Her Majesty the Queen - v. -, 2016 SKPC 65

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 065 Date: May 12, 2016 Information: 24517670 Location: La Ronge _____________________________________________________________________________ Between: Her Majesty the Queen - and - John Stanley Halkett Appearing: Mr. Luke Coupal For the Crown Ms. Susan Ryan For the Accused DECISION ON SENTENCE S.I. ROBINSON , J [ 1 ] John Stanley Halkett was convicted by me after trial on a charge alleging that on January 31, 2015, at La Ronge District, Saskatchewan, he did commit a sexual assault on Adam Joe Ross contrary to

section 271 of the Criminal Code . The matter is now before me for sentencing. THE FACTS

[ 2 ] On the afternoon of January 31, 2015, RCMP Constable Blair de Bruin and a fellow officer arrested the accused at his home in the La Ronge district. The accused was highly intoxicated and had been causing trouble in his home. After his arrest, he was lodged in Cell D-1 at the La Ronge RCMP station. Cell D-1 functions as a “drunk tank” for arrested persons.

It is a bare cell without any bunks or other furnishings except for a toilet and water fountain that are part of a single unit. [ 3 ] About an hour after the accused had been lodged in Cell D-1, Constable de Bruin happened to look at the cell’s video monitor and saw that the accused appeared to be “humping” another person in the cell. She therefore intervened by moving the accused out of the cell.

She tried to wake up the cell’s other inmate, one Adam Joe Ross, but he did not wake up and was left in the cell. [ 4 ] The events relevant to this case were captured on a cell video camera which recorded the period of time that the accused was in the Cell D-1—slightly more than an hour. At trial, the video recording was played as part of the Crown’s case. [ 5 ] The video shows that prior to the accused’s arrival at Cell D-1, Adam Joe Ross was already there. Mr. Ross is shown seated in a corner with his shirt or sweater pulled over his head.

It is not possible to tell if he is awake, but he makes little or no movement in the first half hour of the video. Indeed, there is nothing to indicate that Mr. Roberts is awake during any part of the video. [ 6 ] The accused is shown entering the drunk tank a couple minutes after the video starts. He is wearing pants but no shirt. Soon after he first enters, he makes some effort to rouse Adam Joe Ross. When Mr. Ross does not rouse, the accused lies down to sleep in a fetal position on the cell floor.

Over the next half hour, the accused moves occasionally but mainly appears to be either sleeping or trying to sleep. [ 7 ] After the accused has been in Cell D-1 for about a half hour, the video shows him moving closer to Adam Joe Ross. It then shows them both lying on their sides with the accused behind Mr. Ross in what might be described as a spooning position. Mr. Ross does not appear to move at all in this position. The accused moves occasionally and at one point gets up to drink from the water fountain before going back to lie down with Mr. Ross.

Up until this point, there does not seem to be anything untoward in the accused’s behaviour. His actions in lying next to Mr. Ross are consistent with those of someone trying to keep warm in a cold environment. [ 8 ] When the accused has been in Cell D-1 for nearly a full hour, the video shows his behaviour changing. The accused, while still lying behind Adam Joe Ross, pulls Mr. Ross’s pants down and then pulls his own pants down. He then appears to be having anal intercourse with Mr. Ross or attempting to do so. Within a minute, he stops and lies on his back for a period of time.

After less than five minutes, he goes back to lying behind Mr. Ross in a spooning position. He then pulls Mr. Ross’s pants down again and appears ready to again attempt to have anal intercourse with Mr. Ross. It is at that point that the cell door is opened and the accused is removed from the cell. [ 9 ] Adam Joe Ross testified for the Crown at trial. A “Prisoner Record Sheet” names him as “Joe Ross” born October 20, 1974. The sheet shows that he came into Cell D-1 on January 31, 2015 just before 11:00 a.m. Mr.

Ross testified that prior to his arrest on January 31, he had come from the community of Hall Lake and ended up drinking alcohol in a La Ronge suburb known as “Jackpine”. He could not recall the details of his arrest by the police and had no recollection of being in the drunk tank with the accused. [ 10 ] Adam Joe Ross did say that he and the accused were cousins and that he sometimes liked spending time with the accused.

They have drunk alcohol together in the past, and they have occasionally had fights while drinking. [ 11 ] Defence counsel applied to question Adam Joe Ross regarding previous consensual sexual encounters between him and the accused on grounds that those encounters were relevant to the issue of consent. The Crown did not object to the defence application, and I allowed defence to cross- examine Mr. Ross with respect to those previous encounters. Mr. Ross essentially denied any previous encounters. In any event, since I have found that Mr.

Ross could not have consented to any sexual activity with the accused in Cell D-1, any previous sexual encounters between Mr. Ross and the accused had no bearing on my decision to convict the accused. Likewise, they have no bearing on my decision respecting sentence. [ 12 ] The accused testified at trial. He gave his age as 54 and said that he has been living in a common law relationship for 35 years.

He and family members share an apartment on Lac la Ronge Indian Band Reserve land near La Ronge. [ 13 ] The accused said that prior to his arrest on January 31, 2015, he had been drinking for two days and had also been using marijuana. He had no recollection of his actual arrest but had some recollection of being at the RCMP station. He also had some recollection of saying hello to Adam Joe Ross, whom he described as a close friend, but he had no other recollection of being with Mr. Ross in a cell.

He did have some recollection of being moved from the drunk tank to a cell with a warm air vent. [ 14 ] The only other defence witness at trial was the accused’s common law wife, Annie Christina Lariviere, who testified in English although her first language is Cree. She confirmed that she had been living common law with the accused for 35 years. Her testimony was that she had called the RCMP on January 31 because the accused was “real drunk” and was throwing chairs around their home.

She could not say how much the accused had had to drink but said he was “staggering”. [ 15 ] On the evidence before me at trial, it was not possible for me to determine whether the accused had actual anal intercourse with Adam Joe Ross or only attempted to do so. I therefore convicted him of sexual assault on the basis that the Crown had proven an attempt to have intercourse. ACCUSED ’S PERSONAL CIRCUMSTANCES [ 16 ] The accused’s personal circumstances were described in part by the trial evidence.

They have also been set out by defence counsel and in a Pre-Sentence Report prepared by Probation Officer Jody Laliberte.

[ 17 ] The accused is a 54-year-old treaty member of the Lac la Ronge Indian Band. He lives in an apartment on the Band’s Reserve lands near La Ronge. [ 18 ] The accused is the oldest of at least ten children born to James Halkett and Elsie Lillian Halkett. He describes his early childhood as good . He did not suffer from any type of abuse from his parents or others. However, he did at times witness his mother being the victim of domestic abuse at the hands of his father. There was more domestic abuse when his parents were drinking. His parents are still both alive and live in the La Ronge community.

His mother has cancer, and his father cares for her. [ 19 ] When the accused was seven years old, he and his siblings were left with a babysitter while his parents were out drinking. At the babysitter’s request, the accused lit a fire in the wood stove using diesel fuel. The diesel “blew up” and started the house on fire. The accused was able to get some of his siblings out of the house, but he was unable to save three siblings—Charlotte (2), Tommy (3) and Colin (4). Those three were upstairs in their cribs and died in the fire.

After the fire, the accused was sent to live with his grandparents, Reverend Charlie Halkett and Angelique Halkett, in Cumberland House. He has been left troubled by the incident. [ 20 ] The accused has a Grade 6 education from schooling in Cumberland House and La Ronge. Although his father and other relatives attended Residential School, he himself did not. [ 21 ] Over the years, the accused’s job opportunities have been affected by his lack of education, but he does have a work history. His first job was as a fishing guide for a tourist camp.

In later years, he worked at different jobs including construction work and janitorial work. Between 2012 and 2014, he had seasonal employment with the Lac la Ronge Indian Band on a contract to clear a right- of-way for a new SaskPower power line in northern Saskatchewan. He quit that job because of heart problems. More recently, in early 2016, he had work cutting brush for a fire guard on the Band’s Reserve lands near La Ronge. [ 22 ] The accused was married when he was 20 years old to one Ida (Ross) Halkett. They were a couple for only three years but had a daughter Jennifer and a son William together.

The accused then entered into a relationship with his current common law wife, Annie Lariviere. He and Ms. Lariviere have a daughter Charlene aged 16. Ms. Lariviere also has a son John from a previous relationship. As noted by Ms. Lariviere in her trial testimony, she and the accused have been together for 35 years. [ 23 ] The accused’s current family unit consists of himself, his common law wife Annie Lariviere, their daughter Charlene, Ms. Lariviere’s son John, and the accused’s elderly uncle Walter Halkett. The accused and Ms.

Lariviere both look after Walter Halkett. [ 24 ] Quite clearly, alcohol has had a negative effect on the accused’s life. He began drinking alcohol on a regular basis when he was 15. Over the years, he became addicted to alcohol and developed a pattern of binge drinking where he would drink for two days straight. After he was hospitalized with alcohol poisoning in 2014, he reduced his drinking. At Hallowe’en, 2015, he again drank to excess and “puked up yellow stuff”. This episode scared the accused, and he has been sober since.

According to his counsel, he is now 100% committed to staying away from alcohol. [ 25 ] According to the Pre-Sentence Report, the accused sniffed solvents between the ages of 13 and 15. He has used marijuana since the age of 18 years. He has not used other illegal drugs. [ 26 ] The accused suffers from a heart condition and takes medication for that condition. [ 27 ] The accused has 16 prior criminal convictions, all from court appearances in La Ronge. His CPIC record is as follows: 1991-03-22

(1) Perjury Sec 131 CC 9 months

(2) Assault Sec 266 CC 2 months consec

(3) Assault CBH Sec 267(1)(

b) CC 2 months consec

(4) BE & Commit Sec 348(1)(

b) CC 2 months consec

(5) Breach Recog Sec 145(3) CC 1 day time served 1991-10-21 Theft Under Sec 334(

b) CC 14 days conc 1993-02-15

(1) Theft Under Sec 334(

b) CC $200.00

(2) Fail to Appear Sec 145 CC $200.00 1994-08-15 Drive Over 80 Sec 253(

b) CC $500.00

1996-09-26 Sexual Interference Sec 151 CC Susp sent & 1 year probation 1997-04-07 Drive Over 80 Sec 253(

b) CC $1,000.00 & 1 year probation 1997-05-26

(1) Drive Disqualified Sec 259(4) CC 30 days time served

(2) Breach Probation Sec 733 CC 30 days time served

(3) Breach Probation Sec 733.1 CC 60 days consec 2000-01-13

(1) Assault Sec 266 CC Susp sent & 1 year probation

(2) Fail to Appear Sec 145(4) CC $150.00 SENTENCING CONSIDERATIONS [ 28 ] The facts in the case before me are very similar to those dealt with by our Court of Appeal in the La Ronge case of R v Charles , 2008 SKCA 108 . In Charles , the accused, his mother and his mother’s boyfriend were arrested for causing a disturbance. Following their arrest, the accused was placed in a drunk tank with his mother’s boyfriend (the victim) at the La Ronge RCMP station. After they had been in the drunk tank for some time, the accused positioned himself behind the victim who was apparently asleep on the floor of the drunk tank.

The accused then pulled down both the victim’s pants and his own pants and had what appeared to be either actual, attempted or simulated anal intercourse with the victim. The victim appeared to remain either asleep or unconscious throughout the incident. [ 29 ] In Charles , the sentencing judge gave the accused an 18-month conditional sentence. The Crown appealed this sentence, and the Court of Appeal increased the sentence to one of 30 months imprisonment.

It did so on the basis that the original sentence did not respect the principle of parity and represented a marked departure from sentences customarily imposed for similar offences (paragraphs 28 and 29). [ 30 ] The facts in the Charles case do parallel those in the case before me. Notwithstanding this, defence counsel has argued that the accused should be given a restorative sentence that does not involve actual custody. I agree with defence counsel. Specifically, I believe that a fit sentence for the accused is a conditional sentence order to be followed by a period of probation.

Purpose and Principles of Sentencing [ 31 ] Parliament has set out the purpose and principles of sentencing in the Criminal Code . Of particular note are sections 718, 718.1 and 718.2: 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

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

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

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, (

v) evidence that the offence was a terrorism offence, (vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under

section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act shall be deemed to be aggravating circumstances; (

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

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [ 32 ] As noted by the Supreme Court of Canada in R v Ipeelee , 2012 SCC 13 at para 35 , [2012] 1 SCR 433, these provisions represent a codification of the objectives and principles of sentencing.

The provisions have been amended slightly since Ipeelee by the addition of wording that, inter alia , emphasizes the need for sentencing to protect society and acknowledge any harm done to victims or the community. But the amendments do not, in my view, significantly alter the sentencing process. [ 33 ] Arguably, sections 718, 718.1 and 718.2 do not provide an exhaustive list of the considerations a judge should consider in sentencing an offender. I say this because the sections make no direct reference to the need for an offender to address his or her alcohol or other substance abuse issues.

An offender’s addiction may be neither an aggravating nor a mitigating circumstance in the context of paragraph 718.2(a), but it is still a very real circumstance. In too many cases, it is larger than all else. A specific reference to alcohol in 718, 718.1 or 718.2 would bluntly identify the catalyst that produces the vast majority of charges that Provincial Court judges deal with day to day. [ 34 ] Despite the lack of any direct reference to alcohol or substance abuse, the objectives and principles listed in sections 718, 718.1 and 718.2 provide a useful framework in the sentencing process.

I will refer to them in outlining why I believe the accused should be given a restorative sentence that does not involve actual custody. In doing so, I will refer to the accused’s use of alcohol in the context of paragraph 718(d),

section 718.1 and paragraph 718.2. Denunciation [ 35 ] Paragraph 718(

a) recognizes denunciation as a sentencing objective. Most if not all criminal sentences include an element of denunciation. This is especially true of sentences for sexual assault where courts seek to emphasize the need to respect sexual integrity. A lengthy jail sentence is sometimes imposed to denounce sexual offending. But there can be considerable denunciation without a jail sentence. In our society, the very fact that a person has been convicted and sentenced on a sexual assault charge is itself a strong denunciation of the offender’s conduct.

That denunciation can be reinforced by a supervisory sentence that puts conditions on an offender. [ 36 ] In R v Wells , 2000 SCC 10 , [2000] 1 SCR 207, at paragraphs 31 to 35 , the Supreme Court of Canada made it clear that a conditional sentence can be an option even where denunciation is a paramount consideration. Deterrence [ 37 ] A deterrent sentence is often considered to be a sentence having a punitive aspect. Jail sentences are therefore frequently described as deterrent sentences. A jail sentence can indeed be very useful in putting the brakes on offending behaviour that is spiralling out of control.

Further, a jail sentence will stop any re-offending during the period that a person is in actual custody. But that is about as good as it gets. There is no data to show that jail sentences have a lasting deterrent effect. Anecdotally, the opposite often appears to be true. Provincial Court judges routinely deal with offenders recently released from jail who have picked up new charges. [ 38 ] But a deterrent sentence need not focus on the punitive at all. A restorative sentence can have a deterrent effect. A sentence

that helps the accused stay away from alcohol and maintain a clear-thinking, sober lifestyle will in a real sense deter him from further offending. Separation from Society [ 39 ] Paragraph 718(

c) states that sentencing can have the objective of separating an offender from society “where necessary”. In the accused’s case, there does not appear to be any pressing need to separate the accused from society. He has been at large for more than a year after being released on a Promise to Appear without re-offending. Rehabilitation [ 40 ] The objective of rehabilitating an offender is one that will apply in all but a few sentencing cases. A sentencing judge must necessarily look back in time to determine what an offender did.

At the same time, that same judge will normally also have to look forward to calculate the risk of an offender re-offending and to fashion a sentence that removes or reduces that risk. In most cases, the risk will have an underlying cause such as an addiction to alcohol or drugs. If that risk can be managed successfully, the fundamental purpose of sentencing, i.e., to protect society, will essentially be met. [ 41 ] Rehabilitating an offender by identifying his or her risk factors and then dealing with them is best done by a restorative approach in the community.

In a jail setting, an offender is under no obligation to take programming and programming options are limited. Most significantly, jail does not allow an offender to practise new skills in a real life environment. Out in the community, an offender is able to enrol in counselling and treatment programs and then put any knowledge gained to immediate use. [ 42 ] The accused’s abuse of alcohol led directly to his offending behaviour. If he had not been drunk, he would not have been arrested by the police and lodged in the drunk tank where he met Adam Joe Ross.

And, if he had not been drunk, he would have been better able to control his sexual urges that caused the victimization of Mr. Ross. [ 43 ] In my view, a restorative sentence that both prohibits the accused from drinking alcohol and requires him to take alcohol counselling should reasonably insure his sobriety going forward. This in turn should insure that he does not commit further offences. [ 44 ] It is my expectation that any counselling component to the accused’s sentence will also address some of the issues that may have led to his addiction to alcohol.

These issues may include unresolved grief issues arising from the death of his siblings in a house fire and also underemployment issues arising from his limited education. Harm Done to the Victim [ 45 ] There is no evidence that Adam Joe Ross suffered any physical harm in the sexual assault. And, were it not for the video tape of what transpired in the drunk tank and the accused’s resulting charge, Mr. Ross would never have known that he had been sexually assaulted by the accused. The police investigation and court proceedings have, however, left Mr. Ross knowing that he was victimized.

His testimony at trial included the comment, “I would be embarrassed by what he did to me.” [ 46 ] It is reasonable to assume that the accused and Adam Joe Ross will have future contact as they are cousins and have socialized together in the past. A written apology to Mr. Ross by the accused may help mend their relationship, and I will make an apology a condition of the accused’s sentence. The Principle of Portionality [ 47 ]

Section 718.1 says that a sentence must be proportionate. In Ipeelee , at paragraph 37 , Lebel, J said, “Proportionality is the sine qua non of a just sanction.” As set out in 718.2, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 48 ] In looking at the gravity of the offence, it is useful to look at the Charles case which dealt with facts very similar to those before me. In Charles , Richards, JA, at paragraph 17, referred to the facts and held they could not be characterized as a “low end sexual assault”. He wrote: . . .

I concede, of course, that the offence here was less egregious than some sexual assaults, particularly those involving full penetration and high levels of violence. Nonetheless, it was a crime of real consequence, a crime that involved the gross and substantial violation of the victim’s personal and sexual integrity. [ 49 ] I agree with Mr. Justice Richards that the facts in the Charles case discloses an offence of real consequence. The same must be said of the case before me.

At the same time, I must keep in mind that the facts here, as in the Charles case, do not disclose either any penetration or gratuitous violence. I must also take into account the fact that the Crown elected to proceed summarily on the accused’s charge. [ 50 ] Besides looking at the gravity of the offence, I must also consider the accused’s degree of responsibility or “moral blameworthiness” ( Ipeelee at paragraph 37 ). It is true that the accused was the sole perpetrator of the offence. But it is also true that he was extremely intoxicated when the offence occurred.

Had he not been so intoxicated, he would not likely have been arrested. Most certainly, he would not have been placed in the drunk tank where his offence occurred.

[51] In Charles, Richards, JA, at paragraph 31, held that the fact Mr. Charles was intoxicated when he committed the offence wasnot a mitigating factor, particularly when he had not made any meaningful efforts to deal with his addiction. I can accept that in thepresent case, as in Charles, the accused’s voluntary intoxication might not be a mitigating factor. Nonetheless, by whatever name orlabel, it was still a very real factor that played a huge role in the accused’s offending behaviour.

Simply put, if the accused had not beenintoxicated, there would be no offence. [52] This is not to suggest that the accused is blameless. He chose to drink, and that drinking started a cascade of events that ledhim to the drunk tank. He bears responsibility for embarking upon the drinking binge that led to his offending behaviour.

But perhapsparadoxically, he could hardly be said to have been functioning as a responsible adult while he was in the drunk tank. [53] Since the accused’s responsibility for his reduced capacity on the night in question and his resulting offence is directly tied tohis drinking, it follows that a proportionate sentence should address that drinking. Sentence Parity [54] Paragraph 718.2(

b) dictates that a sentence should be similar to sentences imposed on similar offenders for similar offencescommitted in similar circumstances. This is a vitally important precept that guides all sentencing judges striving to achieve sentencefairness. [55] But the parity principle does not mean that sentencing practices cannot evolve over time.

If sentencing judges were bound byrigid sentencing precedents, it would be impossible to give effect to the Supreme Court of Canada’s directions set out in R v Gladue, (SCC), [1999] 1 SCR 688, and Ipeelee. [56] The parity principle must also allow for, and in fact requires, an examination of the circumstances peculiar to each individualcase. There will often be broad similarities between two cases, but it will be rare to find any case that does not have its own uniquefeatures.

This was highlighted by the Supreme Court of Canada in Ipeelee when, at paragraph 79, Lebel, J wrote: In practice, similarity is a matter of degree. No two offenders will come before the courts with the same background and experiences,having committed the same crime in the exact same circumstances.

Section 718.2(

b) simply requires that any disparity betweensanctions for different offenders be justified. To the extent that Gladue will lead to different sanctions for Aboriginal offenders, thosesanctions will be justified based on their unique circumstances -- circumstances which are rationally related to the sentencing process.Courts must ensure that a formalistic approach to parity in sentencing does not undermine the remedial purpose of s. 718.2(e). As Professor Quigley[i] cautions (at p. 286): Uniformity hides inequity, impedes innovation and locks the system into its mindset of jail.

It also prevents us from re-evaluating thevalue of our aims of sentencing and their efficacy. It is true that on the surface imposing the same penalty for the nearly identical offence is only fair. That might be closer to the truth in asociety that is more equitable, more homogenous and more cohesive than ours. But in an ethnically and culturally diverse society, thereis a differential impact from the same treatment. Indeed, that has been recognized in the jurisprudence on equality rights under theCharter.

Thus, there is a constitutional imperative to avoiding excessive concern about sentence disparity. [57] As already noted, the facts in the Charles case were very similar to the facts now before me. Nonetheless, I am of the viewthat the circumstances of the two cases are sufficiently different to allow me to hand down a different sentence. Some of the differencesare: a. In Charles, the Crown proceeded by indictment, while the Crown proceeded by

summary conviction in the present case. The

summary conviction election allows for the option of a conditional sentence. b. The accused has not re-offended since he was charged with sexual assault on January 31, 2015. c. In Charles, while there is no indication that Mr. Charles re-offended between his offence date and his sentencing date, hesubsequently breached the conditional sentence that the sentencing judge placed him on. d. While the accused has a significant past criminal record, his last conviction prior to his current offence dates back 16 years. e.

The accused is part of a family unit that consists of his common-law wife, their 16-year-old daughter, his step-son and anelderly uncle. He also has a relationship with his parents who are both still alive. In Charles, there was no mention of the accused beingpart of a family unit. f. The accused is 54 years old. He is moving into an age cohort where the likelihood of re-offending is substantially reduced. Although the 28% of the Canadian male population is aged 55 or older,[ii] that group accounts for only 7% of adult male criminal cases.[iii] g. The accused has been sober since October 31, 2015.

He has expressed a willingness to remain sober and participate inalcohol counselling.

h. There are a number of Gladue factors that apply to the accused’s situation. In Charles , a decision that pre-dates the Supreme Court of Canada’s decision in Ipeelee , there was no reference to Gladue factors applying to Mr. Charles. Least Restrictive Sanctions [ 58 ] Paragraph 718.2(

d) calls upon sentencing judges to not deprive an offender of his liberty if less restrictive sanctions may be appropriate. For reasons already outlined, I am of the view that less restrictive sanctions are appropriate in the accused’s case. The accused has been in the community for more than a year since the offence date without re-offending. This is evidence that he will be able to comply with a community-based sentence. Gladue Factors [ 59 ] Paragraph 718.2(

e) reinforces paragraph 718.2(

d) by requiring judges to consider all available sanctions other than jail, especially for aboriginal offenders. The Supreme Court of Canada dealt with 718.2(e)'s application to aboriginal offenders in the well known case of Gladue . In that case, the Supreme Court emphasized that 718.2(

e) is meant to address the problem of too many aboriginal people being in jail by directing judges to make use of restorative sentence options when it is feasible to do so. [ 60 ] Unfortunately, Saskatchewan continues to incarcerate offenders at a higher rate than much of the rest of Canada. According to Statistics Canada, for 2014-2015, Canada as a whole had 85 persons in adult provincial or territorial custody for every 100,000 adults in the population. During that period, Saskatchewan had an average of 1,702 persons in its adult provincial custody facilities.

This translated to an average of 195 persons in custody for every 100,000 adults in the population—more than double the national average. [iv] [ 61 ] For aboriginal people, the situation is exacerbated by the fact that their incarceration rates remain higher than those for the general population.

Aboriginal people represent about 3% of the Canadian population, but in 2014-2015, they accounted for 26% of the admissions into custody in Canada. [v] In Saskatchewan, where aboriginal people represent roughly 16% of the population, [vi] aboriginal people accounted for 77% of the province’s 2014-2015 admissions into adult correctional centres. [vii] [ 62 ] Clearly, in the 16 plus years since the Gladue decision was handed down, the problem of aboriginal people being overrepresented in Saskatchewan jails has not gone away. [ 63 ] In Ipeelee , at paragraph 62 , the Supreme Court of Canada, in re-visiting paragraph 718.2(e), made the bleak observation that its Gladue decision had not reduced the overrepresentation of aboriginal people in the criminal justice system.

If anything, the problem had worsened. The Court then went on to state forcefully that for judges sentencing aboriginal offenders, the application of the Gladue factors is not optional. At paragraph 87 of the judgment, Lebel, J wrote: The sentencing judge has a statutory duty, imposed by s. 718.2 (

e) of the Criminal Code , to consider the unique circumstances of Aboriginal offenders. Failure to apply Gladue in any case involving an Aboriginal offender runs afoul of this statutory obligation. As these reasons have explained, such a failure would also result in a sentence that was not fit and was not consistent with the fundamental principle of proportionality.

Therefore, application of the Gladue principles is required in every case involving an Aboriginal offender . . . and a failure to do so constitutes an error justifying appellate intervention. [ 64 ] So has the accused in the case before me been affected by Gladue factors? The short answer is, “Yes.” Going back to his childhood, the accused was exposed to at least some drinking by his parents. When he was seven years old, the accused’s home burned down while his parents were out drinking.

The fire resulted in the tragic deaths of three of the accused’s younger siblings, and the accused remains troubled by this loss. After the fire, he was sent to live with grandparents in Cumberland House, and he thus experienced a separation from his home community. Although he went to school in both La Ronge and Cumberland House, he only obtained a Grade 6 education. His lack of education has affected his ability to obtain work. He has consumed alcohol throughout his adult life and describes himself as an alcoholic.

His alcoholism contributed to his being charged with criminal offences when he was younger and with his current offence. [ 65 ] In looking at the accused’s situation, I must also take note of the fact that his home community of La Ronge has more than its share of dysfunction. The origins of that dysfunction are varied and complex and include the residential school experience, the rapid loss of the hunting and trapping way of life, a lack of employment opportunities, and way too much alcohol.

La Ronge’s community issues have no doubt made it harder for the accused to deal with his own issues. [ 66 ] If the accused is to restore a proper balance to his life and avoid any criminal re-offending, he needs to deal with his alcoholism and possibly other unresolved personal issues. That will not be easy. But whatever the challenges, I believe the accused is apt to find more success in his home community than he would in jail. The community-based sentence that I intend to put him on will expose him to risks, e.g., old drinking companions.

But he will also have help from his family, friends, probation officer, counsellors and support groups. With that help, he should be able to journey forward on a positive path. CONDITIONAL SENTENCE & PROBATION [ 67 ] For the reasons outlined, I am sentencing the accused on his charge of sexual assault to an 18-month conditional sentence to be followed by a two-year term of probation.

[ 68 ] On his conditional sentence order, the accused will be subject to the mandatory conditions set out in subsection 742.3(1) of the Criminal Code . In addition, the accused will be required to comply with the following conditions: a. That he live at a residence approved by his supervisor and not change that residence without the prior written permission of his supervisor or designate or the court; b.

That he stay inside his approved residence from 11:00 p.m. each night to 7:00 a.m. the next morning unless he has the prior written permission of his supervisor or designate or a member of the La Ronge RCMP to be elsewhere; c. That he not possess or consume alcohol; d. That he not possess or consume drugs that have not been prescribed for him by a medical doctor; e. That he not enter or be in any place in which the main purpose is the sale of alcohol, such as bars or liquor stores; f.

That he participate in assessments and complete programming for addictions, which may include in-patient and out-patient treatment, as told to do so by his supervisor; g. That he participate in assessments and complete programming for sexual offending as told to do so by his supervisor; h. That he complete 75 hours of community service work by August 31, 2016, as told to so by his supervisor; and i.

That he prepare a written apology to Adam Joe Ross approved by his supervisor and deliver that apology as told to do so by his supervisor by June 30, 2016. [ 69 ] The accused’s probation order will include the mandatory conditions set out in subsection 732.1 of the Criminal Code . It will also include the following conditions: a. That he report to a probation officer at La Ronge within two working days and after that as told to do so by his probation officer or designate; b. That he not possess or consume alcohol; c.

That he not possess or consume drugs that have not been prescribed for him by a medical doctor; d. That he not enter or be in any place in which the main purpose is the sale of alcohol, such as bars or liquor stores; and e. That he participate in assessments and complete programming for addictions, which may include in-patient and out-patient treatment, as told to do so by his supervisor. [ 70 ] I should add that with respect to both the conditional sentence order and the probation order, I have considered whether there should be a condition that the accused have no contact with the victim.

I am of the view that such a condition is not required and would not be appropriate in the circumstances. The accused and the victim are cousins who apparently socialize on a regular basis. Further, if the accused abstains from alcohol as required, there is little or no risk that the accused will cause any future insult or injury to the victim. [ 71 ] I am also ordering that the accused comply with the Sex Offender Registration Act for a period of 10 years. I am also ordering that the accused provide a bodily substance sample to the La Ronge RCMP for DNA analysis.

Lastly, I am ordering that the accused pay a victim surcharge in the sum of $100.00. [ 72 ] I wish to thank counsel for their helpful submissions in this matter. __________________________________________ S.I. Robinson, J ENDNOTES [i] . T. Quigley, "Some Issues in Sentencing of Aboriginal Offenders", in R. Gosse, J. Y. Henderson and R. Carter, eds., Continuing Poundmaker and Riel's Quest: Presentations Made at a Conference on Aboriginal Peoples and Justice (1994), 269 [ii] . http://www.statcan.gc.ca/tables-tableaux/sum-som/l01/cst01/demo10a-eng.htm

[iii] . http://www.statcan.gc.ca/pub/85-002-x/2015001/article/14226-eng.htm#a3 http://www.statcan.gc.ca/pub/85-002-x/2015001/article/14226/c-g/desc/desc03-eng.htm [iv] . http://www.statcan.gc.ca/pub/85-002-x/2016001/article/14318/tbl/tbl01-eng.htm [v] . http://www.statcan.gc.ca/pub/85-002-x/2016001/article/14318-eng.htm [vi] . http://www.stats.gov.sk.ca/stats/pop/2011Aboriginal%20People.pdf [vii] . http://www.statcan.gc.ca/pub/85-002-x/2016001/article/14318/tbl/tbl05-eng.htm