) ) HER MAJESTY THE QUEEN – v. –, 2013 ONSC 4820

CITATION : R v AB, 2013 ONSC 4820 COURT FILE NO.: 267/11 DATE: 2013-09-26 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – and – A.B. ) ) ) ) ) ) ) ) Richard Huneault, for the Crown John R. Saftic, for the Accused ) ) HEARD: July 16, 2013 ORALLY RELEASED : September 20, 2013 REASONS FOR SENTENCE Del Frate j.: Background [ 1 ] The accused has pled guilty to one count of aggravated sexual assault contrary to section 273(1) of the Criminal Code of Canada .

This incident took place in March of 2011 while his daughter S. was in his care. [ 2 ] On March 23, 2011 a special-needs worker, Dennis Trudeau, noticed some abnormalities in the area of S.'s vagina during a diaper change. S. was approximately two years old and was inflicted with cerebral palsy. [ 3 ] Because of the severity of the abnormality, S. was examined by a nurse who in turn referred S. to a pediatrician, Dr. Chantal Corbeil. Her examination concluded that S. “had suffered multiple injuries to the vagina as a result of blunt force/penetrating trauma." The injuries included:

i) a 3 cm laceration from the base of the hymen to the anal folds; ii) a complete transection of the hymen; iii) a bruise to the posterior lateral aspect of the hymen; iv) a laceration on the superior aspect of the hymen with multiple abrasions and numerous other abrasions in the fossa navicularis; and

v) a further abrasion in the hymenal sulcus which was actively bleeding throughout the examination. [ 4 ] According to the experts, these injuries were severe and extremely painful for S.. The nature of the injuries was such that they would have been the result of repeated blunt force being applied to the vagina. S. remained in the hospital until March 28, 2011.

Treatment consisted of medication and her injuries were otherwise left to heal on their own. [ 5 ] Further investigation revealed that the accused was responsible for these injuries and that the injuries were inflicted by way of an item being roughly inserted into the victim's vagina. The Crown could not establish definitively the item which was inserted in the vagina since the victim is unable to communicate. [ 6 ] The accused was arrested on March 25, 2011 and has remained in custody since his arrest.

Position of the parties [ 7 ] The defence is seeking a term of imprisonment of five and a half years less time served, with an enhanced credit using the 1.5 factor. The accused has been incarcerated since March 25, 2011. With the enhanced factor, a total of 45 months would be accounted for, meaning that the accused should receive an additional 21 months less a day. [ 8 ] This sentence is justified, according to the defence, when one reviews similar situations where courts have imposed sentences ranging from four to eight years.

In this case, the brutality is not as severe as in the cases cited. [ 9 ] The defence also submits that the accused is 25 years of age, has had a horrendous upbringing, is a victim himself of a sexual assault by an uncle when he was five and does not have a serious criminal record as an adult. In fact, his last offence was in 2009 when he was convicted of assaulting a peace officer and then in 2012 when he was convicted of possessing marijuana and was fined. [ 10 ] The accused is of aboriginal descent but he did not live on the reserve nor did he participate in the aboriginal traditions.

Since being incarcerated, he seems to have adopted some of the aboriginal customs and he wishes to continue to cultivate his aboriginal ancestry. [ 11 ] The Crown on the other hand has agreed to cap the sentence at seven years minus pretrial custody, on a 1:1 basis, subject to the court's discretion for enhanced credit. This would mean that the accused would be sentenced to 84 months less time served being 28 months for an additional 56 months approximately and I will ask counsel’s submissions on exact amounts. [ 12 ] In my view, the seven years suggested by the Crown is appropriate.

Although the accused is relatively young, does not have a lengthy criminal record as an adult, has pled guilty, has had a difficult upbringing and is of aboriginal descent, and has expressed remorse at this hearing, the actions and the injuries inflicted on his daughter are horrendous. [ 13 ] The accused has violated the trust of an infant who was severely challenged. This child had no one to protect her. This child was violated by her protector. Society will not tolerate such conduct from anyone.

A strong message must be sent that if people in positions of trust violate their sacrosanct duty to protect the children, serious consequences will result. In my view, the principles of deterrence and denunciation are the primary considerations in this sentencing hearing. [ 14 ] I will now address the principle of enhanced credit, taking into account the recent decisions of R. v. Byfield , 2013 ONCA 420 , [2013] O.J. No. 2853, and R. v. Summers , 2013 ONCA 147 , [2013] O.J.

No. 1068, [ Summers ]. [ 15 ] In both of these decisions, the Ontario Court of Appeal explains why consideration of enhanced credit for pretrial custody is warranted in particular circumstances.

In Summers , the court ruled that pretrial custody, “…merits potential credit on sentencing due to the frequently onerous conditions of remand detention, the lack of programming available to offenders during such detention, and the unavailability of remission and parole eligibility for time spent on remand” ( Summers , at para. 1 ) . [ 16 ] The factors that may be considered in granting enhanced credit are stipulated at para. 123 of the Summers decision as follows: 123 Thus, the provision of information relevant to a claim for enhanced credit need not be an onerous task.

While formal evidence of an accused's likely prospects for remission or parole eligibility may be lead at a sentencing hearing, information bearing on these issues ( e.g. information regarding an accused's conduct during detention; an accused's co-operation with authorities and adherence to prison rules; or an accused's efforts to advance to trial) may also be furnished to a sentencing judge through counsels' sentencing submissions, by agreement between the prosecutor and the defence, or otherwise as contemplated under ss. 720-727 of the Code. [ 17 ] Evidence was led to indicate that during his stay, A.B. was not a model inmate.

He was involved in a number of fights with his fellow prisoners, and was disciplined for those as well as for misconduct. Mr. Saftic submits that a total of 60 days for these violations should be treated on a 1:1 basis. [ 18 ] A.B. has been in protective custody and segregated from other inmates since the beginning of his detention in view of the nature of the charges.

He has been denied programs, has been threatened and assaulted on several occasions, and has been prevented from participating in the healing sessions for aboriginal peoples. [ 19 ] The Crown fairly submits that enhanced credit must be considered but the factors to be taken into account are somewhat speculative. [ 20 ] I agree that it is difficult to determine exactly what credit should be given especially where the record indicates that the accused is not a model prisoner. In this case, I find that A.B. was in a harsh environment which prevented him from accessing programs that were available to other prisoners.

I also take into consideration the violent atmosphere during incarceration whereby A.B. faced constant threats from other inmates. Under the circumstances, I am prepared to consider the enhanced credit of 1.5 for every day served. However, the 60 days for bad behavior are to be calculated on a 1:1 basis. I asked counsel for their assistance in making these calculations. [ 21 ] I am also ordering that A.B. provide a DNA sample as soon as is practicable. An order is to issue pursuant to

section 109 of the Criminal Code for a weapons prohibition of ten years. Lastly, a lifetime order under SOIRA.

Mr. Justice Robert G.S. Del Frate Orally Released: September 20, 2013 Released: September 26, 2013 CITATION: R v AB, 2013 ONSC 4820 COURT FILE NO.: 267/11 DATE: 2013-09-26 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – A.B. REASONS FOR JUDGMENT Del Frate J. Orally Released: September 20, 2013 Released: September 26, 2013