R v Moore, 2022 ABKB 816

Court of King’s Bench of Alberta Citation: R v Moore, 2022 ABKB 816 Date: 20221206 Docket: 170610042Q1 Registry: Wetaskiwin Between: His Majesty the King Crown - and - Derek Moore Offender Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify any victim or witness must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. _______________________________________________________ Sentencing Decision of the Honourable Justice Tamara L. Friesen _______________________________________________________ I. INTRODUCTION

[1] On May 6, 2022, I found Mr. Moore guilty of Aggravated Sexual Assault contrary to s. 273(2)(

b) of the Criminal Code ofCanada, RSC 1985, c C-46 (Criminal Code): R v Moore, 2022 ABQB 329 [Moore #2]. [2] Having regard to all the circumstances of the case and the applicable law, I have determined that the appropriate sentence toimpose on Mr. Moore is a period of incarceration of three years. Any applicable ancillary orders will also be imposed. II. CIRCUMSTANCES OF THE OFFENCE [3] The circumstances of the offence are described in Moore #2. In that decision, I made the following relevant findings of fact: • After a night of drinking at a bar where both the victim and Mr. Moore became intoxicated, Mr.

Moore and the victim went to abasement apartment with some friends. They did not know each other prior to that night. • While at the apartment, the pair engaged in rough consensual sex, which included kissing, giving each other hickeys on the neckand chest area, biting, penile/vaginal penetration, and cunnilingus. The victim consented to kissing, hickeys on her neck and chest area,some of the biting but not all of it, the penile/vaginal penetration, and the cunnilingus. • Some kissing and hickeys or biting to the victim’s neck and chest area occurred in the living room of the apartment.

The rest of thesexual encounter occurred in the bedroom of the apartment. • While in the bedroom, Mr. Moore bit the victim in several places on her body, including her left shoulder blade, right mid-back,right bicep, left lower torso, right front thigh, and left inner calf. All these bites caused bruising. I was unable to determine if the biteswere consensual or at what point during the sexual activity they occurred, other than that all of the bites occurred in the bedroom prior toMr. Moore biting the victim’s vaginal area. • Mr. Moore bit the victim on her left and right breasts.

The victim described these bites as “extremely hard.” The victim told Mr.Moore that the extremely hard biting to her breasts was too much and told him to stop. The bites to the victim’s breasts caused deeppurple bruising. After the victim told Mr. Moore to stop the extremely hard biting, he continued to bite her body. I am unable todetermine whether penile/vaginal intercourse occurred before and/or after the bites to her breasts. • The penile/vaginal intercourse stopped, and Mr. Moore began to perform cunnilingus on the victim.

During cunnilingus, Mr.Moore bit the victim’s vaginal area “pretty hard.” • While I was unable to determine the exact sequence of events during the vaginal area biting, I did find the following: Mr. Moorebit down harder and harder on the victim’s vaginal area; the victim tried to push Mr. Moore away; the victim told Mr. Moore to stop.Mr. Moore stopped biting the victim’s vaginal area. The victim noticed bleeding from her vaginal area immediately after Mr. Moorestopped biting. Mr.

Moore had blood on his face and hands from the victim’s vaginal bleeding when he exited the bedroom. • The bite to the victim’s vaginal area caused a cut or tear to the victim’s vaginal skin and caused bruising and significant bleedingto the victim’s labia minora and bruising to the victim’s labia majora. The injury to the victim’s labia minora was similar to injuriessustained during childbirth, would have taken 2 – 3 weeks to heal, and would have changed the configuration of the victim’s labiaminora. • The victim committed suicide in January 2020. III.

VICTIM IMPACT [4] Three victim impact statements were entered as exhibits at the sentencing hearing: one authored by the victim’s mother, oneby the victim’s sister and one by the victim herself.

These statements demonstrated that the pain caused by sexual assault reverberatesthroughout the community in which it occurs and can have a significant impact on the victim’s loved ones. [5] A voir dire was held to determine the admissibility of the victim’s handwritten statement as it was not in the statutorilyprescribed Form 34.2 of the Criminal Code and had not been formally filed with the Court prior to the victim taking her own life inJanuary 2020. The victim’s common-law partner testified during the voir dire.

He provided the victim’s handwritten statement to policeafter locating it amidst the victim’s personal belongings in the weeks following the victim’s death.

I found the victim’s handwrittenstatement to be credible and trustworthy (see R v Gardiner, (SCC), [1982] 2 SCR 368 at pp 414 – 415) and deemed itadmissible pursuant to ss 724(1) and 724(3) of the Criminal Code even though it was not in the proper statutorily prescribed form. [6] Following a sexual assault conviction, the Court does not require evidence from a victim to recognize, in general terms, thedegree of harm caused by serious sexual assaults: see R v Arcand, 201 ABCA 363 [Arcand] at para 69, R v Goldfinch, 2019 SCC 38[Goldfinch] at para 37 and R v Friesen, 2020 SCC 9 [Friesen] at para 118.

All victims of sexual assault experience profound physicaland psychological harm. As noted in Goldfinch at para 37: Throughout their lives, survivors [of sexual assault] may experience a constellation of physical and psychological symptoms including:high rates of depression; anxiety, sleep, panic and eating disorders; substance dependence; self-harm and suicidal behaviour. [7] In this case, those harms were specifically described in the victim’s own words in her handwritten statement. I accept that thevictim suffered profound harm as a result of being sexually assaulted by Mr. Moore. IV.

CIRCUMSTANCES OF THE OFFENDER

[8] Mr. Moore’s personal circumstances came to me by way of a Pre-Sentence Report (PSR) and a report pursuant to R vGladue, (SCC), [1999] 1 SCR 688 [Gladue] (Gladue report). A. Biographical Information [9] Mr. Moore was born on February 6, 1994. He was 23 years old at the time of the offence and is 28 years old now. He is ofIndigenous heritage. His mother is a band member of the Ermineskin Cree Nation, and his father was Métis. B. Family and Living Situations [10] Mr. Moore was raised by both of his parents until he was approximately 8 years old, when his mother left the family unit.

Mr.Moore felt abandoned by his mother and was estranged from her until he was about 14 years old. Both his parents struggled with alcoholabuse. [11] After his mother left, Mr. Moore’s father fell into alcohol and drug addiction and was in and out of jail for most of Mr.Moore’s childhood. Mr. Moore’s father was strict, had anger issues, and used a belt or a slap to discipline his children. Mr. Moore’sfather died in 2020 due to complications from diabetes and substance abuse. [12] Mr. Moore has seven sisters and one brother. He was primarily cared for by two of his older sisters.

They lived in poverty andwere forcibly removed from the family home in Maskwacis when Mr. Moore was 16 years old. After that, three of Mr. Moore’syoungest siblings were placed in foster care. Mr. Moore’s oldest sister committed suicide in 2012 when she was 26 years old. Some ofMr. Moore’s siblings struggle with substance abuse and addictions. [13] Mr. Moore used to see both his mother’s extended family in Frog Lake and his father’s extended family in St. Paul a fewtimes a year. After he and his younger siblings were separated, Mr. Moore lost contact with his mother’s family until 2020. [14] Mr.

Moore had a period of instability after being forced out of his family home, but eventually settled with his aunt until hewas just over 18 years old. His aunt provided him with some stability, which allowed him to engage in sports and get a part-time job. [15] Mr. Moore’s mother and her siblings attended the Ermineskin Residential School. Mr. Moore’s father went to school inEdmonton where he was subject to harsh punishments, such as being hit with belts and rulers. Mr. Moore’s parents did not speak abouttheir experiences at these schools with Mr. Moore. [16] Mr.

Moore’s mother has been sober for approximately 14 years. She lives in Wetaskiwin with her long-term partner, Norman.Mr. Moore does not feel close to his mother and does not consider Norman to be his stepfather. Mr. Moore does communicate daily withhis mother via text and sees her in person on a regular basis. Mr. Moore feels closest to his sister Cherry. He has no children of his ownbut has a good relationship with some of his nieces and nephews. [17] Mr. Moore has been in a long-term relationship for about four years. His partner has some mental health issues.

He currentlylives with his partner, one of his sisters, and his sister’s son. C. Education and Employment [18] Mr. Moore started school at Ermineskin Elementary but moved to a Catholic school in Wetaskiwin for the rest ofkindergarten. For Mr. Moore’s grade six year, the Indigenous students were placed in a separate class from the non-Indigenous students.Mr. Moore did not experience racism personally while at school, but heard his Indigenous friends being called names such as “dirtynative” by other children. [19] Mr. Moore dropped out of high school after the death of his sister in 2012. Mr.

Moore was only a few months away fromgraduation but did not graduate. [20] Mr. Moore has primarily worked in the food industry for approximately 11 years. He got his first cooking job at KFC in 2009and has continued to work in the food industry ever since. Mr. Moore has also worked at a scrap yard and has done general labour jobs.He has moved around from job to job in Wetaskiwin and Fort McMurray. He is currently employed at KFC in Wetaskiwin. He says thathis employers have said he is hard working and has been trusted with additional responsibility. D.

Personal, Health, and Addiction Issues [21] At the time of the offence, Mr. Moore says he was involved in drinking alcohol and partying. He was drinking four or fivedays a week, most heavily on weekends. He says he was drinking heavily on the night of the offence and has no memory of it. [22] Mr. Moore told the PSR writer that since his arrest, he has stopped living a party lifestyle and has a small group of friendswho are a good influence on him. He has cut down on drinking and now only consumes alcohol once or twice a month in moderation.

Hewas able to stay completely sober for nine months in the fall/winter of 2019/2020. Mr. Moore does not believe that he needs help withsubstance abuse issues. [23] Mr. Moore keeps to himself and spends much of his free time with his family and playing video games. According to Mr.Moore and his siblings, Mr. Moore was not known for getting into trouble before the offence and has not been in trouble since. [24] Mr. Moore has experienced significant loss, including the death of his father and sister. Mr. Moore does not believe that heneeds grief counseling or counseling for any other issues.

E. Connection to Communities of Origin [ 25 ] Mr. Moore primarily grew up in Ermineskin Cree Nation, Maskwacis, Alberta, and in Wetaskiwin, Alberta. While growing up, he regarded the Maskwacis area as a bad community. His mother tried to ensure that Mr. Moore and his siblings had connections to traditional Cree ways and enrolled them in school in Maskwacis. His father had concerns regarding crime in the area and actively tried to steer Mr. Moore and his siblings away. After his mother left, his father enrolled Mr. Moore in a school in Wetaskiwin. [ 26 ] Mr.

Moore feels disconnected from both his Cree and Métis culture. He does not understand the traditional Cree ways practiced by his mother’s family. Mr. Moore tried to engage with his Cree culture when he was older but found aspects confusing due to regional differences in various traditions and practices. Mr. Moore took an Indigenous class while attending Catholic school in Wetaskiwin. It was not taught by a Cree teacher. [ 27 ] Mr. Moore’s maternal grandfather lived in Frog Lake First Nation and practiced Cree traditions, which he showed to his grandchildren when they would visit.

They were exposed to smudging, hunting, hide drying, and other hands-on traditional practices. Mr. Moore’s mother still teaches him Cree words that she knows. [ 28 ] Mr. Moore’s father was taken from his biological family as part of the ‘60’s Scoop and adopted by a non-Indigenous family in Edmonton. Mr. Moore’s father was not close with his adoptive family and lost his connection to his Métis community. Consequently, Moore has no connection to his father’s Métis community of origin. F. Criminal Record [ 29 ] Mr. Moore has no criminal record.

He has been on judicial interim release with conditions with respect to this offence and has not breached those conditions. V. POSITIONS OF THE PARTIES [ 30 ] Crown counsel argues that this offence should be categorized as a major sexual assault pursuant to Arcand (para 171) and seeks a period of incarceration of four to four and a half years. Crown counsel submits that the starting point of three years for a major sexual assault should be applied in this case. Further, Crown counsel submits that there are many aggravating factors, and few mitigating factors.

Therefore a sentence in this range is justified. [ 31 ] During oral submissions at the sentencing hearing, Defence counsel sought a suspended sentence and a period of probation. In further written submissions provided after the sentencing hearing, Defence counsel amended his position to a period of incarceration of 18 months, followed by 12 months of probation. [ 32 ] Defence counsel argues that Mr. Moore should be sentenced for the injury inflicted on the victim and not the sexual activity to which the victim consented. Since the victim consented to the cunnilingus, Mr.

Moore should only be sentenced for the biting that occurred during cunnilingus. [ 33 ] Defence counsel further argues that a lengthy term of incarceration is not necessary for Mr. Moore for several reasons: specific deterrence is not required because this offence was a “one off” and out of character for Mr. Moore, and as such he is not likely to reoffend; he has been compliant with his release conditions; he has addressed his substance use (in that he has reduced his drinking); he is employed; he is engaged with his extended family; and he is a productive member of society.

Defence counsel submits that for these reasons, jail is not going to help Mr. Moore in terms of rehabilitation. [ 34 ] On November 18, 2022, I invited further submissions from counsel regarding the suitability of a conditional sentence order in light of the passage of Bill C-5, which repealed the sections of s 742.1 of the Criminal Code that made a conditional sentence unavailable for offences with a maximum term of imprisonment of 14 years or life. [ 35 ] In response to that invitation, Defence counsel argues that Mr.

Moore should receive a custodial sentence of two years or less and that the sentence should be served in the community. Defence counsel submits that the safety of the community would not be endangered by Mr. Moore serving his sentence in the community, and that a conditional sentence would be consistent with the fundamental principles and objectives of sentencing. Defence counsel has not put together a plan, nor has he addressed the recommendations made in the Gladue report or suggested any conditions to be included in a conditional sentence order. In support of this position, Defence counsel points to Mr.

Moore’s Aboriginal status, his lack of prior criminal record, his steady and good work history and current employment, his compliance with release conditions and regular reporting to his bail supervisor for over five years without incident, and his remorse. Defence counsel also points to the fact that Mr. Moore had unmanageable alcohol use at the time of the offence, which he has now addressed. [ 36 ] Crown counsel argues that a sentence of less than two years is not appropriate for this offence and this offender.

Crown counsel points to the starting-point sentence for a major sexual assault under s 271 of the Criminal Code established in Arcand , noting that the starting point assumes a person of previous good character, no guilty plea, and an adult victim. Crown counsel also points to the principle of parity s 718.2(

b) of the Criminal Code and argues that Defence counsel’s position of a sentence of less than two years is a marked departure from the sentencing norms for similar offences and offenders: see R v HPM , 2022 AQBQB 584 at para 64 and R v Friesen , 2020 SCC 9 . Crown counsel further argues that if a sentence of less than two years was found to be appropriate, it would be inconsistent with the fundamental purposes and principles of sentencing for major sexual offences. VI. PRINCIPLES OF SENTENCING

A. Classifying the Sexual Assault [ 37 ] The Court in Arcand recognized that sexual assault contrary to s 271 of the Criminal Code is a materially different offence from sexual assault causing bodily harm contrary to s 272 of the Criminal Code and aggravated sexual assault contrary to s 273 of the Criminal Code . The classification of “major sexual assault” for the purpose of engaging the three-year starting point sentence does not apply to “these two other stepped-up categories of sexual assault” (see para 169).

However, the objectives of sentencing and factors articulated in Arcand with respect to the harm to the victim resulting from a major sexual assault still apply (see paras 173 – 181). [ 38 ] The Court in Arcand at para 171 affirmed that a major sexual assault occurs where the “sexual assault is of a nature or character such that a reasonable person could foresee that it is likely to cause serious psychological or emotional harm, whether or not physical injury occurs.” Harm to the victim might come from the force threatened or used, or from the sexual aspect of the situation, or from any combination of the two.

Major sexual assaults include, but are not limited to, non-consensual vaginal or anal intercourse, fellatio, and cunnilingus. In other words, these specified sexual acts are examples of major sexual assaults, not an exhaustive list.

In Friesen , the Supreme Court was clear that while the degree of physical interference is recognized as an aggravating factor, “there is no type of hierarchy of physical acts for the purpose of determining the degree of physical interference” (para 146). [ 39 ] In this case, while the victim consented to the initial cunnilingus, she did not consent to the hard biting of her vaginal area. The victim had put Mr. Moore on notice that she would not consent to hard biting on any place on her body after she told him to stop biting her breasts. As such, Mr.

Moore no longer had the victim’s consent to cunnilingus the moment that he bit down hard on the victim’s vaginal area. The force applied to the victim was the biting during the sexual act of cunnilingus, not the initial cunnilingus. A reasonable person in Mr. Moore’s circumstances could foresee that biting hard on the victim’s vaginal area after being put on notice that the victim would not consent to hard biting on any part of her body would cause serious psychological or emotional harm. The act was highly invasive, painful, and caused actual physical injury to the victim.

For these reasons, I find that the aggravated sexual assault occurred during a major sexual assault. B. Purpose and Objectives of Sentencing [ 40 ] Pursuant to s 718 of the Criminal Code , 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 done to victims or to the community that is caused by the unlawful conduct; (

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

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community. [ 41 ] While I must weigh and consider all these objectives in rendering my decision, given that Mr. Moore’s actions constitute a major sexual assault, I must ensure that the sentence given adequately addresses the objectives of denunciation and deterrence: see Arcand at para 274. [ 42 ] At the same time, I must recognize that Mr. Moore has no criminal record. I am cognizant of the importance of restraint when dealing with first-time offenders.

As outlined by the Court in R v Shrivastava , 2019 ABQB 663 [ Shrivastava ] at para 71 : [71] ... Those with no prior convictions may be deterred by lighter penalties, and sentences should reflect the minimum restraint on liberty that is appropriate in all the circumstances: Criminal Code s. 718.2 (d). However, the absence of a criminal record cannot be used to adjust the sentence below a starting point that is premised on the absence of a criminal record. [ 43 ] As clarified by the Supreme Court in Friesen , starting point sentences are highly influential guidelines but ultimately not binding on me (para 37).

This is in keeping with the principle expressed in ss 718.2(

d) and (

e) of the Criminal Code , and in particular, s 718.2 (e), which states that “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.” C.

Proportionality [ 44 ] It is a fundamental principle of sentencing that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender: Criminal Code s 718.1. [ 45 ] When considering the “gravity of the offence,” the Court must focus on what the offender did wrong. This includes identifying the degree of harm or likely harm to the individual victim and to society and its values. [ 46 ] In Arcand , the Court outlined the harm to both the victim and society that results from major sexual assaults: ...

A major sexual assault constitutes a serious violation of a person’s body and equally serious violation of their sexual autonomy and freedom of choice. These breaches of one’s physical integrity and privacy are undisputable and undeniable. ...

In addition to this very grave harm, there is also intrinsic to major sexual assaults the likelihood of other very real psychological or emotional harm. That includes fear, humiliation, degradation, sleeplessness, a sense of defilement, shame and embarrassment, inability to trust, inability to form personal or intimate relationships in adulthood with other socialization problems and the risk of self-harm or even suicide.

While these effects fall into the psychological or emotional harm category, they may be equally or even more serious than the physical ones but much less obvious, indeed even unascertainable at sentencing . ... Harm to one member of the community affects the rights and security of others.

This is particularly striking in cases involving violence against women (para 176 – 177 and 179, emphasis original). [ 47 ] Defence counsel argues that this offence did not result in long-lasting harm to the victim because her physical injuries healed after only 2 or 3 weeks, she was able to have subsequent sexual relationships, and she gave birth to a child after the offence.

This ignores the serious psychological and emotional harm that the Court in Arcand found to be inherent in major sexual assaults, and the actual psychological and emotional harm that the victim herself articulated in her handwritten statement.

These included: • Barely leaving home out of fear, and secluding herself in her bedroom; • Using drugs, including methamphetamine; • Finding it hard to do simple tasks like bringing her son to school and going to the store; • Neglecting her son to the point where it was best for him to live with his grandparents; • Attempting suicide twice (and succeeding once); • Losing a considerable amount of weight; • Inability to work in a public setting; • Fear of asking for help; and • Feeling at a loss with no sense of direction. [ 48 ] The degree of harm to the victim was high.

Sexual assault also harms the rights and security of others in society, especially women. This harm is reflected in the victim impact statements of the victim’s mother and sister. Thus, the gravity of this particular offence is high. [ 49 ] When considering the “degree of responsibility of the offender,” the Court must focus on the moral blameworthiness of the offender and the extent to which the offender intended the consequences of his actions. [ 50 ] In assessing Mr. Moore’s degree of responsibility, I must consider any specific aspects of Mr.

Moore’s conduct or background that tend to increase or decrease his personal responsibility for the offence.

i) Proportionality and the Relationship to s 718.2(

e) of the Criminal Code [ 51 ] Mr. Moore is in Indigenous person. As such, the proportionality analysis must be undertaken in the context of his Indigenous status. As explained by the Supreme Court in Gladue at para 66 : The background considerations regarding the distinct situation of [A]boriginal peoples in Canada encompass a wide range of unique circumstances, including, most particularly: (

a) The unique systemic or background factors which may have played a

part in bringing the particular [A]boriginal offender before the courts; and (

b) The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular [A]boriginal heritage or connection. (see also R v Ipeelee , 2012 SCC 13 [ Ipeelee ] at para 59 ) [ 52 ] I take judicial notice of Canada’s history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and higher levels of incarceration for Indigenous people: see Ipeelee at para 60 .

These factors provide valuable and necessary context for understanding and evaluating Mr. Moore’s moral blameworthiness. [ 53 ] Gladue factors do not amount to an automatic sentencing discount and will not influence the ultimate sentence unless those factors affect the moral blameworthiness of the offender or otherwise address one of the objectives of sentencing: see Ipeelee at paras 73 and 83 ; and R v Laboucane , 2016 ABCA 176 at para 63 (9).

That said, background factors do not have to have a direct causal link to the offences before they can be considered mitigating: see R v Dichrow , 2022 ABCA 282 . ii) Application of Gladue Factors to the Facts [ 54 ] The PSR and Gladue report illustrate the following Gladue factors that arise from Mr. Moore’s personal circumstances:

(

a) His mother and her siblings attended residential schools. While it is not clear whether his father also attended a residential school, he was subject to abuse similar to that which residential school survivors experienced. Residential school attendance has a negative intergenerational impact even if subsequent generations did not attend residential schools. These negative impacts can include substance abuse, the use of violence, inability to parent, and the loss of cultural identity. All of those things are present in Mr. Moore’s case. (

b) There is a history of substance abuse in Mr. Moore’s family. Both his parents struggled with substance abuse. His father died as a result of complications related to alcohol and drug abuse and addiction. Mr. Moore has had issues with alcohol abuse in his past and has siblings who still struggle with substance abuse and addiction. (

c) Mr. Moore did not finish Grade 12. (

d) Mr. Moore does not have a strong connection to his cultures of origin. While his maternal grandfather lived a traditional Cree lifestyle and his mother tried to teach him about his Cree heritage, his cultural education was not consistent, or part of Mr. Moore’s daily life. Mr. Moore did have some Indigenous teaching in school, but they did not involve Cree traditions. His father did not want his children to learn about their Cree culture. Mr. Moore has no connection with his Métis culture as his father was removed from his family of origin and adopted by a non-Indigenous family in Edmonton. (

e) Mr. Moore was separated from his mother at a young age and developed feelings of abandonment as a result. (

f) Mr. Moore was subject to parental neglect and physical abuse at the hands of his father. (

g) Mr. Moore lived in poverty and was subject to displacement as a child. (

h) Some of Mr. Moore’s siblings were placed into the foster care system. (

i) Mr. Moore’s oldest sister died by suicide. (

j) Mr. Moore’s father was in and out of jail during Mr. Moore’s childhood. [ 55 ] While Mr. Moore is responsible for his actions in committing this offence, he was not responsible for the consequences of colonial government policies and programs that resulted in cultural genocide and trauma to the Cree and Métis communities in Alberta. Mr. Moore was not responsible for the intergenerational impact of residential schools that fell on him. He was not responsible for his parents’ addiction issues, his mother’s abandonment, or his father’s neglect and abuse.

He was not responsible for being denied meaningful access to Cree teachings and traditions, or for his lack of connection to his Métis culture. He was not responsible for the poverty and displacement that he suffered as a child. He was not responsible for his siblings being placed in foster care, his sister’s suicide, or his father’s incarceration. In short, Mr. Moore’s freedom to choose was compromised because of his heritage: see R v Lariviere , 2021 ABQB 432 at para 44 [ Lariviere ]. [ 56 ] All of these factors contributed to Mr.

Moore’s personal development and to the behaviour that he demonstrated in the commission of the offence. As such, all of these factors impact Mr. Moore’s level of moral blameworthiness. iii) Moral Blameworthiness in Relation to the Offence [ 57 ] When considering moral blameworthiness as it relates to the offence (as opposed to the offender), the Court must focus on the harm intended by the offender. The greater the harm intended by the offender or the greater the degree of recklessness or wilful blindness of the offender, the greater the moral blameworthiness of the offender: see Arcand at para 58. Mr.

Moore’s moral blameworthiness in relation to the offence is on the high end. While the sexual activity was not forced, the sexual assault involved infliction of pain to the victim that resulted in significant physical, psychological, and emotional injury to the victim. [ 58 ] Defence counsel argues that Mr. Moore did not intentionally inflict pain and injury on the victim. Mr. Moore was engaged in consensual rough sex and was merely reckless as to the level of force that he used. [ 59 ] The fact that Mr. Moore was “merely reckless” does not reduce his moral blameworthiness. Mr.

Moore’s recklessness was not fleeting. He was put on notice by the victim that his biting had gone too far when she told him to stop after he bit her breasts. Despite this, Mr. Moore continued to bite the victim on her body, culminating in the serious bite to her vaginal area that caused perforation, bleeding, and lasting injury. [ 60 ] When considering all of these factors, I find Mr. Moore’s moral blameworthiness is high, but not the highest. Mr. Moore’s background factors likely contributed to his alcohol abuse, and his intoxication on the night of the offence. Mr.

Moore was fully responsible for his recklessness on the night of the offence, but he was not fully responsible for the path that led him there. D. Aggravating and Mitigating Factors: s 718.2(

a) of the Criminal Code [ 61 ] In arriving at a fit and appropriate sentence, I must consider all aggravating and mitigating factors. [ 62 ] The aggravating factors in this case include the following: • The extent of the injuries to the victim, including the bruising to her breasts, body, and vaginal area; • Mr. Moore did nothing to help the victim after she was injured; and • The sexual assault was fueled by alcohol.

[ 63 ] The mitigating factors include the following: • Mr. Moore is gainfully employed and a productive member of society; • Mr. Moore has a good connection to and support from his extended family; and • Mr. Moore has changed his lifestyle since the commission of the offence and no longer lives a partying lifestyle. [ 64 ] Mr. Moore’s lack of criminal record is not a mitigating factor. The presence of a criminal record is an aggravating factor that is absent in this case. Similarly, the fact that the sexual activity was not forced is not a mitigating factor.

Forced sex is an aggravating factor that is absent in this case. [ 65 ] Mr. Moore was convicted after trial. It is not an aggravating factor that Mr. Moore ran a trial, and Moore is not being punished for exercising his constitutional right to a trial. He simply does not have the benefit of significant mitigation that would have come from a guilty plea in these circumstances. [ 66 ] Defence counsel argues that the weight of mitigation from a guilty plea would have been less in this case because the deceased victim was not put through the stress of having to give evidence.

I reject this submission for several reasons. Sparing the victim from testifying is not the only consideration that mitigates sentences in cases where an offender pleads guilty. Significant court resources have been utilized to bring this matter to its conclusion. There were several police and expert witnesses who prepared reports and testified at trial. The victim’s sister, friends, and former partner all testified at trial or at the sentencing hearing.

The victim’s former partner appeared to be traumatized by the circumstances surrounding the victim’s death and by giving evidence at the sentencing hearing. [ 67 ] A guilty plea also serves indication that the offender has accepted responsibility for the offence and can be a sign of remorse. Mr. Moore does not remember committing the offence and has shown no signs of real remorse for the harm inflicted on the victim. He simply acknowledges that she was harmed as a result of what he did. At the sentencing hearing, Mr. Moore stated, “I’m sorry about events that have happened. I’ve never been a violent person.

I’m sorry that someone got hurt.” These comments do not suggest that Mr. Moore has taken responsibility for this offence. [ 68 ] Defence counsel submits that the fact the sexual activity was initially consensual is a mitigating factor. He relies on two cases where the victim initially consented to the sexual contact but withdrew it when the parameters of that consent were not respected by the offenders. [ 69 ] In R v Decelles , 2013 ABPC 85 , the victim consented to penile/vaginal intercourse, but then told the offender to stop because it hurt.

The offender did not stop and continued penile/vaginal intercourse until he ejaculated. The Court found that, although not always the case, the fact that the sexual activity began with consent was mitigating in the circumstances. In R v Cummings , 2022 ABPC 191 , the victim consented to penile/anal intercourse but only if a condom was used. This was ignored by the offender who proceeded with intercourse. The Court commented that the crime was of short duration but was nonetheless a serious crime.

Both cases involved convictions under s 271 of the Criminal Code as there was no bodily harm to the victim as defined in s 2 of the Criminal Code . [ 70 ] In this case, the victim suffered significant bodily harm resulting from Mr. Moore’s actions, which is a significantly distinguishing feature. In R v AE , 2021 ABCA 172 , the Court affirmed that when a sexual assault is subjectively intended to cause bodily harm, and bodily harm results, consent is not an available defence. Specifically, consent is not obtained in those circumstances because consent cannot be given (para 129). Before Mr.

Moore bit the victim’s vaginal area, he had been put on notice that the victim no longer consented to hard biting on any area of her body because it was “too much.” Subjectively, Mr. Moore had to have known that hard biting would cause bodily harm to the victim. The moment Mr. Moore bit down on the victim’s vaginal area, Mr. Moore subjectively intended to cause the victim bodily harm, and did in fact cause bodily harm to the victim. The victim may have consented to cunnilingus but biting of the vaginal area is a distinctly different sexual act.

Consent was never obtained for that sexual act because consent could not be given to the infliction of the bodily harm that occurred when Mr. Moore bit the victim’s vaginal area. As such, I do not find the victim’s initial consent to cunnilingus to be a mitigating factor. [ 71 ] Defence counsel argues that the fact Mr. Moore has complied with his release conditions for five years without incident is a mitigating factor. I disagree. An accused person on release is expected to comply with his release conditions. Had Mr.

Moore breached his release conditions, he would have either been charged, or his poor reporting and compliance would have been commented on in the PSR and considered aggravating factors. Those aggravating factors are absent in this case. [ 72 ] That said, I do accept that compliance with release conditions can be an important indicator of future success when considering whether an offender should receive a suspended or conditional sentence. E.

Other Considerations [ 73 ] Crown counsel argues that the starting point of three years incarceration as outlined in Arcand is neither the minimum nor the maximum sentence, but rather the point in which sentencing considerations should start (para 131). Given that non-consensual cunniligus with no injury warrants a starting point of three years, if the Court were to impose a sentence of less than three years it would be contrary to the sentencing principles outlined in Arcand . [ 74 ] Defence counsel argues that a lengthy term of incarceration is not necessary for Mr. Moore. Defence counsel submits that Mr.

Moore is at low risk to reoffend and has taken rehabilitative steps since the offence. Mr. Moore now has his alcohol use under control, has a good work history, and a good history of compliance with his release conditions. Further, Mr. Moore has good family support, a long-term and relatively stable romantic relationship, and positive personal traits. Additionally, Mr. Moore’s family commented that this offence is out of character for Mr. Moore, who is not one to get into trouble. Defence counsel further submits that actual jail is not going to help Mr.

Moore in terms of rehabilitation, and that all of these factors suggest that a sentence of less than two years, which could be served conditionally, would be appropriate for Mr. Moore.

[75] Defence counsel’s arguments ignore the objectives of denunciation and general deterrence, which have been reaffirmed aslegitimate sentencing objectives by numerous courts: see Arcand at para 277. It is useful to remember that the starting-point sentence ofthree years for a major sexual assault assumes a person with no criminal record and the good character of an ordinary average person: seeArcand at paras 132 – 133. Mr.

Moore is such a person. [76] I also note that a significant portion of the decision in Arcand deals with reconsideration of Alberta Court of Appeal cases thatupheld conditional sentences for offenders who committed major sexual assaults. The Court unequivocally found the reasoning in thosecases to be flawed as they failed to meet the overriding proportionality principle (see paras 232 – 251).

The Court pronounced this to bethe case even in light of the 2007 amendment to s 742.1 of the Criminal Code (An Act to Amend the Criminal Code (conditional sentenceof imprisonment), SC 2007, c 12), which removed all serious personal injury offences (including sexual assault) from the conditionalsentence regime (see para 248).

In other words, the Court found that even if a conditional sentence was statutorily available, it would notmeet the principle of proportionality for a major sexual assault. [77] In Lariviere, the offender committed a major sexual assault 40 years prior while he was under the control of alcohol. Theoffender had changed dramatically since the commission of the offence. At the time of sentencing, he had a good character, had beenemployed throughout his life, had quit drinking (which was a major contributor to the offence), led an exemplary life, and contributed tohis community.

The offender had made a dramatic and sustained effort at rehabilitation, had become a role model for his community,accepted full responsibility for his actions, expressed genuine remorse, and participated in a restorative justice process to gain insightsinto the root causes of his behaviour. [78] Many of those factors are absent in this case. Mr. Moore has not truly accepted responsibility for the offence. He does notrecall the incident due to his level of intoxication. While he appears to acknowledge the impact that the offence had on the victim, hedoes not appear to be remorseful. [79] Mr.

Moore has made some changes to his life since the commission of the offence. He no longer lives a “partying” lifestyleand keeps to himself. He has changed his social circle to include a small group of friends who do not influence him to drink or use drugsand with whom he can have meaningful conversations. He has cut down on his drinking. He has more or less been continually employedsince 2009 and believes in hard work. He has a meaningful relationship with his partner, and some of his siblings and their children.These are all positive steps that speak to Mr. Moore’s rehabilitative prospects. [80] Mr.

Moore and his sister are of the opinion that Mr. Moore does not require counseling of any sort. Mr. Moore and his sisterboth confirm that he would participate in counseling if that was directed but feel that there is no purpose in Mr. Moore attendingcounseling. [81] I have significant concerns about the fact that Mr.

Moore does not see any issue with his current and past alcoholconsumption, unaddressed grief regarding the loss of his father and presumably his sister, unaddressed feelings of abandonment by hismother, and the circumstances of the offence (intoxicated sex that involved the infliction of significant injuries to the victim). Both theGladue report and the PSR suggest that Mr. Moore has not dealt with these issues in any meaningful way. [82] Had Mr. Moore taken steps to address these issues prior to sentencing, those steps would have been significantly mitigating.But Mr.

Moore does not acknowledge any ongoing issues. Given the nature of the offence before the Court, I must consider whether Mr.Moore is a danger to the community while these underlying issues remain unaddressed. [83] Good character can be a mitigating factor on sentence. However, character traits displayed in public are of questionablerelevance to offences committed in secrecy.

Sexual offences are usually perpetrated in private, out of sight and knowledge of friends andassociates, are committed by people from all walks of life, out of the public eye, clandestinely and secretly, often to the surprise ofpeople who thought they knew the perpetrator best: see R v Hepburn, 2013 ABQB 520 at para 37; R v M(CF), 2006 NWTSC 59 atparas 138 – 129 [M(CF)]; Shrivastava at para 77.

As aptly described by the Court in Arcand at para 136: “[i]t is difficult to see the logicof assigning mitigation credit for apparent prior compliance with social norms in the face of a serious sexual assault.” Sexual assaults canand are perpetrated by offenders who come across as pro-social, involved in the community, and professionally successful, not just byoffenders who are antisocial, deviant, violent, or mentally ill: see M(CF) at para 138; see also Shrivastava at para 93. F. Parity: s 718.2(

b) of the Criminal Code [84] Similar offenders committing similar offences in similar circumstances should be treated in similar ways: Criminal Code s718.2(b). Therefore, in order to determine the appropriate range of sentence, I must look to the case law for comparator cases. [85] Sentencing ranges reflect the principles and objectives of sentencing, specifically, the goals of parity and proportionality.They are not simply the result of averaging over time, nor do they bind the court to any particular outcome.

The determination of a justand appropriate sentence is a highly individualized exercise beyond a simple mathematical calculation and “[i]n practice, parity givesmeaning to proportionality”: Friesen, 2020 SCC 9 at para 33. [86] In this case, the sentencing range is somewhat difficult to determine given the unique circumstances of the offence inquestion.

As such, the cases provided by counsel were of limited assistance. [87] Defence counsel provided the case of R v Urquhart, (1993) (NB KB), 351 APR 34 (NBQB) in which theoffender was convicted of assault causing bodily harm and sentenced to 90 days jail followed by probation. The offender bit the victimon her face, neck, shoulder, and upper arms while they were engaged in consensual sexual activity. This case is distinguishable for twomain reasons: the charge for which Mr.

Urquhart was convicted was assault causing bodily harm, not aggravated sexual assault, and thebody parts of the victim that were bitten did not involve her genitals or breasts. Additionally, sexual assault sentencing law has evolvedconsiderably since 1993. [88] Defence also provided the case of R v Deng, 2016 ABPC 204 in which the offender was convicted of assault causing bodily

harm for biting the victim’s face. The Court reviewed a number of cases that involve biting, none of which were in a sexual context, and none of which involved intimate body parts. [ 89 ] Crown counsel relies on the

summary of cases in R v Leblanc , 2021 ABQB 230 [ Leblanc ] which reviews sentencing cases for sexual assault causing bodily harm. In all of the cases, including the circumstances of Mr. Leblanc, the offender inflicted significant violence on the victims in order to engage in the sexual acts. [ 90 ] There are three cases referenced in Leblanc that involve biting: R v.

RLW , 2013 BCCA 50 [ RLW ] and R v Poucette , 2004 ABCA 9 [ Poucette ], and R v Blake , 2020 ONSC 5658 [ Blake ]. [ 91 ] In Poucette , the offender followed the intoxicated victim home, convinced her to leave the main road, struck her on the head, and sexually assaulted her while she was unconscious. When the victim regained consciousness and tried to fight the offender off, he bit her to overcome the resistance. The victim suffered vaginal bleeding, bruising, and psychological harm from the attack.

The offender’s sentence was reduced from 10 years to five. [ 92 ] In RLW , during the course of a violent sexual assault, the offender bit the victim’s breasts a number of times. These bites resulted in reddened areas around the victim’s nipples. The bites to the victim’s breasts were only one small selection of the numerous acts of violence committed by the offender against the victim.

The Court of Appeal upheld the five-year sentence imposed by the sentencing judge and found no error in the sentencing judge’s articulation of the appropriate range being four to six years. [ 93 ] In Blake , the victim was a sex worker. During the sexual assault that involved numerous acts of violence against the victim, the offender bit the victim on her torso, breast, arms, and finger.

The offender was sentenced to six years. [ 94 ] There are other cases from various jurisdictions in Canada that involving the offender biting the genitals of a victim, but the victims are either children or the offenders are youths. Those cases are not helpful in determining a fit and appropriate sentence for Mr. Moore. [ 95 ] A case which appears to be somewhat closer factually to the present case was located by the Court and provided to counsel for comment.

In R v Louie , 2015 BCCA 23 and 2015 BCCA 109 , the offender and the victim engaged in consensual sex after a night of partying that involved alcohol and cocaine. The victim asked the offender to perform cunnilingus on her. While doing so, the offender bit off a piece of the victim’s labia and clitoris. Further non-sexual violence against the victim followed. The offender was sentenced to four years for the aggravated sexual assault and one year consecutive for assault causing bodily harm. The offender appealed on other grounds that did not involve the quantum of sentence.

The cases do not provide much information as to Mr. Louie’s circumstances or reasons for sentence and are of limited assistance for that reason. [ 96 ] What I can determine from these cases is that the appropriate sentence for Mr. Moore should be less than the sentences received by the offenders in Poucette , RLW , and Blake , and similar to the sentence received by the offender in Louie . I agree with Crown counsel that if the starting point for a major sexual assault with no lasting injury is three years incarceration, a sentence below that range would not meet the principle of proportionality for this offence.

I find that the appropriate range of sentence for this offence is three to four years incarceration. VII. APPROPRIATE SENTENCE [ 97 ] The Crown’s position of four to four- and one-half years incarceration for Mr. Moore is too high. The level of violence used by Mr. Moore, while disturbing, does not warrant a sentence in that range. A sentence of four years incarceration might have been appropriate in this case if the offender had not suffered the same systemic and personal trauma as Mr. Moore. Mr.

Moore’s antecedents serve to reduce his moral blameworthiness, which would not be the case for someone without his Indigenous history. [ 98 ] I find that a penitentiary sentence is necessary in this case. Defence counsel’s proposal of a sentence of less than two years incarceration is unjustifiably low. A sentence in that range would not reflect the gravity of the offence, especially the extent of the injuries to the victim and the violation of her personal integrity. Further, Mr.

Moore’s personal antecedents are not such that a significant deviation from the range of sentences for a major sexual assault is warranted, particularly where there are so few other mitigating factors present. Given that finding, I do not need to consider the suitability of a conditional sentence for Mr. Moore. [ 99 ] Taking into account all of the aggravating and mitigating factors and considering all of the principles and objectives of sentencing, I find that a fit and appropriate sentence for Mr. Moore is a sentence of three years incarceration.

This properly reflects society’s denunciation of sexual offences, the gravity of the offence, and accounts for the mitigating factors in this case. Most significantly, it accounts for Mr. Moore’s reduced moral blameworthiness, and strong prospects for a future law-abiding life due to the support of his partner, friends, and family members. In addition, I impose the following ancillary orders: • The victim fine surcharge pursuant to s 737 of the Criminal Code is waived as a hardship. • A mandatory order for a sample of Mr. Moore’s DNA pursuant to s 487.051 of the Criminal Code is granted. Mr.

Moore will provide a sample of his DNA for inclusion into the National DNA Databank forthwith. • A mandatory weapons prohibition pursuant to s 109 of the Criminal Code is granted. That order will be in effect for 10 years for any firearm (other than prohibited or restricted firearms), crossbow, restricted weapons, ammunition, and explosive substances, and for life for any prohibited firearms, restricted firearms, prohibited weapons, and prohibited ammunition. • A mandatory order pursuant to s. 490.012 , 490.013(2) (

b) of the Criminal Code is granted. Mr. Moore must comply with the Sex Offender Information Registration Act for 20 years.

• An order of forfeiture and destruction of all items seized pursuant to s. 491.1 of the Criminal Code is granted for destruction. Heard on the 27 th day of September, 2022. Dated at the City of Wetaskiwin, Alberta this 6th day of December, 2022. Tamara L. Friesen J.C.K.B.A. Appearances: Drew Gillespie for the Crown Kenneth Sockett, KC for the Offender