Court File and Parties

COURT FILE NO.: 19-4452 DATE: 2022/04/21

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – PAUL DAVID BATCHELOR Offender

Counsel: Malcolm Savage, for the Crown Oliver Abergel, for the Offender

HEARD: March 17, 2022

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that the identity of the complainants or witnesses and any information that could disclose such identity shall not be published in any document or broadcast or transmitted in any way.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 names and may be published.

Reasons for Sentence

Roger J.

[1] The offender was charged with sexual offenses involving five female complainants, relating to events dating back to 2010 to 2015.

[2] Following a 24-day trial, the offender was found guilty of sexual assault on two of the five complainants, the victims Ms. B and Ms. R, contrary to s. 271(1) of the Criminal Code, R.S.C., 1985, c. C-46, and not guilty on the other counts.

Circumstances of the Offences

Ms. B

[3] The offender met Ms. B on a dating website when Ms. B was 18 years old. They communicated online and by text but did not meet at that time. Over a year later, probably during the summer of 2010, Ms. B reconnected with the offender, and they made plans to meet at the offender’s apartment.

[4] Ms. B remembered that shortly after arriving at the offender’s apartment they were consensually kissing. Shortly after, their clothing was off, which was also consensual. However, as the accused was about to penetrate her vagina with his penis, Ms. B changed her mind and no longer wanted to continue. She put her hand on the accused’s hip trying to stop him and said something like “no wait, I don’t want to”. The offender did not respond and nonetheless penetrated her vagina with his penis. Very shortly after penetrating her, the offender turned her around and continued raping her vaginally from behind. Ms. B cried silently, and when he was done the offender ejaculated on her back.

[5] Ms. B was in a state of disbelief and shortly after left the offender’s apartment.

Ms. R

[6] Ms. R also met the accused online. They exchanged text messages for a few weeks and agreed to meet at a bar for a drink around August or September of 2014. At the bar, they chatted for some time and went for a walk. The offender lived nearby, and he suggested they go up to his apartment. Ms. R agreed.

[7] They sat on a couch and, very quickly, the offender made physical advances. Kissing was consensual, however, the offender started to lift her shirt and Ms. R said “no”. The offender persisted and Ms. R communicated that she did not want to go further. The offender was reaching under her shirt, exposing, and touching her torso. She could not recall precisely what she said but she repeated that she was not interested. He persisted. To revert to conversation, she went to the washroom. When she came out, the offender continued attempting to lift her shirt, and then tried to remove her pants, fumbling with her button. She was scared. The offender told her, “What did you think would happen? We met on Tinder”, and she got her purse and left.

[8] It happened very quickly; Ms. R was in the offender’s apartment for approximately five to ten minutes. The offender texted her a few days later to say that he would like to see her again if it was for sex. She had no interest in doing so and did not talk to him again.

Circumstances of the Offender

[9] The offender is 36 years old. He is educated, having obtained a college diploma and a university degree, and has a work history.

[10] He had no criminal record at the time of these offences, such that he is a first-time offender. He has recently pleaded guilty to one count of impaired driving and one count of uttering threat.

[11] The offender has been detained for a lengthy period of pre-sentence custody, starting on November 19, 2019. He was initially detained for these charges and released on bail, but he was then detained again, and continues to be detained, on other sexual assault charges still pending before the court in Gatineau, Quebec.

[12] To assess whether this period of pre-sentence detention on Quebec charges could be considered in these proceedings, prior to the sentencing hearing, Crown counsel received and reviewed the audio of the reasons for detention in Gatineau. The Crown then conceded that the offender was detained in Gatineau at least in part as a result of these charges, such that his time in pre-sentence detention in Gatineau after being granted bail in Ottawa is available as a credit pursuant to s. 719(3) of the Criminal Code. A transcript of the reasons for detention in Gatineau was not available, but the Crown indicated that the Quebec Justice made repeated references to the charges before this court when assessing the secondary and tertiary grounds in detaining the offender and confirmed that the bail hearing was a reverse onus considering the Ottawa charges.

[13] Consequently, the parties agree that the offender has been detained in pre-sentence custody until today for a total of 885 days. The parties also agree that applying the maximum available credit under s. 719(3.1) of one and one-half days for each day spent in custody results in 1,328 days available as a credit for the offender’s pre-sentence custody.

[14] 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. The Crown opposes this credit but agrees that the impact of Covid should be considered.

[15] The offender testified about his detention conditions resulting from the Covid-19 pandemic. The detention centre, where he was in custody, underwent many lockdowns. In total, the offender lived in lockdown conditions for 83 days. These included no personal or lawyer’s visits, reduced services, and solitary confinement. Upon arriving at the Gatineau detention centre, he spent 14 days in solitary confinement. During this time, he was confined to his cell, had no access to showers, and only limited telephone access. After this period of isolation, he was moved to his regular cell, but overcrowding required that he sleep on a mattress on the floor of an overcrowded cell, near the toilet, for a period of about nine months. Overcrowding did not allow social distancing and he caught Covid twice, once in April 2021 and once in January 2022. The Delta variant was more serious, with its typical symptoms and difficulty breathing. The Omicron variant was not as severe, but the flu like symptoms lasted about five days and recovery required about two weeks. During the periods of lockdown, he was confined to his cell with only 15 minutes of yard time per day, and showers and telephone access was limited. Some visits were cancelled because of the pandemic, and 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 Victims

[16] The victims have been gravely impacted; each read a very moving victim impact statement.

[17] Ms. B explained that she still shudders when she hears the offender’s name. She experiences ongoing trust issues, struggled with drinking, struggled with suicidal ideation, and struggled to acknowledge that this happened to her.

[18] She sought medical help and was prescribed antidepressant medication. She eventually ran away from Ottawa to self isolate and struggled with drinking and social issues. She has recurrent issues with intimacy, and she struggles with boundaries.

[19] During the worst of her struggles, she was forced to quit her job because of stress, anxiety, and mental health issues arising from being a rape victim. She still regularly sees a psychologist.

[20] Ms. R explained that she felt an intense fear and completely powerless. She was shaken, and still feels that she was stripped of her humanity. While of the immediate fear for her safety was short-lived, the assault sowed the seed of self-doubt and hypervigilance that became deeply rooted and continue to grow and impact her life.

[21] She hesitated but decided to come forward and speak out in solidarity with others, who have experienced similar, or worse events. Her life has however been on hold since, and she experienced an emotional roller coaster.

[22] It affected her work, as well as her physical and emotional well-being. She struggled with sleep, anxiety, stress, and ongoing guilt. It also impacted her relationships as she fears being hurt, being vulnerable, and being abused.

Positions of the Parties

[23] The Crown seeks a sentence of incarceration of three years for the sexual assault on Ms. B, and a consecutive sentence of incarceration of one year for the sexual assault Ms. R, minus the appropriate credit for pre-sentence custody, also considering the added impact of the Covid-19 pandemic.

[24] The Crown also seeks a probation order of two years if that is available (if the offender is sentenced to imprisonment not exceeding two years), with conditions including no contact with any of the complainants and victims, and recommended counselling. 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. As well, the Crown seeks a weapons prohibition under s. 109 of the Criminal Code for ten years regarding any firearm, crossbow, explosive substance, or other restricted weapon, and for life regarding any prohibited or restricted firearm, or prohibited weapon, device, or ammunition.

[25] As indicated above, the Crown agrees that the offender has been detained in pre-sentence custody until today for a total of 885 days, and that the offender lived through Covid-related restrictions, and also experienced lockdown conditions for 83 days.

[26] During his submissions, Crown counsel noted that the absence of additional violence is not a mitigating factor, rather, additional violence is an aggravating factor if present. He suggested that the appropriate range for the assault Ms. B is two to three years, and possibly up to five years depending on the circumstances.

[27] The Crown submits that the offender’s attitude of treating women as sexual objects and his comportment towards consent, including ignoring women’s lack of consent, are relevant to sentencing, as this lack of insight is relevant to the offender’s risk of reoffending. The Crown also highlights the predatory nature of the offender’s behaviour and points out that his pro-social life is not relevant in such circumstances. As well, these assaults gravely impacted the victims, Ms. B and Ms. R, which is an aggravating factor.

[28] The offender did not address the court, but his lawyers repeatedly acknowledged during his submissions the significant harm that has been caused to the victims. He recognized the gravity of the assault on both Ms. B and Ms. R.

[29] Counsel for the offender agreed with the submissions of the Crown but stressed that there are nuances in the many cases that I was referred to which must be assessed. He recognized that all sexual assaults are serious but pointed out that some might be located at different ends of an applicable scale considering the findings made by the court. In the case of Ms. R, without diminishing the seriousness of the assault, he pointed out that it did not escalate and that the offender did not attempt to prevent Ms. R from leaving.

[30] He also pointed out that the offender did not have a criminal record at the time of these offences, that he led a relatively pro-social existence, that he is supported by both his parents, and that after his appropriate period of incarceration, the offender has the required potential to lead a productive life.

[31] He stressed that the offender has been incarcerated throughout our struggles with the ongoing Covid-19 pandemic, which he noted occasioned harsher conditions during pre-sentence incarceration. This included for the offender frequent periods of lockdown and isolation, reduced services, worse detention conditions, and catching Covid twice.

[32] Both counsels referred me to many cases. These generally reveal a range between two to three years in circumstances similar to Ms. B, and in some cases up to five years, and a range of about three to six months in circumstances similar to Ms. R.

[33] Counsel for the offender suggested that an appropriate sentence could vary between two to two and a half years for Ms. B, and 90 days for Ms. R, before considering the impact of the Covid-19 pandemic. Factoring the added impact of the Covid-19 pandemic, he suggested that a sentence for both offences in the range of two years would be appropriate.

Applicable Law

Sentencing Principles

[34] 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 assist in rehabilitation, to provide reparations, and to promote a sense of responsibility in offenders: see Criminal Code, s. 718.

[35] In cases including offences against a vulnerable person, the objectives of denunciation and deterrence are particularly important considerations: see Criminal Code, s. 718.04.

[36] It is a fundamental principle of sentencing that 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.

[37] Section 718.2 of the Criminal Code provides that 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) Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

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

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

[38] 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 was motivated by bias or prejudice based on sex;
• evidence that the offender, in committing the offence, abused the offender’s intimate partner; 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.

[39] As well, a court that imposes a sentence in respect of an offence that involved the abuse of an intimate partner shall consider the increased vulnerability of female persons who are victims, giving particular attention to the circumstances of Aboriginal female victims: see s. 718.201 of the Criminal Code.

[40] In R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 43, the Supreme Court states that “[I]mposing a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime.” Additionally, “[i]t has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime.”: R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 92.

[41] The cases provided by counsel, as well as the following cases, suggest that the sentencing range for the assault on Ms. B is from about two to three years, and possibly up to five years depending on the circumstances, and that for Ms. R it is in the range of about three to six months.

[42] In R. v. Garrett, 2014 ONCA 734, the Court of Appeal allowed the Crown appeal on sentence, setting aside the 90-day intermittent sentence and imposing 18 months’ incarceration for a sexual assault involving intercourse. However, the court noted that it was constrained by the sentence sought by the Crown at trial and warned that “The sentence imposed by this court should not be taken as a sentence within the appropriate or usual range.”: at para. 23.

[43] In R. v. Kaczmarek, 2021 ONCA 771, 407 C.C.C. (3d) 34, the Court of Appeal upheld a three-year sentence for a sexual assault involving a lack of capacity to consent, two assailants, and vaginal and oral penetration.

[44] In R. v. Redden-Cox, 2021 ONSC 162, Hackland J. sentenced the offender to two years’ imprisonment for a sexual assault involving vaginal penetration and additional aggravating factors.

[45] In R. v. Blake, 2020 ONSC 5658, the court sentenced the offender to six years’ imprisonment for a sexual assault that included vaginal penetration and additional gratuitous violence and threats of physical injury.

[46] In R. v. Stankovic, 2015 ONSC 6246, the accused was sentenced to three years’ imprisonment for forcibly raping the victim both vaginally and anally, despite the victim saying no and that it hurt several times.

[47] In R. v. Mitrovic, 2017 ONSC 1829, the court sentenced the offender to four years’ imprisonment for sexual assault involving vaginal penetration when the victim was unconscious, and additional aggravating conduct by the offender inappropriately texting the victim.

[48] In R. v. Forsellino, 2022 ONSC 262, the offender was sentenced to 23 months’ incarceration after being found guilty by a jury of sexual assault. Justice Leibovich found that the range for this type of sexual assault was between two and five years, and that a conditional sentence was not appropriate: at paras. 28, 39. No probation was ordered: at para. 34. Ancillary orders included a ten-year s. 109 order, a DNA order, and SOIRA compliance for 20 years.

[49] In R. v. Walsh, 2019 ONSC 1286, 154 O.R. (3d) 263, aff’d on other grounds 2021 ONCA 43, a jury found the offender guilty of sexual assault, and Byrne J. sentenced him to two years’ imprisonment, plus a ten-year weapons prohibition, twenty-year SOIRA compliance, a DNA order, and a non-communication order with the victim. Justice Byrne noted that the Crown’s submission for a three-year sentence was “not an unreasonable one”: at para. 50.

[50] In R. v. C.L., 2019 ONSC 2144, Parfett J. found the offender guilty of sexual assault and sentenced him to two years’ imprisonment, finding that “this case does not possess any unique or exceptional features that would justify departing from the usual range, which I find to be two to three years. . . [and] within that range, this case falls at the low end.”: at para. 28. Justice Parfett also imposed a ten-year weapons prohibition, a DNA order, and SOIRA compliance for 20 years. The victim was at the house of the offender to buy marijuana. The victim rejected his initial sexual advances. The offender then “pushed her down on the bed, removed her leggings and underwear, removed his own pants and had sexual intercourse with her. The victim stated she told the offender ‘no’ and also resisted by trying to push him off, but she was unsuccessful”: at para. 3.

[51] In R. v. Khan, 2015 ONSC 4325, the offender was found guilty after trial by jury of two counts of sexual assault. Justice O’Marra sentenced the offender to three years’ incarceration for the second assault, and six-months consecutive for the first assault: at paras. 46-47. The offender was 20 years old at the time of the offences and a first offender. He was on a student visa and following the conviction would now be inadmissible to Canada. Both victims provided victim impact statements detailing the impact that the assaults had on them. Justice O’Marra noted that “The acts perpetrated by Mr. Khan, will have a life-long psychological and emotional consequence for the victims”: at para. 37. It is a similar case with one assault involving forced sexual touching and the second assault involving unprotected forced intercourse.

[52] In R. v. Ignacio, 2019 ONSC 2832, the offender was sentenced to 20 months’ imprisonment, without probation. Ancillary orders included compliance with the SOIRA for 20 years, a DNA order, and an order to abstain from communicating with the victim while in custody. The offender and the victim met at a concert and exchanged text messages. She met him at a barbecue where he was intoxicated. The offender accepted the victim’s offer to drive him home, and on their way they stopped at a parking lot. They engaged in consensual oral sex, but Mr. Ignacio forcefully penetrated the victim’s vagina with his penis. The victim prepared a victim impact statement describing the emotional trauma that resulted from the assault.

[53] In R. v. S.B., 2021 ONSC 2668, the court imposed 23 months’ incarceration for the sexual assault and one month incarceration for the assault, with 12 months’ probation. Ancillary orders included a DNA order, a weapon’s prohibition for 10 years, registration on the Sex Offender Registry for 20 years, a non-communication order for the duration of the sentence, and a victim fine surcharge of $200. The offender and victim were in a relationship. The offender invited the victim to his home where they engaged in sexual relations. However, the offender failed to stop when the victim told him to.

[54] In R. v. R.L., 2013 ONCJ 617, the court imposed 90-day intermittent sentences concurrent on three counts of sexual assault, probation for two years, SOIRA and s. 110 orders for ten years, DNA sample ordered, and victim surcharge of $100 per count. The victim had a learning disability affecting her speech and language abilities. During a work shift, the offender gave the victim a long hug when she arrived, put his hand down her shirt and touched and rubbed her breast, and kissed her while undoing her shirt and touching her breasts. Aggravating factors included that the offender committed a double breach of trust by assaulting an employee at the workplace who was also an individual the offender knew had a learning disability impacting her ability to communicate. The offender also groomed the complainant into trusting him over a one-year period, had no insight into his offending behaviour, showed no empathy or remorse, had not engaged in rehabilitative programming, and continued to rationalize his behaviour. The need for deterrence was high and a conditional sentence could not address the objectives of denunciation and deterrence.

[55] In R. v. Giovannelli, 2017 ONCJ 408, the court imposed a custodial sentence of 90 days, followed by one year of probation, SOIRA compliance for ten years, a DNA order, and victim fine surcharge of $100. While the condition precedents to a conditional sentence were satisfied, a conditional sentence would not address the gravity of the offence or the fundamental principles of sentencing. The offender owned the restaurant where the complainant had recently started working as a waitress. At a staff party, the offender met the complainant outside a washroom in the restaurant’s basement and proceeded to kiss her, touch her breasts over her clothing, and insert his fingers into her vagina without her consent. The assault ended when another employee entered the basement.

[56] In R. v. Chen, 2017 ONCJ 612 the court imposed a 90-day intermittent sentence, followed by two years of probation, a DNA order, lifelong SOIRA compliance, and a s. 110 order for five years. A conditional sentence would not achieve the principles of denunciation and deterrence, but incarceration longer than 90 days may have resulted in the loss of his business. The offender touched the breasts of three female customers on three separate occasions while providing services at his hair salon. The touching, lifting, and groping was generally over the complainants’ clothing, but was repeated and deliberate.

[57] In cases of sexual assault, the objectives of denunciation and deterrence take on a more principal role. In R. v. Thurairajah, 2008 ONCA 91, 89 O.R. (3d) 99, Doherty J.A. observed at para. 41 that, generally speaking, sentences imposed on young, first-time offenders will stress individual deterrence and rehabilitation, whereas general deterrence will play little if any role. However, for serious crimes of personal violence, particularly sexual assault, while rehabilitation and the other sentencing objectives remain important, denunciation and deterrence “gain prominence”.

Pre-Trial Detention Credited to Another Charge

[58] The period of pre-trial detention on another charge can be applied to this sentence if there is a “sufficient link” between this offence and the detention. Section 719(3) of the Criminal Code permits a court to consider “any time spent in custody by the person as a result of the offence”. Whether detention is “as a result of the offence” is a contextual examination, and it is not limited to only the offence that triggered the identified period of detention. The test is whether there is a “sufficient link” between the charge being sentenced on and the period of detention, and this link will be satisfied where common sense dictates that the offender did not apply for or was denied bail on the later charge because of the earlier outstanding charges: see R. v. Barnett, 2017 ONCA 897, 138 O.R. (3d) 401 at paras. 27-28.

[59] The decision in Barnett has been followed in recent decisions at trial and appellate levels in Ontario and in other Provinces: see R. v. Hussein, 2018 ONCA 147, 140 O.R. (3d) 593; R. v. Davis, 2020 ONCA 748 (where the court affirmed Barnett and explained that “determining whether any such link exists is a matter of discretion for the trial judge” and indicated that deference would be given to that determination: at para. 28); R. v. Pete, 2019 BCCA 244; R. v. Onyeachonam, 2021 ONSC 6893; R. v. Brown, 2019 ONSC 6690; and R. v. T.W., 2018 ONSC 7797.

Credit for Pre-Sentence Detention

[60] 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.

[61] 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 para. 50-52.

[62] The conditions in jails throughout the Covid-19 pandemic are a recognized reason to consider the Duncan credit as a mitigating circumstance. That Covid 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.

[63] 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 considered, it cannot justify the imposition of an inappropriate sentence, 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.

[64] 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.

[65] 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.

[66] The decision in Marshall has since been cited in other Court of Appeal decisions which 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.

[67] 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.

[68] In R. v. Warsame, 2022 ONSC 424, Molloy J. built upon the review in Ashton, and 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 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 which promoted 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.

[69] 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.

[70] 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 taken the Duncan credit into account as a mitigating factor. 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

[71] The parties and the court agree that there is a sufficient link between the charges that the offender is being sentenced on and the period of pre-sentence detention in Gatineau to meet the requirement of s. 719(3) of the Criminal Code, which permits a court to take into account “any time spent in custody by the person as a result of the offence”.

[72] Consequently, as agreed between the parties, the offender has to date spent 885 days in pre-sentence custody. After applying a 1.5:1 factor to the 885 days, I consider that the offender is entitled to a Summers credit of up to 1,328 days.

[73] The offender gave evidence detailing the added difficulties and restrictions resulting from the Covid-19 pandemic. It is undisputed that the offender was in isolation and in lockdowns related to the pandemic for a total of 83 days, and that almost all of his period of pre-sentence detention was during the pandemic and the particularly punitive conditions that existed as a result. Conditions during the pandemic were more difficult, and included reduced visits, services, and yard time. There is no question that the offender is entitled to a Duncan credit as a mitigating factor for these added difficulties.

[74] These were two violent crimes with terrible consequences for their victims. It was apparent during their testimony at trial, and in their victim impact statement, just how gravely the victims have been affected by these events. In such circumstances, denunciation and general deterrence are particularly important considerations.

[75] Considering all of this and the principles of sentencing outlined above, I find that a just, fit, and proportionate sentence for the offender is:

• On count seven, for the sexual assault on Ms. B, a term of imprisonment of two years and three months (820 days) that I calculate as follows: one day jail and a Summers credit for 546 days;
• On count four, for the sexual assault on Ms. R, a term of imprisonment of three months (91 days) of imprisonment, consecutive, that I calculate as follows: one day jail and a Summers credit for 60 days, consecutive; and
• Two years of probation, concurrent.

[76] I wish to make it clear that I have applied a Duncan credit for all of the Covid-related additional or more punitive conditions of incarceration experienced by the offender to date in arriving at the above sentence.

[77] 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 any of the victims and complainants.

[78] 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 to include at least one sexual assault program and sign required waivers or permissions, and; abstain from communicating or contacting in any way with any of the victims and complainants in this matter.

[79] 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 offence.

[80] 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.

[81] Sexual assault is inherently violent such that I make an order for a weapons prohibition provided by s. 109 of the Criminal Code (otherwise, s. 110 would be applicable). Pursuant to s. 109 of the Criminal Code, 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 a period of ten years from today, and the offender is prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life.

[82] In closing, I wish to thank both victims and all complainants for their courage and for how they comported themselves during this trial. All the best to you.

Mr. Justice P. E. Roger Released: April 21, 2022