WARNING

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

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

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

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

Court Information

Ontario Court of Justice

Date: June 22, 2017

Court File No.: Ottawa 15-13328

Between:

Her Majesty the Queen

— and —

Ubong Akpan

Before: Justice Julie I. Bourgeois

Decision released on: June 22, 2017

Counsel:

• Mr. B. Bencze, counsel for the Crown
• Mr. N. St-Pierre, for the defendant

Decision

BOURGEOIS J.:

Reasons for Sentence

[1] These are my reasons for the sentence of Mr. Akpan following his conviction after trial pursuant to Section 271 of the Criminal Code. Mr. Akpan was found guilty of forcing his cellmate to perform fellatio on him without the victim's consent on three occasions during their incarceration at the OCDC, the Ottawa-Carleton Detention Centre, on November 5th, 2015.

[2] The Crown proceeded by way of indictment. The maximum penalty is not to exceed 10 years. There is no minimum penalty but a conditional sentence is not available as per subsection 742.1(f)(iii) of the Criminal Code.

[3] The applicable ancillary orders are as follows: a SOIRA order pursuant to Section 490.012(3) of the Criminal Code for life pursuant to Section 490.013(5) of the Criminal Code. A firearm prohibition for life pursuant to Section 109. A DNA order pursuant to Section 487.04 of the Criminal Code as a primary compulsory designated offence.

[4] The Crown is also seeking a non-communication order with Mr. M.L. pursuant to Section 743.21 of the Criminal Code. And finally, a victim surcharge. There is one count by indictment so the amount is $200.

The Accused's Background

[5] A presentence report was ordered at the request of defence counsel on behalf of Mr. Akpan. We find that Mr. Akpan is a 30 year old man, 31 perhaps by now. Probation records now indicate discording information as to his personal and family background but it appears he might have been born in Nigeria and come to Canada as a preteen with no maternal figure in the home. However, earlier notes from 2011 and 2012, probation files, indicate he was born and raised in Ottawa by both his parents. In any event, he reports being a Canadian citizen with three younger adult brothers. He attended both high school and university here in Ottawa and successfully completed both as what he described a B average student. He maintained employment throughout his adult life and does not report any addiction or mental health issues.

Position of the Parties

[6] The Crown is seeking a three and half to four year penitentiary sentence less the pre-trial custody calculated at the enhanced credit of 1.5 to 1 ratio pursuant to Section 719(3.1) of the Criminal Code and the above noted ancillary orders.

[7] Defence counsel is seeking a 12 to 18 month jail sentence less the pre-trial custody calculated at an enhanced credit above the 1.5 to 1 ratio on the basis of a common law remedy to reflect the qualitative factors of his presentence custody in segregation for an extended period of time.

Principles of Sentencing

[8] The sentencing principles are enunciated under Section 718 of the Criminal Code, the purpose of the sentence. In this case, denunciation and general and specific deterrence are paramount but the Court cannot lose sight of the prospects of rehabilitation.

[9] Section 718.1 refers to the fundamental purpose. A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. And Section 718.2 discusses parity. Another sentencing principle, particularly applicable in this case, paragraph (b), a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Paragraph (d), an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances.

[10] The step principle was also discussed in this case. It is understood that a subsequent sentence for the same type of offence as the prior sentence is generally higher than the previous one: a step up from the previous sentence. Defence counsel argued that this ought not to be applicable in this case because he had not yet been sentenced at the time of this offence and therefore could not have learned from such a sentence yet.

[11] In determining the appropriate sentence in this case, I first need to determine the range of sentence and then determine the credit that ought to be considered for the pre-trial or presentence custody. I will first look at the aggravating factors.

Aggravating Factors

[12] The first one I believe, is the criminal record. Not only is it building up to become expanded and varied, it starts in 2007 with an obstructing police and breach of conditions. 2011 a refuse to provide a sample of his breath and also an assault. In 2013, a theft. But most importantly there is a recent and related conviction of sexual assault. At the time of this offence on November 5th, 2015, he had been convicted on September 21st, 2015 and was awaiting sentence on that recent conviction.

[13] At the time of this offence, he had been in custody for approximately 15 months. He was sentenced to three years on the sexual assault count on January 21st, 2016, received 22 months credit for his presentence custody, and therefore had 15 months to serve on that count plus 30 days consecutive for the theft conviction in relation to stealing the money from the same victim as the sexual assault.

[14] The second aggravating factor is the repetition of the sexual assault. In this case, on three occasions on the same day. In the context of an application of force to obtain the fellatios but also in apprehension of further physical violence against Mr. L.

[15] The third aggravating factor I believe is the obvious vulnerability of the victim not only by the situation of the confinement, Mr. L. was placed in by his incarceration within the same cell as his aggressor, but the vulnerability of Mr. L.'s personal circumstances, especially when stacked against Mr. Akpan's situation. His drug addiction - he was coming off a street drug binge. The difference in physical size and intellectual, emotional, and general aptitude and abilities. Mr. L. was a 25 year old man with a grade 8 education while Mr. Akpan was a 30 year old man with a university education. Mr. L. suffers from foetal alcohol spectrum, brain trauma, ADHA, PTSD and suffering from general anxiety. Mr. Akpan has no history of suffering from any physical, mental or addiction issues.

[16] The fourth aggravating factor is the impact of the crime on the victim. Mr. L. described being scared, ashamed, disgusted, humiliated. He explained feeling "messed up" since the offence and qualified it as "quite a nightmare."

[17] And finally, the fifth aggravating factor is found in the presentence report. The offender was assessed by probation services as a high risk offender within our community.

Mitigating Factors

[18] Now looking at the mitigating factors. We find ourselves hard pressed to address a list of mitigating factors. As I indicated during submissions, the absence of aggravating factors does not become mitigating and the absence of mitigating factors do not form part of the aggravating factors. For example, the absence of remorse or the absence of the plea of guilt does not become aggravating factors. It is simply absent from the list of mitigating factors.

[19] But we can identify the following element; even though the offender's response to community supervision was not optimal in the past, his positive attitude towards employment and his desire to return to his employment brings some form of hope in his rehabilitation as part of the bigger plan. He is a 31 year old repeat offender but with a postsecondary education, a good work track record and plans for future employment.

Determination of Appropriate Sentence Range

[20] Properly framed, the offender is arguing that his pre-trial and presentence custody ought to be considered at an enhanced credit above the 1.5 to 1 ratio pursuant to Section 719(3.1) or alternatively as a mitigating factor in his case. As indicated the first step in determining a fit sentence is to establish the appropriate range in this case. The Crown views it at three and a half to four years incarceration while defence sees it at 12 to 18 months jail.

[21] The defence presented the case of R. v. Ozurus, [2004] O.J. No. 351. I found this case of very little assistance. The only resemblance to this case is the actual sexual assault being one fellatio, but in a very different context. The accused entered the victim's home to collect a debt the husband owed him. He refused to leave and ordered the victim to give him fellatio. The accused's personal and criminal background was completely different than the offender before this Court. The Crown in that case argued that 12 months jail was the appropriate sentence given the totality of the circumstances and the background.

[22] The Court at paragraph 18 expressed concerns about the seriousness of the offence. But given the positive presentence report, the assessment of prospects of rehabilitation, the consequences of the conviction and the offender's family situation and responsibilities, concluded that 18 months conditional sentence being available in that case was the appropriate disposition followed by 12 months probation.

[23] It is not clear in this case whether the offender is seeking probation. He is seeking a time served disposition and is arguing that if jail is imposed as sought by the Crown then once he is released, there would be nothing else. However, if probation is included in the disposition then treatment can be imposed. However, he expressed reservation through his counsel about the opinion of the author of the presentence report at page 7 of the report that he ought to be considered for a maximum period of supervision after addressing a list of elements classifying him as a high-risk offender.

[24] He thought however it was a prejudicial opinion and was unsure what it was based on. He also took the position that it was the reason why the sentencing judge in his sexual assault conviction from January 2016, did not impose a reporting condition in his probation order as a result of the problems he had with probation in the past.

[25] A reading of the reasons however, does not tend to support that position specifically. At page 16 of his reasons for sentence, the judge indicated, "He has not been cooperative with probation." The non-reporting probation order comes on the heels of a three year jail sentence for the sexual assault less 22 months pre-trial custody so 14 months left to serve on that count and 30 days jail consecutive for the theft.

[26] The Crown sought a probation, given the ultimate sentence to be served was less than two years, and at page 18 asks for, "Probation just with regards to no contact." The defence response on this point at page 19, "That's a difficulty when there's already been evidence before the Court with regard to difficulties that Mr. Akpan has had on probation."

[27] Addressing the offender's comment through his counsel that he felt he was being honest with the probation officer and did not understand the perception that he was guarded: this perception might take its root in the very basic information such as his family upbringing having drastically changed from one report to the next as indicated at page 3 of the presentence report.

Comparative Case Law

[28] The Court received three cases from Crown counsel and all three are informative about sexual assault from fellow inmate sentencing range. R. v. Smith, [2010] ONCA 612, is in the context of a dangerous offender designation with three prior convictions for sexual assault. But the factual basis is the thrusting of genitals for a few seconds against the buttocks area of a cellmate lying under a sheet and a blanket on his bunk bed. The Court determined a sentence in excess of two years was in the range.

[29] R. v. Charles, [2008] SKCA 108, was a sexual assault conviction in relation to thrusting the penis towards the anus of a sleeping acquaintance while in the drunk tank at the police station. The Saskatchewan Court of Appeal at paragraph 17 indicated that it was an error to qualify this offence as "low end sex assault." And after reviewing the case law in context of the principle of parity, confirmed the range of sentence being established at three years. Mr. Charles had a prior sexual conviction and after crediting him for the pre-trial custody, sentenced him to 30 months in jail.

[30] R. v. Bonnetrouge, [2013] N.W.T.J. No. 117, paragraph 33, discusses the first adult conviction for this individual in relation to sexually assaulting a cellmate by engaging in intercourse while he was sleeping. It attracted a three year jail sentence.

[31] Except for the Smith case from the Ontario Court of Appeal, they are not all binding authorities on the issue of the appropriate range of sentencing. But it is certainly convincing in assisting as it relates to qualifying the seriousness of this offence and determining the appropriate range.

[32] In conclusion, a penitentiary term is required. Twelve to 18 months is not in the range as suggested by the defence and it would seem to be an inappropriate range.

Application of the Step Principle

[33] Counsel for the offender argues that the step up principle ought not to apply in this case given that he had not yet been sentenced for the conviction for September 2015 at the time of this offence in November 2015 and could not have learned yet from this sentence.

[34] The difficulty with this argument is that it ignores the context of the situation he found himself in. He had been convicted after trial and detained for approximately 15 months on those charges by the time he committed the offence before this Court. One would think that his detention ought to have triggered some sense of behavioural acknowledgement and nexus or a link between his status and his sexualized behaviour. For example, if you behave as such in society you will be jailed and separated from society. This might be useful as well in this case to note that if you behave as such in jail, you will be segregated from the inmate community.

[35] Contrary to the argument by counsel, it appears Mr. Akpan is a risk to society and needs to be separated from society to protect its members, especially its more vulnerable members as his conviction in September 2015 was for an offence against a woman while out of custody. And now his offence before this Court is against a man while in custody.

[36] I see no reason to impose a sentence that is more lenient than the last sentence imposed for sexual assault offence or a sentence more lenient than what other inmates received under similar circumstances with or without the step principle. Under these circumstances, the range proposed by Crown counsel of three and a half to four years is appropriate.

Pre-Trial Custody Credit

[37] The next question is the determination of the enhanced credit to be attributed to the pre-trial or presentence custody. As indicated earlier, the offender is seeking a common law remedy of enhanced credit in addition to the 1.5 to 1 ratio pursuant to Section 719(3.1) of the Criminal Code as a result of his pre-trial or presentence custody spent entirely in segregation.

[38] I already discussed his custodial history earlier but it bears repeating here. At the time of the offence before this Court on November 5th, 2015, he was in custody, having been found guilty on September 21st, 2015 of a sexual assault and a theft for an offence dated August 27th, 2014. He was sentenced on January 21st, 2016 to three years' jail on the sexual assault plus 30 days jail on the theft. He was credited for 22 months of pre-trial custody and therefore 14 months was left to serve on the sexual assault conviction plus 30 days on the theft.

[39] Documentation provided by defence counsel from the OCDC Institution dated April 12th, 2017 filed as an exhibit on this hearing, indicates that the offender was in segregation since December 8th, 2015 either at the OCDC Institution or at the Quinte Detention Centre on three occasions for a period of one to five days.

[40] Mr. Akpan testified about his time in segregation, alone in his cell. He indicated that the cell was smaller than the one he shared with the victim in this case. The cell was not clean, not painted, food stains were observed on the wall and floor and there were ants in his cell. He has a bed and a window but it is covered with a gloss sheer and therefore unable to see outside. He did not interact with other inmates at all, only with the guards. He was offered 20 minutes per day unless in lockdown and he estimated that to be at least once a month and could last for two or three days.

[41] In-Chief however, he estimated being offered to go outside about two or three times a week. Of course, he could not keep a precise record of it because he testified that he was not given a pencil in segregation. He was not told the reason for the lockdowns either. He has access to showers three times a week if not in lockdown compared to three times a day for an hour "if you wanted to" when he was not in segregation. He has access to the phone if not in lockdown. He testified that he was able to see the doctor and received mental health services. He indicated that he recently saw a psychologist or a psychiatrist on June 1st and discussed his health situation. He testified feeling in a state of depression being unable to move when waking up, having to eat in bed and being silent unless interacting with the guards and waking up angry about being in segregation.

[42] He testified in cross-examination that the psychiatrist has not returned to administer the medication they had discussed.

[43] He also testified that no program was offered for his rehabilitation, no schooling, no access to TV or radio but access to books. When it was suggested to him that he was kept in segregation for his and for other's safety, he answered that he would rather be with others than be concerned with security.

[44] It is obviously not an ideal situation for him and ultimately, I understand his evidence to be that he finds it difficult to be kept away from others and not to be able to interact with other inmates. But ultimately, he was placed in segregation as a result of his behaviour in November 2015; the circumstances that gave rise to the offence before this Court. He was not placed in segregation as a result of a lack of resource at the institution or to compensate for a lack of service. His segregation started approximately one month after he sexually assaulted his cellmate. Indeed, it started the day of his remand on the charge before this Court.

[45] Mr. Peter Plouffe, the security manager at the OCDC testified about the segregation summary prepared through the regular operations of the institution and reviewed by himself, it was filed as Exhibit Number 4 in this hearing. That summary describes the services received by or the activities of the offender daily and/or weekly. They include the cultural religious support, psychology, social work, nursing and mental health nursing.

[46] Mr. Plouffe also testified as to the size of the cells Mr. Akpan was housed in, his access to TV and the number of lockdowns and their reasons. Specifically, he described the following lockdowns. Between November 20th and December 22nd, 2016 there was one unit lockdown for one evening because of staff shortage. On February 24th through 26th, 2017, there was a three day lockdown for weapon search. All inmates were affected by this lockdown. On March 3rd, one day lockdown for the installation of the CCTV services. On March 15, a one day lockdown as a result of the PA system failure. On March 31st, half a day lockdown to reboot all doors at the institution. And on May 29th to June 2nd, a five day lockdown for weapon search at the institution.

[47] In fact, there's a total of 10.5 days of lockdown where the offender and all other inmates were affected by the lockdowns during this entire period of time. But the offender specifically was not affected by the one evening lockdown for shortage of staff given his segregation situation. He would have already been in his cell and therefore not affected by this one. But more importantly this is the only lockdown in relation to shortage of staff.

[48] In the end, I find Mr. Akpan's evidence about his time in segregation, the conditions and how it impacted him, to be exaggerated. For example, he was offered routine and regular outings to the yard, so more than two or three times per week as he had stated in his testimony. But what he failed to tell this Court is that he declined each and every offer of yard time and fresh air. More importantly, he failed to explain that he was offered alternatives to his segregation situation either in October or November but also more recently this past April and May, either to reintegrate to a regular pod but be placed alone in a cell or a reintegration pod referred to as the step down units. He failed to explain why he refused those alternatives. It appears Mr. Akpan wanted his way, that is to benefit from a cellmate on a regular pod or nothing else.

[49] He also failed to describe the number of hours since this past March when he was benefitting from the Out of Cell Program in dorm 2 and where he spent from 3.5 to 10 hours per week out of his cell. This program was put in place by the institution to alleviate the impact of the segregation on the inmates.

[50] I am convinced that extended time and segregation can surely take its toll on an inmate, but to refuse what is offered by the institution to alleviate the harshness of the segregation is not reasonable. There is no medical or psychological reason to explain this refusal and there is no evidence that any medical or psychological or psychiatric services were lacking while in segregation. In fact, to the contrary, it was made available and the services were used weekly and sometimes daily.

Legal Framework for Pre-Trial Custody Credit

[51] The Supreme Court of Canada in R. v. Summers, [2014] SCC 26, offers a complete history and answer to this issue of credit for time spent in custody prior to trial or sentence. Section 719(3) reads:

In determining the sentence to be imposed on a person convicted of an offence, a Court may take into account any time spent in custody by the person as a result of the offence but the Court shall limit any credit for that time to a maximum of one day for each day spent in custody.

[52] Paragraph 719(3.1) reads:

Despite subsection 3, if the circumstances justify it, the maximum is one and one half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8).

[53] The Supreme Court in Summers was called upon to interpret the phrase "when the circumstances justify it" and to clarify when enhanced credit at a rate higher than one for one is available. The Supreme Court at paragraph 70 of Summers confirmed that the analytical approach endorsed in their earlier decision in R. v. Wust, remains unchanged. But there is now a statutory maximum credit of 1.5 days for every day served:

Judges should continue to assign credit on the basis of the quantitative rationale, to account for the lost eligibility for early release and parole during presentence custody, and the qualitative rationale, to account for the relative harshness of the conditions in detention centres.

[54] At paragraph 71, the Court continued:

The loss of early release taken alone will generally be a sufficient basis to award credit at the rate of 1.5 to 1 even if the conditions of detention are not particularly harsh and parole is unlikely. Of course, a lower rate may be appropriate when detention was a result of the offender's bad conduct or the offender is likely to obtain neither early release nor parole.

[55] The Supreme Court specifically addresses the particular offender's prospects of early release and at paragraph 75 states, "for many offenders, the loss of eligibility for early release and parole will justify credit at a rate of 1.5 to 1." However, as Beveridge J.A. concluded:

… it is not an automatic or a foregone conclusion that a judge must grant credit at more than 1:1 based on loss of remission or parole. (R. v. Carvery, at paragraph 60). If it appears to a sentencing judge that an offender will be denied early release, there is no reason to assign enhanced credit for the meaningless lost opportunity.

[56] At paragraph 79 and 80, the Supreme Court confirms that the onus is on the offender to demonstrate that he should be awarded enhanced credit as a result of his presentence detention given his loss of eligibility for parole or early release. Therefore, as a result of the quantitative factor or as a result of the qualitative rationale that conditions in remand centres such as overcrowding or the lack of schooling or rehabilitation program. The Crown can challenge these inferences. The offender is asking the Court to draw the inferences in granting the enhanced credit of 1.5 to 1.

[57] At paragraph 80, the Court provides examples where the Crown can do so by demonstrating that:

The accused's conduct in jail suggests that he is unlikely to be granted early release or parole. The judge may be justified in withholding enhanced credit.

[58] At paragraph 17, the Supreme Court, quoting from the Court of Appeal for Ontario in their decision, clarified that it is not every remand offender who will be granted enhanced credit under section 719(3.1) on the basis of lost eligibility for early release or parole; "These may be circumstances justifying credit but only if the accused would probably have received early release or parole."

[59] Later in the paragraph, "Certain offenders are expressly excluded from Section 719(3.1) and are therefore entitled to no more than one for one pre-trial credit under section 719(3)."

[60] If the reason for detaining a person in custody is stated in the record under Section 515(9.1), that is the justice orders a detention primarily because of previous conviction of the accused and state that reason in writing in the record, or detained under Section 524(4) or (8) for example, having breached a bail condition, then the limit is one for one credit.

[61] At paragraph 31, the Court explained that when expanded pre-trial custody could be attributed to the bad conduct of the accused, such as breaching bail conditions, this militates against enhanced credit and they refer us to the 1996 Ontario Court of Appeal decision in R. v. Rezaie.

[62] When addressing the first consideration, the quantitative rationale for the practice of granting enhanced credit, the Court ensures that the offender does not spend more time behind bars than if he had been released on bail.

[63] At paragraph 24, the Supreme Court refers us to the Corrections and Conditional Release Act and explains that:

[...] parole becomes available to a federal inmate after one third of the sentence had been served, (S. 120), and the statutory release is available once two thirds of the sentence has been served, (S. 127(3)). Provincial inmates can earn essentially equivalent "earned remission", absent bad conduct, credited at 15 days per month as calculated under the Federal Prisons and Reformatory Act. (Emphasis Added)

[64] The Court also explained that to avoid the double dipping and the use of pre-trial or presentence custody, circumstances that speak to the relative harshness of presentence custody as opposed to serving a sentence are relevant. And circumstances related to the offender such as an early guilty plea, moral blameworthiness or remorse will generally be relevant only to the determination of a fit sentence and not be assigned credit under Section 719(3) or (3.1).

[65] In Summers, there was no basis to conclude that the offender would have been denied parole or early release and therefore it was not an error to grant him enhanced credit at the ratio of 1.5 to 1 to account for the loss of that opportunity based on the quantitative rationale.

Application of Enhanced Credit Jurisprudence

[66] Counsel for the offender relies on four decisions where enhanced credit was granted to the accused given the qualitative rationale of the impact of the presentence custody of the accused. They are R. v. Doyle, [2015] ONCJ 492, R. v. WV, [2016] ONSC 7661, R. v. JB, [2016] ONSC 939 and R. v. Gardiner, [2016] OCJ 45.

[67] All of these cases refer to a body of evidence leading to a conclusion that the qualitative pre-trial or presentence custody justified enhanced credit. Sometimes, a modest one but all in relation to the harshness or quality of the time spent in custody as a result of the institution's decisions or means dealing with the offender's needs. For example, in Doyle, it was the medical needs. The offender was suffering from diabetes. It had not been properly treated and approximately one quarter of the time was spent in lockdowns.

[68] In Gardiner, there was an inordinate amount of lockdowns during the labour dispute leading to a sustained reduction of normal privileges and an assault by another inmate leaving Mr. Gardiner with a broken jaw.

[69] In WV, there was an extended time in segregation or protective custody unit for his own protection as a result of the nature of his conviction. There were frequent lockdowns, infestation of mice, poor air quality, long wait times for medical and dental attention, mold and over-population.

[70] In R. v. JB, there were a significant number of lockdowns during his pre-trial custody when presumed innocent with only a very small portion of it related to the offender's own misconduct. It amounted to harsh conditions and a minimal enhanced credit was granted.

[71] These offenders therefore received such enhanced credit in addition to the maximum cap under Section 719(3.1) because of one form or another of state conduct and the impact it had on each of these offenders.

[72] Counsel for Mr. Akpan mentioned during submissions the report of the task force put together by the Ministry in the recent past discussing the frequent lockdowns and the problem being discussed in the local news. I was not provided a copy of the report or any specific details about it but the evidentiary basis on this record does not allow to conclude the situation was or continues to be in such a state as discussed in the local news some time ago. In fact, the evidence of Mr. Plouffe speaks to the steps taken by the institution and offered to Mr. Akpan to address the concerns for the inmates in segregation specifically in this case.

[73] The time Mr. Akpan spent in segregation was brought on himself as he ended up in segregation only after he appeared on remand for having sexually assaulted his cellmate on December 8, 2015. The institution certainly has a duty to protect other inmates from the potential risk Mr. Akpan poses.

Custodial History Summary

[74] A summary of the history of Mr. Akpan's pre-trial and presentence custody is probably useful here. August 21st, 2014 the first sexual assault and theft offence, he was brought in custody as a result. September 21st, 2015, he was convicted of those offences and he was in custody. November 5th, 2015, the second sexual assault, the offence before this Court, he was in custody. December 8th, 2015, he was remanded for this offence and placed in segregation. January 21st, 2016, he was sentenced for the first sexual offence, credited 22 months, 14 months to serve. His release date was November 20th, 2016. December 5th, 2016, was the first day of trial for the second sexual offence, the one before this Court. December 22nd, 2016, he was released on bail on this second offence, the one before this Court. On January 27th, 2017, he was found guilty of the second offence by this Court. His bail was revoked by this Court and he was remanded into custody as a result of the conviction. The matter was adjourned for sentence. A presentence report was sought and ordered.

[75] April 19, 2017, the sentence was adjourned by defence to prepare for submissions. April 25th, 2017, the sentence was adjourned. The prisoners were brought in late. The Court had a trial list to address. The parties agreed it was not a time served situation so it could be adjourned. May 19th, 2017, submissions started but the issue of the segregation and the enhanced credit in addition to the 1.5 for 1 ratio was raised by counsel. Therefore it was adjourned to allow counsel to fully argue the issue with supporting materials and/or evidence.

[76] June 12th, 2017, some additional materials were provided and the offender testified. It was adjourned to allow Crown counsel to call evidence in response. June 15th, 2017, it was adjourned to allow defence to review the responding materials disclosed by the Crown with the offender. And today, June 21st, the sentencing hearing was completed.

Sentencing Decision

[77] After considering the totality of the circumstances of the offence, including the aggravating circumstances and the very limited mitigating circumstances, the principles of sentencing particularly deterrence specific to Mr. Akpan and generally to others of like mind and denunciation to society and to the carceral community, to know what to expect in similar circumstances, I am of the view that the appropriate sentence in this case, is one of 4 years' jail.

Pre-Trial Custody Credit Calculation

[78] Mr. Akpan spent from November 20th, 2016 after the release date of his last sentence until his release on bail on this information on December 22nd, 2016, that is 33 days. This is the only period of time he spent in pre-trial custody and presumed innocent. There was a second period from January 27th, 2017 upon conviction and revocation of his bail as a direct result of the conviction for the offence before this Court until today, June 21st, is 145 days for a total of 178 days.

[79] The offender spent the entire time of his pre-trial and presentence custody in segregation as a result of the offence before this Court. There is no basis to send a message to the authorities through this sentencing for the behaviour or the actions of the institution.

[80] I see no basis to grant the offender an enhanced credit above the statutory cap of 1.5 credit to 1 as per Section 719(3.1) as a result of his own behaviour. The revocation of his bail as a result of the conviction for sexually assaulting his cellmate and therefore not only bad conduct while in custody but also returning to custody because of that bad conduct is almost akin to what Section 719(3.1) seeks to address when excluding the enhanced credit in situation pursuant to Section 515(9.1) or Section 524(4) or (8). But it might also have a direct impact on his early release or parole.

[81] In any event, the Crown is not seeking a lesser credit than that provided for under Section 719(3.1) and the parties come before this Court jointly seeking the 1.5 to 1 ratio. I will therefore, not disturb that position.

[82] As a result, Mr. Akpan spent a total of 178 days of custody at a ratio of 1.5 days is equivalent of 267 days or almost nine months. He ought to be credited for that period of time leaving 39 months to be served on this sentence of four years. The ancillary orders as indicated earlier are also granted.

Victim Surcharge Discussion

MR. ST. PIERRE: If I may Your Honour...

THE COURT: Yes.

MR. ST. PIERRE: ...the victim fine surcharge for $200. Provided that my client will spend approximately 39 months in jail, I'm not sure what kind of powers now the Court is entitled to allow in terms of impose or give him more time to – to pay his fine but certainly, he will not be able to pay until he actually comes out of jail and then....

THE COURT: I have no difficulty with four years if that's what you're looking for.

MR. ST. PIERRE: I'd be – I'd be asking for five if possible.

THE COURT: Or five.

MR. ST. PIERRE: Just to allow him to come out and find employment afterwards.

THE COURT: The presentence report discusses his financial ability but given the sentence, I have no difficulty with five years.

MR. ST. PIERRE: Thank you.

THE COURT: So, five years then for the victim surcharge.

Released: June 22, 2017

Signed: Justice J. Bourgeois