Court File and Parties

COURT FILE NO.: 19-18033 DATE: 2022/03/16

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – R. I. Accused

COUNSEL: D’Arcy Wilson, for the Crown Marc-André Lavigne, for the Accused

HEARD: January 25 and February 4 and 16, 2022 by videoconference

Restriction on Publication

Subject to any further order by a court of competent jurisdiction, an order has been made in this proceeding under section 486.4 of the Criminal Code of Canada directing that the identity of the complainants or witnesses and any information that could disclose such identity shall not be published in any document or broadcast or transmitted in any way. This decision does not refer to the complainants or witnesses by name and may be published.

Reasons for Sentence

Roger J.

[1] Following an eight-day trial, the accused was found guilty of sexual offenses against a young complainant under ss. 151, 152, and 271 of the Criminal Code, R.S.C., 1985, c. C-46.

[2] During sentencing submissions, the Crown and the accused agreed that only the count under s. 271 should be stayed, asking that the sentence run concurrent on the count relating to s. 151 and s. 152. After hearing the sentencing submissions, I asked for written submissions on this point to determine whether, under the Kienapple principle, a conviction should only be entered for s. 151, with a stay of both ss. 152 and 271. I received joint submissions confirming that only s. 271 should be stayed.

Circumstances of the Offences

[3] The trial involved two complainants, sisters, who are now about 15 and 13 years old, and who were the stepdaughters of the accused. The accused was found not guilty of the offences relating to the eldest complainant, and guilty of the offences relating to the youngest complainant, B.

[4] More particularly, I found that in 2018 the offender sexually assaulted B over a period of approximately ten months. B was about ten years old at the time. I found that the sexual abuse included the following: the offender once placed B’s hand on his penis and genitals while the two were in the living room; the offender touched B’s breasts and vagina at least once while the two were seated in the living room, both over and under B’s clothing; and the offender rubbed his penis on B’s buttock and vagina, at least on two occasions, both over and under B’s clothing.

Circumstances of the Offender

[5] The offender is 34 years old. He is originally from Cuba. He risks deportation from the conviction entered in this matter. Growing up, he was exposed to domestic violence and abuse. He arrived in Canada at the age of 12, was placed in a group home, and moved from group home to group home during his youth. He started abusing alcohol when he was about 15 years old. He ran a renovation business despite alcohol abuse persisting in the background.

[6] The offender has a criminal record for assault, resist arrest, and criminal harassment in 2008; breach of undertaking, criminal harassment, and assault in 2011; and fail to comply with probation in 2011.

[7] The offender has been in custody since November 29, 2019. It is not disputed by the Crown that he is entitled to a credit for this on a 1.5:1 basis. The accused also seeks a Duncan credit, as considered in R. v. Duncan, 2016 ONCA 754, for the more difficult conditions occasioned by the Covid-19 pandemic, which the Crown opposes. The offender argued that he was in and out of lockdowns, that he contracted Covid twice, and that he experienced recurrent difficulties meeting with his lawyer. For example, the institution where he is jailed was in full lockdown during sentencing submissions, which required an adjournment because of the limited jail availability to participate in that virtual hearing.

Impact on Victim

[8] B, her sister, brother, and mother read or had read a victim impact statement. It is apparent from their respective statement that their family has been deeply hurt, both emotionally and financially. B’s mother has difficulty sleeping, has developed trust issues, and works constantly to make ends meet. She is worried and fearful of any future contact with the accused, who is the father of her son. As for B, she feels anxious and fears that she has lost her childhood. She is distraught by the events and has difficulty expressing her feelings and her love.

Positions of the Parties

[9] The Crown submits that a total sentence of five years minus the appropriate credit for pre-sentence custody should be imposed. After some back and forth on the latter topic, the parties agree on the calculation of the offender’s pre-sentence period of incarceration.

[10] The offender has been detained since November 29, 2019, for a total of 839 days. He was as well detained earlier in relation to this for eight days, bringing the total available pre-sentence time to 847 days. During this time, he was sentenced for breaches totalling 158 days, such that his period of pre-sentence detention to date totals 689 days. On a 1.5:1 basis, the accused’s potential credit for pre-sentence custody to date totals 1,034 days.

[11] The Crown seeks a probation order of three years if the offender is sentenced to imprisonment not exceeding two years. It seeks a DNA order and an order complying with the Sex Offender Information Registration Act, S.C. 2004, c. 10 (“SOIRA”), as sexual interference is a designated offence. The Crown also seeks a lifetime weapons prohibition, and an order of prohibition under s. 161 of the Criminal Code (excepting (d), which prohibits using the internet, and excepting communications with his son). If probation is not ordered, the Crown seeks an order prohibiting the offender from communicating with the two complainants.

[12] The offender argues that he should be sentenced to time served because of the particularly harsh conditions experienced during his pretrial detention. Otherwise, the offender did not dispute the ancillary orders sought by the Crown.

Applicable Law

Charges to be Stayed

[13] Where an offender is convicted of a combination of ss. 151, 152, and 271 offences under the Criminal Code, s. 151 usually best captures the crime.

[14] In R. v. Wayner, 2021 ONSC 588, at para. 90, Howard J. explained that while the accused had been convicted of charges under ss. 151, 152, and 271, “the offence of sexual interference, contrary to s. 151, best captures the nature of the delict in this case.” Justice Howard cited LeMay J. in R. v. F.L., 2016 ONSC 1215, who wrote at para. 23 that “the sexual interference charge is a more precise and complete explanation of the crime that was committed in this case. It includes a recognition that the crime was committed against a victim who was a child. This is, in my view, a key element of this case.” Similarly, in R. v. L.L., 2019 ONSC 6345, at para. 12, Leroy J. stayed convictions under ss. 152, 153, and 264.1(1)(a), proceeding only with convictions under s. 151.

[15] However, in this case, I found the incidents occurring at least on four separate occasions, and found that on one such occasion, the offender placed B’s hand on his penis and genitals while the two were in the living room. The Kienapple principle explains that the relevant inquiry so far as res judicata is concerned is whether the same cause or matter (rather than the same offence) is comprehended by two or more offences. In this case, the other three incidents all involved physical interference as per s. 151, but the one separate incident outlined above also involved the added element of invitation to touch the offender’s body as per s. 152.

[16] Consequently, I agree with the joint submissions that only the charge on count eight (s. 271) is to be stayed.

[17] I also agree with the joint submissions of counsel that imposing a concurrent sentence for the charges on count four (s. 151) and count six (s. 152) is appropriate in the circumstances of this case as “the acts constituting the offences were part of a linked series of acts within a single endeavour”: Wayner, at para. 92, citing R. v. W. (G.P.) (1998), 106 B.C.A.C. 239, at para. 35.

Sentencing Principles

[18] The fundamental purpose of sentencing is to protect society and to contribute to the 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: to denounce unlawful conduct, to deter offenders, to separate offenders from society where necessary, to provide reparations, and to promote a sense of responsibility in offenders: see Criminal Code, s. 718.

[19] When imposing a sentence for an offence that involves the abuse of a child, the court must give primary consideration to the objectives of denunciation and deterrence of such conduct: see Criminal Code, s. 718.02. A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: see Criminal Code, s. 718.1.

[20] Under s. 718.2 of the Criminal Code, the court must also consider the following:

a) A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances;

b) A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

c) An offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances; and

d) All available sanctions, other than imprisonment, that are reasonable in the circumstances should be considered for all offenders.

[21] Relevant to the circumstances of this case, s. 718.2(a) also provides that the following are deemed to be aggravating circumstances:

• evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family;
• evidence that the offender, in committing the offence, abused a person under the age of eighteen years;
• evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim; and
• evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation.

[22] Caselaw provides guidance on how the above general sentencing objectives were applied in similar offences and circumstances to those before me.

[23] The sentences in Wayner; R. v. C.F., 2020 ONSC 5975; R. v. Shilling, 2021 ONCA 916; and R. v. F.M., 2020 BCSC 1884, establish an upper range of about six years for sexual interference involving oral sex or digital penetration or where the offending occurred over an extended period. The decisions in R. v. B.R., 2018 ONSC 586, and R. v. C.G.D., 2021 BCSC 2400, establish a lower range of about three-and-one-half years for other sexual interferences. The decisions in C.G.D. and Shilling bear some similarity to facts of this case, with sentences in those cases of 3.5 and 4.5 years, respectively.

[24] There is no mandatory minimum sentence. In R. v. B.J.T., 2019 ONCA 694, 378 C.C.C. (3d) 238, at para. 79, the Ontario Court of Appeal affirmed that the mandatory minimum sentence under s. 151 was unconstitutional.

[25] The decision of the Supreme Court in R. v. Friesen, 2020 SCC 9, 391 C.C.C. (3d) 309, provides guidance on sentencing for sexual offences involving children. It is cited in essentially all recent sentencing decisions involving child sexual offences, with some courts suggesting that “[a]uthorities that predate Friesen may well be inappropriate or of limited precedential value”: R. v. E.F., 2021 ABQB 639, at para. 85, citing R. v. Alfred, 2021 BCCA 71, at para. 33.

[26] The decisions in C.F. and Wayner apply the Friesen guidance to similar offenders, albeit in circumstances that involved penetration or abuse over a longer duration. However, the Supreme Court in Friesen, at para. 146, explains that courts must be careful when comparing “degrees” of sexual offences against children: “[I]t is an error to understand the degree of physical interference factor in terms of a type of hierarchy of physical acts. . . [or] to assume that an assault that involves touching is inherently less physically intrusive than an assault that involves fellatio, cunnilingus, or penetration.”

[27] In Friesen, the accused pleaded guilty to sexual interference (s. 151) involving a four-year-old child, and to attempted extortion of the child's mother. The Supreme Court allowed the Crown’s appeal and restored the six-year sentence for sexual interference imposed by the sentencing judge (with the extortion sentence served concurrently).

[28] Mr. Friesen and the victim’s mother were engaged in consensual sexual intercourse when Mr. Friesen told the mother to bring her daughter into the bedroom where they would then sexually assault her. The mother brought the child to the bedroom, removed her diaper, and laid her naked on the bed. The child was in distress and screaming while Mr. Friesen repeatedly directed the mother to force the child's head down so that he could force his penis into her mouth. The child’s screaming woke the babysitter who witnessed the sexual violence and removed the child. The accused demanded that the mother retrieve the child, stating he intended to “rape” the child while ‘she’s crying’”: Friesen, at para. 11.

[29] Mr. Friesen’s only prior conviction was for marijuana possession. He had a childhood “characterized by neglect and by physical and sexual violence”, being homeless and selling sex to survive. The pre-sentence report assessed Friesen as a high risk to re-offend, and that he had little insight into his behaviour: see Friesen, at para. 14.

[30] The Supreme Court instructs that “courts must recognize and give effect to (1) the inherent wrongfulness of these offences; (2) the potential harm to children that flows from these offences; and (3) the actual harm that children suffer as a result of these offences,” and states that “mid-single digit penitentiary terms for sexual offences against children are normal”: Friesen, at paras. 76, 114.

[31] The court also provides a non-exhaustive list of significant factors to determine a fit sentence for sexual offences against children: (a) likelihood to reoffend (paras. 122-124); (b) abuse of a position of trust or authority (paras. 125-130); (c) duration and frequency (paras. 131-133); age of victim (paras. 134-136); degree of physical interference (paras. 137-147); and (f) victim participation (paras. 148-154).

[32] In R. v. C.F., 2020 ONSC 5975, the accused was found guilty of charges under ss. 151, 152, and 271 of the Criminal Code, relating to offences involving his stepdaughter between 1999 and 2006, when she was between the ages of four and twelve. The accused began the abuse by touching the victim’s vagina with his hands and mouth. It advanced to the accused telling the complainant that it was “his turn” and had her perform oral sex on him. Sometimes, the incidents would end with the accused ejaculating: see C.F., at para. 6. This happened with some degree of regularity: see C.F., at para. 47. Justice Leibovich stayed the s. 271 convictions and imposed five-year concurrent sentences on the ss. 151 and 152 convictions.

[33] The Crown, relying on Friesen, sought a seven-year sentence. The defence sought a conditional sentence. Additionally, the parties consented to a DNA order, a s. 109 weapons prohibition for ten years, a SOIRA order for 20 years, and a non-communication order with the complainant. The Crown sought a s. 161 order, but the court declined to make the order as there was no evidence the accused was a current risk to children. In C.F., the accused C.F. had no criminal record, but also denied committing the offences and did not accept responsibility. The accused was diagnosed with bipolar disorder, experiencing manic episodes after being charged and attempting suicide. The complainant filed a victim impact statement and read it out in court, and the court found that she had been severely affected by those offences: see C.F., at para. 19. The court found that C.F.’s moral blameworthiness was very high, “as it would be patently obvious to him at the time the wrong, he was doing and the harm he was causing.” The young age of the complainant enhanced C.F.'s moral responsibility and increased the harm caused to the complainant: see C.F., at para. 53, citing Friesen, at paras. 134-135.

[34] In Wayner, 2021 ONSC 588, the accused was convicted of seven charges (under ss. 151, 152, and 271) on a nine-count indictment relating to offences involving the daughter of the woman he was dating. The complainant was nine years old at the time, but she “functioned at a lower age level” than her age: at para. 12. The accused put his penis in the mouth of the victim on one occasion, he touched the vagina of the victim on at least one occasion, and he touched the buttocks of the victim on at least one occasion: Wayner, at para. 21.

[35] The Crown relied on Friesen and suggested that that the appropriate starting point was a sentence of five years, but that in recognition of Mr. Wayner's personal circumstances and limitations, the sentence should be reduced to four years. Justice Howard agreed with the Crown’s position and imposed a four-year sentence for each of the three s. 151 convictions, to be served concurrently, plus a number of ancillary orders including DNA, weapons prohibition, SOIRA, and s. 161 orders. While the accused was in a relationship with the child’s mother at the time of the offence, he did not stand in a position of trust or authority towards the complainant, as he did not live with her mother, but rather was in a dating relationship and only visited at the home: see Wayner, at para. 22. The accused had no criminal record. Victim impact statements were submitted by the victim and her mother. He maintained his innocence and offered no insight into the offences charged. The pre-sentence report indicated that Mr. Wayner had a very difficult and traumatic upbringing involving physical and sexual violence inflicted upon him by his own mother. He was placed with a foster family and continued to have their support at the time of sentencing. The accused had significant diagnosed mental health problems. Aggravating factors included that his abuse was of a young person, the “profound” age difference, the victim’s special needs, and the fact that there were repeated incidents: see Wayner, at paras. 71, 72, 74, 75.

[36] In R. v. B.R., 2018 ONSC 586, the accused father was convicted of two counts of both ss. 151 and 271, involving more than one incident of touching his four-year-old daughter’s vagina with his fingers and with a vibrator: see B.R., at para. 8. The victim testified at trial that she witnessed the accused masturbate to completion after these events. The mother filed a victim impact statement. The accused had no criminal record. The accused was sentenced to three years incarceration for each count of sexual assault, to be served concurrently: see B.R., at para. 56. Although this decision is pre-dates Friesen, Sheard J. addressed many of the same points and cases emphasized by the Supreme Court in that decision.

[37] In R. v. C.G.D., 2021 BCSC 2400, the accused was convicted of one count under both ss. 151 and 271, flowing from three separate incidents involving his stepdaughter, in which he squeezed her breasts and touched her thigh and her hair in a sexualised manner. The complainant was between age 12 and 14 when the incidents occurred. The sexual assault charge was stayed, and the accused was sentenced to three-and-one-half years for sexual interference, plus DNA, SOIRA, and s. 161 orders: see C.G.D., at paras. 45-47. The accused had a prior criminal record, including convictions for sexual offences involving another stepdaughter years prior, and multiple theft-under convictions: see C.G.D., at paras. 6, 11.

[38] In R. v. Shilling, 2021 ONCA 916, the accused was convicted of two counts of sexual interference relating to two discrete events involving his intimate partner’s child. The details of these incidents were not included in the Court of Appeal decision, and neither the trial nor sentencing decisions are reported. “The first incident happened under the blankets on a bed in the appellant's bedroom while her siblings were sitting on the floor watching a movie in the same room. The second occurred on the couch while her mother was at work and her siblings were at the park.”: Shilling, at para. 5. The Court of Appeal affirmed the sentence of four-and-one-half-years incarceration. The court considered that the accused had a previous conviction for sexual assault, that the accused was in position of parental authority, and the young age of victim. The Court of Appeal, citing Friesen, affirmed that sentence was not manifestly unfit and that “Mid-single digit penitentiary terms for sexual offences against children are normal”: at para. 27.

[39] In R. v. F.M., 2020 BCSC 1884, the accused was convicted of two counts under s. 151 for various instances of sexual interferences on his two stepdaughters, occurring when they were between ages of 11-13 (T.E.) and 4-5 (I.M). The accused would enter T.E.’s bedroom and touch her buttocks, breasts, penetrate her vagina with his fingers, force her to stimulate his penis with her hand, and this “occurred on numerous other occasions over the course of the next many months; roughly for about a year and a half.”: at paras. 10-11. The accused would also put his hands down the pants of I.M., outside of her underwear, and “squeeze [her] butt”; this occurred one or twice a week: at para. 13. The accused had a dated prior drunk-driving conviction, and ongoing substance abuse issues. He denied that the offences occurred. He was diagnosed with a moderate risk of sexual reoffending. T.M. provided a victim impact statement which detailed significant and possibly lifelong trauma from the assaults. Justice Verhoeven would have imposed a five-year sentence on count one (s. 151, T.M.) and a three-year consecutive sentence on count two (s. 151, I.M.), but found that the resulting eight-year sentence would offend the totality principle, thus each sentence was reduced by one year to achieve a six-year total sentence: see F.M., at paras. 73-77.

[40] The decision in Wayner, at paras. 111-118, contains a synopsis of ancillary orders on a s. 151 conviction. As sexual interference is a primary designated offence under s. 487.04 of the Code for the purposes of DNA collection and storage, the making of such a DNA order is mandatory. Sexual interference is a designated offence under s. 490.01(1)(a) of the Code for the purposes of the provisions dealing with sex offender information. Some decisions have ordered a s. 109 weapons prohibition, while others have remained silent on the issue: see e.g. Wayner, at para. 113; E.F., at para. 20; and F.M. (no prohibition ordered). Additional orders may be made under s. 161 but are not mandatory.

Credit for Pre-Sentence Detention

[41] The Summers credit is a deduction from what the trial judge determines to be the appropriate or fit sentence for the offence, and it is deducted to reflect the amount of the sentence the accused has effectively served by virtue of the pretrial incarceration: see R. v. Summers, 2014 SCC 26, [2014] S.C.R. 575. The Summers credit factors in the usual level of “difficult and restrictive” circumstances present when serving pre-trial detention, and it is statutorily capped at 1.5:1: see R. v. Marshall, 2021 ONCA 344, at paras. 50-51.

[42] A Duncan credit is not a deduction from the otherwise appropriate sentence, but rather it is one of the factors to be considered in determining the appropriate sentence. The Duncan credit addresses exceptionally punitive conditions that go beyond the normal difficulties and restrictions associated with typical pretrial custody: see Marshall, at paras. 50-52. The court in Marshall explains at para. 52 that the Duncan credit is a recognition that particularly punitive pre-trial incarceration conditions can be a mitigating factor, to be considered alongside the other mitigating and aggravating factors, in arriving at the appropriate sentence from which the “Summers” credit will then be deducted. A fit sentence must not be reduced to the point of being unfit by operation of a Duncan credit: see Marshall, at paras. 50-52.

[43] The conditions of Covid-19 in jails are a recognized reason to consider the Duncan credit as a mitigating circumstance. That Covid-19 causes some degree of hardship on those serving pre-trial detention is self-evident, and evidence need not necessarily be led; however, where an accused does lead evidence of specific hardship, the Duncan credit can be a greater consideration: see R. v. Bristol, 2021 ONCA 599, at para. 11; R. v. Warsame, 2022 ONSC 424, at para. 59.

[44] The decision in Marshall emphasizes that it is “important to appreciate and maintain the clear distinction between the ‘Summers’ credit and the ‘Duncan’ credit”: at para. 51. 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. The court warns against judicial “double counting” and found that that the trial judge had double counted by giving Mr. Marshall credit for various mitigating factors when determining the appropriate sentence, and then considering those same factors again when giving him a substantial Duncan credit that was subtracted from the previously determined appropriate sentence: at paras. 45-46.

[45] The court in Marshall noted that it is best if counsel can reach an agreement on the Duncan credit. Where counsel agree, the trial judge should depart from that agreement only after careful consideration and after giving counsel the opportunity to address any concerns the trial judge may have: see paras. 42-43. Additionally, the Court of Appeal explains that providing a specific number of days or months to be given as Duncan credit is not necessary, and warns that doing so “may skew the calculation of the ultimate sentence.”: at para. 53.

[46] The Court of Appeal indicated at para. 50 that the restrictive conditions in jails and the health risks caused by Covid warranted a Duncan credit, and cited the decision in R. v. Morgan, 2020 ONCA 279, which suggested that it is “within the accepted bounds of judicial notice for [courts] to take into account the fact of the COVID-19 pandemic”: Morgan, at para. 8.

[47] The decision in Marshall has since been cited in other Court of Appeal decisions which all provide further guidance as to the impact of Covid on the Duncan credit: see Bristol; R. v. Lewis, 2021 ONCA 597; and R. v. Green, 2021 ONCA 932.

[48] In R. v. Ashton, 2021 ONSC 3994, Leibovich J. reviewed a series of cases that grappled with how to properly consider the Covid pandemic when considering the Duncan credit. Noting the disparity of the credit in different cases, Leibovich J. explained that this disparity reflected the personalized nature of sentencing and that different individuals would be impacted more severely by Covid than others. Ultimately, “it depends on the nature of the evidence led at the hearing.”: Ashton, at para. 64. In that case, the court noted that it did not have much evidence before it, as “[the accused’s] evidence describes the conditions but not the affect on him.” Ultimately, Leibovich J. awarded one extra day of credit for each day of lockdown, as well as 60 additional days reflecting that the jail was not allowing visitors: at paras. 68, 72.

[49] In R. v. Warsame, 2022 ONSC 424, Molloy J. built upon the review in Ashton, but also discussed the decision in Marshall. The accused, Mr. Warsame, had provided the court with an affidavit explaining the impact of Covid on him during pre-trial custody. Justice Molloy explains, “The case law repeatedly refers to there being no mathematical formula” as to how to calculate the Duncan credit: at p. 19. Justice Molloy also noted that while the court in Marshall explained the Duncan credit was a mitigating factor and not a credit per se, the Marshall decision “recognized that it is acceptable to do the calculation as a numerical deduction”, and found that was the “preferable approach” because it provided a useful guide for other judges promoting consistency in sentencing, it sent a direct message of judicial disapproval with respect to unacceptable conditions in the correctional institutions, and it provided transparency for the purposes of appellate review: at p. 23-24.

[50] In Warsame, the court found that of the cases reviewed by the court, “no offender has had the same level of problems associated with Covid as has Mr. Warsame.”: at p. 22. With this in mind, Molloy J. noted that the accused could have “easily” received an additional 1:1 credit for each day spent in lockdown, and “some additional credit” for the conditions during Covid otherwise, noting that the period of 1:1 credit for lockdowns would be “in line with many of the authorities”: at p. 25. However, considering the accused’s affidavit that detailed his ongoing struggle with long-term effects of Covid, as well as some familial hardships, Molloy J. awarded further credit, for a total of 300 days of Duncan credit, “primarily due to what he's already been through but also to a lesser extent because of the perspective impact of serving further time under Covid”: at p. 26. Justice Molloy explained the calculation as follows: “I have determined that four and a half years is a fit sentence. That is the equivalent of 1,642.5 days. After deducting 300 days for the Duncan factor, that leaves 1,342.5 days or approximately 3.7 years, which in my view remains a fit sentence.”: at p. 26.

[51] While some recent decisions are following the approach taken by Molloy J. and providing clear calculations as to how they reached their Duncan credit values, other judges have simply stated that they are taking the Duncan credit into account as a mitigating factor and foregoing a precise calculation. In R. v. Lira, 2021 ONSC 8294, Spies J. explained, “I conclude from Marshall that I should consider any Duncan credit as a mitigating factor in determining sentence, and that calculation of a specific number of months is discouraged. For this reason, I do not intend to specify an exact number of days of credit for the conditions at the TSDC.”: at para. 131.

Analysis and Conclusion

[52] There is no question that the circumstances of this case constitute an unspeakable crime. The offender abused his ten-year-old stepdaughter on more than four occasions over a period of approximately ten months. This abuse of his position of trust over B is egregious. Some of the abuse was just short of involving anal or vaginal intercourse, and it likely stopped only because it was reported. It was obvious during the trial that these acts had a significant impact on B. And, most unfortunately, these acts continue to have a significant impact on B and her family. The inherent wrongfulness of these circumstances cries out for denunciation and deterrence as the accused had to know that what he was doing to B was profoundly wrong. The accused’s difficult upbringing is a mitigating factor, but the risk of deportation faced by the offender is in this case irrelevant as the sentence will in any event exceed six months.

[53] When I consider the circumstances of this case, I find that the range of incarceration suggested by the offender, even allowing for an appropriate Duncan credit, is simply too low. A range of four to five years is more reasonable. However, there is no question that the Covid pandemic impacted the offender.

[54] The offender provided no evidence about the impact of the Covid pandemic. I don’t know how often or for how long his jail was locked down and I don’t know how these lockdowns or his catching Covid impacted him. Nonetheless, I can appreciate that it made his period of pretrial detention even more difficult, and that he is entitled to a corresponding Duncan credit.

[55] Considering all of this and the principles of sentencing outlined above, I find that a just, fit, and proportionate sentence for the offender is a term of imprisonment of four years for each of counts 4 and 6, to be served concurrently, minus the applicable credit for his period of pre-sentence detention.

[56] As outlined above, the offender is entitled to a credit for 1,034 days of pre-sentence custody (after applying a 1.5:1 factor to the 689 days that he has spent to date, net of his two sentences for breaches).

[57] Consequently, on each of count 4 (s. 151) and count 6 (s. 152), the offender is therefore sentenced to 426 days of jail (which is the difference between the imposed sentence of four years or 1,460 days and his period of detention to date of 1,034 days), to be served concurrently, plus probation for three years.

[58] The charge on count 8 is stayed under the Kienapple principle.

[59] As provided by s. 743.21(1) of the Criminal Code, during his period of incarceration the offender is prohibited from communicating directly or indirectly with either complainant A or complainant B, except that the offender is not prohibited from communicating with his son under the supervision of his son’s mother provided she agrees to such communications as otherwise he will require an order from the family court.

[60] During the period of probation, the offender shall do the following: report to a probation officer as directed within two days of his release, and thereafter be under their supervision; keep the peace and be of good behaviour; appear before the court when required; notify his probation officer of any change of name or address; attend counselling or treatment as recommended by his probation officer and sign required waivers or permissions; and abstain from communicating in any way with complainant A or complainant B, except that the offender is not prohibited from communicating with his son under the supervision of his son’s mother provided she agrees to such communications as otherwise he will require an order from the family court.

[61] Pursuant to ss. 490.012(1) and 490.013(2.1) of the Criminal Code, the offender’s name shall be added to the Sex Offender Registry and the offender shall comply with the SOIRA for life as he was convicted of more than one designated offences.

[62] Pursuant to ss. 487.051(1) and 487.051(4) of the Criminal Code, an order is made in Form 5.03 for the collection of DNA from the offender for the purpose of forensic analysis, and under Form 5.041 the offender is required to give such samples.

[63] An order is made under s. 161(1)(a.1) of the Criminal Code that the offender not be within 500 metres of any dwelling-house where complainant A or complainant B ordinarily resides or within 500 metres of any other place where complainant A or complainant B is known to the offender to be. It flows from this that any visit with his son may not be in proximity to either complainant A or B.

[64] An order is made under s. 161(1)(b) of the Criminal Code that the offender shall not seek, obtain, or continue any employment, whether or not remunerated, or become or be a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years.

[65] The above prohibitions made under s. 161(1) of the Criminal Code are effective for a period of ten years from the date that the offender is released from imprisonment as provided at s. 161(2)(b).

[66] However, no other order is made under the remaining provisions of s. 161 of the Criminal Code because there is no evidentiary basis to conclude that any of the specific terms of such orders could constitute a reasonable attempt to minimize the risk that the offender may pose to children.

[67] Sexual interference or sexual assault against a child is inherently violent such that I make an order for weapons prohibition provided by s. 109 of the Criminal Code (otherwise, s. 110 would be applicable). Pursuant to s. 109 of the Criminal Code, considering his previous conviction for harassment involving an intimate partner, the offender is therefore prohibited from possessing any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition, and explosive substance for life, and the offender is prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition also for life.

[68] In closing, I wish to thank both complainants A and B for their courage and for how they comported themselves during this trial. All the best to both of you.

Released: March 16, 2022 Mr. Justice P. E. Roger