R v KS, 2023 ABKB 363

Court of King’s Bench of Alberta Citation: R v KS, 2023 ABKB 363 Date:20230616 Docket: 200781086Q2 Registry: Hinton Between: His Majesty the King Crown - and - KS Offender Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the victim cannot be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. _______________________________________________________ Sentencing Decision of the Honourable Justice Kevin Feth _______________________________________________________ I. Introduction [ 1 ] On January 9, 2023, KS was found guilty of sexual assault, contrary to s 271 of the Criminal Code of Canada, RSC, 1985, c C-46 .

Following extensive submissions from the parties, KS is now before the Court for sentencing. [ 2 ] The parties agree that a fit sentence demands imprisonment but disagree about the length of the custodial sentence. They also agree about several ancillary orders but disagree about KS being registered as a sex offender under the Sex Offender Information Registration Act , SC 2004, c 10 ( SOIRA ).

[ 3 ] I will address the length of imprisonment before turning to the issue of registration in the national sex offender registry. II. Circumstances of the offence [ 4 ] In May 2020, KS hosted a camping party on his parents’ rural property. Several guests attended, including the female victim (VIC) who was 18 years old. KS was 20. VIC and KS were acquainted but not friends. Both consumed a substantial amount of alcohol that day. [ 5 ] The sexual assault occurred late at night in a secluded area of the property, several hundred metres from a campsite.

KS and VIC were laying on the ground next to each other and talking. KS unexpectedly climbed on top of VIC, briefly choked her, and slapped her across the face. He pulled down her leggings, digitally penetrated her vagina, and then forcibly penetrated her vagina with his penis. He was not wearing a condom. [ 6 ] VC resisted and said “No” multiple times during the assault. [ 7 ] Vaginal intercourse, including aggressive thrusting, continued for at least several minutes. KS also digitally penetrated VIC’s anus.

During the attack, the victim bargained with KS not to force anal sex on her. [ 8 ] Towards the end of the assault, KS stood up and thrusted his penis in and out of VIC’s mouth without a condom. He then noticed blood on his hand. He was aware of a medical condition making him susceptible to penile bleeding. He later discovered a substantial amount of blood on the inside of his pants. The Crown established beyond a reasonable doubt that KS was bleeding to some extent while his penis was in VIC’s mouth. [ 9 ] KS stopped when he noticed the blood.

He briefly spoke with VIC and then left the scene, returning to the campsite. [ 10 ] VIC walked back to the campsite on her own. She entered a car occupied by some friends. She was visibly upset. After a few minutes, she began to vomit. She continued to throw up until she was dry heaving. Eventually she fell asleep but when she woke up, the heaving resumed. A friend drove her from the property to a parent’s house where the heaving continued. VIC then went to a hospital where a sexual assault examination was performed.

She reported the incident to the police, resulting in the charge for which KS has been convicted. [ 11 ] At the trial, KS described a different version of the incident in which VIC consented to sexual activity. I rejected his exculpatory evidence about the events. III. Personal circumstances of the offender [ 12 ] KS is currently 23 years old. He was born and raised in a rural Alberta community. He has a grade 12 education and formal training as an auctioneer.

He lives on his parents’ farm and assists them with the farming operation when not working as an auctioneer. [ 13 ] He has no prior criminal record. [ 14 ] Seven letters of support from friends and a former instructor describe his previous good character, including that he is hard working, kind, respectful, and career-focused. He was trusted to care for others. He continues to have strong support among his family, co-workers, and friends. IV. Positions of the parties [ 15 ] The Crown seeks a sentence of 5 years imprisonment, in particular because of the gravity of the offence and the aggravating circumstances.

Denunciation and deterrence are paramount. Several ancillary orders are requested, including registration for 20 years in the sex offender registry. [ 16 ] The Defence contends that a fit sentence is 3 years imprisonment. KS is a youthful, first-time offender, with good prospects for rehabilitation, so sentencing restraint should be exercised. The ancillary orders are not contested, except for registration under SOIRA . V. Principles of sentencing [ 17 ] Determining a fit sentence is an exercise of applying sentencing principles to the facts of the case and the circumstances of the offender. [ 18 ]

Section 718 of the Criminal Code directs that the fundamental purpose of sentencing is to protect society and to contribute to respect for the rule of law and maintenance of a just, peaceful, and safe society by imposing sanctions that fulfil the objectives of denunciation, deterrence, separation of the offender from society where necessary, rehabilitation, reparations to victims and the community for the harm done, and promotion of a sense of responsibility in offenders. [ 19 ] Under s 718.1 of the Criminal Code , the sentence must be proportionate to the gravity of the offence and the degree of moral blameworthiness of the offender.

Sentences that are either too lenient or too harsh can undermine the public’s confidence in the administration of justice. [ 20 ] For major sexual assault offences, denunciation and deterrence are the primary objectives in sentencing: R v Arcand , 2010 ABCA 363 at para 274 [ Arcand ]; R v McKnight , 2023 ABCA 72 at para 34 . The sentence must send a message of condemnation and discourage other people from engaging in similar behaviour. Vulnerable members of the community must be protected from offenders who engage in violent behaviour for their own sexual gratification. [ 21 ] Parity is another guiding principle.

Under s 718.2(

b) of the Criminal Code , “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.” Other sentencing cases may assist the Court in

arriving at a fit sentence. However, sentencing is a highly individualized exercise. Comparing other sentencing decisions has limited value, except for identifying a general range: R v Kollie , 2021 ABCA 389 at paras 29-30 [ Kollie ] . [ 22 ] Restraint is also a controlling principle.

The Court should utilize the least intrusive sentence and where incarceration is appropriate, the least duration of imprisonment that will achieve the overall purpose of applying a just sanction. [ 23 ] When sentencing for a major sexual assault, the Court may use a “starting point” analysis to guide the determination of a fit sentence. The starting point may be viewed as the mid-point in the traditional range of sentences for a particular sort of crime.

However, a sentencing judge is not required to utilize a starting point analysis: R v Friesen , 2020 SCC 9 at paras 37 , 162; R v Parranto , 2021 SCC 46 at paras 30 , 32. [ 24 ] A major sexual assault was defined in Arcand at para 171 : A sexual assault is a major sexual assault where the sexual assault is of a nature or character such that a reasonable person could foresee that it is likely to cause serious psychological or emotional harm, whether or not physical injury occurs. The harm might come from the force threatened or used or from the sexual aspect of the situation or from any combination of the two.

A major sexual assault includes but is not limited to non-consensual vaginal intercourse, anal intercourse, fellatio and cunnilingus. [ 25 ] The starting point for a major sexual assault is 3 years incarceration: R v Sandercock , 1985 ABCA 218 at para 17 [ Sandercock ]; Arcand at paras 132, 169-172 ; R v Quintero-Gelvez , 2023 ABCA 64 at para 2 [ Quintero-Gelvez ]. The starting point assumes the offender is a mature person of previously good character with no criminal record who is convicted after trial: Sandercock at para 17 ; Arcand at para 169 . VI.

Gravity of the offence [ 26 ] The parties agree that this assault is properly characterized as a major sexual assault. The attack involved a substantial measure of physical force, extensive violations of VIC’s bodily integrity, physical restraint while KS was on top of her, forced removal of clothing, and lasting psychological harm. The changing nature of the sexual activity intensified the degradation.

The assault lasted for several minutes while the victim expressed her resistance. [ 27 ] The medical and other evidence did not establish beyond a reasonable doubt that VIC suffered any bruising around the neck or to her face from the choking and the slap. Some small abrasions and bruises were observed on her body by the attending physician, but the trial evidence did not establish beyond a reasonable doubt that the bruises and abrasions were caused by the assault rather than social activities in which VIC participated earlier that day.

No other physical injuries were identified. [ 28 ] The psychological harm inflicted by this assault will be discussed more fully when I address aggravating circumstances. However, the gravity of the offence demands a significant sentence. VII. Moral blameworthiness of the offender [ 29 ] KS is highly blameworthy. He deliberately disregarded VIC’s personal autonomy. He used his size to control the victim on the ground. He persisted in the assault even when the victim clearly communicated that she did not want to participate in sexual activity. The changes in the nature of the assault increased the degradation.

The assault continued for several minutes. [ 30 ] The Crown acknowledges that the assault was initially impulsive. KS went to the secluded area in the hope of seeing VIC, but the assault was not premediated. Nevertheless, the victim’s communications with KS during the assault and the changes in position during the sexual activity presented opportunities for KS to reconsider and stop. He did not. [ 31 ] KS demonstrated wilful indifference to his victim. I do not accept the Crown’s submission that he intended to be vicious, nor do I find that he was attempting to injure VIC.

However, he engaged in rough sex, including the choke and the slap, for his own sexual gratification. [ 32 ] To the extent his behaviour may be attributed to youthful immaturity and a lack of empathy, I accept that can be mitigating. I will address those considerations later in these Reasons. VIII. Aggravating and mitigating circumstances [ 33 ] The principle of proportionality compels the Court to consider any aggravating or mitigating circumstances relating to the offence or the offender, and to increase or reduce the sentence depending on the weight given to those circumstances: s 718.2 of the Criminal Code .

a) Aggravating factors [ 34 ] The Criminal Code and caselaw identify circumstances that are aggravating on sentencing. Aggravating factors often inform the offender’s moral blameworthiness but can also exacerbate the gravity of the offence.

i) Unprotected sex [ 35 ] Unprotected sex exposes the victim to greater risk of unwanted pregnancy and disease: R v EJB , 2018 ABCA 239 at para 47 ; R v Deck , 2006 ABCA 92 at para 20 . Here this aggravating factor is compounded by the blood from KS’s penis entering the victim’s mouth, which increased the health risks and the degradation. [ 36 ] I find this to be a substantial aggravating factor. ii) Significant impact on the victim

[37] A significant impact on the victim, considering her age and other personal circumstances, is an aggravating factor: s 718.2(a)(iii.1) of the Code. When the assault occurred, VIC had only recently turned 18 years of age. She was a stable, trusting, and happy youngwoman. The assault has changed her. [38] The Victim Impact Statement describes significant consequences. VIC has experienced persisting fears about her safety andthe safety of her friends and family, a loss of trust in people, apprehension when walking to her vehicle at night, and public shaming frompeople who doubted her story about the assault.

She describes flashbacks, difficulty sleeping, and everyday events triggering heremotionally. The psychological toll compromised an intimate partner relationship. [39] VIC struggles with feelings of guilt and shame despite having done nothing wrong. After three years, she still feels“damaged” and is haunted by anxiety and distrust. [40] In recounting the consequences of this assault, I do not want VIC left with the impression that the Court sees her only as abroken victim. Since the crime was committed, she has gone to college, started to live independently, and undertaken a new career.

Shehas exhibited inner strength and resilience. She accurately describes herself as a survivor. [41] VIC’s mother also provided a Victim Impact Statement explaining the profound effect on her as a parent. She feels(incorrectly) that she did not keep her daughter safe and laments her inability to take away VIC’s suffering. Her statement is a poignantreminder of the harm inflicted on family and friends when a loved-one is damaged by a crime. [42] The starting point analysis contemplates that the victim of a major sexual assault will likely experience serious psychologicalor emotional harm: Arcand at para 171.

However, VIC has suffered long-term and pronounced psychological repercussions. I find thather circumstances are slightly aggravating because they exceed the psychological or emotional harm contemplated by the starting point. [43] In considering the aggravation caused by the psychological and emotional harm, I have cautioned myself not to double-countthat impact when considering the gravity of the offence, including the extent of the violence and degradation.

b) Mitigating factors [44] The mitigating circumstances do not excuse the behaviour grounding the conviction, but they can diminish the seriousness ofthe offence when compared to other cases or reduce the moral blameworthiness of the offender.

i) Youthful and immature offender [45] The Crown acknowledges that KS is a youthful offender and that his immaturity is mitigating in the circumstances of thiscase, but the mitigation is attenuated by the violent nature of the assault. [46] Youthfulness can be “a mitigating factor because youthful offenders may have a lower moral culpability due to theirimmaturity, and they may have greater prospects for rehabilitation”: Kollie at para 15. Immaturity can affect a young offender’sreasoning and decision making: R v Scott, 2015 ABCA 99 at para 13. [47] Youthfulness is not automatically a mitigating consideration.

As offences increase in severity, especially crimes of violence,the mitigating impact of age decreases and deterrence becomes more prominent: Kollie at para 14. [48] Nonetheless, a first penitentiary sentence for a youthful offender usually respects the principle of restraint. In R v Borde(2003), 172 CCC (3d) 225, (CA), at para 36, Justice Rosenberg of the Ontario Court of Appeal cautioned againstexcessive focus on denunciation and deterrence: The length of a first penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciationand general deterrence.

Where, as here, the offender has not previously been to penitentiary or served a long adult sentence, the courtsought to proceed on the basis that the shortest possible sentence will achieve the relevant objectives. [49] Even for major sexual assault offences, where denunciation and deterrence are the primary objectives, a sentencing judgeexercises restraint in the use of imprisonment for a first-time offender, at least to the extent proportionality allows: R v AV, 2020 ABQB190 at paras 25-26; R v TCF, 2022 ABKB 643 at paras 75-77 [TCF]; R v Abreha, 2022 ABKB 830 at paras 51-55 [Abreha]. [50] I agree, however, with the comments of my colleague Justice Yamauchi in Abreha at para 54 that youthfulness and theabsence of a prior criminal record should not acquire prominence over denunciation and general deterrence where a violentsexual offence occurs.

The target audience for the messages of deterrence and denunciation includes youthful and immatureadults. [51] The sentence must remain sufficiently harsh so that public condemnation is plain and other young people are deterred.Nonetheless, the first period of imprisonment should be as short as possible while serving those objectives, especially where the offenderhas good prospects for rehabilitation: TCF at para 77. [52] I am satisfied that this sexual assault is partially attributable to KS’s youth, immaturity, and lack of empathy at the time of theoffence.

The trial evidence depicted a young man who was caught up in partying, wanting to look at naked women, and drinking alcoholwithout caution. The letters of support describe a young man who was often responsible and trustworthy, but the party atmosphere on theday in question revealed another side to his personality. [53] The mitigating effect of this factor is also influenced by his prospects for rehabilitation, which I will address next. ii) Good character and prospects for rehabilitation [54] The letters of support describe KS as a caring, responsible, and moral person.

However, good character can be confused with

family stability, work history, popularity, and success: Arcand at para 135 . Character references usually have limited value when sentencing for a major sexual assault. The concern was explained in R v Shrivastava , 2019 ABQB 663 at para 77 : ... character traits displayed in public are of questionable relevance to offences committed in secrecy. In particular, since sexual offences are “usually perpetrated in private, out of sight and knowledge of friends and associates”, evidence of community reputation has “little probative value” ...

Sexual offences “are committed by people from all walks of life, out of the public eye, clandestinely and secretly, often to the surprise of people who thought they knew the perpetrator best” ... [ citations omitted ] [ 55 ] The Alberta Court of Appeal made a similar observation in Arcand at para 136 : ... where sexual offences are concerned, good character has limits to its scope. The good character premise is that an offender should be able to contend in mitigation that he or she acted as a law-abiding citizen generally.

It is difficult to see the logic of assigning mitigation credit for apparent prior compliance with social norms in the face of a serious sexual assault. [ 56 ] Recognizing the limited utility of good character evidence when addressing a major sexual assault, KS focuses on the relevance to his prospects for rehabilitation. [ 57 ] The letters before me, while describing a reserved, respectful, and likeable young man, offer only modest insight into his potential for rehabilitation. [ 58 ] I accept, nevertheless, that he has the capacity to learn from mistakes and to grow as a human being.

He was young and immature when the offence occurred. Empathy is often acquired with life experience. His otherwise good character and the support network he has among family and friends suggest that he is likely a good candidate for rehabilitation. The limited information before me about his personal circumstances and insights into the underlying causes of his misconduct preclude me from arriving at a more definitive assessment of his prospects for rehabilitation.

c) Neutral factors [ 59 ] The absence of a prior criminal record is a neutral factor: Quintero-Gelvez at para 19 . The starting point assumes the offender was of previously good character. [ 60 ] KS was under the influence of alcohol during the offence, but he does not describe a level of intoxication that interfered with his ability to make decisions, exercise judgment, or to understand the consequences of his actions. For sentencing purposes, intoxication is not a mitigating factor: R v Cabrera , 2021 ABCA 291 at para 71 .

While intoxication can be indicative of spontaneity, I have already concluded that KS acted impulsively. His state of intoxication is not a factor in determining a fit sentence. IX. Guidance on parity [ 61 ] The Crown, recognizing the highly individualized nature of sentencing for sexual assault, refers to only a few cases for guidance on the sentencing range. [ 62 ] In R v Oka , 2022 ABCA 265 , a sentence of 5 years was upheld for sexual assault involving choking to overcome resistance.

However, unlike the circumstances before me, the victim was choked to the point of unconsciousness and suffered extensive physical injuries, including permanent scarring on her face. The gravity of the offence was more pronounced. [ 63 ] In R v McKnight , 2023 ABCA 72 , the offender committed five major sexual assaults against women. The individual sentences ranged from 2.5 to 4 years.

However, the assaults were part of a pattern of predatory behaviour in which the offender invited each victim to his home for an evening of socializing, took advantage of their vulnerability, and subjected them to major violations of their personal integrity. Both the gravity of the offences and the offender’s moral blameworthiness were described as high. None of the separate sentences exceeded four years. One of the assaults was described as the victim waking up to vaginal intercourse without a condom and forced oral sex. The absence of a condom was aggravating.

The victim was able to participate in social activities the next day, suggesting that the psychological and emotional harm was lower than in the situation before me. The sentence for that crime was 3 years, apparently because the trial judge found no compelling reason to vary from the 3-year starting point. [ 64 ] In R v FS , 2022 ABPC 186 , the offender took the victim to an industrial area, took off her panties, pushed up her dress and had non-consensual vaginal intercourse with her while not wearing a condom. The circumstances were described as a breach of trust.

The gravity of the offence was described as “extremely high”. The victim suffered psychological and emotional harm. Given the breach of trust, the gravity of the offence and the offender’s moral blameworthiness were somewhat higher than in the case before me. The offender was sentenced to 5 years of imprisonment. [ 65 ] KS did not refer to specific cases, relying instead on the Court’s understanding of the sexual assault sentencing caselaw and emphasising the application of sentencing principles. X. Conclusion on custodial sentence [ 66 ] KS is convicted of a major sexual assault.

I have utilized the three-year starting point, but the starting point must be increased to reflect the gravity of the offence, including the magnitude of the violence and the degradation. The offence was aggravated by KS’s failure to use a condom, which exposed the victim to pregnancy, infection, and the transfer of blood, and the significant psychological impact on her. [ 67 ] In mitigation, I have exercised restraint because KS is a youthful and immature first-time offender who likely has good prospects for rehabilitation. He faces the somber reality of imprisonment in a federal penitentiary.

[ 68 ] KS’s degree of moral blameworthiness is high. He had consumed alcohol, but the effects did not undermine the intentionality of the offence. His upbringing and personal background offer no explanation for this violent sexual assault. [ 69 ] The absence of a criminal record is a neutral factor, but his previous good character makes him a stronger candidate for rehabilitation. [ 70 ] The primary sentencing objectives are denunciation and general deterrence. Specific deterrence plays a lesser role.

Rehabilitation remains an important factor. [ 71 ] Taking all considerations into account, I impose a sentence of 4 years incarceration. XI. Ancillary Orders [ 72 ] The Crown seeks the following ancillary Orders to which KS does not object:

a) A mandatory 10 year weapons prohibition, pursuant to s 109(1)(

a) of the Criminal Code ;

b) A mandatory DNA order, pursuant to s 487.051(1) of the Criminal Code ;

c) A prohibition on contacting VIC, pursuant to s 743.21(1);

d) A mandatory $200 victim fine surcharge, pursuant to s 737 of the Criminal Code . [ 73 ] I grant each of those orders. [ 74 ] The Crown also requests that KS register in the national sex offender registry, as required by s 490.012(1) of the Criminal Code . KS applies for an exemption on the basis that mandatory registration offends his rights under s 7 of the Charter of Rights and Freedoms, s 8,

Part 1 of the Constitution Act, 1982 being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 (the Charter ) . Specifically, he contends that the adverse impact on his right to liberty bears no relation or is grossly disproportionate to the objectives in s 490.012 of the Criminal Code . He has filed an application seeking a constitutional remedy pursuant to s 24(1) of the Charter . [ 75 ] The Crown does not contest my jurisdiction to grant a remedy but submits that an exemption is inappropriate in these circumstances. [ 76 ] Both parties informed me that my jurisdiction to provide a remedy has been the subject of conflicting judicial consideration.

I will therefore address that issue before turning to whether KS’s circumstances warrant an exemption. XII. Registration as a sex offender [ 77 ] The purpose of registration under SOIRA is to assist police services in preventing and investigating crimes of a sexual nature by requiring convicted sex offenders to supply certain information: s 2(1) of SOIRA . [ 78 ] Registration compels the offender to report to a police station and to supply extensive personal information for entry on the national sex offender registry.

SOIRA also imposes ongoing reporting obligations which are extensive and invasive, including updating the personal information, disclosing plans for any absence from the offender’s residence lasting one week or more, providing employment and volunteering information, and divulging any changes to residential and employment addresses. An offender must report annually to the police and remains subject to random police checks.

Failure to comply with any of the reporting requirements carries the possibility of prosecution and a maximum penalty of two years in jail, a fine, or both: s 490.031(1) of the Criminal Code . [ 79 ] Registration is mandatory for a designated offence by operation of s 490.012(1) of the Criminal Code . Sexual assault is a designated offence. For a first designated offence, registration in the sex offender registry must be for 20 years: s 490.013(2)(

b) of the Code . [ 80 ] On October 28, 2022, the majority of the Supreme Court of Canada held that the mandatory registration obligation imposed by s 490.012 of the Criminal Code violates the right not to be deprived of liberty except in accordance with the principles of fundamental justice, contrary to s 7 of the Charter .

Section 490.012 was found to be of no force and effect by operation of s 52(1) of the Constitution Act, 1982 : R v Ndhlovu , 2022 SCC 38 [ Ndhlovu ]. [ 81 ] The Supreme Court in Ndhlovu also concluded that s 490.013(2.1) of the Criminal Code , which imposes a lifetime registration requirement in certain circumstances, is unconstitutional.

That provision has no bearing on the issues before me. [ 82 ] The majority of the Supreme Court concluded that to immediately declare s 490.012 invalid with retroactive effect could endanger the public interest because sex offenders at high risk of re-offending would no longer be required to comply with SOIRA : Ndhlovu at para 140 . Consequently, the Court suspended its declaration of invalidity regarding s 490.012 for one year so that Parliament could implement legislative amendments complying with the Charter . [ 83 ] The majority granted Mr.

Ndhlovu an exemption to the one-year suspension (at para 141), which had the effect of excluding that offender from the registration and reporting obligations under SOIRA based on the general principle that “a claimant who brings a successful constitutional challenge [should] benefit from their efforts in litigating the issue.” [ 84 ] In addition, the majority suggested that an offender who has been registered since 2011, but whose rights under s 7 of the Charter are still violated, can ask for a personal remedy pursuant to s 24(1) of the Charter in order to be removed from the registry.

The offender must demonstrate that SOIRA ’s impact on their liberty bears no relation or is grossly disproportionate to the objective of s 490.012: Ndhlovu at para 140 .

[ 85 ] Since Ndhlovu was rendered, exemptions have been granted by several Canadian courts, relying upon s 24(1) of the Charter , to excuse primarily low-risk offenders from the registration and reporting requirements. See as examples: R v Shokouh , 2023 ONSC 1848 at paras 24-29 ; R v Capot Blanc , 2023 NWTTC 7 at para 23 [ Capot Blanc ]; R v Purcell , 2023 SKCA 56 at paras 108-109 ; R v Cusick , 2022 ONCJ 590 at para 115 [ Cusick ]; R v Simailak , 2022 NUCJ 39 ; R v Luis , 2022 CM 4016 ; R v Levesque , 2023 CM 2001 .

a) This Court has the jurisdiction to grant an exemption [ 86 ] Whether this Court has jurisdiction to grant an exemption has given rise to conflicting Court of King’s Bench of Alberta authorities. [ 87 ] In R v TS , 2023 ABKB 157 , at paras 14 and 18 , this Court granted an exemption, relying on s 24(1) of the Charter . The offender was found to be a low risk to re-offend. Justice Hayes-Richards concluded that registration and reporting under the SOIRA regime were not connected to the objective of assisting the police in preventing and investigating crimes.

The parties did not contest jurisdiction, so Justice Hayes-Richards did not expressly address that issue. [ 88 ] In R v Lepki (unreported), 200698983 (February 23, 2023) [ Lepki ], Justice Whitling found no jurisdiction to provide a constitutional exemption. In coming to that conclusion, my colleague noted the reasoning in Ndhlovu for granting a declaration of invalidity rather than the remedy of reading down s 490.012 of the Criminal Code .

The effect of reading down s 490.012 would have been to reinstate judicial discretion to exempt offenders who are not at increased risk of re-offending or who would suffer grossly disproportionate impacts. The majority in Ndhlovu held that the deleterious effects of s 7 Charter violations during the one-year suspension were outweighed by the salutary benefit to the public interest in preventing and investigating sexual offences committed by high-risk offenders (paras 139-140).

Justice Whitling found that these comments telegraphed a direction to sentencing judges in other cases not to entertain exemptions. [ 89 ] On February 24, 2023, Whitling J provided oral reasons for sentence in R v Farris (unreported), 200605038 (February 24, 2023). At the hearing, both counsel agreed that a constitutional exemption is available. However, Justice Whitling invited counsel to provide supplemental written submissions on whether a constitutional exemption was available to a person in the accused’s circumstances. [ 90 ] Based upon his

interpretation of paragraphs 138-140 of Ndhlovu , reading that decision as a whole, and repeating the comments he made in Lepki , Justice Whitling concluded: the Supreme Court of Canada did not confer or otherwise recognize a discretion on the part of sentencing judges to exempt offenders from registration at the time of sentencing on the basis of a low risk to re-offend or on the basis of gross disproportionality. In other words, I do not find the present situation to be akin to that created by Carter v.

Canada (Attorney General) , 2016 SCC 4 , where the Court granted a s. 24(1) exemption to a certain class of persons who were then permitted to apply to the provincial superior courts for relief. [ 91 ] Justice Whitling ultimately determined he did not have jurisdiction under Ndhlovu to grant a constitutional exemption to the accused from the SOIRA registration requirement. [ 92 ] A similar analysis and conclusion were offered by a judge of the Canada Court Martial in R v Kohlsmith , 2023 CM 3002 at paras 45-49 . [ 93 ] The decisions in Lepki and Farris are currently under appeal.

Crown counsel informed me that jurisdiction will not be contested by the Crown in the appeals. [ 94 ] With the greatest respect to my colleague, I have concluded that this Court has jurisdiction to grant a constitutional exemption . While I agree with Justice Whitling that the majority of the Supreme Court in Ndhlovu did not clearly indicate that a person who is required to register during the currency of the one-year suspension may apply for a constitutional exemption, the majority did not expressly foreclose that possibility.

Moreover, the majority acknowledged the possibility of personal exemptions for offenders who were already registered under SOIRA prior to the release of its decision (at para 140) or, in the case of Mr.

Ndhlovu, an offender who is convicted of more than one designated offence and brings a successful Charter application (at para 141) . [ 95 ] Given the Supreme Court majority’s sentiments about the overbreadth of s 490.012 of the Criminal Code , it would be incongruous to limit constitutional exemptions to the situations where an offender is convicted of more than one designated offence or is already registered, but not to the situation where an offender has received their first designated offence conviction and is not at an increased risk to reoffend.

See Ndhlovu at paras 79 and 111 . [ 96 ] This Court’s jurisdiction to grant constitutional remedies stems from the Constitution Act, 1982 , not from the Supreme Court of Canada. Accordingly, the decision in Ndhlovu does not limit this Court’s jurisdiction to grant a remedy under s 24(1) of the Charter for a s 7 violation. [ 97 ] Section 24(1) of the Charter states: 24.

(1) Anyone whose rights and freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate in the circumstances. [ 98 ] The Supreme Court of Canada recognizes that s 24(1) affords a remedy for violations of constitutional rights occurring during a suspension of invalidity: R v Albashir , 2021 SCC 48 at paras 67 and 69 [ Albashir ] and Attorney General (Ontario) v G , 2020 SCC 38 at para 83 [ Attorney General ] . [ 99 ] In Attorney General , the Supreme Court held at para 83 that where declarations of invalidity are suspended, granting an individual exemption under s 24(1) would often be “appropriate and just.” The Supreme Court found “granting individual exemptions

pursuant to s. 24(1) of the Charter will often balance the interests of the litigant, the broader public, and the legislature” (para 83). [ 100 ] The majority of the Supreme Court in Albashir , at para 67 , held that an individual remedy is available during the period of suspension “if the accused can demonstrate that conviction under the legislation found to be constitutionally infirm would be a breach of their own Charter rights, and if granting an individual remedy would not undermine the purpose of suspending the s 52(1) declaration.” [ 101 ] I agree with Justice Whitling to the extent that this Court’s authority to grant an exemption to the SOIRA registration requirement should be exercised with restraint.

The majority in Ndhlovu chose not to read down s 490.012(1) or to grant a retroactive declaration of invalidity because of concerns about frustrating “the compelling public interests that require a period of transition, creating uncertainty and removing the protection that justifies the suspension in the first place” (at para 140). The reference to “uncertainty” alludes to excesses of judicial discretion.

However, the majority’s focus was on the importance of “ensuring high-risk offenders are registered on SOIRA for public safety.” [ 102 ] The majority accepted that where an offender’s personal circumstances show no increased risk of re-offending, registration and reporting under SOIRA have no connection to assisting police in preventing and investigating sex offences: Ndhlovu at paras 79, 83 and 87 . In those circumstances, in my view, an exemption does not compromise the purpose underlying the suspension of the declaration of invalidity.

However, as the risk profile increases, the possibility of undermining that purpose similarly rises. [ 103 ] A constitutional exemption is an individual/personal remedy. The commentary in Ndhlovu does not foreclose this possibility nor vary the test for a constitutional exemption. [ 104 ] For an offender to receive an individual remedy under s 24(1) of the Charter , the following must be established:

a) Subjecting them to the mandatory registration and reporting requirements under the SOIRA would constitute a breach of their Charter rights; and

b) Granting an individual remedy would not undermine the purpose of suspending the s 52(1) declaration of invalidity.

See: Shokouh at para 23 ; Albashir at para 67 . [ 105 ] In satisfying the test, the offender must show that the imposition of the SOIRA order in their particular circumstances is grossly disproportionate or bears no connection to the purpose of assisting police in the prevention and investigation of sex offences: Capot Blanc at paras 23 and 57 ; Cusick at paras 115-116 . [ 106 ] In most of the Canadian decisions where a constitutional exemption was granted, the sentencing judge explicitly found the offender to be at a “low risk” or “unlikely to reoffend.” [ 107 ] The majority of the Supreme Court of Canada in Ndhlovu , however, was concerned about the registration of offenders who are not at an increased risk of committing a future sex offence or of reoffending.

See paras 79, 90, 92, 111 and 138 for examples of this particular language being used. In granting an exemption to Mr. Ndhlovu, the majority noted the sentencing judge’s findings that he was “unlikely to reoffend,” but also that the judge had “absolutely no concerns” that he would reoffend (at para 141). The latter finding means Mr.

Ndhlovu had absolutely no increased risk of reoffending. [ 108 ] In my view, the standard of “not at an increased risk of reoffending,” rather than a “low-risk offender” or an offender who is “unlikely to reoffend” more closely follows the language used by the majority of the Supreme Court and best aligns with the majority’s respect for Parliament’s desire to limit judicial discretion, as reflected in the majority’s choice of remedy.

That standard avoids or minimizes undermining the purpose of suspending the declaration of invalidity. [ 109 ] The majority explained, commencing at para 85, that “no increased risk of reoffending” might be assessed by considering an offender’s personal circumstances. The majority listed examples of factors that might predict increased sexual recidivism at para 94, “such as age, unusual or atypical sexual interests, sexual preoccupation, lifestyle instability or poor cognitive problem solving (to name a few).” [ 110 ] In

summary, I find this Court has jurisdiction to consider a request for a constitutional exemption if the offender has filed a Charter application asserting a breach of their own Charter rights. As KS has filed that application, I have the necessary jurisdiction.

b) The existing evidence does not demonstrate that an exemption should be granted [ 111 ] While KS is likely a good prospect for rehabilitation, that finding is insufficient to establish that KS is not at an increased risk to reoffend or that the risk profile is so low that I should otherwise grant an exemption. I cannot make the necessary determination based upon the limited evidence before me. I have some short letters of support, the trial evidence, and the sentencing submissions about KS’s personal circumstances.

However, the modest details do not offer a fulsome risk profile. [ 112 ] No expert risk assessment or even a pre-sentence report has been tendered. [ 113 ] KS argues that a formal risk assessment is not invariably required to obtain an exemption. I agree. However, the nature of the necessary evidence is contextual. [ 114 ] In Ndhlovu , the majority of the Supreme Court at paras 109-110 noted that sentencing judges make risk assessments routinely, including those informed by expert assessments, but did not suggest that expert evidence is always required.

However, the majority cautioned that, in the past, judges may have improperly exempted offenders from registration and reporting requirements relying on myths and stereotypes about sexual assault. That caution serves to remind sentencing judges about the value of expert assessments in appropriate circumstances.

[ 115 ] Here, I am presented with a major sexual assault involving a high level of violence. KS denied the non-consensual nature of the assault. The attack appears to be out of character, but little explanation is provided for the underlying cause or whether KS has gained any insight about his behaviour. In these circumstances, better information is required. For example, empirically validated predictors of increased sexual recidivism could be explored by an expert. [ 116 ] During the oral submissions, Defence counsel requested the opportunity to seek a formal risk assessment if I thought that to be necessary.

As I see the potential for rehabilitation, I am prepared to grant that opportunity. The Defence shall have until August 31, 2023 to submit a formal individualized risk assessment, unless I otherwise direct. Heard on the 13 th day of April, 2023 . Dated at the Town of Hinton, Alberta this 16 th day of June, 2023. Kevin Feth J.C.K.B.A. Appearances: Philip M.A. LeFeuvre Crown Prosecutors’ Office for the Crown Evan McIntyre Pringle Law for the Offender