R v Leblanc, 2021 ABQB 230

Court of Queen’s Bench of Alberta Citation: R v Leblanc, 2021 ABQB 230 Date: 20210325 Docket: 200327377Q2 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Leonard David Leblanc Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the victim must not be published, broadcast, or transmitted in any way. NOTE: This judgment is intended to comply with the identification ban. _______________________________________________________ Reasons for Sentence of the Honourable Mr. Justice M. J. Lema _______________________________________________________

A. Introduction [ 1 ] This is a sentencing judgment. For reasons outlined in 2021 ABQB 60 , I convicted Mr. Leblanc of sexual assault causing bodily harm to, unlawful confinement of, and uttering threats to, the victim in March 2020 in Ft.

McMurray, Alberta. [ 2 ] The Crown seeks a sentence of between six and eight years; defence, between three and four years. [ 3 ] The difference is largely explained by differing understandings of the general sentencing range for sexual assault causing bodily harm and of the significance (or otherwise) of the penetration here being non-penile. [ 4 ] For the reasons outlined below, I find that the range of sentences for a sexual assault causing bodily harm of general nature and extent seen here is between four and seven years. [ 5 ] I also find that, as instructed by R v Friesen , 2020 SCC 9 , there is “no type of hierarchy of physical acts for the purposes of determining the degree of physical interference.” In this case, the fact that penetration was non-penile – instead, the convicted person’s complete hand, into the victim’s vagina and anus, causing injuries to her – is immaterial.

These were highly invasive, extremely painful, and injury-causing acts not somehow less serious than penile penetration. [ 6 ] The appropriate sentence for that assault, the unlawful confinement, and uttering threats is six years . B. Principles of sentencing [ 7 ] I adopt the recent synopsis by Labrenz J. in R v Runions , 2021 ABQB 67 : Many of the common law principles of sentence have now been statutorily prescribed. The guiding principles of sentencing are set out in ss. 718 to 718. 2 of the Criminal Code .

Section 718 states: 718 The fundamental purpose of sentencing is to protect society and 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 and the harm to victims or to the community that is caused by 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 the harm done to victims or to the community. The fundamental principle of sentencing is found in s.718.1 [i.e. A sentence must be proportionate to] … the gravity of the offence and the degree of responsibility of the offender.[”]

Section 718.2 of the Criminal Code provides in part as follows: (

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, (iii.1) evidence that the offence has a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation; shall be deemed to be [an] aggravating [circumstance] ; (

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

c) where consecutive sentence are imposed, the combined sentence 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 and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [paras 590-592] [emphasis added] C. Non-application of R v Arcand (major sexual assault) starting point

[ 8 ] The defence argued that the starting point here comes from R v Arcand , 2010 ABCA 363 i.e. three years for a major sexual assault, with aggravating factors (discussed further below) possibly warranting a sentence up to four years. [ 9 ] I disagree. In Arcand , the Court of Appeal recognized the materially different offences of sexual assault causing bodily harm and aggravated sexual assault: … Parliament understood that a sexual assault might include additional harm which transcended that inherent in serious sexual assaults under s. 271.

Hence, s. 272 (sexual assault causing bodily harm) and s. 273 (aggravated sexual assault) of the Code were enacted to cover that additional harm . Therefore, Parliament’s decision to provide for these two other stepped-up categories of sexual assault does not negate the fact that the harm caused by major sexual assaults under s. 271 includes the likelihood of serious psychological or emotional harm . [para 169] [emphasis added] [footnotes omitted] [ 10 ] In other words, the three-year starting point for major sexual assault was expressly set for sexual assaults absent bodily harm.

The Court of Appeal did not purport to establish any starting point or other benchmark for the “stepped-up category” of sexual assault causing bodily harm . D. Sentencing case law (sexual assault causing bodily harm) [ 11 ] In R v Poucette , 2004 ABCA 9 , the Court of Appeal reviewed a ten-year sentence for sexual assault causing bodily harm, reducing it to five years : The victim was walking home to her uncle’s house after a night of drinking with several people including the appellant.

The appellant followed her home, persuaded her to leave the main road and take a secondary route and then struck her on the head. The sexual assault commenced while the victim was unconscious. When the victim regained consciousness and tried to fight the appellant off, he bit her to overcome the resistance. The victim suffered vaginal bleeding, bruising and psychological harm as a result of the attack . The appeal is allowed. Having regard to the violent nature of the assault, that physical harm was caused, although apparently not permanent, we view an appropriate sentence to be five years imprisonment.

Credit for pre-trial custody will be given. The appellant will receive 18 months credit for serving approximately nine months pre-trial, resulting in a net sentence of three and one-half years. [paras 2 and 14] [emphasis added] [ 12 ] In R v Mahon , 2016 ABCA 230 , the Court of Appeal imposed a five-year sentence for the same offence: The appellant was convicted of sexual assault causing bodily harm and choking to overcome resistance . The sentencing judge helpfully set out the following factual underpinnings. The appellant was 31 years of age and the complainant 17 years old.

She was hoping to obtain alcohol and drugs from the appellant who repeatedly expressed sexual interest in her; she rebuffed him. The complainant entered a women’s washroom in a deserted downtown office tower. The appellant followed her, cornered her, choked her into unconsciousness and had sexual intercourse with her . When a security guard came by, the appellant fled. The appellant had a criminal record with 30 prior convictions, 6 involving violence or weapons and one for sexual assault when he was a youth. Most of the later convictions were for violating conditions of bail.

The Crown acknowledges that the bodily harm to the complainant (abrasions and bruises) was “less serious than in the authorities presented to the Court .” (respondent’s factum para. 21) We allow the appeal and substitute a sentence of 3 years imprisonment on the charge of choking with intent (count 2), to be served consecutively to the sentence of 5 years imprisonment on the conviction for sexual assault causing bodily harm (count 1), resulting in a global sentence of 8 years imprisonment. [paras 1, 10 and 15] [emphasis added] [ 13 ] In R v Cosman , 2016 ABQB 170 (affirmed 2018 ABCA 388 ) (dangerous-offender application), Crighton J. (as she then was) referenced a 2002 conviction for sexual assault causing bodily harm: … Mr.

Cosman offered the victim a ride home in his truck. CM accepted. He asked the victim for a kiss which she refused. He then drove to a deserted road where he forced CM to perform fellatio, followed by penile vaginal intercourse. … … The trial judge also found that Mr. Cosman caused four genital lacerations to CM and caused her considerable psychological distress. Mr.

Cosman was sentenced to 5 years for sexual assault causing bodily harm. [paras 25, 27, and 28] [ 14 ] In R v Nelson , 2014 ONCA 853 , the Ontario Court of Appeal upheld a five-year sentence for sexual assault causing bodily harm, in these circumstances: … The complainant alleged that the appellant had non-consensual vaginal intercourse with her, cutting off her body suit to facilitate the act, which resulted in her finger being cut . According to the complainant, the sexual assault took place over several hours in several episodes beginning after 4:00 a.m., and continuing to sometime after 7:15 a.m.

She alleged that he threatened her with a knife or scissors and held it to her throat, attempted to choke her, hit or punched her in the left eye, pinned her legs in a painful position and refused to let her leave . … Evidence was presented at trial of cuts and scratches to the complainant’s neck, swelling around her eye, a laceration to her finger, and bruising on her legs.

There was also evidence that the complainant suffered psychological harm as a result of the incident. [paras 5 and 7] [emphasis added] [ 15 ] In R v Gairdner , 2018 BCCA 97 , the BC Court of Appeal upheld a five-year sentence for the same offence:

Mr. Gairdner appeals a sentence of five years (before credit for time served) on a conviction by jury of sexual assault causing bodily harm. He was also convicted of choking the complainant, “T.D.”, to overcome resistance, for which he was sentenced to two years concurrent . His appeal from conviction was dismissed in November of last year. The circumstances of the offences, which took place on or about November 22, 2013, were, indeed, serious. Mr. Gairdner, then aged 34, and weighing some 300 pounds, violently attacked T.D., who weighed 100 pounds and was age 22.

There was in evidence a video of part of the assault in which she told him repeatedly to stop; he hit her in the eye, causing very serious injury to the eye area, as well as injuries to her neck and nose. Off camera, she was choked by him. She eventually escaped and was taken to hospital. She later had to have reconstructive surgery on her eye and had no vision in her left eye for about two months . Mr. Gairdner posted a photo of her buttocks to a friend, exhibiting, in the trial judge’s words, a “callous disregard” for her privacy.

As I have said, the sentencing judge arrived at a sentence of five years [for sexual assault causing bodily harm] , which was then reduced to three years to reflect pre-trial custody. Counsel has said all that could be said on Mr. Gairdner’s behalf, but the sentencing judge was required to consider not only the circumstances of the offender but also those of the offence.

Given the violence and physical and psychological consequences of this attack on T.D., and the appellant’s clear lack of remorse, I am not persuaded that a five- year sentence was unfit or that the court failed to give appropriate consideration to the appellant’s aboriginal background. The fact remains that denunciation and deterrence must be reflected more clearly in this case than they have in Mr.

Gairdner’s past convictions . [paras 1, 2, and 12] [emphasis added] [ 16 ] In R v RLW , 2013 BCCA 50 , the BC Court of Appeal explored the range applicable to sexual assaults causing bodily harm and upheld a five-year sentence in these circumstances: … Shortly after entering the premises, R.L.W. became violent with Ms. N. He ordered her to remove her clothes and then threw her onto the bed where he pinned her down, at times holding his hand over her mouth . R.L.W. repeatedly asked Ms.

N whether she had been unfaithful to him, and threatened that he would hunt her down and kill her if he found out that she had cheated on him. R.L.W. insisted on having anal intercourse with Ms. N and threatened to rape her without a condom if she refused. R.L.W. forced Ms. N to place a condom on him using her mouth, and over the course of an extended period of time, and from various positions dictated by R.L.W., he penetrated Ms. N’s anus . During the course of the assault, R.L.W. bit both of Ms. N’s breasts a number of times.

He also used her hair and a chain necklace she was wearing around her neck as a means of controlling and directing her actions . Ms. N was forced to perform fellatio on R.L.W., and at one point while doing so, she was compelled to view images of child pornography that were stored on his computer. The nurse who examined Ms.

N and observed the following injuries: a reddened area above both tonsil beds with a small amount of petechiae above the right tonsil bed; a small linear abrasion behind each ear; a small reddened area on the back of the scalp; multiple reddened areas around the nipples that looked like bite marks; a reddened area around the posterior fourchette of the vagina; a reddened area around the circumference of the anus; and a small tear to the anus . The pain Ms. N suffered to her arms and upper body as a result of the sexual assault persisted for a week or so. Urinating and bowel movements were painful for Ms.

N for three weeks, and on some occasions bowel movements were accompanied by bleeding. The fissure in her anal region did not heal for approximately three weeks . The sentencing judge had concluded, on his examination of the relevant cases, that the appropriate range for the sexual assault was four to six years …. The judge sentenced the appellant to a term of imprisonment in the middle of the range he found applicable for the sexual assault …. The sentences are towards the high-end of whatever is the applicable range.

Essentially, the appellant argues that the facts of the offences are not sufficiently egregious to justify a sentence at the high-end of the applicable range. In respect of the sexual assault, he submits that cases imposing sentences as long as five years typically involve greater violence and a more sustained assault. … The appellant relies on cases such as R. v. Kerr (1992), 13 B.C.A.C. 165 (B.C.C.A.) , R. v. Khan (1994), 23 W.C.B. (2d) 292, 41 B.C.A.C. 70 , and R. v.

G.E.W. (1993), 20 W.C.B. (2d) 88, 28 B.C.A.C. 189 (B.C.C.A.) , to illustrate his argument that sentences of five years involve greater physical violence accompanying the sexual assault than was involved in this case. I accept that these cases did involve more extreme violence, but as Chief Justice Finch said in response to a similar argument in R. v. Morgan , 2004 BCCA 628 (at para. 5 ), “… the fact that the appellant did not have to resort to greater physical violence in order to achieve his sexual goals, did not render him less culpable ... this complainant experienced terror and feared for [her] life”.

In Morgan , an appeal of a five-year sentence was dismissed. The victim was confined in Mr. Morgan’s apartment for several hours during which he threatened her with serious physical violence and death . In my opinion, the sentencing judge did not err in his identification of the applicable range for a sexual assault of this gravity .

The judge identified the aggravating factors set out above at para. 23 of these reasons [ length, extent, and nature of the sexual assault; use of threats of violence during the assault; forcing victim to view child pornography during assault; and significant and long-term impact of offences on victim ]. While the assault did not involve the same degree of physical violence as other cases, it was nonetheless a vicious and violent assault . To the extent that it was less physically violent, the appellant deployed psychological terror to force Ms. N’s compliance .

I utterly fail to see how securing compliance by uttering threats, rather than inflicting force, renders this sexual assault less egregious as a result. The assault was psychologically humiliating and has had serious long-term consequences for the victim. It was, moreover, degrading and dehumanizing to force Ms. N to watch child pornography. I can see no error in the judge’s conclusion that the appellant’s moral culpability was high. The judge was also entitled to take into account the psychological report which concluded that the appellant was at a high risk of re-

offending and exhibited sexual sadism. It was entirely proper for the judge to place greater weight on the need to protect society and to emphasize deterrence, denunciation and the protection of society as opposed to rehabilitation in these circumstances . For these reasons I do not think that the sentence imposed was demonstrably unfit . [paras 17-21, 25, 26, and 43-48] [emphasis added] [ 17 ] In R v Gamble , 2014 SKCA 101 , the Saskatchewan Court of Appeal upheld a five-year sentence for the same offence: The appellant, Ian Gamble, was convicted of two charges of sexual assault causing bodily harm pursuant to s. 272(1) (

c) of the Criminal Code , R.S.C. 1985, c. C-46 and two charges of failure to comply with a condition contained in an undertaking pursuant to s. 145(3) of the Code . On the first charge of sexual assault causing bodily harm he was sentenced to five years incarceration and on the second such charge he was sentenced to a period of incarceration of four years, to be served consecutively. On each of the s. 145(3) charges the appellant was sentenced to 30 days incarceration to be served concurrently. The appellant appeals from his conviction and from the sentences he received. The appeals were dismissed orally.

These reasons supplement the oral reasons. The trial judge summarized the circumstances of the assaults as follows: … She relaxed in the front passenger side of the car with her eyes closed listening to the music. He drove down 11th Street into the area where she had grown up and gone to school. She became aware that the vehicle stopped somewhere within a block of her old school. When the music was turned down, she opened her eyes and saw that the male had his pants down around his knees and that there was a condom on his erect penis. He threw $20.00 toward her and asked if she was a prostitute.

When she threw the money back, he grabbed the hair on the top of her head with both hands and forced her mouth onto his penis. When she bit it, he struck her with a closed fist while holding her head with his other hand. She could not say how many times she was struck but she could not believe that a man could hit so hard. The punches landed on her face, head and all over her body. He began choking her hard enough to make her “see black” and almost lose consciousness. She feared she was going to die. She recalled him saying something about his mother as he choked her.

He began having intercourse with her while continuing to strike her with his right fist. She could not say how her pants were pulled down. The more she fought the harder he hit her. She got the driver’s door open and he tumbled out, whereupon she got out the passenger side. He slammed the door on her ankle and grabbed at her leg . She was able to get out of his grasp and ran, simultaneously pulling up her pants. She ran to three separate houses where there was no answer. The trial judge found that the injuries sustained to each victim amounted to bodily harm.

No argument was presented that would convince me that the sentence is unfit . No facta or cases were filed on the issue of sentence appeal. The trial judge properly considered the protection of the public as a significant factor . She also considered all of the appropriate factors, including the gravity of the offences , which resulted in the imposition of consecutive sentences. The trial judge stated the following: I find that concurrent sentences would not adequately address the degree of culpability of this offender, nor would it properly address the principles of denunciation and deterrence.

Given the predatory and violent nature of these offences, the aggravating circumstances enunciated earlier, and the minimal mitigating factors, a total sentence of nine years [i.e. including five years for sexual assault causing bodily harm] is necessary to reflect the seriousness of the offences, to give voice to society’s denunciation of this kind of conduct, to deter this accused and others . [paras 1-4 and 25] [emphasis added] [ 18 ] In R v Blake , 2020 ONSC 5658 , which like the present case involved sexual assault causing bodily harm, unlawful confinement, and uttering threats (with one added (choking-related) offence), Spies J. imposed a six-year sentence for sexual assault causing bodily harm, in these circumstances: Mr.

Blake’s demeanour underwent a sudden change at this point. J.M. testified that Mr. Blake was now very insistent that he was going to teach her a lesson and that he went on and on about the fact that she had somehow offended him by asking him for money upfront and that she had treated him rudely. He grabbed her by the throat and squeezed with enough force that she could not breathe. She tried to fight back but he overpowered her. Mr. Blake also began biting her everywhere, as if he wanted to “bite her skin off”. Mr. Blake bit the left side of her torso, just below her breast and randomly on her arms.

He also bit one of her fingers, causing it to break. This caused her to drop the money he had given her, and he took it back. He continued biting her all over her body. … Mr. Blake uttered a threat to J.M. to cause her death . In particular, J.M. testified that Mr. Blake told her that if she moved, he was going to push [a knife] through her belly. She thought Mr. Blake was going to kill her and when she tried to get out of the car, Mr. Blake told her that the SUV was soundproof and that she could scream and scream, and it would not make a difference. J.M. also testified that Mr.

Blake told her that he was going to come back in a different car and hurt her . Mr. Blake then made J.M. take all her clothes off. He made her lie on her back and forced vaginal intercourse on her without her consent. At some point Mr. Blake took off the condom and flipped her over onto her stomach and continued to force vaginal intercourse on her. Mr. Blake put the condom back on before ejaculating … On balance although I agree with Justice Dambrot that it is difficult to reconcile all of the cases that counsel have referred to.

In this case I am considering a global sentence that is not only what is appropriate for a penetrative sexual assault simpliciter , but one that caused bodily harm as well as the choking, threatening to cause death and forcible confinement, all committed by Mr. Blake in order to succeed in the forced vaginal sexual assault of the complainant. Given all of these aggravating factors/additional offences, in my view the appropriate range of sentence is as suggested by the Crown of between five to eight years. I turn then to what is a fit sentence in this case. I find that the following facts are aggravating :

a) This was a brutal unprovoked attack on a sex trade worker at night in an isolated area;

b) Mr. Blake confined J.M. by locking the car doors to prevent her escape and closing all the windows so that she could not be heard if she cried for help;

c) In order to gain control over J.M., Mr. Blake used a knife and threatened to push it into her stomach;

d) He choked her to facilitate the sexual assault and that was a particularly dangerous and terrifying action;

e) The sexual assault involved full vaginal penetration, at times without a condom;

f) The level of physical violence inflicted by Mr. Blake upon J.M. was well beyond the violence inherent in any sexual assault and resulted in serious injuries including a bite to her finger so hard that it fractured and deep bite marks, the scars of which can still be seen today ;

g) The level of psychological violence inflicted was significant, with lasting effects, with Mr. Blake not only threatening J.M. during the course of the assault, but also at the end, when her told her he could come find her again at any time. Mr. Blake demonstrated a complete disregard for J.M.'s humanity during this attack, which terrorized her then and still does today ;

h) J.M. suffered deep and lasting effects of trauma , including a loss to her economic, sexual and mental health, and drove her into further criminal behaviours, as described by her during trial and in the PSR;

i) As a sex trade worker, J.M. was one of a particularly vulnerable population. Attacks upon them in the course of their work, in situations of vulnerability, are an aggravating factor. I find that the following facts are mitigating : (

a) Mr. Blake does not have a criminal record ; (

b) Mr. Blake is fortunate to have the support of a close-knit family. In addition to his spouse, his father, and his stepmother, he has eight half-siblings with whom he maintains close relationships. They supported him throughout the court process and view the offences he has committed to be completely out of character. As Ms. Matthews points out, however, because his family members do not believe that Mr. Blake committed the offences, their ability to assist him in his rehabilitation is limited; (

c) With respect to his character, in the PSR Mr. Blake’s family members describe him as intelligent, hard-working, kind, and generous. They know him to be peaceful and slow to anger. Ms. Matthews, however, submitted that their view that it must have been 'a mistake or misunderstanding', that Mr. Blake would be the 'last person that would ever be in trouble with the law' and that this offence was '100% completely out of character' are not credible given that in June, 2017, Mr. Blake was charged with similar offences against another woman in the context of the sex trade. Those charges ultimately resulted in Mr.

Blake entering into a three-year Common Law Peace Bond (“Peace Bond”) on November 13, 2019. I will say more about this below; (

d) Mr. Blake has a steady relationship with Ms. Gough and their children and his children from previous relationships. By all accounts, he is a good father and positive role model to his children; (

e) He is an entrepreneur who has built a successful business over seven years and has employed dozens of employees. Before that he was steadily employed. Mr. Blake, with respect to your conviction on Count # 4 - sexual assault causing bodily harm , contrary to s. 272(2) of the Criminal Code , I sentence you to a period of six years in custody. [paras 5-7, 64, 82-84, and 95] [emphasis added] [ 19 ] In R v Razak , 2019 BCSC 1677 , Fitzpatrick J. imposed a 4.5-year sentence for sexual assault causing bodily harm, in the following circumstances: In

summary, in the early morning hours of September 2, 2017, M.F. was working as a sex trade worker in Vancouver. While in the company of his friends, Mr. Razak agreed to have sex with M.F. They then walked to a local park (the “Park”) where they had consensual sex. After the consensual sex, Mr. Razak attacked M.F., choking her throat from behind. He demanded that the sex continue. Mr. Razak then proceeded to assault M.F. and forced her to perform various sexual acts, including oral sex and unprotected intercourse.

The assault on M.F. was one of violence , including further choking episodes to ensure compliance to the point that M.F. was having trouble breathing. There was physical slapping of M.F. during the assault. M.F. was in pain and crying during the attack . Mr. Razak also directed degrading and demeaning verbal attacks to M.F. over the entire episode. There were also threats of further violence to M.F. during the attack . M.F. testified that she was very scared and that she feared for her life . She was made to kneel down and “pray to her God” while Mr. Razak told her that he could kill her or have her killed .

M.F. was only able to end the assault when she managed to escape from Mr. Razak and run to a nearby house. The exact time frame of the assault is not known but it was not a brief event. The sex assaults, assaults and confinement continued for some time at the Park. I found that the assaults on M.F. gave rise to various injuries to her shoulders, upper back, arms and knees, including abrasions and bruising, and a laceration of her external genitals.

Also of particular note were injuries to M.F.’s neck area consistent with a broad symmetrical force being applied across her neck and consistent with her being choked by Mr. Razak: Reasons at paras. 49- 56.

I also accepted M.F.’s evidence as to her physical injuries, as to the bruising on her body and the difficulty that she had swallowing and eating after the attack : Reasons at para. 46. M.F. did not provide a victim impact statement for this sentencing. Nevertheless, at the trial, she testified that she continued to deal with significant long term non-physical effects at that time. At para. 47 of the Reasons, I stated: [47] M.F. describes that she was traumatized by the events that evening. She said that she still has flashbacks, suffers depressed anxiety and has difficulty in her sex life.

She attributed her three attempts at suicide as being caused by the trauma. [paras 5- 12] [ 20 ] Fitzpatrick J. also summarized the following “range” cases: The Crown refers to a number of cases where the Court sentenced offenders in sexual assault cases, some involving factual circumstances similar to those before the Court:

a) R. v. Reddemann , 2017 BCSC 1731 : there are many similarities in this case to that of Mr. Razak’s. Both victims were sex trade workers attacked by the accused. With respect to J.B., she was choked from behind and forced to have sex. This offence was sexual assault with a weapon, unlike the charges here. With respect to T.D., the charge was sexual assault causing bodily harm and choking with intent to commit sexual assault. In her case, she managed to escape. The accused posed a moderate risk to re-offend (para. 39). There were many mitigating factors (guilty plea and remorse) not present here (paras. 61-68).

Reddemann was sentenced to eight years imprisonment less credit for time served. He received two consecutive sentences of four years imprisonment after the totality principle was applied ;

b) R. v. Grant , 2018 BCSC 1362 : this was a planned and deliberate sexual assault over several hours while the victim was confined on the accused’s sailboat . Other than some force being applied to the victim’s neck during the assaults (although there was no conviction for choking), there was no weapon used and no physical injuries. Grant was sentenced to four years imprisonment ;

c) R. v. Kerr (1992), 13 B.C.A.C. 161 (conviction) and (1992), 13 B.C.A.C 165 (sentence) (C.A.) : This case involved a serious and violent sexual assault. Kerr was convicted of sexual assault causing bodily harm and confinement. There was no record for similar crimes. The court stated that the degree of violence put these offences at the “most serious end of the spectrum of conduct” covered by the charges. Kerr was sentenced to five years imprisonment ;

d) R. v. Latreille , 2009 BCSC 1892 : This case also has some similarities to the present case. It involved a prolonged violent attack on a sex trade worker, involving choking. There were no previous convictions for sex crimes and there were other mitigating factors (guilty plea and family circumstances) and Latreille was addressing alcohol issues and was prepared to undertake sexual offender programming. Latreille received five years imprisonment ; and

e) R. v. Muhammad , 2004 BCCA 396 : This case also has some similarities to the present case. It involved a prolonged and violent attack on a sex trade worker that involved the use of a knife. The court considered that there was a “high level of violence”. The sentence of five years imprisonment was upheld for sexual assault with a weapon. The defence has also referred me to a number of cases in support of a prison sentence between three and four years. In R. v. D.R. , 2004 BCSC 336 , the accused was convicted of serious assaults on two sex trade workers.

In one case, the charge was sexual assault; in the other, it was aggravated assault endangering life and causing bodily harm. The accused had a wife and two children; had no criminal record; had presented significant good character references showing no other acts of violence or problems with alcohol; and he had significant family support. The Court sentenced D.R. to two years for the sexual assault and three years for the aggravated assault.

With respect, I find it hard to reconcile the result in D.R. regarding the sexual assault conviction with the more recent cases referred to me by the Crown, including importantly the statement in G.M. that the low end of the range for sexual assault was two years. In view, this decision can only be understood as the Court accepting the significant mitigating factors present in that case , including what appeared to be decent prospects of rehabilitation (see, for example, para. 90). A further defence case is R. v. Dhillon , 2018 BCSC 807 . This case involved two assaults on sex trade workers.

The charges were sexual assault and aggravated assault respectively. Dhillon received a sentence of two years for the sexual assault and three years for the aggravated assault to be served consecutively. As with D.R. , there were significant mitigating factors, including Dhillon ’s youth, his remorse, his guilty pleas, the joint sentence, and both past, current and prospective rehabilitation efforts . The final case referred to me by the defence is R. v. Kane , 2011 BCSC 345 . This was a charge of sexual assault on a sex trade worker.

The sentence was four years , with significant weight placed on a previous sexual assault conviction. Justice Willcock (as he then was) reviewed many assault cases from paras. 13-21 and stated: [ 22] The review of the cases and the reasons for judgment of Mr. Justice Romilly in that case demonstrates that sentences as long as five years are usually only imposed where the sexual assault involves significant violence, other than the assault itself, particularly degrading acts, the use of a weapon or lengthy confinement, or repetitive assaults .

In Kane at paras. 34-40 , Willcock J. did not find that these more serious elements were present since there was no use of a weapon, the violence outside of the sexual assault was “limited” and there was no lengthy confinement or degradation of the victim. As I will emphasize below, many of the factors mentioned in Kane as supporting sentences into the five year range are present here. Not unexpectedly, none of the above cases are identical to the circumstances here.

As has been stated many times, sentencing is an individualized process given the unique circumstances that are relevant to each case and each offender . [paras 69-76] [emphasis

added] [ 21 ] In R v Patrick , 2018 BCSC 1033 , Russell J. imposed a five-year sentence for sexual assault causing bodily harm and a consecutive one year for unlawful confinement : I will begin by outlining the circumstances of the offence . On November 5, 2016, in Burns Lake, B.C., the 18-year-old complainant was downtown with her aunt. She had not eaten and had been drinking. Between 1:00 and 2:00 p.m., she went with her aunt to her aunt's boyfriend's house. There she continued drinking. A party developed. After the partiers had consumed two Texas mickeys, many people left the house.

The complainant lay down on a couch in the living room and fell asleep. When she woke up, it was dark outside and she was being pulled off the couch by two men. She was sleepy, sick, and drunk. She was dragged to the basement, but got no help from anyone as one man pushed her and the other followed her. She was yelling and crying for help as she was pushed onto a pile of laundry beside the washing machine in the basement. One man held her down while the other pulled off her pants. She recognized the face of Mr.

Patrick in a brief flash of light, but was more able to identity him by his voice since she had known him since childhood. She did not know the other man who assaulted her while Mr. Patrick held her down. After the first man finished, he held her while Mr. Patrick attempted to penetrate her without success. Neither man wore a condom. The episode ended when Serge Belanger pulled Mr. Patrick off the complainant. She saw Mr. Patrick's face more clearly at that point. From the complainant's victim impact statement, I have taken the following: After the sexual assault, the complainant learned that Mr.

Patrick was HIV positive and she had to wait in fear for the resultant test to find out that she was not infected. However, since the assault, her life has changed. She has trouble sleeping at night because of fear that she will be attacked. She can only sleep during the day when there is someone who will watch over her. She has had suicidal thoughts. She is afraid of Mr. Patrick's family who "get in her face." She would like never to see Mr. Patrick again . I am also aware that the complainant has had to move from the Burns Lake Reserve.

After considering the many authorities placed before me, I conclude that the range of sentences for a serious sexual assault that constitutes a second such offence by Mr. Patrick is in the range of four to eight years . I have also concluded that the unlawful confinement, while an integral part of the sexual assault causing bodily harm, constitutes a separate offence that should attract a consecutive penalty . I therefore sentence Mr.

Patrick to a term of five years' incarceration for the sexual assault causing bodily harm and one-year consecutive for the unlawful confinement. … [paras 2, 3, and 68-70] [emphasis added] [ 22 ] In R v Alas , 2019 NSSC 68 , Gabriel J. accepted a jointly-recommended sentence of seven years for sexual assault causing bodily harm: While the two sat on her couch, Mr. Alas began punching her in the face. Then she was choked, first with one hand, then two, blocking her airway. Then he wrapped her long hair around his hand. The accused removed her pants, punching her face and continuing to pull her hair in the process.

As she begged him to stop, he told her she was going to die. The accused forced her to perform fellatio. She begged him to wear a condom, which he did but told the victim that if she bit him, he would kill her. When the accused ejaculated he went to the bathroom warning the victim that if she tried to fight back or leave he would kill her . At one point, the victim recalls the accused telling her that he could not do this anymore, and that he was a psychopath. She was scared. The accused repeatedly told her that he was raping her during the forced vaginal and anal intercourse.

There is more, but it is not necessary that I continue beyond this. … Here the attack was completely unprovoked. The impact on the victim will be lengthy as she struggles to overcome what has been done to her. She was beaten, over what was not a trivial period of time. She sustained physical injuries and emotional damage. She was threatened and she feared for her life. The assault occurred in her own home. She was punched and choked. She was also taunted while the process was going on. These are all aggravating factors.

Mitigating factors include the guilty plea and the expression of remorse at least in in the Pre-Sentence Report, the relative youth of the accused, although 30 is certainly an age where one would expect much more stability than Mr. Alas has shown himself to be capable of. The absence of a prior criminal record is also a mitigating feature. So is the fact that he has a supportive family who are here to support him and have supported him throughout his life and in the aftermath of these charges.

The fact that he went to great lengths to remain employed and seems to have a decent work ethic (even to the extent of finding a job that he could do from his home while on house arrest) are also mitigating factors . I have considered all of the above including the case authorities. While no two cases are alike, I begin with the observation that the range of sentences for these offences with similar circumstances, broadly speaking as identified in the authorities, globally falls on a continuum of between five to nine years of imprisonment .

Despite the mitigating factors which are present, I would not have considered a sentence at the low end of the range to be appropriate given the significance of the aggravating factors that I have noted herein. Moreover, I consider that, in dealing with offences of this type and nature, the principles of denunciation and deterrence (both individual and societal) must be stressed. While society does not seek vengeance through the sentencing process, it must exact what it considers to be just retribution.

Bearing all of the above in mind, I have concluded that the recommended sentence is appropriate to the circumstances of this case. In saying that, I have obviously concluded that what is recommended does not come anywhere close to the undeniably high threshold identified by Anthony-Cook as the prerequisite to a departure from a joint recommendation. Accordingly, Mr. Alas, please stand. You are sentenced to seven years imprisonment in a federal institution. It will be broken down on the basis of seven years on the Section 272(1) (

c) offence and three years on the uttering threats under

Section 264.1(1) (a), to be served concurrently . … [paras 5, 6, 21-23, and 25-26] [emphasis added]

E. Sentencing factors here [ 23 ] While each case turns on its unique facts, the above cases provide a useful backdrop against which I now describe the key sentencing factors in this case: • this was a violent, unprovoked, prolonged, terrifying, and injury-causing sexual assault . The victim’s account of the attack, which I accepted in full, is reproduced in the conviction judgment ( 2021 ABQB 60 at paras 8-20 ); • the victim’s injuries, including genital injuries, were material and alarming , requiring an emergency-room visit and well over a week’s (physical-injury) recovery time.

Here is her trial account of her injuries (with the physical injuries reflected in distressing pictures (entered into evidence) of the victim): I had bruises … big bumps all over my head and my jaw, and my face was swollen, and I had starting … bruises on my arms and legs, and blood dripping down my legs from my vagina and my [rectum] from where he ripped me open … just bleeding down there … covered in blood down my legs. … I was so sore all over … my arm popped [or got popped] back into place … I could hardly move … had my head sore and jaw sore, and blood dripping [para 21 of the conviction judgment] • the victim received injuries via the sexual assaults themselves (full-hand insertions into her vagina and anus and painful biting of her breasts) and from all-over-body pummeling ; • I reject the defence argument that, because the penetration here was non-penile, it is somehow less serious.

In R v Friesen , 2020 SCC 9 , the Supreme Court of Canada rejected a necessary “hierarchy of physical acts”: … it is an error to understand the degree of physical interference factor in terms of a type of hierarchy of physical acts. The type of physical act can be a relevant factor to determine the degree of physical interference.

However, courts have at times spoken of the degree of physical interference as a type of ladder of physical acts with touching and masturbation at the least wrongful end of the scale, fellatio and cunnilingus in the mid-range, and penile penetration at the most wrongful end of the scale (see R. v. R.W.V. , 2012 BCCA 290 , 323 B.C.A.C. 285, at paras. 19 and 33 ). This is an error — there is no type of hierarchy of physical acts for the purposes of determining the degree of physical interference .

As the Ontario Court of Appeal recognized in Stuckless (2019) , physical acts such as digital penetration and fellatio can be just as serious a violation of the victim’s bodily integrity as penile penetration (paras. 68- 69 and 124-25). Similarly, it is an error to assume that an assault that involves touching is inherently less physically intrusive than an assault that involves fellatio, cunnilingus, or penetration. For instance, depending on the circumstances of the case, touching that is both extensive and intrusive can be equally or even more physically intrusive than

an act of fellatio, cunnilingus, or penetration . [para 146] [emphasis added] • the present case is (unfortunately) a perfect illustration of the latter point: the full-hand penetration here caused excruciating (“like giving birth”) pain and caused vaginal and rectal injuries to the victim i.e. was extremely “extensive and intrusive” contact ; • unsurprisingly, the victim also experienced psychological trauma : [Asked how she felt after leaving the hospital] I felt dirty and gross … emotional [with] physical side effects … went into depression state … like [if] someone yelled around me, I would get scared … or if someone would grab me, I would get ‘oh God, don’t hurt me’ … thought everyone would hurt me after that hurt. … I could hardly walk for at least a week … not even touch or nothing like that … [it] just burned when I peed … covered in bruises.

A few days later, I could [still] see his finger marks on my legs and on my arm and [witness crying] bruises on [my] back and everything. [para 22] • Mr. Leblanc abused the victim’s trust and exploited her neediness . She was relatively far from her residence on the evening in question and needed to use the bathroom and warm up after an evening outside. She accepted Mr. Leblanc’s offer to use the bathroom at his nearby apartment and stay for a drink while warming up.

What appeared to be a kind hospitality turned into a devastating nightmare for her; • the victim did not tender a victim-impact statement ; • turning to Mr. Leblanc, one mitigating circumstance exists, namely, no material criminal record (two unrelated convictions, one very dated). (I deal with one other asserted mitigating circumstance (remand-centre conditions) below); • no pre-sentence report was requested or (in any case) prepared. Defence referred to a difficult upbringing for Mr.

Leblanc: “growing up in a bootlegger’s home”, where he suffered physical and sexual abuse, leading to “hospitalizations to deal with the trauma and physical ramifications of that abuse.” I accept that Mr. Leblanc experienced such abuse and that he endured long-running trauma because of it. However, as I understand it, those events were approximately forty years ago (he is currently 55). I do not have the benefit of any medical, psychological or other third-party evidence on the persistence, nature or extent of current difficulties stemming from his adverse childhood years . Even Mr.

Leblanc himself (when speaking of his childhood during the trial and at sentencing) did not draw any particular line between those years and his current self. I find that I cannot attach any mitigating weight to Mr. Leblanc’s childhood difficulties; • I was not directed to any particular family structure of which Mr. Leblanc is a part or to any particular support being offered by or to be drawn from it; • per defence, Mr.

Leblanc is a “ self-admitted crack addict ”, who “obviously has troubles with his addictions.” However, defence did not argue that the offences here were the product of that addiction, directly or indirectly, or should otherwise mitigate here; • Mr. Leblanc is, or was, receiving AISH benefits and did not (and perhaps was not able to) point to any particular employment

history or prospects ; • Mr. Leblanc did not plead guilty ; and • he did not express remorse for his actions or show any sign of empathy for the victim’s suffering caused by him. F. Appropriate sentence [ 24 ] Viewed against the backdrop of the case law cited above, and in light of the factors outlined just above, I find that an appropriate sentence is six years , composed of 5.5 years for sexual assault causing bodily harm, six months for unlawful confinement (consecutive) and six months for uttering threats (concurrent with both of those sentences), subject to the adjustment discussed next. G.

Requested adjustment for Edmonton Remand Centre conditions [ 25 ] Mr. Leblanc requested greater than 1.5 to 1 credit for the time he has now spent at the Edmonton Remand Centre (since March 16, 2020) i.e. 372 days. At 1.5 to 1, he would be entitled to 558 days of credit i.e. approximately 1.5 years. [ 26 ] He seeks greater credit on account of what he characterized as extremely harsh conditions at ERC during the Covid-19 pandemic, largely coinciding which his entire time in remand.

He described being isolated or locked up for, at times, up to 23.75 hours per day, being uprooted seven times, moving from pod to pod, as the ERC attempted to keep a handle on Covid-19, and minimal or at times non-existent access to showers, clean clothes, laundry facilities, and phones. He implicitly asked me to accept that these conditions prevailed for all or virtually all of his year in remand. [ 27 ] Crown did not offer any particular submissions countering Mr.

Leblanc’s about the nature and extent of excessively harsh remand conditions or argue against enhanced (greater than 1.5 to 1) credit for those conditions. [ 28 ] The Alberta Court of Appeal noted the possibility of enhanced credit in R v Cardinal , 2020 ABCA 376 : The appellant also argues that he should have been given more than the maximum allowable 1.5/1 credit for his pretrial custody . The request for extra credit was related partly to the appellant’s compromised medical condition, as well as circumstances in the Edmonton Remand Centre apparently related to the Covid 19 pandemic.

The appellant advised that he had been on 23-hour lockdown for much of his pretrial custody . The trial judge dealt with this issue as follows: I turn to pretrial custody. You have 98 days in custody. In this case there are no allegations of Charter breach or wrongful actions of state misconduct falling short of a Charter breach that should reduce a sentence. I accept that it is difficult to be in imprisonment and to be isolated as a result of the pandemic. It is also difficult to be in the community and to be isolated. These are circumstances faced by all of us. It is not limited to the Remand Centre.

Of course, the Remand Centre is not as comfortable as home, but the isolated aspect is no different. I have no evidence before me that there is increased risk at the Remand Centre than elsewhere or that Mr. Cardinal suffered any particularly harsh conditions that would justify mitigation in sentence and giving more credit than statutorily allowed. I am not prepared to take judicial notice of what may be faced in the Remand Centre or correctional facility without any evidence. This reasoning does not disclose any reviewable error.

While ss. 723-24 confirm that evidentiary standards on a sentencing hearing are lower, the sentencing judge was obviously not satisfied that the appellant had demonstrated exceptional circumstances that would justify departure from the maximum credit allowed by s. 719(3.1) of the Criminal Code , or otherwise reduce the sentence . [paras 3 and 4] [emphasis added] [ 29 ] In R v Gordey , 2020 ABQB 425 , Gates J. explored this issue in detail (paras 48-71), concluding: … I am bound by the plain language employed in section 719(3.1) , as interpreted by the Supreme Court in Summers .

In my view, I may only grant a maximum of 1.5 days credit for every day spent in pre-trial custody. I am, however, satisfied that in the circumstances of this particular case, the severe restrictions placed on the Accused during a portion of his pre-trial detention rise to the level of a mitigating circumstance that justifies a reduction in the sentence that would otherwise be appropriate . In my view, a fit and proper sentence in this instance is 5.5 years. … I would give the Accused credit for 412 days of pre-trial custody calculated on a ratio of 1.5:1, for a total of 618 days.

I would grant a further credit of 112 days by way of acknowledging the mitigating circumstances surrounding the approximately 90 days that the Accused was subject to the institution’s Covid-19 restrictions while on remand . The total credit amounts 730 days or 2 years. In the result, the Accused is required to serve a further sentence of 3.5 years, consecutive to any other sentence currently being served. [paras 71-73] [emphasis added] [ 30 ] In R v Shivak , 2021 ABQB 72 , Renke J. adopted Gates J.’s analysis: … the Crown conceded that Mr.

Shivak’s conditions of incarceration warranted further mitigation of his sentence. Since March 2020, with the onset of the Covid pandemic, Mr. Shivak has spent significant time in lock-down. He was only able to leave his cell 15

minutes per day over a 3-month period, and during partial lock-downs, time outside his cell was half of what it was prior to March 2020 . Further, Mr. Shivak has recently been diagnosed with MS. His incarceration has limited, but not prevented, treatment. He has also been subject to the particular stress of potential enhanced susceptibility to Covid because of his MS. Mr. Shivak, as he said, does not want to die in jail. The further mitigation relating to Mr. Shivak’s conditions of incarceration is at least 6 months.

See R v Gordey , 2020 ABQB 425 , Gates J at paras 66 and 71. [para 11] [emphasis added] [ 31 ] In R v Rajmoolie , 2020 ONCA 791 , the Ontario Court of Appeal majority, commenting on one of its earlier decisions on credit for harsh remand conditions, observed: Duncan [ R v Duncan , 2016 ONCA 754 ] does not mandate a second level of credit for pre-sentence custody. Rather, it confirms that there is no cap on the 1.5 days of credit that can be given for pre-sentence custody. A higher credit may be given for “particularly harsh” conditions .

At para. 6: In considering whether any enhanced credit should be given, the court will consider both the conditions of the presentence incarceration and the impact of those conditions on the accused. The decision to award credit for pre-sentence custody is discretionary . Unless the sentencing judge errs in principle, the decision is entitled to deference. The sentencing judge was aware of the conditions of the pre-sentence incarceration and the impact on the accused.

It was within her discretion to conclude that the 1.5 days of credit for each day was adequate. [paras 14-16] [emphasis added] [ 32 ] I adopt Gates J.’s analysis in Gordey and find that, on a sentence-mitigation basis, Mr. Leblanc is entitled to an additional half-day credit i.e. to a 2-for-1 credit , converting his 372 days of time served to 744 days. H.

Ancillary orders [ 33 ] As for ancillary orders, the Crown requested, the defence did not object to, and I order: • a weapons prohibition pursuant to ss 109(1) of the Criminal Code ; • a DNA order pursuant to ss 487.051(1) CC ; • a SOIRA order pursuant to ss. 490.012(1) CC operating for 20 years pursuant to para 490.013(2)(

b) CC ; and • forfeiture of the personal property seized in the course of the police investigation. Heard on the 5 th day of March, 2021. Delivered orally via Webex on the 24 th day of March, 2021 Dated at Edmonton, Alberta this 25 th day of March, 2021. M. J. Lema J.C.Q.B.A. Appearances: Morgan Patterson Crown Prosecutors’ Office for the Crown

Brent Corbin Corbin Law for the Accused