R v Rusk

R. v. Rusk

2021 ONCJ 343
Ontario Court of Justice — Justice D.A. Harris | May 28, 2021

Background

Brandon Charles Rusk was 28 when he encountered 13-year-old SD and her sister in a garage in Orangeville on August 19, 2018. Rusk, who lived nearby and was heavily intoxicated, didn't know either girl but began talking to them. Over the course of a few hours, he committed multiple sexual offences: he hugged SD and grabbed her buttocks while commenting about getting an erection, exposed his penis and asked her to perform oral sex, "humped" her from behind grinding his pelvis against her, touched her buttocks again, and invited both girls to get "on top of him" while bragging about his anatomy.

Following trial, Rusk was convicted of sexual interference (when SD was under 14), sexual assault (two counts when she was under 16), exposing genitals for a sexual purpose, and invitation to sexual touching (two counts). The Crown sought 12-15 months imprisonment plus probation. Rusk, representing himself, requested either a conditional sentence or intermittent imprisonment.

Issues

1. Whether a conditional sentence was appropriate given the excluded nature of sexual assault and mandatory minimums
2. What sentence would properly reflect denunciation and deterrence for multiple sexual offences against a child
3. How COVID-19 conditions in jail should factor into sentencing

The Conditional Sentence Analysis

Justice Harris methodically dismantled any possibility of a conditional sentence. Sexual assault is specifically excluded from conditional sentences when the Crown proceeds by indictment under s. 742.1. Multiple offences carried mandatory minimum sentences of 90 days to one year. Most critically, the judge found Rusk would endanger community safety — alcohol was central to his offending, he had ongoing substance abuse issues, and he showed "severely wanting" attitudes about consent that hadn't improved since the offences.

The court emphasized the Supreme Court's direction in R. v. Friesen that sentences for sexual offences against children must increase, noting Parliament's clear signal that such crimes deserve harsher punishment than similar offences against adults (14-year maximum vs. 10-year maximum sentences).

COVID-19 and Sentencing

While acknowledging that COVID-19 made custody harsher due to infection risks and lockdown conditions, Justice Harris found this couldn't override the fundamental sentencing principles. The judge noted that fitness of sentence looks beyond just length to include conditions of confinement, and that pandemic conditions might justify departure from usual ranges in appropriate cases — but not here, given the gravity of multiple sexual offences against a 13-year-old.

The Final Sentence

Justice Harris imposed one year imprisonment followed by three years probation. While the judge would normally have ordered consecutive sentences for the distinct events, totality principles and mandatory minimums led to concurrent terms. The sentence included DNA orders, lifetime sex offender registration, a five-year s. 161 order prohibiting positions of authority over females under 16, and weapons prohibition.

Key Takeaway

Multiple sexual offences against children will result in immediate custody, regardless of the offender's personal circumstances or pandemic conditions.

This case demonstrates how courts prioritize denunciation and deterrence for child sexual abuse cases, and shows that even extraordinary circumstances like COVID-19 won't save an offender from jail time when the crimes are this serious.