R. v. Hart, 2023 BCSC 933

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Hart, 2023 BCSC 933 Date: 20230106 Docket: 32077-2 Registry: Vancouver Rex v. Maarten Thomas Hart Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code, information that may identify theperson described in this judgment as the complainant may not be published, broadcasted, or transmitted in any manner. Before: The Honourable Justice Skolrood Oral Reasons for Sentence Counsel for the Crown: M. MyhreCounsel for the Accused: R.A. McConchiePlace and Date of Trial/Hearing: Vancouver, B.C.

December 19, 2022Place and Date of Judgment: Vancouver, B.C. January 6, 2023 [1] THE COURT: On October 21, 2022, a jury found Maarten Thomas Hart guilty of one count of sexual assault. The applicablecharge is set out in an indictment dated January 11, 2022, which reads: Maarten Thomas HART, on or about the 6th day of December, 2019, at or near Vancouver, in the Province of British Columbia, didsexually assault A.S., contrary to

Section 271 of the Criminal Code. [2] Mr. Hart is now before the Court for sentencing. [3] As part of the sentencing process, Mr. Hart has brought on an application for an exemption from the requirement set out ins. 490.012 of the Criminal Code, R.S.C. 1985, c. C-46 [Code] to comply with the provisions of the Sex Offender InformationRegistration Act, S.C. 2004, c. 10 [SOIRA]. Circumstances of the Offence [4] As the trial of this matter took place before a jury, it is my responsibility as the trial judge to find the necessary facts for thepurposes of sentencing.

This requirement is set out in s. 724(2) of the Code and was described by Justice Bennett in R. v. Daigle, 2017BCCA 86 at paras. 18 and 19 as follows: [18] It is the task of a trial judge sitting with a jury to find the facts on which to base the sentence: R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96 at para. 18. The facts must be consistent with the jury’s verdict (See Ferguson at para. 17; R. v.

Brown, (SCC), [1991] 2 S.C.R. 518 at 523). [19] In finding those facts, the judge may find any fact that was disclosed by the evidence, with the limitation that any disputedaggravating fact must be proved beyond a reasonable doubt. See Ferguson at para. 18, R. v. Gardiner, (SCC), [1982] 2S.C.R. 368 at 415-16. [5] The offence took place on December 6, 2019. On that evening, Mr. Hart and the complainant, A.S., met in a hotel room inVancouver. The meeting was prearranged through a series of text messages between Mr. Hart and A.S., who was a sex worker. As part ofthe text exchange, Mr.

Hart and A.S. discussed the sexual services that would be provided and the cost of those services. During the textexchange, A.S. indicated that one of their restrictions was "no Greek". It was common ground between the parties that "Greek" is areference to anal sex. [6] During the course of their meeting on December 6, 2019, Mr. Hart and A.S. engaged in consensual sexual activity. A.S. testified,however, that at one point Mr. Hart moved A.S. to the side of the bed with their legs hanging over the bed, bent at the waist. A.S. saidthat Mr. Hart then penetrated them anally. Mr.

Hart denied doing so, but it is clear from the jury's verdict that the jury found thatMr. Hart penetrated A.S.'s anus without A.S.'s consent.

Circumstances of the Offender [ 7 ] Mr. Hart is 64 years old. He has never previously been arrested or charged with a criminal offence. Mr. Hart grew up in the United States and the Netherlands, but is a Canadian citizen. He went to university in the United States, including law school in Oregon. After practising law for a number of years, he returned to school and trained as a veterinarian in Prince Edward Island. In 2001, Mr. Hart moved to Fernie, B.C., where he practised as a veterinarian for over 20 years. [ 8 ] Mr.

Hart was married for almost 25 years, but his marriage dissolved as a result of the circumstances surrounding this offence. He and his wife divorced in 2021. They have three children: two sons and a daughter. He is estranged from his daughter, again as a result of the circumstances of this offence. He is in contact with his two sons and currently lives with one of them. [ 9 ] After being criminally charged, Mr. Hart retired from his veterinary practice and left Fernie. He believes he will be unable to return to veterinary practice due to his criminal conviction. [ 10 ] Mr.

Hart filed two letters of support from his former wife and mother-in-law. Both are supportive of him. His former wife described the offence of which Mr. Hart was convicted as being "out of character for him". Impact on the Victim [ 11 ] A.S. read a victim impact statement to the court. They spoke of the significant emotional and psychological impact the sexual assault has had on them, including three suicide attempts. The assault has had a negative impact on A.S.'s ability to work and earn an income. They continue to have flashbacks and nightmares. They describe feeling haunted and helpless.

It is clear that the offence had a significant traumatizing impact. Principles of Sentencing [ 12 ] The principles governing sentencing are well established.

Section 718 of the Code provides that the fundamental purpose of sentencing is to contribute to respect for the law, and the maintenance of a just, peaceful, and safe society. It also lists a number of specific objectives that a sentencing judge must consider, which are: (

a) to denounce 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. [ 13 ]

Section 718.1 of the Code states the most basic principle of sentencing, namely that the sentence imposed should be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 14 ]

Section 718.2 of the Code sets out a number of additional principles, including: (

a) a sentence should be increased or reduced to take account of any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, … (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation… shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less [a] restrictive [sanction is] appropriate … and (

e) all [reasonable] sanctions, other than imprisonment …should be considered …with particular attention to the circumstances of Aboriginal offenders. [ 15 ] Generally speaking, no single sentencing objective takes precedence, and it falls to the sentencing judge to determine which objective or objectives merit the greatest weight given the particulars of the case: see R. v. Nasogaluak , 2010 SCC 6 . [ 16 ] Having said that, in R. v. G.M. , 2015 BCCA 165 , the Court of Appeal held that in serious sexual assault cases, the paramount objectives are denunciation and deterrence, and that it is not an error in principle to give them primacy over other sentencing principles

like rehabilitation, at para. 17. The Court also confirmed that the range of sentences for sexual assault involving intercourse is two to sixyears, citing R. v. B.S.B., 2010 BCCA 40 and R. v. Pouce Coupe, 2014 BCCA 255. [17] However, the Court noted the well-established principle that while sentencing ranges are an important consideration, ranges areguidelines rather than hard and fast rules, at para. 22. Mitigating and Aggravating Circumstances [18] As noted, s. 718.2 of the Code, requires the sentencing judge to consider relevant aggravating and mitigating circumstances.

Herethe aggravating circumstances include: • the nature of the assault which involved forceful penetration; • the wilful disregard of A.S.'s identified boundaries and restrictions; and • the significant impact of the assault on A.S. [19] Mitigating circumstances include: • Mr. Hart is a first-time offender with no prior criminal record or arrests; • Mr. Hart has complied fully with his bail conditions; • Mr. Hart has a long history of steady employment and contributions to the community; and • the psychological assessment of Mr.

Hart places him in the lowest category in terms of likelihood of reoffending. [20] That psychological assessment was conducted by Dr. Michael Sheppard, a licensed and accredited clinical psychologist withspecific training in risk assessments regarding crime and violence, including sexual aggression. In carrying out his assessment ofMr. Hart, Dr. Sheppard reviewed various background materials relevant to the criminal charge, psychological testing data obtained fromMr. Hart, and he conducted a clinical interview with Mr. Hart. [21] As noted, based on his assessment, Dr. Sheppard opined that Mr.

Hart falls in the lowest category for recidivism. According toDr. Sheppard, in a normative sampling of Level 1 offenders, 2.8% of individuals in this category reoffend sexually in the first year, 5.4%reoffend sexually within five years, and 5.4% reoffend sexually within 10 years. Position of the Crown and the Offender [22] The Crown submits that a custodial sentence of two and one-half years is a fit and proportionate sentence for Mr. Hart.

TheCrown submits that this sentence gives proper weight to the primary sentencing principles of denunciation and deterrence, while stillacknowledging rehabilitation as a relevant objective. [23] The Crown cites a number of cases in support of its position, including:

a) R. v. G.M. – In this case again the Court of Appeal confirmed the sentence range of two to six years for serious sexual assaults. TheCrown also relies on the court's finding at para. 24 that the sentencing judge had failed to identify the principles and objectives ofsentencing that would take the sentence outside of the normal range. The Crown also cites para. 29, where the court noted that anoffender's continued denial and lack of insight is a relevant consideration when considering whether the offender is likely to reoffend.The Crown submits that those factors are present with Mr. Hart.

b) R. v. Kaczmarek, 2021 ONCA 771 – The Crown cites this case for the proposition that an offender's moral blameworthiness is notreduced when the sexual activity constituting the offence follows consensual sexual activity, as was the case here: para.97.

c) R. v. Henry, 2022 BCSC 665 – This case involved non-consensual sexual intercourse in an intimate partner relationship where theoffender took advantage of the complainant's state of intoxication. The court imposed a sentence of two years less a day. The Crownsubmits that Mr. Hart's sentence ought to be longer, despite the factual similarities concerning the offender's lack of a criminal record andemployment history, because the court in Henry did not adequately explain why the sentence imposed was below the established range.

d) R. v. Robert, 2021 BCSC 712 – There are some factual similarities in this case, in that the Indigenous offender and the complainantbegan having consensual sex, but the offender then anally penetrated the complainant without consent. Justice Gomery imposed asentence of two years which was the sentence sought by the Crown. The Crown in the present case notes that the offender there pledguilty and there were R. v. Gladue, (SCC), [1999] 1 S.C.R. 688, factors that supported a sentence at the low end of therange.

e) R. v. Smith, 2022 BCCA 405 – Here the Court of Appeal set aside a sentence of 31 months for sexual assault and substituted asentence of two years. The court explained that the sentence was at the low end of the range due to various mitigating circumstances,including potential immigration issues and a history of childhood abuse. The Crown submits that Mr. Hart should be subjected to alonger sentence, because these mitigating factors do not apply to Mr. Hart. [24] Mr.

Hart submits that a sentence in the range of 16 months to two years less a day is appropriate, and that the sentence should beserved in the community by way of a conditional sentence order. In the alternative, Mr. Hart submits that a custodial sentence of the

same duration is appropriate. Mr. Hart also submits that he should be exempted from the registration requirements under SOIRA . [ 25 ] In terms of the sentence range, Mr. Hart cites the following cases.

a) R. v. Browne , 2021 ONSC 6097 – This involved a sexual assault of an intoxicated complainant. The assault followed consensual sexual activity. The judge sentenced the offender to a Conditional Sentence O rder (“CSO”) of two years less a day, which included a house arrest condition.

b) R. v. G.D.L. , 2022 BCSC 940 – The offender and the complainant lived together in an on-again/off-again relationship. Following an argument, the offender had penetrative vaginal sex with the complainant, which he believed was consensual. However, the judge found it to be non-consensual. The judge imposed a sentence of 12 months in custody plus two years' probation.

c) R. v. Bertacco , 2021 BCSC 597 – The offender engaged in a sexual assault of a young person which lasted approximately 40 minutes and caused both physical and psychological injury. The offender was Indigenous and was also a young person. The judge sentenced the offender to 16 months in custody and three years' probation.

d) R. v. J.S.S. , 2015 BCSC 1369 – This case involved non-consensual anal intercourse by the offender with his wife, which followed other consensual sexual activity. The fact that the assault took place within an intimate partner relationship was an aggravating factor. Mitigating factors included the fact that the offender was a first-time offender, had a strong employment history, and a good support network. The judge imposed a sentence of 18 months in custody and two years' probation.

e) R. v. Henry – The offender and complainant had a casual relationship that occasionally involved sex. One evening they were engaged in some consensual sexual activity not involving intercourse, when the complainant decided she was too drunk and she went to bed. She awoke to the offender having intercourse with her. The judge imposed a sentence of two years less a day.

f) R. v. Hackett , 2016 BCSC 1424 and R. v. Narcisse , 2017 BCSC 2485 – Both cases involved non-consensual intercourse with an intoxicated complainant and both offenders were Indigenous. Both resulted in sentences of two years less a day plus two years' probation.

g) R. v. Robert , 2021 BCSC 712 – There are again some factual similarities in this case. The Indigenous offender and the complainant were engaged in consensual vaginal intercourse when the offender forcefully anally penetrated the complainant. The complainant suffered physical and psychological injuries. The judge imposed a sentence of two years plus two years' probation. Discussion [ 26 ] I will begin by considering the appropriate sentence. I will then consider whether a CSO is available and appropriate. Finally, I will consider Mr. Hart's application to be exempted from the registration under SOIRA .

Appropriate Sentence [ 27 ] In terms of a fit and appropriate sentence, the Court of Appeal in G.M. again confirmed a range of two to six years for serious sexual assault. However, as the case law establishes, ranges are simply guidelines and not hard-and-fast rules. Indeed, I have been referred to numerous authorities in which the sentence was less than two years, including G.M. , where the Court of Appeal imposed a sentence of 18 months plus a further 18 months of probation. [ 28 ] As with all serious sexual assaults, the principles of denunciation and deterrence must take precedence. I agree with Mr.

Hart's submission that specific deterrence is not a significant factor here, given the adverse consequences that Mr. Hart has experienced as a result of being charged with the offence. However, I would not characterize it as a non-factor, given the apparent absence of any insight or acknowledgment by Mr. Hart of the damage he has caused to A.S. [ 29 ] General deterrence is significant, given the all-too-prevalent occurrence of sexual assaults in our society.

I would add that it is important that the court send a message that sex workers cannot be preyed upon or abused simply by reason of the commercial nature of the sexual relationship. That said, the principle of rehabilitation also looms large in this case, as do the mitigating factors of Mr. Hart's lack of any criminal history, his longstanding employment and contributions to society, and his compliance with his bail conditions.

These factors support a sentence below the range identified in G.M. [ 30 ] Taking account of all of the circumstances, I find that a fit sentence is 22 months' imprisonment, followed by a period of two years' probation. [ 31 ] The next question then is whether a CSO is appropriate.

Section 742.1 of the Code provides for a conditional sentence in certain circumstances. The leading decision governing CSOs is R. v.

Proulx , 2000 SCC 5 at para. 46 , where the court identifies four factors emanating from s. 742.1 that a court must consider when deciding whether to impose a CSO: (1) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment; (2) the court must impose a term of imprisonment of less than two years; (3) the safety of the community would not be endangered by the offender serving the sentence in the community; and (4) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2. [ 32 ] The first two of these criteria are met here.

With respect to the third criterion, whether the safety of the community would be endangered by the offender serving the sentence in the community, I agree with Mr. Hart that this factor would also be satisfied with the

imposition of strict terms, including a term requiring house arrest for the entirety of the sentence. I note again Dr. Sheppard's opinion that Mr. Hart is in the lowest category in terms of likelihood of reoffending. [ 33 ] In my view, the issue of whether a CSO is appropriate and available here turns largely on the fourth factor, whether a CSO would be consistent with the fundamental purpose and principles of sentencing.

In considering this question, I note that the Supreme Court of Canada in Proulx observed that while incarceration will generally provide more denunciation and deterrence than a CSO, a conditional sentence can achieve those objectives, particularly if sufficiently onerous conditions are attached: see paras. 102 to 103 and 107. [ 34 ] The court also noted that in cases where punitive objectives such as denunciation and deterrence are particularly pressing, incarceration will generally be the preferable sanction, at para. 114. [ 35 ] In the present case, as the authorities make clear, denunciation and deterrence are the primary principles of sentencing that must guide the court.

In my view, a CSO would not give adequate primacy to those principles, even with the strict conditions proposed by Mr. Hart. I note that the only case cited to me in which a CSO was granted in a similar sexual assault case was an Ontario decision, R. v. Browne . No CSO was imposed in any of the B.C. cases cited by either Mr.

Hart or the Crown. [ 36 ] I note, as well, that there were numerous mitigating factors in Browne that distinguish it from the present case, including the fact that the offender showed insight into his offence and was found to be genuinely sorry, he was heavily intoxicated at the time of the offence but had since stopped using all substances and had undergone therapy to address his substance abuse issues, and he had agreed to pay $5,000 in restitution to the complainant. [ 37 ] In the circumstances, I decline to order that Mr. Hart serve his sentence by way of a CSO. Mr.

Hart’s SOIRA Application [ 38 ] I turn then to Mr. Hart's application to be exempted from registration under SOIRA . [ 39 ] It is useful to first outline the relevant provisions of the SOIRA scheme.

Section 490.012 of the Code mandates that the court must make an order requiring a person convicted of a designated offence to comply with the requirements of SOIRA : i.e., to register with the Sex Offender Registry. [ 40 ] The offence of which Mr. Hart was convicted, sexual assault pursuant to s. 271 , is a designated offence under s. 490.011. Pursuant to s. 490.013(2), the duration of the order is 20 years for Mr.

Hart. [ 41 ] The SOIRA regime requires a registered offender to comply with reporting and disclosure requirements that the Supreme Court of Canada described as "numerous, invasive and extensive": see R. v. Ndhlovu , 2022 SCC 38 . [ 42 ] In Ndhlovu , a majority of the court found that the mandatory registration requirements of SOIRA violated s. 7 of the Charter and that the violation could not be justified pursuant to s. 1. The Court suspended the declaration of invalidity of s. 490.012 for one year, and held that the declaration would apply prospectively.

However, the Court noted that offenders who were subject to the mandatory requirements could apply to the Court for a Charter remedy. I note that the dissenting judges in Ndhlovu agreed that the mandatory lifetime registration requirement in s. 490.013(2.1) was unconstitutional, but disagreed that the mandatory registration requirement in 490.012 violated s. 7. [ 43 ] It is common ground between the parties here that Mr. Hart is caught by the mandatory registration requirement, hence his application for an exemption based on an alleged violation of his Charter rights. [ 44 ] Mr.

Hart relies on the majority decision in Ndhlovu in support of his application. The majority reasons contain a detailed analysis of the Charter issues, which I will not repeat. The essence of the majority's findings is summarized in paras. 6 to 8 of the judgment as follows: [6] This appeal requires this Court to determine whether Parliament complied with the Canadian Charter of Rights and Freedoms when it chose to remove prosecutorial and judicial discretion from s. 490.012 and introduced, under s. 490.013(2.1), lifetime registration for offenders convicted of more than one designated sexual offence.

Through s. 490.012, Parliament sought to capture information about offenders that may assist police prevent and investigate sexual offences. Similarly, s. 490.013(2.1) is designed to give police a longer period of access to information on offenders at a greater risk of reoffending. [7] Even when Parliament acts with a laudable purpose, it must still legislate in a constitutional manner and comply with the Charter . It failed to do so when it enacted ss. 490.012 and 490.013(2.1).

These measures infringe the liberty interest under s. 7 of the Charter because registration has a serious impact on the freedom of movement and on the freedom to make fundamental choices of people who are not at an increased risk of reoffending over their lifetime. [8] Because the mandatory registration of those offenders who are not at an increased risk of reoffending does not assist police, it is inconsistent with the principle of fundamental justice against overbreadth.

Mandatory and lifetime registration overshoot the mark: subjecting sex offenders who do not have an increased risk of reoffending to obligatory reporting requirements is not connected to Parliament’s purpose of capturing information that assists police prevent and investigate sex offences. Requiring lifetime registration also goes too far and denies the rights of some individuals in a way that bears no relation to Parliament’s objective. [ 45 ] Mr.

Hart grounds his application largely in the observations of the majority found at para, 140, where they stated: [140] … a prospective declaration of invalidity would not unduly prejudice offenders who have been registered since 2011 but whose rights under s. 7 are still violated. Those offenders will be able to ask for a personal remedy pursuant to s. 24(1) of the Charter in order to be removed from the registry if they can demonstrate that SOIRA 's impacts on their liberty bears no relation or is grossly

disproportionate to the objective of s. 490.012. [ 46 ] Elsewhere at para. 92, the majority described the objective of SOIRA as "capturing information that may assist police prevent and investigate sex offences." [ 47 ] Mr. Hart submits that, given his personal circumstances and the psychological assessment of Dr. Sheppard, that he is in the lowest category of persons likely to reoffend.

There is no basis to find that his inclusion in the Sex Offender Registry would advance the objective of preventing or investigating sexual offences, yet there would be a significant detrimental impact on his liberty. [ 48 ] Both parties focused their submissions largely on the likelihood of Mr. Hart reoffending. On this issue, it is useful to note the language used by the majority in Ndhlovu . That language differs somewhat throughout the majority reasons. At para. 9, the majority refers to offenders who, because of their individual circumstances, are at a "negligible risk of reoffending".

Elsewhere at paras. 85 and 87, the majority refers to individuals who are at "no increased risk of reoffending." As an example, the majority cites R. v. T.L.B. 2007 ABCA 61 , where the offender was wheelchair bound due to cerebral palsy, unable to work, required daily assistance from a caregiver, and had lost custody of the child she was accused of sexually abusing. According to the majority, the offender's personal circumstances made it "highly improbable" that she would offend, and there was no increased risk that she would ever commit another sex offence, at para. 89. [ 49 ] The Crown submits that Mr.

Hart has failed to meet the threshold standard, whether described as a negligible risk or no increased risk of reoffending and, as such, has not established that his s. 7 rights would be violated by requiring him to comply with SOIRA . [ 50 ] Taking account of all of the circumstances and the principles emanating from Ndhlovu , I find that requiring Mr. Hart to register with the Sex Offender Registry pursuant to SOIRA would not advance the objectives of the SOIRA regime, but would have a significant negative impact on Mr.

Hart's liberty. [ 51 ] As such, I find that mandatory registration would violate his rights under s. 7 of the Charter . I am therefore prepared to grant a remedy under s. 24(1) of the Charter and exempt Mr. Hart from registration. I reach this conclusion for the following reasons. [ 52 ] A SOIRA order would subject Mr. Hart to continuous disclosure and monitoring requirements for 20 years, which, given his age, would continue well into his eighties. As noted, the majority in Ndhlovu described these requirements as "numerous, invasive and extensive". [ 53 ] Mr.

Hart's personal circumstances and characteristics support a finding that there is no increased risk of him reoffending. He is a first-time offender with no prior arrests or criminal charges. He is 64 years old and has led a largely prosocial lifestyle that includes raising a family, extensive education, and a professional career, first as a lawyer and laterally as a veterinarian. [ 54 ] Mr. Hart has experienced significant adverse consequences as a result of the criminal proceedings, including the loss of his marriage and his profession.

These consequences are likely to have a strong deterrent effect on him. [ 55 ] Dr. Sheppard has assessed Mr. Hart as falling in the Level 1 category for recidivism, which is the lowest category. As I have noted, 2.8% of individuals in this category are statistically likely to reoffend within the first year; 5.4% within five years; and 5.4% within 10 years. The Crown fairly makes the point that these percentage figures say nothing about how Mr. Hart's likely rate of recidivism compares to the general population in terms of percentage likelihood of committing a sexual offence.

The Crown also submits that there are flaws in Dr. Sheppard's report; for example, he does not list all of the factors taken into account in the psychological testing administered to Mr. Hart. The Crown submits that Mr. Hart cannot therefore establish that he does not present an increased risk of reoffending. [ 56 ] I do not accept the Crown's criticisms of Dr. Sheppard's report. It was open to the Crown to seek to cross-examine Dr. Sheppard if it wanted to press those points, but the Crown did not do so. Further, it is unclear what additional evidence Mr.

Hart could have led on top of a psychological opinion that he is in the lowest possible category for reoffending. It is highly unlikely that any psychologist would or could give an opinion that an individual had no likelihood of reoffending.

The Crown's point about the absence of comparisons to the general population has some merit, but it is offset by the other factors such as those already alluded to. [ 57 ] The sentence that I am imposing includes a period of probation which will include terms to address any risk factors that exist, including a requirement for appropriate counselling and treatment. [ 58 ] I am mindful of the Crown's submission that Mr. Hart's lack of insight into his offence and apparent lack of remorse are relevant factors when assessing the likelihood that he will reoffend. However, those factors were considered by Dr.

Sheppard as part of his assessment. [ 59 ] For these reasons, I grant an order pursuant to s. 24(1) of the Charter exempting Mr. Hart from complying with SOIRA . Disposition [ 60 ] Mr. Hart, would you please stand. [ 61 ] On the charge of sexual assault of which you have been convicted, I sentence you to imprisonment for a period of 22 months, followed by a period of probation of two years. I recommend that Mr. Hart serve the term of imprisonment at the Ford Mountain Correctional Centre, where I understand there to be specific programs targeted to sexual offenders. [ 62 ] You may sit down, Mr.

Hart. [ 63 ] The probation order will include the compulsory conditions set out in s. 732.1 of the Code and will include, as well, the

following conditions:

a) You will report to a probation officer on the first working day after your release from custody and thereafter as directed by the probation officer;

b) You will reside at a place approved by the probation officer and make no change to your residence without the probation officer's prior permission;

c) You will attend, participate in, and complete to the satisfaction of the probation officer any individual and/or group therapy, counselling, and/or treatment for sex offenders as directed by the probation officer; and

d) You will have no contact, direct or indirect, with A.S. and you will not go or remain within 500 metres of any place you know A.S. is or is likely to be. [ 64 ] In addition, I make the following ancillary orders which are not contested:

a) an order pursuant to s. 487.051 requiring Mr. Hart to provide bodily samples as are reasonably required for the purposes of forensic DNA analysis;

b) an order pursuant to s. 109(2) prohibiting the possession of a firearm for 10 years; and

c) an order pursuant to s. 737 imposing a victim surcharge of $200. [ 65 ] Those are my reasons. Anything arising, counsel? [ 66 ] CNSL M. MYHRE: The only thing that occurs to me, Justice, is an order under s. 740 -- 743.21-- it's a no-contact order while incarcerated that should go on the warrant. [ 67 ] CNSL R. McCONCHIE: No objection. [ 68 ] CNSL M. MYHRE: It's 743.21. [ 69 ] THE COURT: Yes, so I will include as a term an order pursuant to 743.21 for no contact, directly or indirectly, with A.S. during the period of incarceration. Thank you. “Skolrood J.”