Court File and Parties

Court File No.: CR-22-15998 Date: 2025-10-31 Ontario Superior Court of Justice

Between: His Majesty the King – and – Nitharshan Elansooriyanathan, Defendant

Counsel:

• Nenad Trbojevic for the Crown
• Jimmy Malhi for the Defendant

Heard: Sentencing submissions heard August 8, 2025.

Judgment on Sentence

Before: C. Boswell J.

WARNING

An order has been made under s. 486.4 of the Criminal Code restricting publication of any information that could identify a complainant or a witness in this proceeding.

This written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If there are any discrepancies between the oral and written versions, it is this official written Ruling that is to be relied upon.

The Offences

[1] Nitharshan Elansooriyanathan entered guilty pleas before me on June 20, 2025 to four offences:

• Count 3: Exercising control, direction, or influence, contrary to s. 286.3(1) of the Criminal Code;
• Count 4: Receiving a material benefit from sexual services, contrary to s. 286.1(1) of the Criminal Code;
• Count 6: Advertising sexual services, contrary to s. 286.4 of the Criminal Code; and
• Count 7: Sexual Assault, contrary to s. 271 of the Criminal Code.

I will refer to these collectively as the "index offences."

[2] Sentencing submissions were subsequently made on August 8, 2025 and Mr. Elansooriyanathan was remanded to today for the imposition of sentence.

The Circumstances of the Offences

[3] An Agreed Statement of Fact was filed at the time of the plea. I will briefly summarize it.

[4] Mr. Elansooriyanathan met the complainant, H.C., then 22 years old, in October 2020. She was in a vulnerable position. She had just had a falling out with her family. A friend, Brett Janes, had been helping her out. Mr. Janes introduced her to Mr. Elansooriyanathan.

[5] Mr. Janes and Mr. Elansooriyanathan took advantage of H.C.'s vulnerable position. They put her to work as a prostitute. Mr. Elansooriyanathan arranged for photos to be taken of her and an ad created on a sketchy classified ads site known as "Leolist." He arranged for her to provide sexual services in a basement room in a residence in Scarborough. They agreed that she would keep 60% of her earnings and Mr. Elansooriyanathan would receive 40%.

[6] Prior to the sex work beginning, Mr. Elansooriyanathan forced the complainant to perform oral sex on him, purportedly to see how well she performed. He graded her performance.

[7] Eventually, a customer showed up to the Scarborough residence and had sex with H.C. in exchange for $80, which Mr. Elansooriyanathan kept. H.C. continued to provide sexual services for about five hours at the Scarborough address before she was moved to Pickering.

[8] H.C. eventually grew tired and wanted a break. Mr. Elansooriyanathan denied her that break and continued to book appointments for her. In all she saw about 12 clients and had earned $700 dollars. The Agreed Statement of Fact does not say how much of that she actually kept.

[9] H.C. continued to provide sexual services over a five-day period. At one point over those five days, Mr. Elansooriyanathan brought a friend over to the Pickering home. The friend sexually assaulted H.C. including both oral and vaginal penetration. Following the sexual assault, H.C. told the owners of the Pickering residence what was happening, and the police were called. They attended the Pickering address and arrested Mr. Elansooriyanathan.

The Circumstances of the Offender

[10] Mr. Elansooriyanathan is 35 years old. He was born in Sri Lanka and came to Canada with his mother when he was two years old. His father died before he was born. His mother worked in a factory to support them. They were poor.

[11] When he was in grade eight, Mr. Elansooriyanathan was diagnosed by a school psychologist as having Attention Deficit Hyperactivity Disorder. Nevertheless, he did well in all subjects at school other than math.

[12] Mr. Elansooriyanathan's mother re-married when he was 11. His stepfather was an alcoholic and was physically abusive with his mother. At age 13 he stepped in to stop his stepfather from assaulting his mother. His stepfather called the police. A police officer who attended slapped Mr. Elansooriyanathan, who responded in a physical way. He was charged with two counts of assault and uttering threats. I am not aware of what ultimately happened with those charges.

[13] In any event, Mr. Elansooriyanathan went to live with his grandmother and could only visit his mother when his stepfather was not present.

[14] Mr. Elansooriyanathan got a job at a restaurant when he was 16. He gave all of his paycheques to his mother to help her make ends meet. At age 18, he went to live with a cousin's family. The cousin had recently been incarcerated as a result of a conviction for impaired driving causing bodily harm. Mr. Elansooriyanathan helped the cousin's family financially.

[15] Mr. Elansooriyanathan found that his cousin was not the same person after he was released from jail. He was cold and abused alcohol. Mr. Elansooriyanathan decided to move out of the cousin's home. Unfortunately, his cousin died the day he moved out as a result of a drunken fall. Mr. Elansooriyanathan's mother blamed him for what happened. He has struggled to overcome this incident.

[16] After he left his cousin's residence, Mr. Elansooriyanathan lived on his own and enrolled in a criminology program at Durham College. He got a girlfriend. Things were going well until he found out the girlfriend was cheating on him with a close friend. This led to a breakdown and Mr. Elansooriyanathan was unable to complete his educational program. This was a particularly troubling turning point in his life. He began to engage in a criminal lifestyle.

[17] Mr. Elansooriyanathan eventually decided that a life of crime was not what he wanted. He tried to distance himself from it by moving to Europe. But that did not last. He returned to Toronto and again began to associate with criminal figures, leading to several criminal convictions.

[18] Mr. Elansooriyanathan's criminal record contains seven entries, all from 2017. On July 4, 2017 he was convicted of possessing a controlled substance, obstructing a police officer, and breach of recognizance. He was sentenced to time served (81 days) plus one day.

[19] On September 1, 2017, he was convicted of armed robbery, robbery, and two counts of forcible confinement. He was sentenced to three years in prison, less roughly eight-and-one-half months credit for pre-sentence custody.

[20] I am not aware of any of the circumstances underlying any of the convictions.

[21] Mr. Elansooriyanathan was arrested on the index offences on October 22, 2020. He was released on strict bail conditions on March 18, 2021. While he was on bail, he worked at a barber shop and eventually became a co-owner. His business partner provided a letter of support to the court. He described Mr. Elansooriyanathan as a cornerstone of the business and praised his dedication, work ethic, and leadership.

[22] Mr. Elansooriyanathan was re-arrested, for reasons not clear to me, on April 12, 2024. His bail was cancelled, and he has been held in custody since that time. To today's date, he has been in custody on the index offences for a total of 716 days. During that time, he has been subject to third world conditions, including chronic lockdowns and triple bunking.

[23] Mr. Elansooriyanathan's counsel subpoenaed lockdown and triple-bunking records from the Central East Correctional Centre where Mr. Elansooriyanathan has been held in remand. They reflect roughly 100 days where lockdowns have been in excess of 6 hours and roughly 500 days when lockdowns have been less than 6 hours. The records are only current until July 30, 2025. Mr. Elansooriyanathan says the institution's records under-report lockdowns.

[24] By my review of the triple-bunking records, Mr. Elansooriyanathan had been triple-bunked in a 7'x 15' cell, including bunk beds and a mattress on the floor, for 435 days up until August 5, 2025. Undoubtedly there have been many more days since then. It is important to pause for a moment and recognize that triple-bunking and lockdowns are not distinct issues. They overlap. The situation at CECC is, simply put, deplorable and inhumane.

[25] Mr. Elansooriyanathan made brief submissions to the court when offered his right of allocution. He expressed great remorse for his conduct and apologized to the complainant for what he put her through. He understands that she was vulnerable and that he should have helped her but instead exploited her for his own advantage. He takes responsibility for his actions and recognizes that he needs to grow as a man and as a human being.

[26] Mr. Elansooriyanathan said he has a support system, including a sister and a girlfriend. He further said he has learned a great deal while in custody and looks forward to the chance to get his life back in order and to do better.

The Impact of the Offences

[27] H.C. declined to file a victim impact statement. Nevertheless, I am prepared to take judicial notice of certain uncontroversial facts. Being sexually exploited through human trafficking is demeaning and degrading. It violates the dignity and autonomy of the victim. H.C. was undoubtedly left traumatized by her experience and will likely struggle with issues of self-esteem and trust for many years to come.

The Legal Parameters

[28] Pursuant to s. 286.3(1) of the Criminal Code, a person convicted of exercising control, direction or influence over the movements of another person for the purpose of facilitating the commodification of sexual services is liable to imprisonment for up to 14 years.

[29] Pursuant to s. 286.2(1) of the Criminal Code, a person convicted of obtaining a material benefit from sexual services is liable to imprisonment for up to 10 years.

[30] Pursuant to s. 286.4 of the Criminal Code, a person convicted of advertising sexual services is liable to imprisonment for up to 5 years.

[31] Pursuant to s. 271 of the Criminal Code, a person convicted of sexual assault is liable to imprisonment for up to 10 years.

[32] No minimum sentences apply.

The Parties' Positions

[33] The Crown seeks a global sentence of five years, broken down as two years on Count three (exercising control), 18 months concurrent on Count four (receiving a material benefit), six months concurrent on Count six (advertising sexual services), and three years consecutive for sexual assault.

[34] The Crown accepts that Mr. Elansooriyanathan is entitled to be credited for his pre-sentence custody and does not dispute that, in light of the conditions at CECC, he should receive enhanced credit in accordance with the principles enunciated in the Court of Appeal's decisions in R. v. Duncan, 2016 ONCA 754 and R. v. Marshall, 2021 ONCA 344. Crown counsel leaves the assessment of that credit to the discretion of the court.

[35] The Crown highlights numerous aggravating circumstances present here that, they submit, support a sentence in the five-year range. In particular:

(i) Mr. Elansooriyanathan was not a youthful, first-time offender. He has serious criminal antecedents and has already served time in the penitentiary;

(ii) Mr. Elansooriyanathan was motivated by greed;

(iii) His conduct was inherently exploitative, and he imposed oppressive conditions of work. He denied the complainant breaks and deprived her of sleep and food;

(iv) The complainant was in a vulnerable position; and

(v) The sexual assault was invasive. He forced his penis into the complainant's mouth to the point where she gagged.

[36] The Crown seeks a number of ancillary orders in addition to the term of imprisonment, which include: (i) a DNA order on all counts; (ii) a weapons prohibition for life pursuant to s. 109 of the Criminal Code; (iii) a non-communication order in relation to H.C. and Brett Janes under s. 743.21 of the Criminal Code; (iv) an order that Mr. Elansooriyanathan comply with the provisions of the Sex Offender Registration Information Act ("SOIRA") for a period of 20 years; and (v) a forfeiture order under s. 490 of the Criminal Code.

[37] Defence counsel submits that a global sentence of four years is fit and just in the circumstances of this case. He seeks a 2:1 credit for pre-sentence custody in light of the oppressive conditions at CECC. That credit would put Mr. Elansooriyanathan into a time served situation if the defence position is accepted.

[38] Defence and Crown counsel generally agree on the appropriate range of sentence supported in the jurisprudence. Where the defence differs is largely in relation to the mitigating effect of Mr. Elansooriyanathan's guilty plea. Though it was not an early plea, it did save the complainant from testifying at trial and the potential for re-traumatization. While Mr. Elansooriyanathan is not a first-time offender, defence counsel notes that he has no prior convictions under the human trafficking provisions of the Criminal Code. Mr. Elansooriyanathan is, counsel submits, a suitable candidate for rehabilitation and the restraint principle supports the imposition of a more modest sentence than that sought by the Crown.

[39] Defence counsel does not take issue with the ancillary orders sought by the Crown.

Discussion

The Principles and Purposes of Sentencing

[40] Part XXIII of the Criminal Code sets out a number of principles and purposes of sentencing that guide the court in the crafting of a fit and just sentence in any given case.

[41] The fundamental purpose of sentencing, provided for at s. 718 of the Criminal Code, is to protect society and to contribute 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: the denunciation of unlawful conduct, deterrence - both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to the victims and the community, and the promotion of a sense of responsibility in offenders and an acknowledgment of the harm done.

[42] Counsel are generally agreed that, in view of the nature of the index offences, denunciation and deterrence are the principal sentencing objectives in play. The primary importance of these objectives does not exclude consideration of other objectives, however, and defence counsel urged the court to put significant weight on the objective of rehabilitation as well.

[43] Identifying the principal objectives engaged in the sentencing exercise is only a first step. The next step is to determine what sentence best meets those objectives having regard to all of the circumstances of the case, including any aggravating and mitigating circumstances present, as well as the circumstances of the individual offender. The court is guided in this exercise by the fundamental principle of proportionality. Section 718.1 of the Criminal Code directs that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[44] Proportionality engages the concepts of censure, restraint, and parity.

[45] A sentence must promote justice for victims and enhance public confidence in the administration of justice. At the same time, it should not exceed what is appropriate in light of the moral blameworthiness of the offender. See R. v. Ipeelee, 2012 SCC 13, at para. 37. It must also reflect sentences imposed on similar offenders for similar offences committed in similar circumstances. See s. 718.2(b) of the Criminal Code.

Applicable Ranges

[46] Sentencing judges frequently begin their assessment of a fit, just and proportionate sentence with the search for an established range of sentences applicable to the offence or offences in question. Ranges are helpful guidelines. They assist courts in adhering to the parity principle – ensuring that like cases are treated alike. Ranges are not, however, meant to be fixed or inflexible: see R. v. D.D., [2002] O.J. No. 1061 (C.A.). They must play a servient role in the individualized sentencing process: see R. v. Nasogaluak, 2010 SCC 6, at para. 43.

[47] Both Crown and defence counsel provided the court with a number of cases in an attempt to assist the court in determining the appropriate range of sentence applicable to the circumstances of this case. I have reviewed their cases and will comment on them briefly.

[48] Crown counsel provided several cases focused on the appropriate range in "pimping" cases, including R. v. Ramocan, 2024 ONSC 6247, R. v. Williams, 2023 ONSC 4648, and R. v. Kanyanga, 2023 ONSC 3426.

[49] In Ramocan, Carnegie J. conducted a thorough review of the applicable caselaw and concluded that the range of sentence for offences under s. 286.3(1) is one to five years imprisonment. For first time offenders, he found the range to be one to three years.

[50] Carnegie J. was particularly influenced by the decision of Trimble J. in R. v. Williams. Trimble J. determined that the appropriate range of sentence for s. 286.3(1) offences is one to five years, with the subrange of one to three years for first offenders who offer a guilty plea. Mr. Williams did not plead guilty. He was convicted following a jury trial of exercising control, direction, or influence over a complainant's movements, in order to facilitate the sale of sexual services, and receiving a material benefit from the sale of sexual services.

[51] Trimble J. found that Mr. Williams had determined what services the complainant would perform, what prices would be charged, whether the clients would wear a condom, and what days and hours she would work. He booked hotel rooms and collected money from clients – paying the complainant only what he deemed was necessary. His exploitation last four to five months.

[52] Trimble J. imposed a sentence of 28 months for the s. 286.3 offences and 20 months concurrent for the material benefit conviction.

[53] R. v. Kanyanga is arguably closer to the facts of the case at bar. Mr. Kanyanga entered guilty pleas to exercising control, direction or influence over a complainant's movements, receiving a material benefit, and knowingly advertising sexual services.

[54] Mr. Kanyanga posted ads for the complainant's sexual services, communicated with clients, rented a hotel room for her to work from, and received payments from the complainant following the provision of sexual services by her.

[55] Mr. Kanyanga had a prior criminal record, including, among others, convictions for possession of a Schedule II substance for the purpose of trafficking, trafficking, break and enter, breach of probation, and possession of child pornography.

[56] Goodman J., approvingly cited Campbell J.'s decision in R. v. Lopez, 2018 ONSC 4749, where he suggested that sentencing judges consider a number of factors when assessing the gravity of the offence and moral blameworthiness of the offender in pimping-related offences. These factors include: the degree of coercion/control, the money received, the age and number of complainants involved, the vulnerability of the complainant, the working conditions, and the level of planning and sophistication involved.

[57] Considering these factors in relation to Mr. Kanyanga, Goodman J. imposed a global sentence of four years. Mr. Kanyanga, of course, was not convicted of sexually assaulting the complainant in his case, which distinguishes him from Mr. Elansooriyanathan.

[58] In relation to the conviction for sexual assault, Crown counsel cited the relatively recent decision of the Court of Appeal for Ontario in R. v. A.J.K., 2022 ONCA 487, which offers a clear indication of the appropriate range of sentence for a penetrative sexual assault. Associate Chief Justice Fairburn observed, at para. 74, that "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." She went on to instruct, at para. 77, that "absent some highly mitigating factor, the forced penetration of another person will typically attract a sentence of at least three years in the penitentiary." Indeed, the range, she said, is three to five years. This same range was subsequently confirmed by the Court of Appeal in R. v. S.W., 2024 ONCA 173.

[59] Defence counsel submitted several cases to the court in support of his position that a global sentence of four years in custody would be fit and just. He focused on the range of one to three years for first time offenders convicted of pimping offences. The defence cases include, amongst others, R. v. Greaves, 2023 ONSC 5474, R. v. Deidun, 2022 ONSC 3014, R. v. Eftekhar, 2020 ONSC 1386, and R. v. Meshreky, 2019 ONCJ 374.

[60] In Greaves, the offender was convicted by a jury of recruiting a complainant for the purpose of exploiting her, exercising control, direction or influence over the complainant's movements in order to facilitate the sale of sexual services, and receiving a financial benefit obtained from the sale of sexual services. About eight months later he was convicted, following a guilty plea, to recruiting a second complainant, this one under the age of 18 years, for the purpose of exploiting her, and receiving a material benefit from the sale of sexual services.

[61] Mr. Greaves procured the first of two complainants to engage in sex work, largely for his benefit, over a period of 12 days in early 2019. He advertised her services, arranged client appointments, kept 60% of her earnings, and provided her with drugs and alcohol.

[62] The second complainant was 17 years old. Mr. Greaves conceded that he was wilfully blind about her age. He recruited her, purchased lingerie for her, advertised her services, arranged client appointments, kept most of her earnings, and provided her with drugs and alcohol.

[63] The Crown sought a global sentence of seven years. The defence urged the court to impose a conditional sentence, largely because of immigration consequences that Mr. Greaves would suffer if a more stringent sentence were imposed.

[64] Charney J. was not persuaded that a conditional sentence was appropriate. In light of Mr. Greaves' age (he was 22 at the time of offending), his guilty plea, and his prospects for rehabilitation, Charney J. imposed a global sentence of four years, less roughly five months credit for pre-sentence custody and stringent bail conditions.

[65] In Deidun, the offender was convicted of exercising control, contrary to s. 286.3 of the Criminal Code, plus two counts of receiving a material benefit. Mr. Deidun was one of three accused. The other two were his common law spouse and her daughter. There were two complainants. Mr. Deidun's role was to collect money, drive the complainants to various hotels, and supply drugs on occasion. The offences took place over a five-to-six-week period in the late summer of 2016. The trial judge found that he was an active member in a three-person operation to exploit the complainants for profit.

[66] Mr. Deidun had a criminal record which included convictions for possession of a restricted substance, possession of stolen property, aggravated assault, use of a firearm, conspiracy to commit murder, fraud over $5,000, and obstructing a peace officer.

[67] The Crown sought an eight-year global sentence against Mr. Deidun: six years in relation to one of the two complainant's and two years consecutive in relation to the other. Defence counsel sought a conditional sentence. Shaw J. imposed a sentence of three years, less credit for pre-trial custody and stringent bail conditions, for a net sentence of just under 30 months.

[68] In Eftekhar, the offender was found guilty, after a jury trial, of procuring, obtaining sexual services for consideration, common assault, and human trafficking. He exploited a young and vulnerable Inuit woman at a time when he was 50 years old. He procured her into sex work and was her first customer. He maintained control over her through violence and the threat of violence.

[69] Phillips J. sentenced Mr. Eftekhar to four years in custody on the human trafficking count and made all other sentences concurrent to that. With respect to the procuring offence under s. 286.3(1), he sentenced Mr. Eftekhar to two years.

[70] In Meshreky, the offender entered guilty pleas to procuring, receiving a financial benefit, and advertising sexual services. The offender was 26. He persuaded a 17-year-old, developmentally delayed female to engage in prostitution. He took photographs of her and posted an ad for her sexual services on Backpages.com. He set the prices. He arranged for the clients. And he kept most of the money. The offending lasted just over a week. The complainant eventually went to the police and Mr. Meshreky was arrested. He had no prior record.

[71] For reasons not made apparent in the sentencing decision Crown counsel sought only a two-year sentence, which the sentencing judge imposed.

[72] Having considered the caselaw provided by counsel, I am satisfied that the appropriate range of sentence for the offence of exercising control, direction or influence over the movements of another person for the purpose of facilitating the commodification of sexual services (i.e. pimping) is one to five years imprisonment, with a more specific range of one to three years for first-time offenders.

[73] I am also satisfied that a range of three to five years is applicable to convictions for penetrative sexual assault.

Where Mr. Elansooriyanathan Falls Within the Applicable Ranges

[74] Where Mr. Elansooriyanathan's offending falls within the applicable ranges largely depends on the aggravating and mitigating circumstances of the offences.

[75] In my view, the Crown has accurately described the aggravating circumstances of the case. While Mr. Elansooriyanathan has a record for serious criminal offending, I accept that he does not have a record for any offences relating to the commodification of sexual services. His record remains an aggravating factor, but it would be even more aggravating if he had prior pimping-related convictions.

[76] In any event, I find the following circumstances to be mitigating in nature:

(i) Mr. Elansooriyanathan entered a guilty plea. It was not an early plea by any means. Indeed it came at the 11th hour. But it was a plea nevertheless. It is an acceptance of responsibility for the offending. It saved judicial resources. And, most importantly, it avoided the complainant having to go through the difficult exercise of testifying at trial and reliving the trauma of her experience;

(ii) I am satisfied that Mr. Elansooriyanathan is genuinely remorseful and is serious about turning his life around. He has had a difficult upbringing but I am satisfied that he has a support network, including his girlfriend, sister, and his business partner, and he is capable of rehabilitating himself; and

(iii) The terribly harsh conditions Mr. Elansooriyanathan has endured during his time in remand custody are significantly mitigating. Moreover, he spent several years on bail conditions that were sufficiently stringent that they have some further mitigating effect.

[77] Having regard to the aggravating and mitigating circumstances here (save for the harsh conditions of Mr. Elansooriyanathan's remand custody, which I will turn to in a moment), my view is that the five-year sentence sought by the Crown is a fit and just sentence. It represents two years for the s. 286.3 offending (Count 3). Given that this is Mr. Elansooriyanathan's first conviction for any offence under that section, I find that the appropriate range is one to three years. I situate the gravity of the offending and his moral blameworthiness in the middle of that range.

[78] I would make the related offences of receiving a material benefit (Count 4) and advertising sexual services (Count 6) concurrent to the s. 286.3 sentence. I would impose one year on Count 4 and six months on Count 6.

[79] The sexual assault is an entirely separate offence. One could argue that it was inextricably bound up in conduct that all had to do with the sexual objectification of H.C. In my view, however, it involved an invasion of a distinct legal interest. Commodifying H.C.'s sexual services is one thing. The sexual assault went further. It undermined H.C.'s sexual integrity and constituted an act of sexual violence. A consecutive sentence is appropriate. In light of the Court of Appeal's direction in A.J.K., the Crown's request for a three-year sentence is appropriate.

[80] In my view, a five-year global sentence does not offend the totality principle. As a global sentence it is proportionate to the culpability of Mr. Elansooriyanathan. This was very serious offending by an individual with a history of serious offending. It is also, in my view, consistent with the caselaw submitted by Crown and defence counsel. The cases I was provided tended to focus on pimping offences. They generally reflect sentences in the two-to-four-year range. What they do not account for is a separate offence of sexual assault by the offender against the complainant. The presence of that additional, serious offence inevitably elevates the sentence here, as compared to the sentences imposed in the cases cited by counsel.

[81] I turn now to the mitigating impact of Mr. Elansooriyanathan's pre-sentence custody.

Pre-Sentence Custody

[82] Mr. Elansooriyanathan is entitled to a credit for his time served in pre-sentence custody. In accordance with the principles of R. v. Summers, 2014 SCC 26, he is entitled to a credit of 1.5 days for each day of pre-sentence custody. This credit reflects the fact that pre-sentence custody is typically served in difficult conditions and that the time does not count for the purposes of eligibility for parole, earned remission, or statutory release.

[83] In some cases, the conditions of pre-sentence custody may be especially onerous or harsh – beyond even the difficult circumstances contemplated by Summers. In those cases, the court may consider such harsh conditions by way of additional mitigation of a sentence in accordance with the principles enunciated in Duncan and Marshall.

[84] The conditions of Mr. Elansooriyanathan's pre-sentence custody have been completely unacceptable. Judges in the Central East Region have been expressing concerns about the conditions at CECC for years. And they have been regularly reducing offenders' sentences as a result of the harsh conditions they have experienced while in remand custody there. One might reasonably have expected those expressed concerns to lead to positive change. Instead, conditions have only gotten worse. Chronic lockdowns have been a problem for years. An arguably worse problem is triple-bunking and it appears to have become almost routine over the past two years.

[85] The conditions Mr. Elansooriyanathan has endured at CECC are significantly mitigating of his sentence.

[86] The court may also consider time spent on stringent bail conditions, which significantly impact on the liberty of the accused, as a mitigating factor on sentencing, in accordance with the principles enunciated in R. v. Downes, [2006] O.J. No. 555.

[87] Mr. Elansooriyanathan spent some 390 days on bail. I understand that he was initially released on what his counsel described as "stringent" conditions. I am not sure exactly what those conditions were. It also appears they were varied because Mr. Elansooriyanathan was able to work and, in fact, as I noted, became a partner in a barbershop business.

[88] Whatever mitigation might be attached to Mr. Elansooriyanathan's lengthy bail conditions is likely minor. In the grand scheme of things, it is inconsequential. I find that Mr. Elansooriyanathan's global sentence should be reduced by one year on account of the egregious circumstances of his pre-sentence custody. That will reduce his global sentence to four years, which, while at the low end of a fit and just sentence, remains appropriate. I would not have reduced it further, even if I had better evidence about Mr. Elansooriyanathan's bail conditions, or their impact on his life, because in my view, the global sentence would then fall below a level that I would consider fit and just. Mitigating factors may reduce a sentence, but they may not reduce it below a level that is appropriate having regard to all of the aggravating and mitigating circumstances present. See Marshall, at para. 52.

[89] Mr. Elansooriyanathan is entitled to a credit of 1,074 days for his time in remand custody. That figure represents 716 real days, multiplied by a factor of 1.5. That figure amounts to just slightly under 36 months, which I am going to round off at three years.

Conclusion

[90] In summary, I impose a global sentence of four years, less three years credit for time served, for a net of one year. I express the sentence as follows:

(i) On Count 3: two years, less a credit of 729 days, for a net sentence of time served plus one day;

(ii) On Count 4: one year, concurrent to Count 3, less a credit of 364 days, for a net sentence of time served plus one day;

(iii) On Count 6: six months, concurrent to Count 3, less a credit of 179 days, for a net sentence of time served plus one day; and

(iv) On Count 7: three years, consecutive, less a credit of two years and one day, for a net sentence of one year less a day.

[91] In addition, I impose the following unchallenged ancillary orders:

(i) A DNA order on all counts;

(ii) A s. 109 weapons prohibition for life;

(iii) An order, pursuant to s. 743.21 of the Criminal Code, prohibiting Mr. Elansooriyanathan, while in custody, from having any direct or indirect contact with H.C. or Brett Janes;

(iv) An order that Mr. Elansooriyanathan comply with the provisions of the Sex Offender Registration Information Act ("SOIRA") for a period of 20 years; and

(v) A forfeiture order under s. 490 of the Criminal Code, which I will sign today.

C. Boswell J.

Released: October 31, 2025