R. v. Daychief, 2023 BCPC 62

Citation: R. v. Daychief 2023 BCPC 62 Date: 20230309 File No: 182846-1 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. NIGEL SARAINE DAYCHIEF BAN ON PUBLICATION 486.4(1) CCC AND 486.4(2) of the CRIMINAL CODE ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE L. MROZINSKI Counsel for the Crown: M. Halston Counsel for the Defendant: W. Willier Place of Hearing: Victoria , B.C. Dates of Hearing: July 13, 14, 2022 Date of Judgment: March 9, 2023

[1] THE COURT: Before giving reasons in this sentencing I want to confirm that a publication ban is in effect in this matterpursuant to s. 486.4(2) of the Criminal Code prohibiting the publication of any information that would identify the victim in this case. Inaddition, I will grant the Crown’s application for an order pursuant to s. 486.4(1) of the Criminal Code prohibiting the publication of thissame information unless a Court otherwise orders. [2] Mr.

Daychief, you are here today for sentencing for the offence of sexual assault contrary to s. 271 of the Criminal Code, anoffence for which you were found guilty at trial. As I stated in my reasons after trial, I was satisfied beyond a reasonable doubt that, inthe early morning hours of July 28, 2021, the victim in this case, S.D., woke up in the bed the two of you were sharing to find youdigitally penetrating her vagina. Mr. Daychief, there is no question S.D. made it clear to you before falling asleep that she would notwelcome any physical contact of any kind from you.

Obviously, as S.D. awoke to find you assaulting her, she doubtless did not and couldnot have consented to that contact. [3] The Crown submits that an appropriate disposition in this case, bearing in mind the facts and sentencing for similar or likeoffending behaviour, is 15 to 18 months' custody to be followed by a lengthy period of probation. On your behalf, Mr. Willier seeks aconditional discharge. Mr.

Willier submits that factors supporting such a disposition include the conduct of the victim, the potentialinfluence of an illicit substance on your impulse control, the brief nature of the assault and that it stopped when the victim objected, themany Gladue factors present here, and the impact of a conviction on your prospects for employment in the security industry, let aloneperhaps as a member of a community police force. [4] In reply, the Crown submits that nothing less than a custodial sentence would be fit including because the offence constitutedthe abuse of a person who was vulnerable, not only because she was asleep and therefore unable to defend against this assault, butbecause she is Indigenous.

Crown points to s. 718.04 of the Criminal Code which bolsters the case law on sentencing for sexual assaultsgenerally in providing that the sentencing objectives of denunciation and deterrence must be given primary consideration in these cases. [5] At the same time, it is also acknowledged that, pursuant to s. 718.2(

e) of the Criminal Code, this Court is mandated to considerall available sanctions other than imprisonment that are reasonable in the circumstances. The difficulty in this sentencing is how toreconcile what are, on the face of it, at least, somewhat inconsistent obligations imposed on sentencing courts when sentencing first-timeIndigenous offenders for offences against other Indigenous persons. [6] On the one hand, 718.2(

e) of the Code requires sentencing courts to consider all available sanctions other than imprisonmentthat are reasonable and consistent with the harm done to victims, particularly in the case of Indigenous offenders. The purpose of thissection is thoroughly canvassed in R. v. Gladue, (SCC), [1999] 1 SCR 688 and in R. v. Ipeelee, 2012 SCC 13 at paras56 to 87.

It bears noting that the injunction in Gladue that sentencing courts take steps to ameliorate the overrepresentation of Indigenouspeople in Canadian prisons stated so clearly appears to have failed to such a degree as to require it to be restated in force in Ipeelee. Againand again in the sentencing cases before me, sentencing courts refer to and quote from both Gladue and Ipeelee, yet in many, many ofthe cases before me in this sentencing, Indigenous offenders have received not insubstantial custodial sentences in cases involving sexualassault.

In many of those cases, the victim or victims are themselves members of an Indigenous community. [7] The tensions between s. 718.2(

e) of the Criminal Code and 718.04 which directs sentencing courts to give primary considerationto the sentencing objectives of denunciation and deterrence when the victim is Indigenous is discussed by the Court in R. v. West, 2020BCSC 352, at paras 33 to 37.

There, it is acknowledged that s. 718.04, while not going so far as to make violence against Indigenouswomen, girls, and gender diverse people an aggravating factor on sentencing, does provide one way to reduce that violence and that is bygiving these sentencing objectives priority over the kind of restorative sentences that might otherwise be appropriate for Indigenousoffenders. [8] Still, West, acknowledges at paragraph 53 that community-based sentences that focus on rehabilitation can also addressdenunciation and deterrence.

In West, as in every sentencing cases, courts must acknowledge that sentencing is fundamentally anindividualized exercise. The fit sentence in every case will turn on a number of factors all balanced against one another. It is a highlyimperfect exercise, but one that at its core must reflect what is apparently fair or just in all of the circumstances. [9] In this case, Mr. Daychief, the circumstances include that on July 28, 2021, you found yourself in bed in a hotel room with S.D.sleeping beside you. You knew then, Mr. Daychief, that S.D. did not want to engage in any kind of sexual relations with you.

She hadconsented to travel with you to Victoria while you attended a business function, and to socialize with you from time to time, but to alsosocialize with others. She agreed to stay in your hotel room with you and to share a bed, but on the understanding that this was all purelyplatonic. On this basis, S.D. felt entirely safe falling asleep in that bed with you as she had done before, knowing you knew the groundrules and that you had agreed to those rules. [10] Awakening to find you assaulting her in the manner I have described caused S.D. considerable emotional upset.

She left the roomnearly immediately, pausing only to call [omitted for publication] for advice. Police were called and you spoke to them within hours ofthe assault. You denied the assault, Mr. Daychief, then, as you did throughout the trial. [11] At trial, while S.D. appears to have agreed she gave you a handful of magic mushrooms, it was put to her that she herselfconsumed mushrooms and alcohol and may have been mistaken about the assault.

I had no difficulty accepting S.D.’s testimony that shedid indeed wake up to the assault described and that it was real and not imagined or dreamt as a function of intoxicants. I mention this,Mr. Daychief, at this point, because on sentencing, it was submitted that the mushrooms counsel submits S.D. "trafficked" to you causedyou to lose your inhibitions and that should be seen as mitigating the assault. [12] Crown submits there is insufficient evidence on which this Court could find your consumption of these mushrooms had anyappreciable impact.

First, there is little evidence as to the amount of mushrooms consumed other than it was a handful given to you byS.D. There was no evidence on which this Court could determine the effects those would have had on you and whether those effectswould still have been present during the assault, though you had consumed these hours earlier. I find I agree with these submissions byCrown. It would be near impossible to find on this sentencing that the mushrooms you consumed had much, if any, bearing on the

assault, not the least of which because it was never raised in your sworn evidence. [ 13 ] I believe the other point of this submission was to paint S.D. as a “drug trafficker”, all the worse because she is a healthcare worker. I accept the evidence that S.D. found herself in possession of mushrooms. She gave you some and kept some for herself. I make no finding as to whether that makes S.D. a trafficker. I do say it does not make her any less a victim of sexual assault. [ 14 ] Mr. Daychief, I noted earlier in this reasons for sentence that you come before the Court at age 37 as a first-time offender.

There is no record of any kind alleged. Moreover, a Gladue Report has been prepared for the purpose of this sentencing and, in addition, Mr. Willier has, on your behalf, provided several letters of support from members of your community. These are members of the O'Chiese First Nation. With you at the sentencing hearing earlier were members of your community including one of your elders described by Mr. Willier as providing a calming effect. I do not doubt their presence then and as I see today would have given you much comfort, Mr.

Daychief, and may give you comfort still as I appreciate you and they understand the difficult situation in which you now find yourself. [ 15 ] Through your counsel, Mr. Willier, we know that you live at [omitted for publication] in Alberta in your community. Mr. Willier describes the community as a traditional community where members live a traditional lifestyle. Nonetheless, Mr.

Daychief, I think it can fairly be gleaned from the Gladue Report that, while you live on O'Chiese community lands, you are not entirely connected to the traditional lifestyle and perhaps, until more recently, with many of the community's elders. [ 16 ] Until this offence occurred, Mr. Daychief, I am told you worked as a band manager, but that as a result of this charge, that was downgraded, as Mr. Willier put it, to a security supervisor. This change included not only a loss of prestige and responsibility in the community, but also a loss of income. [ 17 ] Mr.

Daychief, you shared a lot of your personal history including your family history with the Gladue Report writer. I expect you have read the report and, having participated in it, I do not doubt that it was painful to relive those memories and to relate them to others. For the purposes of sentencing, it is apparent, Mr.

Daychief, that you have suffered many of the intergenerational and contemporary impacts on Indigenous people and communities that have been discussed in both Gladue and Ipeelee . [ 18 ] These are described in the report and summarized at paragraph 9 and include your attendance at Indian day school in which you and your siblings suffered abuse; a family and personal history of substance abuse and addiction and mental health issues; childhood exposure to family violence and alcohol, no doubt, a function of the dislocation by your parents including experience at residential schools; sexual abuse as a young child in your case; a learning disability; disassociation for a time from your community; the rejection of your paternal grandparents; and lack of opportunity.

Still, Mr. Daychief, despite all of this, at age 37, you are seen as a responsible and valued member of your community. [ 19 ] Several of its members, Elected Chief Douglas Beaverbones and Elder, Margaret Warren, have written letters on your behalf. Ms. Warren describes watching you grow into a fine young man who carries a lot of responsibilities in the community.

She described you as a role model to the youth and she writes of the impact this proceeding has had on your status in the community. [ 20 ] Chief Beaverbones describes also knowing you since you were a child and noting your more recent interest in learning more about the culture and language of your nation. Moreover, Chief Beaverbones writes that he has recommended that you apply for the upcoming plans for tribal police implementation in the O'Chiese community. Mr.

Willier notes in his submission that given your role in the security community, a criminal record would have a significant impact on those future plans. [ 21 ] I have mentioned the impact of this assault on S.D. as she awoke and left the hotel room. In this sentencing, S.D. also provided a victim impact statement outlining in some detail the effect of this event on her. S.D., now a 23-year-old member of the [omitted for publication] First Nation, writes that following these assault, she engaged in counselling for some four months.

On an ongoing basis, S.D. writes that she continues to struggle with trust in intimate relationships and is manifestly unnerved when she sees someone who bears a resemblance to you, Mr. Daychief. [ 22 ] For this offence, Mr. Daychief, the Crown submits, as I have noted, an appropriate disposition would be a custodial sentence in the range of 15 to 18 months, followed by a period of probation for 18 months in which you would be required to take counselling and, of course, to have no contact with S.D.

Crown also notes that several ancillary orders must be made, certainly at present, including a mandatory 10-year SOIRA order pursuant to s. 490.011 of the Criminal Code . There is a discretionary 10 years' firearms prohibition under s. 110 of the Code and a mandatory DNA order pursuant to s. 487.04 of the Code . [ 23 ] On your behalf, Mr. Willier seeks a conditional discharge.

He asks this Court to exercise its discretion and not make the s. 110 weapons order. [ 24 ] Turning now to the matter of sentence, the facts I have just discussed, which are the nature of the offence, the circumstances of the offender, and the impact of the victim, all play a role in determining a fit sentence. As in every sentencing, determining a fit sentence in this instance requires also a consideration of the purposes and principles of sentencing. [ 25 ]

Section 718 of the Code sets out the fundamental purpose of sentencing which is to, along with other crime prevention initiatives, protect society and contribute to respect for the law and maintenance of a just, peaceful, and safe society. This purpose is accomplished by imposing just sanctions that have certain objectives designed to accomplish the purposes of sentencing given the circumstances.

Those objectives include denouncing unlawful conduct and its resultant harm, deterrence both general and specific, separating offenders from society where necessary to protect the public, assisting in rehabilitation, providing reparation for harms done, and promoting responsibility in offenders and acknowledging the impact of their conduct. Of course, not all of the objectives will apply in every case. [ 26 ]

Section 718.1 and 718.2 of the Criminal Code set out other various sentencing principles that guide judges in crafting a just sanction that will give meaningful effect to one or more of the codified sentencing objectives.

Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 27 ]

Section 718.2 provides, among other things, that a Court that imposes a sentence shall also take into consideration the following

principles including a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstancesrelating to the offence or the offender; a sentence should be similar to sentences imposed on similar offenders for similar offencescommitted in similar circumstances; an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in thecircumstances; and all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with harmdone to victims or to the community should be considered for all offenders with particular attention to the circumstances of Aboriginaloffenders. [28]

Section 718.04, as noted, provides that: When a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances— including because the person is Aboriginal and female — the court shall give primary consideration to the objectives of denunciationand deterrence of the conduct that forms the basis of the offence. [29] It bears noting, Mr. Daychief, that this is mandatory language.

The Court "shall" give these objectives primary consideration. [30] Whatever objectives are given primacy, in sentencing, a Court must arrive at a disposition that is proportionate; that is to say, thatthe ultimate disposition must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The Gladuefactors have bearing in this regard. They can serve to reduce an offender's degree of responsibility for an offence by enabling asentencing court to take into consideration the unique systemic or background factors that may have played a

part in bringing theoffender before the Court: R. v. Eustache, 2014 BCCA 337, at paras 13 and 14. [31] Here, Mr. Daychief, I have outlined a number of Gladue factors present in your circumstances that might have contributed toyour being before this Court. I do not say there is a direct link. The many Gladue factors present here are not so obviously related to theoffence, but I accept that there is a link. [32] As for the offence itself, this is a serious offence.

That much is obvious from the many, many cases cited by the Crown in whichoffenders, including Indigenous offenders, have received custodial sentences in circumstances not unlike, but not exact, to those in thiscase. The Crown relies on these cases in support of the principle of parity, that is to say, that your sentence should be similar to sentencesimposed on similar offenders for similar offences. On your behalf, Mr.

Willier submits that many of the cases relied on by the Crown aredistinguishable, some on the facts, but primarily it seems because in many, if not most, instances, the cases involved instances where theCrown proceeded by indictment. [33] I do not propose to recite all of the details of all the cases cited by the Crown in this case, but it is necessary for the purpose ofthis sentence to discuss them, however briefly, before turning to the question whether they are entirely distinguishable based on themanner in which the Crown proceeded in this case, that is to say, summarily.

As sentencing precedents, the Crown relies on R. v. G.M.,2015 BCCA 165; R. v. Webber, 2021 BCSC 1194; R. v. Eustache, 2014 BCCA 337; R. v. Rosenthal, 2015 YKCA 1; R. v. Yamelst, 2013BCSC 1689; R. v. Hackett, 2016 BCSC 1424; R. v. Narcisse, 2017 BCSC 2485; R. v. W.F.G., 2022 BCSC 1394; and R. v. West, 2020BCSC 352. [34] On your behalf, Mr. Willier relies on R. v. Elmazini, 2019 BCSC 41; R. v. N.A.L., 2018 BCPC 52; and R. v. Tillman, 2010 SKPC2. [35] R. v. G.M. is a case in which an offender received a 90-day intermittent sentence for a brutal sexual assault involving forced analintercourse.

On appeal, that sentence was quashed and replaced with a sentence of 18 months' custody and an 18-month probation order.Neither the offender nor the victim were Indigenous, unlike the other cases I will turn to in a moment. [36] G.M. is important, in my view, for its discussion on the paramount sentencing objectives in serious sexual assault cases.

Inserious sexual assault cases, the Court writes, at paras 17 and 18, absent exceptional or unique circumstances, sentencing courts mustgive primacy to the sentencing objectives of deterrence and denunciation and that it is not an error to give those objective primacy overother objectives such as rehabilitation. Crown also points to paragraph 22 of R. v. G.M. in which the Court states that the typical range ofsentences for sexual assaults involving intercourse is two to six years. [37] I agree with Mr. Willier's observations that the facts in G.M. are far more egregious than here.

In G.M., the offender physicallyassaulted the victim and forced intercourse on the victim even as that victim begged the offender to stop. The assault in G.M. constituteda serious sexual assault, but the assault in this case is serious, as well. It is not made any less serious because other fact patterns are moreegregious. [38] The range of sentence for a serious sexual assault, described in G.M. as being from two to six years, is the range applicable incases in which the Crown has proceeded by indictment. That is true for many of the cases relied on by the Crown in this sentencing.

Mr.Willier submits that the cases are entirely distinguishable on that basis, while Mr. Halston, relying on R. v. Solowan, 2008 SCC 62, [2008] 3 S.C.R. 309, notes that the sentencing principles under the Criminal Code apply to both indictable and

summaryconviction offences. [39] I agree with that entirely. Nothing about the way the Crown has proceeded in this case affects the sentencing principles. It doesnot affect the point in G.M., for example, that in sentencing for serious sexual assault offences, the paramount sentencing objectives aredenunciation and deterrence. However, the sentencing range for an offence under s. 271 when the Crown proceeds by indictment is notthe same sentencing range for that offence when the Crown proceeds summarily. Still, it does not immediately follow that a sentencewithin the range available on a

summary conviction matter is irrelevant because it was imposed in a case in which the Crown proceededby indictment. [40] The cases relied on by the Crown most directly on point in terms of similarity of the offence and the offender include R. v.Webber, R. v. Eustache, R. v. Rosenthal, R. v. Yamelst, R. v. Hackett, and R. v. Narcisse. In many cases, Narcisse being one example, theoffending behaviour is much more serious. In other cases, the facts in almost all respects are very similar.

[ 41 ] The case of R. v. Webber is a sad one involving a 21-year-old Indigenous offender found guilty of having sexually assaulted a 17- year-old Indigenous victim. The victim, who had been drinking with Mr. Webber and others, passed out or fell asleep and awoke to find Mr. Webber had removed her pants and underwear and was digitally penetrating her while also attempting to remove her top. The victim was deeply emotionally affected by the assault with lingering feelings of anxiousness and fear, particularly as she and the offender lived in the same community. [ 42 ] The offender, Mr.

Webber, participated in a Gladue Report and the report writer confirmed the presence of number Gladue factors. In addition, Mr. Webber struggled with his own intellectual development deficits and was drunk at the time of the offence. Despite all of these factors and Mr. Webber's clear expression of remorse, he received a custodial sentence of 12 months followed by probation for two years. [ 43 ] The facts in Webber are, of course, slightly different than here. The victim was much younger, but then so was the offender. The nature of the assault differs little.

Here, unlike the case in Webber , there is little in the way of an expression of remorse by you, Mr. Daychief. Rather, as the Crown notes, the Gladue Report evidences a tendency to deflect blame from yourself, including by suggesting the mushrooms were responsible for your actions. On balance, it does not appear that the Webber disposition is so far off the mark as to be distinguishable from your case. [ 44 ] Other cases cited by the Court in the Webber sentencing are relied on by the Crown, including R. v. Eustache , another case involving a sexual assault on an unconscious Indigenous victim. Mr.

Eustache was 48 years old when he removed the pants of a young unconscious victim attending a party at his home and rubbed his bare genitals against hers. Fortunately, for the victim, Mr. Eustache was interrupted and the assault ended. Mr. Eustache presented with numerous Gladue factors which all agreed served to reduce his moral culpability for the offence. Still, given the nature of the offence and the impact on the Indigenous victim, his 12-month custodial sentence was upheld on appeal. [ 45 ] R. v.

Rosenthal is a case in which a two-year suspended sentence was overturned on appeal and replaced by a 14-month custodial sentence. Neither Mr. Rosenthal nor his victim were Indigenous. Both were present at a party and drinking. Both agreed the victim could share the defendant's bed rather than go home. The victim awoke to find Mr. Rosenthal's fingers in her vagina. She removed his hand and left.

There is no question the nature of the assault in Rosenthal is nearly indistinguishable from the assault in this case. [ 46 ] In overturning the sentencing order below, the Court of Appeal appears to have accepted the submission that the sentencing judge erred in failing to follow the sentencing range for similar offences for similar offenders which was roughly 12 to 30 months' imprisonment. Again, accepting the range for indictable offences might be different than those for

summary conviction offences, the case is not on that score wholly inapplicable. Moreover, an important point in Rosenthal , in my view, is made at paragraph 12 where the Court writes that: A suspended sentence does not serve the principles of denunciation and deterrence, which are especially important given the prevalence in Yukon of sexual assaults on sleeping or unconscious victims … [ 47 ] At first blush, that statement would suggest the case must be limited to application in the Yukon, but in my view, it has broader application.

Firstly, there are numerous cases before me in this sentencing involving sexual assaults on sleeping or unconscious victims. These include not only the cases referred to by the Crown, but cases referenced within those cases including R. v. Wells , 2000 SCC 10 ; R. v. Rand , 2012 ONCA 731 ; R. v. Goodliffe , 2005 BCCA 426 ; R. v. Shalley , 2005 MBCA 150 ; R. v. Lepine , 2013 NWTSC 19 ; R. v. A.A.F. , 2014 BCPC 46 ; R. v. Aftergood , January 26, 2012, Victoria 145042; and R. v.

Ingrey , 2003 SKQB 300 , just as examples. [ 48 ] Sexual assaults upon sleeping or unconscious victims are clearly not a phenomenon known only in the Yukon. Secondly, the wealth of cases in the Yukon and other jurisdictions nearly all involved custodial sentences for similar sexual assaults. The notion that a suspended sentence in the case of a serious sexual assault does not serve the principles of deterrence and denunciation is broadly shared. [ 49 ] In R. v.

Yamelst , the defendant received an 18-month custodial sentence after being found guilty at trial of having penetrated the victim with his penis while she lay passed out on a bed in a house party. Obviously, the assault in Yamelst was much more serious. Still, both the victim and the defendant were Indigenous persons. Mr.

Yamelst presented with numerous Gladue factors having lived a tragic life marred by an alcohol and drug addiction from age 13. [ 50 ] The defendant, Wilfred Douglas Hackett, a 30-year-old Indigenous male received a custodial sentence of two years less a day after being found guilty after trial of an attempt to penetrate the victim's vagina with his penis while the victim was unconscious. The Court was also satisfied that the victim, also Indigenous, suffered significant emotional trauma because of the assault.

Based on numerous sentencing authorities, again, many involving sexual assaults on sleeping or unconscious victims, the Court imposed a custodial sentence at the low end of the range, certainly when the Crown proceeds by indictment, largely because of the significant Gladue factors present in the case. [ 51 ] I alluded to the Narcisse case earlier and, as Mr. Willier submits, it is clear that the facts in Narcisse are much more egregious than here. Still, Mr.

Narcisse entered a guilty plea and admitted to the brutal sexual assault of a young Indigenous victim who was so unconscious at the time of the assault, she only learned of it when told by one of her rescuers. The victim described the impact of the offence and it was devastating. In sentencing Mr.

Narcisse to two years less a day, this despite the Gladue factors present, the Court acknowledged at paragraph 47 the general rule that: Absent exceptional or unique circumstances, it is incumbent on the sentencing judge to give primacy to the [sentencing objectives of] deterrence and denunciation when imposing a sentence for a serious sexual assault … [ 52 ] Finally, in R. v. W.F.G . , the offender, a 49-year-old Indigenous male, was found guilty following trial of having assaulted an 18- year-old Indigenous victim by placing his fingers in her vagina as she lay asleep or passed out in a vehicle.

The victim had little recollection of the incident, but was nonetheless shaken to the core and not least because she had known the defendant all of her life and considered him to be a close family member. The question whether a jail term was appropriate was never questioned in the case, the only question being the length of sentence. Despite the presence of significant Gladue factors serving to reduce the offender's moral

culpability, the Court imposed a custodial sentence of 28 months. [ 53 ] Mr. Willier provided three authorities on your behalf, Mr. Daychief, in which offenders found guilty of sexual assault have received community-based sentences. In R. v. Elmazini , a conditional discharge was upheld on appeal in a case in which the offender was found guilty at trial of having kissed and touched the breasts of an employee in the back of his restaurant. Clearly, as in W.F.G. , the case involved a significant breach of trust as well as sexual assault.

The sentencing appeal court acknowledged in that case that a conditional discharge is rare in circumstances where a sexual assault is committed by an employer or other person in a position of trust. It conceded, however, that the nature of the assault, though, in the workplace was at the lower end of the continuum of sexual assaults. [ 54 ] In R. v. N.A.L. , the Court imposed a conditional sentence order of six months on the offender who had nonetheless sought a conditional discharge.

In what appears to be a guilty plea, the defendant was sentenced for having attempted to force his wife to have intercourse shortly after the birth of their child. After what is described as a struggle, N.A.L. stopped, but only after the victim struck him. At the sentencing hearing, the Court learned the couple had separated and that N.A.L. was at the time suffering from a deadly genetic disease.

It was for that reason the Crown sought a conditional sentence order, which I noted was granted. [ 55 ] Finally, Eric Tillman was granted an absolute discharge after pleading guilty to the sexual assault of his family's 16-year-old babysitter. In the sentencing decision, the Court writes that Mr. Tillman, having taken several painkillers to relieve back pain, was sent home by his employer as he appeared disoriented and not himself. Mr. Tillman has no recollection of arriving at his home, nor of him pulling the victim's rear toward himself and touching her in a sexual manner.

Accepting that the assault was entirely out of character for the offender and accepting he had no recollection of the event because of the medication, the Court did issue the absolute discharge. [ 56 ] All of these cases involved sexual assaults at the low end of the continuum of such conduct. None are comparable to the assault in this case. None involve an Indigenous victim. [ 57 ] Many of the cases I have just discussed involve not only Indigenous victims, but what could only be described as profoundly intrusive assaultive behaviour.

The behaviour described in the cases involves conduct that "violates bodily and sexual integrity, and gravely wounds dignity”: R. v. Thomas , 2022 BCSC 2297 , at para 41 . This includes, and here there is no doubt, instances such as the offending conduct in this case. Moreover, as the Court has held in numerous cases, in principle at least, there is no compelling reason to differentiate between penile rather than digital penetration in sexual assault cases. Both are invasive.

Both profoundly impact the victim of such unwelcome and unwanted contact, physically, emotionally, and psychologically. [ 58 ] Turning, first, to the question of the appropriate disposition in this case, I find for the reasons I will now set out that a conditional discharge in these circumstances is not a fit disposition. It would, in my view, be contrary to the public interest. [ 59 ] Mr. Daychief, on your behalf, it was submitted that a conditional discharge for the offence is in your interest.

First, if anything more substantial than a conditional discharge were granted, it would result in a criminal conviction and a conviction would adversely affect your future plans, including possibly joining your community-based police force. Even still, as a first-time offender, a criminal conviction would complicate your life, in any event. Mr. Daychief, I can accept that a conditional discharge would serve your personal interests. Of that, I have no doubt, but I must also be satisfied it would not be contrary to the public interest and it is here I find I disagree with Mr.

Willier. [ 60 ] A conditional discharge in this case in no way serves the public interest and would be contrary to that interest. There can be no doubt, following this review of the many sentencing decisions for this type of offence and for this type of victim, that whatever else I do, I must place significant weight on the sentencing objectives of denunciation and deterrence. A conditional discharge in these circumstances is a sentence that focuses entirely on your personal circumstances, Mr. Daychief, and the impact on you of a criminal conviction.

It hardly serves to denounce your conduct and it seems to me would entirely fail to deter others, let alone you, from engaging in this harmful contact again. [ 61 ] Such a sentence is contrary to the public interest because it would fail to achieve the very purposes of sentencing. It might even serve to embolden offenders in the future. It would certainly serve to trivialize this offence and the impact on this victim. For these reasons, I decline to grant you a conditional discharge.

Based on the sentencing decisions I have discussed as well as the sentencing principles and objectives I have outlined, I find the sentence in this case must be a custodial sentence. [ 62 ] The only question for me, given the Gladue factors, is whether I can order the sentence be served in the community by way of a conditional sentence order or whether it must be served in an institution. In addition, I must consider the length of sentence and that is informed by the mitigating and aggravating factors present in this case. [ 63 ] Mitigating factors in this case, Mr.

Daychief, include that you are here before the Court as a first-time offender; that you have the support of your community and work in that community; and while not exactly a mitigating factor, I must not lose sight of the Gladue factors in this case as they inform the fundamental sentencing principle of proportionality. [ 64 ] Aggravating factors include that the victim was sleeping when the assault occurred and, therefore, was quite obviously vulnerable. It is also what makes this offending behaviour predatory in nature.

It is an aggravating factor that the two of you had established a level of trust, at least to some degree. The inescapable fact, Mr. Daychief, is that S.D. would not have fallen asleep in that bed beside you if she had not been confident you understood and agreed with the terms of your mutual relationship. Your very ability to commit this offence was based on that trust and the offence itself is a breach of that trust.

It is also aggravating that, as a result of the assault, S.D. needed counselling which she took and still experiences feelings of fear and anxiety to this day. [ 65 ] It is not, as the Court writes in R. v. West at para 37 , an aggravating factor that S.D. is an Indigenous woman. That fact is intended to focus the sentencing court on the appropriate sentencing objectives as I have discussed earlier. [ 66 ] Having concluded that a fit disposition in this case is a custodial disposition, I have considered whether it is one that could be served in the community by way of a conditional sentence order.

This disposition, though sought by none of the parties, is available in this case. The Crown has proceeded summarily and the maximum sentence is 18 months. Therefore, the sentence is available for that

reason. [67] In addition, Mr. Daychief, you have been on release for some time pending the resolution of this case. You come before theCourt with no record. You live in a somewhat remote close-knit community in Alberta. You are known by many, if not all, members ofthat community. You appear to represent no threat to the safety of the community. I also have no doubt that you would abide by anyconditions I would impose and, as such, I am satisfied you could serve a CSO safely in the community. [68] The only question is whether such a disposition meets with the purposes and principles of sentencing in this case.

Though you didnot seek such a disposition, the Crown in its submissions maintains that a CSO is not appropriate in this case and that it would notadequately address the principles of denunciation and deterrence. As the parties well know, a CSO can, given its terms, meet thesentencing objectives of denunciation and deterrence. The question is can it, in this case, this case being one involving an Indigenousoffender and Indigenous victim, of a serious sexual assault. [69] In R. v.

Wells, 2000 SCC 10 , [2000] 1 S.C.R. 207, the Court ultimately upheld a custodial sentence for an Indigenousoffender found guilty of having sexually assaulted an 18-year-old Indigenous woman who was either unconscious or asleep. The victimhad no memory of the assault, but medical evidence showed evidence of vaginal abrasion, but no penetration. [70] At issue on appeal in Wells was whether the sentencing judge erred in rejecting a CSO by placing too great an emphasis on thesentencing objectives of denunciation and deterrence and too little on the offender's rehabilitation as s. 718.2(

e) of the Code mandates; inother words, that the sentencing judge failed to apply the Gladue principles in the case and, instead, focussed on the victim and potentialfuture victims.

Certainly, the sentencing judge in Wells characterized the offence as serious, sometimes referring to it as "near serious." [71] It was on that basis that the sentencing judge rejected a conditional sentence order relying on the often-cited passage ofparagraph 79 of Gladue to the effect that the more violent and serious the offence, the more likely as a practical matter that theappropriate sentence will not differ as between Aboriginal and non-Aboriginal offenders given that, in these circumstances, the goals ofdenunciation and deterrence are accorded increasing significance. [72] Still, and even while upholding the sentence below, Justice Iacobucci writing for the Court in Wells at paragraph 50 notes that: The generalization drawn in Gladue to the effect that the more violent and serious the offence, the more likely as a practical matter forsimilar terms of imprisonment to be imposed on aboriginal and non-aboriginal offenders, was not meant to be a principle of universalapplication.

In each case, the sentencing judge must look to the circumstances of the aboriginal offender. In some cases, it may be thatthese circumstances include evidence of the community’s decision to address criminal activity associated with social problems, such assexual assault, in a manner that emphasizes the goal of restorative justice, notwithstanding the serious nature of the offences in question. [73] The sentencing objectives of denunciation and deterrence that apply in this case do not as a general rule favour a CSO.

Theseobjectives apply here and are paramount because of the serious nature of the assault, the sentencing precedents I have reviewed, and s.718.04 of the Code which mandates that they be given paramountcy. Still, s. 718.2(

e) must be considered, in particular, whether and towhat degree the remedial purpose of the

section and its focus on restorative justice can justify something other than a sentence ofincarceration despite these other factors. [74] The difficulty I have in this regard is that there is little to nothing in this sentencing that supports a shifting of the balance fromthe objectives of denunciation and deterrence to an emphasis on restorative justice. I have noted I do not see a direct line between theGladue factors outlined in this case and the offending conduct, though I accept there is a link. Mr. Daychief, you and S.D. were friendsand had been for some time. You were both simply sharing a hotel room.

You were in town on business and she was a friendaccompanying you. Aside from the mushrooms, the effect of which I am unable to determine, there is little in the way of explanation foryour conduct. It was unplanned and, though you knew S.D. wanted no contact of that kind, you took advantage of her vulnerability. [75] Nothing in these sentencing materials or submissions signals much in the way of remorse.

Rather, as the Crown notes in itssubmissions, there is an attempt to deflect responsibility, to blame the mushrooms, and frankly, to blame S.D. for giving them to you.There is nothing presented in this sentencing hearing that this Court could hold up as supporting a sentence that would give paramountcyto your rehabilitation, to restorative justice over the other sentencing objectives.

There is no history of your engaging in counselling toaddress this, no future plans, no outline of any community plan to address this offending behaviour, no recognition, really, of the harmcaused to the victim. [76] For these reasons, I am driven to conclude that a CSO would not meet the purposes and principles of sentencing in thesecircumstances. It would serve only to shift the balancing in this sentencing in such a way as to place a greater weight on yourrehabilitation over the other sentencing objectives and the facts in this sentencing do not support that shift.

As such, the sentence must bea custodial sentence. [77] I have mentioned the length of sentence is determined by mitigating and aggravating factors as well as all of the other factors Ihave discussed, including the seriousness of the offence and the degree of your responsibility for the offence. It is reduced, to be sure,but it is still not insignificant. A fit sentence must send a message of denunciation and deterrence. At the same time, this Court must dowhat it can to reduce, if not the presence of Indigenous offenders in custody, then the time spent in custody as is reasonable in thecircumstances.

In my view, given the various sentencing precedents before me and recognizing their limitations, I find that a custodialsentence of 12 months is a fit sentence and so, Mr. Daychief, I do hereby sentence you to 12 months' custody for the offence of sexualassault contrary to s. 271 of the Criminal Code. That custodial sentence is to be followed by a period of probation for 18 months. [78] While you are in custody, Mr.

Daychief, and pursuant to s. 743.21 of the Criminal Code, you are prohibited from having anycontact or communication with S.D. [79] The probation order will be as follows. [80] First of all, you must report in person to a probation officer at 836 Courtney Street, Victoria, British Columbia, within two

business days of your release from custody, unless you have obtained, before your release, written permission from a probation office to report elsewhere or within a different timeframe and, after that, you will have to report as directed. [ 81 ] Your reporting requirement will terminate once you have satisfied your probation officer that you have completed all your counselling or that none is necessary and they have told you that you no longer need to report. [ 82 ] There is an order that you have no contact or communication directly or indirectly with S.D. [ 83 ] You must not go to any place where S.D. lives, works, attends school, worships, or happens to be.

If you see her in any of those places, you must leave her presence immediately without any words or gestures. [ 84 ] You must attend at, participate in, and successfully complete any intake, assessment, counselling, or treatment program that may be ordered by your probation officer. That should include Respectful Relationships. [ 85 ] You are prohibited from possessing any weapons as those are defined in s. 2 of the Criminal Code . [ 86 ] Those, then, Mr.

Daychief, are the conditions of the probation order that you will be bound by for 18 months following your release from custody. [ 87 ] I have to make several other ancillary orders, Mr. Daychief, as well. [ 88 ]

Section 271 is a mandatory designated DNA offence. In accordance with s. 487.051(1) of the Criminal Code , I make an order in Form 5.03 authorizing the taking of bodily substances from you for the purposes of registration in the national DNA databank.

The samples will be taken from you while you are in custody and you must submit for the taking of those samples. [ 89 ] I have declined to exercise my discretion and order a s. 110 firearms prohibition over and above the order prohibiting the possession of weapons in the probation order. [ 90 ] Finally, s. 271 is also a primary designated offence pursuant to s. 490.01 of the Criminal Code .

Because the maximum term of imprisonment for this offence is 18 months, in accordance with s. 490.013(2)(a), I am ordering you to comply with the Sex Offender Information Registration Act for a period of 10 years, and that is subject to any submissions by counsel as to whether that order should be made in light of the decision of the Supreme Court of Canada. [ 91 ] Mr. Daychief will get a copy of the probation order while he is in custody. He will have to sign that. That will be read out to him again. [ 92 ] I will, as I say, on the record, direct, if possible, that Mr.

Daychief be able to serve his sentence at Kamloops Regional Correctional Centre which is closer to his home in Alberta. (REASONS FOR SENTENCE CONCLUDED)