WARNING

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

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

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

( a ) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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

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

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

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

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

Ontario Court of Justice

Date: 2024 07 16 Court File No.: BRAMPTON 22-4085

Between:

HIS MAJESTY THE KING

— AND —

Nimal Ranatunga

Before: Justice A. R. Mackay

Heard on: March 18, 2024 Reasons for Judgment on Sentence given Orally: April 15, 2024 Released in Writing on: July 16, 2024

Counsel: Emily Beaton....................................................................................... counsel for the Crown Brendan Monk .......................................................................................... for the defendant

MACKAY J.:

[1] On December 7, 2023, I found Mr. Ranatunga guilty of sexually assaulting MF. The detailed facts are set out in my judgment; however, I will briefly refer to the relevant facts here.

[2] Mr. Ranatunga and MF had dated for approximately four months prior to the night in question, March 27, 2022. The parties had consented to have sexual intercourse, but MF advised Mr. Ranatunga that he would have to wear a condom and he agreed. However, while they were engaged in sex, Mr. Ranatunga removed his condom without first getting MF’s permission to do so. When they were finished, he told her that she would have to go with “Plan B”; that is, take a morning after pill to prevent pregnancy. MF stayed the night and when the couple woke up, after some brief conversation, Mr. Ranatunga advised MF that he wanted to remain friends and was not interested in having a relationship with her.

Impact on the Victim

[3] MF was severely traumatized by Mr. Ranatunga’s actions. She read her victim impact statement to the court. After the incident, MF became very depressed and withdrawn. She now does not trust men. She believes that she can no longer protect herself despite working hard at doing so in her adult years. Her depression in turn affected her family as for a time she was not able to spend quality time with them, including her nephews. MF described how despite losing her mother at an early age, she had a very good upbringing and enjoyed a loving and supportive family. She felt violated after learning Mr. Ranatunga removed his condom. However, she did not believe she had been sexually assaulted until her friend told her she had been. She described all of the steps that she had to take to make sure that she was not pregnant and did not contract a sexually transmitted disease or worse HIV. MF did not want to go to the police at first as she was not sure what Mr. Ranatunga did was a crime and she did not know if he realized what he did was a crime. MF, after leaving the police station, felt broken because she realized that she was sexually assaulted, she thought about harming herself and called a suicide prevention line. The lady on the phone told her to go Chantel’s Place to complete a rape kit and she attended the next day. MF then decided to take an HIV and AIDs preventative medication. This treatment had an impact on her physical and mental health.

[4] After the submissions where complete, MF commenced civil proceedings against Mr. Ranatunga for damages as a result of the offence before the court. [1]

[5] WF, MF’s brother, also read out his victim impact statement. He spoke about how his sister has been traumatized by Mr. Ranatunga’s actions and that she has become a different person. For months following the assault she was withdrawn and had very little contact with her family. It took his sister two years to start the process of healing and become who she was before.

Mr. Ranatunga and his Circumstances

[6] Mr. Ranatunga is 40 years old. He was born in Sri Lanka. His family came to Canada when he was 4 years old. Mr. Ranatunga stated he had a normal childhood with respect to his home life, however, he did as a child experience racism at school. He continues to have a close and supportive relationship with his younger sister and parents. His parents worked very hard to support the family. His father is dealing with a number of serious health issues which include prostrate cancer and blood clotting.

[7] Mr. Ranatunga is single and has no children.

[8] Kekuli Ranatunga, the defendant’s sister, advised that he has a positive relationship with her toddler son. Friends of the family confirmed that Mr. Ranatunga has a close relationship with his family.

[9] Mr. Ranatunga did not have a good experience in the education system. He believed that he was subjected to systemic racism. The school he attended attempted to hold him back due to his language barrier. His parents however, advocated on his behalf and were able to have him proceed in the normal course. He did not have a lot of friends in school. By the time he reached high school he began to meet more people and described this period as his best years. However, he did suffer from social anxiety. His sister advised that her brother was bullied throughout elementary school while attending a predominately white school.

[10] Mr. Ranatunga went to college, but he was not able to find a program he enjoyed, and he did not complete any programs.

[11] Mr. Ranatunga has worked various jobs. Through an employment agency he secured a six-year job with a coffee manufacturing company working as a lead hand. He ran an independent parcel delivery business for about six years up until November 2023. A criminal record check resulted in him being removed from the schedule. It took Mr. Ranatunga a period of time to find full-time work despite actively looking. He was eventually able to find a job as a forklift operator and is working full time.

[12] Mr. Ranatunga advised that substance abuse is not an issue for him. However, he consumes marijuana daily. On the night in question the parties had consumed alcohol.

[13] There were a number of topics covered in the PSR that counsel submitted should not have been included. I agree with the parties that the summary of the victim impact statement and the officer’s comments that appear to minimize the offence should not have been included in the PSR.

[14] The author of the PSR asked Mr. Ranatunga detailed questions about his sex life. I did not think this was appropriate and will not be considering this information given the probation officer is not qualified to provide an assessment as to whether Mr. Ranatunga has issues that need to be addressed in this area.

[15] Mr. Ranatunga advised that he has suffered with depression since secondary school. He has not seen a medical professional as he is afraid of the diagnosis. He has been using cannabis to ease his depression, along with his sister’s support. He has experienced suicidal thoughts as recently as a few months ago.

[16] Ms. Ranatunga described her brother as a family-oriented man who is extremely loving to his family and friends. She confirmed that he has been depressed and having difficulty as a result of being charged with the offence before the court. She has always known her brother to treat women with respect. Mrs. Abeyesekera, a friend of the defendant, also confirmed that Mr. Ranatunga is a caring person. He has never acted aggressively in her presence, and he has always been respectful towards women. She has never known him to mistreat anyone.

[17] Mr. Ranatunga read out a letter to the court and he apologized to MF and her family for the ongoing hurt caused. I accepted at that moment that he showed remorse for his actions. He advised that he received some mental health counselling. He referred to what happened as shameful, he said after listening to MF it became clear to him that she was not consenting to what he had done, sex without a condom.

[18] Based on information from Mr. Ranatunga’s family and friends, the offence is completely out of character for him.

The Positions of Counsel

[19] On behalf of the Crown, Ms. Beaton argues that Mr. Ranatunga should receive a penitentiary sentence of 3 years. Mr. Monk submits that his client should receive a 2-year conditional sentence.

Sentencing Principles and Objectives

[20] The principles and purposes of sentencing are set out in ss. 718.1 and 718.2 of the Criminal Code. These sections set out such purposes and principles as denunciation of unlawful conduct, deterring the offender and others from committing offences, separating offenders from society where necessary, assisting in rehabilitating offenders and to promote a sense of responsibility in offenders for the harm they have done to victims or to the community. A sentencing judge must also ensure that a sentence is proportionate to the gravity of the offence and to the degree of responsibility of the offender. The sentence must be similar to sentences imposed on similar offenders who have committed similar offences in similar circumstances. I have considered each of these principles, objectives and circumstances. The primary factors for consideration in this case are denunciation, deterrence, and rehabilitation.

[21] Sentencing is a highly individualized exercise that goes beyond a “purely mathematical calculation.” [2]

Sentencing Principles Specific to Sexual Offences

[22] Control over the sexual activity one engages in lies at the core of human dignity and autonomy. [3]

[23] The Supreme Court recently in R. v. Kirkpatrick [4] held that removal of a condom when a person consents to sexual intercourse only with a condom is a sexual assault. However, prior to Kirkpatrick, the Supreme Court ruled in Hutchinson [5], in order to convict someone of sexual assault in these circumstances the Crown would have to establish that consent to have sexual intercourse was vitiated by fraud that is, that consent was obtained by lies or deliberate failure to disclose coupled with a significant risk of serious bodily harm as a result of the sexual touching.

[24] I refer to the recent changes in the law as it is in my view a factor to consider in determining what is an appropriate sentence for Mr. Ranatunga. He committed the offence on March 27, 2022. The judgment in Kirkpatrick was not released until July 29, 2022, 4 months later. At the time Mr. Ranatunga committed the offence, there was some uncertainty in the law as to under what circumstances an individual would be committing sexual assault where they removed a condom against the wishes of a complainant.

[25] Chief Justice McLachlin reiterated in Hutchinson, that the criminal law must provide fair notice of what is prohibited and clear standards for enforcement. [6]

[26] Even MF, the victim in this matter, did not think she was sexually assaulted until her friend told her she was.

[27] Kirkpatrick provided an opportunity for the Supreme Court and all courts to become greater informed about the serious harm that can occur by a sexual assault arising from a situation where an accused removed his condom knowing that the victim only consented to intercourse with a condom. Chief Justice McLachlin as she then was in Hutchinson, also recognized that depriving a woman of the choice whether to become pregnant or increasing the risk of pregnancy is equally serious as a "significant risk of serious bodily harm" within the meaning of Cuerrier [7] and may constitute a sufficiently serious deprivation for the purposes of fraud vitiating consent under s. 265(3)( c ). [8] (emphasis mine)

[28] Kirkpatrick found that non-consensual condom refusal or removal is experienced as and recognized as a form of sexual violence which generates various forms of harm.

The Court described the harms as follows at para. 60:

There are clear physical risks, but the psychological consequences are also very real. Women who have experienced non-consensual condom refusal or removal have been found to develop negative self-perception about their sexual agency and sometimes themselves (Boadle, Gierer and Buzwell, at p. 1708). Victims of non-consensual condom refusal or removal describe it as a "disempowering, demeaning violation of a sexual agreement", a violation of consent, a betrayal of trust, a denial of autonomy, and an act of sexual violence : …

[29] It is clear as stated in Friesen that "our understanding of the profound physical and psychological harm that all victims of sexual assault experience have deepened." [9]

[30] The Crown also provided Justice Fairburn’s decision in R. v. A.J.K. [10] Where the court made it clear that sexual assault cases involving forced penetration will incur a similar range of three to five years jail, regardless of whether the victim was an intimate partner or a stranger. Prior to this decision the courts had established two different ranges: the “Smith range” [11] which states the following: "In cases of sexual assault involving forced intercourse with a spouse or former spouse, sentences generally range from 21 months to four years" (emphasis added) and in R. v. Bradley [12] which is often cited as support for a three-to-five-year sentencing range involving non-intimate partners. Justice Fairburn pointed out the significant concern this has caused by various courts and held that it is time “to leave this sentencing artefact behind”. [13]

Related Cases

[31] The parties provided me with just two cases dealing with a similar factual scenario. The Court also searched for additional cases on point and could only find one more. There were other cases involving the removal of the condom where there was also forced penetration and cases where contracting HIV was a real possibility. However, the latter are clearly more serious and distinguishable from the case before me.

[32] I have only three cases in which I can review to determine what the appropriate range would be. A range is usually established from a review of a collection of cases dealing with similar fact situation for a similar offence. The following is a review of those cases.

R. v. Hutchinson, 2014 SCC 19

[33] In Hutchinson, the accused admitted to poking holes in the condoms he and the victim used. She eventually became pregnant. Based on the facts it can be inferred that the accused used a compromised condom on more than one occasion with the victim. Even if that were not the case, there was clear planning in sabotaging not only the condom but the victim’s desire to not conceive a child. She did not want to continue a relationship with him and in the end became pregnant. There was no conclusive proof that the pregnancy was in fact caused by the punctured condoms. Mr. Hutchinson received a sentence of 18 months in jail. The court found that Mr. Hutchinson’s actions were premeditated. It has not been established here that Mr. Ranatunga planned to remove his condom or that MF became pregnant. The Nova Scotia Court of Appeal upheld the conviction and sentence. The Supreme Court upheld the conviction, no sentence appeal as undertaken.

R. v. Lupi, [2019] O.J. No. 3342

[34] This was an appeal heard by the Superior Court. Justice Roberts upheld the conviction and the 15-month jail sentence. The trial judge found that Mr. Lupi removed his condom against the wishes of the victim. As soon as the victim realized that the defendant removed his condom, she stopped the sex. In addition to the sexual assault, Mr. Lupi engaged in other inappropriate sexual behaviour; including biting her face and groping her. The Lupi case focused primarily on whether the victim’s consent was vitiated by fraud. A range of sentence was not discussed by the court. The court only referred to the range suggested between the lawyers; the Crown asked for 18 months, and the Defence asked for a sentence of 90 days or a 6-month conditional sentence. Justice Roberts found that there was no basis to interfere with the trial judge’s discretion to craft a fit sentence. He noted that the accused in Hutchinson received a sentence of 18 months jail. [14] Mr. Lupi was a first-time offender who worked as an architect. He had permanent resident status and the conviction made him inadmissible and subject to deportation. The court made note that the 15-month sentence was below bottom range for a major sexual offence which was “generally 2 years” and referred to R. v. S.A. [15]

R. v. Senechal, 2020 NBQB 113

[35] Mr. Senechal met with the victim after meeting online. She advised him on two occasions that she would only consent to sex if he wore a condom. At one point she reached down and realized that he was not wearing a condom. At this point she told him to stop, and he did. The court noted that there was no suggestion that the victim contracted a sexually transmitted disease. Mr. Senechal plead guilty. The pre-sentence report was positive. Similar to Mr. Ranatunga, he experienced bouts of depression.

[36] The victim advised that the incident had a negative impact on her emotionally, physically, and economically. She suffered from panic attacks and a fear of seeing the accused in public A joint submission was recommended by the parties for a conditional sentence of 6 months. Quite surprisingly a number of cases were submitted to the court where conditional sentences were imposed for forced sexual intercourse, forced digital penetration and forced fellatio. Given the recent pronouncements from our Supreme Court and our Court of Appeal, it is unlikely that such sentences would be imposed at the present time. The Court sentenced the defendant to a 6-month conditional.

Aggravating and Mitigating Factors

[37] The most aggravating factor in this case is the trauma Mr. Ranatunga’s actions have caused MF. I will not review her victim impact statement again, but since the offence she has suffered with depression, anxiety and maintaining social connections with her family.

[38] Mr. Ranatunga also breached MF’s trust while they were dating. They became friends and she trusted him. In addition, the following morning after they had unprotected sex, he decided that this was an appropriate time to end their relationship.

[39] There are also a number of mitigating factors. Mr. Ranatunga has good rehabilitative prospects; he has a supportive family and is willing to take counselling. For most of his life he has lived a prosocial life. He lives very close to his family and at this time, his father is suffering from a number of serious health issues. Mr. Ranatunga’s parents are elderly and retired. He has always worked and has never before been in trouble with the law. His family and friends advise that the offence is completely out of character for him. They have known him to be a kind man who is respectful to women.

[40] While it came late, I found that Mr. Ranatunga showed remorse at his sentencing hearing and insight into the trauma his actions have caused MF.

Conditional Sentence

[41] Is a conditional sentence appropriate in this case. It is clear that conditional sentences will rarely, if ever, be proportionate in the context of violent sexual assault cases. The sentencing objectives of deterrence and denunciation will normally require penitentiary sentences in the 3 to 5 year range for such offences, as the Court of Appeal explained recently in R. v. A.J.K. [16] The Court of Appeal in R. v. R.S. [17] held that it may be that a conditional sentence is appropriate in some circumstances for a sexual assault at the lowest end of the range of wrongful conduct.

[42] The Ontario Court of Appeal in R. v. S.W. [18], recently allowed an appeal on a sexual assault finding that a conditional sentence was inappropriate and instead imposed a sentence of three years. The respondent and the complainant lived together and were in an intimate relationship. Over the course of one night, the respondent sexually assaulted the complainant four times while she was in bed, pretending to be asleep. Each time, the respondent penetrated the complainant's vagina with his penis and ejaculated. He did not use a condom. The complainant did not consent to the intercourse. On each occasion, she feigned being asleep, and she hoped it would stop. The respondent was found guilty of sexual assault. The trial judge imposed a conditional sentence of two years less one day (with twelve months house arrest and no curfew), followed by one year of probation.

[43] Justice Favreau reviewed in detail the Supreme Court’s decision of Lacasse, at para. 40, wherein the courts observed that "sentencing ranges are primarily guidelines, and not hard and fast rules", and therefore "a deviation from a sentencing range is not synonymous with an error of law or an error in principle”. [19] However, if the sentence imposed "departs significantly and for no reason from the contemplated sentences", this may be an indication that a sentence is demonstrably unfit. [20] The Court concluded in S.W. that the offence was a serious sexual assault and that it clearly fell within the scope of cases identified in A.J.K. usually attracting at least a three-year penitentiary sentence”. [21]

[44] "Forced" penetration refers to the lack of consent. Non-consensual sexual intercourse is inherently violent. [22] Added violence would also be an aggravating factor that would justify a sentence at the higher end of the range or, in some circumstances, beyond the higher end of the range. Justice Favreau in S.W. held that the use of the word "forced" in A.J.K. should not be taken to mean anything more than a reference to the fact the sexual assault was non-consensual. [23]

[45] Forced sexual assault in the literal meaning, to describe the physical act of not permitting a victim to move until intercourse has taken place, against their mental and physical will, is at the higher end of the most serious cases. [24] Additional or gratuitous violence, of course, increases the severity of the sentence.

[46] In the case before me there was no planning, the sexual assault was forced in the sense that no consent was given to have intercourse without a condom and its removal took place without the victim’s knowledge.

[47] It is very difficult to compare and decide which type of sexual assault is more serious than another. In almost all sexual assaults, victims suffer profound trauma.

[48] In my view while removing a condom in circumstances where the victim did not consent and was unaware is a form of violence and is an extremely serious violation of a person’s sexual agency and autonomy, it is qualitatively different in nature than a sexual assault which involves physically holding a person down against their will and penetrating them or penetrating them when they are in a state where they could not resist; for example, sleeping or intoxicated. The latter would obviously be characterized as a more violent sexual offence as was referred to in R. v. S.W. [25]

[49] The first step in determining whether a conditional sentence is available is to determine what the appropriate length would be. In my view, given the circumstances of this offence and the offender, a sentence in the range of mid to upper reformatory would be appropriate.

[50] I must next determine, pursuant to s. 742.1 of the Criminal Code, if the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2. of the Code.

[51] Given Mr. Ranatunga has been on bail for a lengthy period of time, has no criminal record and has not breached his conditions of release, I find that he would not endanger the safety of the community.

[52] The more difficult question I must address is whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2. of the Criminal Code.

[53] The case law establishes that a conditional sentence can provide deterrence and denunciation, and thus may be appropriate for a crime involving violence, even when deterrence and denunciation are paramount considerations. [26]

[54] Where an offence otherwise meets the eligibility criteria for a conditional sentence in s. 742.1, the imposition of such a sentence is not automatically excluded from consideration because the offence involves violence. [27] In Proulx, Lamer C.J.C. stated that conditional sentences can be used in cases that call for denunciation and deterrence because, although a conditional sentence is served in the community and thus is more effective than incarceration at achieving goals such as rehabilitation, it "is also a punitive sanction capable of achieving the objectives of denunciation and deterrence". [28] Indeed, noting that a conditional sentence can include punitive provisions such as house arrest that carry a stigma that should not be underestimated, Lamer C.J.C. stated that a conditional sentence can provide "a significant amount of denunciation" and "significant deterrence". [29]

[55] Another sentencing principle that I must consider is the restraint principle which requires a sentencing judge to consider all sanctions apart from incarceration, especially for first offenders. It is an error, especially when sentencing a first offender, to focus exclusively on general deterrence and to fail to consider individual deterrence and rehabilitation. [30]

[56] There is a significant amount of stigmatization that accused persons face while serving such a sentence. It is obvious to family and friends that they are confined to their home. Mr. Ranatunga has also gone through the trial process, the matter took several months to come to trial, and he lost his job. His family and friends have been made aware of what he has done. He has suffered depression and, like the complainant, at one point thought of suicide. I am of the view, given his close relationship with his family, that his rehabilitative prospects are good.

Conclusion

[57] In considering all of the sentencing principles, the circumstances of the offence and the offender, the aggravating and mitigating factors, I am of the view that a lengthy conditional sentence would be an appropriate sentence.

[58] Sentencing for this type of offence will be different for each offender and offence. Kirkpatrick has reinforced that lengthier sentences will be sought for accused persons who disregard the will and the sexual autonomy of a person who voices that they will not consent to sexual intercourse without a condom.

Terms

[59] Mr. Ranatunga will be placed on a conditional sentence order for a period of two years less a day. The following are the terms of this order:

• For the first 10 months you will be on house arrest; [31]
• For the following 8 months you will be on a curfew;
• For the remaining 6 months you will abide by the statutory terms.

Ancillary Orders

DNA Order

[60] Sexual assault is a primary designated offence. As a result, pursuant to s. 487.051(2) of the Criminal Code, I make an order authorizing the taking of samples from Mr. Ranatunga for inclusion in the national databank.

Weapons Prohibition Order

[61] A weapons prohibition pursuant to s. 109 of the Criminal Code also applies. Pursuant to s. 109(2) (a)(ii) of the Criminal Code, Mr. Ranatunga is prohibited from possessing any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance for a period of 10 years. Pursuant to s. 109(2) (b), he is further prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life.

SOIRA Order

[62] Pursuant to ss. 490.012(1) and 490.013(2) (b) of the Criminal Code, Mr. Ranatunga is required to comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10, for 20 years.

Released Orally: April 15, 2024 Released in Writing: July 16, 2024 Signed: Justice A. R. Mackay

[1] This came to the court’s attention when Mr. Monk requested an exception to Mr. Ranatunga’s house arrest to attend at his lawyer’s office or civil proceedings. [2] R. v. Lacasse, 2015 SCC 64, at para. 58. [3] R. v. Ewanchuk, [1999] 1 S.C.R. 330 (S.C.C.), at para. 28; Criminal Code, R.S.C. 1985, C. C-46; R. v. Hutchinson, 2014 SCC 19 at para. 1. [4] 2022 SCC 33. [5] 2014 SCC 19. [6] R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584 (S.C.C.), at paras. 14 and 19; R. v. Hutchinson, 2014 SCC 19 at para. 18. The SCC in Kirkpatrick were split in their decision 5 to 4. The dissenting decision held that J. Martin did not follow the principle of stare decisis and that Justice McLachlin’s decision in Hutchinson should have been followed by the court. [7] 1998 796 (SCC), 1998 CarswellBC 1772. [8] R. v. Hutchinson, at para. 70. [9] R. v. Friesen, 2020 SCC 9, at para. 118. [10] R. v. A.J.K., 2022 ONCA 487, at paras. 70, 71. [11] R. v. Smith, 2011 ONCA 564, 274 C.C.C. (3d) 34, at para. 87. [12] 2008 ONCA 179, 234 O.A.C. 363. [13] R. v. A.J.K., 2022 ONCA 487, paras. 69-70 [14] R. v. Hutchinson, 2013 NSCA 1 at para. 88; Lupi, para. 42. [15] 2014 ONCA 266. [16] 2022 ONCA 487, 162 O.R. (3d) 721. [17] R. v. R.S., 2023 ONCA 608, para. 27. [18] R. v. S.W., 2024 ONCA 173. [19] Lacasse, at para. 60. [20] Lacasse, at para. 67: R. v. SW, 2024 ONCA 173 at para. 30. [21] R. v. S.W., 2024 ONCA 173 at para. 39. [22] R. v. A.J.K., 2022 ONCA 487, 162 O.R. (3d) 721. [23] S.W., at para. 39. [24] R. v. SW, 2024 ONCA 173 at para. 39 [25] S.W., at para. 42. [26] R. v. Proulx, [2000] 1 S.C.R. 61, [2000] S.C.J. No. 6, 2000 SCC 5, at para. 22. [27] Proulx, at para. 79. [28] Proulx, at para. 22. [29] Proulx, at paras. 102, 105 and 107. [30] R. v. Batisse (2009), 93 O.R. (3d) 643, [2009] O.J. No. 452, 2009 ONCA 114, at paras. 32, 34. [31] Exceptions to the house arrest and curfew were discussed on the record.