Court File and Parties

COURT FILE NO.: CR-21-101447 DATE: 2024/11/25

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – R.D. Defendant

Counsel: Lindsay Lubberdink, Counsel for the Crown Jordan Drexler, Counsel for the Defendant

HEARD: November 14, 2024

Reasons for Sentence

GIBSON J.:

Overview

[1] On May 28, 2024, R.D. was found guilty by a jury of three counts of sexual assault, three counts of sexual interference, and one count of invitation to sexual touching, in relation to N.W., a person who was a young child with whom he was in a de facto relationship of stepfather at the time of the commission of the offences.

[2] It is now my task to determine a fair, fit, and principled sentence.

Circumstances of the Offences

[3] As provided at s.724(2) of the Criminal Code, where the court is composed of a judge and jury, the court shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty.

[4] As McLachlin C.J.C. stated at paras. 16 - 18 in R. v. Ferguson, 2008 SCC 6:

[16] This poses a difficulty in a case such as this, since, unlike a judge sitting alone, who has a duty to give reasons, the jury gives only its ultimate verdict. The sentencing judge therefore must do his or her best to determine the facts necessary for sentencing from the issues before the jury and from the jury’s verdict. This may not require the sentencing judge to arrive at a complete theory of the facts; the sentencing judge is required to make only those factual determinations necessary for deciding the appropriate sentence in the case at hand.

[17] Two principles govern the sentencing judge in this endeavour. First, the sentencing judge “is bound by the express and implied factual implications of the jury’s verdict”: R. v. Brown, [1991] 2 S.C.R. 518, p. 523. The sentencing judge “shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty” (Criminal Code, s. 724(2)(a)), and must not accept as fact any evidence consistent only with a verdict rejected by the jury: Brown; R. v. Braun (1995), 95 C.C.C. (3d) 443 (Man. C.A.).

[18] Second, when the factual implications of the jury’s verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury, but should come to his or her own independent determination of the relevant facts: Brown; R. v. Fiqia (1994), 1994 ABCA 402, 162 A.R. 117 (C.A.). In so doing, the sentencing judge “may find any other relevant fact that was disclosed by evidence at the trial to be proven” (s. 724(2)(b)). To rely upon an aggravating fact or previous conviction, the sentencing judge must be convinced of the existence of that fact or conviction beyond a reasonable doubt; to rely upon any other relevant fact, the sentencing judge must be persuaded on a balance of probabilities: ss. 724(3)(d) and 724(3)(e); see also R. v. Gardiner, [1982] 2 S.C.R. 368; R. v. Lawrence (1987), 58 C.R. (3d) 71 (Ont. H.C.). It follows from the purpose of the exercise that the sentencing judge should find only those facts necessary to permit the proper sentence to be imposed in the case at hand. The judge should first ask what the issues on sentencing are, and then find such facts as are necessary to deal with those issues.

[5] In this case, in order to find R.D. guilty, the jury clearly must have rejected his assertion that the alleged events never occurred, and accepted the version of events in the evidence of the complainant N.W.

[6] In accordance with the evidence presented at trial and evidently accepted by the jury, I make the following findings of fact for the purposes of sentencing. When she was in Grade 1, and six or seven years old, N.W. resided with her mother B.W., her younger brother J., and B.W.’s then-partner R.D. in an apartment in Cambridge. N.W. described three incidents which comprise the offences for which R.D. has been found guilty by the jury. For purposes of simplicity and clarity, I will describe these, in the sequence is which she testified they occurred, as the “Twinkie Incident,” which is the subject of Counts 1 and 4 on the Indictment; the “Movie Incident,” which is the subject of Counts 2 and 5 on the Indictment; and the “Bed Incident,” which is the subject of Counts 3 and 6 on the Indictment. Count 7, Invitation to Sexual Touching, pertains to both the Twinkie Incident and the Movie Incident.

The First (“Twinkie”) Incident

[7] N.W. testified that on one occasion, when she was playing in the living room with her brother her mother was not home, R.D. told her to come into the bedroom he shared with her mother, and told her to sit on a chair in the room. He told her that he was going to give her a Twinkie. He placed a black toque over her head, covering her eyes. However, the material of the toque was thin, and she was able to see through it. She could see R.D. standing in front of her. He told her to keep the hat on. He undid his buckle. He was wearing blue jeans. He moved his underwear down, just below the shaft of his penis. He tried to get her to put his penis in her mouth. He told her to open her mouth, and, while standing in front of her, attempted to insert his penis in her mouth. She could see that it was his penis, not a Twinkie, and prevented him from inserting it in her mouth by making a repeated chomping motion with her mouth. He was consequently not able to insert his penis into her mouth. After 1 - 2 minutes, he put his penis back in his underwear. He did not do his pants up. He went and got a Twinkie. He took the hat off and gave her a Twinkie. She then went back to playing with J.

The Second (“Movie”) Incident

[8] On a subsequent occasion, N.W. and R.D. were watching a movie on the bed in his bedroom. The movie was about scientists and talking apes. The two were sitting up in the bed, by the headboard. She and R.D. were covered in a blanket from the waist down. Her mother and J. were watching a different movie in the living room.

[9] While laying on the bed, R.D. started touching her vagina, and attempted to get her to touch his penis with her hand, while they were watching the movie. Mid-way through the movie, he took his penis out of his pants, and started touching her vagina with his fingers, making a circular motion with three fingers. He asked her if she liked it. She initially responded no, but observed an angry look then on his face, with a movement of his eyebrow. This made her feel scared. She subsequently said that she liked it.

[10] Her hands were resting on top of her lap, underneath the blanket. Her hands started to get sweaty. She attempted to move her hands, but he would take her hand, and try to put it on his penis. She could see his penis. He had an erection. She could see the head of his penis, and a little bit of the shaft. He was on her right side, with his left hand down her pants. She said that in her head, she did not want to engage in this, and that she just wanted to watch the movie. He did not penetrate her vagina. This activity went on for about half the movie, until it ended. She was uncertain how long the movie was, but agreed that it could have been 90 minutes - two hours. She then went out to check on her mother and brother, who were asleep in the living room in front of the television.

The Third (“Bed”) Incident

[11] The third incident occurred after the Twinkie and Movie Incidents. N.W., R.D. and her brother J. were sitting on the couch in the living room. Her mother was not home. They were watching a movie. They had a blanket.

[12] Under the blanket, R.D. took her pajama pants off. He tossed them aside. He told J. that he wanted to cuddle with N.W. and took her to his bedroom. She was still wearing a purple nightgown, which came down to her knees. He told her to sit on the bed. She did so. She was sitting in a backwards angle, with her hands behind her supporting herself. He was wearing jeans with no belt. He unzipped his pants and removed her underwear. He got on the bed, kneeling in front of her. He pulled her nightgown up, pushing it against her belly button. He moved her legs into an open position. He took out his penis and started rubbing it on her vagina.

[13] After about four or five minutes, J. came into the room, saying that he also wanted a cuddle. R.D. angrily told him to get out, which he did. R.D. resumed rubbing his penis on her vagina. The incident lasted for 8 - 9 minutes. N.W. said that in her head, when he was rubbing his penis on her vagina, she was not exactly sure what was going on. She did not want to get hurt, and stayed still. He was rubbing the head and part of the shaft of his penis on her, in what she described as an up and down type of motion. His penis did not penetrate her vagina. He then ejaculated above her vagina. At that age, she did not know what ejaculate was. He did not say anything.

[14] He got up, and told her to take a bath, as her mother was coming home soon. He kissed her on the mouth in the hallway, in what she described as a French kiss. His mouth was open, “kind of slobbering over my face,” she said. He had what she described as a bad breath smell.

Evidence on Sentencing

[15] The evidence on sentencing included a Pre-Sentence Report, a Victim Impact Statement provided by B.W. (the mother of N.W.), and a copy of R.D.’s criminal record.

Pre-Sentence Report

[16] A Pre-Sentence Report was produced in relation to R.D. and was admitted into evidence as an exhibit on sentencing. It details his family and employment history. R.D. has fathered three children with two different partners. A local child protection agency was involved in these relationships due to the history of intimate partner violence in each relationship. R.D. has not been consistently employed. His last period of employment was in 2020. He has primarily subsisted on social assistance for the past 10 years. He has a criminal record which dates back to 2010.

[17] R.D. denies the commission of the offences and blames B.W., whom he insists “made up” the allegations to remove him from their son’s life. He has not expressed any remorse towards N.W.

Victim Impact Statement

[18] In her Victim Impact Statement submitted to the Court, B.W. detailed the trauma learning of the abuse of her daughter perpetrated by her then-partner R.D. caused her, and her continuing difficulty in dealing with this.

[19] N.W. did not submit a Victim Impact Statement, but told the author of the Pre-Sentence Report how these incidents have negatively impacted her life through developing trust issues with adults and straining her relationship with her mother B.W.

Criminal Record

[20] R.D. has a criminal record for assault, assault with a weapon, failure to comply with recognizance, taking a motor vehicle without consent, possession of property obtained by crime, forcible entry and failure to attend court, for which he has been sentenced to suspended sentences and to short periods of custody and repeated periods of probation.

Submission of the Crown

[21] The Crown submits that R.D. should be sentenced to imprisonment for 7 years, less a credit for time spent in pre-trial custody credited on a 1.5 to 1 basis, which would amount to a reduction of 363 days, together with ancillary orders, including a DNA order, a s.109 weapons prohibition, and a non-contact order in respect of N.W. and B.W. The Crown submits that R.D. engaged in a deliberate grooming of a vulnerable victim over time, to whom he stood in a relationship of trust, and that there were multiple instances of sexual assault, which escalated over time. It submits that there was some indication of planning and manipulation, especially in the Twinkie Incident, and that the criminal record of R.D. is significant. It submits that an appropriate Duncan credit would be 30 - 60 days.

Submission of the Defence

[22] The Defence agrees that a penitentiary sentence is appropriate in this instance, and that denunciation and deterrence must be the predominant sentencing principles having application in this case, but submits that an appropriate sentence for the court to consider would be in the range of 4 - 5.5 years. It also submits that, given the harsh conditions under which R.D. was detained at Maplehurst Correctional Complex in pre-sentencing custody, an enhanced Duncan credit of six months would be appropriate for the court to consider.

Sentencing Principles

[23] As succinctly summarized by Watt J.A. in R. v. Marshall, 2021 ONCA 28, in determining a fit sentence, the sentencing judge must consider a complexity of factors including the nature of the offence and the personal characteristics of the offender. As well, the sentencing judge must weigh the normative principles Parliament has enshrined in the Criminal Code; the sentencing objectives in s. 718, the fundamental principle of proportionality in s. 718.1, the aggravating and mitigating factors, as well as the principles of totality and restraint in s. 718.2: R. v. M. (L.), 2008 SCC 31, [2008] 2 S.C.R. 163, at para. 17.

[24] Proportionality is a cardinal principle that governs the fitness of a sentence imposed on an offender. It requires that every sentence be proportionate not only to the gravity of the offence, but also to the degree of responsibility of the offender who committed that offence: Criminal Code, s. 718.1.

[25] Individualization is central to the assessment of proportionality in that it demands focus upon the individual circumstances of each offender: R. v. A.J.K., 2022 ONCA 487, at para. 82.

[26] The severity of a sentence depends not only upon the seriousness of the consequences of a crime, but also on the moral blameworthiness of the offender. The more serious the crime and its consequences, or the greater the offender’s degree of responsibility for that crime, the heavier the penalty.

Caselaw

[27] The Crown referred me to the following cases: R. v. Friesen, 2020 SCC 9; R. v T.J., 2021 ONCA 392; R. v. C.C., 2018 ONCJ 596; R. v. C.C., 2020 ONCA 396; R. v. R., 2020 ONSC 7411; R. v. G.R., 2022 ONCA 374; R. v. Kiflemariam, 2022 (ONSC)(unreported); R. v. S.L.M., 2024 ONSC 2418; and, R. v. B.D.,(2023) SCA-22-101557 (ONSC).

[28] The Defence referred me to the following cases: R. v. W.V., 2023 ONCA 655; R. v. B.M., 2023 ONCA 224; R. v. K.W., 2024 ONSC 6102; and R. v. Jeyakanthan, 2024 ONSC 1665.

[29] I have considered all of these cases.

[30] In addition, I have considered R. v. De Flores Bermudez, 2024 ONCA 433; R. v. G.B., 2023 ONSC 5081; and R. v. G.S., 2022 ONSC 120.

R. v. Friesen

[31] The most significant guidance when it comes to sentencing in cases involving sexual abuse of children is that provided in the judgment in R. v. Friesen, 2020 SCC 9, a unanimous judgment of the Supreme Court of Canada. Given its significance, I will consider the direction provided therein at some length, summarizing and paraphrasing the guidance provided by the Court.

[32] In Friesen, the Supreme Court of Canada started by reinforcing the principle that all sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Sentencing judges must also consider the principle of parity: similar offenders who commit similar offences in similar circumstances should receive similar sentences. Parity is an expression of proportionality and gives meaning to proportionality in practice.

[33] In writing for the Court, Wagner C.J.C. and Rowe J. stated at para. 5 of Friesen:

5. Third, we send a strong message that sexual offences against children are violent crimes that wrongfully exploit children's vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase. Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament's sentencing initiatives and by society's deepened understanding of the wrongfulness and harmfulness of sexual violence against children. Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families, and society at large.

[34] The Supreme Court of Canada declared that protecting children from wrongful exploitation and harm is the overarching objective of the legislative scheme of sexual offences against children in the Criminal Code. At the sentencing stage, it insisted, in order to effectively respond to sexual violence against children, sentencing judges need to properly understand the wrongfulness of sexual offences against children and the profound harm that they cause and give effect to both in imposing a sentence. This will help bring sentencing law into line with society's contemporary understanding of the nature and gravity of sexual violence against children and will ensure that past biases and myths do not filter into the sentencing process.

[35] The Court further declared that Parliament's creation of the modern legislative scheme of sexual offences against children shifted the focus of the sexual offences scheme from sexual propriety to wrongful interference with sexual integrity. The prime interests that the legislative scheme of sexual offences against children protect are the personal autonomy, bodily integrity, sexual integrity, dignity, and equality of children. Emphasis on these interests require courts to focus their attention on emotional and psychological harm, not simply physical harm. In particular, courts need to take into account the wrongfulness and harmfulness of sexual offences against children when applying the proportionality principle, as these factors impact both the gravity of the offence and the degree of responsibility of the offender and understanding them is key to imposing a proportionate sentence.

[36] The Supreme Court directed that trial courts must impose sentences commensurate with the gravity of sexual offences against children and that reflect the normative character of the offender's actions and the consequential harm to children and their families, caregivers, and communities. Specifically, courts must recognize and give effect to (1) the inherent wrongfulness of these offences; (2) the potential harm to children that flows from these offences; and (3) the actual harm that children suffer as a result of these offences. Sexual offences against children are inherently wrongful and always put children at risk of serious harm, even as the degree of wrongfulness, the extent to which potential harm materializes, and actual harm vary from case to case.

[37] In Friesen, the Supreme Court declared that courts must also take the modern recognition of the wrongfulness and harmfulness of sexual violence against children into account when determining the offender's degree of responsibility. Intentionally applying force of a sexual nature to a child is highly morally blameworthy because the offender is or ought to be aware that this action can profoundly harm the child, because it involves the wrongful exploitation of the child by the offender, and because children are so vulnerable. Courts must give proper weight in sentencing to the offender's underlying attitudes because they are highly relevant to assessing the offender's moral blameworthiness and to the sentencing objective of denunciation. The fact that the victim is a child increases the offender's degree of responsibility.

[38] The Supreme Court declared that Parliament has determined that sentences for sexual offences against children should increase to match its view of the gravity of such offences. It has increased maximum sentences for these offences and prioritized denunciation and deterrence in sentencing. Parliament's decision to repeatedly increase maximum sentences for sexual offences against children should be understood as shifting the distribution of proportionate sentences for these offences. To respect Parliament's decision, courts should generally impose higher sentences than the sentences imposed in cases that preceded the increases in maximum sentences. Parliament's decision to prioritize denunciation and deterrence for offences that involve the abuse of children by enacting s. 718.01 of the Criminal Code confirms the need for courts to impose more severe sanctions for sexual offences against children.

[39] The Supreme Court determined that a national starting point or sentencing range for sexual offences against children should not be created by the Court. It considered that the appropriate length and the setting of sentencing ranges or starting points are best left to Provincial appellate courts. Nonetheless, to ensure that sentences for sexual offences against children correspond to Parliament's legislative initiatives and the contemporary understanding of the profound harm that sexual violence against children causes, it determined that guidance on three specific points is required.

[40] First, upward departure from prior precedents and sentencing ranges should occur for sexual offences against children because Parliament increased the maximum sentences for these offences and because society's understanding of the gravity and harmfulness of these offences has deepened. Courts are justified in departing from dated precedents that do not reflect society's current awareness of the impact of sexual violence on children in imposing a fit sentence. There is concern about sentencing ranges based on precedents that appear to restrict sentencing judges' discretion by imposing caps on sentences that can only be exceeded in exceptional circumstances.

[41] Sexual offences against children can cover a wide variety of circumstances, the Supreme Court recognized, and it considers that appellate guidance should make clear that sentencing judges can respond to this reality by imposing sentences that reflect increases in the gravity of the offence and the degree of responsibility of the offender. Imposing proportionate sentences will frequently require substantial sentences. Parliament's statutory amendments have strengthened that message. Mid-single digit penitentiary terms for sexual offences against children are normal and upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances. A maximum sentence should be imposed whenever the circumstances warrant it.

[42] Second, sexual offences against children should generally be punished more severely than sexual offences against adults, as Parliament has determined by clear indication in the Criminal Code. Accordingly, the Supreme Court directed Provincial appellate courts are to revise and rationalize sentencing ranges and starting points where they have treated sexual violence against children and sexual violence against adults similarly.

[43] Third, the Court declared, treating the offence of sexual interference with a child as less serious than that of sexual assault of a person under the age of 16 is an error of law. Parliament has established the same maximum sentences for both offences. The elements of the offences are also similar, and a conviction for sexual assault of a child and for sexual interference with a child can frequently be supported on the same factual foundation.

[44] In order to promote the uniform application of the law of sentencing, the Supreme Court provided the following non-exhaustive significant factors to determine a fit sentence for sexual offences against children that must be considered. First, the higher the offender's risk to reoffend, the more the court needs to emphasize the sentencing objective of separating the offender from society to protect vulnerable children from wrongful exploitation and harm. Second, an offender who abuses a position of trust to commit a sexual offence against a child should receive a lengthier sentence than an offender who is a stranger to the child. Any breach of trust is likely to increase the harm to the victim and thus the gravity of the offence, and it also increases the offender's degree of responsibility. Third, sexual violence against children that is committed on multiple occasions and for longer periods of time should attract significantly higher sentences that reflect the full cumulative gravity of the crime and the offender's increased degree of responsibility. Fourth, the age of the victim is also a significant aggravating factor because children who are particularly young are even more vulnerable to sexual violence. The moral blameworthiness of the offender is enhanced in such cases. Fifth, defining a sentencing range based on the specific type of sexual activity at issue poses several dangers. In particular, courts must be careful to avoid the following errors: attributing intrinsic significance to the occurrence or non-occurrence of sexual acts based on traditional notions of sexual propriety; assuming that there is correlation between the type of physical act and the harm to the child; failing to recognize the wrongfulness of sexual violence in cases where the degree of physical interference is less pronounced; and understanding the degree of physical interference factor in terms of a type of hierarchy of physical acts. Sixth, a child's participation is not a mitigating factor, nor should it be a legally relevant consideration at sentencing. In particular, a child's non-resistance should not be equated to "de facto consent"; a victim's participation should not distract the court from the harm that the victim suffers as a result of sexual violence; a breach of trust or grooming that led to the victim's participation is an aggravating factor; and adults always have a responsibility to refrain from engaging in sexual violence towards children.

Aggravating Factors

[45] The aggravating factors present in this case include the following:

a. The direction of Parliament at s.718.2(a)(iii) of the Criminal Code that it shall be deemed to be an aggravating circumstance that the offender, in committing the offence, abused a position of trust or authority in relation to the victim. In this case, R.D. was the de facto stepfather of N.W., and the offences occurred in the family home; b. The direction of Parliament at s.718.2(a)(ii.1) that, in committing the offence, the offender abused a person under the age of 18 years. In this case, N.W. was between the ages of 6 - 7 when the offences were committed; c. That the sexual abuse occurred repeatedly over multiple instances. It was not an impetuous, spontaneous one-off instance; and, d. The prior criminal record of R.D.

Mitigating Factors

[46] There are few mitigating factors in this case.

Analysis

[47] All sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Sentencing judges must also consider the principle of parity: similar offenders who commit similar offences in similar circumstances should receive similar sentences. Parity is an expression of proportionality and gives meaning to proportionality in practice. It helps calibrate proportionate sentences.

[48] Where a breach of trust or grooming led to the victim’s participation, this should properly be seen as an aggravating factor: R. v. Friesen, 2020 SCC 9, at para. 153.

[49] As the Court of Appeal for Ontario recently stated at para. 32 in R. v. De Flores Bermudez, 2024 ONCA 433:

As this court stated in R. v. T.J., 2021 ONCA 392, 156 O.R. (3d) 161, at para. 37, “the focus of sentencing an adult who has exploited an innocent child should be on the harm caused to the child and the offender’s conduct; the effects of the sentence on the offender and his prospects for rehabilitation, while warranting consideration, cannot take precedence.”

[50] This is manifestly not a case in which a conditional sentence would be appropriate. It would not be consistent with the fundamental purposes of sentencing in ss. 718 to 718.2.

[51] Having regard to the principle of parity, and with regard to the cases which the Crown and Defence have provided, I assess that the appropriate range of sentences to consider would be 4 - 6 years.

[52] I have carefully considered all of the sentencing purposes and principles elaborated at ss. 718, 718.01, 718.1 and 718.2 of the Criminal Code. I have also considered the sentencing precedents in the caselaw jurisprudence submitted by the Crown and the Defence, and the relevant aggravating and mitigating factors in this case. I have of course given particular weight to the guidance provided by the Supreme Court of Canada in Friesen.

[53] R.D. does not accept responsibility for the offences and has not expressed any remorse. This is not an aggravating factor, but rather the absence of a mitigating factor.

[54] On its facts, this case exemplifies several of the significant sentencing factors highlighted in Friesen:

1. An offender such as R.D. who abuses a position of trust to commit a sexual offence against a child should receive a lengthier sentence than an offender who is a stranger to the child. Any breach of trust is likely to increase the harm to the victim and thus the gravity of the offence, and it also increases the offender's degree of responsibility;
2. Sexual violence against children that is committed on multiple occasions and for longer periods of time, as was the case here, should attract significantly higher sentences that reflect the full cumulative gravity of the crime and the offender's increased degree of responsibility;
3. The age of the victim is also a significant aggravating factor because children who are particularly young are even more vulnerable to sexual violence. The moral blameworthiness of the offender is enhanced in such cases. In this case, N.W. was between the ages of 6 - 7; and
4. A child's participation is not a mitigating factor, nor should it be a legally relevant consideration at sentencing. In particular, a child's non-resistance should not be equated to "de facto consent"; a victim's participation should not distract the court from the harm that the victim suffers as a result of sexual violence; a breach of trust, as occurred in this instance, that led to the victim's participation, is an aggravating factor; and, adults always have a responsibility to refrain from engaging in sexual violence towards children.

[55] In cases such as this, which involve the sexual abuse of a vulnerable young person by a person in authority, the dominant sentencing principles must be denunciation, as well as general and specific deterrence. This is reinforced by s.718.01 of the Criminal Code, which provides that where a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

[56] I have also had regard to the issue of rehabilitation, as well as the sentencing principles of separation of offenders from society, where necessary, and the promotion of a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community. But, as stated, considerations of denunciation and deterrence must predominate in this case.

[57] The moral responsibility of R.D. is high. He sexually exploited a vulnerable young child to whom he stood in a relationship of trust for his own sexual satisfaction, heedless of the inevitable adverse impact upon her sexual integrity and well-being. He engaged in a pattern of grooming over time, progressively pushing the boundaries further.

[58] Having regard to the facts in evidence in this case, the relevant aggravating and mitigating factors, the statutory provisions of the Criminal Code, including the objective gravity of the offences, and the sentencing precedents cited by the Crown and Defence, and in particular the guidance provided by the Supreme Court of Canada in Friesen, I am satisfied that, on the facts of this case, a significant penitentiary sentence is required to fulfill these objectives. This is a case that involved a wrongful interference with the personal autonomy, bodily integrity, sexual integrity, dignity and equality of N.W., a person who was a child at the time of the commission of the offences.

[59] For these reasons, I consider that the appropriate global sentence in this case, before consideration of Summers and Duncan credits, would be one of 5.5 years imprisonment. However, for the reasons explained in detail at paragraphs 60 - 68 below, a substantial Duncan credit should be applied in the circumstances of this case as one of the factors in determining an appropriate sentence, which leads me to conclude that the appropriate sentence, before the application of Summers credit, is imprisonment for five years.

Summers and Duncan Credits

[60] In order to determine the effective sentence, I must consider the potential application of Summers and Duncan credits.

[61] In R. v. Marshall, 2021 ONCA 344, at paras. 50 - 53, Doherty J.A. gave guidance regarding the application of these credits:

[50] A “Duncan” credit is given on account of particularly difficult and punitive presentence custody conditions. It must be borne in mind the 1.5:1 “Summers” credit already takes into account the difficult and restrictive circumstances offenders often encounter during pretrial custody: Summers, at paras. 28-29. The “Duncan” credit addresses exceptionally punitive conditions which go well beyond the normal restrictions associated with pretrial custody. The 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: R. v. Morgan, 2020 ONCA 279.

[51] It is also important to appreciate and maintain the clear distinction between the “Summers” credit and the “Duncan” credit. The “Summers” credit is a deduction from what the trial judge determines to be the appropriate sentence for the offence. The “Summers” credit is calculated to identify and deduct from the appropriate sentence the amount of the sentence the accused has effectively served by virtue of the pretrial incarceration. The “Summers” credit is statutorily capped at 1.5:1. It is wrong to think of the “Summers” credit as a mitigating factor. It would be equally wrong to deny or limit the “Summers” credit because of some aggravating factor, such as the seriousness of the offence: R. v. Colt, 2015 BCCA 190.

[52] 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.

[53] 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: R. v. J.B. (2004), 187 O.A.C. 307 (C.A.). Arguably, that is what happened in this case, where on the trial judge’s calculations, the “Duncan” credit devoured three-quarters of what the trial judge had deemed to be the appropriate sentence but for pretrial custody.

[62] As noted by Doherty J.A., “Duncan” credit is given on account of particularly difficult and punitive presentence custody conditions. It must be borne in mind the 1.5:1 “Summers” credit already takes into account the difficult and restrictive circumstances offenders often encounter during pretrial custody. In terms of quantifying the Duncan credit, there is no obligation to do so, although there is nothing wrong with quantifying it: Marshall, at para. 53. As explained in Marshall, at paras. 51 - 52, unlike Summers credit, which is a calculated deduction from an otherwise appropriate sentence, Duncan credit is but one factor to be considered in arriving at an appropriate sentence. Treating it as a quantifiable numerical deduction in all cases may result in Duncan consideration overwhelming the sentence. Of course, a sentencing judge must be careful not to treat the Duncan credit in isolation – it is just one factor, among all of the aggravating and mitigating factors at play, in determining the appropriate sentence.

[63] R.D. spent 242 days in pre-sentence custody at Maplehurst in relation to the charges on this Indictment. For this, he should receive a Summers credit, on a 1.5 to 1 basis, of 363 days.

Duncan Credit: Harsh Conditions at Maplehurst

[64] A more complicated assessment is required in respect of any Duncan credit, due to the persistence of difficult conditions at Maplehurst Correctional Complex (MCC).

[65] The persistence of lockdowns, triple-bunking and unsanitary conditions at MCC has led to the awarding of Duncan credit in the following reported cases: R. v. Simeu, 2024 ONSC 5958; R. v. Raja, 2024 ONCJ 456; R. v. Mitchell, 2024 ONSC 5003; R.v. Sitladeen, 2024 ONSC 4344; R. v. Rooplal, 2024 ONSC 3729; R. v. Donacien, 2024 ONSC 3573; R. v. Bleck, 2024 ONSC 3461; R. v. Aiken, 2024 ONCA 326; R. v. Perez, 2024 ONSC 2247; R. v. Vincent, 2024 ONCJ 178; R. v. Hasan, 2023 ONSC 5323; R. v. Cormier, 2023 ONSC 4640; R. v. Singh, 2023 ONSC 4949; R. v. Abraham, 2023 ONSC 4592; R. v. Reid, 2023 ONSC 4452; R. v. Whetham, 2023 ONCJ 379; R. v. Joseph, 2023 ONCJ 207; R. v. Solomon, 2023 ONSC 2602; R. v. Dalia, 2023 ONSC 2114; R. v. Cassanova-Alman, 2023 ONSC 1470; R. v. De La Cruz, 2023 ONSC 314, R. v. Alvarado, 2022 ONCJ 577; R. v. McIntosh, 2022 ONSC 6437; R. v. Walters, 2022 ONCJ 484; R. v. Brooks, 2022 ONCJ 242; R. v. Robertson, 2022 ONCJ 240; R. v. Thomas, 2022 ONCJ 232; R. v. Doyle, 2022 ONSC 2489; R. v. Dienaar, 2022 ONCJ 196; R. v. Hamas Khan, 2022 ONSC 410; and R. v. Chang, 2021 ONSC 7954.

[66] R.D. spent 242 days in pre-sentence custody at MCC in relation to this case, 274 in total including his sentence on another matter. (Crown and Defence are agreed that the appropriate number for Summers credit regarding his sentencing in this case is 363). Of these 274 days, he was triple bunked for 262 days (96% of his time there). 90 days were on full lockdown (a full lockdown means an inmate will be confined to his cell for the 6.5 hours he would normally be in the dayroom) and 26 days were in partial lockdown (a partial lockdown means an inmate was confined to his cell for some part of the 6.5 hours he would normally be out in the dayroom). This amounts to 116 days out of 274, or 42% of the time being on full or partial lockdown.

[67] The protracted continuation of lockdowns and overcrowding at MCC, now persisting past the exceptional circumstance of the COVID-19 pandemic, is no doubt a complex phenomenon with multiple causal factors not susceptible to a facile analysis or a quick fix, but the bottom line is this: it is inhumane and of grave concern to the Court. It infringes the dignity of prisoners. It is unworthy of us as a society. It derogates substantially from the appropriate standard of justice in Canada in 2024. There is a systemic problem, as illustrated by the large number of cases cited above in which courts have given Duncan credit arising from conditions at MCC. Measures to alleviate it are urgently required as a moral and legal imperative. In R. v. Simeu, 2024 ONSC 5958, at para. 18, Conlan J. stated: “this Court would describe Simeu’s experience at MCC, overall, as being disgraceful.” Regretfully, I must echo that comment in the circumstances of this case.

[68] In the circumstances of this case, I consider that this must lead to a substantial Duncan credit. In calculating this, I have borne in mind the guidance given in Marshall. It has been one factor amongst many in my determination of an appropriate global sentence. I have chosen to express this as a discrete number in my assessment of an appropriate sentence in order to highlight the seriousness and the importance which the Court attaches to the issues at MCC.

Sentence

[69] R.D. has been convicted of three counts of Sexual Assault contrary to s. 271 of the Criminal Code of Canada, three counts of Sexual Interference contrary to s.151 of the Criminal Code of Canada, and one count of Invitation to Sexual Touching contrary to s. 152 of the Criminal Code.

[70] Consistent with the principle against multiple convictions for the same delict articulated in R. v. Kienapple, [1975] 1 S.C.R. 729, which applies when there is a factual and a legal nexus between the charges, the convictions in relation to Counts 1,2, and 3, will be conditionally stayed.

[71] On each of the fourth, fifth and sixth Counts of the Indictment, for Sexual Interference, R.D. is sentenced to imprisonment for five years. On the seventh Count, Invitation to Sexual Touching, he is sentenced to five years. The sentences are to run concurrently. From this there shall be subtracted Summers credit of 363 days. For the reasons explained above, a credit of six months Duncan credit due to harsh conditions of pre-sentence custody at MCC was a factor in arriving at the determination of the appropriate sentence as five years. The effective sentence will thus be 1,825 days - 363 days, for an effective remaining sentence of 1,462 days, or 4 years and two days, which I will assess as 4 years.

[72] As the offences are primary designated offences, pursuant to s. 487.051 of the Criminal Code, R.D. shall provide a sample of bodily substances for the purpose of forensic DNA analysis.

[73] There shall be a Sex Offender Information Registration Act Order pursuant to s. 490.012(1) of the Criminal Code. The duration of the order shall be for 20 years.

[74] There shall be an Order pursuant to s. 161(1)(a) of the Criminal Code prohibiting R.D. from attending a public park or swimming pool area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre, for a period of 10 years; pursuant to s. 161(1)(b) prohibiting R.D. from seeking, obtaining or continuing any employment, whether or not that employment is remunerated, or becoming a volunteer in any capacity that involves being in a position of trust or authority towards a person under the age of 16 years for a period of 10 years; and pursuant to s. 161(1)(c) prohibiting R.D. from having any contact – including communicating electronically by any means – with a person who is under the age of 16 years, unless the person is a member of his family, for a period of 10 years.

[75] During his incarceration, pursuant to s. 743.21, R.D. is to abstain from communicating, directly or indirectly, with N.W. or B.W.

[76] There shall be a s.109 weapons prohibition Order for 10 years in respect of any firearm, other than a prohibited firearm or restricted firearm, and any cross-bow, restricted weapon, ammunition and explosive substance, and for life in respect of any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition.

[77] The Victim Fine Surcharge will be waived.

M. Gibson J.

Dated: November 25, 2024