R v Small Legs, 2023 ABCJ 236

In the Alberta Court of Justice Citation: R v Small Legs, 2023 ABCJ 236 Date: 20231106 Docket: 181498114P1 Registry: Lethbridge Between: His Majesty the King Crown - and - Judge Edwin Small Legs Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.5 . By Court Order:

(1) Information that could identify AH shall not be published, broadcast, or transmitted in any way.

(2) No person shall publish, broadcast, or transmit in any way the contents of the publication ban application or the evidence, information or submissions at the hearing of the application. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Reasons for Sentence of the Honourable Justice P.G. Pharo Introduction [ 1 ] This Court must decide on a fit and proportionate sentence for Mr. Small Legs, who has been convicted of sexual assault and unlawful confinement. In this case, it is clear that Mr.

Small Legs has mental health challenges, and also that Gladue factors apply. The Crown seeks a three-year jail sentence. The Defence seeks a Conditional Sentence Order (CSO) for two years, plus a probation order. History of this Case

[ 2 ] Mr. Small Legs was convicted of sexual assault and unlawful confinement after a trial on December 14, 2020. After a change in counsel, Mr. Small Legs made an application for a declaration that he should be found Not Criminally Responsible (NCR). That hearing commenced on February 6, 2022. The expert witness called at that time was Dr. Massey, a forensic neuropsychologist, who was of the opinion that Mr. Small Legs should be found NCR. The Crown did not agree. The Court then ordered an assessment by a forensic psychiatrist. The NCR hearing continued with the testimony of Dr.

Ajeh, a forensic psychiatrist on February 10, 2023. She was of the opinion that Mr. Small Legs was not NCR. This Court rendered its decision on the NCR issue on May 26, 2023, finding that Mr. Small Legs was not NCR. The matter was then set down for a sentencing hearing, which was held on August 4, 2023. Circumstances of the Case [ 3 ] The Complainant, AH, was an aboriginal girl about 16 years old at the time of this incident, which occurred in the early morning hours of September 3, 2018, at Mr. Small Legs’ home near Brocket, Alberta. [ 4 ] This incident started when Mr.

Small Legs, along with three of his friends, gathered at Mr. Small Legs’ home the day before. The evidence was clear that all the young men, except for one of them, were consuming alcohol, smoking marijuana and playing video games together. At one point, they got a text from AH who asked them to come pick her up from her friend’s house, whom she had been visiting. The four young men got in a car, and went and picked up AH, and came back to Mr. Small Legs’ home. All five of them were then sitting in the living room, listening to music and playing video games. [ 5 ] The evidence was that some time later, Mr.

Small Legs either physically guided or carried AH into his bedroom and the door was locked behind them. [ 6 ] The evidence of AH was that while they were sitting in the living room, listening to music and playing video games, she was feeling drunk and wanted to lay down, so Mr. Small Legs brought her to a bedroom. She said she was a seven or eight out of ten on the intoxication scale. She said that when they were in the bedroom Mr. Small Legs closed the door and started to kiss her the on lips and chest. She said she tried to get him to stop. She said that he then pushed her onto the bed and laid on top of her.

She said she tried to push him off, but she could not move. She said that Mr. Small Legs removed her shirt and started to take her pants off as well. She said she used her hands to try to stop him from removing her pants. She said she kept telling him to stop, and that she was on her period. She testified that he used his weight to pin her down while he took off her underwear and pants. She said that he then had sexual intercourse with her. She said she tried to push him off and kept saying, “No, can you please just stop”. She testified that he responded by saying it was “okay “and that she should be quiet.

She then testified that she then made her voice even louder. She said she heard someone knocking at the door. She said that Mr. Small Legs told that person to go away. She testified that Mr. Small Legs got up and put his pants on, and held the door closed with his arm after it was unlocked. She said that when Mr. Small Legs got off her, she pulled on her pants and grabbed her shirt. When the door opened, she ran out, and put her shirt back on. [ 7 ] The evidence of the three other young men as to what happened next was very similar.

They said that while sitting in the living room, they heard AH saying, “Stop”, and “No, no stop”. They discussed it and decided that they should intervene. They all went to the bedroom door, but found it was locked. They knocked on the door and told Mr. Small Legs to open up, but he did not. They got some tools to pick the lock. The door was eventually opened. AH ran out and appeared to be in distress. The evidence of these three young men was that both AH and Mr. Small Legs had been drinking, and they both seemed somewhat intoxicated. The evidence also showed that Mr.

Small Legs had consumed marijuana at the time of the incident. [ 8 ] In

summary, the complainant AH's evidence was not contradicted by any other evidence. In fact, AH's evidence was corroborated by the other Crown witnesses who all testified that they heard her cries of distress, and they came to her assistance. This Court found as a fact that Mr. Small Legs touched AH in a sexual manner without her consent. That touching included removing her clothing, kissing her, and penetrating her vagina with his penis. This Court also found, based on what AH was telling him and her actions in resisting him, that Mr.

Small Legs knew very well that at all stages of the physical interaction between them, she was not consenting to it. This Court found that the Crown had proven all the elements of sexual assault, and unlawful confinement, beyond a reasonable doubt. Background Circumstances of Mr. Small Legs [ 9 ] Mr. Small Legs was born and raised on the Piikani Nation Reserve near Brocket. He is a full treaty status member of the Piikani Nation. He is the youngest of four children of Edwin and Shelly Small Legs.

Because of a 14-year age difference, he never had a close relationship with his siblings. [ 10 ] The medical reports state that he suffered hypoxia, or lack of oxygen, at the time of his birth. He had a difficult birth; in that he was stuck in the birth canal for 10 to 15 minutes. Forceps had to be used, and he was initially not breathing for about one minute, and his first nine weeks were in and out of the hospital. He was considered premature and was placed in an incubator. On another occasion, he had no pulse and was airlifted to the hospital.

As a result of this hypoxia, the medical reports state that he suffers from cognitive impairment and developmental disabilities. The medical reports also state that he also has severe learning disabilities, which make him not suitable for academic upgrading or classroom-based learning. [ 11 ] Mr. Small Legs went to kindergarten and Grade 1 in Brocket, then went to school up to Grade 9 in Pincher Creek.

The reports state that he suffered with anxiety and learning problems throughout, and he stopped attending near the end of Grade 8. [ 12 ] After he dropped out of school, the reports state that he simply hung around his parents’ house and established a pattern of being up all night and sleeping all day. He does not have a driver’s licence and is unable to cook or do his laundry. He had a bank account but cannot manage money. He has never been employed, nor is it clear that he is employable. His mother reported that he drinks alcohol about three times a week and has been very drunk at times.

She reported that he suffered from anxiety, and paranoia, thinking that people are spying on him. His mother said he also smoked marijuana three times a day, which helps with his anxiety.

[13] Mr. Small Legs currently lives with his parents in a rural area of the reserve, which makes it difficult for him to accessservices for people with developmental disabilities. [14] Mr. Small Legs is a dependant adult, and his mother Shelley has been appointed his guardian and trustee. He is also on AISH,and according to the medical reports, needs the services of the Persons with Developmental Disabilities (PDD) program, but suchservices are not available in his rural area. [15] At the time of this offence, Mr. Small Legs was 19 years old, and was living at home with his parents. He had no criminalrecord.

His mental health challenges and the Gladue factors will be explored in more detail below. [16] This Court has had the benefit of a Presentence Report. Impact on the Victim and the Community [17] At the time of this offence, the victim AH was a 16-year-old aboriginal female. She did not file a Victim Impact Statement.Nonetheless the Supreme Court of Canada made it very clear that the impact of sexual offences on young people is both profound andpresumed: R v Friesen, 2020 SCC 9 (Friesen).

In Friesen, the Court stated that there is no way to fully understand the true extent of theimpact on child victims of sexual offences, but significant harm is presumed: Friesen at paras 76 to 84. [18] I also accept that the harm done reaches out far beyond the victim, in that it can have ripple effects on the child’s parents,caregivers and other family members. [19] Furthermore, I accept that even beyond the harm to families and caregivers, there is broader harm to the communities inwhich the children live and society as a whole.

Indeed, when children become victims of sexual violence, society as a whole isdiminished and degraded: see R v Hajar, 2016 ABCA 222. Position of the Crown [20] The Crown submits that the forced vaginal intercourse is a major sexual assault and is a very serious offence that calls foremphasis to be placed on the sentencing principles of denunciation and deterrence. The Crown argues that a number of aggravatingfactors apply, namely that the victim was a young aboriginal female, she was only 16 years old, and she was under the influence ofalcohol, all of which made her very vulnerable.

The Crown submits that she is presumed to have suffered from serious psychological andemotional harm, even if she does not realize it. [21] The Crown argues that Mr. Small Legs’ mental health issues did not play a

part in his offending behaviour, so therefore hisdegree of responsibility is very high. The Crown states that unless this Court finds that Mr. Small Legs mental health issues played a partin his offending behavior, a CSO is not an appropriate sentence. [22] The Crown therefore submits that a fit and proper sentence is three years in jail for the sexual assault, and 90 days jailconcurrent for the unlawful confinement. The Crown also seeks various ancillary orders. Position of the Defence [23] The Defence recognizes the gravity of the offences, but points to a number of mitigating factors.

At the time of the offence,Mr. Small Legs was only 19 years old, and had no criminal record. He is of aboriginal descent, lives on the Piikani Reserve, and thereare a number of Gladue factors that are applicable. The Defence also points to the expert evidence that Mr.

Small Legs has significantcognitive functional deficits, and mental health challenges. [24] The Defence acknowledges the role that denunciation and deterrence must play for a sentence to be fit and proportionate inthis case but argues that this Court must not lose sight of the restorative principles of sentencing in the unique circumstances of this case.The Defence argues this Court must consider the substantial impact a jail sentence will have on this particular offender. [25] The Defence therefore submits that a proportionate sentence for Mr.

Small Legs is a two-year Conditional Sentence Order(CSO), followed by a period of probation for two or three years. Applicable Principles and Purposes of Sentencing [26] It is fundamental that sentencing must generally proceed on an individual, case-by-case basis, i.e., for this offence, committedby this offender, harming this victim, in this community: R v Gladue, (SCC), [1999] 1 SCR 688 (Gladue).

However,there are common sentencing principles and purposes that are applicable to each case. [27] The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degreeof responsibility of the offender- s718.1, Criminal Code. In R v Lacasse, 2015 SCC 64, Chief Justice Wagner of the Supreme Court ofCanada stated that proportionality is the cardinal principle that must guide courts in considering the fitness of a sentence imposed on anoffender.

The more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentencewill be. In other words, the severity of a sentence depends not only on the seriousness of the crime’s consequences, but also on the moralblameworthiness of the offender. Determining a proportionate sentence is a delicate task. It requires judges to consider and balance amultiplicity of factors and it remains a discretionary exercise. The goal in every case is a fair, fit and principled sanction. Proportionality

is the organizing principle in reaching this goal, and parity and individualization are secondary principles. Individualization is central to the proportionality assessment. Each offence is committed in unique circumstances by an offender with a unique profile. Sentences that are too lenient and sentences that are too harsh can undermine public confidence in the administration of justice. [ 28 ] The sentencing judge must also consider the following: any aggravating and mitigating factors, including those listed in s718.2(a)(

i) to (iv); the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (s718.2(b)); the principle that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh (s718.2(c)); and the principle that courts should exercise restraint in imposing imprisonment (ss718.2(

d) and (e)). [ 29 ] The fundamental purposes of sentencing are set out in s718, namely, 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; (

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 and to the community. [ 30 ] Other applicable principles to this case are set out in s718.2, which are: (

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 should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. Principles of Sentencing Applicable to Indigenous People – Gladue Factors [ 31 ] The Supreme Court of Canada has identified the principles governing the sentencing of Indigenous people in several cases. In the Gladue case, the Supreme Court held that in sentencing an aboriginal person, the Court must consider:

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

part in bringing the particular aboriginal offender before the Courts; and

(2) The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her aboriginal heritage or connection. [ 32 ] The Supreme Court then went on to state that s718.2(

e) is remedial in nature and not simply a codification of existing jurisprudence. Its purpose is to ameliorate the serious problem of overrepresentation of aboriginal people in prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing. There is a judicial duty to give this remedial purpose real force: Gladue at para 93 . Judges may take judicial notice of the broad systemic and background factors affecting aboriginal people, and of the priority given in aboriginal cultures to a restorative approach to sentencing.

Judges require additional case-specific information from counsel and other reports. [ 33 ] In R v Ipeelee, 2012 SCC 13 ( Ipeelee ) the Supreme Court affirmed the two-part test and principles set out in Gladue . It made it clear that Gladue principles are to be applied in every case involving an Aboriginal offender. The Court stated that an offender need not establish a causal link between background factors and the commission of the current offence before being entitled to have those matters considered by the sentencing judge: Gladue at paras 81-83 .

The Court also stated that Gladue principles apply to serious offences, and that there is a statutory duty of sentencing judges pursuant to s718.2(

e) to consider the unique circumstances of Aboriginal offenders. The failure to do so would result in a sentence that is not fit and not consistent with the principle of proportionality: Gladue at para 87 . [ 34 ] The Alberta Court of Appeal has also considered these issues and has confirmed and explained the Supreme Court’s approach. In the case of R v Laboucane , 2016 ABCA 176 ( Laboucane) the Court stated that the first line of inquiry is person specific.

It looks at how the aboriginal background and circumstances of the offender may touch upon the gravity of the offence and the circumstances of its commission as well as the degree of responsibility of the offender, and the sentencing options available and effective in the case. The second line of inquiry relates to the community in general. It considers the opportunities and benefits community participation in the administration of the sentence and the need to invigorate both community interest and community confidence in the sentencing process and the prospects of the appellant.

The Court of Appeal went on to say that systemic and background factors are not an excuse or justification for the criminal conduct but provide the necessary context to enable a judge to determine an appropriate sentence.

Unless the unique circumstances of the particular offender bear on his or her culpability for the offence or indicate which sentencing objectives should be actualized, they will not influence the ultimate sentence: Laboucane at para 83 . [ 35 ] The Alberta Court of Appeal gave further guidance in the case of R v Okimaw , 2016 ABCA 246 ( Okimaw ), providing a framework to sentencing judges applying Gladue principles. The Court held that merely acknowledging the existence of systemic factors

is insufficient. Sentencing judges have a duty to consider the unique systemic and background factors that played a role in bringing the particular Aboriginal offender before the Courts: see para 64. Even in violent cases, Gladue factors and s718.2(

e) must be considered: see para 69. The Court held that the Gladue factors bore on Mr. Okimaw’s culpability, and then considered how those factors informed the Court about sentencing factors that could and should be actualized. The Court held that a balancing of the sentencing objectives justified a lesser period of incarceration in the circumstances. [ 36 ] In the more recent case of R v Rabbit , 2023 ABCA 170 ( Rabbit ) an aboriginal man who was under the influence of drugs attacked a woman who was picking up her children from day care. The victim tried to get away, but Mr.

Rabbit grabbed her head, slammed her to the ground, got on top of her and began strangling her with both hands. He continued strangling and punching her for over four minutes. Two of the victim's three children, ages six and eight, observed the assault through the glass door of the daycare and cried hysterically. Mr. Rabbit had significant Gladue factors, plead guilty and expressed remorse.

The sentencing judge acknowledged the appellant's Gladue factors were significant but held at paragraph 17 that "where the offences are violent and serious, the principal [sic] of restraint and an acknowledgement of the lessened moral blameworthiness of an individual with significant Gladue factors cannot justify a sentence that ignores the seriousness of the offences and the harm done to the victim". The trial judge sentenced him to nine years in jail.

The Alberta Court of Appeal disagreed with that approach, and stated: 40 We conclude the sentencing judge committed errors that impacted the sentence, and therefore the appeal must be allowed.

Our conclusion rests on two main foundations: 1) Sentencing must be proportionate not only to the gravity of the offence, but also to the degree of responsibility of the offender. 2) In cases involving Indigenous offenders, particular attention must be paid to assessing their degree of responsibility equitably, with an informed understanding of their circumstances. 41 Our first foundational point is the fundamental principle of sentencing, stated at s718.1 of the Criminal Code . 42 Vats of judicial ink have been spilled over the second foundational point.

Still, Indigenous people continue to be vastly overrepresented in the criminal justice system, and this overrepresentation continues to rise: R v Hills , 2023 SCC 2 at para 87 ; R v Natomagan, 2022 ABCA 48 at paras 7 , 8. 43 With or without a Gladue report, s 718.2(

e) of the Criminal Code requires judges to do the work of appreciating the degree of responsibility of Indigenous offenders. The Gladue report filed in this case is tragically typical. It could have been drawn from past jurisprudence, studies and reports, beginning with the appellant's parents' residential school experience.

The appellant endured abuse and addictions in his family home, was taken out of his community and placed in group care, and struggled to readjust to his home community, poverty, low education levels, disconnection from family and culture, unstable relationships, and depression. [ 37 ] The Alberta Court of Appeal then went on to say: 47 To apply s 718.2(e), sentencing judges must try to understand what influenced an Indigenous offender to act in the way he did.

It also includes assessing whether one's instinctive reaction to that conduct would be the same, given the circumstances, if the offender were of a different race, culture, or background. This analysis involves empathy, imagination, and introspection, among other things.

It imposes on the sentencing judge the difficult task of imagining a different life, and honestly asking how a person - not the world's strongest or most resilient person - might be affected by such an experience. 48 The sentencing judge erred by not engaging in this analysis, instead relying on the concept of a discount that is not available where a serious violent offence has been committed. Both facets of this misconception have been repeatedly rejected: … 73 In assessing the appellant's degree of responsibility, we take into account his guilty plea, expression of remorse, and meaningful Gladue experience.

Significantly, the evidence credibly suggests the appellant responded to loss by increasing his drug use and was under the influence of drug-induced hallucinations when he attacked the victim. His use of drugs at this time, while unlawful and dangerous, is to some degree explained by his past environment and recent events in his life. He did have a history of prior drug use and was described as "angry and violent" when using, but he had never before experienced hallucinations similar to those that precipitated the subject attack.

These factors diminish his moral blameworthiness. [ 38 ] In the end, the Court of Appeal reduced Mr. Rabbit’s sentence from nine years to four years, because of all the mitigating factors, which included significant Gladue factors, which had not been properly taken into account by the sentencing judge. There is some similarity to the case at bar, in that the Court of Appeal found that Mr. Rabbit had responded to his losses by increasing his drug use and was under the influence of drugs when he attacked the victim. The Court of Appeal stated that those factors diminished his moral blameworthiness.

What are the Applicable Gladue Factors Here? [ 39 ] Although a Gladue Report was ordered, such a report was not provided. Fortunately, Defence counsel has provided the required information in his submissions, which is very helpful. [ 40 ] The Residential School - Mr. Small Legs is a member of the Piikani Nation and was born and raised on the Piikani Reserve. His family have always resided on a rural part of the reserve. There was a residential school on the Piikani Reserve from 1887 to 1961 and was operated by the Roman Catholic Church.

The health conditions were very poor at the school, and it is reported that many students who were forced to attend the school died. The impacts of colonialism and the residential school system are prevalent on the reserve. [ 41 ] Mr. Small Legs’ Grandparents - Mr. Small Legs’ grandparents on both sides were forced to attend the residential school.

While in attendance they suffered physical abuse at the hands of the operators and were disconnected from their culture and language. Two members of Mr. Small Legs’ family died while attending. His paternal grandmother, Martha Scott attended with her two older brothers and an older sister. She was informed one day that her two older brothers and sister had died, and had been buried, but she was provided no further information. [ 42 ] Martha Scott left the school having lost her siblings.

Her mother had died giving birth to her two younger brothers, and her father had married another woman and started a new family. Martha was then cut off from her father and his new family. She eventually met and married Mr. Small Legs’ grandfather, Fred Small Legs, and they had Mr. Small Legs’ father, Edwin Small Legs. [ 43 ] Edwin Small Legs -Mr. Small Legs’ Father – Edwin was seven years old when his father passed away. He was raised by Martha as a single mother. Edwin had 12 brothers and sisters. He experienced a very traumatic childhood. Edwin was also forced to attend day school on the Piikani reservation.

While attending this school he was the victim of physical and sexual abuse. This had a considerable impact on him, and for a long period of time he struggled with an alcohol addiction. Edwin was able to overcome his addiction issues and was able to quit drinking when he was 25 or 26 years old and did not have issues with addiction throughout the course of Mr. Small Legs’ life. However, as Edwin lost his father at a young age and was raised without a proper and supportive paternal figure, he struggled with maintaining any kind of meaningful connection with Mr. Small Legs.

Currently, Edwin suffers from dementia, believed to be the product of some head injuries he sustained while attending day school on the reserve. This diagnosis and the resultant complications have caused further disconnection between Mr. Small Legs and Edwin. There are two homes on their property, and at this point Edwin has deteriorated to the point that he lives in the house that is separate from the home where Shelly and Mr. Small Legs live, because with Mr. Small Legs’ own cognitive deficits, they could not live together in the same dwelling. Mr.

Small Legs does not have the emotional management skills and cognitive ability to properly understand and appreciate his father’s cognitive decline, and the cause of that decline, which has led to serious frustrations on his part. [ 44 ] Shelly Small Legs – Mr. Small Legs’ mother Shelly was forced to attend the same day school on the reserve as Edwin, and she similarly suffered physical and sexual abuse. Additionally, when at home throughout her youth, she witnessed significant domestic violence, mainly because of her father, Jack Crowshoe’s, alcohol issues.

Shelly has been able to maintain and foster a strong connection to her aboriginal heritage because her grandparents passed it along to her. Mr. Small Legs had a strong relationship with his grandfather, Jack, throughout his childhood, because Jack stopped drinking before Mr. Small Legs was born. They spent almost every day together. Jack died when Mr. Small Legs was 14, and that had a significant and traumatic impact on Mr. Small Legs. At that point, Edwin’s cognitive functioning had begun to decline. Therefore, the two primary paternal role models in Mr.

Small Legs’ life disappeared at a crucial point in his development. Mr. Small Legs has a very close personal relationship with his mother. She has been his strongest support and important connection in the community. She does everything in her power to care for Mr. Small Legs. How Did These Gladue Factors Impact Mr. Small Legs? [ 45 ] As noted, both Mr. Small Legs’ parents Shelly and Edwin went to day school and suffered physical and sexual abuse. Edwin suffered a brain injury which is thought to have led to his cognitive decline. Edwin developed addiction issues.

He lost his father at a young age and was raised without a proper and supportive paternal figure. As a result, he always struggled with maintaining a meaningful connection with Mr. Small Legs. When Mr. Small Legs was 14, he lost Edwin to cognitive impairment, and his grandfather Jack died. He was profoundly affected by the loss of both of these paternal figures. It was then that Mr. Small Legs started to experiment with drugs. [ 46 ] Although Mr.

Small Legs was raised in a home with significant familial support, especially with the care and support of his mother Shelly, and a connection to his Indigenous heritage, he still was exposed to domestic violence. He cannot remember the domestic violence because he was too young. Mr. Small Legs witnessed domestic violence by his father against his mother on at least one occasion.

This domestic violence stemmed from mental health issues that Edwin was experiencing at the time, as he was navigating the grief and trauma related to his experiences at the day school. [ 47 ] Edwin’s difficulties arising out of his attendance at day school meant that he never had a close connection with Mr. Small Legs. This has caused fragmentation of the family, in that Edwin now lives on a different home on the same property. Mr. Small Legs lost his grandfather Jack when he died, and Edwin to a cognitive deficit, at around the same time. This was when Mr.

Small Legs was around 14 and approaching a developmental milestone in his life. Because of the loss of guidance and direction from his father and grandfather, Mr. Small Legs began to associate with a negative peer group and experiment with illicit drugs. Mr. Small Legs was frequently exposed to drugs and substance abuse outside of his home on the reserve due to the prevalence of the issues on the Piikani reserve. It is common ground for both the mental health experts called in this case that Mr. Small Legs developed a severe substance abuse problem. On the day of this offence, Mr.

Small Legs was drinking and using illicit drugs. [ 48 ] Because of his significant deficits, Mr. Small Legs has not been able to secure or maintain employment throughout his life. His mother has been appointed as his trustee and guardian, and he is on AISH. [ 49 ] In

summary, it is clear that Gladue factors apply in this case. Mr. Small Legs’ grandparents went to residential school, and his parents went to day school. They suffered physical and sexual abuse. During his childhood, his parents were present in the home, and were supportive. It appears that his father Edwin’s dementia may have resulted from his experiences at the school. Mr. Small Legs grew up in an environment, on the reserve, where there were few employment opportunities for young people, few supports for his mental health issues, and a prevalence of alcohol and drug abuse in the community.

He has also suffered from poverty, lack of educational opportunities and fragmentation of his family. The Gladue Analysis - How Significant are the Gladue Factors in this Case?

[ 50 ] This Court must first look at the unique systemic or background factors which may have played a

part in bringing this particular aboriginal offender before the courts. It seems to me that this must be interpreted through the lens of what is set out in para 47 of the Rabbit case. That is, this Court must grapple with the difficult task of imagining a different life for Mr. Small Legs, by honestly asking how a person - not the world's strongest or most resilient person - might be affected by such an experience. In doing so, I note that in the Rabbit case, the following Gladue factors were in play for Mr.

Rabbit: he endured abuse and addictions in his family home, was taken out of his community and placed in group care, and struggled to readjust to his home community, poverty, low education levels, disconnection from family and culture, unstable relationships, and depression. Only some of these Gladue factors apply to Mr. Small Legs. Mr. Rabbit also entered a guilty plea and expressed remorse, which are very significant mitigating factors, which will usually cause a substantial reduction in a sentence, which also do not exist here. [ 51 ] In this case, the evidence was that Mr.

Small Legs had been consuming drugs and alcohol just before the sexual assault on AH. In most sentencing cases, voluntary intoxication by the accused will not be considered to be a mitigating factor. However, in the Rabbit case above, where Mr. Rabbit assaulted the victim while under the influence of drugs, the Alberta Court of Appeal stated as follows at para 73: ...Significantly, the evidence credibly suggests the appellant responded to loss by increasing his drug use and was under the influence of drug-induced hallucinations when he attacked the victim.

His use of drugs at this time, while unlawful and dangerous, is to some degree explained by his past environment and recent events in his life. He did have a history of prior drug use and was described as "angry and violent" when using, but he had never before experienced hallucinations similar to those that precipitated the subject attack. These factors diminish his moral blameworthiness. [ 52 ] In the end, the courts have often said that sentencing is an art.

It seems to me, that every case is different, and every case where Gladue factors exist has them in different situations and contexts, and therefore each case must be examined and decided on its own facts. In this case, I accept that the Gladue factors noted above contributed to Mr. Small Legs’s substance abuse problems, which in turn likely were a contributing factor by impairing his judgment and leading to the sexual assault and unlawful confinement. As I understand the Rabbit case, this Court must then imagine a different life for Mr. Small Legs where he did not have to deal with these Gladue factors.

It is possible to imagine that if Mr. Small Legs had not lost his paternal influences and did not live on the reserve at age 14, he might not have fallen into substance abuse. On the other hand, Mr. Small Legs did grow up in a home with two supportive and loving parents, who provided for him, who did not abuse substances, and loved and cared for him. He did not have to struggle with as many serious Gladue factors that Mr. Rabbit did. However, I find that substantial Gladue factors do apply here and did contribute to bringing Mr.

Small Legs before the courts. [ 53 ] The second part of the Gladue test is to consider the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his aboriginal heritage or connection. The two options put forward by counsel are incarceration by the Crown, and a restorative sentence of a Conditional Sentence Order, or house arrest by the Defence. I will consider these options in greater detail below. Mental Health Status – Dr. Massey’s Assessments [ 54 ] Dr. Massey is a very experienced and well-regarded neuropsychologist. He was retained by Mr.

Small Legs’ counsel to do a neuropsychological assessment of Mr. Small Legs shortly after the incident. He prepared a report dated June 17, 2019. He administered a number of psychometric tests and also interviewed Mr. Small Legs. [ 55 ] June 2019 Report - Dr. Massey stated that he was advised that Mr. Small Legs had a difficult birth, in that he got stuck in the birth canal for 10 to 15 minutes, and forceps had to be used to be used. He was initially not breathing for about one minute, and for the first 9 weeks of his life he was in and out of hospital.

He had difficulty breathing at home, and on one occasion he had no pulse and was airlifted to hospital. It was reported that Mr. Small Legs suffered from some oxygen deprivation from this. Dr. Massey stated that his testing suggested substantial brain impairment due to early trauma to the developing brain. It was Dr. Massey’s opinion that Mr. Small Legs likely suffered from a childhood/developmental brain injury due to hypoxia. Dr. Massey said the test results showed that Mr.

Small Legs’ cognitive abilities were in the deficient to borderline range compared to others his age (2 nd percentile; mid average range is 16-84). His verbal and nonverbal abilities were in the borderline range and his performance was between the age 8 to 11 range developmentally. Dr. Massey said the results clearly showed that he is a developmentally disabled adult requiring full supports such as a guardian and trustee. Dr.

Massey stated on page 9: “His executive skills are the most deficient, indicating that he would be prone to poor judgment and reasoning skills, poor decision making, impulsive behaviour, particularly if he is impaired by drugs or alcohol.” Dr. Massey went on to say that Mr. Small Legs has severe learning disabilities with reading comprehension at the Grade 9 level, word reading at the Grade 8 level, spelling at the Grade 5 level, and mathematics at the Grade 2 level. He is well within the functionally illiterate range. Dr. Massey went on to say that Mr.

Small Legs was demonstrating significant deficits in his neurocognitive abilities and indicators of global brain dysfunction, likely due to some type of early brain trauma. His cognitive standard score was below 70, so would qualify for services from the Persons with Developmental Disabilities if he moved off the reserve. Dr. Massey also said he should apply to AISH, as he is competitively unemployable because of severe and permanent disabilities. Dr. Massey stated that Mr. Small Legs is totally dependant on his mother and cannot live independently.

He would easily taken advantage of by others, as was noted by his history. Dr. Massey diagnosed Mr. Small Legs with an underlying Mood Disorder, leading to depression, as well as a Generalized Anxiety Disorder with panic attacks. He has paranoid thoughts but is not psychotic. Dr. Massey said he has Organic Brain Syndrome, which is a combination of neurocognitive impairment and neuropsychiatric disturbance, largely due to his inability to understand consequences, his inability to use proper judgement and reasoning for his age, and the fact that he can be quite gullible. Dr.

Massey also said that he presented with a Substance Use Disorder, as he was still using alcohol and marijuana, which impaired his ability even further. Dr. Massey stated that he felt that Mr. Small Legs has substantial impairment, and his prognosis is very guarded unless he can access community supports. Dr. Massey stated that if Mr. Small Legs’ mother is not in the picture, he would certainly decompensate, which means he will lose the ability to maintain normal or appropriate defences, which may result in depression, anxiety or delusions. [ 56 ] May 2021 Report – After Mr.

Small Legs was convicted at trial, he changed legal counsel, and his new legal counsel made

an application for a finding that Mr. Small Legs was Not Criminally Responsible (NCR). To that end, he requested that Dr. Massey do a further neuropsychological assessment. This was done and another neuropsychological assessment report was done. Many of the same psychometric tests were repeated by Dr. Massey. The results were mainly the same. However, Dr. Massey now felt that there was a deterioration of Mr. Small Legs’ memory. Dr. Massey found that his overall cognitive abilities were in the mentally deficient to borderline range compared to others (2 nd percentile), generally consistent with the 2019 Report.

His thinking abilities were still between the ages of 8 to 10, developmentally. Dr. Massey found him to be in the mild cognitive impairment range, as a result of the presence of Organic Brain Syndrome due to the hypoxia he suffered at birth. Dr. Massey stated that Mr. Small Legs continued to demonstrate significant learning disabilities, which meant he would not be able to do academic upgrading or classroom-based training programs. Dr. Massey stated that Mr. Small Legs continued to present with symptoms of an underlying Mood Disorder, and a Generalized Anxiety Disorder causing panic attacks. Dr.

Massey also wrote that Mr. Small Legs was showing more signs of paranoid thoughts, which led to some very odd and unusual behavior as well as some highly impulsive behaviour with poor judgment and reasoning shown. Dr. Massey stated that Mr. Small Legs was lacking in memory ability and basic thinking skills and is not aware of how his actions may impact others. Although Dr. Massey said Mr. Small Legs was not a dangerous individual, because of the Organic Brain Syndrome, he can be impulsive and have angry outbursts. Dr. Massey reported that Mr. Small Legs continued to be taken advantage of others. He said that Mr.

Small Legs still presented with symptoms of Substance Use Disorder. Dr. Massey reported that Mr. Small Legs had seen a psychiatrist who had prescribed some medications, but he recommended a long-term psychiatric placement. Dr. Massey recommended NCR status for Mr. Small Legs with sentencing appropriate to his needs. [ 57 ] Dr. Massey’s Court Testimony – Dr. Massey testified at the NCR hearing on February 10, 2022. In his testimony, he explained the impact on Mr. Small Legs of the Organic Brain Syndrome. Dr.

Massey testified that the frontal lobes of the brain, which are the judgment and reasoning centres are not properly developed, so they do not work properly. Dr. Massey said that in Mr. Small Legs case without the upper parts of the brain functioning properly, Mr. Small Legs had to rely on the lower parts of the brain, which he called the reptilian brain, which is instinct based. Dr. Massey said that for someone like Mr. Small Legs his instinctual response is not modulated, because the higher-level frontal lobes of the brain do not work properly. Dr.

Massey gave the example of a car and said that the high levels of the brain are the brakes and the steering wheel. The gas pedal would be the impulse, and where there is no higher-level brain function, it is like a car with a gas pedal, but no steering wheel or brakes. Dr. Massey said that for a car with only a gas pedal, but no brakes or steering wheel, there will be a crash, which is what happened here. Dr. Massey testified that Mr. Small Legs’ development was arrested at the level of an 8 to 10-year-old. He said that Mr. Small Legs was like an 8 to 10-year-old in a 19-year old’s body. Dr. Massey said that Mr.

Small Legs would then operate using the lower brain system, that does not do judgment and reasoning. Without the rest of the brain that does judgment and reasoning, because of the impairment, he cannot put on the brakes or steer around obstacles, so he will hit them head on. With respect to social skills, Dr. Massey said that Mr. Small Legs’ ability to interpret social skills and cues with people his own age because of this impairment would be minimal. If he happened to be intoxicated it would be worse, because more of his brain would be impaired artificially . Dr. Massey said that if Mr.

Small Legs found himself intoxicated and alone in a room with a female, he would have his instinctual response ramped up, with less of his brain working properly, so he may be triggered towards sexual activity. Dr. Massey testified that in that situation, Mr. Small Legs would be getting a storm of electrical chemical activities coming from his lower brain which were causing him to act with no repression by the judgement centres which were not working. Because of that, Dr. Massey said Mr.

Small Legs would be unable to understand the cues given by AH, the dynamics of the situation, or appreciate the issue of consent. Dr. Massey testified that this situation arose because of the Organic Brain Syndrome, which was enhanced by the alcohol and drug use. Mental Health Status – Dr. Ajeh’s Assessment [ 58 ] Dr. Ajeh is a forensic psychiatrist who is employed at the Forensic Assessment Outpatient Services (FAOS) clinic in Calgary. At the Court’s direction, Mr. Small Legs saw her on March 16, 2022, and then again on April 26, 2022, for approximately 2 hours on each occasion.

The purpose of the assessment was to determine criminal responsibility. However, since Dr. Massey had given an opinion on fitness to stand trial, Dr. Ajeh also addressed that issue in her report. [ 59 ] July 2022 Report – Dr. Ajeh generated a report dated July 11, 2022, which summarizes her opinion. She indicates she reviewed the court transcripts and the Court judgment. She reviewed the disclosure package, and the witness statements. She reviewed the medical records for Mr. Small Legs. Dr. Ajeh also reviewed Dr. Massey’s reports and the court transcripts of his testimony. Mr.

Small Legs saw a psychologist at FAOS, who did some psychometric testing. The results of the testing were similar to the results of the previous testing by Dr. Massey. Dr. Ajeh stated that she met Mr. Small Legs in person for the first clinical assessment. She took a history from him, and his mother Shelly Small Legs also assisted with giving information about his background. His mother was there during most of time during the interviews. When the question of the index offence was raised, Dr. Ajeh said that Mr. Small Legs became overwhelmed with emotion and became extremely defensive. She said that Mr.

Small Legs then became significantly angry and aroused as well as verbally aggressive and refused to answer further questions. Dr. Ajeh tried to deescalate him, to no avail. The interview was terminated. However, Mr. Small Legs did return for his second interview on April 26, 2022. This second interview was completed, and the report was generated. During these interviews, Dr. Ajeh explained the purpose of the of the NCR assessment to Mr. Small Legs. She also discussed Mr. Small Legs’ version of what happened during the incident. Her opinion was based on the interviews she had with Mr.

Small Legs as well as the testing. In her report, Dr. Ajeh supported a diagnosis of Severe Alcohol and Cannabis Use Disorder and Intellectual Disability. She noted that the psychological testing done at FAOS was similar to Dr. Massey’s assessments. Dr. Ajeh did not agree with Dr. Massey’s diagnosis of ADHD and stated that a review of the medical records and her assessment also did not support a diagnosis of a mood disorder. Dr. Ajeh disagreed with Dr. Massey as to whether Mr. Small Legs had features of dementia. She also noted that whether Mr.

Small Legs’ impulse control, judgment and reasoning skills had gotten worse between Dr. Massey’s two reports did not necessarily speak to the issue of criminal responsibility at the time of the offence. Dr. Ajeh noted that the term “Organic Brain Syndrome” that Dr. Massey had used is an outdated term in psychiatry, that has been replaced with “Neurocognitive Disorders”. Dr. Ajeh stated in the report that in her opinion from a medical point of view that Mr. Small Legs was not eligible for an NCR defence. Dr. Ajeh reported that Mr.

Small Legs explained that he wanted to make out with AH because he was attracted to her. Dr. Ajeh reported that Mr. Small Legs said he knew that taking her to his bedroom and taking off her clothes would allow him to have sex with her. She wrote that therefore it was her opinion that despite his intellectual disability, Mr. Small Legs appreciated the nature and the quality of the act.

[ 60 ] Dr. Ajeh ’ s Court Testimony – Dr. Ajeh testified at the NCR hearing on February 6, 2023. She testified that she was of the opinion that Mr. Small Legs had an intellectual disability because there was evidence that he had difficulties when he was born, and there was a possibility that he had some hypoxia, which is an oxygen shortage. Dr. Ajeh testified that although it appeared that he required additional educational support in school, there was no report of any serious behavioral difficulties, such as suspensions or expulsions, or antisocial behaviour.

She said he also had a history of anxiety and anger management and significant alcohol use. She testified that in all the documents she read, there was no indication that he was sexually disinhibited or that he behaved in that way before this offence. Therefore, Dr. Ajeh was of the view that sexual disinhibition was highly unlikely to be a feature of Mr. Small Legs’ illness. She said it was more likely to be a result of some motivation or intoxication with a substance. With respect to the characterization of Mr. Small Legs as someone with no brakes and steering, Dr. Ajeh did not agree. She said Mr.

Small Legs’ presentation before the offence did not support that because he had no criminal history, and there was nothing in his school records of any assaults. Dr. Ajeh again raised the question of whether he would have acted that way if he had not consumed a significant amount of alcohol. Dr. Ajeh testified that based on her conversations with Mr. Small Legs she was of the opinion that Mr. Small Legs understood that AH needed to agree to any sexual activity, and that the standards of society were that it should be consensual.

She also noted that the incident did not occur in the living room with the others present, and the fact that they went into the bedroom, and he refused to open the door when the others knocked indicated an awareness of wrongfulness. How has Mr. Small Legs’ Mental Health Issues Contributed to these Offences? [ 61 ] This Court ruled that Mr. Small Legs was not eligible for an NCR defence: see R v Small Legs , 2023 ABCJ 118 . As noted above, the Court had the benefit of two experts, the neuropsychologist Dr. Massey, and the forensic psychiatrist, Dr. Ajeh.

These two experts come from different disciplines and backgrounds, had different approaches, and as noted they came to different conclusions on some issues. However, it is clear that they also agreed on a number of findings, with respect to the mental status of Mr. Small Legs, at the time of these offences. After reviewing their reports, and testimony, I make the following findings: 1. The experts both agreed that it appeared that Mr. Small Legs suffered from an intellectual disability, caused by hypoxia, which was a deprivation of oxygen at the time of his birth. 2. Mr. Small Legs is developmentally disabled.

His executive functioning skills are such that he operates at the developmental age of an 8 to 11-year-old. 3. Mr. Small Legs is incapable of living independently on his own, is gullible and is easily taken advantage of by others. He has a guardian and trustee and is on AISH. He requires full supports to function day to day. This support is currently provided by his mother. 4. Dr. Massey’s opinion was that the hypoxia had damaged Mr. Small Legs’ frontal temporal lobes, which area is important for executive functioning, like judgment and reasoning. Dr. Massey was of the view that this caused Mr.

Small Legs difficulty in the area of impulse control, in that his lower brain instinctual thoughts would not be able to be properly modulated by the upper brain frontal temporal lobes, especially when coupled with the consumption of alcohol. Dr. Ajeh’s opinion, based on her clinical assessment was that in this case, Mr. Small Legs could appreciate the nature of his actions, and that it was wrong. She was also of the view that the consumption of alcohol and drugs may well have played a role in this offence. However, she did not rule out that Mr. Small Legs’ impulse control was impaired to some degree.

Based on this evidence I find that Mr. Small Legs has impaired executive functioning, which affects his judgment, reasoning and impulse control. 5. Because Mr. Small Legs was at the developmental age of 8 to 11, with respect to social skills, Dr. Massey said that Mr. Small Legs’ ability to interpret social skills and cues with people his own age would be minimal. If he happened to be intoxicated, it would be worse. I accept this evidence.

It seems to me that in the context of this incident, given his intoxication, in his interaction with AH, he would have had even more difficulty with normal social cues. [ 62 ] The Alberta Court of Appeal has stated that mental disorders, can significantly mitigate a sentence, even if the evidence does not disclose that the mental illness was the direct cause of the offence: R v Resler, 2011 ABCA 167 . It is sufficient that the mental illness contributed to the commission of the offence: R v Belcourt , 2010 ABCA 319 ( Belcourt) . In

summary on this issue, and with the greatest respect to the position of the Crown, based on the evidence, I find that Mr. Small Legs’ brain impairment caused him difficulty in the areas of judgment and impulse control, and

interpretation of social skills and cues, which when overlaid with alcohol and drug consumption, contributed to some degree to the commission of these offences. Principles of Sentencing that Relate to Offenders with Mental Health Issues [ 63 ] In the Alberta Court of Appeal case of Belcourt , the Court stated as follows at para 8: The effect of a mental disorder on sentencing is helpfully summarized in C.C.

Ruby, Sentencing (6th ed.) (Markham: Butterworths, 2004) at paras. 5.246 and 5.256: It is, therefore, clear that a sentence can be reduced on psychiatric grounds in two instances: (1) when the mental illness contributed to or caused the commission of the offence; or (2) when the effect of imprisonment or any other penalty would be disproportionately severe because of the offender's mental illness. ... General deterrence should be given very little, if any, weight in a case where an offender is suffering from a mental disorder because

such an offender is not an appropriate medium for making an example to others. [64] In the Belcourt case, the accused suffered from delusional ideation, which contributed to her assaulting her husband.

TheAlberta Court of Appeal found that the trial judge in that case did not give adequate consideration to a diminished moral blameworthinesswhich appeared to have been the source of the assault. [65] In the more recent Alberta Court of Appeal case of R v Shevchenko, 2018 ABCA 31, (Shevchenko) the Court stated as follows: [28] Put simply, an offender who has a significant mental illness is generally considered to have less moral blameworthiness thansomeone operating with an unimpaired view of the world.

It is therefore imperative that a sentencing judge appreciate the extent andmanifestation of the illness and link it to the degree of moral blameworthiness. A further important consideration is the role such illnessmay have played in the commission of the offence. Rarely do the offence and the mental illness stand entirely apart.

The offence must beviewed in the context of the mental illness. [66] In the case of R v Ayorech, 2012 ABCA 82 (Ayorech) the accused was convicted of three counts of robbery on a liquor store,as well as two counts of possession of a prohibited weapon, namely a knife, contrary to s 88(1) of the Criminal Code; and one count oftheft under $5000, contrary to s334(

b) of the Code. There was an FAOS report saying that Mr. Ayorech had severe mental illness andintellectual disability and "severe substance abuse problems". The Crown sought a jail sentence of 4 to 5 years. The sentencing judgeagreed that this was in the normal range of sentences and stated that were it not for the exceptional circumstances of the accused hewould have given a 4-year sentence of imprisonment. He noted that although Mr. Ayorech had a record showing violence as a youth, hisrecord disclosed no convictions for a substantial period (approximately 10 years) prior to the incidents in question.

The sentencing judgefurther took into account that Mr. Ayorech had no memory of committing these offences, is limited intellectually, and had serious mentalillness as well as severe substance abuse problems, which the judge commented could not be cured overnight. The judge sentenced Mr.Ayorech to one year in jail. The Alberta Court of Appeal agreed with this sentence stating: 10 The Crown submits that the sentencing judge erred in principle by treating the respondent's mental illness and substance abuse asmitigating factors.

Substance abuse by itself is ordinarily not a mitigating factor, nor did the judge characterize it as such. On the otherhand, mental disorders, particularly schizophrenia, can significantly mitigate a sentence, even if the evidence does not disclose that themental illness was the direct cause of the offence or that it was carried out during a period of delusions, hallucinations, or such: R vResler, 2011 ABCA 167, 505 AR 330. It is sufficient that the mental illness contributed to the commission of the offence: R v Belcourt,2010 ABCA 319, 490 AR 224.

Here, the psychiatrist's report concluded: Finally and taking a historical perspective to Mr. Ayorech's difficulties, it could be concluded that his current predicament is the result ofthe superimposition of a major mental disorder on an individual with limited intellectual abilities, behavioral difficulties and a severeaddiction to cocaine and alcohol.

Thus, his head injury preceded both his behavioral problem and his substance abuse, which in turnpreceded the onset of his schizophrenic process, which compounded his substance abuse and his pre-existing intellectual limitationsleading to a vicious cycle of psychosis and substance abuse that has had severe implications on Mr. Ayorech as he has probablyexperienced further cognitive decline and serious legal implications that had rendered him seriously disabled. 11 The relative importance of deterrence and denunciation is attenuated when sentencing mentally ill offenders.

This principle applieseven if there is little prospective of complete cure and rehabilitation: R v Hiltermann, (AB CA), [1993] AJ No 609(CA) at paras 4-8, (Hiltermann). 12 The gravity of the offence is not, of course, lessened by the personal circumstances of the offender. However, the mental disorderdiminishes the degree of responsibility of the offender.

Impaired reasoning, delusional disorders, and like mental conditions distinguishthose afflicted from the ordinary offender who is fully accountable for his or her conduct: Resler at paras 9-10, 16; Belcourt at paras 7-8;and R v Muldoon, 2006 ABCA 321 at paras 9-10, 401 AR 42. 13 Finally, the effect of the imprisonment should be taken into account when it would be disproportionately severe because of theoffender's mental illness. Ayorech's mental disorders have left him vulnerable, such that Dr.

Santana opined that he was ill equipped tosurvive in the prison system. [67] There are similarities between the Ayorech decision and the case at bar. Although Mr. Small Legs does not suffer fromschizophrenia, he has significant intellectual disabilities and a severe substance abuse problem. I am satisfied that the onset of hissubstance abuse problems are related to his mental disabilities, coupled with the Gladue factors.

These cases make it clear that theprinciples of denunciation and deterrence should be attenuated in sentencing a person with mental illness, because that offender is not anappropriate case to make an example to others. I note that in Ayorech, the sentencing judge reduced the sentence which normally wouldhave been four years, to one year after considering the mitigating factor of mental illness. [68] The Crown argues that in this case Mr. Small Legs’ brain impairment should not be a mitigating factor, relying on the case ofR v Ledesma, 2022 ABCA 285 (Ledesma) for support of that proposition. Mr.

Ledesma had an indigenous background, with manyGladue factors. He had been diagnosed with a mild mental disability and possessed traits of antisocial and paranoid personality disorder. Several psychiatric assessments found he exaggerated his symptoms. He had a very bad criminal record which started when he was 13.He had 52 convictions, many for violence. A risk assessment placed him in a high risk to reoffend. He was serving an 8-year jailsentence for two aggravated assaults when he brutally murdered another inmate.

For that he was convicted of second-degree murder, andgiven a sentence of life imprisonment, with 18 years parole ineligibility, based on his criminal record. The two convictions foraggravated assault were considered to be aggravating in setting that period of parole ineligibility. The sentencing judge found that themental health issues of Mr. Ledesma had no mitigating effect on his sentence. Shortly after that, Mr. Ledesma’s convictions for the twoaggravated assault charges were quashed, and the prosecution stayed the charges. Mr.

Ledesma appealed the parole eligibility, based onthe change in circumstances, namely his criminal record. Mr. Ledesma also appealed arguing that the sentencing judge had notadequately addressed the fact firstly that he was an indigenous person, and secondly that he had a mental disorder. The Alberta Court ofAppeal in Ledesma stated that a mental health condition is not necessarily a factor in mitigation, notably if that condition is manifestedby dangerousness, or a durable tendency to anti-social behaviour: citing R v Virani, 2012 ABCA 155. The Court of Appeal also stated

that the mental health condition must have some nexus to the offence to be relevant to degree of responsibility in either direction: citing Rv Gerbrandt, 2021 ABCA 346. In the result, the Court of Appeal did not change the parole eligibility and dismissed the appeal. TheCourt of Appeal stated that Mr. Ledesma’s tortured past could not change the fact that the public needed protection from him. TheLedesma case has many differences from the case at bar, other than it related to the issue of parole eligibility. Mr.

Ledesma had a veryextensive criminal record, which included violence, he had a risk assessment saying he was at risk of reoffending, and he was prone toexaggerating his mental health symptoms. None of these factors apply to Mr. Small Legs. But in the end, the Court of Appeal found thatthe main concern with Mr. Ledesma was that he was dangerous. In our case, both Dr. Massey and Dr. Ajeh were both of the opinion thatMr. Small Legs is not dangerous to the public. The fact that he had no criminal record at the time of the offence, or in the five yearssince, supports that position.

Therefore, based on the lack of dangerousness here, in my view this Court should consider that Mr. SmallLegs’ mental health issues, and Gladue factors are significantly mitigating. Aggravating Factors [69] As noted above, in coming to a decision on a proportionate sentence, the judge must consider both aggravating and mitigatingfactors in each individual case. In this case I find that there are a number of aggravating factors, as follows: 1.

The complainant AH was vulnerable because of personal circumstances – she was an aboriginal female who had been consumingalcohol – which is statutorily aggravating - s718.04. 2. The complainant AH was under the age of 18; she was only 16 years old at the time of the offence, which is statutorily aggravating- s718.2(a)(ii.1). 3. It is presumed that there has been a significant impact on AH from this sexual assault, even though there was no evidence of that atthe trial or sentencing, which is statutorily aggravating – s718.2(a)(iii.1). 4.

In the circumstances of this case, I find it aggravating that the evidence was clear that AH told Mr. Small Legs to stop severaltimes, she resisted him by holding on to her clothing, and even when his friends were knocking on the door, he did not stop. Mitigating Factors [70] I find the following to be mitigating factors in the circumstances of this case: 1. Gladue Factors – As noted above, I have found that Gladue factors are applicable to this case. Usually, alcohol and drug use do notoperate as mitigating factors.

However the case law states that where the Gladue factors lead to drug and alcohol abuse in thecircumstances of the case, which is the situation here, there will be diminished moral culpability: see Rabbit. 2. Mental Health Factors – as noted above, I have found that his mental health issues, namely the intellectual impairment, lead tocompromised and impaired impulse control and judgment. Overlaid with the substance abuse disorder, this contributed substantially tothe commission of these offences. Mr. Small Legs is developmentally an 8 to 11-year-old.

He has difficulty understanding the social cuesand norms required in an adult world. 3. Parental Support - It is very clear from all the evidence that Mr. Small Legs is very fortunate to have the unflagging support of hismother, Shelly Small Legs. She cares for him on a daily basis and takes him everywhere he needs to go in the community. 4. Community Support – Mr. Small Legs is a member of the Piikani Nation, and lives on the Piikani Reserve. The Chief of the PiikaniNation, Troy Knowlton attended the sentencing hearing to show his support for Mr.

Small Legs, and the support of the community.Defence counsel has been advised by Chief Knowlton that there is a healing centre on the reserve that provides drug and alcoholtreatment services to Nation Members. This is a facility that is a steppingstone to further residential treatment. Defence counsel advisesthat both Mr. Small Legs and his mother have taken steps to try to get into treatment centres, but there is a large backlog because of theongoing opioid crisis. However Chief Knowlton told counsel that with his intervention he may be able to get Mr. Small Legs into thatprogram a bit sooner than expected.

Chief Knowlton has also advised counsel that the Piikani Nation has developed and institutedrestorative justice programs including the development of healing plans where individual offenders meet with elders, attend ceremoniesand reconnect or continue to foster a connection with their Aboriginal heritage. Chief Knowlton has advised that these programs aredesigned to assist in healing, particularly with a focus on Aboriginal culture and heritage. The purpose is for healing and restorativejustice, but they also have elements of making amends and instituting punishment for crimes committed.

These programs are operated bythe Piikani Nation in conjunction with probationary services. Chief Knowlton has also advised counsel that community service on thereserve is possible and may be incorporated into the healing plan. Other Collateral Sentencing Factors [71] In the case of R v Suter (2018), 2018 SCC 34 , 2 SCR 496 the Supreme Court of Canada stated: 48 Though collateral consequences are not necessarily "aggravating" or "mitigating" factors under s. 718.2(

a) of the Criminal Code - asthey do not relate to the gravity of the offence or the level of responsibility of the offender - they nevertheless speak to the "personalcircumstances of the offender" (Pham, at para 11). The relevance of collateral consequences stems, in part, from the application of thesentencing principles of individualization and parity: ibid.; s. 718.2(

b) of the Criminal Code. The question is not whether collateralconsequences diminish the offender's moral blameworthiness or render the offence itself less serious, but whether the effect of thoseconsequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances.Like offenders should be treated alike, and collateral consequences may mean that an offender is no longer "like" the others, rendering a

given sentence unfit. [72] In my view, there are a number of collateral circumstances in this case that do not relate to the gravity of the offence, or thelevel of responsibility of the offender, but they are nonetheless relevant to the sentencing principles of individualization andproportionality for Mr. Small Legs. I will consider these factors below. Other Sentencing Factors – No Criminal Record [73] At the time of the offence, Mr. Small Legs had no criminal record.

In the case of R v Priest, (ON CA),[1996] OJ No.3369 (CA), Justice Rosenberg of the Ontario Court of Appeal stated: 17 The primary objectives in sentencing a first offender are individual deterrence and rehabilitation. Except for very serious offencesand offences involving violence, this court has held that these objectives are not only paramount but best achieved by either a suspendedsentence and probation or a very short term of imprisonment followed by a term of probation. In R v Stein (1974), (ONCA), 15 C.C.C. (2d) 376 (Ont.

C.A.) at page 377, Martin J.A. made it clear that in the case of a first offender, the court should exploreall other dispositions before imposing a custodial sentence:... 18 As the Stein case shows, it has been an important principle of sentencing in this province that the sentence should constitute theminimum necessary intervention that is adequate in the particular circumstances. This principle implies that trial judges considercommunity-based dispositions first and impose more serious forms of punishment only when necessary.

These principles have now beencodified in the recently proclaimed ss718 and 718.2 of the Criminal Code.

Section 718(

c) instructs that separation of offenders fromsociety is an appropriate objective of sentencing "where necessary".

Section 718.2(

d) directs that an offender should not be deprived ofliberty "if less restrictive sanctions may be appropriate in the circumstances". [74] The Alberta Court of Appeal in R v Godfrey, 2018 ABCA 369 at paragraph 16 held that the absence of a criminal record is atbest a neutral factor. However, as held in R v Shrivastava, 2019 ABQB 663 at paragraph 71 offenders with no previous convictions maybe deterred by lighter penalties than repeat offenders, and sentences for first time offenders should “reflect the minimum restraint onliberty that is appropriate in all the circumstances”.

Other Sentencing Factors – Delay [75] In this case, the date of the offence was September 3, 2018. The Information was laid soon after. Over 5 years have passed.To be clear, some of the reason for that delay can be laid at the feet of Mr. Small Legs, because of the NCR application, and the delaysin making appointments with the experts. This Court ordered the psychiatric report at the first NCR hearing, which can be considered anunusual step, and which resulted in a substantial delay. Nonetheless, Mr.

Small Legs has had to pay his lawyers and experts during thatsomewhat extended period of time. [76] In the case of R v Keegstra, [1996] AJ No 833 (CA), the Alberta Court of Appeal considered whether delay can be amitigating factor, and stated: 20 We do not consider mere delay in sentencing to be a mitigating factor in a case where the delay is not the fault of the Crown. A.B.C.(1992) 1991 ABCA 337 , 120 A.R. 106. (Alta C.A.).

Nor is pre-charge delay a significant factor in a disposition where theparamount sentencing factors are, like here, general deterrence and denunciation: R v Spence (1993) 1992 ABCA 352 , 78C.C.C. (3d) 451.

But a long history between the commencement and the end of a criminal prosecution, and a long record of unusuallitigation steps, even if not the fault of the Crown, can be viewed as a mitigating factor for sentence because of the added expense for theaccused and the extended anxiety for him and his family. [77] In the Keegstra case, which was complex, the delay was 12 years, and the Alberta Court of Appeal found it was mitigating.

Inthe case of R v Bosley, (ON CA), [1992] OJ No. 2656 (CA) there was a 17-month delay between completion ofevidence and sentencing, which the Ontario Court of Appeal found was mitigating. That delay in this case is over 30 months between theend of the calling of evidence and sentencing. During this period of time, I accept that Mr. Small Legs has incurred added expense andextended anxiety for him and his family. In my view, this is a mitigating factor. Other Sentencing Factors – A Youthful Offender [78] Mr.

Small Legs was 19 years old at the time of the offence. [79] In the Alberta Court of Appeal case of R v Arcand, 2010 ABCA 363 (Arcand) an 18-year-old aboriginal person sexuallyassaulted a female relative of his who was unconscious. The offender had Gladue factors and mental deficits. The judge sentenced himto a 90-day intermittent sentence. The Crown appealed. The Court of Appeal stated this about his youthfulness: 289 What then are the mitigating factors? First, there is the offender's young age. At the time of this offence, he was only 18 years ofage.

This constitutes a very weighty mitigating factor in sentencing especially given the evidence that he was an immature 18 with somelearning problems. [80] The Court of Appeal found that a sentence of two years less a day was proportionate in that case. [81] In the case of R v Borde, 2003 CarswellOnt 345 (CA) an 18-year-old pistol-whipped a victim with a loaded handgun. Heplead guilty to a number of weapons offences and aggravated assault. He was sentenced to five years and two months jail time. He

appealed his sentence. Justice Rosenberg from the Ontario Court of Appeal stated: 36 Aside from the gravity of the appellant's crimes, the overwhelming factor is his youth. In my view, the trial judge erred in principle in focusing almost exclusively on the objectives of denunciation and general deterrence, given the appellant's age and that this was his first adult prison sentence and his first penitentiary sentence. The length of a first penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciation and general deterrence.

Where, as here, the offender has not previously been to penitentiary or served a long adult sentence, the courts ought to proceed on the basis that the shortest possible sentence will achieve the relevant objectives. The trial judge's repeated references to the need to send a message and his statement that the sentence was meant to deter others who resort to guns make it clear that general deterrence and to a less extent denunciation determined the length of the sentence.

In my view, this error led the trial judge to impose an excessive sentence for the aggravated assault. [ 82 ] That Court reduced the sentence by one year . I accept that in sentencing a youthful offender, such as Mr. Small Legs, the shortest possible sentence that will achieve the relevant objectives should be imposed. As stated in this case, this means that the sentence should not be determined solely by the objectives of denunciation and general deterrence.

In addition, based on the Arcand case, I accept that where there is an immature young person with cognitive problems, his young age is a weighty mitigating factor. Other Sentencing Factors – Mental Illness Attenuates Denunciation and Deterrence [ 83 ] It is not disputed that the seriousness of these offences, and the aggravating factors, call for the court to consider denunciation and deterrence to be the primary sentencing factors. However, as already stated, the relative importance of deterrence and denunciation is attenuated when sentencing mentally ill offenders.

This principle applies even if there is little prospective of complete cure and rehabilitation: Hilterman . General deterrence should be given very little, if any, weight in a case where an offender is suffering from a mental disorder because such an offender is not an appropriate medium for making an example to others: Belcourt . I find this to be a mitigating factor. Other Sentencing Factors – The Effect of Imprisonment Will be Disproportionately More Severe on Mr. Small Legs [ 84 ] The overarching sentencing principle is to find a sentence that is proportionate for Mr. Small Legs in the context of this case.

As stated by the Alberta Court of Appeal in the Ayorech case, the effect of the imprisonment should be taken into account when it would be disproportionately severe because of the offender's mental illness. Mr. Small Legs’ mental disorders have left him vulnerable, such that Dr. Massey opined that he was a gullible developmentally disabled adult, who would be at significant risk for others to take advantage of him . Dr. Massey stated in his report that Mr. Small Legs could not survive in the real world without a high degree of support. Dr. Massey went on to report that without his mother in the picture, Mr.

Small Legs would decompensate, which is a functional deterioration in mental wellness. I find this to be a mitigating factor. The First Part of a Proportionate Sentence– The Gravity of the Offence [ 85 ] As already mentioned, coming to a proportionate sentence is the overarching or cardinal principle of sentencing, and involves weighing on the one hand the gravity or seriousness of the offence, and on the other hand the moral culpability or responsibility of the offender. In this case, Mr. Small Legs seeks a CSO.

To be eligible for a CSO, the length of the sentence must be less than two years in jail. [ 86 ] I will deal with the gravity of the offence first. The Crown suggests the use of a three-year starting point, since the more serious offence is a major sexual assault. [ 87 ] In the Arcand case, the Alberta Court of Appeal at paragraph 169 confirmed that the starting point for a major sexual assault on an adult victim is three years jail. They confirmed that this starting point was not based on a guilty plea. The Court also made it clear that a sexual assault is

an act of violence that causes harm, to both the victim and society. That harm, which is substantial, is inferred from the very nature of the assault. The Court also stated that intrinsic to any major sexual assault is the likelihood of other very real psychological or emotional harm. [ 88 ] The Supreme Court of Canada more recently gave courts some guidance about applying starting points in the case of R v Parranto, 2021 SCC 46 ( Parranto ).

In that case, the Supreme Court stated at para 18: The starting-point methodology has three stages: (1) defining the category of an offence to which the starting point applies ; (2) setting a starting point; and (3) individualization of the sentence by t

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