COURT FILE NO.: 1747/11 & 1798/11
DATE: 2012-11-05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen
Holly Nickel, for the Crown
- and -
S.D.
John Lefurgey, for the Defendant
Accused
HEARD: September 7, October 15 and October 16, 2012
Reasons released orally on November 5, 2012
REASONS FOR SENTENCING
The Honourable Madam Justice W.L. MacPherson
Introduction
[1] After two jury trials in March and May 2012, S.D. was convicted of various sexual offences.[^1] I delivered these reasons orally on November 5, 2012, following three days of submissions on sentencing.
[2] On March 9, 2012 S.D. was convicted by a jury of sexual assault (pursuant to s. 246.1) and sexual intercourse with a female person under 14 years of age (pursuant to s. 146) against M.M. He was also convicted of sexual interference with C.T. (pursuant to s. 246.1) and assault of S.J. (pursuant to s. 244).
[3] On May 3, 2012 S.D. was convicted by a jury of sexual exploitation (sexual touching of a young person under s. 153(1.1)) and sexual assault (pursuant to s. 271(1)) of C.T. He was also convicted of sexual interference (sexual touching of a person under the age of sixteen years under s. 151) and sexual assault (s. 271(1)) of B.D.
Kienapple Principle
[4] The Crown conceded that an accused cannot be convicted of two offences where they arise out of substantially the same facts.
[5] With regard to the offences committed against C.T. – it is appropriate that a conviction be entered on the count of sexual exploitation and that the sexual assault charge be stayed.
[6] Similarly with regard to the offences against B.D. – it is appropriate that a conviction be entered on the sexual interference charge and that the sexual assault charge be stayed.
Circumstances of the Offences
[7] With regard to M.M., S.D. was found guilty by the jury of having sexual intercourse with a person under 14 years of age. M.M. was 13 years of age and he was 18 years of age, a five year age difference.
[8] S.D. was also found guilty by the jury of sexual assault and therefore they were satisfied beyond a reasonable doubt that between October 1986 and December 1991, S.D. had intentionally applied force, that M.M. did not consent, and that this took place in circumstances of a sexual nature.
[9] M.M. gave evidence that over the course of their four year relationship their sexual relationship became increasingly physical. This included an incident of bondage where her arms were tied to the bed, which S.D. admitted did happen, but with consent. He also admitted to inserting the handle of a screwdriver and a beer bottle into her vagina, albeit he suggested that this was with her consent. The final incident referenced was that on at least one occasion S.D. had choked her during sex. This was denied by S.D.
[10] I find that each of these events occurred without the consent of M.M. based on the evidence heard at trial, together with the information disclosed at the sentencing hearing and in particular S.D.’s acknowledgement in the course of the Psycho-Sexual Report that he does have an issue with non-consensual sex.
[11] With regard to S.J., S.D. was found not guilty of sexual intercourse with an underage person. During the relevant time periods (1990 and 1991) J. was 14 and 15 years of age and S.D. was 21 and 22 years of age, an age difference of 7 years.
[12] S.D. was also found guilty of sexual assault against J. She gave evidence that during intercourse he would insert various foreign objects into her vagina, including a black suction cup, mattress foam and cloth from the mattress in the garage. While S.D. denied all of these allegations, he did admit to inserting a beer bottle in her vagina, but maintained that this did not happen very often and that it was consensual. I find that for purposes of the sentencing that a sexual assault occurred on more than one occasion by S.D. inserting a beer bottle into her vagina, without J.’s consent.
[13] J. testified about the increasingly physical nature of their sexual relationship. While she stated that she was forced to have group sex and was threatened with a broken beer bottle, S.D. was found not guilty of assault with a weapon.
[14] However he was found guilty of assault, and for purposes of sentencing, I find as fact that on numerous occasions, S.D. choked her during sex, causing her to lose consciousness and that this was done without the victim’s consent.
[15] As a result of the relationships with M.M. and J., two children were born; J. gave birth to C.T. on […], 1991 and J. gave birth to K. on […], 1991.
[16] With regard to the circumstance of the offences relating to C.T. this relates to one incident that occurred when she was 14 or 15 years of age in or about September or October 2006. C.T. had gone to her grandmother’s home after school. She had gone into her father’s room and lay beside him in his bed. He put his hand under her blouse and massaged her breast. He then grabbed her hand and put it on his groin and massaged his penis. He then placed his hand under her skirt, inside her underwear and on her vagina, but he did not penetrate her with his fingers.
[17] C.T. was a young person (being less than 16 years of age). S.D. was 38 years of age and he was in a position of trust and authority as he was her biological father.
[18] Finally with regard to the circumstances of the offences relating to B.D., this related to one incident that occurred in February 2010. B. was the daughter of S.D.’s then partner, T.D. He was looking after B. while her mother had her nails done for Valentine’s Day. They were at S.D.’s stepmother’s home and they were lying together on S.D.’s bed watching a movie. He put his hand inside her underwear and on her vagina and moved his fingers up and down.
[19] I find as a fact that this offence occurred prior to or on February 14, 2010 at a time when B. was 10 years of age and S.D. was 41 years of age.
[20] Based on the evidence, I also find as a fact that alcohol use by S.D. was involved in all but the most recent offence.
[21] Circumstances of the Offender
[22] At the sentencing hearing, I had the benefit of a Pre-Sentence Report dated August 24, 2012. On consent, an order was made for the Defendant to undergo a psycho-sexual assessment and two reports were prepared by Alan Kaine, the first dated July 12, 2012 and the second dated September 24, 2012. From these Psycho-Sexual Reports a great deal of information concerning the defendant was made available to the Court.
[23] S.D. was between 18 and 22 years of age when he committed the historical sexual offences against M.M. and S.J. He was between 38 and 41 years of age when the second set of sexual offences occurred. He is currently 44 years of age.
[24] It was evident that S.D. comes from a rather unfortunate background. He was born […], 1968, having been conceived as a result of an affair by his father, B.D., with L.S. For the first six months of his life, he was raised by his mother, but as he was not being properly cared for, his father was granted custody and he was raised by his father and his stepmother, L.D.
[25] When S.D. was 8 years old, he discovered the body of his father, who had committed suicide by hanging himself in the garage.
[26] S.D. did not learn that he was the product of an affair until he was a teenager, when he met his biological mother at a party. She is also now deceased, having committed suicide in or about 2007.
[27] S.D. has a half-brother B. (who was born in […] 1972). He felt that he was treated differently by his stepmother in that he received more discipline than B. and he felt unloved and unwanted. He also noted that his stepmother has never been emotionally supportive. After her husband’s death while his stepmother worked hard to financially provide for the family, S.D. often ended up caring for his younger half-brother. In addition, when his stepmother was working, there was no adult supervision and he had friends over all the time at the house. This was certainly consistent with the evidence of the historical complainants (S.J. and M.M.), with the home at C[…] being the location of some of the historical sexual offences.
[28] Academically, S.D. had considerable difficulties, failing Grades 1 and 7 and finally quitting school after only completing Grade 10. He was suspended numerous times and skipped classes on a regular basis. He stated that he was harassed and teased by his peers, was called derogatory names and had frequent confrontations with bullies. He was immature and had a low opinion of himself, doing anything for approval.
[29] Drinking has been an integral part of his life, beginning at the age of 15 years and leading to regular binge drinking with friends. While in high school he used cannabis on a daily basis. In his mid-twenties, he was using cocaine and later used crack cocaine. He denies that he has a problem with drugs or alcohol and has never attended a formal substance abuse treatment program.
[30] Much later in life (at 27 years of age), S.D. did obtain the Ontario High School Equivalency certificate. He also obtained some education and did work in the field of auto-mechanics. In 1998 he took various culinary courses for basic and advanced cooking and for the next 12 years he was regularly employed at various local restaurants, changing locations to advance his career. He lost his employment due to his incarceration, but he plans on looking for work upon his release from custody.
[31] S.D. has had multiple, unhealthy and dysfunctional relationships. He has had six steady relationships over the years. He is the father of five children with four different women. The first child, A. was born in 1987 while he was still in high school. The second two children, C.T. and K., were both born in the fall of 1991, the mothers of these children being M.M. and S.J., respectively. As a result of a seven year relationship with R., he also has two sons (D. born in 1999 and B. born in 2002) with whom he continues to have a relationship.
[32] He is currently in a relationship with D.W. They had previously dated for six months in 2006 and reconnected upon his arrest, following which they have continued in a relationship for more than two years. She has been supportive throughout the Court process and they plan on continuing a relationship upon his release from custody. She has two minor sons N. and C. (aged 14 and 11 years) who reside with her.
[33] Pre-Sentence Report
[34] Defence counsel objected to certain comments in the pre-sentence report by Katie Derrick and specifically the comments made as to risk factors such as S.D.’s denial of any wrongdoing; evidence of sexually deviant behavior by virtue of the number of victims and the similar circumstances of forced sex; the collaboration of this denial by his current partner; the failure to obtain any treatment for sexual deviance and for alcohol and substance abuse ; and intimacy deficits and negative emotionality, evident in the pattern of violence towards partners and victim blaming.
[35] While it was submitted that these comments were outside of the proper parameters of a Pre-sentence report, I would have to disagree. It is clear from s. 721 that the purpose of the Pre-Sentence report is to provide the Court a picture of the offender as a person in society, including not only his background, but his attitude and willingness to make amends. As of the date of the Pre-Sentence Report, S.D. was not prepared to acknowledge any deficits that required counseling.
[36] As noted by Alan Kaine, both in his reports and in his testimony, this attitude changed significantly in the course of the Psycho-Sexual Reports being completed. While initially S.D. denied having any sexual problems and was ambivalent about treatment, after Mr. Kaine reviewed his findings, S.D. then acknowledged that he did have serious sexual issues regarding sadistic and coercive sexual practices (ie. choking). Further he indicated a willingness to attend therapy to address problems identified including his sexual pathology, relationships, self-esteem, victimization, emotional management and developing healthy coping strategies.
[37] Psycho-Sexual Reports
[38] Mr. Alan Kaine has an extensive history in clinical therapy and assessing and treating sexual disorders. He has been conducting phallometric testing since 1985 and he estimated that he had conducted thousands of similar tests.
[39] As noted above, Mr. Kaine prepared two psychosexual reports assessing S.D. It was evident from the reports and from Mr. Kaine’s testimony, that the assessment process was very lengthy and detailed. There was an extensive history taken, and multiple and wide-ranging questionnaires were administered. In addition, phallometric testing was done to ascertain both object preference and activity preference.
[40] Mr. Kaine acknowledged that no one was capable of predicting with absolute certainty that a particular offender would re-offend. Further, he confirmed that the phallometric testing is only one of many factors that he used in making a risk assessment. However, based on the testing that he did and the information obtained from the history and questionnaires completed, he was able to assess risk for sexual recidivism based upon historical, static, non-changeable risk factors (Static-99) as well as specialized tools designed to assess and track changes in changeable or dynamic risk factors (Stable-2007).
[41] Mr. Kaine compared his assessments to those conducted by insurance companies such that he makes judgments based on actuarial measures including age, gender, previous conduct and lifestyle.
[42] He assessed S.D. as being at low to medium risk of re-offending based on the static factors. However, he noted that S.D. scored in the high range regarding dynamic factors with noteworthy deficit areas being denial of fact, responsibility and impact of his conduct; anxiety and depression; substance abuse; longstanding negative self-esteem; and a poor understanding of sexuality and risk responsibility. Mr. Kaine noted that these deficit areas would be what could be addressed in therapy.
[43] In the first report, Mr. Kaine concluded that there was clear evidence of sexual pathology. The phallometric testing of activity preference corroborated sexual arousal to non-consenting and coercive stimuli specifically to sexual assault, toucheurism and sadism/bondage. In the five blocks of tests he responded most strongly to non-consenting trials as compared to consenting trials.
[44] In the first report, in the portion of the phallometric test which targeted object preference, Mr. Kaine was unable to corroborate S.D.’s sexual preference as he appeared to be employing countermeasures during the test. The court ordered S.D. to undergo a re-test and also stipulated that the leg irons and handcuffs were to be removed during the test. S.D. complied and the second phallometric test measuring object preference was interpretable and valid. Based on this, Mr. Kaine concluded that S.D. responded most strongly to adult females. S.D. showed a low level of attraction to young females, prepubescent males and females and adult males.
[45] Upon questioning by S.D.’s counsel, Mr. Kaine agreed that the second report did not suggest that S.D. should be kept away from young children there being no indication of pedophilia. The Crown noted that the circumstances of the offences themselves provided such an indication.
[46] Victim Impact Statements
[47] Under s. 722, the Court is to consider any Victim Impact Statements made describing the harm done to, or loss suffered by, any of the victims, arising from the commission of the offences.
[48] B.D. – testified how this incident has seriously affected her in that she has stopped going to dance classes and often does not want to attend school because of bad memories associated with the defendant. She confirmed that she has trouble trusting her mother’s male friends. She is fearful of when he is released from jail and wants an alarm system installed in her home.
[49] T.D. – B.’s mother has observed her child become withdrawn and give up dance classes. She also indicated that B. is fearful that S.D. will be angry because she told on him and she is afraid of what might happen upon his release. The child is on medication as a result of worry over all of this. She is clingy and does not want to be left alone with any adult males.
[50] C.T. – indicated in her statement that she felt let down when no one seemed to believe her and she felt that she did not matter. She recalled feeling angry and resentful. While growing up she never had a good relationship with her mother, but now understands why – as due to the circumstances of her mother’s relationship with her father, her mother could not be there to protect her own child, which has resulted in her losing any relationship with her mother.
[51] M.M. - set out in her statement that as a result of S.D.’s conduct toward her, she thought, as a young woman, that it was okay to be abused by men. She repeatedly dated abusive men and when she did marry, her husband treated her and her daughter badly. She feels terrible that she did not realize how her lifestyle choices (partying and casual sex) impacted on her daughter, and how her failure to protect her daughter has deprived her child of her innocence and happiness. She does not know how to heal the mother- daughter relationship. She feels shameful about the incidents even though they happened 20 years ago. Her way of dealing with this has been to isolate herself, push away those who love her and be constantly angry. In her interview with Ms. Derrick, M.M. noted that these incidents have contributed to her past alcohol and drug abuse and that she has suffered from panic attacks, anxiety and depression.
[52] S.J. – although a Victim Impact Statement was not filed at the sentencing hearing, in an interview with the Ms. Derrick in preparation of the Pre-Sentence Report, J. stated that she suffered years of paranoia and had difficulty walking alone . She has endured nightmares and her symptoms have become more prevalent since the recent court matters. She is also currently taking medication for mental health issues.
[53] Purpose, Objectives and Principles of Sentencing
[54] 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.
[55] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. (These are serious offences committed against young girls, with the offender accepting limited responsibility for his actions and the harm caused by him.)
[56] Section 718 of the Criminal Code sets out a number of objectives a sentencing judge should bear in mind when sentencing an offender. The objectives of the sentence in this case include:
[57] denouncing unlawful conduct;
[58] deterring the offender and other persons from committing offences;
[59] because it is necessary to do so, separating the offender from society;
[60] assisting in rehabilitating the offender;
[61] providing reparations for harm done to the victims; and
[62] promoting a sense of responsibility in the offender, and acknowledging the harm done to the victim(s).
[63] Section 718.01 of the Criminal Code provides:
[64] when a court imposes a sentence for an offence that involved the abuse of a person under the age of 18 years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct
[65] A sentence should be increased or reduced to take into account any relevant mitigating or aggravating circumstances relating to the offences or the offender.
[66] The mitigating factors in this case include:
[67] That the offender’s prior record was dated, involved minor offences and did not involve any sexual offences;
[68] Prior to his incarceration, the offender was gainfully employed on a full-time basis in the restaurant industry for more than 12 years;
[69] For more than two years and while in custody, there have been no negative incidents reported by staff at the Niagara Detention Center;
[70] While the offender pled not guilty and continues to claim he is innocent particularly of the recent offences – which he is clearly entitled to do and is not an aggravating factor – it is a mitigating factor that after reviewing the results of the psychosexual testing with Mr. Kaine, the offender has admitted to having serious issues regarding coercive sexual practices and there is a willingness to address these and related issues through counseling.
[71] The aggravating factors in this case include:
[72] The offender lacks remorse, does not accept responsibility for the offences and shows a callous disregard for the harm caused to the victims;
[73]
[74] He took advantage of vulnerable and young girls;
[75]
[76] He offended over an extended period of time;
[77]
[78] Alcohol and drugs were an important part of his offending behaviour and have been continuous since his adolescent years;
[79]
[80] The offender was in a role of authority over C.T.;
[81]
[82] While the offender has the support of his current girlfriend, this is based on a denial of any difficulties and is based on a prior six month relationship;
[83]
[84] The offender does not have strong family support; he is estranged from his half-brother as a result of these proceedings and while his stepmother has maintained regular contact while he has been in custody, she is not willing to play an emotionally supportive role in his life.
[85]
[86] Final considerations include that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances. As well, a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
[87] Submissions as to Sentence
[88] Only the Crown provided case law as to the range of sentence to be imposed which would suggest a range of sentence from 4 years to 6 ½ years. As is often the case in sentencing, there were no cases directly comparable to the fact situation before me – namely several historical sexual offences and then more recent sexual offences involving minor persons.
[89] The Crown did emphasize the Ontario Court of Appeal decision of R. v. Woodward, 2011 ONCA 610 in which a sentence of 6 ½ years for various sexual offences was upheld. In that decision Justice Moldaver confirmed at paragraph 75 that “adult predators who seduce and violate young children must face the prospect of a significant penitentiary term” and later emphasized that (at para. 76):
[90] when trial judges are sentencing adult sexual predators who have exploited innocent children, the focus of the sentencing hearing should be on the harm caused to the child by the offender’s conduct and the life-altering consequences that can and often do flow from it. While the effects of a conviction on the offender and the offender’s prospects for rehabilitation will always warrant consideration, the objectives of denunciation, deterrence, and the need to separate sexual predators from society for society’s well-being and the well-being of our children, must take precedence.
[91] Interestingly, the range of sentence that was recommended by Crown counsel and Defence counsel was not significantly different; the area of disagreement between them was the credit to be given to S.D. for pre-sentence custody. They also agreed that probation and counseling was necessary, but disagreed as to whether this should take place in custody or in the community.
[92] The defendant has been incarcerated since July 9, 2010. To the date of the second conviction (May 3, 2012), he had been in custody a total of 665 days or 22 months.
[93] There has been a further six month period of incarceration up until today’s date in order to deal with the sentencing aspect of these offences. To the extent that this delay has been due to the Court’s schedule, counsel agreed, and I find that it is appropriate, that the defendant should receive credit of 1.5 to 1 for this time, or the equivalent of 9 months.
[94] The position of the Crown is that the appropriate sentence is 55 months. It is submitted that the 22 months of pre-sentence custody should be credited on a 1 to 1 basis in accordance with s. 719 (3) as amended by the Truth in Sentencing Act S.C. 2009, c. 29 and that in addition to the total time served (31 months) the defendant should serve an additional two years less a day, with a period of probation of three years thereafter.
[95] The position taken by the Defence is that the appropriate sentence is 53 months. It is submitted that the pre-sentence custody of 22 months should be credited on a 2 to 1 basis, in accordance with the practice that was in place prior to the coming into force of the Truth in Sentencing Act. After taking into consideration the additional 9 months (between the conviction and sentencing), the Defendant should be released with a period of probation as deemed appropriate by the Court.
[96] The Crown sought three ancillary orders namely that there should be an order made under s. 487.051 for the collection of DNA samples; an order under s. 490.012 to require S.D. to comply with the Sex Offender Information Registration Act for 20 years; and an order under s. 161 prohibiting S.D. from being in the presence of or communicating with persons under 16 years of age, except with adult supervision.
[97] The DNA and SOIRA orders are consented to by Defence counsel. However, Defence counsel opposed a s. 161 order given that S.D. has two male children who are under the age of 16 years with whom he has maintained a relationship, and given that his current girlfriend has two male children (both under 16 years of age) with whom he wishes to be able to have contact upon his release.
[98] Analysis as to Sentence
[99] Taking into account the principles of sentencing, the circumstances of the offences and the circumstances of the offender, together with the mitigating and aggravating factors as set out above, with denunciation and deterrence being the paramount objectives, I find that the appropriate sentence in this case is 54 months.
[100] In addition to determining the appropriate sentence, I must also determine how much credit should be awarded for the twenty-two months that S.D. has spent in custody between his incarceration (July 9, 2010) and the date of his conviction (May 3, 2012). The amount of credit will depend on whether the Truth in Sentencing Act applies to the offences.
[101] All of the relevant offences took place before the Truth in Sentencing Act came into force on February 22, 2010. In fact, the “historical” sexual offences took place more than 20 years ago. The more recent offences occurred in the fall of 2006 and on or before February 14, 2010. However, S.D. was not charged until July 2010, some four months after the Act came into effect.
[102] Defence counsel argued that because the offences for which S.D. was convicted occurred before the Act came into force, this legislation should not apply to him. In support of this position, counsel provided the Alberta Court of Appeal decision, R. v. Serdyuk, 2012 ABCA 205.
[103] In Serdyuk, the offender was charged several days after the Act came into force, for an offence that occurred on February 18, 2010. The Alberta Court of Appeal relied on the Interpretation Act, R.S.C. 1985, c. I-21 to find that s. 5 of the Truth in Sentencing Act (the transition section) did not apply to retroactive offences. The Court, relying on the laws of statutory interpretation read down s. 5 of the Act such that it does not apply to offences committed before February 22, 2010.
[104] Crown counsel submits that s. 5 of the Act which is the transition provision is clear in that it reads:
[105] Subsection 719(3) to (3.4) of the Act as enacted y section 3, apply only to those persons charged after the day on which those subsections come into force. [Emphasis added.]
[106] However, as commented on by Watson J. in Serdyuk (at paras. 27 and 28):
[107] Neither official language version states positively that the Truth in Sentencing Act is to apply to any offences by any offenders which occurred prior to February 22, 2010 as long as they were not charged with those offences until after February 22, 2010. Had that been the case, s. 11(i) of the Charter might then fall to be considered. Layers of uncertainty would be generated by such an interpretation. Would, for example, persons charged after February 22, 2010 for offences in the 1970’s face the Truth in Sentencing Act for pre-sentence custody calculus, but face the law in force in the 1970s for their offences and other aspects of the penalties?
[108] In our view, it is clear that Parliament intended by s. 5 of the Truth in Sentencing Act to put beyond question that only persons who committed their crimes and were charged for them after the amended Code provisions came into force would be affected by the amendments. Neither official language version mentions the date of the offence, but, as noted below, the absence of such reference is not an obvious exclusion. [Emphasis in original.]
[109] Justice Watson continued (at para. 32):
[110] We are satisfied that if Parliament intended to amend this significant part of the punishment provision of the Criminal Code in a manner which reduced the Court’s discretionary authority to calculate credit for pre-sentence custody retrospectively so as to be applicable to persons who offended before the law existed, it would have said expressly.
[111] These reasons have been followed in the Ontario Superior Court decision, R v. Fawcett 2012 ONSC 4462. Mr. Fawcett was arrested in April 2010 for offences (bank robbery) that took place in January 2010. Justice Warkentin of the Superior Court of Justice found (at para. 69):
[112]
[113] I agree with the interpretation set out by the Alberta Court of Appeal in R v. Serdyuk that offences committed prior to the coming into force of the Truth in Sentencing Act are still entitled to credit on a 2 for one basis for pre-sentence custody.
[114]
[115] The Alberta decision, Serdyuk, has also been followed in a case in which a father was arrested (after the Act came into force) for sexual offences against his daughter and step-daughter that took place before the Act came into force (R v. C.(A.R.), 2012 ABPC 252).The Alberta Provincial Court found that, following the reasons in Serdyuk, two days of credit would be awarded.
[116]
[117] After reviewing these matters, I find the reasoning in Serdyuk to be convincing and therefore the Truth in Sentencing Act does not apply to S.D. and it is therefore not necessary to consider the Constitutional issues raised by the Defence.
[118]
[119] However, and while defence counsel then submitted that S.D. should automatically be entitled to a 2 for 1 credit for the 22 months of pre-sentence custody, that is not the only possible result and it remains within the Court’s discretion as to the appropriate credit to be given. This is evident from the fact that in Serdyuk, while the Court agreed that the Act did not apply to those who had offended before the Act came into force, even they disagreed about whether or not enhanced credit should be awarded.
[120]
[121] Prior to the Truth in Sentencing Act being proclaimed, judges had wide discretion to award credit for time spent in custody before sentencing. The Ontario Court of Appeal considered this discretion in R. v. Rezaie (1996) 1996 CanLII 1241 (ON CA), 112 C.C.C. (3d) 97 (C.A.). The Court of Appeal concluded that the trial judge erred by refusing to give credit for the detention, noting (at para. 25):
[122]
[123] Although this section [section 721(3) of the Criminal Code] is discretionary, not mandatory, in my view a sentencing judge should ordinarily give credit for pre-trial custody. At least a judge should not deny credit without good reason. To do so offends one’s sense of fairness. Incarceration at any stage of criminal process is a denial of an accused’s liberty. Moreover, in two respects, pre-trial custody is even more onerous than post-sentencing custody. First, other than for a sentence of life imprisonment, legislative provisions for parole eligibility and statutory release do not take into account time spent in custody before trial (or before sentencing). Second, local detention centres ordinarily do not provide educational, retraining or rehabilitation programs to an accused in custody awaiting trial. For these reasons, pre-trial custody is commonly referred to as “dead time”, and trial judges in deciding on appropriate sentence, frequently give credit for double the time an accused has served.
[124]
[125] The Court of Appeal considered the amount of credit that should be awarded, stating “this court and other provincial appellate courts have rejected a mathematical formula for crediting pre-trial custody, instead insisting that the amount of time to be credited should be determined on a case by case basis” (at para. 26). The Court of Appeal noted further that “[a]lthough a fixed multiplier may be unwise, absent justification, sentencing judges should give some credit for time spent in custody before trial. . .” This reasoning was adopted by Arbour J. in the Supreme Court of Canada in R v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455 at paras. 28-29.
[126]
[127] However, the Court of Appeal has also upheld a trial judge’s decision not to award enhanced credit. In R. v. Fazekas [2003] O.J. No. 1615 (C.A.), 171 O.A.C. 115, the trial judge awarded 1 for 1 credit because the accused did not appear to appreciate the impact his actions had on the complainant and others. Furthermore, the trial judge was concerned about the repetitive nature of the offences and also sought to provide some peace for the complainant. The Court of Appeal held that the trial judge did not err in her determination.
[128]
[129] So while there was a general rule of granting 2 for 1 credit for pre-sentence custody and occasionally even greater credit where the circumstances under which the offender spent remand had been particularly onerous, 2 for 1 was not mandated by the Criminal Code and there were certainly circumstances where less than 2 for 1 credit was given.
[130] Unlike in Serdyuk, where no evidence was led with regard to the conditions of the offender’s pre-sentence custody, this court had the benefit of evidence both from S.D. and from Christopher Fields, the Security Manager at the Niagara Detention Centre, where S.D. spent the majority of his pre-sentence custody.
[131] Mr. Fields testified that the Niagara Detention Centre had no recreational activities, and no fitness area. Mr. Fields confirmed that S.D. had no educational programs and likely had irregular showers, and irregular laundry. Mr. Fields confirmed that though his staff endeavoured to change sheets and offer showers regularly, this was not always possible. Over-crowding and funding shortages are a reality; S.D.’s situation was not abnormal or exceptional.
[132] I do accept that S.D. had to spend the bulk of his time in an over-crowded facility and that services were affected by staff shortages. While in segregation, he spent time in cells designed for two people, fitting in one more, and as a result he often slept on the floor. He was confined to the cell for long periods of time, being allowed only periodic showers and trips outside. However, the reason that he was in segregation was due to the nature of the offences with which he was charged and was done for his own protection. Further, many of the times that he missed showers or outside time was of his own choosing simply deciding not to go outside or not wanting to interrupt a visit that conflicted with these.
[133]
[134] S.D. testified that he did not have access to educational programs, counselling or religious services. However, on the evidence before me, I find that these shortages would not have significantly affected S.D. It is clear that he would only have been interested in education courses that related to his vocation as a chef. It is evident that he was able to seek medical treatment on numerous occasions during his pre-sentence custody and he only sought a Social Worker and Psychiatrist consultation in early 2012. Further and on the evidence before me, prior to July 2012 he did not accept that he needed any counselling, only coming to this conclusion after reviewing the results of the Psycho-Sexual Report with Mr. Kaine.
[135]
[136] However, I must also consider that the time S.D. spent in custody is not eligible for parole. As the Ontario Court of Appeal recognized in Rezaie, legislative provisions for parole eligibility and statutory release do not take into account time spent in custody before trial and sentencing. This means that it is likely that offenders who spent time in custody will be incarcerated, in total, longer than offenders who committed similar crimes but did not spend time in custody.
[137]
[138] I am well aware that the determination of what justifies enhanced credit for pre-sentence custody is hardly a unanimous one. This is clear from the various reported decisions that have struggled with the amendments to s. 719 and the interpretation and application of the Truth in Sentencing Act. This has resulted in two distinct camps: one holds the view that judges are prohibited from granting anything more than 1 for 1 credit for pre-sentence custody unless satisfied that exceptional circumstances exist; and the other camp holds that exceptional circumstances need not be shown in order for a judge to conclude that “the circumstances justify” a ratio of up to 1.5 to 1. I need not weigh in on that debate as I have found that the Truth in Sentencing Act does not apply to S.D., but it is instructive as to the difficulty that this issue has caused to sentencing judges, most of whom have considerable experience in dealing with these cases on a regular basis.
[139] After considering the evidence as to the circumstances of S.D.’s pre-sentence custody and the loss of parole eligibility, I would credit S.D. 1.5 days for each day spent in custody for the 22 months from the date of his arrest to the date of the last conviction, for a total credit of 33 months.
[140] I accept the submissions of both counsel that S.D. is also entitled to a further credit of 9 months for the 6 month time period that he has been in custody pending the sentencing hearing and decision, which brings the total credit to 42 months.
[141] As such, based on the proper application of the principles of denunciation and deterrence, a sentence of 54 months is appropriate and after applying the credit of 42 months, there will be a custodial sentence of twelve months, followed by a three year period of probation.
[142]
[143] A custodial sentence is warranted in these circumstances. This sentence will permit S.D. to obtain the counselling services needed to address his needs as identified by Mr. Kaine and as are available at OCI in Brampton As noted by Mr. Kaine, treatment within the community is a very important part of any rehabilitation, but as S.D. has only recently come to the realization that he does need such assistance, the sentence imposed strikes the appropriate balance between the primary objectives of denouncing the unlawful conduct and deterring the offender against committing similar offences as against the objective of assisting in rehabilitating the offender .
[144]
[145] In addition to the sentence, there shall be an order authorizing the taking of samples of bodily substances for forensic DNA analysis reasonably required for that purpose pursuant to s. 487.051.
[146] There shall be an order for the registration under the Sex Offender Information Registration Act pursuant to s. 490.013 of the Criminal Code with compliance for a term of 20 years.[^2]
[147] Finally, I have considered the request for a prohibition order under s. 161 and after considering the circumstances of this case, and the circumstances of the various offences, along with S.D.’s family situation, I find that such an order is not warranted.
[148] Probation Terms
[149] As to probation there shall be a period of probation of three years on the following terms:
[150] To report immediately, in person to a probation officer as directed and, thereafter, be under the supervision of a probation officer and report at such time and places as that person may require;
[151] To provide a copy of the Psychosexual Assessment Report and the Phallometric Re-Test prepared by Alan Kaine to your probation officer;
[152] To attend and actively participate in any counseling or treatment as directed by your probation officer, including but not limited to any sexual pathology, and any alcohol/ or substance abuse;
[153] To take whatever treatment and medication as may be prescribed by your treatment and/or health care provider;
[154] To sign whatever releases of information that may be required to permit your probation officer to verify compliance with counseling/treatment that has been ordered under this probation order;
[155] To contact the Partner Abuse Response (PAR) program within 30 days and thereafter, attend as directed by the Ministry of Attorney General designated PAR service provider and actively participate in, pay all applicable fees (not to exceed $400) and complete the PAR program to the satisfaction of the PAR service provider and your probation officer, providing written proof of the completion of the program to your probation officer;
[156] To not associate or have any direct or indirect communication with M.M., S.J., C.T., and B.D.;
[157] To not attend or be within 100 metres of M.M., S.J., C.T. and B.D. nor their residence, place of employment, place of education, place of worship, or any other place that you know them to be;
[158] To not associate or communicate directly or indirectly with T.D., M. (J.) J., C.A. and L. (I.) M.;
[159] To not own, possess, or carry any weapon as defined by the Criminal Code of Canada.
MacPherson J.
Released: November 5, 2012
[^1]: The relationship of various persons with the defendant constitutes identifying information and as such the publication ban continues to apply to the information.
[^2]: Order amended on November 22, 2012 to require SOIRA compliance for life, given the number of designated offences in accordance with Criminal Code provisions.