R v RS, 2013 ONSC 4088

CITATION : R v RS, 2013 ONSC 4088 COURT FILE NO.: 0477/11 DATE: 20130612 W A R N I N G A non-publication order in this proceeding has been issued pursuant to subsection 486.4 of the Criminal Code . ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) Her Majesty the Queen - and - R.S. ) ) ) ) ) ) ) ) Darren J. Hogan , for the Crown David Maubach, Victoria Rivers , for the Defendant ) HEARD: April 29, 2013 REASONS FOR SENTENCE Harvison Young J. [ 1 ] R.S. was convicted of sexual interference (2 counts) and sexual assault (2 counts) following a trial before me sitting as a judge without a jury.

Conditional stays were entered on a number of related counts on the indictment pursuant to the Kienapple principle. [ 2 ] The facts are set out in great detail in my reasons for judgment and may be briefly summarized here. [ 3 ] The complainants are three young boys, two of whom, C.D. and D.D., were his stepsons, and the youngest, D.S., his biological son. The indictment covers the period from January 1, 2008 until September 15, 2009. [ 4 ] C.D., the oldest, was born on […], 2002, and was thus roughly between five-and-a-half and seven during the period covered by the indictment.

D.D., born […], 2003, ranged from about four-and-a-half to six during the same period. D.S., the youngest, was born on […], 2005, and ranged in age from about two-and-a-half to five during this period. [ 5 ] The sexual interference convictions arose out of two incidents in which R.S. “sucked and smacked” the boys’ penises. One of these occasions involved the two younger boys, D.S. and D.D., witnessed by their older brother C.D. In the other incident, C.D. was similarly assaulted along with his two brothers.

The sexual assault convictions were based on two incidents in which R.S., to use C.D.’s language put his penis in his “bum”. It is clear as my reasons indicate that I was satisfied beyond a reasonable doubt that R.S. did put his penis in C.D.’s “bum”, to use his language, and also that R.S. ejaculated as evidenced by the diagram drawn by C.D. that shows dripping from that area. [ 6 ] R.S. has been in custody on these charges [1] since December 15, 2010. The convictions were entered on December 19,

2012 and the sentencing hearing was scheduled for January 16, 2013. [7] On February 22, 2010, Bill C-25, the Truth in Sentencing Act (the “Act”) came into force. Section 719(3) of the CriminalCode, as amended by the Act, provides that the court “shall limit any credit [for time served] to a maximum of one day for each dayspent in custody”, but s. 719(3.1) provides that “if circumstances justify it”, credit of up to 1.5 days per day spent in custody may begranted. As the Court of Appeal recently held in R. v.

Clarke, 2013 ONCA 7, the new provision, properly construed, applies to personscharged since it came into force, even if the offences were committed before it came into force. R.S., who was charged after the Actcame into force in relation to these offences which were committed before it came into force, seeks a declaration that the Act is of noforce and effect against him insofar as this sentencing is concerned. He submits that the application of this provision to him wouldconstitute a violation of his rights under

article 11(

i) of the Charter. [8] Accordingly, there are three issues to be addressed in this appeal: a. What is the appropriate global sentence? b. Would the application of the Act to R.S. violate his s. 11 (

i) Charter rights? c. What credit is to be applied for R.S.’s time in presentence custody? [9] I will address these in turn. What is the appropriate global sentence? [10] The Crown seeks a global sentence of 9 years. The defence submits that a sentence in the range of 5-5.5 years would beappropriate. [11] R.S. is a 39 year old man with a grade 8 education who grew up in a poor environment, apparently raised by his mother andstep father. He developed alcohol problems at an early age. His criminal record shows some 21 entries on his criminal record.

Many ofthese entries relate to theft (e.g. over $1000) and failures to comply. He had one robbery conviction in 1995 with respect to which he wassentenced to 3 years and 4 months, which is the longest sentence he has so far received. The entries also include a number of impaireddriving convictions. There are a number of assault causing bodily harm entries as well, the most recent (May, 2009 and March, 2010) being the ones in which the victim was E. D., the mother of the three boys. He has also been recommitted for violating the terms of hisstatutory release on two occasions (in September 2002 and July 2003).

There are, notably, no prior offences of a sexual nature and noneagainst children. [12]

Section 718 of the Criminal Code sets out the fundamental purpose of sentencing and the objectives which the sentenceshould attempt to achieve. These objectives include denunciation, general and specific deterrence, rehabilitation, and the promotion of asense of responsibility in the offender and acknowledgement of the harm done to victims and the community. Counsel agree that, forcrimes of this nature, general deterrence is the paramount consideration. [13] Mr. Maubach on behalf of R.S. submits that the case law supports a range of 5 to 5.5 years in these circumstances.

TheCrown submits that the range is much higher, relying on the case of R. v. D.D. , (ON CA), [2002] O.J. No. 1061(Ont. C.A.). In that case, Moldaver J.A. stated para. 44: …as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistentbasis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms.

When the abuse involvesfull intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats of physical violence, or other forms ofextortion, upper single digit to low double digit penitentiary terms will generally be appropriate. (supra para. 44). [14] As the defence submitted, however, the factual context of D.D. supra consisted of a pattern of abuse that included numerousvictims over substantial periods of time. Other cases referred to me by the Crown also have elements that are absent here, for example,in R. v. R. S. [2005] O.J.

No. 5181, in which the Court of Appeal imposed a sentence of nine years where the respondent had “…subjected his children to a reign of terror. He not only sexually assaulted one child and repeatedly raped another child, but beat andhumiliated the children and threatened them with a loaded firearm” (para. 1). [15] Having said that, many of the cases referred to me by the defence are cases with very different facts or circumstances, such asguilty pleas: see, e.g. R. v. W.Q. (ON CA), [2006] O.J. No. 2491 (Ont. C.A.), cases involving only one victim: see R.v.

D.M. [2012] ONCA 894, or cases where the assault falls short of sexual intercourse: D.M., supra. [16] Two points may be made about the sentencing range in cases involving the sexual assault of children. First, the range hasincreased in recent years, with D.D. supra, most frequently cited as marking the shift. Second, the range of appropriate sentences forsexual interference or sexual assault of children may vary widely. An isolated incident of sexual touching by a person not in a positionof trust is at a very different point on the spectrum than the sort of abuse described by Moldaver J.A. in D.D., supra.

Determining theappropriate global sentence requires a consideration of all the particular circumstances and aggravating and mitigating factors. [17] There are a number of serious aggravating circumstances in the present case. R.S., as father and step-father, was in a positionof trust. As a parent, he, along with the childrens’ mother, was one of the two people most directly and fundamentally responsible forthe care of these young boys and they were abused in their home where all children deserve to feel most safe and secure.

It is hard toconceive of a more egregious violation of a position of trust. [18] The age of these young boys is another aggravating factor. They ranged between 2.5 to 7 during the period covered by the

indictment. The fact that the three boys were all sexually abused is an additional aggravating factor. Moreover, the “sucking and slapping” incidents took place as group events, with both or all three boys being made to participate. In addition, the counts relating to C.D. of forced anal intercourse constitute particularly aggravating conduct. [ 19 ] Mr.

Maubach urged the court to find that these incidents did not constitute patterns of abuse in the sense referred to by Moldaver J.A. in D.D. , supra but were rather confined to the very stressful period for the family after R.S.’s release from prison in May, 2009 shortly after the death of his daughter, S., from leukemia, during which R.S. was drinking excessively. [ 20 ] While the evidence does not support a finding of a pattern of abuse continuing for any length of time as in D.D. , supra or other similar cases, nor does it support a finding that these were isolated events.

There were a number of incidents as reflected in the counts upon which R.S. has been found guilty. [ 21 ] Another aggravating factor is R.S.’s extensive criminal record, although as I have noted he has no prior convictions for sexual assault or for any offences against children. [ 22 ] No victim impact reports were filed. I do not infer from the absence of such reports that the impact has or will be minimal. The effect on C.D., in particular, was evident from his evidence and particularly the fact that he was unwilling to disclose the assaults which he experienced for a significant period of time.

These boys struck me as bright, appealing and lively children who have been undoubtedly marked forever by these assaults and by the fact that they were committed by one of the two people upon whom they were so dependent for the necessities of their everyday lives. [ 23 ] I do note that it was clear from the evidence that the child protection authorities were involved with this family before any of these allegations arose and for reasons quite apart from them. The boys have, sadly, faced many challenges in their young lives, quite apart from the assaults for which R.S. is being sentenced.

They were already particularly vulnerable given their unfortunate circumstances and it is hard to believe that these assaults have not made already difficult lives much worse, or that their effects will not continue to manifest themselves over the years to come. [ 24 ] As far as mitigating factors are concerned, I have noted the fact that R.S. had a difficult childhood marked by alcohol abuse on the part of his mother and that he was apprehended by child protection authorities for a period of time.

While he was in custody prior to being charged with the present offences, he availed himself of all the AA programming that he could as the certificates filed with the court indicate. While he was in Brampton OCI, he was diagnosed with ADHD. A letter from Ann McManamen, MA, MSW documents his attempts, during his incarceration in relation to the assaults on Ms. D. from May-Dec 2010, to deal with his problems. She wrote that he “took full responsibility for his violent and abusive behaviours, and benefited enormously from the group”.

R.S. also attended AA meetings. [ 25 ] While he was in the Toronto East Detention Centre, R.S. participated in religious and spiritual services. I am satisfied that R.S. has made genuine efforts to address his substance abuse issues. This is a mitigating factor to the extent that alcohol likely played some role in the abuse of these children. [ 26 ] Having said that, R.S. did not plead guilty to these charges. This is, of course, not an aggravating factor, but he is not entitled to the mitigating effect that a guilty plea would have.

He has not accepted responsibility or shown any remorse for his offences in the course of these proceedings. [ 27 ] Taking all of these factors, as well as the totality principle, into consideration, I have concluded that a global sentence of 7 years is appropriate. I will return to the breakdown of sentence by count at the end of these reasons. Would the application of the Act to R.S. violate his s. 11 (

i) Charter rights? [ 28 ] As indicated above, R.S. seeks a declaration that the Act is of no force and effect against him because its application to him in respect of these offences would violate his Charter rights pursuant to

section 11(

i) of the Charter which provides that: S. 11 Any person charged with an offence has the right … if found guilty of the offence and if the punishment for the offence has been varied between the time of commission of the offence and the time of sentencing, to the benefit of the lesser punishment. [ 29 ]

Section 5 of the Truth in Sentencing Act provides as follows: Subsections 719(3) to (3.4) of the Act, as enacted by

section 3, apply only to persons charged after the day on which those subsections come into force. [ 30 ] As I mentioned at the outset of these reasons, R.S. committed these offences before the Act came into force. He was, however, charged after it came into force. [ 31 ] The difference to R.S. is significant in this case. He has spent roughly 30 months in custody on these charges to date. Under the previous provisions he could have obtained credit for 60 months had he been granted credit on a 2:1 basis.

Pursuant to the new provisions of the Act , he could receive a maximum credit of 43.5 months if he were to receive credit for dead time on a 1.5:1 basis. Under the new provisions, he could receive up to 1.5:1 credit, or (most likely) something in between 1:1 and 1.5:1. [ 32 ] Until the Court of Appeal released its decision in R. v. Clark e on January 11, 2012, the practice on the part of both Crown and defence counsel in this court had generally been to read the word “charged” in s. 5 as though it meant “committed”, and to invite

sentencing courts to apply former provisions whenever the offences had been committed before the Act came into force.

However, asLaskin J.A. writing for the Court stated, the wording of the Act is clear and admits of only one meaning: The new provisions apply to the sentencing of all persons charged after the Act came into force, no matter when the offences werecommitted. […] Parliament has to be taken to know the difference between the date an offence takes place and the date a person ischarged with the offence. (paras. 19-20) [33] Laskin J.A. considered the presumption against the retrospective application of provisions that affect substantive rights, butfound that such a presumption will not apply in the face of plain words that “have a clear meaning and do not give rise to any ambiguity”.(Clarke, para. 18) [34] It is clear that both the Crown and the defence had assumed, before the decision in Clarke was released, that the previouslegislative regime would apply in which 2:1 credit for presentence custody was generally routinely granted.

As a result of the decisionin Clarke, the defence sought an adjournment of this sentencing (with the consent of the Crown) to permit it time to prepare a Charterchallenge to s. 5 of the Act on the basis of s. 11(

i) of the Charter of Rights and Freedoms. [35] R.S. submits that, by precluding him from receiving credit of more than 1.5 days per day spent in presentence custody, s. 5 ofthe Act infringes his s. 11(

i) rights. Accordingly, he seeks a declaration that it is of no force and effect as against him in relation to theseoffences. [36] Mr. Hogan on behalf of the Crown submits that s. 5 does not infringe R.S.’s s. 11(

i) rights. First, he argues that presentencecustody is not “punishment” within the meaning of s. 11(i). Second, he argues that a person such as R.S. never had a “right” to enhancedcredit for pre-trial custody. Rather, this was a privilege. Thus, s. 5 has not “varied” the “punishment” to which R.S. would have beensubject at the time the offences were committed. [37] For the reasons that follow, I conclude that R.S.’s application for a declaration must be allowed. Dead time, when consideredafter conviction, is “punishment”.

The Act reduces the credit which may be given for dead time, and thus increases the total time whichwill be served by most people, given the fact that the usual practice was to grant 2:1 credit, a practice which would apply in R.S.’s case. Is presentence custody “punishment” within the meaning of s. 11(

i) of the Charter? [38] The central issue in relation to the Charter is whether presentence custody is “punishment” within the meaning of s. 11(i). The Crown argues that presentence custody is not “punishment” but is rather imposed for the protection of the public before there is afinding of guilt, citing R. v. Wust 2000 SCC 18 , [2000] 1 S.C.R. 455. It also submits that not all aspects of a sentencingdisposition constitute “punishment” and that dead time is not part of the sentence or punishment, citing R. v. Rodgers. I do not agree. [39] At the outset, the Supreme Court of Canada has repeatedly acknowledged that the Charter must be given a “large and liberal”,“broad” or “generous”

interpretation. This principle applies in interpreting the criminal justice rights set out in ss. 8-14 of the Charter,like all other Charter provisions. In R. v. Turpin, (SCC), [1989] 1 S.C.R. 1296, in interpreting s. 11(f), the Court spokeof its intention “to interpret Charter rights in a broad and generous manner designed to ensure that those protected receive the full benefitof the protection”: p. 1297. In R. v.

Dyment, (SCC), [1988] 2 S.C.R. 417, the Court stated that s. 8, “ like other Charterrights, must be interpreted in a broad and liberal manner…”. [40] In Wust, supra, Arbour J. considered the nature of presentence custody and whether it formed part of “punishment”. Theissue in that case was whether a minimum sentence precluded taking account of dead time when to do so would mean that the timeserved following the imposition of sentence would amount to less than the minimum sentence. In Wust, the applicable minimumsentence was 4 years. By the time Mr. Wust was sentenced, he had been in custody for 7.5 months.

He was sentenced to 4.5 years andgiven credit of 1 year for his time served, meaning that the remaining time was 3.5 years, less than the 4.0 year minimum. Writing for aunanimous Court, Arbour J. held that the proper

interpretation of the minimum sentence provision, read with s. 719(3) meant “…that anoffender will receive a minimum sentence that will commence when it is imposed, and calculated with credit given for time served”(para. 37). [41] Arbour J. went on to discuss the characterization of presentence custody and the question of whether it amounts topunishment.

She referred to the Crown’s submission in that case (as in this case) which asked the court to consider “the apparent fallacyof recognizing pre-sentence custody as punishment, since it is commonly recognized that Canadian law does not punish innocentcitizens” (para. 39).

She concluded as follows at para. 41: To maintain that pre-sentencing custody can never be deemed punishment following conviction because the legal system does not punishinnocent people is an exercise in semantics that does not acknowledge the reality of pre- sentencing custody so carefully delineated byLaskin J.A., in Rezaie, supra, and by Gary Trotter in his text, The Law of Bail in Canada (1992), at p. 28: Remand prisoners, as they are sometimes called, often spend their time awaiting trial in detention centres or local jails that are ill-suitedto lengthy stays.

As the Ouimet Report stressed, such institutions may restrict liberty more than many institutions which house theconvicted. Due to overcrowding, inmate turnover and the problems of effectively implementing programs and recreation activities,serving time in such institutions can be quite onerous. Therefore, while pre-trial detention is not intended as punishment when it is imposed, it is, in effect, deemed part of the punishmentfollowing the offender's conviction, by the operation of s. 719(3).

The effect of deeming such detention punishment is not unlike thedetermination, discussed earlier in these reasons, that time spent lawfully at large while on parole is considered nonetheless acontinuation of the offender's sentence of incarceration. [emphasis added] [42] In R. v. Lambert, [1994] N.J. No. 328 (Nfld. C.A.) the Court of Appeal of Newfoundland directly considered the meaning of“punishment” in s. 11(i). The trial judge, pursuant to a discretion authorized by s. 741.2 of the Criminal Code, had ordered that Mr.

Lambert serve one half of his sentence before he could be considered for parole. This provision had come into force after the allegedoffences had been committed and after he had been charged. The Crown argued that a change in parole eligibility is not a change in thepunishment because being released on parole does not reduce the sentence in that the person is still serving the sentence. [43] The Court of Appeal held that the order made by the trial judge did violate s. 11(i).

It rejected the argument, also made bythe Crown before this Court, that “punishment” means only the formal sentence imposed and does not include the less directconsequences that may follow as they do not form part of the sentence itself.

While recognizing that not aspects of the primary penaltiesof imprisonment or fine might not constitute “punishment”, it held that …the order under s. 741.2 has the potential or implicit consequent of prolonging the period of incarceration and is, therefore, in a veryreal sense so closely coupled or linked to the primary penalty as to be a component of the punishment itself. (para. 20) [44] The Court also noted that s. 11(

i) used the term “punishment” and not “sentence”, a choice of words which it considered to besignificant: The Charter was not written in a diction intended exclusively for the eyes of the legal profession and the judiciary and I suspect the work“punishment” was adopted as it is less formal, broadly understood and capable of a generous and far-reaching

interpretation. [45] Although the Mr. Hogan on behalf of the Crown acknowledges that according to Lambert, presentence custody is part of the“punishment” in that it can affect the amount of time spent incarcerated, it also submits that Lambert has been superceded by subsequentjudicial authority. In particular, it cites R. v. Mathieu 2008 SCC 21 , [2008] 1 S.C.R. 723 and R. v. Rodgers 2006 SCC 15, [2006] 1 S.C.R. 554. In my view, neither case supports the Crown’s position. [46] In Mathieu, supra, the accused had all been detained for significant periods of time before the imposition of sentence.

For thatreason, the trial judges imposed custodial sentences of less than two years and probation for three years. But for the pre-sentencecustody, the judges would all have imposed penitentiary terms. The issue was whether the “sentence” in these circumstances didconstitute sentences of less than two years, that is whether the pre-sentence custody formed part of the sentence imposed.

The SupremeCourt held that the time served prior to sentence was not part of the sentence imposed, but was rather only one factor taken into accountin determining the sentence. [47] Mathieu, supra, does not, however, address the central concern raised in Lambert, supra, and in this case, which is whethertime served as part of presentence custody is part of the punishment as at the time the sentence is imposed. Nothing in the decisionsuggests that it is not. The fact that presentence custody is not part of the sentence imposed begs the question as to whether it ispunishment.

The decision in Mathieu, supra, in my view, implicitly assists R.S. because the issue arose in the first place out of the trialjudges’ concern to recognize the punitive essence of presentence custody. Moreover, as the Supreme Court recognized, it is a factor tobe taken into account. If presentence custody did not amount to “punishment”, there would have been no obvious reason for taking itinto account at all at the time of sentence. [48] Rodgers, supra, similarly, does not assist the Crown. There, the Court held that an ancillary DNA order made at sentencingis not “punishment” within the meaning of s. 11(i).

Charron J., writing for the majority, considered the meaning of sentence: In its ordinary sense, “punishment” refers to the arsenal of sanctions to which an accused may be liable upon conviction for a particularoffence. The Criminal Code uses the words “punishment” or “punishable” to describe the range of sanctions available on sentencing. For example, an offence will be described as “punishable” on

summary conviction and the offender will be “liable to a fine . . . or [a termof] imprisonment”: s. 787(1).

Section 718.3(1) provides that “[w]here an enactment prescribes different degrees or kinds of punishmentin respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of thecourt that convicts a person who commits the offence”. The words “sentence” and “sanction” are also used interchangeably: see forexample s. 718.2. (para. 62) [49] Charron J. went on (at para. 63) to find that not every consequence of conviction will amount to “punishment”. This does not mean, however, that “punishment” under ss. 11(

h) and 11(

i) necessarily encompasses every potential consequence of beingconvicted of a criminal offence, whether that consequence occurs at the time of sentencing or not. A number of orders can be made by asentencing court, for example an order for forfeiture, a firearm prohibition, a driving prohibition, or an order for restitution. It is beyondthe purview of this appeal to determine whether or not any of these consequences constitutes a punishment.

As a general rule, it seems tome that the consequence will constitute a punishment when it forms part of the arsenal of sanctions to which an accused may be liable inrespect of a particular offence and the sanction is one imposed in furtherance of the purpose and principles of sentencing. In this respect,the protection afforded by s. 11 must be contrasted with s. 12 of the Charter that protects against cruel and unusual “treatment” orpunishment.

For example, DNA sampling, ordered as a consequence of conviction, would undoubtedly constitute a “treatment” and, ifthe physical method for obtaining a DNA sample were cruel and unusual, redress could be obtained under s. 12. [50] The Supreme Court in Rodgers, supra, then, held that not all ancillary orders constitute “punishment” within the meaning of s.11(i). There is, in my view, nothing in the decision that suggests that presentence custody is not “punishment”. [51] Quite the contrary is true.

Presentence custody, or “dead time”, as at the time it is considered in relation to the globalsentence imposed, is clearly recognized as part of the punishment: Wust; supra, see also Lambert, supra.

If it were not, there would beno reason to give credit for it as against the global sentence imposed. [52] While, as the Supreme Court noted in Rodgers, supra, there may be room for debate about whether certain consequences suchas an order for restitution or a driving prohibition constitutes “punishment”, there can be no debate that incarceration is a consequencethat “forms part of the arsenal of sanctions to which an accused may be liable…”. (para. 63).

There is nothing in Rodgers, or indeed inany of the other cases that were drawn to my attention, that supports the argument that presentence custody, as at the time of sentencing,

is not considered as part of the punishment. [53] Incarceration is, by its nature, and particularly in a liberal and democratic society which places such high value on liberty andthe related values which find expression in the Charter, quintessentially punitive in nature. [54] In

summary, as the Court in Lambert, supra, recognized, while “sentence” and “punishment” overlap, they are notcoterminous. The notion of sentence may be narrower than the notion of punishment (as in Mathieu, supra) or it may be broader (as inRodgers, supra). The fact remains, however, that the amount of credit granted for time served will affect, in a very concrete way, theamount of time a person actually spends in prison. It follows, then, that the amount of credit granted for time served has a direct impacton the actual punishment accorded to a particular offender for a particular offence or offences.

Was the punishment varied? [55] The Crown also submits that, even if presentence custody does constitute “punishment”, it cannot be said to have been“varied” by s. 5 of the Truth in Sentencing Act because credit for time served, even under the precedent s. 719(3), was discretionary. Inother words, the Crown argues, it was a privilege rather than a right. [56] I disagree. While it is true that the decision as to the precise amount of credit to be given under the previous provision wasdiscretionary (see: R. v.

Francis, (2006) (ON CA), 79 O.R. (3d) 551), s. 5 of the Truth in Sentencing Act removedany chance of credit at a rate of 2:1.

Section 719 of the Criminal Code provides that the sentencing court “shall limit any credit [for timein pre-sentence custody] to a maximum of one day for each day spent in custody”.

Section 719(3.1) provides that this may be increasedup to 1:5 days credit for each day in custody “if the circumstances justify it”. [57] This point is exacerbated by the fact that, prior to the coming into force of the Truth in Sentencing Act, the “usual practice”was to grant credit for dead time on a 2:1 basis, a practice which would have applied to R.S.. [58] As Laskin J.A. observed in Clarke, “…courts typically gave offenders 2 for 1 and occasionally even 3 for 1 credit for timespent in pre-sentence custody. While there are cases in which less or more was given, these were few and far between.

Indeed, it was the“norm” of 2:1 that gave rise to the Truth in Sentencing Act to begin with, with a view to reducing the credit to be given and eliminatingthe court’s discretion to give 2:1 credit: see Clarke, para. 22; see also R. v. Summers 2013 ONCA 147 at para. 63. [59] It is evident that in place of the “usual practice” of granting 2:1 credit, the new provisions require consideration of particularcircumstances in each case if more than 1:1 credit is to be granted. Section 719(3.1) provides for a maximum of 1.5:1 “if thecircumstances justify it”:[2] see R. v. Summers 2013 ONCA at para. 63.

Under the new provisions, there can be no “usual practice” ofgranting enhanced credit over 1:1 to the maximum of 1.5:1. Rather, as Cronk J. concluded, writing for the Court, at para. 117: There must be some basis in the evidence or the information before the sentencing judge to support the conclusion that this factor meritsenhanced credit for a particular offence in a given case. This is important because it underlines the fact that the new provisions have occasioned very different practices at sentencinghearings.

Under the previous provisions, the norm was 2:1 credit and it was rare that the Crown would seek less. Counsel did notprovide information or evidence to justify 2.1:.1. It was only in the exceptional case, for example, if greater credit was sought on thebasis of overcrowding, that such documentation would be presented to the Court on sentencing. [60] I do not accept the Crown’s submission that this is a case in which R.S. would not have received 2:1 credit under the previouslegislation.

It points to his lengthy criminal record and to the fact that it is clear that he has not obtained early release on a number ofoccasions in the past and has been recommitted after violating the terms of statutory release on a few occasions. It also points to oneincident of misconduct which was entered by the detention centre. [61] I do not accept the submission that this is a basis for concluding that he would not have been granted credit on a 2:1 basisunder the precedent provisions. First, if one considers cases such as Francis, the primary considerations related to the protection of thepublic. Mr.

Francis had a record of serious and escalating violence and the court clearly considered him to be a risk to the public in asense which is not evident in R.S.’s case. Second, Mr. Francis’ was being sentenced for violent offences very similar to ones for whichhe had been convicted in the past, while, as I noted, R.S. has no previous record for similar offences. I do not accept that R.S. is anoffender who would not have been granted 2:1 credit under the previous regime as part of the “usual practice”.

In any event, as Ms.Rivers submitted on behalf of R.S., the Act removed any chance he had of credit at this rate, leaving him with a maximum of 1:5 and thereal possibility of less than that. [62] Finally, and as I have discussed above, the Crown submissions that R.S. would not have received 2:1 presuppose the newapproach to credit for dead time that has displaced the prior “usual practice” which was routinely applied. [63] In short, the effect of the retroactive application of s. 5 of the Act would be to vary by increasing the punishment to which R.S.is subject in virtue of the fact that he would receive a maximum of 1:5:1 credit (and very possibly less) when, under the prior regime, theusual practice was to routinely if not automatically grant 2:1, and I am satisfied that this is a case, like Francis, in which that usualpractice would have applied. [64] For these reasons, I conclude that the declaration sought should be granted.

Sections 719 (3) and (3.1) of the Act, applied toR.S. in relation to these offences, violate his Charter rights pursuant to

section 11(

i) and are therefore of no force and effect to this extent.He is therefore entitled to the lesser punishment, which in this case means the application of the precedent provisions. How much credit should be accorded to R.S. for time spent in PSC?

[65] The final question is how much credit for pre-sentence custody should be applied to the time which R.S. has spent incustody. On behalf of the Crown, Mr. Hogan submitted that, should this Court apply the previous regime, this is a case in whichsomething less than 2:1 credit should be granted.

As I have already indicated, I do not agree. [66] In Francis, the Court of Appeal upheld the exercise of the sentencing judge’s discretion in granting less than 2:1 credit,granting him 1:33 days credit per each day served. [67] Writing for the Court, Weiler J. referred to the usual practice of giving adults 2:1 credit, citing, inter alia, R. v. Downes, (ON CA), 79 O.R. (3d) 321 (Ont. C.A.) in which the Court of Appeal held that stringent bail conditions should betaken into account as a relevant mitigating circumstance.

In Downes, supra, Rosenberg J.A. stated at para. 25: Thus, as a rule, trial courts will give 2:1 credit for pre-sentence custody and occasionally enhanced credit where the circumstances underwhich the offender has spent his time in jail have been particularly onerous.

And in some cases, trial courts will give less than 2:1 creditbecause of the circumstances of the custody or the reasons for the detention. [68] The Court articulated the rationale for giving enhanced credit for pre-sentence custody as follows: (1) …other than for life sentences, legislative provisions for parole eligibility and statutory release do not take into account of time spentin pre-sentence custody; (2) …there are few rehabilitative, educational or retraining programs available in detention centres; and (3) …the conditions in detention facilities are often more crowded and more onerous than in correctional facilities. [69] In my view, Francis does not assist the Crown.

At the outset, I note that the Court of Appeal, in upholding the sentencingjudge’s decision, emphasized the fact that this was a discretionary decision and that it could find no basis for interfering with it. [70] Second, Francis, along with many other authorities including those cited in that decision, underline the realty that it was ageneral or usual practice to grant 2:1 credit per day of time served in pre-sentence custody. [71] Third, the facts of Francis were extreme and are not applicable to the situation of R.S.. Mr.

Francis was convicted ofmanslaughter and robbery which took place at the Just Desserts Café in Toronto. In the course of the robbery, one of the patrons,Georgina Leimonis was murdered and other patrons were robbed. In declining to give 2:1 credit to Mr. Francis, the sentencingconsidered his active role in the planning and execution of the robbery, the fact that he had escalated the level of violence when he“viciously and brutally” attacked one of the patrons, and that the violence was gratuitous. The sentencing judge also considered the factthat Mr.

Francis had a significant criminal record that included violence (including assaults of police officers) and that the level ofviolence had escalated over time. As Weiler J. noted, the sentencing judge’s reasons made it “patently obvious that he saw the appellantas posing a serious danger to society and that he would not likely receive parole” (para. 25). [72] As Mr. Maubach pointed out on R.S.’s behalf, while R.S. has a lengthy criminal record, he does not have a previous record ofsexual offences or of offences against children.

There is some evidence that he has struggled with substance abuse and that he has madeattempts to address this while in custody. [73] As I have mentioned earlier, Mr. Hogan suggested that R.S., would be unlikely to obtain parole and should therefore not begranted 2:1 credit. I do not consider this to be a reason, in itself, to refuse 2:1 credit. One of the other rationales for enhanced credit arisesfrom the often more onerous conditions in detention facilities.

While there was no particular evidence with respect to, for example,crowding in R.S.’s case, he has been in protective custody since being charged with the offences with respect to which he is beingsentenced.

That has further restricted his opportunities for even those limited recreational or rehabilitative programs that have beenavailable for other inmates, which is another consideration mentioned by Weiler J. in Francis underlying, prior the usual practice of 2:1credit. [74] On balance, I am not satisfied that this is a case in which a court would have departed from the “usual practice” of granting2:1 credit before the Truth in Sentencing Act came into force. I am not even satisfied that, prior to the Act, the Crown would even havesought less than 2:1 credit.

Courts are approaching the assessment of enhanced credit for pre-sentence custody differently and withgreater consideration of particular circumstances of each case than was the case under the previous provisions in which the generalpractice was to accord 2:1. Such detail was not generally provided under the precedent legislation and was not a precondition toapplication of the “usual practice” of 2:1.

It is not appropriate, in my view, to approach the application of the prior regime which I mustapply with the approaches and practices that are emerging and required under the new regime. [75] In short, I find that this is one of those cases that, but for the Act, would have fallen within the general practice with respect towhich 2:1 credit would have been granted. Accordingly, 2.1 credit is to be granted. Conclusion [76] For the foregoing reasons, I impose the following sentence. R.S., will you please stand.

I sentence you to a global sentence of7 years, broken down as follows by count: Count 11: sexual assault (C.D.): 7 years Count 14: sexual assault (C.D.): 7 years, to be served concurrently with count 11 Count 4: sexual interference (D.S.): 4.5 years, to be served concurrently with counts 14 and 11 Count 9: sexual interference (D.D.): 4.5, to be served concurrently with counts 14, 11 and 4. [77] As I have discussed, and which is set out more fully in the written reasons which I have filed today with the Court and

provided to counsel, a declaration is granted that s. 5 of the Truth in Sentencing Act is of no force and effect as its application would violate your Charter right not to receive a greater punishment that that which was in place at the time you committed the offences. As I have also just reviewed, I conclude that you are entitled to the benefit of the “usual practice” that was in place under the previous provisions relating to credit for time spent in pre-sentence custody and therefore grant credit for time served on a 2:1 basis.

Accordingly, you have served to day 30 months since you were charged on December 15, 2010, which means that a credit will be applied in the amount of 60 months to the global sentence I have just set out, so that you will have 24 months or 2 years left remaining in your sentence to serve. ___________________________ Harvison Young J. Released: June 12, 2013 CITATION : R v RS, 2013 ONSC 4088 COURT FILE NO.: 0477/11 DATE: 20130612 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Her Majesty the Queen - and - R.S. REASONS FOR JUDGMENT Harvison Young J. Released: June 12, 2013

[1] Although the original charges did not include the sexual assault charges in relation to C.D., which allegations had not been made at that time.