COURT FILE NOS.: 17-RA19540, 18-SA5054 and 18-SA5091
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
D.B.
Carl Lem, for the Crown
Daniel Howard, for the Accused
HEARD: April 1, 2022 (By Videoconference)
SUBJECT TO ANY FURTHER ORDER BY A COURT OF COMPETENT JURISDICTION, AN ORDER PURSUANT TO s. 486.4 OF THE CRIMINAL CODE HAS BEEN MADE IN THIS PROCEEDING DIRECTING THAT THE IDENTITY OF THE COMPLAINANT AND ANY INFORMATION THAT COULD DISCLOSE SUCH IDENTITY, INCLUDING THE NAMES OF OTHER CROWN WITNESSES, SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST IN ANY WAY.
SENTENCING DECISION
corthorn J.
Introduction
1D.B. is being sentenced before me following his conviction on eight charges. The convictions relate to four sexual assaults found to have been committed in the years spanning 2005 to 2017.
2Three women were victimized by the assaults – with one of the women assaulted on two separate occasions. Three of the assaults were found to have involved choking. D.B. was also convicted of uttering threats to one of the women whom he sexually assaulted.
3In December 2021, I found D.B. guilty of the following offences:
Count 1
… on or about the 1st day of May in the year 2005 at the City of Ottawa in the East/De L’Est Region did commit a sexual assault on E.I., contrary to Section 271 of the Criminal Code.
Count 2
… on or about the 10th day of October in the year 2017 at the City of Ottawa in the East/De L’Est Region did with intent to enable or assist himself to commit an indictable offence, namely sexual assault, attempt to choke, suffocate or strangle another person, namely E.I., contrary to Section 246 clause (a) of the Criminal Code.
Count 4
… on or about the 10th day of October in the year 2017 at the City of Ottawa in the East/De L’Est Region did commit a sexual assault on E.I., contrary to Section 271 subsection (1) of the Criminal Code.
Count 10
… between the 1st day of June in the year 2016 and the 30th day of August in the year 2016 at the City of Ottawa in the East/De L’Est Region did commit a sexual assault on K.J., contrary to Section 271 of the Criminal Code.
Count 11
… between the 1st day of June in the year 2016 and the 30th day of August in the year 2016 at the City of Ottawa in the East/De L’Est Region did with intent to enable or assist himself to commit an indictable offence, namely sexually assault, attempt to choke, suffocate or strangle another person, namely K.J., contrary to Section 246, clause (a) of the Criminal Code.
Count 12
… on or about the 5th day of September in the year 2016 at the City of Ottawa in the East/De L’Est Region did, in committing a sexual assault on K.A., cause bodily harm to her, contrary to Section 272 subsection (2) of the Criminal Code.
Count 13
… on or about the 5th day of September in the year 2016 at the City of Ottawa in the East/De L’Est Region did, with intent to enable or assist himself to commit an indictable offence, namely sexual assault causing bodily harm, attempt to choke, suffocate or strangle another person, namely K.A., contrary to Section 246 clause (a) of the Criminal Code.
Count 14
… between the 1st day of April in the year 2017 and the 30th day of June in the year 2017 at the City of Ottawa in the East/De L’Est Region did, by word of mouth, knowingly cause K.A. to receive a threat to cause bodily harm to K.A., contrary to section 264.1 subsection (2) of the Criminal Code.
4Defence Counsel and the Crown agree that (a) the sentences with respect to Counts 1, 2, 10, 12 and 14 are to run consecutively, and (b) the sentences with respect to Counts 4, 11 and 13 are to run concurrently.
5Defence Counsel and the Crown disagree as to the total sentence to be imposed and as to the credit that D.B. is to receive for time served since he was first incarcerated in October 2017.
6I shall first summarize the submissions with respect to the totality of the sentence. To assist the court, both counsel each provided a chart in which they cite and summarize the cases upon which they respectively rely.
7Defence Counsel asks the court to impose a total sentence of 11 years. He acknowledges that 11 years is at the lower end of the range of sentences for the type of offences for which D.B. is convicted.
8Defence Counsel does not dispute the aggravating factors upon which the Crown relies. Defence counsel asks the court to consider the following factors as mitigating ones:
The dominant role that addiction to drugs has played in D.B.’s life since D.B. was 19 years old;
D.B.’s criminal record is by and large typical of an individual with an addiction of that kind;
D.B. has demonstrated the ability to remain sober at times, including for up to six consecutive months following his release from incarceration on one occasion and for four and a half years during his most recent detention; and
The extent to which D.B.’s behaviour at the time of the sexual assaults was fueled by D.B.’s use of crack cocaine serves to decrease, to some extent, D.B.’s level of moral culpability.
9Defence Counsel acknowledges the difficulties faced by an individual with a severe addiction to cocaine; he submits, however, that no one is beyond rehabilitation.
10The Crown emphasizes that the convictions relate to five discrete acts, carried out on five separate dates in a span of twelve years. The Crown describes the sexual assaults as unique, terrible affronts to each of the three women’s sexual integrity. The Crown submits that for K.A., the sexual assault was compounded with D.B. uttering threats and effectively extorting K.A. from proceeding with a complaint. The Crown’s position is that a high level of moral culpability must be attached to D.B.’s conduct.
11The Crown relies on the report of psychiatrist, Dr. Jonathan Gray (the “Gray report”). In January 2022, Dr. Gray conducted a sexual behaviours assessment of D.B. via the Ontario Telehealth Network. The Crown cites, for example, that D.B.’s longstanding addiction to cocaine, challenges in remaining drug-free, heightened sexual desire when using cocaine, and acknowledged impulsivity place D.B. at a high risk to re-offend.
12The Crown asks the court to (a) consider the impact of D.B.’s conduct on K.A., as described in the victim impact statement which she delivered to the court, and (b) rely on the evidence at trial of E.I. and K.J., drawing inferences from their respective testimony as to the impact of D.B.’s conduct on them.
13I pause here to note that K.J. passed away in November 2021 – approximately one month prior to the date of D.B.’s convictions on the subject charges. The circumstances of her death were reported by the Ottawa Police Service not to be suspicious.
14E.I. did not provide a victim impact statement.
15The Crown’s position is that, taking the totality principle into consideration, the appropriate sentence is 20 years.
16I turn next to summarize the submissions with respect to Duncan1 and Summers2 credits:
Defence Counsel asks the court to apply both types of credit based on (a) the time served by D.B. between October 2017 and the date on which the convictions were entered, and (b) the conditions in which that time was served.
The Crown agrees that a Summers credit is to be applied for time served at the rate of 1.5:1. The Crown’s position is that the evidence does not support the consideration of a Duncan credit in determining a fit sentence.
17As is his right, D.B. chose not to address the court at the conclusion of his sentencing hearing.
18In summary, both counsel recognize, as does the court, that arriving at a fit sentence is not a simple exercise in arithmetic: see R. v. P.V., 2016 ONCJ 64, at para. 13. Nor is arriving at a fit sentence a precise exercise – “it is a systematic one that is meant to lead to a fair, just, and humane but purposeful outcome”: P.V., at para. 15.
19This systematic exercise requires that the court consider the gravity of the offences, D.B.’s degree of responsibility, and any factors personal to D.B. that might aggravate or mitigate the sentence. The court must also consider the purposes of sentencing identified in s. 718 of the Criminal Code, R.S.C. 1985, c. C-46, and identify the priorities to be given by the sentence. With those objectives and guiding principles in mind, the court’s function is to craft a fit sentence for D.B.
20The range of sentences imposed for similar offences can be helpful when fixing the sentence in a given case: see R. v. S.M.C., 2017 ONCA 107, at para. 7. That said, “sentencing ranges are, at best, guidelines for the application of the relevant sentencing principles and objectives, and … sentencing remains a highly individualized process, subject to judicial discretion”: R. v. Blake, 2020 ONSC 5658, at para. 40.
21I turn first to the gravity of the offences for which D.B. stands convicted.
The Gravity of the Offences
22The “Overview” section of the Crown’s written and oral submissions begins with the following statement made by Karakatsanis J., at para. 37 of the Supreme Court of Canada decision in R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3: “As time passes, our understanding of the profound impact sexual violence can have on a victim’s physical and mental health only deepens.”
23K.A. found the courage not only to testify at trial, but to prepare and personally deliver a victim impact statement. At times, K.A.’s testimony touched on the impact D.B.’s criminal behaviour had on her. K.A.’s victim impact statement, although succinct, clearly set out the emotional, psychological and physical harm she experienced and from which she continues to suffer as a result of D.B.’s conduct towards her.
24More than five years after the sexual assault, K.A. continues to suffer from three separate mental health conditions. She remains unable to form a meaningful adult relationship with a man. K.A. does not venture alone from her home at night.
25K.A.’s internal fortitude is demonstrated by the fact that she has been clean from drugs for approximately five years. In her testimony at trial, K.A. described making the decision to leave what she described as “the drug world” behind and become sober. The gravity of the harm of D.B.’s crimes against K.A. is clear from the extent to which an individual with that amount of internal strength continues to suffer emotionally, psychologically and physically.
26E.I. did not provide a victim impact statement. I therefore look to her evidence at trial when considering the impact D.B.’s sexual violence had on E.I.
27E.I. testified as to the physical harm that she experienced as a result of the 2005 sexual assault. E.I. had difficulty swallowing, was unable to eat, and suffered bruising to her neck. She left the City of Ottawa and remained for a time in Cumberland, Ontario. E.I. testified that she experienced flashbacks to the 2005 sexual assault when seeing a counsellor in Kingston some years later.
28It was also E.I.’s evidence that, despite her mistrust of D.B. following the 2005 sexual assault, when she ran into him again in 2017, she took him at his word that he had changed and was not the same individual that he was in 2005. D.B. abused that trust and prayed on E.I.’s vulnerability as a relapsed (at the time) drug addict.
29Following the 2017 sexual assault, E.I. attended at the Ottawa Hospital, where the injuries she reported included a cut to her lip as a result of being struck in the face by D.B.
30It was E.I.’s evidence that she did not report the 2005 sexual assault at the time because she had lost faith in the police. She also described not wanting to get lost in the system again. To give evidence at trial, E.I. had to put aside her lack of faith in the police and in “the system”. Doing so could not have been easy for E.I.
31K.J. passed away in the fall of 2021 – before D.B. was convicted. Of the three victims, K.J. expressed the greatest sense of personal betrayal as a result of being sexually assaulted and choked by D.B. The day following the sexual assault, K.J. had the courage to confront D.B. She did so in an effort to try to figure out how someone whom she considered to be a friend could have behaved as he did. During that confrontation, D.B. denied the incident. His denial added to the sense of betrayal that K.J. felt.
32In addition to the significant personal betrayal that K.J. experienced, she suffered physical injuries. She suffered a scratch and bruise to the left side of her neck (from the use of the bra as a choking device). She also experienced an aggravation of back pain from pre-existing degenerative disc disease.
33In the passage from Goldfinch quoted above, Karakatsanis J. referred to the “profound impact sexual violence can have on a victim’s physical and mental health”. She also said that society as a whole has, over time, developed a deeper understanding of that harm.
34Despite that suggested deeper understanding, what I say in this ruling, in an effort to summarize the harm D.B. caused to each of E.I., K.J., and K.A., does not come close to being a fulsome description of the harm these women experienced. Much about the profound impact of D.B.’s conduct on these women remains unspoken because of the constraints imposed on an individual providing a victim impact statement, E.I.’s choice, which I respect, not to provide a statement, and the fact that K.J. is no longer with us to provide a statement.
35Each of E.I., K.J., and K.A. relied, at least to some extent, on D.B. for drugs. E.I. had a minimal relationship with D.B. beyond that of customer and drug dealer. Both K.J. and K.A. had a relationship with D.B. that went beyond that of customer and drug dealer. Regardless of the nature of their respective relationships with D.B., each of the women was exploited by him.
36As a drug dealer and as an addict himself, D.B. was well aware that each of the women was vulnerable to him because of their addiction. In September 2019, I made the following ruling with respect to similar fact evidence:
The evidence of KJ, KA, and EI is admissible on a count-to-count basis with respect only to the 2016 and 2017 incidents described in support of the inference that Mr. Boulet has a propensity to sexually assault women who are drawn to him, and therefore accessible to him, as a result of their respective dependency on crack cocaine.
37What degree of personal responsibility is to be assigned to D.B. for his behaviour towards these women?
D.B.’s Degree of Responsibility; Personal Mitigating Factors
38Defence Counsel asks the court to consider D.B.’s difficult family background. Defence Counsel portrays D.B. as an individual who, because of that background, was never in a position to succeed in leading a pro-social life.
39The evidence about D.B.’s personal background is found in the Gray report. D.B. was raised by his maternal grandparents. D.B. and his mother lived with her parents and siblings (two boys and two girls). D.B.’s mother committed suicide when D.B. was six years old. Prior to his mother’s death, D.B. was told that his mother and four aunts and uncles were his siblings. It was only after his mother’s death that D.B. learned the true state of affairs.
40D.B. never knew his biological father. D.B. grew up observing the extent to which his maternal grandfather emotionally and physically abused his maternal grandmother. The latter form of abuse included spitting at the maternal grandmother. D.B. acknowledged to Dr. Gray that he “has a tendency to model himself after his maternal grandfather”.3
41I do not minimize the difficult circumstances in which D.B. was raised or the impact those circumstances had on him, both as an adolescent and during his adult life. I find, however, that those circumstances do not serve to reduce D.B.’s degree of responsibility to the extent submitted by Defence Counsel.
42Although a victim of the circumstances in which he was raised, D.B. did not and does not have a licence to sexually assault and otherwise victimize others and to do so with significantly minimized responsibility. In his interview with Dr. Gray, D.B. acknowledged that he had exploitive relationships with many women; the exploitation being in the form of exchanging sex for drugs.
43D.B. also acknowledged to Dr. Gray that by providing the women with drugs, he exacerbated the women’s addictions, encouraged their drug use, and contributed to the ruination of their lives. Regardless of when D.B. came to these realizations – before or after his detention in October 2017 – it is clear that D.B. lacked concern for the well-being of each of E.I., K.J., and K.A.
44The aggravating factors upon which the Crown relies – and with which Defence Counsel does not take issue – include that the sexual assaults all involved a sudden, brutal and unprovoked attack. Three of the four incidents involved the use of violence and abusive language:
In October 2017, D.B. grabbed E.I.’s hair, spat in E.I.’s mouth, and slapped E.I. on the face. D.B. told E.I. that other men would arrive at the apartment in which the sexual assault took place and would do worse to her than he was doing;
During the sexual assault of K.J., D.B. used her bra as a choking device;
When sexually assaulting K.A., D.B. used force and positioned K.A. on a couch so as to restrict her movement. D.B. used degrading language towards K.A.; and
During each of the four sexual assaults, as the women struggled to free themselves, D.B.’s use of force increased.
45D.B. continues to avoid responsibility for the extent to which choking was involved in the sexual assaults for which he is convicted. D.B.’s evidence at trial was that he was introduced to choking by a woman whom he saw for several months who was good at role-playing. D.B. estimated that he developed a choking fetish some time between 2010 and 2012.
46In his interview with Dr. Gray, D.B. gave an entirely different explanation as to the source of his interest in choking. D.B. told Dr. Gray that he might have learned about choking from watching pornographic material. D.B. declined to elaborate further because he really wasn’t certain as to the origin of his interest in choking – he did not want to speculate.
47Whereas D.B. gave evidence at trial about having a choking fetish, he told Dr. Gray that it was “rare” for him to use choking during sex. Whether “rarely” or more frequently used, choking posed a significant risk to D.B.’s victims:
E.I.’s evidence is that as a result of D.B.’s use of choking in 2005, she thought she was dying. She testified that following the incident, D.B. said, “a little bit more and you would not have woken up”;4
K.A.’s evidence is that as a result of being choked by D.B., she struggled for air and was unable to breathe;5 and
K.J. testified that she is uncertain that she would have survived the sexual assault if she had not been able to get one of her hands between her neck and her bra, as D.B. used the bra as a choking device.6
48In summary, D.B. remains unwilling to take personal responsibility and to demonstrate remorse for choking as an additional element of the brutal nature of the sexual assaults.
49Another aggravating factor cited by the Crown – and with which Defence Counsel does not take issue – is that the sexual assault of K.J. occurred in her apartment. The sanctity of K.J.’s home was violated.
50Next, I turn to the concept of remorse – specifically, D.B.’s lack of remorse for his conduct. D.B. continues to deny responsibility for his conduct – going so far with Dr. Gray as to suggest that he “always accepts responsibility to the fullest” for offences he has committed, other than the crimes for which he is now being sentenced.
51In his report, Dr. Gray refers frequently to the role that D.B.’s cocaine addiction played in his behaviour, including at the time of the crimes for which D.B. stands convicted. Dr. Gray refers, for example, to D.B.’s acknowledgement that when he uses crack cocaine (a) his sex drive is greatly increased, and (b) he will search out women to act as sexual partners. D.B. fails, however, to acknowledge his exploitation of E.I., K.J., and K.A. by reason of their vulnerability to him as one or more of their drug dealer, friend, and intimate partner.
52In his interview with Dr. Gray, D.B. expressed that he has realized the importance of remaining drug-free to being able to have quality of life in his remaining years. While that realization is commendable, even D.B. recognizes that effecting this kind of change will be a challenge: “It’s hard to change my way of thinking. I’ve got 25 years left to live and I need to have a more pleasant way of living.”7
53Last, I note that D.B. chose to plead not guilty. As a result, each of E.I., K.J., and K.A. were required to testify and to have their allegations challenged. D.B. had the right to a trial and is not to be punished for exercising that right. On the other hand, he is not entitled to receive the credit that a guilty plea would have engendered in this case.
54D.B. bears significant moral responsibility for his offences, even allowing for his childhood circumstances, drug addiction, and stated intention of self-improvement. Whether fueled by the use of cocaine or not, D.B. (a) exploited vulnerable individuals for his own sexual gratification, (b) further endangered them through the use of choking, and (c) extorted the silence of one of his victims by threatening the same type of, if not worse, harm.
The Purpose, Principles, and Priorities in Sentencing
55Section 718 of the Criminal Code defines the fundamental purpose of sentencing as follows: “to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society”. That purpose is achieved by imposing sanctions that have as their objectives one or more of those listed in ss. 718(a)-(f).
56Some of the objectives identified in ss. 718(a)-(f) are punitive, with offenders held accountable for their crimes and the intention of discouraging others from engaging in criminal behaviour. The focus of other objectives is on the individual offender – with consideration given to the potential for rehabilitation and the risk of re-offending.
57Also relevant to crafting a fit sentence for D.B. is the totality principle codified in s. 718.2(c). Pursuant to that section, “where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh”.
58I agree with Defence Counsel and the Crown that (a) the sentences with respect to Counts 1, 10, 12 and 14 are to run consecutively, and (b) the sentences with respect to Counts 11 and 13 are to run concurrently. For the sake of consistency in the treatment of the convictions on counts related to an offence under s. 246(a) (i.e., involving choking), I have the sentence on Count 4 running consecutive to the other sentences; the sentence on Count 2 runs concurrent to the sentence on Count 4.
59Defence Counsel and the Crown treated those two offences exactly opposite to how I treat them. The difference in the treatment of the sentences on the two counts makes no difference to the overall sentence – both before and after the totality principle is applied.
60At para. 42 of the Supreme Court of Canada decision in R. v. M.(C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, Lamer C.J.C. explained the totality principle: “[I]n short, [it] requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender.”
61The fundamental principle of proportionality, codified in s. 718.1 of the Criminal Code, is also to be considered: “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”
62In crafting a sentence for D.B., the objectives of denunciation, deterrence, and the separation of D.B. from the rest of society play a significant role. “Denunciation” requires that the sentence imposed be sufficient to “communicate society’s condemnation of [the] offender’s conduct”: M.(C.A.), at para. 81.
63When relying on deterrence as a factor in sentencing, the “court cannot impose an unduly harsh sentence on an offender in the belief that this harsh sentence will be a more effective disincentive for others”: P.V., at para. 79. The principle of proportionality plays a role in limiting the extent to which the court can go when imposing a denunciatory sentence: see P.V., at para. 79, citing M.(C.A.), at para. 78.
64The conclusions reached and opinions expressed by Dr. Gray support the separation of D.B. from society as a factor in sentencing. Immediately below are some examples of the conclusions reached and opinions expressed by Dr. Gray:
Despite the presence of some factors, such as age, that serve to decrease D.B.’s risk factors for re-offending, the situational and malleable risk factors for D.B. result in a much higher risk for re-offending than sexual offenders otherwise similar to him;
Given the longstanding and severe nature of D.B.’s cocaine addiction, continued cocaine abuse and its concomitant hypersexuality for D.B. are at least a possibility when he is once again in the community; and
D.B. exhibits a sexual interest in choking during sex. He “is at best indifferent to, or even has a preference for a lack of partner consent to this practice during sexual activities.”8 Even if D.B. is given the benefit of the doubt on this point, “this behaviour has a high likelihood to result in future similar sexual offences.”9 As a result of the antisocial personality disorder with which D.B. is diagnosed, it is more likely that choking during sex would not be done with consent.
65Turning to the principle of rehabilitation, Dr. Gray opines that “[t]here are many challenges to the prospect of successful treatment of [D.B.’s] risk factors.”10 For example, despite having had the benefit of “good participation in extensive treatment programs at both the provincial and federal levels while incarcerated”,11 D.B. repeatedly returned to substance abuse and re-offended.
66Despite D.B.’s lengthy criminal record, the convictions for which D.B. is being sentenced represent his first convictions for sexual offences. Dr. Gray’s opinion is that D.B. “would benefit from treatment in this area given the many dynamic risk variables relevant in his case that are specific to sexual offending.”12 Dr. Gray recommends this form of treatment despite D.B.’s current state of denying the offences for which he stands convicted. Dr. Gray does so because some degree of denial and minimization are common in the sex offender population.
67In summary, in sentencing D.B., the factors which I must emphasize are denunciation, general deterrence, and the separation of D.B. from society. Rehabilitation is a lesser factor and considered to the extent denunciation and general deterrence permit. The sentence must be sufficiently harsh to address the high level of moral responsibility that D.B. bears and to discourage others from conducting themselves in the same manner as D.B.
Sentencing Tools, Governing Principles, and Precedents
68Defence Counsel and the Crown agree that a fit sentence for D.B. is incarceration. They also agree that the period of incarceration required exceeds time served, even after Summers and Duncan credits are applied.
69Section 718.2(b) prescribes that, as a matter of fairness, the sentence imposed “should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”.
70Neither Defence Counsel nor the Crown suggest that the court should, when sentencing D.B., depart from the usual range of sentences for similar offences. However, Defence Counsel and the Crown do not agree on what the usual range is.
71The sentencing precedents upon which Defence Counsel relies address conduct that falls short of the level of egregiousness of D.B.’s conduct. For example, those precedents lack the element of choking in combination with a sexual assault.
72The Crown acknowledges that some of the sentencing precedents upon which he relies include cases involving conduct that is more egregious than D.B.’s conduct during any one of the sexual assaults for which he stands convicted. The precedents upon which the Crown relies do, however, include sentencing for sexual assaults which involved choking.
73When viewed in their entirety, the sentencing precedents provided by the Crown are of some assistance when considering s. 718.2(b). I find they are of more assistance than are the sentencing precedents upon which Defence Counsel relies.
74The Crown acknowledges that a fit sentence for D.B. falls below the sentence that would result from strict, arithmetic calculation based on the sentencing precedents upon which he relies. Taking the totality principle into consideration, the Crown adjusts downward from an arithmetic result of 28 years (as calculated in the Crown’s written submissions) and asks the court to sentence D.B. to a total of 20 years.
75This is the first time that D.B. has been convicted of sexual offences. He is not, however, a one-time offender. The sexual assaults were committed during a twelve-year period, involve four separate assaults, and involve three victims.
76I have already commented on the brutality of each of the sexual assaults. For three of the four assaults, D.B. will be sentenced concurrently for the offence of choking with intent to commit sexual assault (s. 246 of the Criminal Code). The sentencing decision of Lofchik J. in R. v. Simas-Mamani, 2018 ONSC 4558, aff’d 2021 ONCA 711, provides some guidance with respect to concurrent sentences for s. 246(a) and sexual assault.
77The circumstances in Simas-Mamani are distinguishable from the offences for which D.B. is being sentenced. Simas-Mamani choked his single victim to the point of unconsciousness several times during a sexual assault that lasted approximately an hour. Lofchik J. found that Simas-Mamani had “clearly endangered [his victim’s] life, as the difference in outcome between unconsciousness, brain damage, and death may be only a matter of a few additional seconds of pressure”: at para. 10.
78Lofchik J. imposed concurrent sentences of eight years for the sexual assault and the use of choking. He highlighted that the use of choking as a means to achieve sexual assault was, in the circumstances of the case, more serious and life-threatening than was the sexual assault: at para. 8. Lofchik J. noted that the “incidental” offence of choking carries a greater maximum penalty (life imprisonment) than sexual assault (ten years): at para. 9.
79In fixing a sentence for D.B., I follow the approach taken by Lofchik J.; I fix the same number of years concurrently for the choking offence as I do for each of the related sexual assaults.
80Before specifying the sentence imposed, I turn to the Duncan credit requested by Defence Counsel.
The Duncan Credit
a) D.B.’s Position
81Defence Counsel submits that there are two lines of authority with respect to how a Duncan credit is to be applied. Defence Counsel describes one line of authorities as taking a qualitative or general approach to the Duncan credit and relying on it as a mitigating factor; the other line supports taking an arithmetic approach. A possible outcome from the latter approach is an increase to a ratio in excess of 1.5:1 in the credit given for at least some of the presentence incarceration period.
82Defence Counsel asks the court to apply the arithmetic approach. He asks the court to consider the lockdowns that D.B. experienced during his presentence incarceration, the general impact of COVID on the incarcerated population, the specific impact of COVID on D.B. (he tested positive for the virus in 2021), and the psychological impact of COVID on D.B.
83In support of the request for a Duncan credit, Defence Counsel filed two letters with the court – one from each of the two correctional centres at which D.B. was housed during the pre-sentence period. D.B. was housed at the Ottawa-Carleton Detention Centre (“OCDC”) from October 14, 2017 to May 27, 2020 and from December 14, 2020 to February 15, 2022 (with the latter date being the date of the letter from the OCDC filed with the court). From May 27, 2020 to December 14, 2020, D.B. was housed at the Central East Correctional Centre (“CECC”).
84The February 15, 2022 letter from the OCDC sets out where D.B. was housed (i.e., in which Wing or Pod and whether D.B. was segregated); how the OCDC handled COVID; and lockdowns that affected D.B. depending on where he was housed on any given date. The February 13, 2022 letter from the CECC sets out when lockdowns occurred and the reason for them (i.e., including staff shortages); when D.B. was in the “Alternative Housing Specialized Supportive Care Unit”; and that D.B. did not participate in any of the programs offered at the Centre.
85Defence Counsel asks the court to draw an inference, based on the contents of those letters, and find that D.B. experienced a psychological impact from COVID.
86Defence Counsel asks the court to increase the credit for time served to a ratio of 2:1, globally, for the period from March 13, 2020 (the beginning of the pandemic) to December 23, 2021 (the date on which D.B. was convicted).
b) The Crown’s Position
87The Crown submits that pursuant to s. 719(3) of the Criminal Code and the Ontario Court of Appeal decision in Duncan, (a) any arithmetic credit is capped at a ratio of 1.5:1, and (b) the court is required to apply a qualitative approach when addressing the Duncan credit and consider such a credit, if applicable in this case, as a mitigating factor.
88The Crown addresses the pre-pandemic period separately from the period since the start of the pandemic. The Crown submits that for the Duncan credit to be a mitigating factor with respect to the pre-pandemic period there must be evidence of (a) particularly harsh presentence incarceration conditions, and (b) an adverse effect on D.B. flowing from those conditions: see Duncan, at paras. 6 and 7. The Crown’s position is that there is no evidence of either.
89With respect to the pandemic, the Crown submits that the conditions which D.B. has experienced during the presentence period reflect the conditions experienced and steps taken in society as a whole to minimize the spread of COVID. The Crown cites for example, the imposition of restrictions on contact and on movement – for both the population as a whole and the incarcerated population. The Crown submits that the imposition of such restrictions does not amount to “particularly harsh” conditions.
c) Analysis
90In responding to the request to consider a Duncan credit when determining a fit sentence for D.B., I follow the guidance from the Ontario Court of Appeal in R. v. Marshall, 2021 ONCA 344. At paras. 50-53, Doherty J.A. makes a series of observations about the Duncan credit. Those observations include the following points:
Because the Summers credit takes into account difficult and restrictive circumstances encountered in pre-trial custody, the Duncan credit is intended to address “exceptionally punitive conditions which go well beyond the normal restrictions associated with pre-trial custody”: at para. 50;
Whereas the Summers credit involves an arithmetic deduction from what the trial judge determines to be an appropriate sentence, the Duncan credit is not a deduction from the appropriate sentence but is rather a factor that informs it: at paras. 51-52;
If the Duncan credit is quantified, there is a risk that it will be treated in the same way as the Summers credit and, as a result, take on an unwarranted significance for the trial judge when fixing the ultimate sentence imposed: at para. 53; and
The Duncan credit is one of the mitigating factors to be considered: at para. 53.
91In support of the request for an arithmetic approach to be taken with respect to the Duncan credit, Defence Counsel relies on the decision of Boxall J. in R. v. Ahmed, 2021 ONCJ 473. Justice Boxall gave an additional 0.5 days of credit for each day of pre-sentence custody served when COVID was a concern: at p. 12.
92The decision in Ahmed pre-dates the decision in Marshall by one month. The decision in Ahmed is not binding on this court. I would, in any event, follow the guidance from the Court of Appeal in Marshall.
93The Crown relies on the decision of the Ontario Court of Appeal in R. v. Omoragbon, 2020 ONCA 336. At para. 32, the court said, “Enhanced credit for lockdown days is neither an entitlement nor routinely granted upon the filing of institutional records. In the absence of evidence of any adverse effect of the lockdown conditions on the [accused], enhanced credit is not warranted.” Of note, in support of that conclusion, the court relied on Duncan, at paras. 6-7.
94Like the decision in Ahmed, the decision in Omoragbon pre-dates the decision in Marshall. I prefer the reasoning of the Ontario Court of Appeal in R. v. Bristol, 2021 ONCA 599 – a decision which post-dates the decision in Marshall.
95The pre-sentence incarceration period in Bristol did not include any time during the COVID pandemic. Regardless, on the sentence appeal, the court considered institutional records which had not been before the trial judge. The appellant/accused did not lead any evidence at the sentencing hearing of the direct impact that lockdowns had on him.
96At para. 11, in considering whether a Duncan credit was appropriate, the court addressed the lockdown periods:
While the respondent argues that the appellant did not lead any evidence of direct impact on him arising from the lockdowns, we are of the view that some impact is self-evident. Lockdowns involve lack of showers and loss of physical activity. They also mean that prisoners are restricted to their cells for long periods of time. Individual evidence is not required to establish those basic effects which go beyond the difficult and restrictive circumstances offenders often encounter during pretrial custody and which are accounted for by the Summers credit.
97The court ultimately included a Duncan credit for the lockdowns: see Bristol, at para. 12.
98D.B. did not give evidence at the sentencing hearing. There is no evidence from him as to how he was directly affected by the various conditions in which he was incarcerated from October 2017 to the date of his conviction in December 2021.
99I find that it is not necessary for me to parse through the letters from the correctional centres and determine, on a day-to-day basis, the specific conditions in which D.B. was housed. I rely on the passage quoted above from Bristol and find that some impact on D.B. is self-evident.
100In summary, in determining a fit sentence for D.B., I have taken the Duncan credit into consideration as a mitigating factor.
The Summers Credit
101D.B. is entitled to a Summers credit for presentence time served. I calculate the Summers credit to which D.B. is entitled as 1,961 days. That number of days is based on the following calculations:
The total number of days from D.B.’s date of arrest and detention (October 10, 2017) to the date of sentencing (May 12, 2022) is 1,667 (2017 – 74 days; 2018 – 365 days; 2019 – 365 days; 2020 – 366 days; 2021 – 365 days; and 2022 – 132 days).
In March 2018, D.B. was sentenced for a drug offence. The number of days of presentence time applied towards D.B.’s sentence for that offence is 220 (156 days + (2 x 96)/3).
The presentence time for which D.B. is entitled to a credit with respect to the matters now before the court is therefore reduced from 1,667 by 220 to 1,447 days.
102Applying a ratio of 1.5:1 to the 1,447 days of presentence incarceration results in a Summers credit of 2,171 days (1,447 x 1.5 – 1960.5).
Conclusion
103For all of the reasons I have given, I sentence D.B. to a total of 18 years. I shall review how I arrive at that sentence and then deal with the Summers credit.
104I arrive at 18 years after applying the totality principle to what would otherwise arithmetically be a total of 25 years based on the following sentences:
On Count 1, the May 2005 sexual assault of E.I., contrary to s. 271 of the Criminal Code
5 years
On Count 2, the October 2017 attempt to choke E.I. for the purpose of committing sexual assault, contrary to s. 246(a) of the Criminal Code
6 years concurrent to the sentence on Count 4
On Count 4, the October 2017 sexual assault of E.I., contrary to s. 271 of the Criminal Code
6 years consecutive
On Count 10, the 2016 sexual assault of K.J., contrary to s. 271 of the Criminal Code
6 years consecutive
On Count 11, the 2016 attempt to choke K.J. for the purpose of committing sexual assault, contrary to s. 246(a) of the Criminal Code
6 years concurrent to the sentence on Count 10
On Count 12, the September 2016 sexual assault, causing bodily harm, of K.A. contrary to s. 272(2) of the Criminal Code
7 years consecutive
On Count 13, the September 2016 attempt to choke K.A. for the purpose of committing sexual assault, contrary to s. 246(a) of the Criminal Code
7 years concurrent to the sentence on Count 12
On Count 14, the spring summer 2017, by word of mouth, knowingly causing K.A. to receive a threat to cause bodily harm to K.A., contrary to s. 264.1(2) of the Criminal Code
1 year consecutive
105As calculated in the previous section of these reasons, D.B. is entitled to a Summers credit of 1,961 days.
106The 18-year sentence runs from May 2022 to May 2040. In that span of years, there are five leap years (2024, 2028, 2032, 2036 and 2040). The total number of days in that 18-year period is 6,575 ((18 x 365) + 5). From that number of days, I subtract 2,171 and arrive at a total of 4,404 days remaining to be served following the date of conviction.
107The Crown seeks a number of ancillary orders. Defence Counsel takes no issue with the ancillary orders sought. In addition to serving the sentence imposed, D.B. shall be subject to the following ancillary orders:
a) DNA orders in accordance with ss. 487.051(1) & (3);
b) A SOIRA order under ss. 490.012(1) & 490.013(2.1) for life, with the duration based on the fact that D.B. has been convicted of more than one designated offence;
c) A firearms and weapons prohibition for life under s. 109; and
d) An order under s. 743.21 prohibiting D.B. from communicating, directly or indirectly, during the custodial portion of his sentence, with each of E.I., K.A., and D.O.13
108The sentencing hearing is adjourned to May 25, 2022 at 3:00 p.m. The continuation will be a virtual hearing. The continuation is required as a result of time constraints on the day of the sentencing hearing which precluded completion of the warrant of committal prior to D.B. having to be returned to the OCDC. D.B. shall be permitted to appear by telephone or video when the sentencing hearing continues.
Madam Justice Sylvia Corthorn
Released: May 16, 2022
COURT FILE NOS.: 17-RA19540, 18-SA5054 and 18-SA5091
DATE: 22/05/11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
D.B.
sentencing decision
Madam Justice S. Corthorn
Released: May 16, 2022
Footnotes
- See R. v. Duncan, 2016 ONCA 75.
- See R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575.
- Gray report, at p. 17.
- Evidence of E.I., May 16, 2019, at pp. 9-13, 16.
- Evidence of K.A., May 21, 2019, at pp. 13-16.
- Evidence of K.J., August 27, 2019, at p. 20.
- Gray report, at p. 11.
- Gray report, at p. 27.
- Ibid.
- Gray report, at p. 28.
- Ibid.
- Ibid.
- D.O. is the complainant with respect to charges of which D.B. was acquitted. D.O. is D.B.’s spouse. As noted in the substantive text, Defence Counsel does not take issue with the inclusion of D.O. in the final term of the ancillary orders.