affects him in such a way that he is rendered unaware of the consequences likely to follow from his actions; see R. v. Manitowabi, 2014 ONCA 301, R. v. Walle, 2012 SCC 41 and see R. v. Ellis, 2013 ONCA 739.
[58] In considering that question I first note that nowhere in her report does Dr Martin suggest that Mr Storey’s intellectual limitations preclude him from appreciating the potential consequences of his actions.
[59] I also take into account some of the evidence given by Mr. Storey during the course of the trial, that being as follows: (1) HW testified that Mr. Storey told her that he could no longer be with her because she was telling people about their relationship and their age difference. (2) Mr Storey testified that he and HW agreed not to tell anybody about their relationship because he knew it was wrong to be having sex with HW. (3) Mr Storey testified that he knew that HW was, in his words, “jailbait”. (4) In one of his statements to police Mr Storey acknowledged that he knew the age of consent to be sixteen. (5) Mr Storey also told police that he had sexual intercourse with HW after finding out she was only thirteen. (6) In the course of his testimony Mr Storey said “of course I would lie to a cop.”
[60] In the face of evidence such as that, and in the absence of any clear indication by Dr. Martin that Mr Storey does not appreciate the consequences of his actions, I am simply unable to find that Mr Storey’s intellectual challenges operated in such a way as to render him unaware of the potential consequences of the actions and decisions he took which resulted in him being brought up before this court.
[61] On the strength of the evidence before me I am obliged to conclude that Mr Storey’s moral blameworthiness is not reduced by his intellectual disabilities such as to displace the need in this case for a sentence focused on the principles of denunciation and deterrence set out in s.718 of the Code.
(ii) COVID-19
[62] Defence counsel quite properly submits that it is incumbent upon me to consider the current COVID-19 pandemic and its impact upon people in custody in the course of my decision regarding the quantum of sentence in this matter.
[63] The Province of Ontario has been shut down on an on again off again basis since March 2020. During that time the pandemic has received almost constant 24/7 coverage in the media. As a result, I believe I can comfortably take judicial notice of the fact most experts agree that the pandemic will last at least through the fall of this year, perhaps longer. It is also widely understood that the risk of contracting the virus is increased in circumstances involving large numbers of people in close quarters with one another. Correctional facilities are such places. While correctional authorities have struggled mightily to try to contain and control the risk of contracting the virus on their premises there can be no doubt that inmates are at greater risk of contracting the virus in such facilities. That risk is currently a collateral consequence of each custodial sentence imposed during the pandemic.
[64] The issue of collateral consequences of sentencing was considered by the Supreme Court of Canada in the recent case of R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496. At paragraph 56 of that decision Moldaver, J. held that “collateral consequences of a sentence cannot be used to reduce a sentence to the point where the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender.”
[65] That principle has now been considered against the backdrop of the COVID-19 pandemic by a number of my colleagues. In one such case Boswell J did reduce a sentence that was not as long as the one contemplated here in order to minimize the COVID risks to that particular offender. To be clear though, Boswell J only did so after satisfying himself the sentence he decided to impose remained “true to the overarching principle of proportionality.”: see R. v. M.W., 2020 OJ No. 2590 at paragraph 52.
[66] A similar approach was used by Pomerance J. in R. v. Hearns, 2020 ONSC 2365, [2020] O.J. No. 1648 (see paragraphs 20-23) and by A.J. Goodman J. in R. v. T.K., 2020 ONSC 1935 (see paragraph 74).
[67] The only sentence I could impose that would allow Mr Storey to avoid the experience of being in custody during any part of the COVID-19 pandemic would be one of time served. That is obviously not a sentence that is proportional to the gravity of the offence and the moral blameworthiness of Mr Storey. I would not impose such a sentence.
[68] Any reduction I might choose to make in Mr Storey’s sentence as a result of COVID 19, while ensuring that the sentence is fit and appropriate, would still result in him being in the penitentiary beyond the expected course of the pandemic. That being the case I will not make a COVID-19 reduction but rather, will leave the matter to the correctional authorities and the National Parole Board.
(iii) Restrictive bail conditions and pre-trial custody
Pre-trial Custody
[69] Mr Storey was arrested and charged with counts 4, 5 and 6 on the Indictment on December 6, 2016. He was released later that day from the police station.
[70] On January 4, 2017 Mr. Storey was re-arrested and charged with counts 1 through 3 on the Indictment. On that occasion he was held in custody.
[71] Mr Storey was granted bail and released on a recognizance with sureties on January 9, 2017.
[72] Mr Storey therefore has seven days pre-trial custody to his credit which when grossed up at the usual rate of 1:5 to 1 result in a total credit for pre-trial custody of 11 days
Restrictive Bail Conditions
[73] The recognizance of bail Mr Storey entered into on January 9, 2017 contains a 24 hour per day seven day a week house arrest condition. He is required to reside with his surety, being his mother, each and every night and he is to observe a 24-hour curfew in his residence except while in the company of either parent. There were no exceptions for education or employment activities.
[74] At the time of his arrest on these charges Mr Storey’s daily activities apparently consisted of skateboarding, riding his BMX bike and fishing. That no doubt may strike some as being relatively little to give up. However, the fact is those activities constituted Mr Storey’s daily routine at the time. The fact of the house arrest conditions has therefore precluded Mr Storey from engaging in that routine. Some might say his home became his jail.
[75] While it has long been the practice to give credit, often enhanced credit, for pre-trial custody it has only recently been recognized that restrictive bail conditions should be taken into account as a relevant mitigating circumstance by a trial judge contemplating a fit and appropriate sentence.
[76] Stringent bail conditions, especially those associated with house arrest, are a significant curtailment of an individual's liberty. That is particularly the case where, as here, house arrest conditions prevent an accused from engaging in his regular activities or accessing employment and educational opportunities. House arrest is seen as a punishment in some circumstances. No doubt, for an accused subjected to such conditions it must feel that way. Nevertheless, time spent under stringent bail conditions does not factor into the calculation of parole eligibility.
[77] The credit, if any, to be given for restrictive bail conditions is dealt with on a case by case basis. There is no set formula for calculating the amount of credit to be given, rather it is within the sole discretion of the sentencing judge. The sentencing judge must consider a number of factors in making the determination including the stringency of the bail conditions, the length of time the individual was subject to those bail conditions, the impact of the conditions on the individuals liberty, as well as the extent to which the individual's ability to carry on normal relationships and activities was affected by the conditions: see R. v. Downes, [2006] O.J. No. 555.
[78] It is generally for the offender to supply the sentencing judge with information as to the impact of the bail conditions. In this case the only information I have received about that issue has been set out above. I suspect that is because there is no other information to share, the bail conditions having essentially precluded Mr Storey from engaging in his regular daily activities, or from seeking out and engaging in educational and employment opportunities.
[79] The Crown quite properly points out that at no time since January 2017 did Mr Storey seek to change his bail conditions, something which is routinely done in the courts of this province, often with the consent of the Crown.
[80] The Crown also points out that Mr Storey was convicted of breaching his recognizance in February 2019, an offence for which he received a sentence of one day in jail. I note parenthetically that it was a lucky day for Mr Storey when the Crown chose not to apply for an order under s. 524 of the Code cancelling his bail.
[81] Notwithstanding Mr Storey’s breach I simply cannot ignore the fact that he has been on house arrest for some 50 months, just over 4 years. The defence has supplied me with the case of R. v. Battista, 2011 O.J. No. 4867, being the reasons for sentence of Parfett J in a case involving a similar period of time under highly restrictive bail conditions. In that case Justice Parfett found, at paragraph 38, that such a length of time under restrictive bail conditions was reason enough on its own, without more, to give credit which she fixed at 11 months.
[82] I see no reason not to follow Justice Parfett’s approach. I will therefore exercise my discretion and credit Mr Storey for his time on restrictive bail conditions. I fix that credit at 11 months. I also credit Mr Storey credit for his pre-trial custody which I have already set at 11 days. For the sake of ease of all calculations relating to this sentence, including parole eligibility calculations, I will round that figure up to a total of 12 months.
The Sentence
[83] Mr Storey is therefore sentenced to a total of five years in the penitentiary. I apportion that sentence as follows: (i) On count 4, being the charge of sexual interference contrary to s.151 of the Code, I sentence Mr Storey to 45 months in the penitentiary. (ii) On count 6, being the charge of assault contrary to s.266 of the Code, I sentence Mr Storey to a further three months in the penitentiary to be served consecutively to the sentence on count 4. (iii) On count 2, being the charge of possession of child pornography contrary to s.163.1(4) of the Code, I sentence Mr. Storey to a further 12 months in the penitentiary to be served consecutively to the sentences on counts 4 and 6. (iv) On count 3, being the charge of making sexually explicit material available to a minor contrary to s. 171.1 (1) (b) of the Code, I sentence Mr. Storey to 12 months in the penitentiary to be served concurrently with the sentence on count 2.
[84] The aggregate sentence is therefore 5 years.
Ancillary Orders
(i) Pursuant to the provisions of section 490.012(1) of the Code I am ordering Mr Storey to comply with the provisions of the Sex Offender Information Registration Act. In accordance with the provisions of s. 490.013(2.1) of the Code that registration shall be for life.
(ii) Pursuant to the provisions of section 487.05(1) of the Code I am authorizing the taking of a sample of bodily substance from Mr Storey that is reasonably required for the purpose of forensic DNA analysis and for registration on the DNA data bank.
(iii) Pursuant to the provisions of section 109 of the Code I am ordering that Mr Storey be prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for a period of 10 years.
(iv) Pursuant to the provisions of s. 743.21 of the Code I am making an order prohibiting Mr Storey from communicating, directly or indirectly, with either victim in this matter during the custodial period of his sentence.
(v) While I am cognizant of the fact that Mr Storey first met HW in a skateboard park, I am not satisfied that his behavior in this matter rises to the level of predatory behavior that the provisions of s.161 of the Code were designed to address and control. I also note that the communication between Mr. Storey and AD which gave rise to counts 2 and 3 was done through the internet. Mr. Storey and AD knew each other. This was not a case of someone trolling the internet for potential victims thereby giving rise to a need to control that person’s access to the internet. That being the case, I decline to make a s. 161 order.