COURT FILE NO.: CR-18-1466

DATE: 2021/05/25

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Her Majesty the Queen

AND

W.K.

BEFORE: Justice A. Doyle

COUNSEL: Caitlin Downing, Counsel for the Crown

Adrian Cleaver, Counsel for the Accused

HEARD: May 3, 2021 via Zoom at Pembroke

SUBJECT TO ANY FURTHER ORDER BY A COURT OF COMPETENT JURISDICTION, AN ORDER HAS BEEN MADE IN THIS PROCEEDING DIRECTING THAT THE IDENTITY OF THE COMPLAINANT AND ANY INFORMATION THAT COULD DISCLOSE SUCH IDENTITY, SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST IN ANY WAY PURSUANT TO S. 486.4 OF THE CRIMINAL CODE OF CANADA

SENTENCING DECISION

Overview

[1] On November 30, 2020, W.K. was convicted of the following:

i. An indecent assault on A.D. between the 1st day of January 1974, and the 31st day of December 1978;

ii. A common assault on A.D. between the 1st day of January 1976, and the 31st day of December 1978;

iii. Without lawful excuse pointed a firearm at A.D. between the 1st day of January 1978, and the 31st day of December 1979;

iv. A sexual assault on J. K. between the 1st day of January 1988 and the 31st day of December 2001; and

v. A common assault on J.K. between the 1st day of January 1988 and the 31st day of December 1990.

See [2020] ONSC 6735.

[2] The offences before the Court arose from an investigation in 2018 when the police interviewed both complainants, A.D. and J.K., regarding another case. During the course of their interviews, the complainants alleged domestic violence at the hands of W.K.

[3] W.K. testified at the trial and continues to deny the offences.

[4] Briefly the background facts are as follows.

i) Indecent assault on A.D.

[5] The complainant, A.D., was W.K.’s first wife and they were married in 1968 and divorced in approximately 1980. They had two children of the marriage. T.D., the oldest daughter born in 1972 and a younger daughter born in 1974. T.D. gave evidence at the trial.

[6] The charge of “indecent assault” existed under the Criminal Code, R.S.C. 1970, c. C-34 during the relevant period of time and this section was repealed in 1983.

[7] At the time of this offence, indecent assault included anal intercourse.

[8] A.D. describes her relationship with W.K. as controlling in that he would demand to know her whereabouts, who she spoke to and why she would be late from an outing. She indicated that she lived in fear day and night and was afraid to argue back or counter anything he said. She described him as very controlling if he thought she was not being honest with him. If she tried to talk back or argue with him he would become aggressive with her.

[9] Regarding this offence, A.D. was in bed with her nightgown on. W.K. said he wanted anal sex. She told him that she did not consent. He grabbed her by her left breast and shoulders and put her on her knees. She tried to resist. He was aggressive and he displayed explosive behaviour. When she realized that she was not going to be able to stop him she just placed her head in the pillow so that their daughters across the hall in their bedroom could not hear when she screamed.

[10] She stated that “basically he just kind of shoved me on to my knees and I was resisting, I can remember that he forced me into that position and kept me in that position. After a couple of minutes there was no point to struggle, I just put my head in the pillow waiting for him to finish.”

[11] She says she recalled him putting his hand on her breast and one hand on the back of her head or her shoulder and just pulled her up and forward.

[12] W.K. did not ask her if she wanted sexual interaction. There was never any conversation but she did tell him that she did not want to engage in anal intercourse. She remembers pleading with him not to do it.

[13] She stated that she experienced pain at the time and then feeling a bit of pain the next day in the anal area, her breast and her shoulders where he had been holding her.

ii) and (iii) Assault and pointing a firearm at A.D.

[14] These two offences arise out of the same incident on the day of A.D.’s separation from W.K.

[15] When she returned home after work, W.K. confronted her in the living room about her having an affair with C.D.

[16] There was a heated argument as W.K. became very upset and shouted. He became very violent, pushed her and slapped her and grabbed her and threatened to kill her. He was yelling and screaming at her.

[17] He left the room and returned with a rifle.

[18] W.K. then ordered her to take her clothes off and he picked up his rifle and aimed it towards her and said that she was not going to leave him and he was going to kill her. She assumed he had bullets in the rifle.

[19] There was punching and grabbing.

[20] She left home that night. She moved to British-Columbia in 1982 or 1983 and the children remained with W.K.

iv) Sexual Assault of J.K.

[21] They commenced cohabiting in approximately 1988 and she was married to W.K. from 1992 until 2003 when they were divorced.

[22] She described W.K. as controlling as he regularly wanted to know her whereabouts. While at the home on 7th Concession, she discovered that he had a feature under his desk in his home office that permitted him to listen in on telephone conversations in the home.

[23] With respect to the sexual assault, J.K. alleges the following:

− One evening she said that they had had an argument but she does not recall the details;

− She went to bed and W.K. stated that he wanted to have sex;

− She told him that she did not consent once or twice;

− He put her on her stomach and he penetrated her vagina with his penis; and0

− She remembers telling him after it was over that “now I know how it feels to be raped”.

[24] During her testimony, she was visibly upset and a break was required. She indicated that she felt uncomfortable discussing the details of the sexual assault.

v) Assault of J.K.

[25] The assault on J.K. occurred when she was walking up the stairs. She states that:

− W.K. was right behind her and pulled her coat;

− She was scared as she felt she was going to fall backwards;

− He had his back to the wall; and

− He punched her in the stomach.

[26] She describes the blow to her stomach as a memorable event as this was the first time that she experienced a blow like this.

Crown’s Position

[27] The Crown is seeking a global sentence of 52 months penitentiary term as follows:

− 2 years for the indecent assault on A.D.;

− 2 years for the sexual assault of JK, consecutive;

− 90 days for pointing the firearm at A.D. consecutive;

− 30 days for the assault of AD. concurrent; and

− 30 days for the assault of J. K. consecutive.

Defence Position

[28] The Defence is seeking a global sentence of 2 to 3 years as follows:

− 12 to 18 months for the indecent assault of A.D.;

− 6 to 12 months for the Sexual assault on J.K.;

− 6 months for pointing the firearm; and

− 30 days concurrent for each of the assault charges.

[29] W.K.’s advanced age and numerous medical conditions should be taken into account when imposing sentence.

[30] W.K. has 47 days of pre-trial custody and with a credit of 1.5 days per 1 day of pre-trial custody, he should receive 71 days of credit.

General legal principles

[31] The applicable sentencing principles are set out in s. 718 of the Criminal Code. The sentence must denounce unlawful conduct, deter the offender and others from committing offences, separate offenders from society, if necessary, assist in rehabilitation, provide reparation for harm done to victims and the community and provide a sense of responsibility in offenders and acknowledgement of the harm done to victims or to the community.

[32] Section 718.1 of the Criminal Code states that the fundamental principle is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[33] Section 718.2 sets other sentencing principles to consider in determining aggravating or mitigating circumstances.

Proportionality

[34] The proportionality principle analysis under s. 718.1 takes into account the gravity of the offence and the degree of responsibility of the offender, including the fault component and any specific aspects of the offender’s conduct or background that affect his responsibility for the crime.

Parity

The parity principle requires that the Court considers sentences imposed on similar offences committed in similar circumstances. The cases presented provide a range and sentencing principles for the Court to consider.

The offender

[35] W.K. is 74 years old and a first-time offender. A medical report dated April 22, 2021 filed as an Exhibit describes his present health status as frail with the following medical problems: coronary heart diseases, hypertension, cardiomyopathy, COPD, dyslipidemia, benign prostatic hypertrophy, a repaired abdominal aortic aneurysm, anxiety and depression, osteoarthritis, a recently repaired left rotator cuff tear and gallstones. His doctor indicates that “the combination of his respiratory and cardiac issues makes even minimal physical activity such as walking short distances quite difficult due to shortness of breath and fatigue.

[36] His doctor concludes that his overall health status is quite poor and that his life expectancy is significantly limited.

[37] The Pre-sentence report, dated April 22, 2021, sets out the offender’s personal background as follows:

− He had a positive comfortable childhood in the Montreal area with two loving and supportive parents in a middle-class lifestyle free from household violence or hardship;

− He had one sister who stated that the offender had a very close relationship with their late father and confirmed that there was no domestic violence or alcohol abuse in the household;

− Both the offender with his father were well liked in the community and participated with the volunteer fire department and other community organizations;

− He completed high school and one year of college and in 1996 began working with a telecommunication company and in 1997 he was self-employed in telecommunications;

− At this time his income stems from his employer’s pension;

− He describes himself as a good father who worked hard to provide for his family and the community;

− He was heavily involved in the community sports and community service programs;

− He described his romantic relationships as positive but ending when his partners had extramarital affairs; and

− His sister described him as “very kind”, “ready to help”, “passionate”, “loyal”, “honest” and a “trustworthy person”;

− A former friend B.I. described the offender as “very focused on his desires and goals” but that he could become very aggressive and intimidating when challenged or resisted within the organization; Over the years the level of aggression in the public was escalating. He described him as “short-tempered” “hot headed” and “resentful” and no “element of forgiveness.” Also, he would raise his voice when he attempted to get his point across.

[38] The probation officer and author of the Pre-sentence Report stated the following in his assessment:

− The offender has demonstrated a pattern of extreme sexual jealousy, controlling behaviour and “attitudes supportive of domestic violence across all of the subject’s known romantic relationships in his life.”;

− The offender denied the offences and did not express any remorse;

− The offender did not acknowledge the impact of the offences on the victims, their families and the community at large; and

− Although the offender indicated he would comply with any treatment imposed by the Court, the writer indicated that due to the offender’s minimization and denial and of his own sense of personal victimization, compliance with any programing would be “superficial and not contribute to rehabilitation”.

[39] In conclusion, the author opines that the offender is not a suitable candidate for community supervision.

Mitigating Circumstances

[40] The mitigating circumstances include:

• No criminal record;

• Other aspects of his life show exemplary character such as being a good father and he was a single father of two daughters after his separation to A.D.; and

• Extensive community service including sports involvement.

[41] In the case of R. v. W.W.M., 2006 3262 (ON CA), [2006] O.J. No. 440, in the intervening years since the assault, the offender had lived a “good life” but was not remorseful. The Ontario Court of Appeal stated that otherwise exemplary community involvement and good character can be mitigating factors, but this can be diminished if there is no expression of remorse.

[42] The offender is entitled to continue to assert his innocence and have his right to a trial, but his denial is relevant in assessing the offender's suitability for rehabilitation. As stated in R. v. K.E., 2014 ONCA 186, where an offender continues to deny responsibility, there is lack of evidence that he has insight into what caused the offences which thereby limits the role rehabilitation takes in sentencing.

[43] In his oral statement to the court after the court heard sentencing submissions, W.K. continued to deny the offences and has not taken responsibility.

Aggravating circumstances

[44] The aggravating circumstances in this case are that the offences involved domestic violence against two intimate partners.

[45] Section 2 of the Criminal Code defines “intimate partner” as a “current or former spouse, common law partner and dating partner.

[46] Subsection 718.2(a)(ii) of the Criminal Code specifically states it is an aggravating factor if an offender has abused his intimate partner.

[47] In addition, I find that the offender was in a position of trust as both victims were married to him at the time of the offences.

[48] Subsection 718.2(a)(iii) of the Criminal Code makes it statutorily aggravating that the offender abused his position of trust with the two victims.

[49] In R. v. Friesen, 2020 SCC 9, the Supreme Court said this:

[125] ……… Trust relationships arise in varied circumstances and should not all be treated alike (see R. v. Aird, 2013 ONCA 447, 307 O.A.C. 183, at para. 27). Instead, it makes sense to refer to a “spectrum” of positions of trust (see R. v. R.B., 2017 ONCA 74, at para. 21 ()). An offender may simultaneously occupy multiple positions on the spectrum and a trust relationship can progress along the spectrum over time (see R. v. Vigon, 2016 ABCA 75, 612 A.R. 292, at para. 17). In some cases, an offender’s grooming can build a new relationship of trust, a regular occurrence in child luring cases where children are groomed by complete strangers over the Internet, or move an existing trust relationship along the spectrum. Even where grooming does not exploit an existing relationship of trust or build a new one, it is still aggravating in its own right.

[126] Any breach of trust is likely to increase the harm to the victim and thus the gravity of the offence. As Saunders J.A. reasoned in D.R.W., the focus in such cases should be on “the extent to which [the] relationship [of trust] was violated” (para. 41). The spectrum of relationships of trust is relevant to determining the degree of harm. ……

[129] In R. v. C.R 2010 ONCA 176 at para. 84-86, the Ontario Court of Appeal stated that sexually intimate relationships between adults is found on trust and confidence “at least to the extent that each participant may reasonably expect he or she will not knowingly be exposed to the other to serious or obvious perils”. In that case, the accused was an intimate partner not a husband.

Discussion

[50] In R. v. Bradley, 2008 ONCA 179, the Ontario Court of Appeal adopted a 3-5 year sentencing rage for a single count of sexual assault involvement vaginal and anal penetration.

[51] In R. v. Smith, 2011 ONCA 564, the Ontario Court of Appeal agreed with the Crown’s position that there is a range of 21 months to 4 years in cases of sexual assault involving forced intercourse with a spouse or former spouse.

[52] There was no reference to Bradley nor an explanation why there would be a distinction between sexually assaulting a spouse and a stranger.

[53] This distinction was further explored by Justice Spies in R. v. P.M., 2020 ONSC 3325. As here, she found there was a domestic and a trust relationship which is a statutorily aggravating factor. Citing academic literation and jurisprudence, the Court found that it is improper to minimize the sexual assault of an intimate partner compared to a sexual assault on an acquaintance/stranger.

[54] At para. 95, she refers to another case where the Court also mused at the distinction.

[95] I am advised that Smith and Bradley have only once been cited together in a 2019 case: R. v. O.K.S., 2019 ONCJ 482. O.K.S. involved an offender who had been convicted of several charges including sexually assaulting his long-time spouse. Rahman J. applied the lower Smith range in that case, but he acknowledged the existence of Bradley in a footnote where he noted that the sentencing range for spousal sexual assault – even when it occurs repeatedly – appears to be different than that for sexual assault committed by non-spouses. Referring to Bradley, which in his view accepted that the range of sentence for sexual assault was three to five years, he observed that one instance of forced intercourse by a non-spouse will often result in a penitentiary sentence, even for a first offender (at para. 18). Rahman J. found this distinction in sentencing ranges “difficult to understand” and he was unclear how it had developed given that it had been over thirty years since Parliament removed the spousal defence to sexual assault and because spousal assaults are statutorily aggravating; in his view, it was hard to imagine a greater breach of trust than a sexual assault by a spouse. I agree with his observations.

[55] The defence has provided a number of cases for the Court’s consideration:

R. v. M.K. 2018 ONSC 6055 where the accused was convicted on one count of indecent assault and one count of sexual assault which had occurred in the 1980’s. The victim was the niece and the accused had no prior record, was elderly and had medical issues. The court rejected a conditional sentence request, but reduced the sentence to 15 months. There were Gladue considerations in this matter.

R. v. Sabourin 2019 ONSC 4418, the accused was convicted of indecent assault that occurred over 40 years ago and the court held that, in view of his age and health issues, 18 months incarceration was a fit sentence.

R. v. L.T. 2010 ONSC 4672, the accused was convicted to two counts of indecent assault which occurred in 1972, and imposed sentence of one year of incarceration for the more intrusive assault and a conditional sentence of one year less a day for the less serious assault. The Court took into consideration his serious medical conditions.

R. v. J.M. 2019 ONSC 375, the accused who was 83 years old, was convicted of 24 counts of domestic abuse offences involving his spouse and children. The court imposed a sentence of just under two years and a conditional sentence.

R. v. Polanco 2019 ONSC 3073, the accused was sentenced to 21 months for a number of domestic violence offences but this sentence was overturned on appeal to conditional imprisonment given that the accused was in a wheelchair.

R. v. L.W. 2018 ONCJ 399 the accused was convicted of sexual assault, he had no previous record, was 85 years old and had serious health issues. The court imposed an intermittent sentence of 90 days.

R. v. L.B 2016 39533, the accused was convicted of 3 counts of sexual assault in 1999 to 2000. He was 69 years old with declining health and he was sentenced to 22 months of imprisonment.

R. v. I.P. 2009 QCCQ 1665, the accused was convicted of a dozen indecent assaults; he was 67 years old and in poor health. A sentence of 9 months was imposed.

[56] The Crown submits that above sentences for historical sexual assaults predated a later case, i.e. R. v. Stuckless, 2019 ONCA 504, where the Ontario Court of Appeal stated at para. 61:

…Nevertheless, it was incumbent on the sentencing judge to impose a sentence with regard to the jurisprudence and understanding of sexual offending as it exists today. Previous sentencing decisions are historical portraits, not straitjackets: Lacasse, at para. 57.

[57] Although a case dealing with abuse of children, the comments at para. 112 are equally applicable here,

As the foregoing review of Parliament’s legislative initiatives and appellate jurisprudence from across the country suggests, there has been significant recognition of the impact of sexual abuse on a child, particularly when that abuse is perpetrated by a person in a position of trust or authority. Parliament’s legislative reforms governing sexual offences signal that society’s denunciation of this conduct must be reflected in the sentences imposed by courts. These legislative amendments, while not applicable to the offences committed by the respondent, indicate a significant societal recognition of the gravity of sexual offences against children. This recognition is not an alteration of weight to be assigned to a factor, or justification for imposing a higher sentence than is fit in the circumstances. Understanding the gravity of the offences in a general sense is an important aspect of imposing a proportionate sentence. It serves to contextualize the seriousness of the offences and recognizes that sentencing should not be divorced from a contemporary understanding of the harm occasioned by the offences. The legislative amendments are not a standalone justification for imposing a higher sentence, nor do I rely on them for that purpose. As mentioned, they simply reflect society’s better understanding of harm caused by these offences to victims and the community, and the need to address this harm in the sentencing process as argued by the Crown.[^10]

Victim Impact Statement

[58] The Court heard the victim impact statement from A.D. which outlined the significant impact these offences of assault, indecent assault and pointing a firearm has had on her. She indicates that she has had nightmares, suffers from Post-Traumatic Stress Disorder, and takes medication. She indicates that it has taken her years to work through what occurred to her.

[59] She recounts that W.K.’s abuse of her during her relationship and how it stripped her of her confidence, self-esteem, self-worth and her spirit. She spoke of the isolation from family and friends and how this was in his control and that she has tried to figure out what she “did wrong and how to make it better so it does not happen again.”

[60] She also spoke of her concern for her own personal safety and how this affects her on a daily basis.

[61] It is clear that these offences have had a significant impact on A.D.

[62] The Court did not have a victim impact statement from J.K. and the defence suggests the impact on her was not to the same degree as on A.D. given that she would have coffee with the offender after they separated. Also, she did reconcile for a brief period of time in a rural setting which was isolated from the community.

[63] In my view, the absence of a victim impact statement from J.K. and the fact that she had a friendly relationship with the offender after the offences does not lead to the conclusion that the assault and sexual assault on her had no impact on her.

[64] In fact, at trial, J.K. described that she will never forget the pain that she experienced when W.K. punched her in the stomach while they were on the stairs.

[65] At trial, when she described the sexual assault, she appeared distraught and shaken up.

[66] After the separation, she said that it was important for her to maintain a relationship with the offender for the sake of the children.

[67] Victims of domestic violence react different ways. The fact that they do not want to share their humiliation and pain from these experiences with the Court does not, in my view, diminish the impact that experiencing violence from an intimate partner has on one’s physical, emotional and psychological well-being.

[68] In accordance with s. 718(a)(iii.1) of the Criminal Code, it is an aggravating factor that the offence had a significant impact on the victims.

[69] The key, then, to a major sexual assault is the evident blameworthiness of the offender, and the disregard for the victim’s feelings and personal integrity. See. R. v. J. F., 1982 ABCA 148.

[70] As stated in R. v. Sandercock, 1985 ABCA 218, at paras. 13-14:

[13] One archetypical case of sexual assault is where a person, by violence or threat of violence, forces an adult victim to submit to sexual activity of a sort or intensity such that a reasonable person would know beforehand that the victim likely would suffer lasting emotional or psychological injury, whether or not physical injury occurs. The injury might come from the sexual aspect of the situation or from the violence used or from any combination of the two. This category, which we would describe as major sexual assault, includes not only what we suspect will continue to be called rape, but obviously also many cases of attempted rape, fellatio, cunnilingus, and buggery where the foreseeable major harm which we later describe more fully is present.

[14] The paramount sentencing factors for a major sexual assault must be deterrence and what has been called denunciation. In R. v. Wood (1976) 1975 ALTASCAD 33, 2 W.W.R. 135 at p. 143 McDermid. J.A. adopts these words from a Law Reform Commission paper to explain the denunciatory effect of sentencing:

“Assuming that one of the purposes of the criminal law is the protection of certain core values in society, is it not an important function of sentencing and dispositions to assist in making clear what those values are? The educative effect of the sentencing process cannot be lost sight of. Through the sentence the courts may influence the behavior of others by confirming for them that their law abiding conduct is approved and that it is still worthwhile to resist temptation.”

Conclusion

[71] As stated in Friesen, summaries of the minimum and maximum sentences imposed in the past serve as guides for the application of all relevant principles and objectives. Sentencing ranges and starting points are guidelines, not hard and fast rules.

[72] I note neither the sexual or indecent assaults here involved gratuitous violence, although both were inherently violent. Both victims described the forceful nature of these assaults.

[73] An aggravating factor is moral blameworthiness because of the offender’s relationship with his victims. The Court must prioritize denunciation and deterrence as well as separation of the offender from society because of these offences. See R. v. Boucher, 2004 17719 (ON CA), [2004] O.J. No. 2689 (Ont. C.A.) where at para. 27, the Court of Appeal indicated that sentences “must be such that they will foster an environment in which individuals can feel free to leave romantic relationships without fear of harassment or harm, and without fear of violence aimed at forcing a return to a no longer wanted relationship.”

[74] I note the binding nature of both Smith and Bradley on this Court. I need not delve into distinctions made there. Suffice to say, I do not see the need for a distinction in ranges.

[75] I must determine a fit sentence in this case. The Crown is asking for 2 years for each of the sexual and indecent assault. It is within the ranges of both Smith and Bradley.

[76] In my view, pursuant to the provisions of the Code i.e. intimate partner/trust relationship are statutorily aggravating factors as set out in ss. 718.2(1)(ii) -(iii) of the Criminal Code.

[77] The Crown concedes two collateral consequences of this sentence. She has suggested a lower sentence due to his advanced age and numerous health ailments.

[78] Also in accordance with R. v. Morgan, 2020 ONCA 279, the Court should consider the impact of Covid-19 on sentencing. However, it is noted that it does not mean that it should lower the sentence to a point that it is far removed from the range.

[79] The Court said this:

[8]…..We do, however, believe that it falls within the accepted bounds of judicial notice for us to take into account the fact of the COVID-19 pandemic, its impact on Canadians generally, and the current state of medical knowledge of the virus, including its mode of transmission and recommended methods to avoid its transmission.

[9] In our view, the appellant’s submissions fall into the category of collateral consequences for sentencing purposes. As Moldaver J. noted in R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 48:

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.

[10] However, Moldaver J. went on to make a further observation in Suter that has direct application to the case here. He said, at para. 56:

I agree with the Court of Appeal that the fundamental principle of proportionality must prevail in every case - collateral consequences cannot be used to reduce a sentence to a point where the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender.

[80] It follows that where a sentence is varied to avoid collateral consequences, the further the varied sentence is from the range of otherwise appropriate sentences, the less likely it is that it will remain proportionate to the gravity of the offence and the responsibility of the offender.

[81] The seriousness of these crimes, including the pointing of a firearm and common assaults on intimate partners who have been greatly impacted by these crimes against their integrity and spirit must be recognized.

[82] I also take into consideration the fact that W.K. has no prior criminal record and that other than these offences he has been a contributing member of the community.

[83] In my view given the above factors and considerations, the appropriate global sentence for these offences is 43 months, i.e. 3 years 7 months. But for W.K.’s advanced age, health issues and the pandemic, the sentence would have been higher.

[84] Therefore, the following sentences are imposed:

• For the indecent assault on A.D. 20 months;

• For the pointing of the firearm 2 months consecutive;

• For the assault of A.D. 30 days concurrent;

• For the sexual assault on J.K. 20 months, consecutive; and

• For the assault on J.K. 30 days consecutive.

[85] Please stand up. In conclusion, the Court imposes the following sentence:

i. You will serve a global term of incarceration of 3 years 7 months, i.e. 43 months minus credit for pre-sentence custody of 71 days;

ii. You shall provide a DNA sample pursuant to s. 487.051 (2) of the Criminal Code;

iii. There will be a firearms prohibition pursuant to s. 109 of the Criminal Code for 10 years; and

iv. Pursuant to ss. 490.012(1) and 490.013(2)(b) of the Criminal Code, I make an order that W.K.’s name be added to the Sex Offender Registry and that he complies with the Sex Offender Information Registration Act for life. My reason for making this order is that he has been convicted of sexual assault, which is a designated offence under s. 490.011(1)(a)(xvi), and in my view this order would not have a disproportionate impact on his privacy or liberty interests.

v. You shall not contact or communicate in any way directly or indirectly with the A.D. and J.K while you are in custody pursuant to s. 743.21 of the Criminal Code.

Justice A. Doyle

Date: May 25, 2021

COURT FILE NO.: CR-18-1466

DATE: 2021/05/25

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Her Majesty the Queen

AND

W.K.

BEFORE: Justice A. Doyle

COUNSEL: Caitlin Downing, Counsel for the Crown

Adrian Cleaver, Counsel for the Accused

sentencing decision

Justice A. Doyle

Released: May 25, 2021

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