R. v. Knelsen, 2013 ONCJ 157

WARNING The court hearing this matter directs that the following notice should be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs ( a )(

i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order. . . . 486.6 Offence. —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. COURT FILE No.: Simcoe Y110025 DATE: 2013·03·12 Citation: R. v. Knelsen , 2013 ONCJ 157 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — Jacob Knelsen Before Justice K.A. Sherwood Heard on February 1, 2013 and March 12, 2013 Reasons for Sentencing released on March 12, 2013 Gracie Romano .......................................................................................................... for the Crown

Michael McArthur ............................................................................. for the accused Jacob Knelsen SHERWOOD J.: [ 1 ] On the matters before the court the Crown proceeded by indictment. On August 13 th of 2012 after entering pleas of guilt, and on the basis of an agreed statement of facts, Jacob Knelsen was found guilty of two counts of attempted murder and one count of sexual assault. The offender was just over 17 years of age at the time of these offences.

Pursuant to an application by the Crown under section 42(9) of the Youth Criminal Justice Act , a determination was made that the offences are serious violent offences as defined in section 2(1) of that Act . The Crown also brought an application pursuant to section 64(1) of the YCJA for an order pursuant to section 72(1)(

b) of that Act that the young person, Jacob Knelsen, be sentenced as an adult for these offences. Pursuant to reasons released February 1 st , 2013, that application was granted and on that day the sentencing hearing was commenced. Comprehensive submissions were made by both the Crown and defence and the decision as to the sentence to be imposed was reserved to today to be followed by a placement hearing. [ 2 ] The circumstances of the offences were outlined in detail in an agreed statement of facts filed as an exhibit and summarized in my February 1 st , 2013 reasons for decision.

I am not going to repeat those facts in detail today.

I will summarize, however, that in considering the seriousness and circumstances of the offences, there are a number of details which were noted previously and are worth repeating today: Jacob Knelsen attended at the residence of the victims uninvited and had brought with him a hunting style knife; the attack upon the victims, a mother and five year old child, took place in their home; estimated from the times provided in the agreed statement of facts, the attack lasted for a period of just less than two hours; the physical attack upon the mother included, at various times, holding a knife to her throat, pushing her to the floor, grabbing her by the throat to the point where she could not breathe, striking her in the face with a closed fist, strapping her to the bedpost of her bed with a belt and a necktie, attempting to cut her neck with a cutlery knife, stabbing her in the neck with a pair of scissors, striking her in the head three times with a frying pan, setting the bedroom on fire with her tied to the bedpost and her son with her in the room, and then after she was able to escape from the burning house, pushing her to the ground and stepping on her neck and pushing down, cutting off her ability to breathe.

The sexual aspects of the attack upon the mother included kissing her while he held a knife to her throat, kissing her and fondling her breasts, ordering her at knifepoint to take off her clothes, taking off his pants and underwear and getting on top of her on her bed, grabbing at her breasts and attempting to have sexual intercourse with her, rubbing his penis against her leg and vaginal area in an unsuccessful attempt to gain an erection.

Some of the attacks on the mother were apparently witnessed by the five year old child, including grabbing her by the throat, attempting to cut her throat with the cutlery knife, striking her with the frying pan and, after they escaped from the home, pushing her to the ground and stepping on her throat. By his pleas of guilty, Jacob Knelsen has acknowledged that he attempted to murder the mother and her five year old son. By definition, this includes the requisite mental element of intent to kill.

The home of the victim and her family was destroyed at an insured property loss, taking into account depreciation, of $351,365.21. Five of the family’s pets, one dog and four cats, were killed in the fire, and the Ontario Fire Marshal investigator has opined that the master bedroom would have experienced a “flashover” three to four minutes after the fire was ignited, and had anyone been in the room at that time it would have been impossible for them to survive. [ 3 ] Victim impact evidence was provided through statements filed.

It is clear that the victim mother sustained severe physical injuries, including second degree burns to her face, back, neck and shoulder, abrasion where she had been struck with the frying pan, smoke inhalation, non-penetrating and penetrating puncture stab wounds to her neck, a puncture wound to her right lower leg and a subsequently diagnosed skull fracture. She had extensive hospitalization. Emotionally, she has suffered flashbacks and nightmares, has been fearful that someone would come to harm her and her family, and was preliminarily diagnosed of having acute stress disorder.

Clearly the impacts upon this victim have been very traumatic, devastating, ongoing and long-lasting. The five year old child victim also sustained physical injuries, including burns on the tops of his ears, right wrist, and on his lower back. The victim impact statement completed on his behalf talks about how he experienced nightmares almost every night for the first year after the offences, how he would cry for the pets that died in the fire and how he has been fearful to be away from his parents, especially his father.

The victim impact statement of the husband speaks of the initial shock upon being informed of the fire and the injuries to his wife and son, of having to explain to his children what had happened and having to comfort them in the loss of their home, belongings and pets. He speaks of the ongoing impact that this has had upon his relationship with his children and his wife. [ 4 ] Jacob Knelsen was born on January 25 th , 1994. He is the third oldest of 16 siblings. His family is of Mexican Mennonite background. His family is very close-knit and operates a produce farm.

From the reports that were filed it is apparent that as Mr. Knelsen grew older, requirements or expectations of him working on the family farm began to compete with his attendance at school and, as a result of ongoing truancy issues, his education was interrupted a number of times. By the time of his arrest in February of 2011 he had attained only eight credits towards his high school diploma. He has been in custody at the Sprucedale Youth Centre since March 1 st of 2011 and through attending the secondary school program at that facility, has attained additional credits.

As at February 1 st , 2013, he only had four to six credits remaining to complete his secondary school education. The Children’s Aid Society has been involved with Jacob Knelsen’s family since 2004, investigating complaints from community members and schools pertaining to inadequate supervision, neglect and inadequate care of the children. It is evident from the assessment reports that Jacob Knelsen views his family as a central pillar in his life. [ 5 ] Jacob Knelsen has just turned 19 years of age.

In assessing his maturity, character, background and previous record, I have had the benefit of reviewing a presentence report, a psychological assessment and a psychiatric assessment report. Details of that information were also provided in the decision and reasons of February 1 st , 2013. I will not repeat them here other than to note that Jacob Knelsen has some cognitive issues which have delayed his cognitive development and which have slowed the progress that he might otherwise be making in efforts to address his rehabilitation.

The reports note that while in detention Jacob Knelsen has been compliant with the custodial facility. For the most part he has attained the highest privilege levels within that facility. He has presented as quiet, cooperative, self-motivated, able to follow directions without incident, and as being eager to participate in programs. He has participated in ongoing counselling, and some progress, although slow, has been noted. The assessors have found that Jacob Knelsen is

at a moderate risk for violence or reoffending in the future. That risk is likely to be greater if he does not take appropriate counselling and treatment programs to address his underlying issues. It may also be mitigated if he does consistently apply himself to programs that are appropriate to deal with his issues. While Jacob Knelsen has no history of criminal charges there are indications in the presentence report and the assessments that he has, in the past, engaged in physical altercations and assaultive behaviour at school and in the community.

The reports indicate that he appears to lack some insight into his offending behaviour and it seems from the assessment reports that this may be a factor of his limited cognitive abilities.

The assessors, while confirming that his progress in rehabilitation has been slow and that they are guarded about his prospects for continuing such programs if he is returned to the community, particularly given his close connection to his family and the negative impact that they may have on his “moral compass”, have recommended that he continue his education, counselling and treatment in a controlled and structured setting, and that his eventual reintegration into the community be gradual and with the support of probationary or parole services for a lengthy period of time. [ 6 ] It is clear that by the virtue of

section 74 of the Youth Criminal Justice Act , the court having determined that the young person is to be sentenced as an adult, the sentencing provisions of the Criminal Code apply. Those provisions are set out in

part XXVIII of the Code in sections 718 to 718.2. [ 7 ] There is some debate within Canadian jurisprudence as to what degree, if at all, the sentencing principles contained in

section 3 and

section 38 of the YCJA can or should be applied when imposing an adult sentence on a young person. One approach has been taken by the Saskatchewan Court of Appeal in R. v. Flaten , [2009] S.J. No. 709, at paragraphs 35 to 36 . The strict

interpretation approach adopted by that court is that the YCJA sentencing principles do not apply. Another approach has been taken by the British Columbia Court of Appeal in R. v. Pratt , [2007] B.C.J. No. 670 at paragraphs 35 to 37 . In this approach that court combined the principles of the YCJA with the sentencing principles of the Criminal Code when sentencing a youth as an adult. The court held that barring any inconsistency between the principles set out in those two pieces of legislation that

section 3 of the YCJA still has application. The effect of

section 74 of the YCJA is to bring into the sentencing of a young person the principles set out in

section 718 of the Code that are otherwise not applicable under the YCJA , such as specific and general deterrence, but at the same time does not exclude the general principles such as the greater dependency of young people and their reduced level of maturity as set out in

section 3 of the YCJA . I note that the British Columbia Court of Appeal approach has been favourably adopted by the Nova Scotia Court of Appeal in R. v. Smith , [2012] N.S.J. No. 188 , by Justice Nordheimer of the Ontario Superior Court of Justice in R. v. J.B. , [2010] O.J. No. 3931 at paragraph 37 , and by Justice Lipson of this court in R. v. Elie , [2012] O.J. No. 349 . [ 8 ] I favour and adopt the approach taken by the BC Court of Appeal in R. v. Pratt and quote from that decision as follows, starting at paragraph 53: [53] The key provision in

Part XXVIII, for the purpose of this comparison, is s. 718. I see nothing in that

section which is inconsistent with s. 3. In my view, the two provisions may be read together to give a sentencing response to an offence that, in being greater than is allowed for a youth sentence, both responds to the objectives of s. 718 and reflects the principles of s. 3. On this view, s. 3 simply heightens the consideration a court must give to the age of a young person by directing an approach to sentencing which expressly recognizes, as set out in s. 3(1)b), the greater dependency of young persons and their reduced level of maturity.

It is a provision that recognizes that it is not only a young person’s physiological growth that is incremental. [54] The criminal law for adult offenders presumes maturity. In contrast, the Act recognizes that a young person’s maturity, like their physical stature, increases progressively, as, too, their dependency diminishes gradually, until he or she reaches the stage of full accountability.

That concept applies not only in sentencing considerations, but, in cases of the very young, also to the question of whether the young person has the capacity to form the intent necessary for conviction. … [ 9 ] The court goes on at paragraph 55: [55] I conclude that an adult sentence pursuant to s. 74, such as the one imposed on Mr. Pratt, remains a sentence under the Act . That being so, I see no basis upon which to say that the principles set out in s. 3 do not apply.

To put it another way, the effect of s. 74 is to bring into the sentencing of a young person the principles of s. 718 which are otherwise not applicable, such as specific and general deterrence, and not to exclude the general principles set out in s. 3. [56] I conclude, therefore, that in sentencing a young person to an adult sentence pursuant to s. 74 of the Act , the sentencing judge was required to strive to fashion a sentence that addresses the objectives of s. 718 of the Code and as well emphasizes, to the degree possible in the context of the evidence before the court, both the young person’s rehabilitation and reintegration and “fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity”. [ 10 ] And at paragraph 58: [58] What is required, in my view, is that the sentencing judge consider the factors addressed in s. 3 of the Act .

This means that the significance of rehabilitation, an important principle under s. 718 of the Code , is enhanced in the sentencing of a young person. It means as well that the application of the principle of accountability must recognize the deficiencies in maturity of the young person and his or her greater dependency as that may be revealed in the evidence before the court. [ 11 ] To some extent, the divergence of these cases is an intellectual exercise. The principles under

section 718 of the Code and

section 3 of the YCJA are, for the most part, consistent. The addition of the principles set out under

section 3 of the YCJA simply enhances the principles with respect to rehabilitation and the degree of responsibility of the accused. As noted by the Nova Scotia Court of Appeal in its decision in R. v. Smith , [2012] N.S.J. No. 188 at paragraph 24 , where the court favourably adopts the

interpretation of the trial judge in that matter: [24] Whatever differences or refinements might emerge from such cases as A.A.B., Pratt and Flaten , I believe Judge Campbell articulated the correct approach to be taken in such matters when he said (and I repeat here): [124] The principles of sentencing in each regime are, in these kind of circumstances, informed by the other. Both are considered. Neither is tossed out. Neither one should automatically always and in every case trump the other. Once the decision has

been made to sentence a young person to an adult sentence the social policy considerations underlying the system of youth criminal justice do not disappear. They may well have to be addressed in a way that reflects the circumstances. In some cases, denunciation and deterrence will have to be emphasized. In some cases, they will be considerably more important than rehabilitation.

In others, even though the circumstances call for the imposition of an adult sentence, those policy considerations set out in the YCJA are more important. … [126] How adult sentencing principles and youth sentencing principles interact should depend on the circumstances of each case. In some cases, despite the imposition of an adult sentence, the youth sentencing principles may have application. In others, the balance may tip more toward the application of adult principles. [ 12 ] With these directions in mind, I must then analyze the facts of this case in application of those principles.

Section 718 of the Criminal Code provides: s. 718 The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders and acknowledgment of harm done to victims and to the community. [ 13 ]

Section 718.1 of the Code provides: s. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 14 ] Other sentencing principles are set out in

section 718.2 as follows: s. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender and without limiting the generality of the foregoing, (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation or other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner, (ii.

i) evidence that the offender, in committing the offence abused a person under the age of 18 years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim. (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or (

v) evidence that the offence was a terrorism offence. shall be deemed to be aggravating circumstances; (

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

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

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. [ 15 ] As was found in the decision on the application for adult sentencing, Jacob Knelsen acted alone in the commission of these offences and the actions that he deliberately took caused tremendous consequential harm. His blameworthiness and the degree of departure of his conduct from the norm that we would expect from ordinary citizens are extreme.

The nature and circumstances of these offences and the considerable consequences and impact that were occasioned to the victims speak to a need for the sentence imposed in this matter to denounce the unlawful conduct of Jacob Knelsen. [ 16 ] The sentence must also address the issue of deterrence, both general and specific.

Offences of this nature require a sentence of sufficient significance to send a clear message not only to this offender, but to others, that commission of these types of violent and invasive offences will be met with severe sanctions. [ 17 ] To some extent, the sentence to be imposed in this matter will require separating the offender from society. This is

required, not only to, in part, address the issues of denunciation and deterrence that I have already referred to, but also to assist this offender with his effective rehabilitation and eventual reintegration into the community. As noted by the assessors, his progress to date in addressing rehabilitation issues has been slow. It is clear that this is primarily due to his own makeup and his challenges, which impede his ability to gather insight into his offences and the issues which underlie them.

The direction from the assessors is that he should continue treatment and counselling in a structured environment and that his prospects for success are most likely where he can do so apart from what the assessors have described as negative influences from his family, who he views as a core support. [ 18 ] The sentence must clearly assist Mr. Knelsen in his rehabilitation. He is before the court as a first offender. He has not, prior to this, been subject to any imprisonment or incarceration.

The progress that he has made while in custody, particularly with respect to his educational program and in his behaviours, demonstrate that he has the ability to be rehabilitated. While his progress to date may have been slow it has been steady. This speaks well for his future. With a view to preventing future crime and to promoting the purpose of sentencing, the principle of rehabilitation has to be given significant weight in the consideration of the sentence to be imposed. This is augmented by the inclusion of the provisions of

section 3 of the Youth Criminal Justice Act , which stress an emphasis on rehabilitation. Those directions from the Youth Criminal Justice Act are not in contravention of the direction under

section 718. [ 19 ] With respect to providing reparations for the harm that has been occasioned to the victims or to the community, unfortunately Mr. Knelsen is not in a position to have done so to date or to do so in the future.

Nothing that I can do in sentencing this young person today is in any way going to replace the loss sustained by the M. family, heal the wounds that they have received, or likely lessen the impact that they will continue to feel in the future. [ 20 ] The sentence must also promote a sense of responsibility in the offender and an acknowledgment of the harm done to the victims and to the community. As reflected in the assessments that have been filed, and in the presentence report, it is clear that Mr. Knelsen has had some difficulty in coming to a full appreciation of the harm that his offences have caused.

This may, in part, be due to his limitations. Nevertheless, he has expressed some remorse and he has, in his letter to the court filed previously, indicated that he is coming to understand the long-lasting, if not permanent, harm that he has caused. This may be consistent with his continual progress in rehabilitation. [ 21 ] Under the additional sentencing principles provided for in

section 718.2 of the Code I have to consider and account for aggravating or mitigating circumstances. These circumstances may either increase or reduce the appropriate sentence to be imposed. [ 22 ] With respect to mitigating circumstances, I have to consider the young age of Mr. Knelsen. He is yet just 19 years of age. This young age goes towards enhancing the reasonable prospects of his rehabilitation. It also speaks somewhat to the principle of greater dependency of young persons as set out in the relevant provision of the Youth Criminal Justice Act .

I also have to consider that Jacob Knelsen appears before the court with no prior record. He is here as a first offender. He has entered a guilty plea. The Crown has submitted that this was perhaps inevitable in that a defence was unlikely. Nevertheless, he would have been entitled to put forward a defence or to have the Crown prove the case against him. By entering his guilty pleas to these offences he has avoided putting the victim and her family through the trauma of a trial. That is not insignificant.

His guilty plea is also an acknowledgment of responsibility and speaks to promoting his sense of responsibility in this matter. I consider, as well, the impact of Mr. Knelsen’s family in shaping him as the offender he is before the court. This is commented on in the

section 34 assessment reports that have been filed and the presentence report, and was commented on in greater detail in my previous reasons on the adult sentencing application. Another mitigating factor is the efforts that Jacob Knelsen has made towards his rehabilitation while he has been in custody. He has made considerable progress in completing his secondary school education. While in custody he has been compliant and cooperative. He has actively engaged in appropriate therapy and in appropriate recreational and social activities. He has made a clear effort towards addressing his rehabilitation.

All of these factors go to his credit. [ 23 ] Clearly, there are a number of aggravating and significantly aggravating factors in this case. I have already reviewed the impact upon the victims as disclosed in their victim impact statements. These offences have caused serious and drastic harm to the victims. There have been indications in the reports that indicate Mr. Knelsen has not fully appreciated the harm that he has caused. It has been stated by him at one point that he feels he has suffered more than the victims.

This is unrealistic and, to the extent that it demonstrates a lack of responsibility, it is aggravating. I note, however, as previously, there appears to be an element to this related to his challenges. These offences were egregious in nature, devastating to the victim and her family, causing of long-lasting and significant impacts, there were hundreds of thousands of dollars in property damage for which no reparation has been made, and these are offences which understandably have outraged the community.

The nature and severity of the offences, being a significantly aggravating factor, speak towards greater emphasis on the principles of denunciation and deterrence. [ 24 ] Totality and restraint are also valid considerations given the young offender’s age. [ 25 ] Considering, then, all of the circumstances of this case, the purposes and principles of adult sentencing have to be applied to this offender and his offences, but they are to be applied having regard to the circumstances of the offender including his young age as well as his criminal sophistication or lack thereof. [ 26 ] Counsel have made able submissions and have referred me to a number of cases reflective of a range of sentencing in offences, particularly involving attempted murder.

The Crown submits that an appropriate sentence for this young offender in these circumstances, giving credit to the discounting considerations that I have outlined, would be ten years. In her submissions, Ms. Romano acknowledged that based on the case law the overall range for sentencing on offences of attempted murder would appear to be anywhere from six years to life in prison. Mr. McArthur, on behalf of the young person, suggests that greater emphasis has to be placed on the YCJA provisions calling for rehabilitation and recognizing the dependency of young persons and their reduced responsibility.

He suggests that the appropriate range is six to eight years. [ 27 ] Having reviewed the case law that has been submitted it is clear to me that sentencing in matters of attempted murder require significant sentences to address the obvious considerations of denunciation and deterrence, but are fact-driven. It is difficult to find and refer to a case that is on all fours with this. Fortunately, we do not have many cases committed by offenders similar to this young person in a manner and involving circumstances similar to these offences and in the similar circumstances of our community.

That is a good thing. It creates, however, a challenge in trying to find a comparison to use as a guide in sentencing this young offender. [ 28 ] After applying a balanced approach in weighing the sentencing purpose, principles and objectives pursuant to

Part XXVIII of the Criminal Code as I have outlined, and with consideration, where appropriate, of the principles and purposes of the Youth Criminal Justice Act , where they are not in contravention of those Criminal Code provisions that I am directed to consider and apply, and in particular, recognizing the emphasis under the YCJA principles to promote the rehabilitation and effective reintegration of the offender while ensuring fair and proportionate accountability that is consistent with the greater dependency of young persons and their stage of development, I have concluded that on the two counts of attempt murder there will be a concurrent disposition of eight years custody.

On the one count of sexual assault there will be a concurrent disposition of five years custody. [ 29 ] I must consider, as well, the issue of presentence custody. Jacob Knelsen has been in custody since the date of the offence, February 28 th of 2011. To today’s date, that is just over two years. He has spent this custody in a youth detention facility. During this custody he has not and will not have the benefit of remission.

Consideration for enhanced credit for adult presentence custody is usually justified on the basis that statutory remission does not apply to such custody, the absence of programs in local remand centre facilities for treatment, counselling and education, or the harshness of the custodial environment. It is clear that Mr. Knelsen has had the benefit of extensive programming; however, he will not receive, as I have noted, statutory remission for his presentence custody. To his credit he has actively engaged himself in the programming that was available.

He has attended an educational program and has upgraded his education considerably. Given the length of the presentence custody and Mr. Knelsen’s lack of any prior involvement in the justice system, it seems reasonable to give him an enhanced credit for that presentence custody. While there is no prescribed or precise mathematical calculation to be used here it seems to me that he should be given a credit of 1.5 to 1 or approximately that, so that presentence credit will be given for a total of 36 months.

That presentence credit will be deducted from the custodial sentences I have noted. [ 30 ] I must also consider ancillary orders. The defence, in submissions, made no objection to the orders that were reasonably requested by the Crown. First of all, Jacob Knelsen, having been convicted of the offence of sexual assault, a designated offence within the meaning of

section 490.011(1) of the Criminal Code , is ordered to register and report pursuant to the provisions of the Sex Offender Information Registration Act for a period of 20 years. The SOIRA order is with respect to the sexual assault offence. [ 31 ] Secondly, a DNA order has been requested on all counts. These are all primary designated offences and given the degree of violence that was involved and the nature of the offences, it is clear that the public interest outweighs any privacy concerns of the offender and there will be an order made for the provision of DNA samples.

Those samples can be taken in the custodial facility and the order will be marked valid until executed. [ 32 ] There will be an order pursuant to

section 109 of the Criminal Code . Accordingly, pursuant to that order, Mr. Knelsen, you are prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for a period of 20 years. [ 33 ] In light of the custodial sentence imposed, any victim fine surcharge that would otherwise apply is waived. [ 34 ] In the circumstances I am satisfied that an order pursuant to

section 743.21 would be appropriate and accordingly, that order will be made prohibiting Jacob Knelsen from communicating directly or indirectly with any victim identified, that would be Ms. and her immediate family, during the custodial period of the sentence. Released: March 12, 2013 Signed: “Justice Kevin A. Sherwood”