ONTARIO SUPERIOR COURT OF JUSTICE

Court File and Parties

COURT FILE NO.: CR-25-1269-SR

DATE: 2025-12-12

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Plaintiff – and – ASHOK DUA Defendant

Nancy Flynn, for the Crown

Peter Boushy, for the Defendant

HEARD: November 13, 2025

REASONS FOR JUDGMENT

PUBLICATION BAN Pursuant to s.486.4 of the Criminal Code , no information that could identify the complainant shall be published in any document or broadcast or transmitted in any way.

Bordin J.

Overview

[ 1 ] Mr. Dua is before the court on a breach of conditional sentence order which was imposed following a plea by Mr. Dua on April 10, 2024.

[ 2 ] The circumstances of the plea and sentence were that Mr. Dua had been charged with two counts under s. 271, one count under s. 151 and one count under s. 152 of the Criminal Code . Mr. Dua plead guilty to the lesser included offence of assault. The Crown and defence proceeded on a joint submission. Mr. Dua was sentenced to a conditional sentence of two years less a day of house arrest. The conditions of house arrest included that Mr. Dua:

a. keep the peace and be of good behaviour; and

b. was prohibited from having any contact – including communicating by any means – with a person who is under the age of 16 years, unless he does so under the supervision of a person whom the court, or his supervisor, considers appropriate and approves in writing in advance.

[ 3 ] It is alleged that on May 11, 2025, Mr. Dua breached the conditions of the conditional sentence order by:

a. Failing to keep the peace and be of good behaviour,

b. Failing to remain in his residence or on its grounds at all hours, and

c. Failing to abstain from having contact including communicating by any means with a person under the age of 16 years, specifically by attending the Hindu Samaj Temple at 6297 Twenty Road East in Glanbrook (the “Temple”) and sexually assaulting two 9 year old girls.

[ 4 ] Mr. Dua was arrested on May 12, 2025, and charged with several counts of sexual assault, sexual interference, failing to comply with an undertaking and of making sexually explicit material available to someone under 16 years of age.

[ 5 ] At the time of his arrest, Mr. Dua was also subject to an undertaking given to the court in London on September 15, 2024, not to engage in any activity that involves contact with a person under the age of sixteen years for the duration of the release order.

The breach of the conditional sentence order

[ 6 ] Mr. Dua concedes a breach of the term of the conditional sentence order that he abstain from having contact, including communicating by any means, with a person under the age of 16 years. He acknowledges that there was contact and communication with the alleged victims of the charges who are under the age of 16. All the breaches occurred at the Temple.

[ 7 ] Specifically, Mr. Dua concedes that:

a. There was communication with some or all of A.S. age 9, A.S. Age 7, and A.T. age 9, on May 11, 2025, which occurred when the girls approached a counter in the basement of the Temple;

b. Contact with A.S. and A.T. on May 11, 2025, in the basement of the Temple; and

c. Contact and communications with R.P., age 9, between March 16, 2025, and April 17, 2025.

[ 8 ] No admission is made of any of the other allegations underlying the charges arising out of the contact with the four girls.

[ 9 ] To find a breach, pursuant to 742.6(9), the court must be satisfied, on a balance of probabilities, that Mr. Dua has without reasonable excuse breached a condition of the conditional sentence order. The burden of establishing reasonable excuse is on Mr. Dua.

[ 10 ] On the facts as admitted, I find that Mr. Dua has, without reasonable excuse, breached clause II.o.i. of the conditional sentence order requiring him to abstain from having contact including communicating by any means with a person under the age of 16 years.

Appropriate sanctions for breach

[ 11 ] Having found a breach, I must determine the sanctions to be imposed. Section 742.6(9) provides:

Where the court is satisfied, on a balance of probabilities, that the offender has without reasonable excuse, the proof of which lies on the offender, breached a condition of the conditional sentence order, the court may:

(a) take no action;

(b) change the optional conditions;

i. that the offender serve in custody a portion of the unexpired sentence, and

ii. that the conditional sentence order resume on the offender's release from custody, either with or without changes to the optional conditions; or

(d) terminate the conditional sentence order and direct that the offender be committed to custody until the expiration of the sentence.

[ 12 ] The Crown’s position is that I should terminate the conditional sentence order pursuant to s. 742.6(9)(d) and commit Mr. Dua to custody until the expiration of the sentence.

[ 13 ] Mr. Dua’s position is that the conditional sentence order should continue, with some of the exceptions to the conditions of house arrest removed to make the conditional sentence order more restrictive.

[ 14 ] The starting point for any court called upon to consider an application for termination of a conditional sentence is R. v. Proulx , [2000] 1 S.C.R. 61, 2000 SCC 5 . At paragraph 39 the court stated that “where an offender breaches a condition without reasonable excuse, there should be a presumption that the offender serve the remainder of his or her sentence in jail.” The idea is that the threat of incarceration will help ensure the offender complies with his conditions.

[ 15 ] The British Columbia Court of Appeal in R. v. Langley , 2005 BCCA 478 , at paras. 5 through 7 and 13, set out the principles to be considered. They include:

a. public acceptance of conditional sentences requires prompt and stern attention to breaches;

b. a court’s discretion under s. 742.6(9) is not narrowly circumscribed to the factors to be considered under s. 742.1 (the safety of the community and consistency with the purpose and principles of sentencing set out in ss. 718 to 718.2), however, the discretion given by s. 742.6(9) is not absolute;

c. not every unexcused breach can result in termination of the conditional sentence;

d. the absence of specific guidelines for the exercise of the discretion provides flexibility for courts to fashion a disposition appropriate to each offender and the circumstances of the breach so that the mandated purposes of sentencing can be achieved and the public protected from further criminal activity;

e. the court must explain the factors taken into account in exercising the wide-ranging discretion and the reasons for selecting the particular disposition;

f. the offender must establish that sentencing principles can be met with a disposition other than termination;

g. the task of the court at a disposition hearing is to consider:

i. the nature of the offence;

ii. the nature, circumstances, and timing of the breach;

iii. any subsequent criminal conduct and sentences for that conduct;

iv. changes in the plan for community supervision;

v. the effect of termination on the appropriateness of the sentence for the original offence;

vi. and the offender’s previous criminal record, in determining whether the presumption of termination for breach is to be applied; and

h. if the presumption is rebutted, the court then is to ask itself which of the other three options is appropriate, having regard to those same factors.

[ 16 ] The Crown submits that when the court takes into account the factors noted in g. above, Mr. Dua has not rebutted the presumption that he serve the remainder of his sentence in jail.

[ 17 ] Mr. Dua concedes that the breach, in light of the allegations, their number, and his history is problematic and significant. However, he submits that the supervising officer provided him with greater exceptions under the conditional sentence order than intended and than was included in the detailed order. Specifically, the officer allowed Mr. Dua to attend the Temple when the Temple was a location of the events that gave rise to his conviction and conditional sentence. Mr. Dua submits that incarceration is not necessary and that the objectives of sentencing can be met with tightened conditions on the conditional sentence.

[ 18 ] Mr. Dua also notes that his health issues are currently being managed while in custody but that may change and submits that his current dietary needs cannot be met in custody which favours maintaining the conditional sentence and house arrest. He submits that he followed the terms of the conditional sentence order for 13 months without incident.

[ 19 ] The nature of the breach is a serious one. It is a violation of one of the principal restrictions on Mr. Dua that was aimed at preventing harm which was directly connected to the circumstances of the assault conviction and Mr. Dua’s prior convictions.

[ 20 ] The assault conviction giving rise to the conditional sentence order involved a victim that was 10 to 15 years old at the time of the touching. The touching began in 2013. Mr. Dua touched the victim over a period of 5 years including 4 to 6 occasions in his vehicle and at times following attendance at the Temple. Mr. Dua also asked the victim about other girls he could have contact with.

[ 21 ] In 1999, Mr. Dua was convicted of 23 counts, including 14 counts of sexual services for consideration from females under the age of 18; one count of sexual assault on a female, two counts of inviting sexual touching by a female under 14, and six counts of sexually touching females under 14. Some of the convictions overlapped and were stayed on Kineapple principles. In most cases the females were in grades 7 and 8. Mr. Dua was also convicted of wilful and flagrant breaches of recognizances by being alone with the girls. The restrictions had been directed at the core of the wrongdoing and compliance was the basis for Mr. Dua’s release from custody. There were multiple violations. Mr. Dua’s acts were held to be an absolute disregard for court orders. See R. v. Dua , 1999 CarswellOnt 4458, [1999] O.J. No. 5068, 45 W.C.B. (2d) 83, paras 1 – 5 .

[ 22 ] These latter comments are applicable on the facts before me. The condition which was breached was specifically aimed at protecting young women and girls from contact with Mr. Dua and from the possibility of offences being committed. The condition preventing contact or communications with females under the age of 16 was an integral part of the conditional sentence order.

[ 23 ] There have been multiple violations of the no contact and communication aspect of the conditional sentence order involving four girls over two or more days spanning a period of two months. The girls are 7 to 9 years old. The breaches can be described as wilful and flagrant. The breaches also occurred at the same location that was a part of the constellation of facts giving rise to the assault conviction and the conditional sentence order. It is no answer to say that the supervising officer permitted attendance at the Temple.

[ 24 ] In addition to the conditional sentence order, Mr. Dua was also subject to an undertaking to the court in London with the same condition, which he also breached.

[ 25 ] The conditional sentence order was the result of a joint submission. Approximately 11 months remain to be served. There is no indication that the length of the conditional sentence, or even the time remaining to be served under the conditional sentence, is greater than any period of incarceration that would have been sought by the Crown or imposed by the court. Terminating the conditional sentence order would not make the sentence for the original offence of assault an inappropriate one, given the circumstances of that offence.

[ 26 ] Mr. Dua testified with respect to his health condition and health challenges. He clearly has problems with his kidneys. He tendered a letter from Dr. Brindle of September 2, 2025, which was not challenged by the Crown. However, it is conceded by Mr. Dua that his medical issues are being managed at the jail where he is currently being held. The evidence bears this out. Among other things, Mr. Dua receives regular testing, receives his medication, and has been taken to see his specialist. Dr. Brindle put Mr. Dua’s risk of requiring dialysis at about 30 percent in the next two years and about 65 percent in the next five years. He suggests that he would like to see Mr. Dua in clinic every four months which may increase over time. Dr. Brindle did not express any concerns that Mr. Dua’s health issues could not be addressed while he is in custody.

[ 27 ] There is some evidence from Mr. Dua that the jail is not able to provide the right kind of vegetarian diet which he needs because of his condition. However, there is no mention made of this by Dr. Brindle in his letter. I would have thought that if it was a concern for Mr. Dua’s health and specifically his kidney issues, Dr. Brindle, a nephrologist, would have addressed the issue. I find it is not a significant issue.

[ 28 ] The current conditional sentence order is a stringent one. Mr. Dua proposes that the following exceptions to his house arrest be removed:

a. Performing community service;

b. Emergencies involving family members;

c. Attending counselling as directed;

d. Attending such other programs or services as deemed appropriate by his supervisor.

[ 29 ] There is no evidence before me that Mr. Dua exercised any of these exceptions during the 13 months before he was arrested. In any event, the changes proposed by Mr. Dua are minor tweaks to the order. In some ways, they remove obligations on Mr. Dua and make the conditional sentence order less onerous. They do not significantly address the principal condition that was breached – that there be no contact and communication with females under the age of 16.

[ 30 ] I acknowledge that Mr. Dua seemingly complied with his conditional sentence order for approximately 11 to 13 months. But this amounts to only half of the required term.

[ 31 ] Considering all of these factors, in my view it cannot be said that allowing Mr. Dua to continue to serve his conditional sentence would not endanger the safety of the community as required by s. 742.1.

[ 32 ] Mr. Dua has not rebutted the presumption that the conditional sentence order should be terminated.

No credit for time served during suspension of conditional sentence order

[ 33 ] Pursuant to s. 742.6(10), the running of Mr. Dua’s conditional sentence order is suspended from the date of his arrest on May 12, 2025, until the determination of whether a breach of condition had occurred, which is December 12, 2025.

[ 34 ] Mr. Dua submits that if the conditional sentence order is terminated, he should be given credit for one month pursuant to s. 742.6(16), which provides that:

If a court is satisfied, on a balance of probabilities, that the offender has without reasonable excuse, the proof of which lies on the offender, breached a condition of the conditional sentence order, the court may, in exceptional cases and in the interests of justice, order that some or all of the period of suspension referred to in subsection (10) is deemed to be time served under the conditional sentence order.

[ 35 ] The Ontario Court of Appeal in R. v. Bardwell , 2024 ONCA 918 considered the application of s. 742.6(16). In short, s. 742.6(16) provides for the possibility of granting credit against the remainder of the sentence. Subsection 742.6(17) sets out certain mandatory, though not exclusive, considerations for the court in exercising its discretion under subsection (16):

(a) the circumstances and seriousness of the breach;

(b) whether not making the order would cause the offender undue hardship based on the offender’s individual circumstances; and

(c) the period for which the offender was subject to conditions while the running of the conditional sentence order was suspended and whether the offender complied with those conditions during that period.

[ 36 ] The Ontario Court of Appeal held that s. 742.6(16) can only be given effect in “exceptional cases”: Bardwell , at para. 13 . Further, the provision is to be given effect only in the “clearest of cases” presenting rare and exceptional circumstances. Finally, the court must be satisfied that granting credit for at least a portion of the period during which the conditional sentence order was suspended is “in the interests of justice”: Bardwell , at para. 13 .

[ 37 ] Mr. Dua concedes that the delay before October 10, 2025, is not exceptional. Having reviewed the attempts to set dates prior to October 10, 2025, I note that the trial coordinator reached out to defence counsel as early as May 21, 2025, and followed up thereafter. On at least one occasion defence counsel requested a remand and later requested dates several months later after a further request for defence counsel’s position. In light of this, I would not have categorized the delay in the period as exceptional. It is attributable to Mr. Dua.

[ 38 ] Mr. Dua submits that the delay between October 10, 2025, and November 12, 2025, should be held to be an exceptional circumstance because the hearing was adjourned as it came before another judge, and Mr. Dua expected and was of the view that the hearing should come before me as I was the judge who made the conditional sentence order.

[ 39 ] Mr. Dua concedes that when the date was set, no request was made to have the hearing before me. In my view the delay from October 10, 2025, to November 10, 2025, is not an exceptional delay. Any judge could have heard this matter. No specific request was made to have it scheduled before me. In any event, the Court of Appeal in Bardwell held that “a good deal more than a 2 to 3-month net delay is required in order to make out exceptional circumstances”: Bardwell, at para. 17 .

[ 40 ] Turning to the other factors, I have already concluded that the breach was serious and was wilful, and flagrant. The breach goes to the heart of the conditional sentence order and the underlying assault conviction. Further, I have also concluded that there is no serious threat to Mr. Dua’s health or health care at this time and not granting the one month credit would not cause undue hardship to Mr. Dua.

Disposition

[ 41 ] The conditional sentence is terminated. Mr. Dua was sentenced on Apr 10, 2024. He was arrested on May 11 – which is 397 days – 333 days remain to be served on the conditional sentence order. They shall be served in jail.

[ 42 ] As requested by the Crown and not opposed by Mr. Dua, there shall be a no-contact while in custody order with respect to K. G., D. G., S. G., and U. G.

M, Bordin, J.

Released: December 12, 2025