R v CG, 2022 ABKB 696

Court of King’s Bench of Alberta Citation: R v CG, 2022 ABKB 696 Date: 20221021 Docket: 200281509Q1 Registry: Edmonton Between: His Majesty the King Crown - and - CG Accused Corrected judgment: A corrigendum was issued on October 27, 2022; the corrections have been made to the text and the corrigendum is appended to this judgment. Restriction on Publication Identification Ban – See the Criminal Code ,

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 By Court Order, information that could identify the victim must not be published, broadcast, or transmitted in any way.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

of the Honourable Justice L.M. Angotti _______________________________________________________ [ 1 ] I provided this decision orally on October 3, 2022, so that CG could begin his sentence. Introduction [ 2 ] On November 5, 2021, CG was found guilty by a jury on three counts, being 1) sexual assault with a weapon, 2) sexual assault, and 3) assault, all as against his then common law wife.

The charges arose from incidents in the morning and afternoon of March 3, 2020. [ 3 ] These charges involve domestic violence, the prevalence and seriousness of which has been recognized by the Supreme Court of Canada and appellate courts across the nation for decades. [ 4 ] I must determine the appropriate sentence for CG for these offences. [ 5 ] The evidence in the sentencing proceedings included an Agreed Statement of Facts; a Pre-sentencing Forensic Mental Health Assessment Report by Dr. Erin Will; two letters and an email from Dr.

Dean Buhr; five character reference letters; and the victim impact statement of the victim. When provided the opportunity to speak prior to sentencing, CG expressed shame and regret for his actions . [ 6 ] The Crown seeks a global sentence of 6 to 7 years. The sentences for sexual assault and assault would run concurrently, with 4 to 5 years for the sexual assault and 3 months for the assault. These would be reduced to 3 years for totality .

The sentence for sexual assault with a weapon would run consecutively to the other sentences, with a sentence of 5 to 6 years reduced to 3 to 4 years for totality. [ 7 ] The Defence seeks a global sentence of 4 years, with sentences for all charges running concurrently. Specifically, the sentence for sexual assault with a weapon would be 4 years, sexual assault would be 3 years, and the assault would be one year. Factual Background and Personal Circumstances [ 8 ] The facts are well set out in the Agreed Statement of Facts. In

summary, on March 3, 2020, CG was upset with his partner because, from his perspective, she was not willing to engage in a selfless act to support the family, because she refused to engage in sexual acts with him to help him sleep. His partner refused to engage in sexual activity, but stayed home from work to help look after the two children. While she was with the children in the living room, CG grabbed her by the leg and dragged her up the stairs to the bedroom. While in the bedroom, CG incessantly berated and degraded her for about 30 minutes on her inability to be selfless, as recorded on the victim’s phone.

He told her that she needed to give him oral sex when she didn’t want to, to demonstrate that she was capable of doing a truly selfless act. During this time, while the victim was crying and communicating that she did not consent, CG forced her to engage in fellatio and attempted vaginal-penile intercourse. This sexual assault ended upon the then 3-year-old child entering the bedroom and the parents immediately pretending that they were playing hide and seek. Following this incident, the victim contacted the non-emergency police line, but the police did not attend.

These are the facts underlying the convictions for assault and sexual assault. [ 9 ] Around mid-day, CG was leaving to do some errands and told the victim that he expected her to be upstairs in her schoolgirl outfit by the time that he returned. Upon his return, she was on the main floor. He carried her up to the bedroom and when she refused to engage in sexual acts, he threatened her by holding a small dresser over her head to gain her compliance. Fearing that he would drop it on her, his partner performed fellatio until CG ejaculated.

Following this incident, she ran outside in cold weather without a jacket and called 911. No police arrived that day. These are the facts underlying the conviction for sexual assault with a weapon. [ 10 ] The next day, conflict between CG and the victim continued. She locked him out of the house and he called 911 twice to report her as a child abuser. The police attended the residence and CG was arrested and charged. [ 11 ] At the time of the sexual assaults, CG was just shy of 30 years old.

He did not have a criminal record at the time, but has since been convicted of breach of his release conditions arising from these charges. As that conviction arose after these incidents, the conviction is not relevant to sentencing. [ 12 ] During the trial, evidence was led that CG had undergone a change in medication for his ADHD and was having trouble sleeping as a result. He underwent a FACS assessment by Dr. Will after his conviction, which resulted in diagnoses of mild ADHD and borderline personality disorder, the latter with antisocial and narcissistic personality traits. Dr.

Buhr considered the diagnoses appropriate. Dr. Will noted that the personality disorder could result in a person struggling to take responsibility for their actions, instead projecting that responsibility onto others, and engaging in inappropriate anger management. She felt that this was the sole mental health issue contributing to his conduct in the sexual assaults and recommended specific treatment. [ 13 ] The FACS assessment and some of the character references also set out the historical circumstances of CG, including emotional and physical abuse during his childhood while living in significant poverty.

His parents separated when he was about four, following which his mother and some of her partners abused him. At or after the age of 10, he was placed in a group home for one year,

returned briefly to his mother’s house, and then lived with his grandfather for about a year. He got into trouble and his grandfatherkicked him out. During school, he experienced bullying due to a speech impediment and struggled to make friends. [14] He also has a chronic pain condition, as a result of a workplace injury. In addition, CG had a substance use disorder involvingalcohol and MDMA, which had resulted in seizures, but was now in sustained remission. He also used cocaine as an adult starting at age25.

There was no evidence that alcohol or drugs were involved in the sexual assaults. [15] CG attended counselling with Dr. Buhr from July 31 to October 9, 2020 and then on a more frequent basis from May 6, 2021to the date of sentencing. CG sought out therapy to deal with anger management and childhood abuse, which therapy then began toaddress relationship management, ADHD, grief and loss, and related issues. His treatment focused upon acceptance and commitmenttherapy, cognitive behaviour therapy, and emotion focused therapy.

Following receipt of the FACS assessment, CG also started dialecticbehaviour therapy as recommended by Dr. Will. Dr. Buhr advised that CG took an engaging and active role in his therapeutic treatmentand made progress. Sexual Assault, Starting Points, and Legislative Amendments [16] The Alberta Court of Appeal set a starting point for major sexual assault involving an adult victim, without a guilty plea, for amature offender without a criminal record and of good character, at 3 years incarceration: R v Arcand, 2010 ABCA 363 at para 169; R vSandercock, (1985), 1985 ABCA 218 , 62 AR 382 (CA) at para 17.

A major sexual assault is defined at para 171 of Arcand,which involves a sexual assault that could reasonably be foreseen as likely to cause serious psychological or emotional harm, even ifphysical injury does not occur. The focus is not on the level of force used, but the absence of consent, regardless of whether overt forcewas used or threatened: Arcand, at para 172. Therefore, this is not the starting point for sexual assault with a weapon nor does it requireovert violence during the sexual assault.

There is no dispute that CG committed two major sexual assaults. [17] Both the Crown and the Defence agreed that the starting point in Arcand no longer applies due to the deepened understandingof the Courts about sexual assault in relation to intimate partners and the 2019 amendments to the Code.

However, as this represents adeparture from the past, the analysis leading to that conclusion should be set out. [18] I recognize that a starting point sentence is to serve as a guideline, not a hard and fast rule or binding precedent, and that thesentence imposed still needs to be arrived at based on the sentencing principles set out in the Criminal Code: R v Friesen, 2020 SCC 9 atpara 37, 114.

Increases may be supported by statutory aggravating factors or statutory provisions that require specific considerations bythe sentencing justice: Friesen, para 116. [19] The latter encompasses two relatively recent amendments to the Code, sections 718.04 and 718.201. Combined, these sectionsprovide that, of all the sentencing objectives set out in s 718, the primary objectives are denunciation and deterrence where it is abuse ofan intimate female partner and the increased vulnerability of females is a factor in determining sentencing.

This is in addition to, notredundant of, the statutory aggravating factors of 718.2(a)(ii), abuse of an intimate partner, and 718.2(a)(iii), abuse of a position of trustand authority. Although this victim is not Aboriginal, this situation involved abuse of the accused’s common law wife. Thus, the primaryconsideration here is to impose a sentence that denounces domestic violence in clear terms and deters both CG and other spouses fromengaging in such violence in the future. [20] In Friesen, the Court addressed a similar provision, s 718.01, in the context of sexual assault of children.

Their analysis isenlightening with respect to the application of s 718.04. The Court started that assessment at para 101: Parliament's decision to prioritize denunciation and deterrence for offences that involve the abuse of children by enacting s. 718.01 of theCriminal Code confirms the need for courts to impose more severe sanctions for sexual offences against children. [21] In R v Bunn, 2022 MBCA 34 and R v Wood, 2022 MBCA 46, s 718.04 and other sections were considered. A legislativereview was completed.

In both cases, the Court noted (Bunn, at para 100; Wood, at para 38): In the second reading of Bill C-75, the Hon Jody Wilson-Raybould noted that one of its key areas of reform was to bolster the responseof the justice system to intimate partner violence. Bill C-75 ushered in both s 718.04 and 718.201. These sections are applicable to all female victims, although Aboriginal women areaccorded special consideration.

These sections are substantive, rather than just a codification of the common law: Wood, supra at para45. [22] The introduction of these sections relates back to the issue of starting points, as departure may be required from suchprecedents if they pre-date such changes in legislation, as well as more recent precedents if they simply follow “...the more datedprecedents that inadequately recognize the gravity of sexual violence against children…” or adults: Friesen, supra at para 110; R vKolola, 2021 NUCA 11 at para 36.

This caution must also be applied to many of the precedents provided by the Crown and CG, as theypre-date the introduction of these sections, which express the legislature’s will to signal the gravity of offences against intimate femalepartners as a reflection of society’s view. [23] The deepening understanding of the harms of sexual assault and domestic violence, recognized by the Supreme Court ofCanada and other courts, may be a factor in departing from precedent: Bunn, supra at para 76-80. This was one factor noted in Friesen,the other being the increase in maximum sentences.

I recognize that the maximum sentences for sexual assault and sexual assault with aweapon have not increased. However, there is an increase for repeat offenders of intimate partner violence in s 718.3(8), another additionto the Code in 2019. This is not a situation of a repeat offence. Denunciation and Deterrence

[24] Sentencing judges are to consider the impact of a

section directing that the primary objectives are denunciation anddeterrence, on the relative importance of the enumerated sentencing objectives in s 718. An emphasis on denunciation and deterrencesupports an emphasis on separation from society, which reinforces and gives practical effect to deterrence and denunciation. TheDefence submits that this does not completely override or subordinate the other principles, particularly rehabilitation.

I agree, as itremains in the sentencing judge’s discretion to accord significant weight to rehabilitation or other principles, to ensure proportionality:Friesen, supra at para 103-104. But deterrence and denunciation remain paramount and may overwhelm rehabilitation efforts in respectof an appropriate sentence: R v Friginette, (BCCA) at para. 7; Arcand, supra. [25] When considering deterrence, I must consider both specific deterrence and general deterrence. This is important, even wherein the particular circumstances, the offender has taken rehabilitative steps and the victim supports the offender.

General deterrence ofdomestic violence crimes against intimate partners is of primary importance, given s 718.04, to discourage other members of society whomay be tempted to engage in domestic violence. Still, the Supreme Court has cautioned that “a person cannot be made to suffer a grosslydisproportionate punishment simply to send a message to discourage others from offending”, due to the restraint function ofproportionality: R v Bissonnette, 2022 SCC 23 at para 47, 51.

Proportionality is the Fundamental Principle [26] As noted by the Defence, the fundamental sentencing principle remains proportionality, which considers the gravity of thesexual offence and the degree of responsibility of the offender: Friesen, supra at para 30; Bissonnette, supra at para 50. [27] In dealing with proportionality in sexual offences, the sentencing judge must consider the wrongfulness and harmfulness ofthe conduct, as that impacts both the gravity of the offence and the degree of responsibility of the offender: Friesen, supra at para 75.Assessment of the gravity and degree of responsibility requires a review of aggravating or mitigating circumstances.

Aggravatingcircumstances tend to increase the gravity or degree of responsibility; mitigating circumstances have the opposite effect. Gravity of the Offence [28] The gravity of the offence considers both the wrongfulness or character of the offender’s conduct and the harmfulness, bothpotential and actual, of the conduct to the victim, others, and society as a whole. [29] Violence is inherent in and integral to the act of sexual assault, as the offence requires the application of force. Violencecauses harm, both psychological and potentially physical.

It is a serious violation of sexual integrity, bodily integrity, privacy, andfreedom of choice. Sexual assault is inherently wrongful, consisting of volitional rather than accidental conduct. An absence of physicalinjury does not support the assumption of “no real harm done”.

It causes substantial harm to both the victim and society, as harm to onemember of the community affects the rights and security of other members, especially for crimes of violence against women: Friesen,supra at para 76-77; Arcand, supra at para 57, 176, 179, 274-275. [30] Mirroring the language in Friesen, supra at para 5, sexual offences against intimate partners are violent crimes thatwrongfully exploit the intimate female partner’s vulnerability and cause profound harm to children, women, families, and communities.For this reason, the Supreme Court of Canada determined that crimes for sexual offences against children must increase, whenconsidering the fundamental principle of proportionality, to accurately reflect the wrongfulness of sexual violence and its far-reachingimpacts both within families and society at large. [31] The Defence submits that the Court must consider the victim’s views when determining a sentence, based upon s. 14 of theCanadian Victims’ Bill of Rights, including her view for a lenient sentence.

Relevant to this issue are also the statements in the characterreferences, where the writers ask this Court to impose a lenient sentence. [32] Sections 722(1) and (8) of the Code requires the Court to consider any statement of a victim describing the physical oremotional harm, property damage, or economic loss suffered by the victim as a result of the offence and its impact. The Court is todisregard any other portion of a victim’s statement. The same would apply to the character references, to the extent that they seek tosupport a lower sentence.

The words of Hetherington J.A. from R v Coston, (1990) 1990 ABCA 200 , 108 A.R. 209, as cited inR v Brown, 1992 ABCA 132 at para 23 are an apt response: Domestic violence is not in any way different from violence in the street except that frequently the victim, because of his or heremotional involvement with the offender, does not want to see the offender punished. If courts give effect to the wishes of victims in thisregard, persons inclined to assault family members will feel that they can do so with impunity.

In my view, in the interest of general andspecific deterrence, domestic violence must be treated in the same way as violence outside the family. This same conclusion is reflected in Friginette, supra at para 6, even while recognizing the harm to the victim of not only the sexualassaults and abuse itself, but the harm to the family life when the offender is incarcerated. [33] I will consider the victim’s statements with respect to the impact of CG’s sexual assaults upon her.

I will consider thecharacter references with respect to his personal circumstances, expressions of remorse, and his attempts at rehabilitation. But I will notconsider any wish or desire expressed with respect to the level of sentence to be imposed. [34] Actual harm is also a key determinant of the gravity of an offence: Friesen, supra at para 85.

The Court should focus onemotional and psychological harm, not just physical harm: Friesen, supra at para 56. [35] In her statement, the victim said she has been positively, rather than negatively, impacted by the assaults as it has helped hergrow into a stronger and more mature individual, such that she has forgiven CG and reconciled with him. CG and his partner are nowmarried and she wishes to continue their family and relationship. Throughout the court process, the victim has steadfastly supported CG.

She sought, unsuccessfully, to convince the Crown to forego the prosecution of the matter. She assisted CG in an attempt to leave the country before trial. She married CG after the trial. [ 36 ] But while the victim states that she has turned the harm done to her into positive growth for herself and her family, the evidence at trial established that harm had occurred. She provided a consistent account of what occurred to both the police and the Court. That account established most of the facts upon which CG was found guilty. This included the level of assault and her fear of harm from his use of the dresser.

It was also apparent from her recording of the sexual assault, her actions in calling 911, and the events of the day after the assaults, that she suffered both emotional and psychological harm. [ 37 ] Therefore, the gravity of these violent offences against an intimate partner is significant. Responsibility of the Offender [ 38 ] Courts have warned against discounting an offender’s degree of responsibility by relying on stereotypes that minimize the harmfulness or wrongfulness of sexual violence: Arcand , supra at para 69 ; Friesen , supra at para 43, 89 .

The Supreme Court of Canada applied this reasoning to adults ( Friesen , supra at para 89 ): All forms of sexual violence, including sexual violence against adults, are morally blameworthy precisely because they involve the wrongful exploitation of the victim by the offender -- the offender is treating the victim as an object and disregarding the victim's human dignity (see R. v. Mabior , 2012 SCC 47 , [2012] 2 S.C.R. 584, at paras. 45 and 48 ).

As L'Heureux-Dubé J. reasoned in L. (D.O.) , "the occurrence of child sexual abuse is one intertwined with the sexual abuse of all women" precisely because both forms of sexual offences involve the sexual objectification of the victim (p. 441).

Courts must give proper weight in sentencing to the offender's underlying attitudes because they are highly relevant to assessing the offender's moral blameworthiness and to the sentencing objective of denunciation (Benedet, at p. 310; Hajar , at para. 67). [ 39 ] At the same time, the Court must still consider relevant factors that may reduce the offender’s moral culpability, such as personal circumstances, or factors that either reduce or increase moral culpability: Friesen , supra at para 91 ; Arcand , supra at para 58 .

Aggravating Factors [ 40 ] The Crown submits that the aggravating factors for both sexual assaults are intimate partner violence and breach of trust, planned and deliberate nature of the assaults, and degrading and demeaning conduct. Additional aggravating factors for the first sexual assault are the presence of children and the use of gratuitous violence. [ 41 ] The Defence submits that the one aggravating factor is the domestic context, which encompasses any consideration of the offences occurring in the victim’s home.

The Defence also agrees that CG’s use of a weapon can be aggravating, if the counts are sentenced concurrently, but not if they are sentenced consecutively as that sentence will consider the weapon in a different way. [ 42 ] The use of a weapon in sexual assault with a weapon is not an aggravating factor, although the manner in which it is used may be: R v AB , 1997 ABCA 385 at para 10 . In that case, the Court determined that, where a knife was used against a young victim in her home, a 4.5 year sentence for sexual assault with a weapon was at the "very bottom of the scale”.

This is the guidance that I will use when addressing the sexual assault with a weapon, rather than consideration of the weapon as an aggravating factor. [ 43 ] Abuse of a position of trust and abuse of an intimate partner are both statutory aggravating factors under s 718.2(a). They increase the offender’s degree of responsibility: Friesen , supra at para 129 ; R v AV , 2020 ABQB 190 .

In addition to these aggravating factors, s 718.201 requires consideration of the increased vulnerability of female victims when a crime involves abuse of an intimate partner. [ 44 ] These aggravating factors weigh heavily in these circumstances. On three separate occasions, the victim told CG that she did not consent to sexual activity with him. The first was when they were arguing in the early morning. Despite that conversation, CG decided that he would have his way and he dragged his common law wife up the stairs by her feet to sexually assault her, despite her clear emotional distress.

He engaged in a screaming tirade of degrading and verbally abusive language towards his wife, acknowledging that she did not want to engage in sexual acts and that was the very reason she needed to, so she could demonstrate a selfless act. This aggravates the sexual assault. [ 45 ] He then left the home, telling her his expectations of her upon his return for his sexual gratification. When that expectation was not met upon his return, he picked her up physically again, brought her to the bedroom, and this time threatened serious harm to her in order to obtain her compliance.

This was an escalation of his previous behaviour to become even more violent. [ 46 ] In both instances of sexual assault, she was vulnerable, in her home, with her children, and due to his comparative size and strength. This is in addition to her vulnerability as a result of their relationship as common law partners. It is exactly this type of behaviour and abuse that Parliament and society require be denounced and deterred. [ 47 ] I also agree that these sexual assaults were planned and deliberate, another aggravating factor: Arcand , supra at para 290 .

Even though they all happened in one day, they were not impulsive. The first incident arose after an argument between the parties about their relationship, but did not occur in the heat of that argument. Rather, the partner went to care for the children and, some time later, CG literally dragged her away and up the stairs with the intention of sexually assaulting her. Yet, he had the presence of mind to set up the safety gate in an effort to keep the children out. After the first sexual assault ended, CG went to run errands.

Before he left and despite his partner’s visible and audible signs of significant upset and lack of consent, CG told her to be ready in costume for his sexual fantasy. Those errands took some time, but the time did not cause him to reflect, cool off, or change his objective. Instead, he again forcibly carried his partner to the bedroom and escalated the violence, with the use of a dresser to frighten and intimidate her into acquiescing to

his demands. These offences involved deliberateness and intentionality of significant degree, which is aggravating. [ 48 ] The Crown submits that an aggravating factor is that the sexual assault occurred in the victim’s home and in the presence of the children. An individual’s home is expected to be the safest place for the security of their person and commission of a crime in the victim’s home is an aggravating factor: Arcand , supra at para. 283 ; Friesen , supra at para. 176 . This is reflected in Parliament’s recognition of abuse of an intimate partner and breach of trust as aggravating factors in the Code .

While I agree that not all intimate partner violence occurs in the home of the victim, I find that this aspect is already encompassed by dealing with her vulnerability and abuse as an intimate partner. [ 49 ] The children must be considered, however. It has been recognized that harm can be caused to secondary victims, such as family members: Friesen , supra at para 63-64 , R v KNDW , 2020 MBCA 52 at para 30 . While I have already mentioned that the presence of the children increased the victim’s vulnerability, this considers the harm to the children themselves.

It relates in particular to the first sexual assault, when he dragged their mother from their presence up the stairs and when the 3-year-old entered the room while the sexual assault was occurring. There is no direct evidence of harm to the children. However, based upon the commentary in Friesen about the harm to children arising from a sexual assault, I find that these children were likely to have experienced some level of harm from seeing their father’s completely inappropriate conduct towards their mother and the upset that it caused her.

This is another aggravating factor, although not as significant as the first two factors. [ 50 ] All of the character references suggest that CG’s conduct arose out of an improper prescription for medication, that resulted in him engaging in out of character behaviour. The Crown sees this as reflective of a lack of insight and understanding by CG. I disagree, as they are not statements attributed specifically to CG, but rather are expressed as opinions of the writers. But I also do not accept the opinions of the lay people.

Other than the evidence that CG had a new prescription in February 2020 that impacted his ability to sleep, it has not been established that he committed these offences as a direct or indirect result of the medication. Dr. Will had access to his medical and was specifically considering what might have contributed to his behaviour; she did not suggest the medication or lack of sleep did so. The opinions of lay persons, no matter how strongly held, do not change that conclusion.

Therefore, these are simply neutral facts that are neither aggravating nor mitigating. [ 51 ] I will also not consider the references to criminal matters of alleged assault upon a partner in the FACS assessment. No convictions arose, as there was no criminal record. Thus, these would be improper and irrelevant in a pre-sentence report. The fact I have a FACS assessment instead does not change that. I have no background with respect to these allegations and find them irrelevant to my decision.

Mitigating Factors [ 52 ] The Crown submits that there are no mitigating factors, as the character references do not show any level of remorse by CG. [ 53 ] The Defence submits that the mitigating factors include the victim’s wish that CG receive the minimum sentence possible, CG’s negative childhood experiences, and his significant steps at rehabilitation through counselling. [ 54 ] In particular, the Defence submits that, although every sexual assault likely results in some harm, the victim here has turned that harm into a positive growth for herself, CG, and the family, such that it is a significant mitigating factor that actually reduces the gravity of the offence.

I have already addressed how support from the victim must be considered, in light of the knowledge courts and society now have about intimate partner violence. In that context, to consider such support, or the positives that the victim may have been able to bring from a devastating event, as a mitigating factor would fly in the face of the direction from both Parliament and appellate courts about the significant wrongfulness and harm of domestic violence.

This is not a mitigating factor in any degree. [ 55 ] CG’s traumatic and painful childhood, involving poverty and physical and emotional abuse, is an important mitigating factor: Friesen , supra at para 174 . Dr. Will expressed in the FACS assessment that “…borderline personality disorder is multifactorial in etiology, but a childhood history of trauma or inconsistently available caregivers has been associated with development of the disorder”.

As some of the behaviours that appeared to drive CG’s conduct were hallmarks of his disorder, this demonstrates how his childhood could provide some insight into his actions. [ 56 ] Neither the Crown nor the Defence directly raised the issue of CG’s mental health diagnosis of borderline personality disorder. That diagnosis is important, as it speaks to both his likelihood to reoffend because of the behaviours that manifest and his efforts at rehabilitation to control those behaviours.

Both are important factors, which are interrelated as rehabilitation may offer longer term protection against a likelihood to reoffend: Friesen , supra at para 122-124 . While the Defence submits that there is not sufficient evidence to establish a risk to re-offend and that the character references describe this behaviour as out of character, I have the FACS assessment by a psychiatrist that was not challenged in anyway. Dr. Will opined that CG was at risk, as a result of his diagnosis and lack of treatment, “…of engaging in problematic conduct within his intimate relationships in the future.

Given the nature of the index offences, this conduct could result in harm to others.” These were not stated in absolutes, but no one can predict the future. Normally, such a risk would result in an increased sentence. [ 57 ] However, it is significantly mitigated by CG’s continued and active participation in therapy as recommended by both Dr. Buhr and Dr. Will. He is to be commended for these efforts. They also reflect a recognition that he needs to change the underlying causes of the behaviour that resulted in these offences.

That is a significant recognition by CG. [ 58 ] While incarceration may impact on those rehabilitation efforts, this does not negate the need for such a sentence in these circumstances and such efforts will need to continue as available within prison. I find that these two factors, risk to reoffend and rehabilitation efforts, one aggravating and one mitigating, balance each other. [ 59 ] I also recognize as a mitigating factor that CG has expressed regret and shame over his terrible actions, including their impact upon his partner and his family. That remorse is reflected in the character references provided.

Parity [ 60 ] Parity is also a consideration when sentencing, that similar offences by similar offenders in similar circumstances receive similar sentences, pursuant to s 718.2(

b) of the Code . [ 61 ] Both the Crown and the Defence offered various cases to address the principle of parity. All of these cases had some similarities, but also some differences from the case before me and provided support for the range submitted by each respective party, thus establishing a range of 4 years to 5 years for sexual assault and 4.5 years to 6.5 years for sexual assault with a weapon.

However, I also note that many of these cases did not consider or pre-dated the addition of s 718.04 and s 718.201, and did not have the benefit of the reasons of Friesen . [ 62 ] The Defence relies significantly on R v Saddleback , 2020 ABPC 53 , as that is case is post- Friesen . That case also involved sexual assault on two occasions of an intimate partner with an escalating degree of physical violence. But importantly, it did not involve a sexual assault with a weapon and there were significant Gladue factors that are not present here.

I find that the sentence in that case does not reflect what is required in these circumstances. [ 63 ] Two other cases also need to be considered on parity. As noted previously, the Court of Appeal case of AB , supra is important in providing direction on the minimum range for sexual assault with a weapon. I also consider the recent case of KNDW , supra from Manitoba, although it is from a different province.

The Court set the sentence at 5 years for sexual assault of an intimate partner, where an aggravating factor was the indirect harm to the children as the sexual assault itself occurred in front of the children.

Concurrent or Consecutive and Totality [ 64 ] The general rule in determining whether to impose a sentence concurrently or consecutively with another sentence “...is that offences that are so closely linked to each other as to constitute a single criminal adventure may, but are not required to, receive concurrent sentences, while all other offences are to receive consecutive sentences”: Friesen , supra at para 155 .

The rule was similarly described in R v Dyck , 2020 ABCA 412 at para 26-27 , noting that a sentencing court needs some reason to give concurrent sentences. [ 65 ] While all these assaults occurred on the same day with the same victim, other factors militate against a finding of concurrent sentencing.

Given the break in time between the sexual assaults, more particularly, the departure of CG from the residence during that break with the continued gratuitous intent to commit a further offence, and his use of a weapon in the second assault, he engaged in such escalation of violence that these two offences should be sentenced consecutively: R v May , 2012 ABCA 213 at para 7 . [ 66 ] However, the assault and first sexual assault are so closely related to one another, that the sentences for each should run concurrently: May , supra at para 8 . [ 67 ] Once I have determined the sentence for each charge, I must then ensure, per s 718.2(c), that the consecutive sentences do not result in a sentence that is unduly long or harsh.

This requires examination again of the gravity of the offence, the responsibility of the offender, and the harm done, to promote proportionality and restraint by not exceeding the overall culpability of the offender: R v MLC , 2020 ABQB 293 . [ 68 ] I accept the Crown’s proposed sentence of 3 months for Count 3, the assault. Considering the need to increase sentencing for intimate partner abuse, as well as the mitigating and aggravating factors, the sentence for Count 2, the sexual assault, is 4.5 years.

These two sentences are concurrent. [ 69 ] Based upon the direction from 1997 that the low end of a sentence for sexual assault with a weapon is 4.5 years, the need to increase sentencing for intimate partner abuse, as well as the mitigating and aggravating factors, the sentence for Count 1, sexual assault with a weapon, is 6 years. [ 70 ] The aggregate of these sentences is 10.5 years. When considering the overall culpability of CG as it relates to proportionality, the gravity of the offence, and his moral blameworthiness, that would be too long and too harsh of a sentence.

However, I do not find it appropriate to simply reduce the sentence to the same level as Count 1, as that would not reflect properly the wrongfulness of, and harm caused by, CG’s conduct.

While CG has put in efforts at rehabilitation, expressed remorse, and has personal circumstances that impacted on his culpability, he engaged in degrading, demeaning, and significant violent behaviour towards his common law partner that escalated significantly over time, breaching the trust of their relationship and her personal integrity and security, taking advantage of her vulnerability, resulting in harm to the victim, his children, and society. [ 71 ] I find that a total sentence of 7 years serves all the principles of sentencing in this matter, including the paramount considerations of deterrence and denunciation and the fundamental principle of proportionality.

As CG has been on release since charges were laid, there was no need to consider a reduction for pre-sentencing custody. Ancillary Orders [ 72 ] Certain ancillary orders are mandatory in these circumstances, as agreed by both Defence and Crown. CG shall be subject to 1) a s 109 weapons prohibition for 10 years, 2) a lifetime SOIRA order in accordance with s 490.012 of the Code , and 3) a mandatory DNA order under s 487.051 of the Code .

[ 73 ] Both the Crown and the Defence submit that the victim fine surcharge should be waived, on the basis of undue hardship. It is noted that CG has been working to support his family financially while on release and he will now face a significant period of incarceration. The surcharge is waived. Heard on the 3 rd day of October, 2022. Dated at the City of Edmonton, Alberta this 21 st day of October, 2022. L.M. Angotti J.C.K.B.A.

Appearances: Kristin Peters for the Crown Stacey Purser for the Accused _______________________________________________________ Corrigendum of the Decision of The Honourable Justice L.M. Angotti _______________________________________________________ 1. Dates of cases were corrected in paragraph 21 2. .Docket number corrected on page 1