R. v. Cassels, 2013 MBPC 47

CITATION: R. v. Cassels , 2013 MBPC 47 Date: 20130801 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Sharyl Thomas, ) for the Crown ) and ) ) ) Russell Cassels ) Michael Cook, Accused ) for the Accused ) ) ) Reasons for Decision delivered ) August 1, 2013 ) NOTICE OF RESTRICTION ON PUBLICATION: No one may publish, broadcast or transmit any information that would disclose the identity of the complainant(s) (see

section 486.4 of the Criminal Code ).

Wiebe P.J. [ 1 ] Russell Cassels has entered pleas of guilty to the following charges: • Between March 1, 2006 and November 1, 2007 did surreptitiously observe or record and thereby commit voyeurism against J.S. (Information 011-33716); • Between March 1, 2006 – November 1, 2007 did unlawfully confine J.S. (Information 011-22029); • Between June 1, 2008 and August 31, 2009 repeatedly committed sexual assault on A.H. (Information 011-19152); • Between June 1, 2008 and August 31, 2009 did surreptitiously observe or record and thereby commit voyeurism against A.H. (Information 011-19152); • Between June 1, 2008 and August 31, 2009 did knowingly utter threats against A.H. to cause her death or serious bodily harm (Information 011-19152); • Between July 1, 2009 and February 20, 2010 did repeatedly commit sexual assault on L.J. (Information 011-24533);

• On February 3, 2010 did surreptitiously observe or record and thereby commit voyeurism against L.J. (Information 011-24533); • On February 20, 2010, breached a protection order by communicating or having contact with L.J. (Information 011-18342); • On November 23, 2009, did surreptitiously observe or record and thereby commit voyeurism against M.S.; • On November 24, 2009, did willfully obstruct interrupt or interfere with the lawful use and enjoyment of property belonging to TanFx (Information 011-14020); • On November 24, 2009, did surreptitiously observe or record and thereby commit voyeurism against N.M. (Information 011-14020). [ 2 ] All charges have proceeded by way of indictment.

Overview [ 3 ] As can be seen from the above list of offences, Mr. Cassels has pleaded guilty to a number of charges of voyeurism as well as a number of sexual assaults. These matters involve numerous victims and the events occurred between March 2006 and February 2010. [ 4 ] The Crown’s position is Russell Cassels is a serious sexual deviant and it says a global sentence of 10 years is warranted in the circumstances. The accused argues that given his very limited record and given the fact he has already been in custody for three years plus, a global sentence of six years is appropriate.

The accused further argues he should be given enhanced credit for his pretrial custody time at the rate of 1 to 1:5 for time served. [ 5 ] A number of exhibits were filed at the sentencing hearing on May 9, 2013. These included a copy of the victim impact statement read by L.J. at the hearing; letters of reference in support of Mr. Cassels; institutional certificates and confirmation of programs attended by Mr. Cassels; a letter from Headingly Correctional Centre regarding Mr. Cassels’ behaviour and compliance from March 10, 2010 to May 2013; and transcripts of proceedings involving Mr.

Cassels’ various remands while in custody. [ 6 ] In addition, both counsel have provided a number of cases which speak to sentencing principles as well as the fit and appropriate sentence relative to each offence. [ 7 ] Having considered the facts, the material filed, the case law and the submissions and representations made at the sentencing hearing, this is my decision as to what constitutes a fit and proper sentence in all of the circumstances. Facts [ 8 ] There are two distinct types of offences: those committed against women Mr. Cassels entered into a relationship with and offences against strangers.

I will first deal with the offences where Mr. Cassels had a relationship with the women he committed offences against. [ 9 ] The first victim is J.S. [ 10 ] Mr. Cassels met J.S. at a roller rink. She was 17 years old. Mr. Cassels was 27. She was young, innocent and a virgin. This is relevant as the women Mr. Cassels entered into relationships with shared similar characteristics. [ 11 ] Through the course of the relationship, the two dated and they did have consensual sex. However the relationship changed and deteriorated over time. There were arguments and altercations.

Two altercations define the circumstances of the offence of forcible confinement. [ 12 ] In the first instance J.S. tried to use her phone to call for help. Mr. Cassels took it away. She then tried to run from the residence and he chased after her. He caught her and he dragged her back up upstairs. He then put her in his bedroom and would not allow her to leave. [ 13 ] In the second instance, J.S. did manage to leave the residence during the altercation. She ran out and was running down the street calling for help. Mr. Cassels followed her, grabbed her, covered her mouth and dragged her back to the apartment.

Again he confined her and would not let her leave. [ 14 ] With respect to the voyeurism offence, during the course of the relationship Mr. Cassels forced J.S. to sleep nude. She was opposed and indicated she wanted to sleep with her clothes on. Mr. Cassels would not allow it. J.S. later found nude pictures of herself in Mr. Cassels’ computer room. The pictures were taken without her consent. She indicated Mr. Cassels would remove her clothes, position her nude body and take extremely intimate pictures of her from different angles. These included pictures with her legs spread as Mr. Cassels had positioned them.

She tried to take the pictures back by placing them in her backpack before she left the residence. But once she had left she realized they were no longer in the backpack. She believes Mr. Cassels took the pictures back and that he had copies of these pictures on his computer. [ 15 ] The second victim is A.H. [ 16 ] A.H. is a Hutterite and for most of her life resided on a Colony with her family. She met Mr. Cassels when she was 23 years old. Mr. Cassels was 29. She had left the Colony for work purposes and was living with her sister in a small Manitoba town. She had a Facebook account and Mr.

Cassels began messaging her. He had searched her profile on Facebook and messaged her saying that he thought she was pretty. They spoke on-line for a time and then Mr. Cassels wanted her phone number. Although she initially declined, he became more aggressive in asking for her number. Her reluctance was eased when he told her he was a paramedic and in telling her that, he gained her trust. They began to see each other and she was surprised when Mr. Cassels told her he loved her very early in their relationship. She told him that as a Hutterite she would not have sex until after she was married.

She also shared with him her Hutterite

values including the fact that Hutterite women do what the men tell them to do. While she was living with her sister, Mr. Cassels would go to visit her and he would sleep on the couch. He would engage her in conversations of a sexual nature and teased her because she was a virgin at age 23. He would kiss both her and her sister on the cheek in public and he would touch A.H.’s buttocks. She and her family did not approve of this behaviour and believed it was disrespectful. [ 17 ] When she told him she was uncomfortable with his behaviour he would laugh but he would not change his behaviour.

He tried to be sexual with her early on in the relationship and she declined. They became engaged in April 2008 and A.H. thought this would give them the opportunity to get to know each other better. In June 2008 he got into an argument with A.H.’s sister and he swore at the sister. Both parties called the police and in the end the sister kicked Mr. Cassels out of her residence. Neither proceeded with their complaints but Mr. Cassels was no longer welcome in the sister’s home. A.H.’s sister also kicked her out and as A.H. had nowhere to go she moved in with Mr. Cassels.

Her intention was to find her own apartment. [ 18 ] The sexual assaults began immediately. The first night he made her sleep nude in her bed. When she refused he took her clothes off her. This continued for two weeks and each night he would force her to get into bed nude and then rub himself up and down her body until he ejaculated outside of her. After the first two weeks he was angry with her and forced vaginal sex upon her. She lived with him from June 2008 to August 2009. At no time while she lived with him was sex consensual.

He forced her to have intercourse every single time. [ 19 ] In addition, he was physically and mentally abusive. In order to prevent her from moving out, he would hide the newspapers so she could not look at apartment listings. He would monitor her phone calls and her activity. It came to the point where she was only allowed to go directly to work and return directly home. Mr. Cassels demanded she hand over her paycheck to him. On one occasion she refused and he drove her to the bank and forced her to withdraw the money and give it to him. [ 20 ] A.H. was always punished by Mr. Cassels when he was angry.

He would force vaginal, anal and oral sex upon her. He forced her to perform oral sex on him. He would not allow her to shower alone and he would sexually assault her while she was in the shower. If A.H. refused at all, he would sit on her until she almost passed out, or he would bang her head against the wall until she complied. He threatened that if she left he would find her and her family. He told her he had people watching her. She could not talk to her family or to anyone else without him being present. She was not allowed to go out. He eventually took her cell phone and broke it.

He monitored her at all times. [ 21 ] Mr. Cassels eventually gave her a bedroom of her own but he removed the locks from the door and demanded she continue to sleep nude. He would then sneak in at night and take nude pictures which he would then show her. He forced her to watch pornographic movies with him and forced her to watch him masturbate. [ 22 ] A.H. indicated Mr. Cassels would leave the residence almost every night around midnight. She said he was going around the neighbourhood peeping into homes.

He would be gone about an hour and when he returned he would sexually assault her. [ 23 ] At times she was so injured from his sexual assaults she could barely walk. She experienced bleeding from her vagina and her anus. He would not allow her to seek medical attention. A co-worker noted A.H. was walking with difficulty and asked if she was alright. A.H. could not tell her what was happening. She felt she could not get away from him. She covered up her bruises constantly.

Another friend finally noticed the bruises and realized she was being abused. [ 24 ] In July 2009, towards the end of his relationship with A.H., Mr. Cassels began a relationship with L.J. Mr. Cassels took L.J. on a three-day camping trip in August 2009. It was then that A.H. was able to escape with the help of her family. A.H.’s family hid her for a period of time out of fear of Mr. Cassels. [ 25 ] A.H. gave her statement in February 2010. In her statement she said she believed Mr. Cassels when he said someone was watching her at all times. She is still concerned that it is true.

She often still finds herself looking out her bedroom window to see if Mr. Cassels is out there. A.H. also reports that she suffers from nightmares as a result of the offences Mr. Cassels committed against her. [ 26 ] The third victim is L.J. [ 27 ] L.J. met Mr. Cassels through mutual friends. L.J. was 19 years of age when she met Mr. Cassels. He was 29. At first the relationship was consensual. L.J. believed she had fallen in love with Mr. Cassels. [ 28 ] She indicates that she was a virgin when she met him and initially sex between them was consensual.

However after the first few times L.J. realized she was not ready to be having sex and so she stopped agreeing to it. The relationship between the two changed. Mr. Cassels did not accept her saying no to sex and so he forced sex upon her. She indicated she would do everything she could to avoid having sex. L.J. said she would try to stop him, she would try to push him off her but he would continue his assault. She indicated that when she refused, he would just hold her down and sexually assault her. She said that 85% of the sexual encounters between them were forced upon her. She cited two specific examples.

In January 2010 she was asleep on her stomach. She was woken because Mr. Cassels was sexually assaulting her. On another occasion, she reported they were visiting with friends. Mr. Cassels demanded sex and she refused. He sexually assaulted her by moving her shorts aside and forcing vaginal intercourse. [ 29 ] As with the other two victims, Mr. Cassels would also force L.J. to sleep nude. If she refused he would keep her awake until she complied. Mr. Cassels isolated L.J. from her family and he would not allow her to talk to them. He eventually took away her phone. [ 30 ] Mr.

Cassels asked L.J. several times if he could take nude photos of her. She refused. He then asked her to let him take suggestive photos of her and again she refused. Despite these clear objections, she woke one night to find him taking nude pictures of her. She confronted him and told him his actions were creepy. She then became suspicious so when she had an opportunity, she checked his phone. She found nude photos and nude videos of herself. She had not consented to any of these recordings being taken. [ 31 ] In February of 2010, L.J. broke off her relationship with Mr. Cassels.

As she was concerned for her safety, she obtained a protective order against him. The conditions included him not being within two city blocks of her and having no communication with

her. [ 32 ] On February 20, 2010, while L.J. had the protective order in place, Mr. Cassels breached that order by showing up at a theatre he knew L.J. was attending. He tried to use her original tickets which were in his possession to get into the theatre. The staff had been made aware of the protective order and given his description. They refused him entry. L.J., who was with her sister at the theatre, was standing near a window and both she and her sister saw Mr. Cassels outside the theatre.

He stared at her for 30 to 45 seconds and then he walked away. [ 33 ] L.J. read a victim impact statement at the sentencing hearing and she spoke of the devastating effects Mr. Cassels’ actions have had on her life. Her words, in part were as follows...... After the relationship I constantly felt the guilt of letting this person into my life, and the burdens it put upon my family. The thought that I had ruined my life and it being my own fault was always weighing upon my shoulders. I felt I had absolutely nothing to offer the world. I felt ugly, incredibly stupid and useless.

I felt like I didn’t fit in and that no one could ever love me. I had an immense amount of hate for myself and for the world. Life was exhausting and I really didn’t want to live any more, I have had several thoughts of suicide. ......Life was overwhelming and I felt I was unable to handle it. Memories of the past were persisting, and the guilt of what my life had become was inescapable and I felt my family would be better off without me. I will never be able to put into words what I went through.

I will never be able to fully describe the feeling of being worthless, of being used, dehumanized, and forced to do things I did not want to do. [ 34 ] L.J. has obviously been extremely traumatized by the physical, sexual and emotional abuse she suffered at the hands of Mr. Cassels. As she stated at the hearing, she developed epilepsy during the course of the relationship and the severity and frequency of her epilepsy seizures have grown. They are now more severe when she dwells on what has happened and as court dates near. She is no longer eligible to drive a vehicle.

It has destroyed her relationship with her family and friends and she is struggling in both her personal and professional life. She suffers from depression and post-traumatic stress syndrome. She suffers financially as she tries to pay for the medications she needs to deal with her condition. L.J. bravely came forward and reported Mr. Cassels’ abuse to the police in the hopes it will save any other woman from suffering the devastating effects he has put upon her and her family. [ 35 ] It is of note that it was during the time of Mr.

Cassels’ relationship with L.J., in December of 2009, that he was arrested on mischief and voyeurism charges, unrelated to L.J. This was the TanFX incident to which I will refer later. He was released on that charge on a recognizance. When he breached the protective order against L.J., he was arrested again. This time he was released with a strict curfew and a surety. Once Mr. Cassels had breached the protective order, L.J. gave a full statement to the police. It was through the course of this investigation that the police found Mr. Cassels’ other victims. Strangers [ 36 ] In addition to the offences Mr.

Cassels has plead guilty to with respect to the women he had relationships with, Mr. Cassels has also plead guilty to two other counts of voyeurism which involved total strangers. [ 37 ] One victim was N.M. The offence occurred on November 24, 2009. On that day, Mr. Cassels attended at a TanFX salon. One of the employees recognized him because he had been there before with L.J. N.M. was in one of the tanning rooms. While she was applying her sun tan lotion, she thought she saw a shadow in the room.

Then, when she was then in the tanning bed, she heard a loud bang, looked through the tanning bed opening and saw a pair of male legs in blue jeans. She screamed at the man and he told her to stay in the bed. She tried to get out of the bed and was screaming at him when she felt him jump on top of the bed. She believes he pulled himself up over the wall of the room she was in. An employee had heard a loud noise and when she went to see what the issue was she saw a male run out the door and take off on a bicycle. [ 38 ] N.M. was not injured in the encounter but she was terrified and disturbed by the incident.

There was no physical contact between her and the accused. [ 39 ] The other offence occurred the evening before the TanFX incident. On November 23, 2009, Mr. Cassels video-recorded M.S. changing in the bedroom of a basement suite. Mr. Cassels was outside her window, peeping in and video-recording her removing her clothing. M.S. was unaware of this invasion of her privacy until police found the recording on Mr. Cassels’ computer and brought it to her attention. [ 40 ] Those are the facts surrounding the offences Mr. Cassels had plead guilty to. So Who is Russell Cassels? [ 41 ] Mr.

Cassels is a 32 year old male with a limited criminal record. In February 2006 he was given a conditional discharge for trespass at night. He has a grade 12 education, was in the armed forces for one year and was gainfully employed between 2000 and 2005. He was also focused on training in the hopes of becoming a paramedic. [ 42 ] His parents as well as other family members were in court in support of him at the sentencing hearing. His parents provided Mr. Cassels with a solid upbringing, including the opportunity to join clubs and play sports.

By all accounts they are good parents who did all the things society expects good parents to do to prepare their children to look after themselves and others and to be an upstanding and contributing member of the community. They are supportive of Mr. Cassels and they are devastated by the offences he has committed. They both suffer from poor health. His mother has had several strokes and his father has had a heart attack. They reside in Winnipeg. [ 43 ] As a youngster and teenager Mr. Cassels was treated for ADA and ADHA. He moved out at the age of 17 and has his own home.

In 2001 he was involved in a horrible accident. While he was riding a bike he was hit by a car from behind travelling 80 kilometres per hour. He went through the windshield of the car. He suffered a brain injury and was in a coma for 12 weeks. He could not work full-time for two and a half years. I was not provided with any evidence, medical or otherwise, which explains whether this accident and the resulting injuries have had any impact on Mr. Cassels’ behaviour.

[ 44 ] I was not provided with a presentence report, or a psychological report. As a result, there is no evidence before me to speak to any exigencies related to Mr. Cassels or to speak to the likelihood of him reoffending in the future. [ 45 ] I was provided with a number of letters and institutional certificates. Two letters are from personal childhood friends of Mr. Cassels and those friends indicate their support for him. One has a young daughter she said she would trust in Mr. Cassels’ care. In addition, a certificate dated December 3, 2012 was filed, indicating Mr.

Cassels had finished a 10-week, 20-lesson Christian Intervention Course. Along with the certificate was a letter from Reverend Richard Wittmeier, the Chaplain of the Brandon Correctional Centre. He commented that in his observation, over the 14 months he has been working with Mr. Cassels, he has seen a significant change. He said Mr. Cassels’ attitude has changed from one of revenge to one of forgiveness and respect. [ 46 ] A report dated March 14, 2011 was filed indicating Mr. Cassels has participated in a Thinking Awareness Group Program which ran from February 28 to March 4, 2011.

The program was a total of 20 hours. The writer of that report indicated that although Mr. Cassels attended and completed the course, he was routinely late and had to be woken by facilitators to attend. At times they found he was engaged and he understood the material, but at other times it was reported his participation was minimal. [ 47 ] The report indicates when it came to discussing Emotions and Relapse Prevention, Mr. Cassels understood the concepts but on a personal level he lacked insights into his thoughts and feelings. When discussing decision-making, the program identified 23 warning signs of relapse.

Mr. Cassels only identified two of these as potential hazards for him. The writer of the report commented that Mr. Cassels lacks insight into his feelings, thoughts and the warning signs which may put him at risk in the future. [ 48 ] Similar comments were evident in the report of the Anger Management Course Mr. Cassels participated in. Here it was noted he participated and appeared to understand the concepts. Disturbingly, however, the facilitator noted that at the end of the two-day course, Mr. Cassels commented “my lawyer told me to take this program, it should get me a year off my sentence”.

This lead the facilitator to question Mr. Cassels’ sincerity for changing his life. [ 49 ] In total, Mr. Cassels participated in the following programs: • October 12-20, 2010- Anger Management – two-day course • Nov 2-3, 2010 and November 11-14, 2011 Criminal Thinking Errors Courses • February 28-March 4, 2011 – Thinking Awareness Course • December 3, 2012 - Christian Intervention Program (10 week program) [ 50 ] Lastly, a report was filed by Headingly Correctional Centre dated May 17, 2013. It confirmed Mr. Cassels’ participation in the above courses and it also set out Mr.

Cassels’ record of compliance and behaviour for the period March 11, 2010 to May 17, 2013. The report noted the following: • there were three instances of physical altercations with other inmates; • there were two instances of Mr. Cassels being warned for horseplay; • in April 2012 mediation was required between him and another inmate; • in July 2012 he refused to move to a top bunk to accommodate an amputee; and • in March 2013, he was involved in an escalating verbal confrontation with another inmate which required staff intervention.

He was charged institutionally and the matter was resolved through mediation with Mr. Cassels agreeing to a loss of privilege. [ 51 ] The report goes on to speak about the possibility of earning remission while in custody and it indicates it is impossible to say what remission could be earned as this depends on a number of factors. The report also indicates that notwithstanding the fact that Mr.

Cassels is a remand inmate and not a sentenced inmate, he still has access to all of the same health care, counselling, programming, spiritual care, recreation, and visitation and psychological services as any inmate in the facility. The report noted Mr. Cassels had not been housed in segregation. [ 52 ] Mr. Cassels’ counsel, in response to the above report, indicated that Mr. Cassels was not an instigator in the above altercations; rather, he was defending himself. In addition, the Court was advised, while he was in custody, Mr. Cassels himself was sexually assaulted.

That matter was reported and the preliminary hearing has been held. Mr. Cassels testified against the accused in that case.

Sentencing Principles [ 53 ] There are a number of sentencing principles which guide my decision with respect to the matters before me. [ 54 ] Fundamentally, the purpose of sentencing is to contribute to “respect for the law and the maintenance of a just, peaceful and safe society” and this is accomplished by imposing “just sanctions” that reflect one or more traditional sentencing objectives; denunciation, general and specific deterrence, separation of offenders, rehabilitation, reparation to victims, and promoting a sense of responsibility in offenders and acknowledgement of the harm done to victims and the community. [ 55 ] The Criminal Code at s. 718 sets out a number of principles to be considered, keeping in mind that the fundamental principle of sentencing is that the sentence be proportionate to both the gravity of the offence and the degree of responsibility of the offender. [ 56 ] In addition to the above, as there are numerous offences and multiple victims in this case, I must consider which of the offences, if any will be concurrent and which will be consecutive.

I must then also consider the totality principle. In this regard I have also considered the

summary guideline, provided by Steel J.A., in the case of R. v. P.K. , 2012 MBCA 69 ; 280 Man.R. (2d) 258. Steel J.A.

said: So, in the case of multiple offences we now ask sentencing judges to: 1) First determine whether any or all of the sentences are to be served concurrently or consecutively or a combination of both. 2) If treated as concurrent, then, although all circumstances of the offender and the offence must be taken into account in arriving ata sentence, the final sentence for multiple concurrent offences should, absent exceptional circumstances, be higher than the sentence thatthe judge would have awarded that offender for one count of that offence.

This has come to be known as the “no free ride principle.” 3) If treated as consecutive offences, after assigning a sentence to each offence, the judge must take one last look at the totalcumulative length of the sentence with a view to determining whether the total sentence is so high as to be a “crushing punishment” onthis offender. This is often referred to as the totality principle. It must be remembered that the totality principle considerations under s.718.2(

c) of the Criminal Code apply only when consecutive sentences are imposed. When a judge sentences an accused to concurrentsentences, no such considerations arise. 4) If the judge is of the view that the overall sentence is too high, it is within their discretion to reduce the sentence by using avariety of techniques. One of those techniques is to make some of the multiple offences concurrent to each other.

This use of theconcurrency principle is for the sole purpose of reducing an excessive sentence as a result of that “last look.” [57] Further, and as has been stated in many cases, the paramount sentencing considerations in sexual assault cases are deterrenceand denunciation. This is equally applicable to voyeurism offences. Rehabilitation may also be considered as an applicable principle incertain circumstances. [58] Before applying the above principles to the facts before me, I will briefly review the some of the case law which was providedas well as other cases which offer some guidance.

Case Law Precedents [59] Counsel have provided me with a number of cases which address fit and appropriate sentences for both sexual assaults and/orvoyeurism offences in specific circumstances. None of the cases are similar enough to the situation I have before me however the casesdo provide guidance as to what principles generally should be considered when determining an appropriate sentence for both voyeurismand serious sexual assaults.

I am mindful that the sentence for any offender is particular to the circumstances of that case and the uniquefacts before the court. [60] I will summarize the case law first and then apply the sentencing principles and the common law principles to the specific factsbefore me. Sexual Assault Cases R. v. Sandercock, 1985 ABCA 218 , 62 AR 382; [1986] 1 W.W.R. 291; 22 C.C.C. (3d) 79; 48 C.R. (3d) 154; 40 Alta. L.R.(2d) 265 [61] The facts of this case are that the accused assaulted a 16 year old girl. He was 26 years old and he had a prior record for sexualassault.

He got her into his car, drove her to a secluded area and forced sexual intercourse. The Court found very little in the way ofmitigating factors and found any claim of remorse rang hollow. The Court substituted a four and a half year sentence for the three yearsimposed by the trial court. [62] In the course of reviewing the sentence imposed by the trial judge the Alberta Court of Appeal confirmed the “starting pointapproach” for sentencing for serious sexual assaults.

It also provided some definition as to what constitutes a “serious sexual assault”.The Court said: [13] One archetypical case of sexual assault is where a person, by violence or threat of violence, forces an adult victim to submit tosexual activity of a sort or intensity such that a reasonable person would know beforehand that the victim likely would suffer lastingemotional or psychological injury, whether or not physical injury occurs. The injury might come from the sexual aspect of the situationor from the violence used or from any combination of the two.

This category, which we would describe as major sexual assault, includesnot only what we suspect will continue to be called rape, but obviously also many cases of attempted rape, fellatio, cunnilingus, andbuggery where the foreseeable major harm which we later describe more fully is present. [15] The key, then, to a major sexual assault is the evident blameworthiness of the offender, which was described by Laycraft, J.A. (ashe then was) in R. v. F. reflex, (1982) 1982 ABCA 148 , 20 Alta.

L.R. (2d) 90 as “… contemptuous disregard for the feelingsand personal integrity of the victim”. [17] The starting point for a major sexual assault is 3 years assuming a mature accused with previous good character and no criminalrecord. On the other hand, we emphasize that the typical case just described does not include a major aggravating factor which is presentsufficiently often that it could almost be called a secondary category: this is where the attack is planned and deliberate, whether theoffender has stalked his victim or chosen her at random. See, by way of example, R. v. Cardinal [1983] Alta.

D 7515-01.” [63] In considering what constitutes aggravating and mitigating factors, the Court had this to say: [28] The circumstances in life of the victim, if known to the offender, can affect the assessment of the foreseeable pain to thevictim....... In this limited sense, the life-circumstances, or “character”, of the victim might be relevant to sentencing. This is because these factors

alter the level of reasonably foreseeable harm, which is the test, and not because grave consequences chanced to happen. In generalterms, an accused is punished for blameworthiness and not for the actual consequences of the crime, although these are not to bedisregarded. See R. v. Jacobs, (1982) 1982 ABCA 204 , 39 A.R. 391. R. v. Dickinson (1984), Ont. C.A., (ON CA), 40 C.R. (3d) 384 [64] The accused was charged with breaking into a dwelling house and committing an indecent act. The victim had seen the accusedon prior occasions peering into her window at night.

On this occasion the accused managed to slip the lock on her door. When sherealized this, she went and opened her door and found him masturbating in her yard. He followed her into the house, grabbed her breastand slapped her. She screamed and he ran. He was sentenced to 18 months at trial. The Court of Appeal reduced the sentence to ninemonths, given his limited record and the strong likelihood of rehabilitation. R. v. B.R. (2006), Ont. C.A., (ON CA), 212 C.C.C. (3d) 65; 81 O.R. (3d) 641 [65] The accused was charged with sexual assault, assault with a weapon, and assault.

The offences involved three differentincidents against his wife over several days and in the presence of their children. The first occurrence involved the accused putting ashoelace around his wife’s neck and tightening it and saying “let’s see if she dies or not”. The children were playing nearby. The secondincident also in the presence of the children occurred when the accused punched his wife in the head several times and slapped her,causing her to fall to the ground. The third incident occurred while his wife was in bed with their sleeping children.

In this case he forcedintercourse with her over her objection. He was sentenced to 30 months for the sexual assault, and 12 months on each of the othercharges to be served concurrently. The Court of Appeal affirmed the sentence. They noted that while the accused did not have a criminalrecord, these were not isolated occurrences and they took place against a backdrop of a lengthy and abusive relationship. The Courtindicated denunciation as well as specific and general deterrence were the primary sentencing considerations. R. v. S(M) 2008 (Ont.

C.A.) 616 [66] In this case, the victim met the accused when she was 18. They had a relationship and she became pregnant. After the child wasborn, she moved in with him, his mother and his long-time friend. The friend was a second accused. Over a period of six months, theaccused and his friend repeatedly verbally, physically and sexually assaulted the victim.

The abuse including beating her; hog tying her,with her legs bent backwards and her ankles almost touching her mid back; locking her in a closet or attic; forcing her to have sexualrelations with his friends, sometimes in his presence; forcible insertion of inanimate objects into her vagina; one instance of bestiality andanal intercourse. The trial judge sentenced S to eight years. On three counts of sexual assault he imposed five-year concurrent sentences.On a further charge of sexual assault he imposed one year consecutive.

On the forcible confinement he imposed one year consecutive;for uttering death threats he imposed one year consecutive; and for uttering threats to cause bodily harm he imposed one year concurrent.The Court of Appeal found the sentence to be neither unduly long nor harsh. It also did not interfere with the consecutive sentencesimposed. R. v. Ladouceur and Traverse, 2008 MBCA 110; [2009] 1 W.W.R. 235 [67] In this case the Manitoba Court of Appeal reviewed the sentence imposed on Mr.

Ladouceur for three serious and distinctsexual assaults, as well as two counts of kidnapping, two counts of forcible confinement and one count of uttering threats. The totalsentence imposed at trial was ten years. The Court of Appeal, after reviewing all of the circumstances, imposed a total sentence of 16years. They then discussed and applied the totality principle and reduced the total sentence to 14 years. The attacks were upon two younggirls; one age 13 and the other age 12. The 12 year old had been sexually assaulted in two different incidents.

The nature of the attackswere horrific and the damage “inescapably considerable”. For the attack against the 13 year old the Court initially imposed a six-yearsentence. For the attacks on the 12 year old the Court imposed a five-year sentence for the first attack and a six-year sentence for thesecond attack. In the end they reduced two of these sentences by one year on the basis of totality. R. v. Lamb, 2002 MBCA 21; 163 Man.R. (2d) 104 [68] The accused was convicted of sexual assault against three different complainants. The accused owned a business and ran it outof his home.

He employed teenagers to sell his products and would often have them to his apartment where he would give them alcoholand cigarettes. One of the victims was a 15 year old girl. The first sexual assault against her occurred in his vehicle. The second sexualassault occurred in his apartment a week later. The second and third victims also worked for him and these sexual assaults occurred on atrip to Portage la Prairie where the three were having a product-selling blitz. The accused only rented one hotel room and the three ofthem were drinking.

One victim passed out and woke up to find her pants down and the accused sexually assaulting her. She went intothe bathroom to find her friend nude and passed out over the toilet. She brought her friend back to her bed and as she watching TV, theaccused sexually assaulted her again. After the assault she went to the bathroom and came out to find the accused sexually assaulting hernaked, passed out friend. [69] The following day, one of the victims, who were admittedly ill from drinking the night before, was in the car with the accusedand she fell asleep.

He drove her to a parking lot where he sexually assaulted her again. [70] Following a trial, the accused was sentenced to six years. It was a three-year sentence on each sexual assault with the twooccurring in Portage la Prairie being served concurrently. The Court of Appeal commented that while the sentence was at the higher endof the scale, it was a fit sentence. Voyeurism [71] I was also provided limited cases dealing with voyeurism. R. v. S.M., 2010 ONCJ 347 [72] The accused had a relationship with the victim for some time. The relationship eventually ended and the victim moved on with

a new partner. The accused, after finding out about the new boyfriend, convinced the victim he could move on if they had one last sexualencounter. She agreed. They had a consensual liaison during which the victim consented to be blindfolded. Towards the end of theirsexual encounter the blindfold moved and the victim discovered that the accused had videotaped the entire session. She did not consentto this and demanded the pictures and video. He complied and gave it to her. She reported the matter to police. He was a 37 year old manwith no criminal record. He was university educated with a successful business.

He was extremely remorseful and had support fromfamily friends and the business community. He was ultimately sentenced to an 18-month suspended sentence. [73] Justice Manderscheid of the Court of Queen’s Bench of Alberta did an extensive review of the case law related to voyeurism inthe case of R. v. Keough (2011 ABQB 312 . I have found both his review of the case law as well as the principles of sentencingrelative to voyeurism helpful and so I set out portions of his decision here. [74] At paragraph 175 of his decision he noted the following cases: • R. v.

Weinheimer: A young adult male was sentenced to two years probation for collecting images of male genitals in a workplacebathroom. • R. v. Taylor: An older adult male received a six-month conditional sentence and six months probation after filming a neighborundressing through a residence window. Evidence of other attempts to observe neighbors were disclosed. Sharing voyeuristic materialswas an aggravating factor. • R. v.

Nagarkar: A six-month conditional sentence and one year probation were ordered where a restaurant manager used adisguised camera to record an employee in the business change room. [75] Justice Manderscheid also addressed the “Principles of Sentencing for Voyeurism Offences”. [76] He said: [188] An interesting feature of all reported voyeurism sentences is that none of these cases resulted in a prison term.

All offendersreceived either a conditional or a suspended sentence. [189] Where indicated, sentences have placed an emphasis on deterrence and denunciation, but also identified offender rehabilitationand acknowledgment of wrongdoing as important. I agree that deterrence is an important consideration for any voyeurism offence.Modern technology provides a person with an unprecedented ability to snoop and intrude in others’ affairs. There is no question respectof personal privacy is a right well respected in Canadian society.

Charter, s. 8 protects the privacy of citizens against intrusions by stateactors (recently reviewed in R. v. Gomboc, 2010 SCC 55 , 2010 SCC 55, [2010] 3 S.C.R. 211). The legislatures and Parliamenthave passed legislation to force respect for privacy and safe-keeping of private information. Imprisonment and the associated loss ofpersonal freedom is justified where an intrusion falls within the provisions of Criminal Code, s. 162. [190] We do not want to be spied upon. It is yet more an offence when that intrusion is motivated by a sexual purpose. [191] I am not the first judge to have surveyed this jurisprudence.

Associate Chief Judge Hyslop in R. v. F.G., at paras. 28-29 madesome noteworthy observations about these cases, and in particular the voyeurism offenders: 28 In the end, I am satisfied that there are common threads involved in all these cases to which I have made reference. One commonthread is that the intrusions all seem to have had serious impact on the victims. Another common thread is that none of the offendershave been sentenced to institutional imprisonment. The range of sentence appears to be anything from a discharge to a conditionalsentence of imprisonment.

However, I would add the caveat that this range was primarily established by courts of first instance for thistype of offence. I agree with Crown counsel that the sentences cited all seem to be on the low side ... in some cases, the Crown hasproceeded by way of

summary conviction, which would automatically reduce the range of sentence since the maximum for theseoffences would be six months imprisonment. ... [192] Associate Chief Judge Hyslop (para. 28) rejected the distinction that voyeurism offences did not involve physical harm orcontact: Most of the cases I have reviewed seem to suggest that this criminal activity of watching is lower on a scale of blameworthiness than anactual touching.

This theory, in my respectful view, tends to minimize the traumatic effect of this crime on the victim as an intrusionupon his or her privacy.” Analysis [77] Beyond the fact there are a number of applicable sentencing and common law principles which guide my decision, there arealso aggravating and mitigating circumstances which I take into account. Here the aggravating circumstances far outweigh themitigating circumstances. [78] The mitigating circumstances are: • Mr. Cassels has a very limited record; • Mr.

Cassels has plead guilty before a preliminary inquiry was held and so has spared his victims reliving, in a public forum, thehorrible abuse they suffered; and • Mr. Cassels has expressed remorse to his victims. [79] The aggravating circumstances are:

• The offences in three cases occurred in the context of a domestic relationship; • J.S. was 17 years old when she was abused by Mr. Cassels; • In the case of A.H. and L.J., the sexual assaults were numerous and repetitive, including almost daily assaults against A.H. over the course of a relationship that lasted over one year. • In addition to the sexual assaults and voyeurism, there was physical, emotional and psychological abuse which have left lasting and devastating effects upon the victims; • In the context of the relationships, Mr. Cassels’ behaviour was deliberately predatory.

He preyed upon young, innocent, vulnerable women, all of whom were virgins. In this regard I find the behaviour of Mr. Cassels to involve grooming behaviour where he initially charmed his victims and earned their trust before he then isolated them and abused them; • With respect to A.H., Mr. Cassels knew her value system and her character and he deliberately and deeply offended the values he knew were fundamental to her belief system; • The voyeurism behaviour in the context of the three relationships was particularly disturbing, intrusive and invasive and in the case of A.H., Mr.

Cassels used the recordings to further taunt and emotionally abuse her and • The voyeurism behaviour escalated in the case of strangers to the point where Mr. Cassels came into physical contact with his victim M.S. What is an Appropriate Sentence in these Circumstances? [ 80 ] The offences Mr. Cassels has committed are of a nature that strike fear in the hearts of people throughout society. That you or your loved ones can be forcibly confined and restrained, horrifically and repeatedly sexually assaulted and degraded is a fate that is almost unimaginable because of the terror it strikes. [ 81 ] Mr.

Cassels’ conduct has caused this fear to be realized among his victims. He has caused long-lasting and significant damage to these victims and their families. I find Mr. Cassels’ actions to be deliberate and his moral culpability high. In these cases he chose his victims. He preyed upon young, innocent and vulnerable women. He drew them in and won their trust and then he isolated then from their friends and family and he broke them down. Mr. Cassels horribly sexually abused them.

He forced them to sleep nude and without them knowing and without their consent he positioned their bodies and video-recorded and photographed them in their most vulnerable state. He did all of this to satisfy his own sexual desires. He did this not just without regard for their feelings, but in spite of their opposition. Counsel for Mr. Cassels described Mr. Cassels’ actions as “horrific” and “morally reprehensible”. On the whole, Mr.

Cassels’ conduct discloses a pattern of behavior which can fairly be characterized as sexually deviant. [ 82 ] What the case law has demonstrated is that more serious sexual assaults demand higher sentences. In the cases reviewed, factors such as the length of time the abuse continued; the severity of the sexual assaults; the number of victims and the degree of degradation, increase the sentence. Sexual assaults involving children also draw higher sentences. I am aware this case does not deal with children. Both aggravating and mitigating circumstances can adjust the sentence up or down.

I am mindful of these principles as I sentence Mr. Cassels. [ 83 ] I find the conduct of Mr. Cassels must be strongly denounced and the sentences must reflect societies loathing of his actions. It must be clear to Mr. Cassels and others who commit such offences that this type of conduct will not be tolerated by society. [ 84 ] At the same time and despite his very disturbing conduct, there must be some hope of rehabilitation for Mr. Cassels. Through intense therapy and attendance at and commitment to programs, it is possible Mr.

Cassels will recognize how inappropriate and damaging his actions have been and how his conduct is far outside what is acceptable in our society. So, the principle of rehabilitation is considered, but it is not the primary consideration. Denunciation and deterrence, both specific and general, are the overriding principles applicable in this case. Consecutive or Concurrent Sentences [ 85 ] In determining firstly whether these offences should be served consecutively or concurrently, I consider the nature of the offences and whether they are distinct from one another.

I consider also when they occurred and against who. I recognize that the some of the offences occurred within the context of a relationship and could be said to overlap with other offences against the same victim. In the majority of cases however I find this not to be the case.

At the outset I find that offences against distinct victims will result in consecutive sentences. [ 86 ] With respect to the offences committed against the individual victims: In the case of J.S., I find that the forcible confinement offence is distinct from the events of voyeurism as they are separate acts and they are committed at different times for different purposes. Those sentences will be consecutive. [ 87 ] In the case of A.H., similar to the above, I find the acts of sexual assault and the voyeurism are distinct acts. The sexual assaults satisfied Mr. Cassels’ immediate sexual needs.

The voyeurism is separate and distinct because it was planned by forcing the victims to sleep nude, giving Mr. Cassels the opportunity to photograph and record them without their knowledge. Mr. Cassels kept these images for his own sexual gratification at times other than when he was sexually assaulting his victims. In addition, he created permanent images which create a separate damage from the sexual assaults. As a result, the sentence for voyeurism will be consecutive to the sentence for sexual assault. The utter threats offence was committed for the purpose of furthering Mr.

Cassels’ ability to control and sexually assault A.H. and that will be served concurrently to the sentence for sexual assault. The sentence with respect to A.H.’s offences

will be consecutive to those of other victims. [ 88 ] With respect to L.J., I find the sexual assault and voyeurism offences to be separate and distinct offences for the reasons set out above. I also find the breach of the protective order to be a distinct offence and so all three sentences will be consecutive. This sentence will be consecutive to the sentence for the offences against the other victims. [ 89 ] The voyeurism offence against M.S. and the interference with the use and enjoyment of property at TanFX is one event and those sentences will be concurrent to each other.

This sentence will be consecutive to the sentence for the offences against the other victims [ 90 ] The offence of voyeurism against N.M. will be consecutive to the other sentences. Specific Sentences [ 91 ] The evidence indicates Mr. Cassels forcibly confined J.S. on two occasions. I am mindful of J.S.’s age. She was a 17 year old innocent young woman. The experience would have been terrifying and it would leave her feeling powerless against Mr. Cassels. On both occasions she had left his residence and was dragged back and restrained.

In both cases violence was used to return her to his residence and keep her there. The sentence for forcible confinement will be one year. [ 92 ] With respect to the voyeurism charge, I recognize from a review of the case law, that these offences have not usually resulted in custodial sentences. I also note that many of the offences involved watching and in many of the cases without the knowledge of the victim. Here, however, Mr. Cassels’ conduct went well beyond watching and in the case of J.S. she not only knew about the recordings she tried to get them back - to no avail. Mr. Cassels’ scripted his voyeurism.

He forced his victims to sleep nude to facilitate his actions. He positioned their bodies so that he could take incredibly intimate images of them. This behavior goes beyond the circumstances of many of the cases reviewed. I therefore sentence Mr. Cassels to six months consecutive on the voyeurism charge. [ 93 ] It is clear the sexual assaults against A.H. and L.J. constituted serious sexual assaults. Based on the case law the starting point for a serious sexual assault is three years. However, that is for a single major sexual assault where the accused is of good character with no criminal record.

In addition, the three years can be adjusted up or down depending on the circumstances. When I consider that the sexual assaults numbered in the hundreds given the length of time in each relationship and when I consider the brutality of the assaults, particularly against A.H.; when I consider the long-term damage and devastation suffered by the victims, I conclude the sentences should be adjusted upwards. [ 94 ] In the case of A.H. the sentence will be five years. This is to reflect the aggravating factors above and, in particular, the numerous times and numerous ways Mr. Cassels sexually abused and degraded A.H.

The utter threats offence was committed to keep A.H. with Mr. Cassels. I find this was to provide him with the opportunity to continue his sexual assaults and so I find it tied to the sexual assault offences. On that basis it will be a three-month sentence concurrent to the sentence on the sexual assaults. [ 95 ] In the case of L.J. the sentence will be four years. This sentence is again is to reflect, in particular, the sustained and repetitive sexual assaults upon her. [ 96 ] With respect to the voyeurism offences against L.J., the sentence will be six months consecutive.

With respect to A.H., the sentence will be nine months consecutive to the other offences committed, to take into account the fact that Mr. Cassels made her view the photographs against her will and as a further way to degrade her. [ 97 ] With respect to the breach of the protective order against L.J., I note that Mr. Cassels did not speak to her and did not touch her. I note that despite his efforts he was outside and she was in the theatre. Nonetheless, he breached an order of the court in a circumstance where he ought to have known how much it would distress L.J.

I sentence him to one month consecutive for that offence. [ 98 ] With respect to the voyeurism charge against M.S., I find as aggravating the escalating behaviour of Mr. Cassels where strangers were concerned. He actually entered a room in a business establishment where he knew women were tanning, and likely nude or partially nude. He climbed over a wall to gain access to M.S. He stepped on top of the tanning bed she was in to escape. This would justifiably have been a terrifying experience for her. The sentence for this offence will be four months consecutive to the other sentences.

For the interference with the enjoyment of property at TanFX, an event linked to the offence against M.S., I sentence Mr. Cassels to one month, concurrent to the voyeurism charge. [ 99 ] With respect to the voyeurism charge against N.M., who was changing in her apartment, she had the right to expect privacy as all citizens do. I am mindful that she was unaware of the intrusion to her privacy and I take into account Mr. Cassels did not have any contact with her at all. This offence is closer to the cases that I have reviewed where custodial time is usually not given.

If this was the only offence he had committed, I may have granted a conditional sentence. However, given Mr. Cassels previous conviction for trespass at night, and given the course of conduct of Mr. Cassels, this offence warrants a sentence of two months consecutive. [ 100 ] In the result, the total sentence is 149 months or 12 years, five months.

Totality [ 101 ] I will now consider the principle of totality and take a last look to determine if the sentences are appropriate in all of the circumstances. [ 102 ] It must be remembered that at this stage of the sentencing process, the purpose of this last look is to ensure that the total sentence respects the principle of proportionality (set out in s. 718.1 of the Criminal Code ) by not exceeding the overall culpability of the offender.

This requires an examination of the gravity of the offences, the offender’s degree of guilt or moral blameworthiness with respect to the crimes committed and the harm done to the victim or victims.

[103] As was stated by Lamer, C.J.C., in R. v. C.A.M. [ (SCC), [1996] 1 S.C.R. 500] (at para. 40): Indeed, the principle of proportionality in punishment is fundamentally connected to the general principle of criminal liability, whichholds that the criminal sanction may only be imposed on those actors who possess a morally culpable state of mind. In discussing theconstitutional requirement of fault for murder in R. v.

Martineau, (SCC), [1990] 2 S.C.R. 633, at p. 645, I noted therelated principle that “punishment must be proportionate to the moral blameworthiness of the offender,” and that “those causing harmintentionally [should] be punished more severely than those causing harm unintentionally .... [104] In considering the gravity of the offences, the guilt or moral blameworthiness with respect to the crimes and the harm done to thevictims, I find the following: many of the offences here are horrific. They include numerous sexual assaults over extended periods oftime. Mr. Cassels’ degree of moral blameworthiness is very high.

He sought out a particular type of victim; young and vulnerable. Hemanipulated and abused them. And in terms of the harm done, it is substantial. That is clear when the facts are reviewed and is clearfrom the victim impact statement delivered by L.J. The harm they suffered was entirely a result of Mr. Cassels’ conduct. They are in noway to blame for the harm they have suffered. One can only hope that in time and with great support these victims can reclaim their lives,their dignity and the relationships which have suffered as a result of their unfortunate interactions with Mr.

Cassels. [105] However, and in spite of the above, Mr. Cassels is a relatively young man. His supporters, his family and friends, see potentialand hope for him in the future. He has a very limited criminal record. When he is released he is going to have to rebuild his life. In thecircumstances, I find a 12-year, five-month sentence is not in keeping with Mr. Cassels’ records and potential prospects in the future. Thetotality principle calls for some reduction in the sentence.

Accordingly, I reduce the 12-year, five-month sentence to ten and a half years.I do this by reducing the sentence for sexual assault against A.H. by 11 months, from five years to four years and one month, and byreducing the sentence for sexual assault against L.J. from four years to three. Credit for Pre-Trial Custody [106] Mr. Cassels has requested that I apply 1:5 to 1 for his time in pre-trial custody. He has been in custody for three years. The Crownis opposed and says 1:1 time for pre trial custody is appropriate in all of the circumstances. [107] As Steel J.A. indicated in R. v.

Stonefish: Credit for PSC is discretionary. However, as a general rule, credit as set out in s. 719(3) of the Code on a 1:1 basis should begiven for time spent in custody prior to sentencing, unless there is some good reason for denying it (see, for example, English at para.28). On the other hand, enhanced credit on a 1.5:1 basis, as set out in s. 719(3.1) of the Code, may be given when the accused can show,on the balance of probabilities, that the circumstances justify it, in their individual case.

The onus of proof under s. 719 of the Code on the balance of probabilities should rest on the party seeking to use a ratio otherthan 1:1. Thus, the onus should be on the Crown on the balance of probabilities to show cause why credit should be denied or given onless than a 1:1 basis.

The onus for enhanced credit beyond 1:1 is on the accused. [108] Justice Steel went on to list a number of factors that may be considered including: the accused showing evidence of goodbehaviour on remand such that he would have received credit for remission if a sentenced prisoner; conditions in remand, such as lack ofprogramming, harsh circumstances, post-trial delay not attributable to the accused; multiple court appearances; the need to obtain apre-sentence or Gladue report, among other factors. [109] The basis of Mr.

Cassels’ request includes the following: • He has been in custody for over three years on these matters. As such, he has no opportunity to earn remission; • He has been held in remand in Brandon away from his family which is a hardship for him; • He has been sexually assaulted in prison; • He has taken courses while in remand; • He has not had any significant disciplinary matters while he was in remand; and • There has been delay which is not attributable to him. [110] As noted earlier, Mr. Cassels did provide documentary evidence to support the fact he attended programs in remand.

He tookprograms between October 2010 and August 2011. In addition the Chaplain at Brandon indicated he worked with him for 14 months andsaw improvement in his attitude. So taking the programs is to Mr. Cassels’ credit. However, the comments in the reports are notcomplimentary to Mr. Cassels. Specifically, the thrust of the comments is that he attended but at times his level of participation was verylow. The concern raised is that Mr. Cassels lacks insight into his behaviour. In addition, he commented at one of the courses that he wastaking it to get a year off his sentence.

This led the facilitator to question Mr. Cassels’ sincerity in taking the course and his commitmentto changing his life. I share these concerns. I do not find the above facts justify enhanced credit. [111] Further, his conduct while in remand has not been exemplary. He has been involved in disputes with other inmates. Even if Iaccept that he was not the aggressor of all of the altercations, there are other incidents, such as not giving up his bunk for an amputee anda recent altercation in March 2013, which went to mediation and for which he lost privileges. I also acknowledge that Mr.

Cassels hashad some harsh circumstances to deal with in remand, including a sexual assault. But overall, when I look at his conduct, even takinginto consideration the assault he suffered, I do not find he has demonstrated, in a balance of probabilities, enhanced credit on this basis iswarranted. [112] Mr. Cassels also argues there has been delay on this file. He has filed transcripts of his appearances at court. He had a number of

different lawyers and his current counsel indicates this in

part caused delay not attributable to Mr. Cassels. One of Mr. Cassels’ lawyers also left private practice during the conduct of the file and this caused a delay not attributable to Mr. Cassels. [ 113 ] The Crown also acknowledged that there was a delay attributable to the Crown as this sentencing was to proceed in February, but the assigned Crown had to have surgery and so a new Crown had to get up to speed. I accept there has been some delay which is not attributable to Mr. Cassels. I am prepared to give him enhanced credit for a portion, but not all of his pre-trial custody.

There will be 1:5 credit for one year of his pre-sentence custody. So his time served will be counted, not as 40.5 months, but 46.5 months. This leaves Mr. Cassels with 79.5 months going forward. [ 114 ] In addition, there will be a DNA order pursuant to s. 487.051; a lifetime Sex Offender Information Act order pursuant to s. 490.012 and s. 490.013; a s. 109 order prohibiting Mr. Cassels from possessing any firearm, cross-bow, prohibited weapon, prohibited device, ammunition, prohibited ammunition and explosive substance, for 10 years; and, a no communication order with respect to all victims while Mr.

Cassels is in custody in accordance with s. 743.21. [ 115 ] Costs and surcharges are waived in the circumstances. Original signed by Judge M. I. Wiebe P.J.