R v TS, 2023 ABKB 157

Court of King’s Bench of Alberta Citation: R v TS, 2023 ABKB 157 Date: 20230316 Docket: 201159480S1 Registry: Edmonton Between: His Majesty the King Appellant ( Respondent on Cross-Appeal ) - and - TS Respondent ( Appellant on Cross-Appeal ) 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 By Court Order, information that could identify the victim must not be published, broadcast, or transmitted in any way.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 M. Hayes-Richards _______________________________________________________

Appeal from the Sentence by The Honourable Judge Renee Cochard Dated the 27 th day of July, 2022 ( 2022 ABPC 167 , Docket: 201159480P1) I. INTRODUCTION [ 1 ] On July 27, 2021, TS pleaded guilty to sexually assaulting his 16-year-old stepsister, AO contrary to s 271 of the Criminal Code of Canada , RSC 1985, c C-46 ( Criminal Code ).

On July 27, 2022, the Sentencing Judge imposed a sentence of 18 months jail to be served in the community pursuant to the conditional sentence provisions under s 742.1 of the Criminal Code (the CSO ). [ 2 ] TS (the Appellant) appeals the Sentencing Judge’s imposition of the CSO and argues that the sentence was disproportionate as a result of failing to properly consider the relevant factors, principles, and objectives.

The Crown (the Respondent) cross-appeals on the Sentencing Judge’s imposition of certain conditions in the CSO and failure to impose a mandatory order requiring the Appellant to comply with the Sex Offender Information Registry Act , SC 2004, C 10 ( SOIRA ) for a specified period of time, pursuant to ss 490.012 and 490.013 of the Criminal Code . II. FACTS AND PROCEDURAL HISTORY [ 3 ] The facts to which the Appellant pleaded guilty are reproduced in R v TS , 2022 ABPC 167 (the sentencing decision) at para 2 . In

summary, the Appellant and AO are stepsiblings. At the time of the offence, the Appellant was 19 and AO was 16. In September 2020, the Appellant was visiting from out of province and staying at the family residence where AO lived (AO’s residence). The sexual assault occurred in the basement of AO’s residence on a sofa. Before the sexual assault occurred, the Appellant provided alcohol to AO, who drank to the point where she felt ill. AO told the Appellant that she felt dizzy and was going to “pass out.” The non-consensual sexual contact began with the Appellant touching AO’s leg.

AO got up from the sofa and went to the washroom. The Appellant followed AO, grabbed AO by the hips, and guided AO back to the sofa. The non-consensual sexual contact continued with the Appellant touching AO’s leg, kissing AO’s neck, groping AO’s buttocks, touching AO’s breast under her shirt, and pulling AO on top of him. When AO tried to get up from the sofa a second time, the Appellant gripped AO’s legs to prevent her from leaving.

During the sexual touching, the Appellant made comments to AO that included “you’re good looking,” “you’re hot,” “it’s only weird if you make it weird,” and “relax.” The sexual touching stopped when AO physically pushed the Appellant off her. Once AO was able to escape from under the Appellant, she ran to her bedroom and locked the door. [ 4 ] The Appellant entered his guilty plea by telephone during a docket court appearance and admitted to the facts through counsel, who also stated that the Appellant did not recall what happened that night due to intoxication.

The matter was adjourned for a sentencing hearing. [ 5 ] There were a series of adjournments of the sentencing hearing, which are outlined at para 3 of the sentencing decision. On July 22, 2022, the Sentencing Judge issued an oral decision with no reasons and advised that written reasons would follow. On August 30, 2022, the Sentencing Judge released her written reasons in the sentencing decision.

The sentencing decision was published, but it was not provided to counsel. [ 6 ] At the time of the sentencing hearing, the decision of R v Ndhlovu , 2022 SCC 38 [ Ndhlovu ] on the unconstitutional nature of ss 490.012 and 490.013(2.1) of the Criminal Code had not been released. As such, the Sentencing Judge was required to impose a mandatory order requiring the Appellant to comply with SOIRA , pursuant to s 490.012 and 490.013 of the Criminal Code (the SOIRA order). The Sentencing Judge knew she had to impose the SOIRA order but was mindful that Ndhlovu was on reserve.

The Sentencing Judge relied on the fact that the Criminal Code allowed for a 90-day window to set a date for a hearing on the imposition of a SOIRA order. She therefore adjourned the matter to October 5, 2022 to set a date for the SOIRA order hearing.

October 5, 2022 was also scheduled as the date that the Appellant was to report to the Sentencing Judge on the programs into which he had enrolled pursuant to a condition of the CSO . [ 7 ] On August 23, 2022, Notices of Appeal were filed. [ 8 ] On October 5, 2022, the Sentencing Judge acknowledged that the SOIRA order had not been dealt with and noted that Notices of Appeal had been filed and a stay of sentence pending appeal had been granted to the Appellant. The date of November 7, 2022 had been previously set for the SOIRA order hearing and the matter was adjourned to that date.

There is no record of the SOIRA order hearing being conducted on November 7, 2022. [ 9 ] On October 28, 2022, Ndhlovu was released. The Court declared ss 490.012 and 490.013(2.1) of the Criminal Code to be of no force and effect but suspended the declaration of invalidity for s 490.012 for one year from the date of the decision. The Court set out a procedure for applying for an exemption from the suspension of the declaration of invalidity (see para 141). III. ISSUES

[ 10 ] The Appellant argues that the Sentencing Judge erred in three ways: (1) by relying on R v Friesen , 2020 SCC 9 [ Friesen ] in a sexual assault case involving an adult victim; (2) by finding aggravating factors not supported by the evidence, overemphasizing other aggravating factors, and giving no weight to certain mitigating factors; and (3) by imposing a disproportionate sentence. [ 11 ] The Respondent argues that the Sentencing Judge further erred in two ways: (1) by failing to impose a mandatory SOIRA order; and (2) by imposing CSO conditions that are unreasonable and illegal.

The CSO conditions at issue are the following: • $4000 donation to a sexual assault centre in lieu of 150 hours of community service work; • Purchase and read Know My Name by Chanel Miller and provide to the Sentencing Judge a five-to-10-page report on what the Appellant learned about the harms done to victims of sexual assault; • To appear in front of the Sentencing Judge on a specified date to advise her of the programs into which the Appellant had enrolled. IV. ANALYSIS

A) Standard of Review [ 12 ] An appellate court can only intervene to vary a sentence if (1) the sentence was demonstrably unfit, or (2) the sentencing judge made an error in principle that had an impact on the sentence. Errors in principle include an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor. The weighing or balancing of factors can form an error in principle only if the sentencing judge exercised their discretion unreasonably by emphasizing one factor or by not giving enough weight to another.

Not every error in principle is material: Friesen at para 26 . [ 13 ] If a sentence is demonstrably unfit or a sentencing judge’s error in principle had an impact on sentence such that appellate intervention is justified, the appellate court will apply the principles of sentencing afresh to the facts without deference to the existing sentence, even if that sentence falls within the applicable range: Friesen at para 27 .

However, the appellate court will defer to the sentencing judge’s findings of fact or identification of aggravating and mitigating factors if those findings were not affected by an error in principle: Friesen at para 28 .

B) The SOIRA Order [ 14 ] The parties agree that I have jurisdiction to deal with the SOIRA order. [ 15 ] The Sentencing Judge did not refuse or decline to impose a SOIRA order. Rather, the Sentencing Judge attempted to adjourn the SOIRA order hearing until after Nhdlovu was released. It is unclear from the record why the SOIRA order hearing never occurred. Regardless, no SOIRA order was made. Since the period of suspension of invalidity of ss 490.012 of the Criminal Code pursuant to Nhdlovu is still in effect, I must address whether to impose the SOIRA order in this case. [ 16 ] The Appellant applies for a remedy under s 24(1) 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 ) for an exemption from the suspension of the declaration of invalidity of s 490.012 of the Criminal Code . The Respondent concedes that an exemption is warranted in this case. I agree. [ 17 ] The Sentencing Judge found that there was no evidence that the Appellant had approached AO sexually before the night of the offence or that the Appellant will reoffend. The Sentencing Judge further found that it was unlikely that the Appellant would commit a sexual assault against a person under 18 years of age or otherwise reoffend.

In her analysis of the appropriateness of a CSO , the Sentencing Judge found that if the Appellant were to serve his sentence in the community, it would not endanger the safety of the community, particularly because he lives in another city from AO. [ 18 ] Based on these findings by the Sentencing Judge, there is no connection between subjecting the Appellant to a SOIRA order and the objective of capturing information about offenders that may assist police in preventing and investigating sex crimes: Nhdlovu at para 141.

Therefore, an exemption from the suspension of the declaration of invalidity of s 490.012 of the Criminal Code is granted. As a result, in relation to the Appellant, s 490.012 of the Criminal Code is of no force and effect and no SOIRA order will be imposed.

C) The Impugned CSO Provisions [ 19 ] The Respondent argues that the impugned CSO provisions are illegal and should therefore be struck. The Appellant agrees. [ 20 ] The impugned provisions are as follows: • Condition 10(c): In the alternative [to 150 hours of community service work], you shall provide a donation of $4,000 to a sexual assault centre..., no later than the end of the 17 th month.

• Condition 15: You shall purchase and read Chanel Miller’s book Know My Name and shall provide [the Sentencing Judge], through your counsel, a five-to-10-page report on what you have learned about harm done to victims of sexual assault by September 30, 2022. • Condition 17: You shall attend by Webex before [the Sentencing Judge] on October 5, 2022, at 9:00 am and shall advise her of the programs you have enrolled in. [ 21 ] I agree that the above conditions should be struck from the Appellant’s CSO .

I agree with the Respondent that the Sentencing Judge had no authority to require the Appellant to attend before her or report to her after the Appellant’s sentence had been imposed. There is no statutory authority that allows for such a procedure: R v Ermine , 2010 SKCA 47 at para 18 . Once the sentencing hearing was concluded, the Sentencing Judge was functus . Further, the imposition of a donation in lieu of community service is an inappropriate condition to be included in a CSO : R v Russell , 1982 ABCA 336 at para 2 ; R v Choi , 2013 MBCA 75 at para 67 .

D) The Length of the CSO [ 22 ] The Appellant concedes that the Sentencing Judge did not err in dismissing a conditional discharge as a fit and appropriate sentence. However, the Appellant argues that the Sentencing Judge failed to consider whether a suspended sentence with probation was an appropriate sentence. Further, the Appellant argues that the Sentencing Judge imposed a sentence that was disproportionate to the gravity of the offence and the moral blameworthiness of the Appellant.

The Appellant submits that the Sentencing Judge found aggravating factors that were not supported by the evidence, overemphasized other aggravating factors, and gave no weight to some of the mitigating factors. 1) Did the Sentencing Judge Err in Applying the Principles and Objectives from Friesen ? [ 23 ] The Appellant argues that the Sentencing Judge erred by applying the principles and objectives as outlined in Friesen to the circumstances of this offence.

Since AO was 16 at the time of the offence, she was legally capable of consent, and therefore should be considered an adult for the purposes of sentencing. [ 24 ] In Friesen at para 1 , the Court is clear that the case is “about how to impose sentences that fully reflect and give effect to the profound wrongfulness and harmfulness of sexual offences against children.” In footnote 1 to that paragraph, the Court clarifies: For the purposes of these reasons, the terms “child” and “children” mean persons under the age of 18.

References to “boys”, “girls”, “young women”, “young people”, “youth”, “teenagers”, and “adolescents” should all be understood to refer to persons who are children. Where specific statutory provisions distinguish between persons under the age of 16 and persons under the age of 18, we make this clear in the reasons. [ 25 ] Having had his attention drawn to footnote 1 in Friesen , the Appellant conceded that the principles in Friesen as specified by the Court in relation to victims under the age of 18 apply to this case.

However, the Appellant submits that it would be an error of law if the Sentencing Judge increased the Appellant’s sentence based on the reasoning in Friesen as it applies to victims under 16 years of age. I agree. However, there is nothing in the Sentencing Judge’s reasons that suggest she increased the Appellant’s sentence because of the Court’s reasoning in Friesen on that issue. [ 26 ] The Sentencing Judge properly outlined the considerations that a sentencing court must have in sentencing an offender who has sexually offended against a child, relying on paras 77 – 86 of Friesen .

These include evaluating the gravity of the offence by considering the inherent wrongfulness of the offence, the potential harm suffered, and the actual harm suffered. Further, the Sentencing Judge properly outlined the significant factors that a sentencing court must consider in determining a fit and proper sentence involving sexual violence towards children. These include the likelihood to re-offend, the abuse of a position of trust or authority, the frequency and duration of the assault, the age of the victim, the degree of physical interference, and victim participation.

Finally, the Sentencing Judge properly considered the effect of s 718.01 of the Criminal Code , which prioritizes the objectives of denunciation and deterrence when sentencing a person for abuse of a victim under 18 years of age, s 718.2(ii.1) of the Criminal Code , which identifies as statutorily aggravating a victim under 18 years of age, and s 718.2(iii) of the Criminal Code , which identifies as statutorily aggravating a breach of trust relationship. [ 27 ] There is nothing in the Sentencing Judge’s decision that suggests she was not alive to the fact that the victim was 16 at the time of the offence.

In her evaluation of whether a conditional discharge was appropriate, the Sentencing Judge stated, “it would be difficult to visualize a case involving the sexual assault of a minor with a statutorily aggravating breach of trust ever justifying a conditional discharge after Friesen ” (para 25 of the sentencing decision; emphasis added). The Sentencing Judge referred to the cases of R v Day , 2020 ABQB 453 and R v Bains , 2021 ABPC 20 , which involved victims who were 14 years old. The Sentencing Judge properly distinguished the cases on their facts, the offences charged, and the Crown election.

With respect to the age of the victims, there is nothing in the Sentencing Judge’s decision that suggests she used the sentences imposed in those cases to determine a fit and appropriate sentence for the Appellant. At no point in the Sentencing Judge’s decision did she mention the sentences imposed in those cases. [ 28 ] The Appellant concedes that it was not an error for the Sentencing Judge to use the factors set out in Friesen to assess the seriousness of the offence and the moral blameworthiness of the offender (see para 32 of the sentencing decision).

However, the Appellant submits that the Sentencing Judge improperly raised the Appellant’s moral blameworthiness by using the principles from Friesen as they relate to offences committed against children under the age of 16. [ 29 ] There is nothing in the Sentencing Judge’s reasons that suggest this error was made. The Sentencing Judge properly recognized that this was not a minor sexual assault, such as a quick grab of the buttocks or touching of a breast and walking away after being turned down (paras 21 and 27 of the sentencing decision).

The Sentencing Judge also properly recognized that the seriousness of the sexual assault was not diminished because the Appellant was too drunk to remember the incident, or because it was committed

against an adolescent who was his stepsister. There was no error in the Sentencing Judge’s finding that the Appellant’s moral blameworthiness increased due to the duration of the incident and the position of trust that the Appellant held as the victim’s stepbrother.

None of these considerations suggest that the Sentencing Judge improperly evaluated the Appellant’s moral blameworthiness based on the principles outlined in Friesen as they relate to offences committed against children under 16 years of age. 2) Did the Sentencing Judge Err in Finding Aggravating Factors Not Supported by the Evidence? [ 30 ] The Appellant submits that the Sentencing Judge erred in finding that the offence was not spontaneous, and that Appellant had sexualized AO as he watched her grow into a young woman (sentencing decision at para 13).

The Appellant submits that this is unsupported by the evidence, and that lack of premeditation was specifically argued by both counsel at the sentencing hearing. [ 31 ] I agree that the Sentencing Judge’s finding on this point is unsupported by the evidence and an error.

However, the Sentencing Judge did not find premeditation as an aggravating factor when she was determining a fit and appropriate sentence. [ 32 ] The Sentencing Judge outlined the following as aggravating factors at paras 32 and 33 of the sentencing decision: • The abuse of a position of trust by a family member; • The duration of the sexual violence; • The age of the victim as being under 18; • The degree of physical interference (recognizing that this factor cannot be viewed in isolation and that the facts may not reflect a high degree of physical interference, but they involved restraint and pursuit); • AO’s level of intoxication; • The offence being committed in AO’s home; • Statutorily aggravating factors relating to the breach of a trust relationship, a victim under the age of 18, and significant harm to the victim. [ 33 ] In the Sentencing Judge’s analysis of whether a conditional discharge would be appropriate, there is no mention of premeditation.

Nor is there mention of premeditation in the Sentencing Judge’s analysis of the appropriateness of a CSO . As such, I find the Sentencing Judge’s error on this point did not have an impact on the sentence imposed. 3) Did the Sentencing Judge Overemphasize Breach of Trust? [ 34 ] The Appellant argues that while the Sentencing Judge correctly identified breach of trust as an aggravating factor, the Sentencing Judge erred by placing the breach of trust on the high end of the spectrum.

Further, the Appellant argues that the Sentencing Judge erred by finding that the breach of trust further aggravates the degree of physical interference and the duration of the assault. [ 35 ] The Appellant takes no issue with the Sentencing Judge’s articulation of the law but submits that there was no specific evidence to support the finding that this offence fell on the high end of the spectrum of abuse of trust. The Sentencing Judge articulated the following reasons for her finding on this issue (para 33(

B) of the sentencing decision): • The Appellant and AO were stepsiblings.

The fact that they did not share blood did not diminish the harm AO suffered as a result of the Appellant’s actions. • AO must have experienced “shock when a person she considered her brother, who she shared a home with for a number of years, suddenly begins to sexually assault her in her own home...[and] had to run away to get away from him.” • AO looked up to the Appellant as her big brother and would have expected him to protect her, not sexually assault her. [ 36 ] The evidence before the Sentencing Judge was as follows: • The Appellant and AO were stepsiblings.

The Appellant’s father married AO’s mother (part of the facts read into the record by the Crown on July 27, 2021); • The Appellant and AO lived across the hall from each other for four years (victim impact statement of AO’s mother); • AO referred to the Appellant as her brother (victim impact statement of AO’s father) and saw him as a brother figure (victim impact statement of AO’s mother); • The Appellant and AO share a little sister (victim impact statements of AO’s father and mother).

Their sister is going to grow up in a divided family because of this (victim impact statement of AO dated August 4, 2021) and will never have a normal family (victim impact statement of AO dated August 10, 2021); • AO was in trust of the Appellant as her brother in her mind (victim impact statement of AO’s mother); • It was never on AO’s radar that she would need to protect herself from the Appellant who was a trusted family member (victim impact statement of AO’s mother). [ 37 ] The evidence before the Sentencing Judge supports her finding that the abuse of trust fell at the high end of the spectrum. The

Sentencing Judge’s findings focus on the familial relationship between the Appellant and AO. When articulating the law surrounding abuse of trust, the Sentencing Judge correctly recognized that not all trust relationships are the same, positions of trust exist on a spectrum, and more harm will be suffered where there is a closer relationship as with a family member (para 33(

B) of the sentencing decision; emphasis added). It is clear from the victim impact statements that the Appellant and AO shared a younger sister, lived together in the same house as siblings for several years, the Appellant was a trusted brother to AO, and the Appellant was a trusted member of their blended family.

Given the evidence before the Sentencing Judge on this point, I see no error in the Sentencing Judges’ finding that the breach of trust was at the high end of the spectrum of abuse of trust. [ 38 ] The Appellant argues that the Sentencing Judge used the breach of trust to aggravate the frequency and duration of the sexual assault and the degree of physical interference, and this had the effect of double-counting the aggravating factor of breach of trust.

I disagree that the Sentencing Judge made any such error. [ 39 ] When considering the sufficiency of reasons, an appeal court should read the lower court’s reasons as a whole in the context of the evidence, the arguments and the hearing, with an appreciation of the purposes or functions for which they are delivered. The focus of the appellate court should be on why the judge made the decision, not how the judge arrived at the conclusion: R v REM , 2008 SCC 1 at paras 16 and 17 .

The concern about double-counting only has validity if the net effect of it is to result in an excessive total sentence: R v Wharry , 2008 ABCA 293 at para 34 . [ 40 ] The fact that the Sentencing Judge referenced breach of trust when evaluating the frequency and duration of the offence and degree of physical interference does not mean that she double-counted breach of trust to aggravate those factors.

When I consider the Sentencing Judge’s reasons as a whole, the reference to breach of trust in the impugned findings is not made to aggravate those factors, but rather to put them in context. [ 41 ] In relation to the frequency and duration of the sexual assault, the Sentencing Judge found that despite this being only one incident, when that factor is combined with the breach of trust, the Appellant’s moral blameworthiness increases. The Sentencing Judge did not say that the breach of trust aggravates the frequency and duration of the sexual assault.

Rather, she used the breach of trust to put the single incident into context with the trust relationship that existed between the Appellant and AO. [ 42 ] Similarly, in relation to the degree of physical interference, the Sentencing Judge found that even though the degree of physical interference appeared to not be high, it was compounded by the restraint, the time involved, and the breach of trust. The Sentencing Judge did not say that the breach of trust aggravates the degree of physical interference. Rather, she used the breach of trust to put into context the impact of the physical interference on AO.

The Sentencing Judge made it clear that this was her purpose when she stated, “the physical interference in this case cannot be viewed in isolation. It must be viewed in the context that [the Appellant] was AO’s stepbrother, and that AO would have trusted him to protect her, not assault her” (para 33(

E) of the sentencing decision). [ 43 ] Even if the Sentencing Judge erred in using the breach of trust to aggravate the frequency, duration, and degree of physical interference of the sexual assault, I do not see that this error had any impact on sentence. When read as a whole, there is nothing in the Sentencing Judge’s reasons that suggest she found the Appellant to be more blameworthy or increased the sentence as a result of those determinations.

In imposing the CSO , the Sentencing Judge properly identified denunciation and deterrence as the primary objectives of sentencing in this case, while also recognizing the need for rehabilitation of the Appellant. 4) Did the Sentencing Judge fail to give effect to mitigating factors? [ 44 ] The Appellant argues that the Sentencing Judge failed to give credit for the early guilty plea, the steps taken by the Appellant since the offence, and the Appellant’s genuine remorse.

Specifically, the Appellant argues that the mitigating factors were not given effect because the Sentencing Judge imposed the maximum CSO available. [ 45 ] I agree that the Sentencing Judge’s comments about the Appellant’s lack of memory surrounding the events somehow equating to a lack of insight do not make sense (see para 35 of the sentencing decision).

However, I do not agree that the Sentencing Judge failed to give effect to the mitigating factors. [ 46 ] The Sentencing Judge recognized the value of the Appellant’s guilty plea, that early in the prosecution the Appellant accepted responsibility for his actions, and that the Appellant’s guilty plea saved AO and her family members from having to participate in a trial. The Sentencing Judge also recognized that the Appellant was remorseful about the harm he caused.

Further, the Sentencing Judge recognized that the Appellant had taken steps to address his alcohol abuse, which the Appellant acknowledged was the underlying cause of his behaviour toward AO. [ 47 ] The Appellant argues that these findings by the Sentencing Judge amount to little more than lip service given the sentence imposed. The Appellant submits that the effect of the guilty plea and the Appellant’s pre-sentence efforts at rehabilitation were not accounted for in the sentence because the Sentencing Judge imposed the maximum CSO available in law. I disagree.

The maximum sentence for this offence when the Crown proceeds summarily is 18 months incarceration. By imposing a CSO instead of actual incarceration, the Sentencing Judge gave effect to these mitigating factors. Taking into account the aggravating factors, had the Appellant been found guilty after trial, the maximum sentence of 18 months incarceration would have been within the range of appropriate sentences for this offence. [ 48 ] The Appellant further argues that the Sentencing Judge minimized the Appellant’s pre-sentence efforts at rehabilitation.

The Appellant submits that the Sentencing Judge unfairly speculated that the Appellant’s underlying problem was his attitude towards women and their right to control their own bodies and boundaries. This finding diminished the effect of the Appellant’s alcohol abuse counseling because it did not relate to healthy sexual relationships and the meaning of consent. I disagree that the Sentencing Judge’s comments diminished the effect of the Appellant’s alcohol abuse counseling.

The Sentencing Judge recognized that the Appellant’s alcohol abuse counseling may not address a possible underlying issue surrounding the Appellant’s attitude towards women and their right to control their own bodies and boundaries. Even if these comments were made in error by the Sentencing Judge, I find it had no effect on the ultimate sentence imposed.

5) Did the Sentencing Judge impose a disproportionate sentence? [ 49 ] The Appellant argues that once the Sentencing Judge dismissed the application for a conditional discharge, she failed to consider whether the principles and objectives of sentencing could be met with a suspended sentence and probation or a shorter CSO .

The Appellant submits that, as a result, the sentence imposed was outside of the range for similar cases where the Crown has elected to proceed summarily. [ 50 ] I agree that it was an error for the Sentencing Judge to have not considered the possibility of a suspended sentence and probation or a shorter CSO .

However, I do not agree that the sentence imposed was disproportionate. [ 51 ] At the sentencing hearing, the Appellant’s counsel made extensive submissions on the appropriateness of a conditional discharge but made no submissions on the appropriateness of a suspended sentence with probation, other than asking the Court to consider it as an alternative to a discharge. [ 52 ] The Appellant submits that the cases provided to the Sentencing Judge by the Crown provided no assistance in determining the sentencing range for this offence because they all involved major sexual assaults where the Crown proceeded by indictment.

The Appellant further submits that the Respondent’s position that an 18-month CSO is on the low end when considering the circumstances of this case is similarly unsupported. [ 53 ] The Appellant argues that the appropriate sentence should fall somewhere between a suspended sentence with 12 months probation and a CSO for 12 months. The Appellant provides eight cases within that range that he submits are similar to this case. None of these cases were provided to the Sentencing Judge.

Only one case involved a breach of trust ( R v Skinner , 2021 ABPC 54 ) and all but one case ( R v SBG , 2012 ABPC 82 [ SBG ]) involved victims over 18 years of age. SBG was decided long before Friesen , so the precedential value of that case is limited. [ 54 ] I do not find any of the cases provided by the Appellant helpful in determining the range of sentence for this offence committed by this offender in these circumstances.

I found two cases where an 18-month CSO was imposed that had similar circumstances to this case: • In R v LP , 2022 NSPC 23 [ LP ], the offender (19.5 years old) and the victim (18 years old) were cousins. The victim saw the offender as her best friend and like a brother. Both the victim and the offender consumed alcohol and cannabis. The victim passed out on a couch next to the offender. During a glimpse of consciousness, the victim felt the offender’s hand on her bare breast and his finger in her vagina. The Crown proceeded summarily, and the offender was convicted after trial.

The offender had no prior criminal record, struggled with anxiety and depression, and was at extremely low risk to reoffend. The sentencing judge imposed an 18-month CSO with strict conditions followed by a period of probation. • In R v Jensen , 2019 ABQB 873 , the offender and victim were both 18 years old and were friends. The victim fell asleep at the offender’s apartment and woke to find the offender massaging her legs and arms, touching her breasts under her clothes, and digitally penetrating her vagina. The Crown proceeded summarily, and the offender pleaded guilty.

The offender had no criminal record, no drug or alcohol addictions, and was steadily employed. The sentencing judge imposed an 18-month CSO followed by a period of probation. [ 55 ] While there are facts in both cases that distinguish it from this case, there are some significant similarities. This suggests that an 18-month CSO is within the range of sentences available for this offence committed by this offender in these circumstances. The sentence imposed was the maximum CSO available, but it was not the maximum sentence available. [ 56 ] I see no reason to interfere with the sentence imposed.

It is within the range of sentences available, and appropriately takes into account the aggravating and mitigating factors, and the principles and objectives of sentencing. V. CONCLUSION [ 57 ] The Respondent’s appeal is allowed.

In response to the Respondent’s first issue, I take jurisdiction to deal with the imposition of a SOIRA order. [ 58 ] In response to the second issue, the CSO is modified as follows: • Condition 10 – the following shall be deleted: “In the alternative, you shall provide a donation of $4000 to the sexual assault centre in [city name deleted], no later than the end of the 17 th month”. • Condition 15 shall be deleted in its entirety. • Condition 17 shall be deleted in its entirety. [ 59 ] The remaining terms and conditions of the CSO and the duration of the CSO remain. [ 60 ] Further, the Appellant’s appeal is allowed in part.

The Appellant’s application to exempt him from the suspension of the declaration of invalidity of s 490.012 of the Criminal Code is granted, s 490.012 of the Criminal Code is of no force and effect, and no SOIRA order will be imposed on the Appellant. [ 61 ] The remainder of the Appellant’s appeal is dismissed. [ 62 ] The Appellant was granted a stay of sentence pending the outcome of this appeal. That stay is lifted as of the date of filing for this decision. The Appellant shall report to his CSO supervisor no later than the end of business on Friday, March 31, 2023.

Heard on the 10 th day of January, 2023. Dated at the City of Edmonton, Alberta this 16 th day of March, 2023. M. Hayes-Richards J.C.K.B.A. Appearances: Michael Dunn for the Appellant (Respondent on Cross-Appeal) Evan V McIntyre for the Respondent (Appellant on Cross-Appeal)