Court and Parties

Court File No.: CR-22-0247-00
Date: 2025-06-04
Ontario Superior Court of Justice

Between:
His Majesty the King
Jane Ann McGill, for the Crown
and
Derek Kenney
Gil Labine, for the Accused

Heard: December 20, 2024, and January 15, 2025, at Thunder Bay, Ontario
Justice: T. J. Nieckarz

Reasons For Sentence

Overview

[1] On October 28, 2024, I found Mr. Kenney guilty of four counts of sexual assault against four separate complainants, contrary to s. 271 of the Criminal Code, R.S.C., 1985, c. C-46 (the “Criminal Code”). The facts and the reasons are set out in greater detail in my decision reported as R. v. Kenney, 2024 ONSC 6020 (the “Reasons”).

[2] I now must determine what sentence is appropriate to be imposed on Mr. Kenney. The sentencing hearing took place on two separate dates. At the request of the Defence (Crown not opposing), the imposition of sentence was delayed until today’s date.

[3] The Crown argues that a just and fit sentence in the circumstances of this case requires custodial, consecutive sentences of five years for each of the convicted counts, for a total of 20 years’ custody. After applying the totality principle, the Crown seeks a global sentence of 15 years custody. In addition, the Crown seeks a lifetime SOIRA order, a DNA order, and a lifetime weapons prohibition.

[4] The Defence argues that the sentence sought by the Crown is excessive. The Defence says that a more appropriate sentence in the circumstances of this case and this offender is two years less a day, with three years’ probation.

[5] In determining the sentence to impose I am guided by the principles set out in the Criminal Code, and those set out in the case law that courts have developed. These reasons will set out those principles and other factors I have considered to arrive at a sentence.

[6] Upon consideration of the applicable principles, I find that a just and fit sentence is 13 years, with Mr. Kenney also being subjected to the ancillary orders sought by the Crown.

Facts

Circumstances of the Offences

[7] In determining an appropriate sentence, I must consider the circumstances of the offences that Mr. Kenney was convicted of. I must not consider the circumstances of the other offences with which he has been charged, but not yet either convicted or acquitted.

[8] There are four complainants. My findings with respect to each of them are as follows:

Count #1 – K.D.

a. K.D. and Mr. Kenney were non-monogamous intimate partners. They did not live together. In October 2020, K.D. went to Mr. Kenney’s home for a “date night”. They planned to carve pumpkins and do some body painting. K.D. anticipated that there would be sexual activity that night. She did not anticipate the way events would unfold.

b. In the Reasons, I found that shortly after arriving K.D. was drugged by Mr. Kenney who put “mushrooms” in her tea. She slipped in and out of consciousness. This vitiated her ability to consent to any sexual activity, even activity that may have been previously contemplated. At one point she woke to find Mr. Kenney having anal intercourse with her. Mr. Kenney painted a pumpkin and added some writing on to her bottom. He photographed her bottom. She got up and had a shower but still did not feel well. The next thing she remembers is waking up the following morning in Mr. Kenney’s bed.

Count #2 – S.W.

c. In approximately 2003/2004, S.W. had just graduated high school when she decided to travel to Thunder Bay to meet some individuals she had met online. She went out with these individuals to a local bar, where they met up with Mr. Kenney. Mr. Kenney was known to one of the individuals. Two of the people S.W. was with decided to go home together to rekindle their relationship, leaving her without a place to stay. Mr. Kenney was asked by one of the people S.W. was visiting if he would give her a place to stay for the night. He agreed.

d. I found that shortly after arriving at his apartment, Mr. Kenney drugged S.W.’s tea, causing her to feel “high”, tired, and to pass out. She awoke in the morning to have her clothes partially removed, with her bra above her breasts and her shirt above her neck. Her breasts were sore, and her legs felt like “she had been on a horse too long”. Her pants had been removed. Her underwear was disheveled and torn, exposing her labia. She felt groggy and out of sorts. Her vagina was throbbing and uncomfortable, and there was blood in her underwear and on the bed. There was a white substance also on the bed. I found that S.W. had been the victim of a sexual assault at the hands of Mr. Kenney. I was unable to find that the only reasonable conclusion was that the assault was in the form of sexual intercourse, although I was certain that a sexual assault of some nature occurred.

Count #3 – A.M.

e. A.M. was involved in an intimate dating relationship with Mr. Kenney. At the end of August/beginning of September 2020, Mr. Kenney came to A.M.’s home for a back massage that A.M. had offered to give him. Her three children, ages 10, 6, and 4 were downstairs.

f. While A.M. was massaging Mr. Kenney, he inquired about her trauma associated with having been sexually abused by a step-father as a child. Mr. Kenney told A.M. that her step-father must have loved her to have wanted to touch her sexually as a child. He asked her to call him “daddy” and pretend her was her step-father. She froze and did not know how to respond. Mr. Kenney became sexually excited by the conversation, pinned her into the corner of the couch, started kissing her, and proceeded to have sexual intercourse with her. During intercourse he repeated statements about her step-father and said that this would heal her trauma. He engaged in role play, acting like her step-father until he ejaculated.

g. A.M. did express “not right now” and that her children are downstairs. When Mr. Kenney said words to the effect of “you have two daughters, right?”, she became concerned he may do something to her children based on the nature of the conversation, and she let him “do what he wanted” and pretended to engage.

Count #4 – E.T.

h. In November 2017, E.T. was approximately 17 ½ and Mr. Kenney was someone she had developed a casual relationship with. One night she had argued with her grandparents, who asked her to leave the house. She needed a place to stay, and Mr. Kenney agreed. They were drinking and talking. Mr. Kenney then told her to take her pants off. He said it twice and she said “no”. He grabbed her by the waist and took her pants off. He then touched her vagina with his hand, following which he forcefully put his penis in her mouth. He had intercourse with her until he ejaculated on her stomach and breasts. At some point he grabbed her by the hair and slapped her face.

Circumstances of the Offender

[9] Sentencing is an individualized process. The circumstances of the offender are to be taken into consideration in determining a fit sentence.

[10] A pre-sentence report (“PSR”) and reference letters were filed on Mr. Kenney’s behalf.

[11] Mr. Kenney is a 46-year-old musician. He was adopted at age six months and lived in Thunder Bay for most of his life. He was forced to relocate because of the social media frenzy surrounding these and other allegations against him. He has been in a committed relationship with his current partner for almost two years.

[12] Mr. Kenney appears to have had a good childhood, with strict but supportive parents. He has a 16-year-old child of his own and gets along well with the child’s mother. The PSR writer noted that he appears to maintain good relationships with various ex-partners.

[13] Mr. Kenney’s life has not been without its struggles. He suffers from Tourette’s Syndrome. This caused him to be prone to uncontrollable verbal tics, which made him the victim of cruel teasing by other students. He quit school after completing grade ten. Three years ago, he enrolled in Wilfrid Laurier University’s Music Therapy program, but he has not completed it. He is in receipt of Ontario Disability Support Program benefits. He supplements this income with his work as a musician. In addition to Tourette’s, prior medical diagnoses also include attention deficit hyperactivity disorder (“ADHD”) and obsessive-compulsive disorder.

[14] Mr. Kenney asks me to consider six letters written in support of him as follows:

a. Mr. Kenney’s current partner has written a one-page letter setting out the partner she has come to know and hopes to enjoy a future with. She describes him as a loving and supportive partner, who is nothing but patient and kind. She states that he is respectful of any boundaries she establishes, sexually or otherwise. She notes the volunteer and other community work he does, as well as the struggles he has experienced because of these charges. She describes him also as a proud and good parent to his son.

b. A former partner of Mr. Kenney, who has known him for more than 25 years, also describes a relationship based on mutual respect and understanding and speaks to Mr. Kenney’s selfless character.

c. A pub owner where Mr. Kenney has performed regularly for just under two years describes him as a compassionate person of “integrity, responsibility, and kindness”, with a “strong work ethic”.

d. A childhood friend of Mr. Kenney who also suffers from Tourettes, described a supportive friend who helped him with the challenges of the condition, along with other fears and anxieties the friend has. He describes Mr. Kenney as “nothing but kind and sweet with me and any else I’ve ever seen him with over the past 3 decades”. He also describes him as “selfless”.

e. A female friend Mr. Kenney has known since 2006 describes him as “honest, hardworking, and compassionate…”. She notes him to be an attentive and involved father. She has also found him to be respectful of sexual boundaries and comfort levels. She spoke about the social media campaign against Mr. Kenney and the pressure she felt as a result of her friendship with Mr. Kenney. She spoke passionately about her “loyal and caring friend” and his love for music.

f. Another friend (and at times colleague and neighbour) of Mr. Kenney, who has known him for more than 20 years spoke about his interactions with Mr. Kenney socially and professionally, and the integrity his actions demonstrated. He too spoke of Mr. Kenney’s passion for music and his willingness to help others. He is of the belief that Mr. Kenney will use any sentence as an opportunity for personal growth, suggesting a strong prospect for rehabilitation.

Overall, all six individuals describe Mr. Kenney in terms that the PSR writer describes as “incongruent with the nature of the offences before the Court.”

[15] Mr. Kenney has one prior conviction for sexual assault from May 2004, along with a fail to appear. He was sentenced to a six-month conditional sentence for the sexual assault, and time served for the fail to appear. He has maintained his innocence with respect to these charges against him.

Victim Impact

[16] Each of the four victims provided victim impact statements. Each of the four victims chose to read those statements in court.

[17] K.D. says she has been deeply affected by the sexual assault committed against her in October 2020. She describes emotional, physical, and economic hardship arising out of the trauma. She lives with ongoing fear, paranoia, and anxiety, and her sense of safety and security has been “shattered”. She struggles to trust in her relationships, and her intimate relationships have suffered. She feels that she has been unable to be the mother she wants to be to her children. She struggles to find enjoyment in activities she used to love. Her trauma has manifested itself in physical symptoms, and she has had to take periods of time off work and suffered a loss of income. She has been in counselling since May 2021, at a considerable cost to her.

[18] S.W. spoke about the years she has “carried this wound” with her like a “poison, slowly seeping into [her] system”. The fear and loss of trust she experienced has impacted relationships. She has lost jobs because she has struggled with focus and concentration. She also lost herself to the fear, nightmares, anxiety, disassociation, and depression. She described herself as a “body without a soul, walking around”. She could no longer travel on solo trips. She gained weight as a protective mechanism, feeling that no one would sexually assault a larger woman. She felt as if she was running away from herself all the time and trying to hide herself. She has spent over a decade in various forms of therapy until she felt strong enough to make the allegations and face Mr. Kenney in court. She continues to experience anxiety and mild depression. While she fears the damage done to her emotional well-being is irreversible, she feels some sense of relief from, and finds some peace in, the conviction.

[19] A.M. has had similar experiences of anxiety, isolation, and depression. She describes how Mr. Kenney found her in a very vulnerable state and preyed on that vulnerability. He revived past traumas, causing frequent nightmares and difficulty sleeping. She too struggles with relationships, whether intimate or not, and “can’t help but think people have some kind of ulterior motive”. This causes her to isolate herself. She cries frequently, even at work. She suffers from anxiety so intense that she frequently vomits and has suffered a loss of hair. She has had to take time off work because of her anxiety and for court. At one point she was so depressed that she stopped taking care of herself physically and engaged in binge eating to find some comfort. She fears for her children given the comments Mr. Kenney made on the night of her assault and has even moved homes and installed security cameras. She is a one income home and has suffered financially from the missed time at work and counselling fees.

[20] E.T. has also suffered a significant impact on her life, emotionally and physically. She too has suffered depression and anxiety, for which she has undergone years of counselling to try to help her. She also describes her sense of safety and trust having been shattered, causing her to have turbulent relationships and experience challenges engaging with male medical personnel. She often finds herself reliving this traumatic experience, leading to nightmares and panic attacks. This, in turn, causes constant fatigue and headaches. She continues to struggle to heal.

Sentencing Principles

[21] Section 718 of the Criminal Code sets out the following principles and objectives of sentencing:

The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

a. to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

b. to deter the offender and other persons from committing offences;

c. to separate offenders from society, where necessary;

d. to assist in rehabilitating offenders;

e. to provide reparations for harm done to victims or to the community; and

f. to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[22] Denouncing unlawful conduct, also known as the principle of denunciation, refers to public condemnation of the criminal behaviour.

[23] The principle of deterrence reflects a message to be sent to the offender (specific deterrence), or to the community (general deterrence), that breaking the law by committing a crime of this nature will attract punishment and consequences. The hope is to deter the offender and others from further breaches of the law.

[24] When it comes to imposing a sentence for a sexual offence, the primary considerations are the objectives of denunciation and deterrence.

[25] Section 718.1 requires that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. In other words, the more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the harsher the sentence will be: see R. v. Lacasse, 2015 SCC 64.

[26] Further sentencing principles that must guide the court are set out in s. 718.2 of the Criminal Code.

[27] Section 718.2(a) requires that a sentence be increased to account for any aggravating factors or reduced to account for any mitigating circumstances. Aggravating circumstances generally tend to make the offence more troubling while mitigating circumstances moderate the severity of the offence.

[28] Section 718.2(d) requires restraint in sentencing, acknowledging that sentences are not only intended to be punitive, but also remedial. Imprisonment should be the penal sanction of last resort, to be used only where no other sanction or combination of sanctions are appropriate to the offence and the offender.

Positions of the Crown and the Defence

The Crown Position

[29] In support of a 15-year custodial sentence, the Crown argues that the sentence imposed on Mr. Kenney for the assaults committed against the four victims must recognize that all sexual assaults are serious acts of violence and violations of human dignity that have a profound impact on the victims. The victim impact statements in this case demonstrate that profound and lasting impact.

[30] The Crown argues that Mr. Kenney’s overall culpability is high. The Crown submits that a range of three to five years is appropriate for each of the offences in this case and suggests the higher end of the range given the aggravating factors present for each count. Even a reduction for the totality principle should still reflect a sentence closer to the higher, as opposed to the lower end of the range. Based on R. v. Friesen, 2020 SCC 9, this is not an appropriate case for concurrent sentences.

The Defence Position

[31] The Defence takes the position that the totality of culpability for this offender should have the court consider a sentence of two years less a day, in addition to a three-year term of probation. The Defence further takes the position that the sentences may be made concurrent and do not need to be consecutive.

[32] If I am inclined to impose consecutive sentences, the Defence argues that s. 718.2(c) of the Criminal Code cautions against a combined sentence that is unduly long or harsh. While the Defence acknowledges the primary objectives being denunciation and deterrence, it is argued that these objectives should not result in a sentence that will “crush the offender” and prevent him from rehabilitating himself. The Defence argues that a 15-year penitentiary sentence will crush this offender and is not a just and fit sentence.

[33] In support of the sentence suggested by the Defence, it is argued that the independent PSR writer and the character references submitted by Mr. Kenney have painted a picture of him that is more congruent with the manner with which he testified and his true character than are the allegations made against him and the offences for which he was convicted. His character does not fit with the findings of the Court. This, combined with a minimal and dated criminal record, along with a three-year history of compliance while on bail for these offences, suggest that the prospects of rehabilitation and compliance with programming are high, and are best served by a sentence served in a provincial corrections facility than a federal penitentiary. His prospect of compliance with a lengthy probation order is also high. Any jail term will be significant enough for this offender to fulfill the objectives of denunciation and deterrence.

Analysis

[34] In R. v. A.J.K., 2022 ONCA 487, at paras 74–75, Fairburn J.A. said as follows:

[74] 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. Whether intimate partners or strangers, victims of sexual violence suffer profound emotional and physical harm and their lives can be forever altered. So too can the lives of their loved ones.

[75] 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, 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)…

[35] In R. v. A.J.K., the Court of Appeal for Ontario concluded that for intercourse involving forced penetration, whether with intimate partners or strangers, an appropriate range is three to five years. This is the range suggested by the Crown.

[36] Also, in R. v. A.J.K., at para. 77, Fairburn J.A. citing R. v. Parranto, 2021 SCC 46, at paras. 15–17, noted that ranges are quantitative sentencing tools designed to assist trial judges with where to start. There will be circumstances where a departure from the range, either above or below it, is appropriate when employing proper sentencing principles to arrive at a fair and fit sentence. Having said this, absent some highly mitigating factor, the forced penetration of another person will typically attract a sentence of at least three years in the penitentiary.

[37] While Mr. Kenney’s community service as a musician and the fact that he is a parent to a teenager may be considered mitigating factors, there are no highly mitigating factors that take this case out of the suggested range.

[38] With respect to the dated criminal record of Mr. Kenney, I have treated this as neutral. The fact that he only has one prior, dated conviction for sexual assault cannot be said to be mitigating. I have also not used this prior conviction to justify an increased sentence, even though three of the four convictions relate to offences that occurred post-2004.

[39] Focusing on the gravity of the offence and the degree of responsibility of the offender, and even considering and giving effect to the principle of restraint and s. 718.2(c), I cannot see how a sentence of two years less a day and three years’ probation properly reflects the culpability of this offender and the principles of denunciation and deterrence. I accept that my findings following trial are out of character given Mr. Kenney’s public persona and character as described by his references and the PSR writer. I also accept that he has been in the past, and is currently, a good and supportive partner. Despite this, he has been convicted of four separate sexual assaults, against four different women, in highly concerning circumstances that reflect elements of violence, predatory behaviour, opportunistic and exploitative behaviour, and possibly planning. They are serious sexual assaults. Mr. Kenney has inflicted enduring harm on these women. The sentence proposed by the Defence does not reflect his culpability or the sentencing principles I must employ. It focuses primarily on the rehabilitation of Mr. Kenney, and his unsuitability for a penitentiary sentence given his limited criminal record and what is said to be his character. While these considerations are not irrelevant, they do not reflect the primary considerations for cases such as this. Furthermore, while the substance of these convictions may reflect a character different than how certain people have come to know Mr. Kenney, that does not change the findings that I made following trial. It is not for me to determine which persona reflects the true Derek Kenney, but rather to sentence him for the crimes he has been convicted of. Courts have also recognized that good character evidence may be of low probative value in sexual assault cases, as it may be that very good character that enables the offender to commit the assault. In R. v. Shrivastava, 2019 ABQB 663, at para. 77, the Court stated that good character references demonstrating traits displayed in the public eye “are of questionable relevance to the offences committed in secrecy.” By their nature, sexual offences are committed out of sight of family, friends, and work colleagues. Therefore, the offender’s reputation in the community should carry little probative value.

[40] I agree with the Crown that an appropriate starting point for each offence is three years, and that the range extends to a high of five years. I made findings of non-consensual penetration in three of the four counts, one of which involved anal penetration. With respect to the sexual assault against S.W., I was not able to find beyond a reasonable doubt that there was penetration, although I did find that she had been sexually assaulted, and for the reasons I will outline below, in my view the aggravating factors suggest that a range starting at three years remains appropriate for this assault.

[41] I am also mindful that the Supreme Court of Canada in R. v. Friesen, at paras. 138–146, cautioned against using a ladder of physical acts with touching at one end and penetration at the other. It was noted that other physical acts of sexual assault can be just as serious a violation of the victim’s bodily integrity as penile penetration.

[42] The aggravating factors are as follows:

a. Mr. Kenney was in an intimate partner relationship (as defined by s. 2 of the Criminal Code) with K.D. and A.M. [s. 718.2(a)(ii)]. I find that K.D. and A.M. were casual “dating partners” with Mr. Kenney at the time of the assaults.

b. K.D. and S.W. were unconscious. In R. v. Arcand, 2010 ABCA 363, at paras. 282–283, it was noted that assaulting an unconscious victim elevates an offender’s degree of responsibility or moral blameworthiness for the crime beyond the norm contemplated by the three-year starting point. Compounding the seriousness of this aggravating factor was that Mr. Kenney put substances in their drinks, without their knowledge and consent, which caused them to become unconscious. In other words, he drugged them. At least with respect to K.D., his actions suggested some planning.

c. A.M.’s children were present in the home during the offence and Mr. Kenney made a comment causing concern for their safety.

d. The psychological trauma suffered by all four women has been outlined above and is significant [s. 718.2(a)(iii.1)].

e. A.M., E.T., and S.W., were all highly vulnerable individuals. A.M. was the victim of prior sexual abuse, which Mr. Kenney knew about, and exploited, perpetuating the psychological harm inflicted by her prior abuser. E.T. was in her late teens, a young woman who had been kicked out of her home and went to Mr. Kenney as a friend. S.W. was a young woman alone in a city, whose friends had abandoned her to a stranger to provide her with a place to stay.

f. The gratuitous violence in the form of slapping E.T. and pulling her hair.

g. The photographing of K.D. without her knowledge or consent is a further violation of her trust.

[43] I also note that A.M. identifies as an Indigenous woman. The legislature, through s. 718.201 of the Criminal Code, recognizes the increased vulnerabilities of intimate partners, and Indigenous female victims.

[44] Considering the circumstances of the offences and the offender, as set out more particularly throughout this decision, including but not limited to the aggravating and mitigating factors, and the principles of denunciation, deterrence, restraint, and rehabilitation, I find as follows:

a. With respect to K.D., given the intimate partner nature of the relationship, the drugging of K.D. and forced anal intercourse while she was unconscious, I find that the higher end of the range, being a five-year sentence prior to reduction for totality, is appropriate.

b. With respect to S.W., given her young age and vulnerability, given that she was drugged and unconscious when she was sexually assaulted in such a manner as to cause her underwear to be ripped and her vagina and breasts to be sore, I find that four years, prior to reduction for totality, is an appropriate sentence.

c. With respect to A.M., given the intimate partner relationship, Mr. Kenney’s exploitation of prior sexual trauma, the presence of A.M.’s children in her home, and A.M.’s Indigenous status, I find that the higher end of the range, being a five-year sentence prior to reduction for totality, is appropriate.

d. With respect to E.T., given her particular vulnerabilities, the use of physical and not just sexual violence, and the nature of the assaults, I find that four years, prior to reduction for totality, is an appropriate sentence.

[45] I must assess Mr. Kenney’s culpability based on each count he was convicted of. Two of the victim’s assaults attracted slightly lesser sentences than two others, but this should not be taken as a belief that those sexual assaults were less serious to the victims than others. All constituted serious violations of the bodily integrity of these women.

Consecutive or Concurrent

[46] I find that consecutive sentences are appropriate. In R. v. Friesen, at para. 155, the Supreme Court of Canada noted that the general rule is that offences that are so closely linked to each other as to constitute a single criminal adventure may, but are not required to, receive concurrent sentences, while all other offences are to receive consecutive sentences.

[47] The only thing linking these offences is Mr. Kenney, and that they all appear on the same indictment. They cannot be said to be so closely linked that they constitute a single criminal adventure. They are separate events, that happened to separate people, on separate dates, some of which were years apart.

Totality

[48] The principle of totality requires a court that sentences an offender to consecutive sentences to ensure that the total sentence does not exceed the offender’s overall culpability [s. 718.2(c)]. It ensures proportionality, and that the sentencing objective of rehabilitation is not overshadowed by the competing objectives of denunciation and deterrence.

[49] As was explained in R. v. Johnson, 2012 ONCA 339, at para. 18:

[18] In short, a combined sentence must not be unduly long or harsh in the sense that its impact simply exceeds the gravity of the offences in question or the overall culpability of the offender. The overall length of the custodial period imposed must still relate to and reflect the variety of sentencing goals, including denunciation, deterrence (specific and general), rehabilitation, the need to separate offenders from society where necessary, and the general imperative of promoting respect for the law and the maintenance of a just, peaceful and safe society: Criminal Code, s. 718. In this regard, the authorities recognize that where the ultimate effect of the combined sentences is to deprive the offender of any hope of release or rehabilitation, the functional value of these sentencing principles meets the point of diminishing returns…

[50] This reflects the point made by the Defence in arguing that the sentence should not crush Mr. Kenney and frustrate any prospect of rehabilitation.

[51] The Supreme Court of Canada has recently suggested that the preferred approach to applying totality is to first determine a fit sentence for each offence and then consider whether the overall sentence is excessive and, if it is, adjust it by reducing some of the sentences or making them concurrent: see R. v. Bertrand Marchand, 2023 SCC 26, at para. 91.

[52] In seeking a 15-year sentence, the Crown recognizes that the principle of totality must play a role in sentencing Mr. Kenney. The proposed sentence reflects a 25% reduction in the time the Crown would otherwise seek (20 years). The Crown acknowledges that there is no formula for applying the principle of totality.

[53] While the importance of rehabilitation may be diminished given the seriousness of the offences, I cannot completely disregard it. It is to form part of the calculus of all criminal punishment: see R. v. Hilbach, 2023 SCC 3, at para. 38. Even though a lengthy sentence is warranted in this case, one that is too long will undermine what little hope there may be for rehabilitation.

[54] I must also be mindful that, despite the importance of deterrence in sentencing for sexual assaults, the law of diminishing returns applies to the objective of general deterrence such that there will be a point at which there is no longer a correlation between the deterrent effect of a sentence and its length. For example, someone who is not deterred by a 15-year sentence will not be deterred by a 20-year one. There is similarly a point at which increases in sentence do not meaningfully further the objective of denunciation. Neither deterrence nor denunciation are best served by excessive sentences.

[55] The sentences I have determined to be appropriate total 18 years’ custody. While I recognize the life-long impact of these assaults on Mr. Kenney’s victims, I find that, based on the foregoing principles, this is an excessive sentence that warrants a reduction for totality. For the reasons outlined above, concurrent sentences are not appropriate. I find that the principles of denunciation and deterrence can still be served, while giving some consideration to the prospect for rehabilitation, by an overall reduction in the sentence to 13 years. This is a significant custodial sentence, to be served in a federal penitentiary, and still reflects the seriousness of the crimes convicted of.

Sentence and Ancillary Orders

[56] For the reasons outlined in this decision Mr. Kenney is sentenced to incarceration for a period of 13 years, which shall be applied across the counts as follows:

• Count #1 – K.D. – 3.5 years
• Count #2 – S.W. – 3.0 years
• Count #3 – A.M. – 3.5 years
• Count #4 – E.T. – 3.0 years

[57] I was not made aware of any pre-sentence custody to be credited to Mr. Kenney.

[58] The Defence does not dispute the ancillary orders sought. Mr. Kenney shall be subjected to a lifetime weapons prohibition pursuant to s. 109 of the Criminal Code. He has been convicted of primary designated offences as defined in s. 487.04 of the Criminal Code and therefore a DNA order shall issue requiring him to submit a sample. An order shall also be made pursuant to s. 490.012 of the Criminal Code, requiring Mr. Kenney to comply with the Sex Offender Information Registration Act (SOIRA) for life. He has been convicted of multiple counts of sexual assault, and I find that the offences demonstrate, or form part of, a pattern of behaviour showing that he presents an increased risk of reoffending by committing a crime of a sexual nature.

[59] In addition, an order shall be made pursuant to s. 743.21(1) of the Criminal Code prohibiting Mr. Kenney from communicating, directly or indirectly, with any of the four victims in this case during the custodial period of the sentence.

[60] Given Mr. Kenney’s limited means, the victim fine surcharge is waived.

“Original signed by”
T. J. Nieckarz

Released: June 4, 2025