CITATION: R. v. Gold, 2024 ONCJ 670

DATE: December 16, 2024

ONTARIO COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

— AND —

COREY GOLD

Before Justice B. Green

Reasons for Judgment on Sentencing December 16th, 2024

Ms. J.A. Barrett ............................................................. counsel for the Crown

Mr. R. Richardson................................... counsel for the defendant Mr. Gold

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Green J.:

A. Introduction:

[1] Mr. Gold plead guilty to one count of sexual interference for engaging in unprotected sexual relations with a 13-year-old vulnerable victim. The crown elected to proceed by indictment. Mr. Gold elected to proceed in the Ontario Court of Justice.

[2] Despite many issues with the credibility of the victim’s account, the crown’s case was strong because of the indisputable biological evidence proving that Mr. Gold had vaginal intercourse with a child. Mr. Gold made the informed choice to enter a plea of guilty and spare the victim from enduring the rigours of a trial.

[3] Counsel and the crown worked diligently to prepare an agreed statement of facts. Their professionalism and dedication to resolve this matter is commendable. We engaged in a series of pretrials. They were not able to arrive at a joint submission with respect to the sentence. I did not provide a position in advance of the guilty plea. There was a hearing with counsel and the crown advocating for their respective positions about the appropriate sentence.

[4] The crown emphasized the egregious circumstances of the offence. An adult male and his sister singled out a youthful looking teenage girl who was alone in the city. After plying her with alcohol and making advances, they took her back to their apartment. Mr. Gold had sex without protection with the victim which exposed her to additional harm. The crown forcefully submitted that the fit sentence is a period of incarceration of three years less credit for pretrial custody to be followed by a 161 order to protect other young girls in the future, a SOIRA order, DNA, and a weapons prohibition.

[5] In contrast, counsel focussed on the circumstances of the offender. He highlighted the mitigation of the plea of guilty. Mr. Gold has expressed remorse and he has significant potential for rehabilitation. Despite a very difficult background, Mr. Gold has no prior convictions. He has the support of his siblings and a stable home to return to in Alberta. Counsel urged the court to grant his client enhanced credit for the suffering that he endured while serving presentence custody and to allow him to serve the balance of his sentence on a conditional sentence in the range of two years. The conditional sentence can be followed by three years of probation. This will ensure that Mr. Gold is supervised in the community for the next five years. Alternatively, counsel suggested a sentence in the range of two years incarceration. Counsel opposed the imposition of either a 161 order or a SOIRA order because they are disproportionately punitive for this offender.

[6] Since the Supreme Court of Canada’s watershed decision in R. v. Friesen, 2020 SCC 9, the sentences for these types of offences have been increasing across Canada. The Ontario Court of Appeal has repeatedly stressed that, absent exceptional circumstances, a conditional sentence is not a proportionate disposition. Even with the mitigation of the plea of guilty and the lack of any criminal record, I agree with the crown that the circumstances of this offence demand a penitentiary sentence.

[7] Counsel stressed the amount of time Mr. Gold has already spent in custody and the terrible conditions he has endured while in pretrial detention. I found counsel’s submissions that his client ought to serve the balance of any custodial sentence in the community to be quite compelling considering the mitigating factors. However, that is not an available sentencing option. In R. v. Fice, 2005 SCC 32 at para 4 the Supreme Court of Canada unequivocally directed that “a conditional sentence cannot become available to an offender who otherwise deserves a penitentiary term solely because of the time the offender spends in pre-sentence custody”.

[8] Considering that a penitentiary term is warranted, I will not address the request for a conditional sentence. The issues to be decided are the total length of the sentence of incarceration, the credit for the pretrial custody and whether any of the disputed ancillary orders are necessary in the unique circumstances of this case.

B. Facts:

i. Circumstances of the offence:

[9] The victim struggles with substantial personal issues. A trial would have been very challenging for her. There were credibility issues with some aspects of her account. A plea of guilty is significantly mitigating because it saved scarce court resources and spared a young vulnerable victim from the additional trauma of a trial. While the plea is mitigating, there are some facts that were indisputable. Mr. Gold’s semen was recovered from the genital area of a child. Considering the forensic evidence and the victim’s youthful appearance, a conviction was probable on the offence of sexual interference regardless of Mr. Gold’s expressed views of her age.

[10] Mr. Gold instructed his counsel to resolve this matter shortly after he retained him which demonstrated his remorse, acceptance of responsibility and accountability. This matter was the subject of a series of pretrial discussions to arrive at an agreed statement of facts. Counsel and the crown submitted the following facts which were admitted by Mr. Gold:

Christie and Corey Gold are siblings. Christie resides in Port Hope and Corey resides in Calgary, Alberta. As of the day of the offence, April 11th, 2023, Corey was visiting his sister in Port Hope, Ontario.

The victim Ms. Z.Z. was 13 years of age at the time. She did not know either of them prior to April 11th, 2023. She had taken public transit to downtown Toronto where she first met both.

The Offence

Ms. Z.Z. was walking in downtown Toronto when she was approached by Christie Gold. They engaged in a brief conversation about both being bored. Christie Gold brought Ms. Z.Z. to meet Mr. Corey Gold, who was nearby. The Golds took Ms. Z.Z. to the Fairmont Hotel. All three of them sat at a table in the bar, where alcohol was purchased and consumed.

While at the Fairmont Hotel, Mr. Gold engaged in some attempts at touching and trying to kiss Ms. Z.Z. She was only 13 years old and youthful looking. Mr. Gold took no steps to determine or confirm her age when he should have. She was a stranger to him until that date and her appearance was one of a young teen, consistent with her age.

Once they were finished at the Fairmont Hotel, both Corey and Christie Gold and Ms. Z.Z. boarded the GO train. Ms. Z.Z. was planning on going home. Mr. Corey and Christie Gold were going home to Port Hope.

While on the Go train, Ms. Z.Z. believes that she told Corey Gold that she wanted to get off the train at a particular stop and go home, but that did not occur. Mr. Gold does not recall this comment. While on the train, two young men were also near the Golds and Ms. Z.Z. They observed the interactions and heard Corey Gold making lewd and suggestive comments to Ms. Z.Z. during the train ride. They were concerned about Ms. Z.Z. and her safety as she appeared very young. They gave her their cell phone number in case she needed help before they left the train.

The GO Train continued on until the Whitby stop. All three of them got off the train at Whitby and the Golds drove Ms. Z.Z. to Port Hope in a vehicle. Ms. Z.Z. felt a little "tipsy" as the two drinks she drank was the most she has ever consumed.

Once in Port Hope at the apartment of Christie Gold, the victim felt quite intoxicated from the two prior drinks and started to feel really different after the accused had handed her a diet coke.

Christie Gold went to bed and Ms. Z.Z. went to sleep on the couch. Corey Gold approached the victim and asked her if she wanted the bed. The victim advised she was fine. Ms. Z.Z. ultimately ended up in the bedroom with Corey Gold.

During the night Corey Gold engaged in sexual intercourse with Ms. Z.Z. She does not remember this taking place.

Ms. Z.Z. woke up the next morning wearing her top, but no pants or underwear on. She felt confused and she had a cramp pain in her lower stomach. Ms. Z.Z. got up and observed her pants and underwear were next to the bed where the accused was sleeping. She found her pants to be flipped inside out with her underwear still attached to the pants.

Ms. Z.Z.’s parents reported her missing and the police were searching for her. She ultimately returned home later on April 12th, 2023. A police report was made.

The victim also had a sexual assault examination done at the hospital. The kit was examined at the Centre for Forensic Sciences. Both the vaginal swab and the genitalia swab had DNA from the victim as well as well as semen from Corey Gold.

The investigation was turned over to the Port Hope Police Service. Mr. Gold was arrested in Calgary on the strength of a Canada wide warrant on May 20th, 2024.[^1] He was brought to Cobourg to appear in bail court. He has remained in custody since that time.

[11] In the seminal decision of R. v. Friesen, supra, the very first footnote of the judgement states:

For the purposes of these reasons, the terms "child" and "children" mean persons under the age of 18. References to "boys", "girls", "young women", "young people", "youth", "teenagers", and "adolescents" should all be understood to refer to persons who are children. Where specific statutory provisions distinguish between persons under the age of 16 and persons under the age of 18, we make this clear in the reasons.

[12] Ms. Z.Z. was a child who looked her age according to other witnesses who saw them together. The aggravating facts are devastating. Two adults singled out this youthful looking child and took her to a bar. Instead of showing any concern for a child alone in the city, Mr. Gold lecherously made sexual advances towards her shortly after meeting her. Two good Samaritans were so concerned by her appearance and Mr. Gold’s obviously inappropriate conduct that they offered Ms. Z.Z. their support. That is exactly what the Gold siblings should have done from the start as opposed to preying on Ms. Z.Z. Mr. Gold seized this chance encounter as an opportunity to have sexual relations with an at risk child.

[13] It does not matter what Ms. Z.Z. did or did not do before Mr. Gold had sex with her. It does not matter if she chose to get into a bed with him. She was a child. She was not capable of consenting to any sexual act with him. He is an adult. Instead of showing any compassion or human decency, a thirty-four-year-old man engaged in unprotected sex with a very vulnerable 13-year-old girl while her judgement and memory were negatively impacted by her consumption of alcohol. Mr. Gold’s conduct was morally repugnant and shameful.

[14] It is not surprising that Ms. Z.Z. declined to provide victim impact evidence. She is struggling with so many life challenges that I cannot imagine she is able to cope with these proceedings. I can still take judicial notice of the harm caused when an adult has sexual relations with a child. In R. v. Bertrand Marchand, 2023 SCC 26 at paras 30 and 31 the Supreme Court reiterated that more punitive sentences are necessary to reflect the enduring harm caused by these offences:

Friesen recognized that the focus of the legislative scheme of sexual offences against children has shifted to protect a child's personal autonomy, bodily integrity, sexual integrity, dignity and equality. The Court outlined how sexual offences against children produce profound physical and psychological harms to the most vulnerable members of our society. It was deeply concerned with how the sexual assault of children may produce shame, embarrassment, unresolved anger, a reduced ability to trust and fear that other people would also abuse them (Friesen, at para. 57). It set out the disproportionate impact of violence on girls, women, Indigenous persons and other vulnerable groups.

Friesen sends the clear message that sentences for these crimes must account for the far-reaching and ongoing damage sexual violence causes to children, families and society at large, which may take many years to manifest. Consequently, sentences for offences involving sexual violence against children must generally increase to reflect society's modern understanding of such offences and Parliament's choice to increase the sentences associated with these crimes (paras. 3-5). [citations omitted]

[15] It is essential to try to break this ongoing cycle of sexual violence by adult predators of children through consistently denunciatory and deterrent sentences in the hopes that it will help to protect our society’s most vulnerable members.

ii. Circumstances of the offender:

[16] Mr. Gold is now 35 years old. He is more than two decades older than the victim. The significant age disparity is an aggravating factor. Neither he nor his sister should have spent any time, at all, with a child much less ply her with alcohol at a bar or proposition her and bring her home with them.

[17] This is not the first time Mr. Gold has been involved in the criminal justice system. He was bound by a peace bond at the time of this offence which required him to keep the peace and be of good behaviour. However, he has no prior convictions or a criminal record despite a very difficult upbringing.

[18] Mr. Gold’s childhood was turbulent. He witnessed domestic violence as a child. He was in and out of foster care for most of his early life. On the occasions when his mother was able to regain custody of him, she introduced him to different boyfriends. The new male figures in his life were addicted to drugs and the toxic cycle continued for Mr. Gold. Mr. Gold and his younger sister were separated from their oldest sister while they were placed in foster care. When they were old enough to leave the child protective system, they went to live with their older sister.

[19] At some point during his tumultuous childhood, Mr. Gold was in a car accident when his mother’s boyfriend was driving him somewhere. He suffered a fractured skull and sustained a brain injury. His eldest sister confirmed he was also dropped on his head as a baby. Mr. Gold and his siblings believe that he has lasting neurological deficits due to these brain injuries. In addition, there is some evidence that Mr. Gold is developmentally delayed. Counsel wanted to obtain a report to substantiate these issues, but it would have unduly protracted the proceedings.

[20] Mr. Gold reported that he was the victim of physical, sexual, and emotional abuse as a child. He was sexually assaulted twice by older boys. He was bullied throughout his early school years. His sister explained that he turned to alcohol at a very young age to cope with all the trauma that he was experiencing on an ongoing basis. His alcohol use detrimentally impacted his relationships with friends and his family over the years. His sister feels that he should not consume any alcohol and he would benefit from programming to remain sober. He has been diagnosed with post traumatic stress disorder, depression, and anxiety.

[21] Despite many obstacles and challenges, Mr. Gold persevered and he successfully complete high school. He aspires to become a carpenter in the future and hopes to return to school for that purpose. He has prosocial life goals.

[22] Before this offence, Mr. Gold sought some help for his issues. Mr. Gold previously participated in “a well-established sobriety support group” at a local church and he advised that he “attended a 16-week addictions counselling program where he stated he focused on various topics such as drugs, alcohol, anger management, breaking bad habits, triggers, and creating positive habits” (p. 6 of the PSR). Unfortunately, the counseling was not helpful with preventing the commission of this criminal offence which he attributed in part to his consumption of alcohol.

[23] As an adult, Mr. Gold had one long term relationship, but he repeated the pattern that he witnessed at home. His partner had anger issues and their relationship was toxic. They broke up. He is currently single with no children.

[24] Mr. Gold has a positive work history. He works for a landscaping company in Calgary. His employer and friend spoke very highly of his work ethic, punctuality, and comradery. Mr. Gold is more than welcome to return to this place of employment.

[25] Counsel advised that, despite their past, Mr. Gold maintains a relationship with his elderly mother. He provides her with emotional and financial support. He lives with his uncle in Alberta. His uncle suffers from physical and mental disabilities. He is dependent on Mr. Gold’s financial contributions to their shared apartment. There is a pressing concern that Mr. Gold will lose his home if he is incarcerated for much longer since his uncle cannot afford it on his own.

[26] Mr. Gold’s oldest sister and his friend spoke extremely highly of him. Unfortunately, his sister downplayed the seriousness of the offence. She maintains that she does not believe that her brother knew this girl was only thirteen years old. Mr. Gold’s friend described him as:

a “friendly, outgoing, good guy”. Mr. Kainth advised that the subject often tries to “brighten other people’s day” and stated he believes he is trying his best in life. Mr. Kainth reported he has known the subject for about 5 years. Mr. Kainth stated “I do not believe Corey poses a risk to society. I would not characterize him as a violent person and instead I would call him a gentle giant. Corey has met my family and has interacted with my children many times before and I have never had any concerns with him being around my kids. (p. 7 of the PSR)

[27] It is disconcerting that Mr. Gold’s family and friend do not recognize the seriousness of this offence. They are his support system and essential to reinforce prosocial conduct. Considering their expressed views, I have no confidence that they will impress upon him that this conduct was completely inexcusable and indefensible. Worse yet, Mr. Gold behaved in this manner in the presence of his younger sister who played a role in earning this young victim’s trust and comfort. His sister spent a considerable amount of time in custody and bound by restrictive bail terms.

[28] While Mr. Gold has expressed remorse and plead guilty, I am concerned about his prospects for rehabilitation unless he gains more insight into his culpability and sexual attraction to a child. He insisted that he does not consider himself a “pedophile or a sex offender. I made a mistake, and I had no reason to believe this girl was underage” (p. 7 of the PSR). Mr. Gold asserted that he would check a sexual partner’s identification in the future to avoid this type of situation. It is frightening that people who witnessed how he was behaving towards a very young girl were so upset that they offered her assistance, yet Mr. Gold maintains he did not realize that Ms. Z.Z. was underage or that he should not have been propositioning a teenager at all.

[29] During the sentencing, I raised this issue with counsel and Mr. Gold. Mr. Gold admitted that Ms. Z.Z. looked young to him. Based on the admitted facts, he is obviously attracted to young girls and has little insight into the predatory nature of this misconduct.

[30] I appreciate counsel’s submissions that Mr. Gold may have some diminished moral responsibility because of his past and his cognitive issues. There is, however, no evidence that supports any connection between Mr. Gold’s challenges and his culpability for this crime. He understands right and wrong. Of course, I will consider how Mr. Gold’s traumatic history of neglect, exposure to domestic violence and his own victimization may have impacted his perceptions.

[31] There are numerous professional studies and reports about the cyclical nature of sexual abuse. An offender’s moral culpability could be diminished by the absence of any positive parental role models and the offender’s own history of victimization. In effect, the abuse victim becomes the abuser, a pattern of learned behaviour, repeating the cycle of sexual violence from one generation to the next. The Supreme Court of Canada addressed the cyclical nature of sexual violence in R. v. Friesen, 2020 SCC 9 at para. 64:

In particular, children who are victims of sexual violence may be more likely to engage in sexual violence against children themselves when they reach adulthood. Sexual violence against children can thus fuel a cycle of sexual violence that results in the proliferation and normalization of the violence in a given community In short, the costs that cannot be quantified are also profound. Children are the future of our country and our communities. They deserve to have a childhood free of sexual violence. When children become victims of sexual violence, "[s]ociety as a whole is diminished and degraded". [citations omitted]

[32] Considerations with respect to a cycle of sexual violence, cut both ways. Mr. Gold’s moral culpability may be diminished by his own history of sexual abuse which is mitigating. However, the potential for Ms. Z.Z. to be caught in that very same cycle and the unascertainable, potential, prolonged impact of this sexual abuse on her is substantially aggravating. While Mr. Gold’s history could attenuate his moral blameworthiness, that past does not necessarily dictate a particular sanction. It is one mitigating factor amidst a myriad of conflicting considerations.

[33] During the sentencing hearing, Mr. Gold made what seemed like a heartfelt apology to the victim and to his family. He expressed “deep remorse” for Ms. Z.Z. and her family for the pain that they have had to endure because of his choices. He stated, “I can be better, and I will be better”. He also asked for forgiveness from the victim and her family.

[34] Mr. Gold’s expressions of remorse are mitigating but, he does not appear to appreciate the wrongness of having sex with a young teen. Instead, he insisted that he will check identification in the future. He needs to recognize that a man in his thirties who has sex with someone who looks so young needs professional help to address a sexual attraction to children. He has sexually deviant tendencies. I appreciate that he is remorseful for the embarrassment and harm caused to his family but that is not a genuine understanding of the harm caused when adults have sexual relationships with children. As a result, his apologies rang a bit hollow. In R. v. Andrukonis, 2012 ABCA 148, [2012] A.J. No. 481 at para. 10, the Alberta Court of Appeal observed that:

If an offender lacks an understanding or appreciation that what he did was wrong, and instead asserts, as Andrukonis has done, that what he did was not "that wrong", an expression of remorse by that offender may well ring hollow. And appropriately so. Remorse for a criminal act - a sense of deep regret and guilt for that crime - requires at the very least insight into the fact that a wrong has been committed. Without that understanding, an expression of remorse is akin to an apology expressed as "I am sorry if what I did upset you." That is not a true apology and an expression of remorse by a person who does not accept that what he or she did was wrong is not true remorse.

[35] To ensure that Mr. Gold obtains the counseling that he needs to prevent similar offences in the future, the sentence of custody will be followed by a period of probation with extensive counseling terms.

iii. Collateral consequences of incarceration:

[36] Collateral consequences as a result of an offence, such as the loss of Mr. Gold’s shared apartment with his uncle, can be a factor in the ultimate determination of the sentence. In R. v. Suter, 2018 SCC 34, [2018] S.C.J. No. 34 at para. 48 (S.C.C.), Justice Moldaver, writing on behalf of the majority, explained that:

The relevance of collateral consequences stems, in part, from the application of the sentencing principles of individualization and parity: ibid.; s. 718.2(b) of the Criminal Code. The question is not whether collateral consequences diminish the offender's moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances. Like offenders should be treated alike, and collateral consequences may mean that an offender is no longer "like" the others, rendering a given sentence unfit.

[37] Notably, Justice Moldaver went on to explain that when the collateral consequences are so directly linked to the circumstances of the offence “as to be almost inevitable”, the mitigating impact or attenuation of the sentence is substantially diminished: Suter, supra, at paras 49 and 50. The loss of Mr. Gold’s liberty and concomitantly his housing, was entirely foreseeable from the moment he commenced on the path to sexually abusing a child.

[38] It is unfortunate that two elderly people will suffer because of Mr. Gold’s incarceration. His mother will not have his continued financial and emotional support and his uncle may lose his housing. The Ontario Court of Appeal recently reiterated in R. v. Habid, 2024 ONCA 830 at 42 and 43 that the impact of incarceration on an offender’s family is a relevant consideration but it must not overwhelm the sentencing considerations:

As recognized in R. v. Spencer (2004), 72 O.R. (3d) 47 (C.A.), at para. 46, leave to appeal refused, [2005] S.C.C.A. No. 4, it is an unfortunate reality that sentencing defendants to prison often harms their families. Family members are deprived of the defendant's love and care and suffer the emotional pain of separation. They must often assume the added burdens of the breadwinning and caregiving responsibilities that the defendant formerly performed. Further, they may suffer financial hardship, educational deprivation, and even the loss of the family residence. As well, being unable to care and provide for their families increases the severity of incarceration for defendants.

The courts have been careful not to let these consequences overwhelm the other principles of sentencing. As emphasized in Spencer, these consequences are not an excuse to overlook the harm that the defendant's criminal conduct caused victims of crime, or the importance of protecting those victims and society, or the need for denunciation and deterrence. Likewise, family separation may have a reduced impact on the sentence if its effects on defendants and their families are less strong. Further, these consequences cannot justify imposing a disproportionate sentence. Thus, this court has sometimes imposed or affirmed significant prison sentences to respect the other principles of sentencing even after accounting for family separation consequences. [extensive citations omitted]

[39] Hopefully, while Mr. Gold is incarcerated, his siblings will step in to assist their mother and uncle.

iv. Potential risk of recidivism:

[40] Counsel cannot be faulted for not obtaining a forensic expert’s report to assess whether Mr. Gold has paraphilias, hebephilia or pedophilia. These types of reports are quite costly and time consuming. Mr. Gold does not have an income currently, his family does not have money and he was suffering while in pretrial detention which necessitated addressing this matter promptly.

[41] I do not have a risk assessment from a professional that will assist or guide me when making this determination. I can only base my assessment of the risk that Mr. Gold poses to other young girls on the evidence that I heard and accepted during these proceedings. In R. v. Walker, 2021 ONCA 863, the Ontario Court of Appeal observed that:

In addition, in the case at bar, the thrust of the defence submission was that the appellant posed a low risk to re-offend and that a conditional sentence was fit in the circumstances. In considering that argument and the issue of future dangerousness, it was open to the trial judge to consider that the appellant did not appear to understand the seriousness of the offences: R. v. Hawley, 2016 ONCA 143, at para. 5, R. v. Shah, 2017 ONCA 872, at para. 8. Consequently, we do not give effect to this ground of appeal. [emphasis mine]

[42] I acknowledge that Mr. Gold has the support of individuals who speak very highly of him and feel quite strongly that he is not a risk to children. Nevertheless, I am guided by the directions of the Supreme Court of Canada in R. v. Profit, [1993] S.C.R. 637 that:

The reasons of the trial judge must be viewed in light of the fact that as a matter of common sense, but not as a principle of law, a trial judge may take into account that in sexual assault cases involving children, sexual misconduct occurs in private and in most cases will not be reflected in the reputation in the community of the accused for morality. As a matter of weight, the trial judge is entitled to find that the propensity value of character evidence as to morality is diminished in such cases. [emphasis mine]

[43] Similarly, in R. v. K.M., 2017 ONSC 2690, Justice Edwards reiterated that:

Sexual offences are, by their very nature, generally perpetrated in private. It is largely for that reason that many cases of sexual assault are characterized as a "he said, she said" type of case. The Supreme Court of Canada has made it quite clear that the good community reputation of an accused has little probative value in the overall assessment of an appropriate sentence in a case of sexual assault. [emphasis mine]

[44] There are enumerable sentencing decisions, across Canada, with offenders of supposedly stellar character and/or no criminal records, committing inexcusable acts of depravity, violence and/or sexual abuse. Generations of children, women and men, the socioeconomically disadvantaged and the vulnerable have fallen prey to predators. When victims find the strength or have the means to report their abuse, their abusers often hide behind carefully constructed façades of respectability to avoid being held fully accountable for their actions.

[45] I do not know what risk Ms. Gold will pose to the safety of other children in the future. I have considered that this sexual violence was a planned, predatory offence, that occurred over the course of a day with a child. Mr. Gold preyed on a young girl’s vulnerabilities. I accept that Mr. Gold is committed to getting help and he will invest in any counselling that he is directed to complete including appropriate sexual boundaries and exploring his attraction to young girls. Nevertheless, I am concerned that there is some risk for recidivism if he finds himself in a similar situation with a young girl and she is vulnerable. Accordingly, there should be protective orders in place to ensure his safe reintegration into society once he is released from custody.

C. Sentencing principles and law:

vi. Principles of sentencing:

[46] The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[47] Section 718 of the Criminal Code provides that any sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. As a result, depending on the circumstances of the offence and the circumstances of the offender, a Court may focus on specific principles of sentencing as the most important factors to guide the Court’s decision.

[48] Unquestionably, the predominant sentencing principles in sexual assault cases with vulnerable child victims are general deterrence and denunciation. The Criminal Code was amended to reiterate the primary importance of these sentencing principles:

Objectives — offences against children

718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

Objectives — offence against vulnerable person

718.04 When a Court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances — including because the person is Aboriginal and female — the Court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence. [emphasis mine]

[49] Mr. Gold and his sister encountered an underage girl wandering the streets of Toronto, in April, by herself. She was quite vulnerable because of her age and her personal circumstances. Instead of helping her get to a place of safety, they took advantage of her youth and susceptibility.

[50] In addition, section 718.2 of the Criminal Code specifically directs that a Court “shall also take into consideration”, when sentencing Mr. Gold, the following statutorily aggravating factor:

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years.

[51] The predominant principles of sentencing are denunciation and deterrence, both specific and general, however, rehabilitation remains an important goal with any sentencing particularly in a case involving a person with no criminal record.

vii. Principle of restraint:

[52] Sentencing is a delicate balancing act of competing considerations to achieve a just disposition. Courts in Canada have been unequivocal that the lack of any criminal antecedents should weigh very heavily in terms of tipping the scales towards a more lenient sentence.

[53] Except for very serious offences or crimes of violence, the primary objectives when sentencing a first offender are considerations of individual deterrence and rehabilitation. Please see: R. v. Stein (1974) 15 C.C.C. (2d) 376 (Ont.C.A.). These objectives are best achieved by non-custodial sentences. This principle of restraint was codified in section 718.2 of the Criminal Code:

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[54] There are some offences, like the sexual abuse of a child, that are so serious that the paramount principles of denunciation and deterrence demand a lengthy custodial sentence despite a lack of any criminal antecedents. The Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, [2015] S.C.J. No. 64 at para 12 (S.C.C.) explained:

The more serious the crime and its consequences, or the greater the offender's degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime's consequences, but also on the moral blameworthiness of the offender. Determining a proportionate sentence is a delicate task. As I mentioned above, both sentences that are too lenient and sentences that are too harsh can undermine public confidence in the administration of justice.

[55] Despite the absence of any criminal record, this offence is so egregious that a custodial term is essential to achieve the principles of sentencing. Even with serious offences, the sentences meted out for first offenders must be the shortest term of imprisonment that achieves the predominant sentencing principles.

[56] In light of the absence of any criminal record and the mitigation of the plea of guilty, counsel submitted that a conditional sentence is consistent with the principle of restraint. In R. v. Faroughi, 2024 ONCA 178 at para 73 the Court of Appeal held that:

Nevertheless, conditional sentences can be appropriate in circumstances where denunciation and deterrence are the predominant sentencing objectives, as such a sentence with punitive conditions can provide a significant amount of denunciation and deterrence. And the restraint principle continues to be applicable in circumstances where, like in this case, the primary sentencing principles are denunciation and deterrence. This court has recognized that, in some exceptional circumstances, a conditional sentence may be fit for an offender convicted of sexual offences against children. [citations omitted]

[57] I am not precluded from ordering a conditional sentence for a sexual assault of a minor, especially when there are significantly mitigating factors or exceptional circumstances. Nevertheless, it must be emphasized that parliament has directed that a court “shall” give primary consideration the objectives of denunciation and deterrence because of “the abuse of a person under the age of 18” and “a person who is vulnerable because of personal circumstances”.

[58] It would be an error in principle to fail to give “primary” consideration to these objectives by unduly focussing on the offender’s mitigating factors and the impact that a custodial sentence will have on him. In R. v. B.M., 2023 ONCA 224 at paras 14 to 16, the Ontario Court of Appeal considered section 718.01 of the Criminal Code and emphasized the Court’s obligation to give “primary consideration” to deterrence and denunciation:

Section 718.01 of the Code requires that courts give "primary consideration to the objectives of denunciation and deterrence" when imposing sentence for cases involving the abuse of a person under the age of 18 years. In Friesen, at para. 105, the Supreme Court held that "Parliament's choice to prioritize denunciation and deterrence for sexual offences against children is a reasoned response to the wrongfulness of these offences and the serious harm they cause", given that "sexual assault of a child is a crime that is abhorrent to Canadian society and society's condemnation of those who commit such offences must be communicated in the clearest of terms."

The court emphasized in Friesen that the expression "primary consideration" in s. 718.01 prescribes a relative ordering of sentencing objectives that is absent from the general list of six objectives in s. 718(a) through (f) of the Code: at para. 101. At para. 104, the court went on:

Section 718.01 thus qualifies this Court's previous direction that it is for the sentencing judge to determine which sentencing objective or objectives are to be prioritized. Where Parliament has indicated which sentencing objectives are to receive priority in certain cases, the sentencing judge's discretion is thereby limited, such that it is no longer open to the judge to elevate other sentencing objectives to an equal or higher priority. However, while s. 718.01 requires that deterrence and denunciation have priority, nonetheless, the sentencing judge retains discretion to accord significant weight to other factors (including rehabilitation and Gladue factors) in exercising discretion in arriving at a fit sentence, in accordance with the overall principle of proportionality. [Emphasis added.]

The sentencing judge erred by failing to adhere to this clear sentencing principle. The reasons for sentence reveal an erroneous reordering of sentencing principles in a way that clearly conflicts with s. 718.01 of the Code and the Supreme Court's admonition that it does not fall to judges to reorder what Parliament has already ordered.

[59] Similarly, in R. v. Bertrand Marchand, 2023 SCC 26, the Supreme Court highlighted that Parliament has specifically limited judicial discretion for these offences:

Parliament has specifically indicated that in sentencing offences involving abuse of children, including child luring, the objectives of denunciation and deterrence must be given primary consideration or "une attention particulière" (Friesen, at para. 101; Criminal Code, s. 718.01). Section 718.01's open textured language limits judicial discretion by giving priority to these objectives, but their primary importance does not exclude consideration of other sentencing objectives, including rehabilitation (Rayo, at paras. 102-8). The judge can accord significant weight to other factors, but cannot give them precedence or equivalency.

[60] A conditional sentence would not adequately address the primary principles of deterrence and denunciation, in the unique facts of this case, even after considering that Mr. Gold has no criminal record, the plea of guilty and the mitigating considerations of his traumatic background and support system. There are no extraordinary circumstances that could justify such a lenient sentence. Although factually distinguishable, I adopt the language of the Ontario Court of Appeal in R. v. Macintyer-Syrette, 2018 ONCA 706 at para. 21 that:

A conditional sentence served in the community with individual counselling, as proposed by the appellant and supported by the Gladue reports, would not be a reasonable or proportionate sentence for this offence. This offence requires denunciation, as an affirmation of the dignity of the complainant, and no appropriate sentencing proposal or sanction, short of a custodial disposition, appears to be available. [emphasis mine]

[61] A very strong message must be sent to Mr. Gold, to the public and to likeminded offenders that a heavy price will be paid by anyone who sexually assaults a vulnerable young victim. Sentences must unequivocally communicate that these offences will not be tolerated or condoned by our courts. As the Supreme Court stated in Friesen, supra, at para 45:

The criminal law in general and sentencing law specifically are important mechanisms that Parliament has chosen to employ to protect children from sexual violence, to hold perpetrators accountable, and to communicate the wrongfulness of sexual violence against children. It is our duty to give Parliament's sentencing initiatives their full effect.

[62] The sentence must be proportionate to the gravity of this offence and Mr. Gold’s responsibility for the commission of the crime. The need for denunciation and deterrence is so pressing that the only means to sufficiently express condemnation for this offence is with a period of incarceration.

[63] Ultimately, I must sentence Mr. Gold to the shortest period of incarceration that fairly achieves all the competing sentencing objectives and reflects the seriousness of this crime as well as the mitigating facts; particularly the fact that he has no prior record and he plead guilty. To arrive at a sentence that balances these opposing considerations, it is helpful to review any sentencing precedents that have considered the appropriate sentence ranges for these types of cases.

viii. The principle of parity:

[64] In addition to the guiding sentencing principles, the principle of parity set out in subsection 718.2 of the Criminal Code requires that:

A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[65] While this is a worthy goal, each individual case is often so unique that it is difficult to achieve parity in sentencing. Ultimately, considering the unfortunately countless ways to commit a sexual assault, the distinctiveness of each offence and each offender, it is often challenging to find comparable cases. As Chief Justice Lamer stated in R. v. M. (C.A.), [1996] 1 S.C.R. 500 at paragraph 92:

...Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction.

[66] Sexual offences range from minimally intrusive momentary occurrences to horrifying facts. Offenders can be responsible, sympathetic and apologetic or they can be recalcitrant, unrepentant recidivists. The Ontario Court of Appeal observed in R. v. E.C., 2019 ONCA 688 that:

The offence of sexual interference can be committed in any number of ways, and with varying levels of moral turpitude. The broad range of available sentences is rooted in the "infinitely variable ways in which the offence can be committed": R. v. M.B., 2013 ONCA 493, at para. 21. Within the wide range of available sentences, the court must impose an appropriate sentence - one that is proportionate to the gravity of the offence and the degree of responsibility of the offender, and, respecting the principle of parity, is proportionate to sentences imposed for similar offences committed in similar circumstances: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 53.

[67] The Supreme Court was unequivocal in R. v. Friesen, supra, that sentences must increase to reflect that “our understanding of the profound physical and psychological harm that all victims of sexual assault experience has deepened”. While the Supreme Court declined to set a specific sentence range for these types of offences, they emphasized at para 114 that:

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). [emphasis mine]

[68] The Supreme Court deferred to Provincial Courts of Appeal to set sentencing ranges at para. 106:

We would decline the Crown's invitation to create a national starting point or sentencing range for sexual offences against children. Generally speaking, this Court is reluctant to pronounce on the specific length of sentence. The appropriate length and the setting of sentencing ranges or starting points are best left to provincial appellate courts.

[69] Since this direction in Friesen, the Ontario Court of Appeal has consistently and repeatedly reiterated that the appropriate range of sentence for the sexual violation of a child by an adult is between 3 to 5 years of incarceration:

R. v. A.J.K, 2022 ONCA 487 at para 77: Although the facts were different, the majority of the Court of Appeal made the following oft-cited guiding remarks:

Absent some highly mitigating factor, the forced penetration of another person will typically attract a sentence of at least three years in the penitentiary. While Bradley and the cases following it suggest that the range is three to five years, this is of course just a range, a quantitative sentencing tool designed to assist busy trial judges with where to start: Parranto, at paras. 15-17. Accordingly, there will be circumstances where a departure from the range, either above or below the range, is entirely appropriate.

R v Adderley, 2024 ONCA 531 at para 5: the appellant sought a reduction of his sentence of 18 months for having sexual relations with a 16-year-old sleeping victim. The Court of Appeal repeated:

As to the sentence, we are satisfied that it was open to the trial judge to find as fact, based on the complainant's evidence, that the appellant had not been wearing a condom when he had sexual intercourse with her while she slept. Accordingly, the trial judge made no error in treating this as an aggravating factor and there is no basis to interfere with the sentence. That being said, we note that the appellant committed an unprotected, penetrative sexual assault on the complainant, who was 16 years old and was asleep when the assault began. The sentence imposed was well below the range set out by this court in R. v. A.J.K., 2022 ONCA 487, which does not appear to have been cited to by the sentencing judge. See also this court's subsequent decision in R. v. R.S., 2023 ONCA 608, both of which make clear that a penetrative sexual assault will typically attract a penitentiary sentence of at least three years.

R. v. J.D., 2024 ONCA 286 at para 20: the offender was found guilty of digitally penetrating his 18-year-old niece while she slept and fondling her breast. Even though he faced deportation, the Court of Appeal echoed that:

We see no error in the trial judge's rejection of a conditional sentence or his imposition of a sentence of three years imprisonment. Absent some highly mitigating factor - which was not present in this case - the forced penetration of another person will typically result in a sentence of at least three years imprisonment: R. v. A.J.K., 2022 ONCA 487, 162 O.R. (3d) 721, at para. 77. It is impermissible to impose unfit sentences to avoid statutory immigration consequences.

[70] I reviewed the decisions relied on by counsel to support his position of a conditional sentence or a sentence in the range of 2 years. I do not intend to summarize the cases because they were either factually distinguishable, predated the Court of Appeal’s unwavering direction with respect to the appropriate sentencing range or the sentence was informed by a joint submission in exchange for the certainty of a plea of guilty.

[71] The Crown provided the persuasive decision of R. v. Meeboer, 2023 ONCJ 31. In that case, the crown requested a sentence of 2 years incarceration following a plea of guilty for an adult male having sexual relations with a teenager who was employed in a family business. There were some aggravating factors that are not present in this case. Despite the mitigation of the plea and the expressions of remorse, the Court found that the crown’s position was not aligned with recent decisions of the Court of Appeal and the Supreme Court’s decision in Friesen. The court found at para 54 to 56:

Neither party, at any point in the proceedings, identified any unusual circumstances in this case, or unique factors that might justify a sentence out of the appropriate range. Simply put, the parties expressed that their negotiations should hold the day.

Contained in the defence post sentencing hearing written submissions, counsel, at the literal 11th hour, offered to then join the Crown in their position of 2 years less a day. Even if that position were a joint submission, it would have been inappropriate for the reasons noted above.

In all of the circumstances, and in consideration of the caselaw, a sentence in the range of 4-6 years would have been an appropriate consideration but for the guilty plea.

With heavy reliance upon the principle of restraint, the appropriate sentence is 1080 days, or 36 months, a s.109 order for 10 years, a DNA order, a SOIRA order for 20 years and a s. 743.21 order.

[72] There is nothing exceptional about Mr. Gold or this offence that justifies a sentence outside the range contemplated by the Ontario Court of Appeal of 3 to 5 years incarceration. The significant age disparity, the participation of his sister in earning the victim’s trust, the interactions over the course of day during which he had plenty of time to reflect on the moral repugnance of his intentions and this culminated in unprotected sexual intercourse with a child are all substantially aggravating factors. On the other hand, pleas of guilty should be encouraged to avoid the added trauma of a trial for vulnerable victims. Mr. Gold’s acceptance of responsibility is substantially mitigating as well as recognition of the considerations unique to Mr. Gold.

[73] A sentence must be viewed wholistically. In light of the punitive impact of additional orders that will prevent Mr. Gold from communicating with young girls in the future and the requirement for him to comply with a S.O.I.R.A. order for the next 20 years, a sentence of incarceration at the lowest end of the range of a little bit less than three years fairly balances the competing sentencing principles.

ix. Pretrial custody:

[74] Mr. Gold has been in custody since May 20th, 2024. As of the date of sentencing, he will have accumulated 211 days of presentence custody. With Summer credit, that will be the equivalent of 317 days.

[75] Mr. Gold kept a diary of his experiences since he was arrested in Alberta and transported to Ontario. He was not able to contact his family or bathe for days after he was initially arrested. When he arrived in Ontario, he was immediately housed in a crowded cell with two other inmates at Central East Correctional Centre (C.E.C.C.).

[76] Mr. Gold documented almost constant overcrowding and lock downs. He wrote LD and 3C to record the days that he spent locked down and/or housed with two other men in his cell. He honestly noted when he rarely accessed the yard, when he was on the range, out all day or taking bible courses. He noted when he was able to contact his counsel and when these important calls were canceled. He detailed the frequency of fights on the ranges and an overdose. He injured his foot which he described as very swollen and painful. He requested to see a doctor, but it does not appear that he received adequate medical care. He was not sent for x-rays at the hospital until weeks later.

[77] When Mr. Gold was transferred from intake cells to a range, he was finally able to take a shower. Unfortunately, when he arrived on the range, he was struck with a shoe and beaten by other inmates. His injuries went untreated because he was too scared of the possible repercussions if he asked to see a nurse. He noted in his diary whenever he had access to the “shower program” intermittently. Unfortunately, he was “jumped” a second time in July, so he had to be transferred to another range. He noted that he had to leave the first range after weeks of bullying, his deteriorating mental health and the violence. He described how he was punched before he was transferred, and it took weeks for his lips to heal. He reflected that the second range was quieter with “nice” people.

[78] Mr. Gold tried to access resources while he was incarcerated. He requested to speak to an addiction’s counsellor. He is aware that he has a problem with alcohol and that it inhibits his judgement. He tried joining a book club to keep his mind occupied, but the meetings were cancelled. He expressed frustration at his inability to take showers especially when locked down in a cell with two other men. I cannot image the unsanitary conditions with three men, locked in a small cell, sharing one toilet, without regular access to showers, clean linen or clothing and having to eat and sleep in that environment.

[79] Over a year ago, I released the judgement of R. v. MacPherson, [2023] O.J. No. 1628. I summarized the law with respect to mitigating a sentence for the conditions in pretrial custody and the growing concern about the shocking mistreatment of presumptively innocent inmates on remand. I will repeat my comments:

81 There are a multitude of decisions decrying the deplorable conditions at Central East Correctional Center. Presumptively innocent inmates are routinely locked down in small cells for days on end, even weeks, isolated from their support systems and counsel. They are deprived of basic dignities like regular access to showers, clean clothes, and bedding. They aren't regularly provided with fresh air or time outside. These systemic human rights violations in provincial remand centers are disgraceful in a free and democratic society like Canada.

82 Jurists who mitigate sentences to reflect these harsh conditions are not "soft on crime". Quite the contrary. The case law on this issue reflects repeated expressions of judicial condemnation of the unrelenting institutionalized abuse of vulnerable inmates.

83 Provincial remand centers should, at the very least, uphold the United Nations' Standard Minimum Rules for the Treatment of Prisoners otherwise referred to as the Nelson Mandela Rules.[^1]

In Ontario, the government is clearly aware of the need to ameliorate the conditions in these institutions. The Correctional Services and Reintegration Act, 2018, S.O. 2018, c. 6, Sched. 2 (ontario.ca) was assented to on May 7th, 2018. The preamble states in part that:

The people of Ontario and their Government,

(ii) believe in the furtherance of a just, peaceful and safe society through maximizing individual opportunities for rehabilitation and reintegration both within correctional institutions and in the community;

(ii) respect the presumption of innocence and recognize the particular circumstances of individuals who are incarcerated without criminal conviction;

(ii) affirm our commitment to respect the human dignity of individuals who are incarcerated or under community supervision, including by respecting the rights and freedoms guaranteed by the Canadian Charter of Rights and Freedoms and the Human Rights Code;

(ii) believe that our correctional system must respect diversity and be responsive to the unique needs of all individuals, particularly those identifying under protected grounds in the Human Rights Code and groups that are disproportionately disadvantaged by or over-represented in our correctional system;

(ii) believe that the policies, programs, practices and decisions of our correctional system must be responsive to the needs of First Nation, Inuit and Métis Peoples;

(ii) affirm our obligation to provide safe and humane custody and care, including through the provision of adequate conditions of confinement and appropriate, patient-centred, equitable health care services that respect clinical independence and provide continuity of care with services provided in the community;

(ii) affirm that individuals who are incarcerated or under community supervision retain the rights of all members of society except those that are necessarily removed or restricted as a consequence of confinement or sentence;

(ii) affirm that only the least restrictive measures consistent with the protection of society and individual safety are used in relation to the administration of this Act;

(ii) recognize the need for evidence-based programs and services to support rehabilitation and reintegration;

(ii) recognize the value of recreational and cultural activities for inmates;

(ii) recognize the necessity of family and community connections and supports for inmates;

(ii) recognize the importance of professional support, training and a safe working environment for correctional staff;

(ii) firmly believe transparency, openness, oversight and public accountability are critical to ensure that the correctional system is governed and operated in a way that is subject to the rule of law, respects individual rights and freedoms and reflects the interest of the public. [emphasis mine]

84 It's been almost five years since the date of assent, but the Lieutenant Governor has not proclaimed a day for this legislation to come into force. In the meantime, the mistreatment of presumptively innocent inmates continues unabated. I recognize that "it is not this Court's role to rewrite the law or to ask what law it would have enacted itself": R. v. McColman, 2023 SCC 8 at para 50. It is, however, the role of the judiciary to act as the gatekeepers of justice to ensure that presumptively innocent inmates are not mistreated by the authorities in charge of their care just as we would address any allegations of police brutality, neglect or similar misconduct involving the treatment of detainees.

85 The government of Ontario has already been held liable for $30 million in damages in a class action suit for the overzealous use of administrative segregation of mentally ill inmates at Toronto South Detention Centre: Francis v. Ontario, 2021 ONCA 197. The government of Ontario made concessions in that case at para. 34 that are equally applicable to repetitive, routine lockdowns:

Ontario accepts the motion judge's finding that administrative segregation for more than 15 consecutive days violates ss. 7 and 12 of the Charter. Ontario also accepts that the absence of a timely independent review process violates s. 7 of the Charter. Both concessions reflect the decision in CCLA, at paras. 2 and 68, in which this court held detention in administrative segregation for more than 15 consecutive days violated s. 12. The application judge in CCLA had held the absence of a timely independent review process violated s. 7: Canadian Civil Liberties Assn. v. Canada (Attorney General) (2017), 140 O.R. (3d) 342, [2017] O.J. No. 6592, 2017 ONSC 7491 (S.C.J.) ("CCLA (ONSC)"), at paras. 155-156, vard (2019), 144 O.R. (3d) 641, [2019] O.J. No. 1537, 2019 ONCA 243. That finding was not challenged on the appeal to this court.

86 The Ontario Court of Appeal made very compelling remarks about the government's treatment of the inmates in their care at paras. 72 and 73:

State conduct showing a "clear disregard" for the unconstitutional consequences of that conduct is the antithesis of good governance. As explained in Brazeau/Reddock, a finding that the state clearly disregarded the unconstitutional consequences of its actions is predicated on a finding of recklessness or wilful blindness. Both require an appreciation of the risk that the impugned state action will infringe constitutional rights. When deciding whether correctional authorities acted with a "clear disregard" for the unconstitutional consequences of their actions, it is appropriate to take into account reliable information available to correctional authorities which, as a matter of common sense and logic, sheds light on the existence and degree of the risk of unconstitutional consequences flowing from administrative segregation.

For example, there was a great deal of expert evidence speaking to the longstanding knowledge in Canada, and internationally, of the very serious harmful effects of solitary confinement, particularly on the seriously mentally ill. Similarly, the evidence was replete with studies, reports and recommendations indicating the consequences of solitary confinement fell within the meaning of cruel and unusual treatment, as the phrase is used internationally and in the Charter. Most of that information was readily available to correctional authorities and would inform their appreciation of the risk that administrative segregation in provincial jails caused physical and mental consequences falling within the meaning of cruel and unusual treatment and denied inmates procedural due process. [emphasis mine]

87 The living conditions of inmates detained in the Central East Correctional Center and other institutions across Ontario do not meet either the internationally accepted minimum standards of care or respect any of the principles outlined in the provincial legislation. Instead, courts in this jurisdiction are routinely presented with evidence of persisting, institutionalized, human rights violations of detainees who are powerless to change how they are treated by the officials responsible for their care.

88 The Canadian Charter of Rights and Freedoms guarantees every detainee the right to security of the person in accordance with the principles of fundamental justice and to be protected from cruel and unusual treatment. Nevertheless, Charter remedies are rarely sought for potential breaches of the detainees' constitutionally protected rights because that would require an inmate to proceed to trial and/or potentially remain in these institutions for an even longer period, enduring these insufferable conditions. Instead, the most frequently sought remedy is for an offender's sentence to be mitigated, as long as the aggregate sentence is not rendered inappropriate, whenever credible evidence is presented of custodial mistreatment. The only means to protect the integrity of the administration of justice is through repeated judicial denunciation of this entrenched, systemic abuse.

89 The treatment of a convicted gun toting, drug dealer who recently experienced the conditions in pretrial detention, yet he went on to commit more serious offences, may not inspire any public concern. However, the Canadian criminal justice system must uphold and respect the human rights and dignities of all offenders. More importantly, it must be emphasized that these institutions house presumptively innocent people before they are found guilty and before they are sentenced, yet the detainees are subjected to punitive and cruel conditions. Among these detainees are individuals who may have been wrongfully accused of a crime. Guy Paul Morin was detained in this jurisdiction, and he was proven to be innocent.

90 The inmates in CECC are powerless to prevent these injustices. The conditions in this provincial facility reflect very poorly on the administration of justice in this province. As Nelson Mandela famously said "no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones."

[80] The government of Ontario is acutely aware of the abysmal conditions in remand centers. On May 3rd, 2018, the Solicitor General had a press release that recognized the pressing need for change and promised more responsible and humane treatment of inmates:

The Correctional Services and Reintegration Act, 2018 was passed today and will result in improved conditions, increased transparency, and will apply a consistent and evidence-based approach to rehabilitation and reintegration to better prepare those in custody for a successful and well-supported return to their communities.

The new act will transform Ontario's adult correctional system by:

Setting rules and clearly defining segregation by aligning with international standards and phasing in time limits and prohibitions on segregation for vulnerable inmates - including pregnant inmates and those with mental illness.

Improving conditions of confinement by defining minimum standards for living conditions that would apply to all adults in custody. This will help achieve better outcomes and ensure greater consistency across Ontario's correctional system.

Increasing transparency and accountability by establishing an inspector general to enforce compliance with the new legislation and all policies. Independent panels will review segregation cases to confirm inmates are held in the least restrictive conditions possible. To enhance the safety of inmates and staff, disciplinary hearings officers will make decisions about sanctions for serious acts of misconduct by inmates.

Ensuring incarcerated individuals have access to appropriate health care services, including treatment of disease or injury, health promotion, disease prevention, dental care, vision care, hearing care, mental health and addictions care, and traditional First Nation, Inuit, or Métis healing and medicines.

Better supporting rehabilitation and reintegration through individualized assessments completed for every admission. As part of an evidence-based approach to incarceration, case management plans will be tailored to address the unique needs of inmates to guide their rehabilitation. Enhanced culturally-responsive programming will be implemented to meet the diverse and unique needs of Indigenous individuals and other over-represented groups to achieve successful reintegration.

[81] Six years later there have been no improvements at C.E.C.C. There is no accountability whatsoever. These conditions do not support rehabilitation or reintegration. Rather, it is an institution plagued with violence, unsanitary conditions, inadequate dental, mental health and medical care, inadequate access to counsel, familial isolation, violence, prisoners running the pods, chronic overcrowding, lockdowns, and beleaguered overburdened staff. This is not punishment, it is torment. It is shameful and inexcusable.

[82] I naïvely hoped that decisions like MacPherson and the eloquent and informed expressions of condemnation from many other jurists across Ontario would result in some kind of improvement of the conditions in custody. In R. v. Gorgievski, 2024 ONSC 5899 at paras 31 to 33, Justice Schreck recently summarized many of these decisions and the lack of any response to the terrible conditions:

While at the CECC, Mr. Gorgievski was subject to lockdowns on 85% of the days he was there and triple-bunked for 58% of the time. The treatment he experienced at the CECC was by no means an anomaly: R. v. Hamilton, 2024 ONSC 2167, at para. 59; R. v. Rooplal, 2024 ONSC 3729, at para. 26; R. v. Samuels, 2023 ONCJ 597, at paras. 30-32; R. v. McPherson, 2023 ONCJ 160, at paras. 89-95; R. v. Lovell, 2023 ONSC 6776, at paras. 38-42; R. v. Valley, 2023 ONSC 166, at para. 43; R. v. Brown, 2022 ONCJ 679, at paras. 34-39; R. v. Smith, 2022 ONSC 3800, at paras. 39-44; R. v. Derby, 2022 ONSC 2266, at paras. 35-40; R. v. Lewis, 2022 ONSC 1260, at para. 38; R. v. Williams, 2022 ONCJ 57, at paras. 67-68; R. v. Hillier, 2021 ONCJ 634, at paras. 16-17; R. v. Doan, 2021 ONCJ 8590, at paras. 15-16; R. v. Charles, 2021 ONSC 5907, at para. 49; R. v. Ashton, 2021 ONSC 3994, 86 M.V.R. (7th) 102, at paras. 27, 66-67; R. v. Perry, 2020 ONSC 8173, at paras. 43-46; R. v. Salmon, 2019 ONSC 1574, at paras. 40-41; R. v. Johnson, 2017 ONSC 3512, at paras. 69-79; R. v. Cooper-Flaherty, 2017 NUCJ 11, at para. 48.

It is now well accepted that the existence of unduly harsh conditions in presentence custody is a relevant factor on sentencing. Reducing a sentence on this basis is often referred to as "Duncan" credit after the decision in R. v. Duncan, 2016 ONCA 754, although in R. v. Marshall, 2021 ONCA 344, at para. 52, the court explained that this is not really a "credit," but rather a mitigating factor to be considered together with other aggravating and mitigating factors. Its mitigating effect stems from the fact that the harsh custodial conditions are a collateral consequence of the offence: R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at paras. 47-48; R. v. Doyle, 2022 ONSC 2489, at paras. 50-53.

However, unlike other collateral consequences which are fact-specific, the existence of unduly harsh conditions of presentence custody is a systemic problem that has been ongoing for several years. Courts have condemned these conditions as being unacceptable on countless occasions. The government's response to these criticisms has been to do nothing. To ignore the state's refusal to heed the court's admonitions risks bringing the administration of justice into disrepute. As a result, in addition to ensuring proportionality, granting credit for time spent in harsh conditions also serves to communicate the court's disapprobation of the state's conduct: R. v. Greene, 2024 ONSC 5155, at para. 62; R. v. Bernard, 2021 ONSC 5817, at paras. 26-32; R. v. Shaikh, 2024 ONSC 774, at paras. 27-30; R. v. McEwan, 2023 ONSC 1608, at para. 99; R. v. Spicher, 2020 ONCJ 340, at paras. 66-67; R. v. Kongolo, 2022 ONSC 3891, at paras. 82-84; R. v. Hassan, 2023 ONSC 5040, at para. 46; R. v. Ahmed, 2021 ONSC 8157, at para. 42; R. v. Persad, 2020 ONSC 188, at paras. 35-36.

[83] Absolutely nothing is being done to ameliorate these deplorable conditions. Quite the contrary, in the last year the conditions in C.E.C.C. have been progressively worsening due to staffing shortages and over population. Lock downs and the triple bunking of inmates have become routine.

[84] As noted, in Francis v. Ontario, 2023 ONSC 5355, different class action suits were successfully brought against the government of Ontario by inmates of correctional institutions who had been unfairly subjected to administration segregation. After years of litigation, at great cost to the tax-paying public, more than 30 million dollars in aggregate damages were awarded to the aggrieved inmates. It is only a matter of time before inmates who have suffered persisting psychological and psychiatric issues like post traumatic stress syndrome commence more class actions suits for the blatant violations or their human rights and the deprival of basic dignities while incarcerated in remand centers. In cases with very serious alleged crimes, when inmates have been on remand for months and sometimes years, it is only a matter of time before counsel will seek stays of the proceedings for alleged violations of their Charter protected right to security of the person and not to be subjected to cruel and unusual punishment.

[85] It is inconceivable that any right minded Canadian would approve of these conditions of incarceration that don’t meet internationally approved minimum standards of care. I have absolutely no doubt that they would be shocked and appalled by the sights, sounds and smells in C.E.C.C. They should be stunned by the costs to this province of the awards that have been and will continue to be granted should these conditions persist, and class action suits are brought by the aggrieved inmates. In addition, I cannot imagine the emotional toll and suffering caused to victims of serious crimes if the only available remedy to prevent this ongoing abuse of inmates is the reduction of sentences or staying criminal proceedings.

[86] Corporal punishment is not an available sentence, but that is what is happening to inmates at Central East Correctional Centre. For those who think that these conditions may dissuade future offences, they are sadly mistaken. There is no established link between rehabilitation and inflicting harmful conditions on prisoners. Rather, Canada has a tragic history that demonstrates the cyclical nature of violence. It breeds anger, contempt, and resentment. The Supreme Court recently reiterated in R. v. Bissonette, [2022] S.C.J. No. 22 at para 59 that:

This Court recently stated that the purpose of s. 12 is "to prevent the state from inflicting physical or mental pain and suffering through degrading and dehumanizing treatment or punishment. It is meant to protect human dignity and respect the inherent worth of individuals". Although dignity is not recognized as an independent constitutional right, it is a fundamental value that serves as a guide for the interpretation of all Charter rights. Generally speaking, the concept of dignity evokes the idea that every person has intrinsic worth and is therefore entitled to respect. This respect is owed to every individual, irrespective of their actions. [citations omitted]

[87] I accept the contents of Mr. Gold’s journal as a mitigating factor. He struggles with mental health challenges and presents as neuro divergent that make him an easy target for other prisoners in a jail that is a powder keg ready to explode into violence. Mr. Gold was subjected to degrading, violent, dehumanizing, and dangerous conditions while on remand. This experience will not assist his rehabilitation nor his successful reintegration into society. It is a substantially mitigating consideration.

[88] The Ontario Court of Appeal’s decisions in the Duncan 2016 ONCA 754 and Marshall 2021 ONCA 344 considered the mitigation of a sentence for the conditions an offender has been subjected to up to the date of sentencing and explained that:

52 The "Duncan" credit is not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken into account in determining the appropriate sentence. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence from which the "Summers" credit will be deducted. Because the "Duncan" credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors.

[89] Both these decisions are retrospective, the mitigation of a sentence due to the conditions in pretrial custody. Neither of them addressed concerns about whether there should be prospective consideration for returning a prisoner, who has already been beaten twice, to these awful conditions to serve the balance of his sentence when an additional period of incarceration is warranted.

[90] I can endorse the warrant of remand that Mr. Gold is to be immediately transferred to the St. Lawrence Valley Correctional Centre in Brockville. According to a media release on June 10th, 2024, from the province’s Ministry of the Solicitor General, the beds in this facility have been doubled to accommodate more inmates. It is also an institution that offers rehabilitative programs to inmates including sex offender counseling. Unfortunately, the authorities at C.E.C.C. do not have to act on that endorsement since the placement of inmates in institutions is not a judicial decision. It is merely a recommendation. Mr. Gold may be forced to serve the balance of his sentence at C.E.C.C.

[91] In R. v. Hills, 2023 SCC 2 at paras. 135 to 136, the Supreme Court of Canada was considering the constitutionality of certain mandatory minimum sentences and cautioned that:

Courts should consider the effect of a sentence on the particular offender. The principle of proportionality implies that where the impact of imprisonment is greater on a particular offender, a reduction in sentence may be appropriate. For this reason, courts have reduced sentences to reflect the comparatively harsher experience of imprisonment for certain offenders, like offenders in law enforcement, for those suffering disabilities, or for those whose experience of prison is harsher due to systemic racism. To ensure that the severity of a mandatory minimum sentence is appropriately characterized under s. 12, it is necessary to consider the impact of incarceration in light of these individualized considerations.

The effects of a sentence are not measured in numbers alone. They are "often a composite of many factors" and include the sentence's "nature and the conditions under which it is applied" (Smith, at p. 1073). Thus, as Lamer J. observed, a sentence of "twenty years for a first offence against property would be grossly disproportionate, but so would three months of imprisonment if the prison authorities decide it should be served in solitary confinement" (p. 1073). When presented with a sufficient evidentiary record, courts should consider how the conditions of confinement -- for example, the difference between the supports available while serving a non-custodial conditional sentence versus serving a custodial sentence in a federal institution -- would affect an individual offender. Trial courts have increasingly been of this view. [citations omitted and emphasis mine]

[92] The Supreme Court contemplated the mitigation of a sentence to reflect the conditions that an offender will be exposed to while serving his sentence or prospective mitigation. The impact of serving a sentence in C.E.C.C. for someone who has never been in jail before and who struggles with mental health issues will be more penalizing than for someone who has been in and out of jail.

[93] The crown pointed out that I do not know with any certainty where Mr. Gold will serve the balance of his sentence. He may be transferred in a matter of days. Nevertheless, I have no doubt that he will be returned to the C.E.C.C. for some period until he is classified to be transferred elsewhere. On the other hand, I have also considered that Mr. Gold honestly reported that he is much safer on the range where he is currently housed, and he has made some positive connections.

[94] In all the circumstances, I have decided that Mr. Gold’s sentence will be mitigated because of the unjustifiable and inhumane conditions that he endured while in pretrial detention and some prospective mitigation for having to return to that facility for the foreseeable future. I adopt the forceful endorsement of Justice Quigley in R. v. H.O., 2022 ONSC 4900:

First, I cannot overemphasize my strong and sincere hope and preference that H-O will be permitted to serve the remainder of this sentence at either the Algoma or the St. Lawrence Valley Correctional Centre, where I hope I can be confident that he will be able to receive the medical, psychological, and mental health assessments, assistance, treatment and training that I believe he will need before he is returned to the community upon his release.

Second, taking account of the exceptionally unfortunate detention conditions to which this offender has been subjected for a very long period of time, I wish to respectfully, but forcefully, express my request that corrections officials take steps to ensure that H-O is removed from the Toronto based detention centres, even though this sentence amounts to less than two years, and is thus a provincial reformatory sentence that could be served in those facilities.

I cannot avoid expressing my view that to keep this offender incarcerated in such conditions for the remainder of his sentence, would serve to increase the actual severity of this sentence, In my view it would be unconscionable and beneath the standards we claim to uphold in this democracy, governed by the rule of law, where we claim to treat all citizens, whether or not they be offenders, with the same human rights and dignity that we like to believe and hope remain the foundation of our society.

[95] There are 36 months in three years. I have decided to sentence Mr. Gold at the lowest end of the range of three years to allow him to serve the balance of his sentence in a provincial institution and to reflect the mitigating factors especially the plea of guilty.

[96] As a result, for the 211 days of presentence custody, he will receive the standard Summers credit of 1 for 1.5 days which will be the equivalent of 317 days. His sentence will be mitigated by a further 133 days for a total credit of 450 days or 15 months. The balance of his sentence of incarceration will be 21 months. This is a sentence of three years in total taking into consideration the cumulative punitive impact of the additional orders.

[97] Given the length of this sentence, I anticipate and will strongly recommend that he be transferred to either St. Lawrence Valley or to the Ontario Correctional Institute. Since the balance of the sentence is less than 2 years, I have the discretion to order a period of probation. Please see: R. v. Mathieu, 2008 SCC 21 at para. 17. In addition, I must address the ancillary orders requested by the crown and opposed by defence.

x. SOIRA Order:

[98] The law recently changed with respect to the imposition of SOIRA orders. Mr. Gold has been convicted of a designated offence, the crown elected by Indictment and the victim was under the age of 18 years old. As a result, subsections 490.012(2) of the Criminal Code applies:

490.012 (1) Subject to subsection (5), when a court imposes a sentence on a person for a designated offence, it shall make an order in Form 52 requiring the person to comply with the Sex Offender Information Registration Act if

(a) the designated offence was prosecuted by indictment;

(b) the sentence for the designated offence is a term of imprisonment of two years or more; and

(c) the victim of the designated offence is under the age of 18 years.

[99] I have considered the mandatory nature of the order, the aggravating features of this offence and the concern that Mr. Gold lacks some insight into the seriousness of the offence. The imposition of a S.O.I.R.A. order is not grossly disproportionate to the public interest in protecting vulnerable members of our society and the effective prevention or investigation of crimes of a sexual nature. Accordingly, I shall make an order for Mr. Gold to comply with a S.O.I.R.A. order for the next 20 years.

xi. The 161 order:

[100] The crown requested a 10-year section 161 order. Defence counsel submitted that order would be unduly punitive in the circumstances of this case.

[101] A section 161 order is a discretionary and punitive sanction that requires a measured approach. The liberty interests of the offender may be restricted for a substantial period. The Ontario Court of Appeal provided the following guidance in R. v. Schulz, 2018 ONCA 598 about when and how a court should exercise this discretion:

The overarching protective function of s. 161 of the Criminal Code is to shield children from sexual violence: R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, at para. 44. An order under s. 161 constitutes punishment and is not available as a matter of course: there must be an evidentiary basis upon which to conclude that the particular offender poses a risk to children; the specific terms of the order must constitute a reasonable attempt to minimize the risk; and, the content of the order must respond carefully to an offender's specific circumstances: K.R.J., at paras. 48-49. [emphasis mine]

[102] Similarly, in R. v. Brar, 2016 ONCA 724, the Ontario Court of Appeal carefully reviewed the Supreme Court of Canada’s decision on section 161 orders in R. v. J. (K.R.), 2016 SCC 31, [2016] S.C.J. No. 31 and explained at paragraphs 17 and 18 that:

The Supreme Court emphasized that these orders are discretionary and flexible, as s. 161 "was designed to empower courts to craft tailored orders to address the nature and degree of risk that a sexual offender poses to children once released into the community" (at para. 47). Because these orders can have a significant impact on the liberty and security of offenders and can attract a considerable degree of stigma, they will be justified where the court is satisfied that the specific terms of the order are a reasonable attempt to minimize the risk the offender poses to children (J. (K.R.), at paras. 48, 54). The terms of such orders must, therefore, "carefully respond to an offender's specific circumstances" (at para. 48). [emphasis mine]

[103] I am concerned that Mr. Gold lacks insight into the deviance of his attraction to and sexual interference of a child. To prevent future harm, it is essential that he is not in a position of trust or authority over any children and refrains from communicating with them, with a few exceptions, to avoid further offences or temptations. Nevertheless, the restrictions on his liberty from attending public parks and prohibitions from accessing the internet are excessive and unrelated to the circumstances of this offence and this offender.

[104] Mr. Gold is ordered to abide by a 161 order for a period of 5 years during which he is prohibited from:

(a.1) being within 500 meters of any dwelling-house where Ms. Z.Z. ordinarily resides or of any other place that she is known to be other than required court appearances.

(b) seeking, obtaining, or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years.

(c) having any contact — including communicating by any means — with a female person who is under the age of 16 years, unless the offender does so:

• While in the company of an adult over the age of 21 other than his sister Christie Gold; or

• For brief incidental contact while in public places for the purpose of paying for an item(s) to be purchased; or

• Except for family members but only while in an alcohol-free state.

(d) using the Internet or other digital network for the purposes of:

• engaging in any communications with children under the age of 16 years old other than family members; or

• participating in chat groups with members who are primarily under the age of 16 years old; or

• accessing, viewing, sharing, possessing, purchasing or distributing sexualized images of children under the age of 16 years old.

[105] Following his release from custody, Mr. Gold will be bound by terms of two years of probation to ensure he gets ongoing counseling for age-appropriate sexual boundaries, alcohol abuse, post traumatic stress disorder, anxiety, depression. There will be protective terms for the victim.

[106] The combination of these two orders is intended to provide Mr. Gold with resources to sincerely invest in his rehabilitation and successful reintegration into the community following his release from custody while ensuring the ongoing protection of vulnerable members of any community where he resides. The full terms of the probation order are attached as Appendix A.

D. Conclusion

[107] It is hard to reconcile Mr. Gold’s attributes with the egregious circumstances of the offence. The old expression of a “wolf in sheep’s clothing” came to mind when considering the steps that Mr. Gold and his sister took to lure a teenager back to their apartment. Once she was vulnerable and alone, Mr. Gold took full advantage of an impaired 13-year-old girl and had unprotected vaginal sex with her. He exposed a child to the risk of sexually transmitted diseases and pregnancy.

[108] Despite the aggravating factors, Mr. Gold’s plea of guilty is substantially mitigating and it is a manifestation of his remorse and potential for rehabilitation. His family and friend will continue to support him. I accept that he is willing to invest in counseling while he is in custody and moving forward. The additional orders will ensure that he receives the counseling that he needs while still protecting other female children from possible harm.

[109] In summary, Mr. Gold is sentenced as follows:

• For the 211 days of presentence custody, he will receive the standard Summers credit of 1 for 1.5 days which will be the equivalent of 317 days. His sentence will be mitigated by a further 133 days for a total credit of 450 days or 15 months. The balance of his sentence of incarceration will be 21 months.

• Pursuant to section 743.21 of the Criminal Code, Mr. Gold is prohibited from communicating while in custody with Ms. Z.Z.

• He will abide by a S.O.I.R.A order for a period of 20 years and a 161 order with the terms set out above for a period of 5 years.

• There will be a probation order for a period of two years with the terms set out in Appendix A.

• He is prohibited from possessing weapons or authorization pursuant to section 109 of the Criminal Code for a period of 10 years. He will be required to submit a sample of his D.N.A.

[110] The victim fine surcharge is waived as an undue hardship.

Appendix A

Terms of the two years of Probation

This order will be endorsed that it can be transferred to a probation office in Calgary.

STATUTORY TERMS:

• Keep the peace and be of good behavior.

• Appear before the court when required to do so.

• Notify the court or probation officer in advance of any change of name or address and promptly notify the court or probation officer of any change in employment or occupation.

REPORTING

o Report in person or by telephone to a probation officer:

o Within 7 working days of your release from custody;

o and thereafter at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision.

o Your reporting requirements will end when you have satisfied your probation officer that you have:

o Completed all your counselling.

o you must cooperate with your probation officer. You must sign any releases necessary to permit the probation officer to monitor your compliance and you must provide proof of compliance with any condition of this Order to your probation officer upon request

NO CONTACT TERMS

o Do not contact or communicate in any way, directly or indirectly, by any physical or electronic or other means with Ms. Z.Z.

o Do not be within 500 meters of any place where you know Ms. Z.Z. to live, work, go to school or any place that you know the person to be:

EXCEPT while attending at required court appearances.

o Do not to post any information about, depictions of, recordings of or photographs of Ms. Z.Z. on any social media site.

COUNSELLING AND TREATMENT

o Attend and actively participate in all assessments, counselling or rehabilitative programs as directed by your probation officer and complete them to the satisfaction of your probation officer including but not limited to:

o Alcohol abuse;

o Appropriate sexual boundaries;

o Psychological and psychiatric issues including PTSD, depression and anxiety; and

o Coping with brain injuries.

o You shall sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed.

o You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed.

[^1]: This date was amended to reflect Mr. Gold’s diary that described his arrest and transport to Ontario.