R. v. D.C., 2020 NLSC 135

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. D.C. , 2020 NLSC 135 Date : October 15, 2020 Docket : 201908G0137 Her Majesty The Queen v. D. c. Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way. Before: Justice Frances J. Knickle Place of Hearing: Wabush, Newfoundland and Labrador Dates of Hearing: October 9, 2020

Summary: The offender was convicted of having committed sexual assault upon a fourteen year old acquaintance. He invited the victim into his vehicle, and then drove her to a secluded area where he forced nonconsensual intercourse with the victim. When confronted by the police the offender denied that he had been with the victim, instead fabricating several different accounts of his whereabouts. Once DNA confirmed there had been sexual contact by the offender with the victim, he admitted having sexual intercourse but denied that it was without the victim’s consent.

The incident lasted several minutes but there were no physical injuries to the victim. The offender, a youthful first time offender, was sentenced to a period of imprisonment of three years.

Appearances: Holly Holm Appearing on behalf of the Crown Courtney Mills Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. D.C., 2020 NLSC 89; R. v. Lacasse, 2015 SCC 64; R. v. Friesen, 2020 SCC 9; R. v. A.(K.J.) (1988), (NL CA), 69 Nfld. & P.E.I.R. 99, 4 W.C.B. (2d) 348 (Nfld. C.A.); R. v. N.(P.D.), 2011 NLTD(G) 158; R. v.Noseworthy (1982), 40 Nfld. & P.E.I.R. 193, 9 W.C.B. 91 (Nfld. C.A.); R. v. Vokey, 2000 NFCA 12; R. v. B.(A.), 2015 NLCA 19; R. v.G.H., 2020 NLSC 12; R. v. F.(E.W.), 2006 NLTD 91; R. v. Hunt, 2015 NLTD(G) 82; R. v. R.W.B., 2000 NFCA 13; R. v. Bossé, 2005NBCA 72.

STATUTES CONSIDERED: Criminal Code of Canada, R.S.C. 1985, c. C-46; Sex Offender Information Registry Act, S.C. 2004, c. 10. REASONS FOR JUDGMENT Knickle, J.: INTRODUCTION [1] D.C. was convicted after a trial by judge alone of committing sexual assault against the victim, contrary to

section 271 of theCriminal Code of Canada, R.S.C. 1985, c. C-46 (the “Criminal Code”). This is the decision on the sentence to be imposed. THE CIRCUMSTANCES OF THE OFFENCE [2] The evidence at trial was reviewed in detail in the decision on verdict in R. v. D.C., 2020 NLSC 89. In

summary, the victimtestified that on a Saturday afternoon in March of 2018, she went for a drive with D.C. in his car. The victim had just turned 14 years old. D.C. was 18 years old at the time. She did not know him well but had come to be acquainted with him through mutual friends. The twohad been chatting on social media, and they arranged for him to drive her to her friend’s house where she was destined that afternoon. Instead of taking her to her friend’s house, D.C. drove her to a secluded area where he forced himself upon her.

He took off her clothesand had sexual intercourse with her while the two were in the front passenger seat of his vehicle. The victim did not consent to thiscontact and repeatedly told D.C. to stop. The victim testified she did not try to stop D.C. because he was larger and stronger. D.C. didnot wear a condom, and afterwards drove the victim to her friend’s house. [3] The victim disclosed what happened to her guidance counsellor early the next week, who then contacted the victim’s mother.

The victim and her mother then went to the police to make a formal complaint about what had happened. [4] When the police spoke to D.C. shortly afterwards, he denied being in the victim’s company. He stated to the police that he hadgone on a snow mobile trip that afternoon with two friends. He was adamant that he had not been with the victim over the course of twointerviews and gave several contradictory accounts as to his whereabouts.

He eventually admitted that he may have seen her, but she wasnot in his car, and he had no sexual contact with her of any kind. [5] Upon further investigation, D.C.’s DNA and semen was confirmed as present on the victim’s underwear. [6] At trial, D.C. admitted that what he had stated to the police was not the truth. He admitted that he lied to the police as to hiswhereabouts, and fabricated an alibi because he was afraid. He testified that he was with the victim on the date in question, and that theydid have sexual intercourse. However, D.C. testified that the intercourse was consensual.

THE PRINCIPLES OF SENTENCING [7] The principles of sentencing are codified under the Criminal Code at sections 718 to 718.2. [8] Under

section 718.1, a sentence must be commensurate with the gravity of the offence and the degree of responsibility of theoffender, sometimes referred to as the level of “moral blameworthiness” or the “proportionality principle”. Wagner, C. J. in R. v.Lacasse, 2015 SCC 64 explained the relationship between the proportionality principle to its subset the “parity principle” in sentencing,at paragraph 12: 12. In such cases, proportionality is the cardinal principle that must guide appellate courts in considering the fitness of a sentenceimposed on an offender.

The more serious the crime and its consequences, or the greater the offender’s degree of responsibility, theheavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime’s consequences,but also on the moral blameworthiness of the offender. Determining a proportionate sentence is a delicate task. …

[9] The fit or proportionate sentence must serve the fundamental principle under

section 718: 718. Purpose The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for thelaw 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. [10] Under

section 718.01, where sentences are imposed for offences committed against persons under 18 years of age, the courtshall give primary consideration to the principles of denunciation and deterrence. The Supreme Court of Canada in R. v. Friesen, 2020SCC 9 recently reviewed the principles governing sentencing of offenders for sexual offences against children. The Criminal Codediscussed

section 718.01 and its direction to prioritize the principles of denunciation and deterrence. At paragraph 105, speaking for thecourt, Wagner, C.J. stated: 105 Parliament’s choice to prioritize denunciation and deterrence for sexual offences against children is a reasoned response to thewrongfulness of these offences and the serious harm they cause. The sentencing objective of denunciation embodies the communicativeand educative role of law (R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 102). It reflects the fact that Canadian criminal law is a“system of values”.

A sentence that expresses denunciation thus condemns the offender “for encroaching on our society’s basic code ofvalues”; it “instills the basic set of communal values shared by all Canadians” (M. (C.A.), at para. 81). The protection of children is oneof the most basic values of Canadian society (L. (J.-J.), at p. 250; Rayo, at para. 104).

As L’Heureux-Dubé J. reasoned in L.F.W., “sexualassault of a child is a crime that is abhorrent to Canadian society and society’s condemnation of those who commit such offences must becommunicated in the clearest of terms” (para. 31, quoting L.F.W. (C.A.), at para. 117, per Cameron J.A.). [11] Under

section 718.2(a), a sentence should be increased or decreased according to any aggravating or mitigating factors. Undersection 718.2(a)(ii.1), abuse of a victim under the age of 18 is an aggravating factor. As explained in Friesen at paragraphs 134-135,there is an imbalance of power between an adult and child which exacerbates the vulnerability of the child victim and the seriousness ofthe offence.

At paragraph 136, however, the court also cautioned that while the younger the child victim the more aggravating may bethe circumstances, this did not mean that offences involving adolescents necessarily are less serious; particularly given that many childvictims are adolescent. Wagner, C.J. stated: 136 At the same time, courts must also be particularly careful to impose proportionate sentences in cases where the victim is anadolescent.

Historically, disproportionately low sentences have been imposed in these cases, particularly in cases involving adolescentgirls, even though adolescents may be an age group that is disproportionately victimized by sexual violence (Benedet, at pp. 302, 304 and314; L. (D.O.), at pp. 464-65, per L’Heureux-Dubé J.). In particular, sexual violence by adult men against adolescent girls is associatedwith higher rates of physical injury, suicide, substance abuse, and unwanted pregnancy (I. Grant and J.

Benedet, “Confronting the SexualAssault of Teenage Girls: The Mistake of Age Defence in Canadian Sexual Assault Law” (2019), 97 Can. Bar Rev. 1, at p. 5; “The‘Statutory Rape’ Myth”, at p. 269; R. v. Hess, (SCC), [1990] 2 S.C.R. 906, at pp. 948-49, per McLachlin J.). [12] In R. v. A. (K.J.) (1988), (NL CA), 69 Nfld. & P.E.I.R. 99, 4 W.C.B. (2d) 348 (Nfld. C.A.) at paragraph 32,the Newfoundland Court of Appeal provided useful guidelines as to the considerations in determining the appropriate sentence for sexualassault.

These guidelines assist how the sentencing judge gives effect to the principles codified in the Criminal Code and include, but arenot limited to, the following: • The extent of the assault; • The degree of violence or force used; • The impact of the crime on the victim, family, and the offender; • The degree of trust; • Public abhorrence; and • The circumstances of the offender including his or her age, attitude towards the offence, his prospects for rehabilitation, and his

antecedents. [ 13 ] I accept the admonition to sentencing judges in Friesen , at paragraph 117 , that assaults against children will, as a general rule, warrant a more severe sanction than for an assault against an adult. I recognize, as described in Friesen , that the victim’s age group in particular, as adolescent, are “frequent targets” of sexual assault. However, in these circumstances, the aggravating feature of the victim’s young age is tempered by the closeness in age between she and D.C. I keep in mind that D.C. was just 18 years old at the time he assaulted the victim.

While an adult, he was a young adult. [ 14 ] The considerations in A.(K.J.) , as well as other considerations as they relate to the circumstances of this case, are addressed below. The extent of the assault [ 15 ] The extent of the assault is relevant to determining the seriousness or gravity of the offence. It also includes a consideration of the degree of physical interference. As stated in Friesen at paragraph 138 , “the degree of physical interference is a recognized aggravating factor”.

In particular, the degree of physical interference, is a factor that reflects: … the degree of violation of the victim’s bodily integrity. It also reflects the sexual nature of the touching and its violation of the victim’s sexual integrity. [ 16 ] In these circumstances the victim was 14 years old; an adolescent when she was assaulted. The extent of the sexual assault involved one act of full vaginal intercourse with the victim.

The assault lasted for several minutes. [ 17 ] In considering the seriousness, there may not have been the kind of power imbalance in this sexual assault as might occur between a very young child and an adult. But there was an imbalance of power between the victim and D.C. because of the circumstances in which the assault occurred. The victim was in D.C.’s vehicle and he was the one who was driving the vehicle. The assault occurred in a secluded area to which the victim had no control in choosing. It would have been unreasonable, for example, for the victim to have left the vehicle to get away from D.C.

They were far from their community, in the month of March, in a northern area of the province. In this way, D.C. exercised control and there was an imbalance of power between the two. These circumstances facilitated the commission of the assault. [ 18 ] These circumstances tend to make the assault more serious, and I have taken the seriousness into account, in fashioning the sentence imposed. The degree of violence or force used [ 19 ] D.C. forced himself upon the victim and used force to accomplish his desire.

Sexual assault is a violent offence by definition and I find the circumstances here of forcing his penis into the victim’s vagina a violent act. This was a serious violation of the victim’s sexual integrity and personal autonomy. While a violent act, I also accept that the circumstances here are less serious than many sexual assaults that come before the Court. The victim suffered no physical injuries, and there were no other acts of violence used by D.C. The circumstances here are similar to that in R. v. N.(P.D.) , 2011 NLTD(G) 158.

The impact on victim [ 20 ] The victim provided no victim impact statement to the court. This is not uncommon. The lack of a victim impact statement does not mean there was no impact upon her for what happened. I accept that as a serious and violent offence, this was a traumatic experience and there will have been impact on M.R. The degree of position of trust between the offender and the victim [ 21 ] D.C. was not in a position of trust towards the victim insofar as she was not dependent on him. He was an acquaintance.

While I accept that he was not in any formal position of trust towards her, the victim had only just turned 14 years old, and D.C. was four years her senior. She was invited into his vehicle, and as someone with whom she was acquainted, she was entitled to expect from D.C. that she would not be sexually assaulted. Public abhorrence of the offence [ 22 ] The public abhors this offence.

While the extent of the assault and the degree of violence used are not as serious as many circumstances that have come before the court, any time that someone forces another to engage in sexual intercourse against their will is to be denounced in strong terms. All persons are entitled to have their sexual integrity respected by others. THE CIRCUMSTANCES OF THE OFFENDER [ 23 ] D.C. is now 20 years old. He has graduated from high school, has been gainfully and regularly employed, and has never been in trouble with the criminal justice system.

A pre-sentence report was prepared which can be described as a positive report. Apart from being asthmatic, he had a healthy and positive childhood. According to the report he experienced some academic difficulties in school with what is described as a “processing disorder” for which he received accommodation in his schooling. [ 24 ] D.C. has a supportive family and girlfriend. He is especially close to his step-sister and he is described as a “caring and sympathetic person”.

It is often the tragedy of having been found guilty of this kind of offence that the offender may in many other relationships present as caring and that this kind of conduct is out of character (see for example R. v. Noseworthy (1982), 40 Nfld. & P.E.I.R. 193, 9 W.C.B. 91 (Nfld. C.A.) at paragraph 2 ).

[25] Still, these are positive antecedents and I have taken this into account in fashioning the fit sentence. Attitude towards the offence [26] D.C. is described in the pre-sentence report as being “very disheartened” by having been found guilty, and that the “wrongdecision” has been made. It cannot be said that he exhibits remorse as his attitude towards the offence is that he maintains hisinnocence. [27] It cannot be overstated that the absence of remorse is never an aggravating factor on sentence. However, the presence ofremorse can be a significant mitigating factor on sentence.

It can be a mitigating factor because the presence of remorse shows insightinto the criminal conduct and acceptance of responsibility. Insight and acceptance of responsibility is an important step for an offenderon the road to rehabilitation and reintegration into society (see Friesen, at paragraph 165). Because D.C. does not accept responsibilityfor his criminal conduct, there is no ability to consider such factors in mitigation in these circumstances. [28] The report does not suggest that D.C. is averse to counselling.

In these circumstances, in forcing intercourse upon the victimwhen he knew that she was not consenting to have intercourse suggests a troubling perspective on his part as to how to engage in ahealthy and respectful way towards someone with whom he may be interested sexually. I also consider that he was prepared to lie to thepolice about what had happened, and was even prepared to have others lie for him. For this reason, while incarcerated, if there iscounselling available to D.C. to addresses this attitude, I recommend such counselling to him.

THE POSITION OF THE PARTIES [29] The Crown requests a sentence in the range of 3 to 31/2 years incarceration. The Crown seeks the usual ancillary orders underthe Criminal Code. The Crown emphasizes the need for emphasis on denunciation and deterrence. [30] Counsel for D.C. acknowledges that a period of incarceration is warranted, but given D.C. is young, and has never been introuble with the criminal justice system, the Court must be careful to avoid a sentence that is so harsh it may be crushing for D.C.Counsel recommends a period of incarceration of 2 years, coupled with a period of probation.

THE RANGE OF SENTENCE [31] The offence of sexual assault by an adult against a victim under the age of 16 years and prosecuted by Indictment carries aminimum penalty of 1 year imprisonment and a maximum penalty of 14 years imprisonment, as stated in the Criminal Code. [32] As is to be expected, the sentences imposed vary considerably depending on the circumstances. This is because the sentenceimposed must be commensurate with the circumstances of the offence, the circumstances of the offender and his or her level of moralblameworthiness.

Naturally there are myriad circumstances that present in sentencing. [33] It is often asserted that the starting point for the determination of sentence for sexual assault involving intercourse is threeyears incarceration. In Noseworthy, at paragraph 3, the Court of Appeal of Newfoundland and Labrador observed that the “sentencingrange for rape in this province is from three to seven years” and that this was the “normal” range of sentence for this type of offence. The Court of Appeal in R. v.

Vokey, 2000 NFCA 12, described the appropriate range for sexual assault where a person in a position oftrust towards a minor was between three and five years. The Court of Appeal had the opportunity to further comment on the appropriaterange of sentence for sexual assault involving intercourse with someone below the age of consent in R. v. B.(A.), 2015 NLCA 19.

Atparagraph 26, the Court of Appeal stated that a sentence of three years will tend to be at the “low end of the spectrum” (see also R. v.G.H., 2020 NLSC 12 at paragraph 13). [34] In N.(P.D.) Goodridge, J., as he then was, reviewed a number of precedents from this jurisdiction at paragraphs 16-23, inwhich sexual assault involving vaginal intercourse resulted in a sentence of between three and four years - with the exception of R. v. F.(E.W.), 2006 NLTD 91.

That decision involved an aboriginal offender who was sentenced to 18 months plus three years probation forhaving had intercourse with his sister while she slept. [35] Consideration of precedents and ranges of sentence are necessary and helpful in fashioning the fit sentence, as it assists thecourt in achieving the proper parity in sentence. However, as stated in Lacasse, sentencing ranges as illustrated in other precedents arenot “straightjackets”. Friesen reaffirmed that sentencing ranges are “guideposts”, not a firm set of rules.

At paragraph 37, the courtstated: This Court has repeatedly held that sentencing ranges and starting points are guidelines, not hard and fast rules (R. v. McDonnell, (SCC), [1997] 1 S.C.R. 948, at para. 33; R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, at para. 45; R. v. Nasogaluak, 2010SCC 6, [2010] 1 S.C.R. 206, at para. 44; Lacasse, at para. 60). Appellate courts cannot treat the departure from or failure to refer to arange of sentence or starting point as an error in principle.

Nor can they intervene simply because the sentence is different from thesentence that would have been reached had the range of sentence or starting point been applied (McDonnell, at para. 42). Ranges ofsentence and starting points cannot be binding in either theory or practice, and appellate courts cannot interpret or apply the standard ofreview to enforce them, contrary to R. v. Arcand, 2010 ABCA 363, 40 Alta. L.R. (5th) 199, at paras. 116-18 and 273.

As this Court heldin Lacasse, to do so would be to usurp the role of Parliament in creating categories of offences (paras. 60-61; see also McDonnell, atparas. 33-34). [36] As pointed out further in Friesen sentencing courts, particularly appellate courts, in establishing ranges of sentence must becareful to refrain from creating ranges solely based on specific sexual activity. At paragraph 141, the court stated: We would not go so far in this case as to hold that defining a range or starting point according to the type of physical acts that it capturesnecessarily amounts to an error of law.

However, we would strongly caution provincial appellate courts about the dangers of defining a

sentencing range based on penetration or the specific type of sexual activity at issue. [ 37 ] At paragraph 141 in Friesen , the court pointed out that defining a sentencing range based on specific activity risks “resurrecting” distinctions that in fact had been abolished under the Criminal Code . At paragraphs 142-145, the court further reminded judges that the degree of physical interference does not necessarily reflect the harm or risk of harm to the victim, particularly as it relates to children.

The court also emphasized that there is no hierarchy of sentencing based solely on the degree of physical interference. [ 38 ] I also consider that sentences which pre-date Criminal Code increases to minimum and maximum sentences may be of assistance on the principles, but not as helpful in providing guidance on the appropriate range. [ 39 ] With the above guidance in mind, my task is to fashion the fit sentence for D.C., keeping in mind his circumstances, his level of moral blameworthiness and the circumstances of the offence. I take the three year reference as a guidepost, not a fixed penalty.

It is with this framework I approach the precedents provided by counsel. [ 40 ] In N.(P.D.) , referred to earlier, Goodridge, J., as he then was, imposed a sentence of three years for a sexual assault where an uncle had forced vaginal intercourse with his niece. The offender was in his mid-forties; his niece was twenty-three. He had no criminal history and was otherwise a contributing member of society. He took advantage of the fact that he knew that the victim was alone, and gained entrance to her home because he was her relative. [ 41 ] In R . v .

Hunt , 2015 NLTD(G) 82, a youthful offender in his early twenties had had sexual relations on multiple occasions with no less than three young women in their teenage years. He possessed no criminal record and expressed remorse for his conduct. He was sentenced to periods of imprisonment of between three and four years each for sexual assault. There were also two breaches of the terms of his judicial interim release. The total sentence imposed was 11 years. [ 42 ] In support of its position, counsel for D.C. has provided R. v. R.W.B ., 2000 NFCA 13 .

In the circumstances of R.W.B. , the offender was sentenced to 18 months incarceration for multiple counts of sexual assault, including intercourse over a period of time against his 12 year-old stepdaughter. Upon appeal of the sentence by the Crown, the Court of Appeal refused to interfere with the sentence; deferring to the superior position of the sentencing judge to assess the factors relevant at the hearing.

The court acknowledged that the sentence may have been on the low side, but noted the significant mitigating factors present of the remorse of the offender, and his guilty plea (see paragraph 12). [ 43 ] I find that while the circumstances in R.W.B. had the highly aggravating factor of the position of trust of the offender not present here, the presence of the significant mitigating factors of the guilty plea and remorse also distinguish the circumstances from the present circumstances.

Further, in light of the direction in Friesen regarding the need to increase sentences for sexual offences against children, the more recent comments from the our Court of Appeal, and the many changes to the sentences to be imposed under the Criminal Code , I am circumspect as to the extent to which a sentence of 18 months incarceration imposed in R.W.B. would be now considered fit. [ 44 ] R.W.B. is helpful nonetheless as an illustration of the principle countenancing against sentence ranges being end points from which there can never be deviation. [ 45 ] Likewise, I do not find the fact that the Court of Appeal in A.(B.) endorsed a total sentence of 24 months incarceration to be clear support for such a sentence as being typically within the range.

In fact, in my view, the decision stands for the opposite. The court was clear that they endorsed the sentence only because of the position taken by the Crown on appeal, and that a fit sentence would otherwise have been three years. At paragraphs 36-37, the court stated: 36 Considering the above factors, an appropriate sentence for sexual assault in this case would be three years imprisonment, which falls at the low end of the range for non-consensual sexual assault with intercourse.

Subject to the comments that follow, there are no factors that would take this case outside the accepted range or that would operate to alter the low end of the range. 37 However, in these particular circumstances, account must be taken of two additional considerations. First, in the past, sentences have been imposed well below the low end of the range described above. This may have been the rationale underlying the Crown's request at trial for a sentence of eighteen to twenty-four months imprisonment for the offence of sexual assault, with the sentence for sexual interference to be served consecutively.

Despite submitting on appeal that the facts of this case should have resulted in a sentence at the low end of the range, that is, three years imprisonment, the Crown took the position that it would be unfair to resile from the position taken at trial. Accordingly, at the hearing, Crown counsel submitted that twenty months would be an appropriate sentence for this offence, with the sentence for sexual interference to be served consecutively.

While neither this Court nor the trial judge is bound to accept the submissions of counsel, in the circumstances, I would be reluctant to impose a term of imprisonment longer than was requested by the Crown. [ 46 ] Upon review of the above decisions, as well as other decisions referred within those decisions, it appears to me that the sentences imposed for sexual assault involving intercourse are typically between 3 and 4 years.

THE FACTORS IN AGGRAVATION [ 47 ] The aggravating features in the present circumstances beyond the abhorrent nature of the crime itself and the need for denunciation of such crime is the youth of the victim, and the risk of harm posed to her because of her age and the offence. The victim had only just turned fourteen and D.C. was four years her senior.

Keeping also in mind the earlier discussion on the caution needed to properly assess the significance of the degree of physical interference and the level of violence, I consider that the degree of the physical interference and violence in the forced sexual intercourse in these circumstances to be serious. THE FACTORS IN MITIGATION [ 48 ] The several mitigating factors present in these circumstances are the offender’s youth and generally good character. D.C. has

been gainfully employed in the past, and has the support of his family. I accept this assault may have been out of character. While D.C. appears to have little insight into his behavior, he has been an otherwise contributing member of his community. I am hopeful with the appropriate programming, and time, he will gain insight into the criminal and violent nature of this kind of conduct.

THE FIT SENTENCE [ 49 ] In balancing the aggravating and mitigating factors in these circumstances, and when considered with the circumstances and sentences imposed in other decisions, the fit sentence is at the lower end of the spectrum. I see no basis to depart from the guidance providence by other decisions. I find support for this in cases such as N. (P.D.) and Hunt .

In my view, the fit sentence is 3 years, and I am imposing a period of incarceration of 3 years less the time spent in custody prior to sentence. [ 50 ] My understanding from counsel is that there were 5 days to be given credit, based on a 1 to 1.5 ratio. There is a further 7 days since the sentencing hearing. At 1 to 1.5 that is 10.5 days credit, of which I will round up to 11 days, for a total period of remand credit of 16 days. ANCILLARY ORDERS Order Authorizing the Taking of Bodily Substances for Forensic DNA Analysis [ 51 ]

Section 271 of the Criminal Code is a primary designated offence under

section 487.04 (a)(xi.3). As a primary designated offence, an order that D.C. provide a suitable sample of his DNA is mandatory under

section 487.051(1). It is ordered pursuant to

section 487.051 that a peace officer be authorized to take or cause to be taken from D.C. the number of samples of bodily substances that is reasonably required for forensic DNA analysis, provided that the person taking the samples is able, by virtue of training or experience, to take them by means of the investigative procedures described in subsection 487.06(1) of the Criminal Code and that, if the person taking the samples is not a peace officer, they take them under the direction of a peace officer.

Firearms’ Prohibition [ 52 ] Section 109(1) of the Criminal Code requires a mandatory prohibition from possessing firearms and other related weapons or ammunition for an offender convicted of an offence for which he is liable to a period of imprisonment of ten years or more where violence had been used in the commission of the offence. [ 53 ] Neither counsel suggested that a mandatory firearms prohibition was necessary. I disagree. As discussed earlier, while not the most violent set of circumstances that have come before the Court, I am satisfied that the circumstances of the conviction for

section 271 involved violence against M.R, and

section 109 applies (see R . v . Bossé , 2005 NBCA 72 ). [ 54 ] I order that an order under section 109(1) be imposed in this case. D.C. is prohibited from possessing any firearm, and any crossbow, prohibited weapon, restricted weapon, ammunition and explosive substance, or all such things, for a period of ten years after his release from imprisonment. [ 55 ] Even if

section 109 did not apply, I would exercise my discretion to impose a similar prohibition under

section 110. Sexual assault by way of forced intercourse is a serious offence for which the offender, in these circumstances, is liable to fourteen years imprisonment. It is an offence that requires an emphasis on denunciation and deterrence in sentencing. The imposition of an ancillary order is a means of giving effect to the principles of protection of the public, denunciation and deterrence. The offence in these circumstances involved violence, and there is concern as to the lack of insight of D.C. into the wrongfulness of this conduct.

I am satisfied the imposition of such a prohibition is appropriate in these circumstances. Order to Comply with Sex Offender Information Registration Act (SOIRA) [ 56 ]

Section 271 is a designated offence under subsections 490.011(1)(a)(xvi) of the Criminal Code . Given this,

section 490.012(1) of the Criminal Code requires an offender to be subject to the Sex Offender Information Registry Act , S.C. 2004, c. 10 ( SOIRA ). I order that D.C. be subject to such an order under

section 490.012 for a period of 20 years, as per

section 490.013(2)(b). CONCLUSION [ 57 ] For sexually assaulting the victim by having sexual intercourse with her without her consent, D.C. is sentenced to 3 years imprisonment, less 16 days for time spent in custody prior to sentencing. He is also subject to the above described ancillary orders in paragraphs 50 to 56. [ 58 ] Judgement accordingly. _____________________________ Frances J. Knickle Justice