COURT FILE NO: CR-20-40000282-0000 DATE: 20240223 SUPERIOR COURT OF JUSTICE - ONTARIO

BETWEEN:

HIS MAJESTY THE KING – and – ZHUXI XI SHEN Defendant

COUNSEL: Daniel DeSantis, for the Crown Peter Thorning, for the Defendant, Zhuxi Xi Shen

HEARD: February 7, 2024

RESTRICTION ON PUBLICATION

By court order made under subsection 486.4(1) of the Criminal Code, any information that may identify the person described in these Reasons as the complainant may not be published, broadcasted, or transmitted in any manner.

REASONS FOR SENTENCE N. J. Spies J.

Overview

[1] Mr. Shen was tried before me, without a jury, on a single count of sexual assault. On May 23, 2023, I convicted Mr. Shen, see R. v. Shen, 2023 ONSC 2943 (“Judgment”). I found that Mr. Shen had sexually assaulted the complainant twice; first that he engaged in vaginal intercourse with the complainant while she was incapacitated and second, after she awoke, he forced her to have vaginal intercourse a second time without her consent. His original sentencing hearing was adjourned to permit his new counsel to bring a mistrial application which I dismissed on November 27, 2023: see R. v. Shen, 2023 ONSC 6692. He is now before me for sentencing.

The Facts

Circumstances of the Offence

[2] My detailed findings in support of Mr. Shen’s conviction for sexual assault are set out in my Judgment. I will set out a summary here as I must make some findings of fact because of the submissions of the Crown as to Mr. Shen’s intentions when he brought the complainant to the Westin Prince Hotel (“Westin”) in advance of the actual sexual assaults.

[3] The complainant spent time with Mr. Shen during the evening of September 14, 2019, and into the early morning hours of September 15, 2019, at the Rebel Nightclub drinking and dancing. The complainant was 23 and Mr. Shen was about to turn 21. They had met at this night club on one prior occasion. I found based on my observations of surveillance evidence taken from inside and outside the club that at least as of 2:43 am the complainant appeared to be intoxicated and when she left the club with Mr. Shen at about 2:52 am, her state of intoxication was even more apparent. They left in Mr. Shen’s Rolls Royce with a man who I referred to as an “Unknown Male” in my Judgment and a female in the car.

[4] Mr. Shen, the Unknown Male, and the complainant arrived at the Westin where Mr. Shen had rented a hotel room at about 4:40 a.m.; about one-and-a-half hours after they left the Rebel Nightclub. I found that this was because Mr. Shen had tried to find a room at a couple of other hotels first, but they were fully booked because of the Toronto Film Festival. I found that if there was any doubt about the complainant’s state of intoxication when they left the Rebel Nightclub, the fact that the complainant lacked capacity and was unconscious was obvious from the videos taken outside and inside the Westin lobby which showed the condition of the complainant and how Mr. Shen and the Unknown Male took her out of the car and carried her to the hotel entrance and then across the lobby to the elevator.

[5] Within minutes of Mr. Shen and the Unknown Male going up in the elevator with the complainant, the Unknown Male came back down the elevator and left the hotel leaving Mr. Shen alone with the complainant. I set out in my Judgment that I found that Mr. Shen engaged in vaginal intercourse with the complainant while she was obviously unconscious and incapable of consenting to any sexual activity. I also found that later in the morning, after the complainant woke up and got dressed to leave the Westin that Mr. Shen sexually assaulted her again.

[6] Although I made no specific finding in my Judgment, based on my findings of fact set out in the Judgment, I am satisfied that certainly by the time Mr. Shen left the Rebel Nightclub with the complainant or shortly thereafter, he planned on taking her to a hotel where he could rent a room and be alone with her for the purpose of engaging in sexual intercourse. It would have been obvious to him that she was in a vulnerable state and lacked capacity to consent to any form of sexual activity. For these reasons I am satisfied that the sexual assaults of the complainant were premeditated by Mr. Shen over a considerable period of time. There was no suggestion that he was under the influence of alcohol and the fact that he enlisted the help of the Unknown Male to commit the offence is even more troubling.

Circumstances of Mr. Shen

[7] I received a Pre-Sentence Report (“PSR”) for Mr. Shen dated June 29, 2023. The author of the PSR interviewed Mr. Shen and his friend and business partner, Ryan Ke. He was not able to interview Mr. Ke’s mother, who was Mr. Shen’s surety when he was on bail. However, I have some evidence from her as counsel agreed that I could consider the evidence of Mr. Shen and his proposed sureties that was given in support of his bail review application brought before me: R. v. Shen, 2023 ONSC 4977, to the extent it is relevant to sentencing.

[8] Mr. Shen is now 25 years old. He was about to turn 21 at the time of the offence. He has no criminal record or outstanding charges. Mr. Shen was born in China where his parents still live. He came to Canada in January 2015 when he was 16 years old, as a high school student. He lived with a Homestay family for one semester and then for Grade 12 he rented his own condominium with financial help from his parents, which he shared with a classmate. After he completed high school, Mr. Shen attended the University of Toronto and received his bachelor's degree in media and economics, graduating in June 2022.

[9] Mr. Shen told the author of the PSR that his childhood was good, but his parents were strict. His mother is a police officer, his father is a government official, working for an internal affairs bureau, and his grandfather was a Chief Prosecutor for the Government of China. Mr. Shen has a good relationship with his parents, and they continue to support him and help him financially. Mr. Shen has no siblings and is single, never married and has no children. He reported three prior significant relationships to the author of the PSR.

[10] At the time of the offence, Mr. Shen was on a student Visa. He is now on an open post-graduate work permit/Visa which permits him to take any job in Canada.

[11] Before his conviction, Mr. Shen was residing in Markham, Ontario with his surety, Yi Qing (aka Shirley) Chen, whom he described as a mother figure. She cooked for him and chastised him just as she does her son Ryan who is also 25 years old. As already stated, Mr. Shen told the author of the PSR that Ryan Ke is not only a friend but also his business partner. At the bail hearing Mr. Shen testified that he is also close to Ms. Chen’s two younger children whom he treats like siblings. Ms. Chen came to Canada more than 20 years ago. She is a Canadian citizen and has been married for 26 years. She has known Mr. Shen for about five or six years, and she knows his parents. At the bail hearing Zi Yi (aka Andy) Zhou, aged 33 years old and a friend of Mr. Shen, was also proposed as a surety.

[12] In March 2018, Mr. Shen’s parents gave him some money so that he could start his own bubble tea business. He sold the business in June or July of 2019. After he sold the business, he went to visit his parents in China and upon his return the current incident before the Court happened and he was arrested.

[13] Since November 2020, Mr. Shen testified that he has been operating an export car business and since December 2022, he and his partner, started a media company doing shows and concerts in Toronto. Ms. Chen gave evidence at the bail review hearing that Mr. Shen and her son Ryan worked for her company; Vin Media, located in Toronto, until Mr. Shen was detained. She testified that Vin Media is a very new business and arranges concerts and advertisements. I assume this is the media company Mr. Shen was referring to.

[14] According to the PSR there are no substance abuse concerns. Mr. Shen told the author of the PSR that he does not use drugs. He does drink socially with his friends but does not drink to the point of intoxication. His friend Mr. Ke confirmed this.

[15] The author of the PSR reported that Mr. Shen was co-operative and forthcoming with information for the purpose of the report but that he “fails or refuses to accept responsibility for the current offence before the court citing his innocence. He has indicated that he plans on appealing his conviction and sentence”. The author of the PSR went on to report that Mr. Shen appeared to lack insight into his behaviour, but I will have no regard to that as this opinion appears to be based on the fact that Mr. Shen is maintaining his innocence which he has the obvious right to do. I do have some concern about the author’s statement that Mr. Shen “engaged in smearing the victim's character stating that she was cheating on her boyfriend,” but I will ignore this comment as well as it appears to be related to the reason Mr. Shen professes his innocence.

[16] Mr. Ke has known Mr. Shen for the past seven years. He described Mr. Shen as reliable especially when it comes to business. Mr. Ke said that there have been no problems in the home and that Mr. Shen has been helpful with the chores and with Mr. Ke's younger brother and sister. They treat Mr. Shen like a part of their family.

Circumstances of the Complainant

[17] Following the assaults, the complainant went to the hospital and was examined as part of the preparation of a sexual assault kit. She also gave a statement to police, testified at the preliminary inquiry and at both the first jury trial that resulted in a hung jury and then the trial before me where at times she was visibly upset. The complainant provided a written Victim Impact Statement (“VIS”). In it is she reports that seeing the video taken by Mr. Shen on his cell phone after the first trial brought her healing back to zero. I also observed that it was very difficult for her to watch the other video evidence from the Rebel Nightclub and the Westin during the trial before me.

[18] The complainant was a college/university student at the time of the offence. She was at the Rebel Nightclub with a girlfriend. Her boyfriend who also testified at the trial, has known her since 2015 and they started living together in 2016. He testified about his observations of the complainant in the days after he saw her following the offence until he took her to the police station to report the offence. She was clearly very troubled by what had happened.

[19] The complainant’s VIS shows that this sexual assault has had a profound impact on her and has forever changed her life. The fact that the complainant no longer feels safe outside her residence permeates the entire VIS. She reports that over the past years she experiences symptoms of Post-Traumatic Stress Disorder (“PTSD”) and that her life has become a “prolonged living nightmare”, as she experiences anxiety attacks, nightmares and she does not feel safe in public places. As a result, the offence has affected every aspect of her life. I do not know if the complainant has been formally diagnosed with PTSD, but I accept her account of the symptoms she experiences.

[20] The complainant states in her VIS that:

From the optimistic, bright, and trustful point of view it switched to the darkest, terrifying, and unsafe place. My life has turned from top to bottom. In my experience the crime of sexual nature has tremendous effect on human being, and I believe the aftermath of it is the permanent one. Not only it affected my sense of safety, self-expression, self-worth and image, the harmful experience I had to live through made me question the existence itself.

[21] The complainant is from Russia, where the rest of her family lives. She states that this made it especially hard to deal with and heal from this event. She reports having a hard time retaining her interest in life and her focus now is her safety and mental well-being. She became distant with her partner, close friends and family and feels disconnected from her social world. She was not able to work because of her fear and had to take an unplanned year off from her university studies because she was experiencing post-traumatic symptoms and was having panic attacks on campus and felt unsafe attending lectures. She still cannot go outside unaccompanied past sunset.

[22] In my Judgment I set out the observations of the sexual assault nurse with respect to the injury to the entire area of the complainant’s clitoris. In her VIS the complainant reports that this injury left permanent scarring and she testified that after the sexual assault it was difficult for her to walk properly for a time. She also states that she had to go through countless medication treatments in order to protect herself from transmitted diseases. The complainant found this period of time extremely stressful as it reminded her of the crime that happened to her.

Legal Parameters

[23] The conviction for sexual assault carries a maximum sentence of ten years. There is no minimum sentence.

Position of Counsel

[24] The Crown seeks a custodial sentence of five years less credit for pre-sentence custody. The Crown additionally seeks four ancillary orders:

a) a mandatory weapons prohibition order for a period of 10 years, pursuant to s. 109(1) of the Criminal Code,

b) a mandatory DNA order in Form 5.03, pursuant to s. 487.051(1) of the Criminal Code,

c) an order pursuant to s. 490.012 of the Criminal Code requiring Mr. Shen to comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10 for a period of 20 years, and

d) an order pursuant to s. 743.21 of the Criminal Code prohibiting Mr. Shen from communicating directly or indirectly with the complainant during the period while Mr. Shen is in custody.

[25] Mr. Thorning took no issue with the ancillary orders requested by the Crown, but it is his position that the appropriate sentence in this case is three years less credit for pre-sentence custody. As I will come to, Mr. Thorning submitted that the credit should be significant and in effect reduce a three-year sentence to time served. Mr. DeSantis submitted that in addition to the Summers credit, any additional credit should be no more than three months. Since there is a dispute as to the impact on Mr. Shen of the terms of release and the conditions while in custody, the onus is on Mr. Shen to establish the facts he relies upon on a balance of probabilities in accordance with s. 724(3) of the Criminal Code.

Principles of Sentencing

[26] The fundamental purpose of sentencing, as set out in s. 718 of the Criminal Code, is to ensure respect for the law and the maintenance of a just, peaceful, and safe society. The imposition of just sanctions requires me to consider the sentencing objectives referred to in that section and aim to achieve same with the sentence I impose. The objectives are denunciation, specific and general deterrence, separation of offenders from society when necessary, rehabilitation, reparation for harm done and the promotion of a sense of responsibility in offenders and acknowledgment of the harm which criminal activity brings to our community. In addition, in imposing sentence I must consider the principle of proportionality and the applicable aggravating and mitigating circumstances relating to the offence as set out in s. 718.2 of the Criminal Code.

[27] As the Supreme Court of Canada instructed in R. v. Parranto, 2021 SCC 46, at para. 10, proportionality is the organizing principle in reaching the goal of a fair, fit and principled sanction for a specific case; the principles of parity and individualization, while important, are secondary principles. As Fairbairn A.C.J.O., speaking for the court stated in a recent decision of the Court of Appeal, R. v. K. (A.J.), 2022 ONCA 487, 162 O.R. (3d) 721 at para. 81, the principle of parity is a tool that helps calibrate proportionate sentences because, at its core, parity is about treating similar offenders who commit similar offences in similar circumstances in a similar way by reference to sentences that have been imposed in other cases. She continued at para. 82 to refer to the principle of individualization as another tool designed to help calibrate proportionate sentences in that it demands focus upon the individual circumstances of each offender.

[28] In this case, I must consider the fact that Mr. Shen is a youthful offender. He was only 20, almost 21 at the time he committed this offence. The Court of Appeal for Ontario in R. v. Priest, [1996] O.J. No. 3369 considered a case of a young first offender and stated at para. 17 that: “[t]he primary objectives in sentencing a first offender are individual deterrence and rehabilitation”. The court went on to say at para. 23, that: “… it is a well-established principle of sentencing laid down by this court that a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence”. [Emphasis added].

[29] However, the Court of Appeal has also recognized that an exception to the general rule is provided for serious crimes of violence, particularly sexual assaults. In R. v. Thurairajah, 2008 ONCA 91, 89 O.R. (3d) 99, at para. 41, Doherty J.A. held that, "[w]hile all of the principles of sentences remain important, including rehabilitation, for serious crimes involving significant personal violence, the objectives of denunciation and general deterrence gain prominence."

Sentencing Cases

[30] Mr. DeSantis relies on the recent decision of the Court of Appeal, R. v. K. (A.J.), supra. Fairbairn A.C.J.O., speaking for the court resolved the issue that had been created by what is referred to as the “Smith range” and the cases that followed the Court of Appeal’s decision in R. v. Bradley, 2008 ONCA 179, [2008] O.J. No. 955, 234 O.A.C. 363, which is often cited as support for a three-to-five-year sentencing range involving the sexual assault of non-intimate partners. At para. 77 Justice Fairbairn stated:

Absent some highly mitigating factor, the forced penetration of another person will typically attract a sentence of at least three years in the penitentiary. While Bradley and the cases following it suggest that the range is three to five years, this is of course just a range, a quantitative sentencing tool designed to assist busy trial judges with where to start: Parranto, at paras. 15-17. Accordingly, there will be circumstances where a departure from the range, either above or below the range, is entirely appropriate. [Emphasis added]

[31] In addition, at paras. 74-55, a few principles to be kept in mind as I consider a fit sentence for Mr. Shen were set out by Justice Fairbairn:

All sexual assaults are serious acts of violence. They reflect the wrongful exploitation of the victim whose personal autonomy, sexual integrity, and dignity is harmfully impacted while being treated as nothing more than an object. …

As the years pass, enlightenment on the implications of sexual violence continues to permeate our conscious minds. In Friesen, the court noted, at para. 118, that “our understanding of the profound physical and psychological harm that all victims of sexual assault experience has deepened” and, I would add, is continuing to deepen … As Moldaver J. stated in R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 1: “Without a doubt, eliminating ... sexual violence against women is one of the more pressing challenges we face as a society” and “we can — and must — do better” (emphasis in original). This comment encapsulates why these sentencing ranges as they have come to be understood must be reconciled.

[32] Mr. Thorning referred to R. v. Ghadghoni, 2020 ONCA 24, [2020] OJ No 169 but that decision was decided before K. (A.J.). and more significantly applied the Smith range. Furthermore, although the factual circumstances of the offence are similar, on appeal the trial judge was found to have erred in finding that the offender had methodically planned the sexual assault. Furthermore, the offender was found to have severe cognitive deficits. For these reasons this decision is distinguishable from the case at bar and not of assistance.

[33] Mr. Thorning also referred to my sentencing decision in R. v. McCaw, 2019 ONSC 3906 (S.C.J.), [2019] O.J. No. 3475. That case involved a single incident of vaginal intercourse while the complainant was sleeping. I sentenced Mr. McCaw to 40 months. In that case I found that although Mr. McCaw was suffering from a serious drug and alcohol problem, I did not accept his evidence that he had consumed GHB and found that he had only consumed a modest amount of alcohol and marijuana. I found that as a result that he made a deliberate decision to take advantage of the complainant’s vulnerable state and the degree of his moral blameworthiness was high. However, it is significant that Mr. McCaw took advantage of an opportunity that presented itself, unlike Mr. Shen who spent a considerable amount of time trying to find a hotel where he could sexually assault the complainant. I also found that Mr. McCaw had expressed what I believed to be genuine remorse for his actions and the harm that they caused the complainant and others and he apologized to the complainant for his actions. This had a significant impact on his sentence.

Determination of a Fit Sentence

[34] I find that the mitigating factors in this case are as follows:

(a) Mr. Shen has no criminal record; this is his first offence,

(b) Mr. Shen has no outstanding charges,

(c) Mr. Shen complied with all the terms of his bail over a lengthy period of time without any allegations of breach,

(d) Mr. Shen is a youthful offender as he was 20, turning 21 at the time,

(e) Although his parents live in China, Mr. Shen is pro-social and has strong support from Ms. Chen who he thinks of as a mother, and he has the support of friends. His parents in China continue to support him as well,

(f) Mr. Shen completed a university degree while on bail, and

(g) Mr. Shen has a history of maintaining employment or operating a business starting while he was in university which continued while he was on bail when he started two different businesses despite some difficulties imposed by the terms of his bail.

[35] Clearly Mr. Shen cannot be penalized for insisting on his right to a trial, but he does not get the benefit of a reduced sentence because of a guilty plea. In addition, because he does not admit that the sexual assaults occurred, which is his right, I have no evidence that he has any insight into his behaviour or that he feels any remorse. I accept, however, that these are neutral factors but again as a result, Mr. Shen does not get the benefit of a reduced sentence for these reasons.

[36] I find that the aggravating factors are as follows:

(a) Mr. Shen knew that the complainant was vulnerable because she was extremely intoxicated, and he took advantage of that vulnerability, knowing that she was not in a position to protect herself,

(b) the sexual assaults of the complainant were premeditated and planned by Mr. Shen over a period of close to two hours, from shortly after he put her into his car when they left the Rebel Nightclub at 2:52 am until they arrived at the Westin at 4:40 am,

(c) there was no suggestion that Mr. Shen was under the influence of alcohol and so he was fully aware of what he was doing. His degree of moral blameworthiness is high,

(d) the fact that Mr. Shen enlisted the help of the Unknown Male, presumably a friend, to commit the offence is even more troubling,

(e) Mr. Shen knew and was relying on the fact that the complainant was passed out and essentially unconscious while he sexually assaulted her the first time. He treated her as nothing more than an object,

(f) Mr. Shen had unprotected vaginal intercourse with the complainant twice. He ejaculated inside her at least once, exposing her to the risks of pregnancy and sexually transmitted diseases. There is no evidence that either possible consequence occurred, but the risks were serious, causing further distress to the complainant,

(g) Mr. Shen took video and photos of the complainant when she was naked and shared one of them with someone, and

(h) The impact on the complainant from this sexual assault as I have summarized has been significant. She suffered physical and profound psychological harm and I have no doubt that she will feel the impact of this sexual assault for the rest of her life. As Cory J. stated for the Supreme Court of Canada in R. v. McGraw, [1991] 3 S.C.R. 72 at p. 83, "the psychological trauma suffered by rape victims has been well documented. It involves symptoms of depression, sleeplessness, a sense of defilement, the loss of sexual desire, fear and distrust of others, strong feelings of guilt, shame, and loss of self-esteem. It is a crime committed against women which has a dramatic, traumatic impact. ..." .

[37] I turn then to what is an appropriate sentence in this case. There is no doubt now that the range of sentence for this type of behaviour has been established by the Court of Appeal in K. (A.J.), supra as being at least three years in the penitentiary, absent some highly mitigating factors. I appreciate, however, that this is a guideline and does not mean that three years is akin to a minimum sentence. Sentences outside this range may be fit, depending on the circumstances. The sentencing of an offender is a highly individualized exercise. That said, in this case there are no highly mitigating factors that, in my view, would take this case out of the range set out by the Court of Appeal as a guideline for sentencing judges.

[38] Given Mr. Shen took advantage of a vulnerable young woman and committed two very serious sexual assaults with unprotected vaginal intercourse, that were premeditated and planned, and considering all the other aggravating factors, notwithstanding the mitigating factors I have set out, there is a need for a strong denunciatory sentence. I must ensure that there is a strong message of general deterrence to express society’s abhorrence of this despicable conduct by Mr. Shen of taking advantage of a young woman who was too inebriated to take care of herself. The complainant was passed out and incapable of even knowing when it began that he was sexually assaulting her the first time. Mr. Shen then committed a second sexual assault after she woke up, knowing that she had not consented to sexual intercourse.

[39] As for specific deterrence, I really have no way to determine if that is a concern given Mr. Shen does not accept that the sexual assaults occurred. However, I appreciate that Mr. Shen has no criminal record and no outstanding charges. Mr. Shen was very young at the time and no doubt he has matured, and so I do conclude that there is a prospect of rehabilitation.

[40] In my view, the starting point suggested by Mr. Thorning of a three-year sentence would be manifestly unfit in these circumstances. The sentence proposed by Mr. DeSantis, however, is reasonable. Considering all the aggravating and mitigating factors, I have concluded that a fit sentence for Mr. Shen is four-and-one-half years before any further mitigation because of the credits for the conditions of pre-sentence custody claimed by Mr. Thorning.

Pre-Sentence Custody (“PSC”) Calculation

Summers Credit

[41] Counsel agree on the total time that Mr. Shen has been incarcerated and that it should be enhanced at the rate of 1.5:1 established in R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575 given that every day served in pre-trial custody does not count towards parole eligibility. By today’s date, Mr. Shen has spent 311 days in custody, which is composed of 35 days following his arrest on September 19, 2019, and 276 days since his bail was revoked on May 23, 2023. As a result, the total Summers credit is 466.5 days or 467 days which shall be credited against his sentence.

Downes Credit

[42] As already stated, counsel do not agree on what credit Mr. Shen should receive in accordance with the principles in R. v. Downes, [2006] O.J. No. 555 (Ont. C.A.) for the period of time he was out of custody on house arrest and subject to other conditions as a component of his bail. Mr. Thorning submitted that for the 225 days on house arrest Mr. Shen should receive an additional credit of .2 to .5 days, which would be a further credit of 45 to 112.5 days. He did not specify a particular credit for the 1094 days on curfew: a period of three years. Mr. DeSantis submitted that Mr. Shen was still able to complete his degree and work on his businesses and so any Downes credit should be no more than one month.

[43] There is no formula for calculating the appropriate credit to be given; rather, the amount of credit will depend on the length of time spent on house arrest bail, the stringency of the conditions, the impact on the offender’s liberty and the ability of the offender to carry on normal relationships, employment, and activities while subject to house arrest bail; Downes, at para. 37.

[44] The law regarding Downes credits was summarized in Court of Appeal in R. v. Joseph, 2020 ONCA 733, 153 O.R. (3d) 145 where the court set out a number of principles to be considered when a Downes credit is sought, at paras. 107-108 including:

1. the focus of the Downes credit inquiry is to be based on how punitive the bail conditions were, not how necessary they were,

2. although it is not uncommon to speak of providing "credit" for stringent bail conditions, pre-trial bail is conceptually a mitigating factor in assessing a fit sentence, and,

3. the criteria to be considered in assessing the weight of the mitigation to be given therefore include the amount of time spent on bail conditions; the stringency of those conditions; their impact on the offender's liberty; and the ability of the offender to carry on normal relationships, employment and activity. [Emphasis added]

[45] At para. 114 the court in Joseph stated: “The relevant inquiry is whether bail conditions were punitive enough to be akin to punishment, thereby warranting mitigation. Focus should therefore be on the effect of the conditions.” [Emphasis added].

[46] Mr. Thorning provided a summary of the bail conditions that Mr. Shen was subject to for the 1319 days while he was out of custody. Mr. Shen also testified as to how the terms of release impacted him.

[47] At the time of his arrest, Mr. Shen was facing another sexual assault charge from 2018. He had been released on that charge on a promise to appear. That charge was withdrawn some time before June 9, 2020. For the period of October 24, 2019 to June 9, 2020, a period of 225 days, Mr. Shen was subject to some form of house arrest and GPS monitoring. For the first 40 days he could be outside of the residence with one of his two sureties, but he had to be always in the presence of one of his two sureties, even when inside the residence.

[48] Mr. Shen testified that during this period he went to the surety’s workplace. Based on his evidence during this period and the period that followed, Mr. Shen was able to take online classes at the University of Toronto. He finished his courses in April 2022 and he graduated in June 2022. Mr. Shen testified that he had to take online courses only, because of the terms of his bail but he did not testify that there were in-person courses available or that he otherwise would have taken an in-person course. When Mr. Shen was attending university, he was allowed to work 20 hours per week and 40 hours per week in the summertime. He did not give any evidence, however, that he ever took advantage of this save for operating a bubble tea business which he sold before he was arrested. I therefore cannot conclude that while he was subject to house arrest that he lost any income.

[49] A third surety and a second residence were added on December 3, 2019 and a couple of months later, on February 5, 2020, the Crown consented to a variation that meant Mr. Shen no longer had to be in the presence of a surety inside one of the two residences. Outside he had to be in the company of a surety.

[50] The COVID pandemic and lockdowns began in or about March 2020 and I will consider how this would have likely impacted Mr. Shen even if he had not been on bail in determining the impact of his bail conditions.

[51] Starting June 9, 2020, Mr. Shen was still subject to GPS monitoring, but he was no longer subject to house arrest, only a curfew from 6 p.m. to 9 a.m. This lasted the next 195 days when on December 21, 2020, he was no longer subject to GPS monitoring and the curfew period was reduced by two hours and the number of sureties was reduced to one. Mr. Shen testified that he no longer had to live with his surety provided his surety approved of the address.

[52] In November 2020, Mr. Shen testified that he started a used car export business. He had buyers overseas who would provide him with the specific used car that they wanted to purchase. Mr. Shen testified that he would go to dealerships and buy the car, pay HST and physically pick up the car and drop it off at a warehouse for shipment to the customer. The cars would generally go into a container and be taken by train to Vancouver. Mr. Shen testified that the 6:00 p.m. curfew did impact him because he would need to be back in the residence by that time. He testified that it meant that he missed a lot of opportunities because he could not go to other cities to pick up used cars. He could only travel about two to three hours away from where he lived. Mr. Shen testified that he was the main person in the business and that he preferred to go and personally look at a car. Ms. Chen and sometimes her son, namely Mr. Ke, would help him with this business but he explained why he could not ask Ms. Chen to help him by going out of town. He was not asked why Mr. Ke could not have helped him. Even with their help Mr. Shen testified that he still lost a “lot of opportunities”. He estimated the impact to be 30 to 40 percent in the operation of his business but he did not quantify that in economic terms. I do not know if that was a reference to gross or net profit and no particulars or financial statements were produced to substantiate this.

[53] A further consent bail variation on April 30, 2021, permitted Mr. Shen to be out with his surety during curfew and a further consent variation on January 20, 2022, permitted an exception to Mr. Shen’s curfew so that he could travel within Canada. Mr. Shen testified that he did take advantage of this variation to travel for work, I presume initially for his used car export business.

[54] In December 2022 or the beginning of 2023, Mr. Shen and his partner Mr. Ke, started the media company I referred to, which as I have explained seems to be owned by his former surety Ms. Chen. In fact, Mr. Shen testified that Ms. Chen helped him with this business. Mr. Shen testified that this business is to bring Asian artists to Canada for concerts and that they were also starting to film commercials for local restaurants. For concerts, Mr. Shen testified that he would have to attend the concert as he was the one who signed the contract. He would talk to the agent oversees, find a venue, usually in Toronto and Vancouver and book a date. Closer to the date he would arrange hotels for the crew. He would need to set up lighting for the venue. He would pick up the crew and artist from the airport and take care of their needs from the time they arrived in Canada to the time they left. Mr. Shen testified that his bail conditions affected his media business a lot since he had to be with the artist and crew from the time they arrived in Canada to when they left. This was not a problem during the day, but at night he would need to have a surety or delegate to work with him because of his curfew. However, I presume Mr. Ke, his business partner was also available to help for this purpose. Again, any adverse impact on the business was not quantified.

[55] Finally on March 8, 2023, a consent variation reduced Mr. Shen’s curfew from 8 p.m. to 10:30 p.m.

[56] Mr. Thorning provided a number of decisions where the Downes credit for house arrest ranged from 20% - 30% and there were cases where the percentage was higher. I am also aware of cases where little or no credit was given, see for example the comments of MacPherson J. A. in R. v. Lindsay, 2009 ONCA 532 at para. 45. I reviewed each of these cases, but they all depended on their own facts, especially the impact on the offender. As for the time on curfew, I reviewed R. v. Dodman, [2021] O.J. No. 4065, (Ont. C.A.) and of course Downes.

[57] I do not propose to engage in a mathematical calculation as argued by counsel. Instead, as directed by the court in Joseph, I will consider the evidence and make findings in order to determine if and to what extent the conditions of Mr. Shen’s bail should be a mitigating factor in determining his sentence:

a) During the period of house arrest, the impact of the additional term that when Mr. Shen was in the residence that a surety also had to be present would have primarily impacted his surety, not Mr. Shen. If this meant, as he said, that he had to go to work with his surety, he was still able to work on his degree.

b) Mr. Shen was able to use the time on house arrest to complete his degree and he has not satisfied me that there was any adverse impact on his ability to do so while he was under house arrest. I have already used this accomplishment as a mitigating factor in terms of his prospect of rehabilitation.

c) Mr. Shen had not provided any evidence of any impact on possible employment or that he would have wanted to work in addition to completing his degree during the period of house arrest.

d) As Mr. DeSantis submitted, the fact that the Covid pandemic started causing lockdowns in March 2020 diminished any adverse impact of the house arrest terms of release on Mr. Shen for the last period of house arrest from March 2020 until June 9, 2020.

e) Mr. Shen did not testify to any specific impact on him in terms of socializing and seeing friends, during the period while he was on curfew. I accept there would have been some impact but, in my view, given the pandemic, it would have been minimal for a period of time in 2020 and into 2021.

f) Once Mr. Shen started his used car export business in November 2020, I accept that the curfew had some impact but after January 20, 2022, any adverse impact on that business and the media company he began or joined in December 2022 was minimal as his period of daily curfew was reduced and he was able to travel within Canada. I do not have any evidence of any specific economic loss for either business. The fact remains that Mr. Shen was able to start these businesses while subject to curfew terms, which I have already considered as a mitigating factor in terms of his prospect of rehabilitation.

Duncan Credit

[58] Mr. Thorning requested that this Court also grant Mr. Shen a pre-sentence credit because of harsh conditions while he was serving his pre-sentence custody in both the Toronto South Detention Centre (“TSDC”) and the Toronto East Detention Centre (“TEDC”). In particular, he submitted that for the 49 lockdown days while Mr. Shen was at the TSDC, I should give Mr. Shen a credit of 2:1 instead of 1.5:1 for those days. In addition, he argued that the way Mr. Shen was treated at the TEDC in terms of triple bunking, his inability to contact family or counsel and the way he was treated when he began to suffer appendicitis warrants an additional significant credit. With respect to the TSDC, Mr. DeSantis agreed that I could consider a credit for the lockdown days, but he submitted that if Mr. Shen was unhappy in the unit he was in, as I will come to, he could have asked to go to the general population. Mr. DeSantis submitted that the total Duncan credit should be in the range of two months.

[59] What is referred to as a “Duncan Credit” is based on R. v. Duncan, 2016 ONCA 754, which was overhauled in the decision from the Court of Appeal in R. v. Marshall, 2021 ONCA 344. In Marshall, Doherty J.A. pointed out, at para. 50, that the Summers credit “already takes into account the difficult and restrictive circumstances offenders often encounter during pretrial custody” and that the purpose of the Duncan credit is to address “exceptionally punitive conditions which go well beyond the normal restrictions associated with pretrial custody,” [emphasis added]. In that paragraph, Doherty J.A. noted that “[t]he very restrictive conditions in the jails and the health risks brought on by COVID-19 are a good example of the kind of circumstance that may give rise to a ‘Duncan’ credit”.

[60] However, contrary to the past practice on sentencing that had developed to this point with respect to the Duncan credit, Justice Doherty, at paras. 52-53, made it clear that:

The “Duncan” credit is not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken into account in determining the appropriate sentence. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence from which the “Summers” credit will be deducted. 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.

Often times, a specific number of days or months are given as “Duncan” credit. While this quantification is not necessarily inappropriate, it may skew the calculation of the ultimate sentence. By quantifying the “Duncan” credit, only one of presumably several relevant factors, there is a risk the "Duncan" credit will be improperly treated as a deduction from the appropriate sentence in the same way as the “Summers” credit. If treated in that way, the “Duncan” credit can take on an unwarranted significance in fixing the ultimate sentence imposed ... [Emphasis added.]

[61] I conclude from Marshall that I should consider any Duncan credit as one of the mitigating factors in determining an appropriate sentence but that it cannot justify the imposition of a sentence which is inappropriate, having regard to all the relevant mitigating and aggravating factors. Furthermore, the calculation of a specific number of days or months is discouraged. For this reason, although I will consider the lockdown records and the evidence of Mr. Shen, I do not intend to specify an exact number of days of credit for the conditions he experienced while in custody. I have, however, considered the following evidence in mitigating Mr. Shen’s sentence.

(a) TSDC

[62] When Mr. Shen was first incarcerated at the time of his arrest, he was sent to the TSDC. While he was in the intake range, he asked to go to into the protective custody range because he considers the general population more dangerous. This worked well for him at that time. Based on this experience, when Mr. Shen first arrived back at the TSDC following his conviction he wanted to go into protective custody again. However, this time, he was sent to the behavioural management unit (“BMU”) which is for people who have had misconducts while in custody. This was a mistake and Mr. Shen kept asking to be sent to the protective custody range, but despite two or three requests he never heard back. He was at the TSDC for less than one-and-one-half months and was not transferred to the range he had requested until one week prior to his transfer to the TEDC.

[63] Based on the records provided, Mr. Shen experienced a partial lockdown noted as “Partial 8-10” or “Partial at 8” on 31 days. All but one of those was because of staff shortages. He experienced a further 18 lockdowns referred to as “isolation” or “COVID droplet protocols”. Mr. Shen testified that a partial lockdown from eight to 10 is meant to be two hours long, but Mr. Shen testified that even on those days he experienced more than a two-hour lockdown. He said that if the lockdown was for a full day, he would be in his cell for 24 hours and not out for even one second to make a call. Mr. Shen, however, did not testify to ever experiencing a full lockdown and none are noted in the records provided unless they were part of the Covid lockdowns. Mr. Shen testified that when he was in the intake range, he had to stay there for an additional seven days because someone in the general population there got COVID, and during that time he would only have 20-30 minutes a day to shower and have time to call family or his lawyer. I assume that is what occurred during the other Covid isolation periods.

[64] In the BMU Mr. Shen testified that he would only get 30 minutes for showers and phone calls per day and was only out one or two days a week for four hours unlike the range he had asked to be on. He described it as pretty much a “lockdown range”. He said that the general population inmates were given priority, and they would take most of the time available to be outside their cells. The time left for him was typically 30 minutes. I take from this evidence that Mr. Shen did go out on the range, but I accept that in that unit he had less yard time. Mr. Shen admitted that in the BMU he did not feel he was in danger, and that he could have asked to go the general population unit.

[65] Mr. Shen described one occasion where he dislocated his right shoulder while he was at the TSDC. The guards thought he was pretending even though he was screaming from pain. After five or 10 minutes, nurses came and then a doctor and he was taken to a hospital.

[66] None of the lockdowns were related to Mr. Shen’s behaviour. They were caused by staff shortages at the TSDC or a Covid outbreak. Although I can understand that isolation protocols were needed due to Covid, this is one factor specifically mentioned in Marshall. Furthermore, this Court has said on numerous occasions that lockdowns due to staff shortages are not acceptable. This has been going on at the TSDC for too long.

(b) TEDC

[67] Mr. Shen testified that around July 15, 2023, he was sent to the TEDC. When he was at the TEDC there were fewer lockdowns. His main complaint is how he was treated medically for appendicitis, which I will come to. In addition, he complains about triple bunking and difficulty in seeing Mr. Thorning.

[68] Mr. Shen testified that for one-and-a-half months while at the TEDC he was the third person in the cell and was sleeping on the floor. This is totally unacceptable as the cells are small and he would have been forced to sleep close to the one toilet in the cell. Mr. Shen also testified that he had difficulty contacting counsel through the video system. He described various reasons for the problem and testified that he filed three formal complaints about this but never heard anything back. For five visits that Mr. Thorning arranged for either video or to see him in person, he was only able to speak to Mr. Shen twice.

[69] With respect to the most serious issue, the evidence in summary is as follows. On December 19, 2023, between 3:00 and 4:00 a.m. Mr. Shen testified that he started to experience severe pain in his abdomen which turned out to be due to appendicitis. He said that on a scale of one to 10 his pain was at a 10 and he was losing consciousness while lying on the floor of his cell. His screaming woke up the whole range. His cell mate was a pharmacist and gave him sugar and salt and he slowly got his awareness back. A corrections officer (“CO”) was supposed to walk by the cell every 30 minutes, but no one came by.

[70] Mr. DeSantis filed the medical records for Mr. Shen and put various entries to him. It was agreed that I could consider the records for impeachment purposes when portions were put to Mr. Shen in cross-examination.

[71] The first entry in the medical records is at 5:30 a.m. when it is noted that the nurses came in to take Mr. Shen’s vitals. Mr. Shen testified that he believes he started experiencing pain earlier that morning. According to Mr. Shen the male nurse told him that he was fine. He testified that they thought he was pretending. I accept that evidence although it appears that if the staff thought Mr. Shen was pretending it must have been for a short period of time, about two to three hours.

[72] Mr. Shen testified that the second time the nurses came they brought a wheelchair. This is referred to in the medical records. Mr. Shen testified that a sergeant came in, asked him if he wanted to go to the hospital and according to the records, they brought him a wheelchair at about 5:30 a.m. so he could be moved to unit 2-C, which Mr. Shen described as the medical floor or medical dorm. They tried to get him up to go into the wheelchair, but as soon as he sat up the pain increased, and he had to get back onto the floor. The medical records confirm that when the wheelchair was brought for Mr. Shen, he was unable to move and preferred lying on the floor. Mr. Shen testified that he was told to go back into his cell and his cell mate had to drag him back in along the floor while he was lying on the floor passed out because no one cared about his condition. The records make no mention of how he got back into the cell. The records state that the nurses would be coming back. Clearly by this point the staff must have believed that Mr. Shen was in some sort of pain - he was not being ignored.

[73] Mr. Shen referred to a third occasion when the second sergeant came into his cell a little later. He testified that the sergeant was “slightly kicking” him, telling him to stop pretending and to get up, while he was on the floor screaming with pain. Mr. Shen told this sergeant that he needed a stretcher and needed to go to hospital. He was told they didn’t have a stretcher even though they used one when he was brought back from hospital.

[74] Mr. Shen testified that a nurse came back with Tylenol and medication to help his stomach. Medication is referred to in the records at 5:30 am. According to Mr. Shen, as the pain lessened a bit from the Tylenol, he was able to sit up where he sat for the rest of the night. Although the CO walking by the cell would have seen this, there was no offer for help. He testified that the whole time the staff thought he was pretending but that is contrary to the medical records as of 5:30 a.m.

[75] The medical records state that at 5:45 a.m. Mr. Shen was insisting on going to the hospital and that at 6:10 am the nurses came again, and Mr. Shen was given Tylenol. According to the records, when he was told that he would have to make some effort to move to a wheelchair Mr. Shen is reported to have said that he did not want to move to a wheelchair. Mr. Shen was not asked about this. When the nurses came back at 6:35 a.m., the medical records state that Mr. Shen was sitting against the wall and still complaining of abdominal pain and that he was told he would be assessed by the doctor. This is consistent with his evidence.

[76] At the time of the morning shift Mr. Shen testified that the CO who came on duty asked him what happened. The CO went to the day shift sergeant and Mr. Shen was put on the list to see the jail doctor. He was then signed up to go to hospital. The medical records contain a doctor’s note. It does not record the time, but it was before the entry at 9:50 a.m. which notes that the doctor completed the paperwork for sending Mr. Shen to the emergency department.

[77] Mr. Shen arrived at the Scarborough Grace Hospital at 11:40 a.m. and had surgery later that day at 9:00 p.m. to remove his appendix. Although Mr. Shen was told he would stay overnight in hospital, he was sent back to the TEDC just before midnight, to the unit 2-C. According to the medical records, he was seen by the nurses and was to be assessed by the doctor in the morning.

[78] Mr. Shen testified that during the night he started feeling terrible and his temperature went up and he was put on oxygen. EMS was called and he was sent back to Scarborough Grace Hospital early in the morning. According to the medical records that was at 3:35 a.m. on December 20th. When he returned from the hospital, the nurses persuaded the sergeant to let him go on a stretcher to the 2C-unit. The medical records confirm the nurses saw Mr. Shen on his return.

[79] On December 21st, Mr. Shen testified that he saw the jail doctor and was given antibiotics and painkillers which he was on for seven days. During that time, he had serious pain. He told the doctor that he still had fever and pain but was told he was fine. At the end of the seven days, he asked for more antibiotics and Tylenol and was told that antibiotics were not necessary but that he could stay in unit 2-C and ask for Tylenol when needed.

[80] According to the medical records, Mr. Shen was seen by the nurses on December 25th just before midnight. He was complaining of a dull pain in the upper stomach area. The doctor was to assess his condition. Mr. Shen testified that by December 29th the fever was back, and the nurses were worried but there were no doctors on staff.

[81] Mr. Shen testified that he was feeling better between December 31st and January 1st, but by January 2nd, 2024, he had constipation and asked to see the jail doctor again. I think this was likely January 4th based on the medical records. Mr. Shen testified that the fever had returned, and he told the doctor about his concern but was told not to worry. He was prescribed Tylenol.

[82] By January 5th the fever was up, and Mr. Shen testified that he woke up in the middle of the night because of the pain. He was seen by the night nurse. On January 6th Mr. Shen testified that he was feeling extreme pain and fever and asked to go to hospital. The doctor again said he should just be given Tylenol. Eventually he spoke to a doctor and was sent to the hospital. The medical records contain four entries on January 6th. They show that Mr. Shen would feel better after he was given Tylenol but then the pain would come back. A decision was made to send him back to hospital at 1:30 p.m., but he was not admitted until the next day, January 7th.

[83] According to Mr. Shen, the emergency room doctor at the hospital told him after a CT scan that something was collecting infection in his abdomen. They were going to try to drain it. The next day it was decided it was too early to drain the infection and so they increased his antibiotic dose. The entire time he was in serious pain. Early on the morning of January 8th it was decided that the infection had reduced in size, and it was no longer safe to drain it. He was sent back to TEDC with a prescription for antibiotics. He went back to unit 2-C and testified that he was warned by others in the general population not to ask a nurse to check his temperature. He asked the nurse to do so in any event. On January 18th, Mr. Shen was sent to a clinic for follow up inside the hospital.

[84] Mr. Shen complained that his intestines never functioned properly after the surgery and the hospital said the jail doctor would need to deal with it. He was put on a high fibre diet, and this is noted in the records, but Mr. Shen claims that the meals he got were no different than the rest of the population.

[85] Mr. Shen testified that during the night when he was experiencing his appendicitis attack, he was experiencing severe pain and was scared and did not know what was going on. He thought he was dying or that he would have a permanent injury. Despite this, the staff thought he was pretending. He complained when he testified that he was not treated like a human being. Mr. Shen also complained about his medical treatment at the TEDC after his surgery. He said that the entire month he felt pain and fever, and he was concerned about inflammation. The staff at the TEDC never listened to him. Mr. DeSantis put to Mr. Shen that the problems with his recovery were not a result of his treatment at the jail but rather the surgery itself. He denied this and referred to the seven days after he returned from the hospital. He said that if the jail doctor had listened and given him antibiotics for longer as he asked, he would not have had to go back to the hospital for three days and suffer the pain for as long. Mr. Shen totally disagreed with the suggestion from Mr. DeSantis that from the moment he felt pain to throughout his recovery he had the attention of medical staff and the jail doctors.

[86] Mr. Shen did not file a formal complaint with respect to his treatment for appendicitis. He testified that he didn’t know what he could do. Mr. Shen testified that even though he filed three complaints about not seeing his lawyer, no one got back to him about those complaints. He testified that he was afraid to file a complaint as he did not know what staff would do to him. A sergeant had asked him why he had made a big scene which resulted in him being sent to unit 2-C.

[87] Mr. Thorning submitted that there should be a base level of respect and care when someone is in custody. Mr. Shen was screaming out in pain and for some hours was not properly cared for. Even his most basic needs were not met. He submitted that Mr. Shen is lucky he is not dead. Certain persons viewed him as a second-class citizen not deserving of prompt medical attention. Mr. Thorning also submitted that a lack of access to a phone to speak to counsel and his family had a greater impact on Mr. Shen than others as he is not a hardened criminal and has never been in this situation before.

[88] Mr. DeSantis agrees that Mr. Shen faced a hard time and that he did not get the top medical attention that he might get if he were not in custody, but he did get medical attention almost immediately. The staff took the necessary steps to get him to hospital. The fact he suffered complications resulted in staff getting him back to hospital. After his surgery, Mr. DeSantis submitted that arguably Mr. Shen got more attention than any other person would who was not in custody. The care was not perfect, but he had access to nurses and doctors and was taken to hospital three times. He was given medication. It is Mr. DeSantis’ position that if Mr. Shen felt he was truly mistreated he would have filed a formal complaint as he did when he was not able to speak to his lawyers. According to Mr. DeSantis, no time should be deducted for this issue.

[89] In my view, it was totally unacceptable to have Mr. Shen sleeping on the floor close to the only toilet in a small cell, designed for two persons for one-and-a-half months. As for his inability to speak to counsel when he arranged it, I have no specific evidence from Mr. Shen on this point save to tell me that this is what happened. I do accept Mr. Thorning’s submission that certain times when Mr. Shen was not able to see his lawyer would have been important because of what was happening in these proceedings. However, there is no evidence that the delay in speaking to Mr. Thorning caused any specific prejudice. Mr. Shen gave no evidence about any impact on his inability to contact his family or friends.

[90] As for the appendicitis, I accept that there was an initial delay of two to three hours before Mr. Shen was given medication and that this may have been because staff thought he was pretending. This too is totally unacceptable. I agree with Mr. Thorning that there should be a base level of respect and care when someone is in custody and staff are not entitled to assume that someone is pretending – that is the job of the jail doctor. As for the other evidence Mr. Shen gave, the fact his cell mate dragged him back into his cell may have been the only way that he could have been returned to his cell given he could not sit up at that time and go into a wheelchair. I appreciate that there is evidence that there was a stretcher when Mr. Shen returned from hospital, but then he was admitted to unit 2-C. I have no evidence that a stretcher was available. I accept that during this time Mr. Shen would have been frightened of what was causing the pain. However, after he was taken to hospital, I am not satisfied that he did not receive proper medical attention and care. Although I appreciate that Mr. Shen may believe that the complications that brought him back to hospital twice were as a result of improper medical care or that the jail doctor is at fault in some way for not giving him antibiotics for longer, without any expert evidence I could not conclude that he was not properly cared for. In fact, after he came back from his surgery, he was regularly attended to by nurses and doctors.

[91] As I have said, I do not plan to engage in the formulaic approach taken by counsel with respect to the Downes and Duncan credits. After considering this further evidence I find that Mr. Shen is entitled to further mitigation of his sentence and considering all the aggravating and mitigating factors a fit and reasonable sentence is 49 months or four years and one month. From this sentence the Summers credit of 467 days, which is the equivalent of one year and 102 days will be deducted.

Disposition

[92] For these reasons, Mr. Shen, I sentence you as follows.

[93] With respect to your conviction on Count # 1 - sexual assault, contrary to s. 271 of the Criminal Code, I sentence you to four years and one month in custody, less a pre-sentence Summers credit of 467 days.

[94] In addition, there will be a mandatory weapons prohibition order pursuant to s. 109(1) of the Criminal Code for a period of 10 years.

[95] I also make a mandatory DNA order in Form 5.03, pursuant to s. 487.051(1) of the Criminal Code.

[96] In addition, pursuant to ss. 490.012(1) and 490.013(2)(b) of the Criminal Code, I make an order in Form 52 that your name be added to the Sex Offender Registry and that you comply with the Sex Offender Information Registration Act for 20 years.

[97] Finally, pursuant to s. 743.21 of the Criminal Code, you shall not communicate directly or indirectly with the complainant, I. F. while you are in custody.

Spies J.

Released: February 23, 2024