R. v. KC, 2023 ABCJ 148

In the Alberta Court of Justice Citation: R. v. KC, 2023 ABCJ 148 Date: 20230630 Docket: 210074688P1 Registry: High Prairie Between: His Majesty the King Crown - and - KC Defendant 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 By Court Order, information that could identify the victim must not be published, broadcast, or transmitted in any way.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. Reasons for Sentence of the Honourable Justice S.P. Hinkley [ 1 ] I convicted KC after trial on this matter on February 7 th , 2023. My reasons for convicting him and findings of fact are located at R. v. KC, 2023 ABPC 37 . [ 2 ] In brief, I found KC to have digitally penetrated the victim’s vagina while she slept in a bed her own home, despite firm admonitions around his conduct in the bed at the relevant time. [ 3 ] The Crown proceeded by

Summary Conviction on this matter, which limits the range of sentence available. My task is passing a fit and appropriate sentence on this offender for this offence. Election of the Crown [ 4 ] The Crown proceeded by

Summary Conviction on this matter. This election alters the range of sentence available to this

Court, and highlights an anomaly created by the passage of Bill C-75,

An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, SC 2019, c 25. What Is the Maximum Sentence for This Offence on

Summary Conviction? [ 5 ] Bill C-75 substantially amended the Criminal Code by increasing the maximum sentence for

Summary Conviction offences to 2 years less a day in gaol, unless otherwise provided by law (emphasis added) . A fulsome review of the text of Bill C-75 reveals numerous instances of prior prescribed sentences being repealed to allow the new s. 787 (1) of the Criminal Code to set the maximum sentence: 787

(1) Unless otherwise provided by law , every person who is convicted of an offence punishable on

summary conviction is liable to a fine of not more than $5,000 or to a term of imprisonment of not more than two years less a day, or to both. (emphasis added) [ 6 ] While the lesser, included offence of assault simpliciter has been incorporated in the new sentencing regime for

Summary Conviction offences, the sentence text of s. 271 (

b) remains unrepealed: 271 Everyone who commits a sexual assault is guilty of (

a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or (

b) an offence punishable on

summary conviction and is liable to imprisonment for a term of not more than 18 months or , if the complainant is under the age of 16 years, to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months. (emphasis added) [ 7 ] As the 18 month maximum sentence in 271 (

b) is “a sentence otherwise provided by law”, it therefore stands in place of the usual assumption of a maximum of two years less a day in gaol provided by s. 787 (1) . In choosing not to repeal and replace s. 271 (b), Parliament created a situation where had I convicted the offender of the lesser, included offence of assault simpliciter, a more onerous sentence would be available.

I am unable to reconcile this apparent and substantial gap in addressing the seriousness of the offence of sexual assault versus its lesser and included offence. [ 8 ] Regardless, I am to assume Parliament intends the effects of the legislation it enacts, and therefore I must give effect to the plain language reading of it [1] . [ 9 ] As a result, I find the maximum sentence available to this Court for this offence is 18 months in gaol.

The Offender [ 10 ] I have had the advantage of reviewing a thorough pre-sentence report with respect to KC. [ 11 ] KC is a 36 year old man with a limited and somewhat dated criminal record, disclosed by the offender to be centered around the abuse of alcohol. KC appears to have some insight into the role alcohol abuse has played in both his upbringing and his own offending pattern but appears to minimize it to the author of the Pre-Sentence Report.

I note the offence for which I convicted him also involved his consumption of a substantial amount of alcohol. [ 12 ] KC has also disclosed childhood trauma which he needs to address. [ 13 ] The overall timbre of the report is of an individual who has addiction and mental health issues which are causing substantial impacts to his life and relationships.

Both the report writer and collateral contacts express concern he is not presently able to demonstrate appropriate understanding and initiative to address them. [ 14 ] Before me today, KC through counsel indicates more insight, echoed by his family, around the need for treatment for both mental health and alcoholism. [ 15 ] I am told KC is a devoted family man, who supports 3 children who are not in his primary care and enjoys substantial support from his extended family.

He has been gainfully employed for most of his adult life and contributes to his community through sporting activities. [ 16 ] KC maintains his innocence to the offence in the report. That is his right, and I note his absence of remorse for it in that context. He does, and has, indicated remorse for the collateral consequences to himself, his family and the victim and her family. The Victim [ 17 ] The victim in this case, through Victim Impact Statements filed by herself and her mother, outlined the devastating psychological effect this offence has visited upon her.

She indicated if she could, she would sell her home to be free of the memory of what happened there. She indicated among other things a loss of trust, feelings of despair, and shame. Her mother reinforced the changes she perceived in her daughter, particularly around her interaction with other people, and the impact on her life. In a supplemental Victim Impact Statement filed, the victim articulates these effects have been long standing.

Position of the Crown [18] The Crown argues for a sentence of 18 months in gaol, served via physical custody, followed by 12 months of probation, andcites cases in support of that position, including R v Sandercock 1985 ABCA 218, R v Arcand 2010 ABCA 363, R v Friesen 2020 SCC9, R v Pettitt 2021 ABQB 773, R v Lepine 2013 NWTSC 19, R v Flowers , R v Kiyawasew 1991 ABCA 345 and R vMyette 2013 ABCA 371.

Position of Defence [19] Defence seeks a sentence of 18 months in gaol, served in the community via a Conditional Sentence Order, with 12 months ofprobation and cites R v Simkins, 2023 ABPC 30 , R v Jensen, 2019 ABQB 873, R v TA 2020 ABPC 114 and R v Skinner, 2021 ABPC 54as authorities in Alberta supporting that position. In the alternative, Defence asks I find this not to be a major sexual assault and thereforeavail myself of a lesser range of sentence in the range of 8 to 9 months in goal followed by 12 months of probation.

Principles of Sentencing [20] Parliament has outlined the purpose and principles of sentence in s. 718 and following of the Criminal Code. I will reproducethe relevant sections below. 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect forthe law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the followingobjectives: (

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

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

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

d) to assist in rehabilitating offenders; (

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

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

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

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion,sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or theoffender’s family, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, includingtheir health and financial situation, (iii.2) evidence that the offence was committed against a person who, in the performance of their duties and functions, was providinghealth services, including personal care services, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, (

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

section 742.1 orreleased on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act, and (vii) evidence that the commission of the offence had the effect of impeding another person from obtaining health services, including

personal care services, shall be deemed to be aggravating circumstances; (

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

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

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

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. Aggravating Factors [21] A sexual assault on a sleeping person is an aggravating factor.

This conclusion is supported by the Alberta Court of Appeal inR v Sitko, 2017 ABCA 434 at para 6: This Court has, on numerous occasions, unequivocally condemned the act of sexually assaulting a sleeping or unconscious complainantand, in doing so, has sent a strong message that sexually assaulting someone in a vulnerable position is an aggravating factor onsentencing. (emphasis added) [22] This offence has had a substantial and lasting effect on the victim in this case, evidenced by the Victim Impact Statements. Mitigating Factors [23] The absence of a related criminal record is not a mitigating factor.

It is instead the lack of an aggravating factor, and thesentence guidance given in Arcand and following presumes an offender without prior record whatsoever. [24] There are no other mitigating factors. While I have heard a great deal about the positive personal antecedents of the offender,for reasons I will articulate later they are not considered as “mitigating factors” in assessing the appropriate sentence here. Applicable Case Law [25] The proper use of appellate guidance on sentence ranges was settled by the Supreme Court in R v Parranto, 2021 SCC 46.

Mytask is, understanding the guidance on proportionality given by the Court of Appeal, crafting a proportional sentence individualized forthis offence and offender. [26] R v Arcand, 2010 ABCA 363, established the appropriate considerations for this court to review in creating an appropriatesentence for this type of offence.

Particularly, it offered guidance on how to deal with categorizing sexual assaults[2]. [27] With respect to digital penetration as being in the category of a major sexual assault, I adopt the reasoning of Chief JusticeCharbonneau of the NWTSC (as she then was) for digital penetration being a major sexual assault, as articulated in R v T.N., 2020NWTSC 43. As was noted in one of the cases quoted by this Court in R. v.

Lepine, 2013 NWTSC 19, referred to by the Crown, there was a timewhere it was believed that there was a significant difference in seriousness between a case involving intercourse and a case involvingdigital penetration. With respect, in my view, that approach was seriously misguided. Both acts constitute a serious violation of thevictim's physical, personal, and sexual integrity.

I entirely agree in this regard with the Court's conclusion in Lepine and I consider it to be a well-settled point in law, at least in thisjurisdiction, a sexual assault that involves digital penetration is a major sexual assault within the meaning of Arcand and A.J.P.J.

Andwhile the more prolonged any assault, the more serious it is, the fact that a sexual assault is not prolonged does not take it outside thatcategory. [28] In this case, having reviewed the circumstances of the offence as a whole and the impact on the victim, I find this sexualassault undertaken in these circumstances is one that a reasonable person would easily have foreseen is likely to cause seriouspsychological or emotional harm.

It is therefore a “major sexual assault” as defined by Arcand and following. [29] I emphasize here the penetrative aspect of the assault, its consequent intrusion into the sexual integrity of the victim, doing soin circumstances which robbed her of having the control over who touched her body in her own home while she was helpless. As notedby R. v. Ewanchuk (SCC), [1999] 1 S.C.R. 330 at para 28, the reason there must be a criminal sanction for this conductis because: …Society is committed to protecting the personal integrity, both physical and psychological, of every individual.

Having control overwho touches one’s body, and how, lies at the core of human dignity and autonomy. [30] Justice Antonio of the Court of King’s Bench (as she then was), reviewed a number of case authorities and various

considerations to weigh in crafting a proportionate sentence in R. v. Shrivastava , 2019 ABQB 663 , which was cited with approval by the Alberta Court of Appeal in R. v. Quintero-Gelvez , 2023 ABCA 64 . [ 31 ] More particularly, Justice Antonio crystallized what effect “good character” has on the crafting of an appropriate sentence in these circumstances, Shrivastava , supra at para 96 : Mr. Shrivastava’s character does not mitigate the gravity of offence or his degree of responsibility. The starting point presumes an offender of good character. I do not find in Mr.

Shrivastava’s status, aptitude, employment or education any circumstances that are exceptional or relevant to principles of sentencing such that they operate in mitigation. Positive conduct witnessed by others is of limited utility in sentencing an offence committed in secret. I find no place for the abstract notion that good deeds can create a bank of credit to be drawn on sentencing. Therefore, I am unable to treat good, or exemplary, character as mitigating. [ 32 ] I contrast this with the well-known and judicially noticed effects of sexual assault on its victims.

Our Court of Appeal most recently articulated this in Quintero-Gelvez , at para 21 : The harms caused to victims of sexual offences have attracted much judicial commentary that need not be repeated. A sexual assault is an inherent violation of human dignity, freedom of choice, sexual autonomy, and control over one’s own body. Physical harm (short of bodily harm, which would not fall within the starting point definition) is possible. Psychological and emotional harm are likely.

Survivors of sexual assault may experience physical and psychological effects including depression; anxiety; sleep, panic and eating disorders; difficulty forming relationships or damage to existing relationships; substance dependence; self-harm and suicidal behaviour: R v Goldfinch , 2019 SCC 38 at para 37 ; Arcand at paras 175-180 .

See also Friesen at paras 51-64, 79-84 ; R v Hajar , 2016 ABCA 222 at paras 62-70 … [ 33 ] I find the range of sentence for major sexual assaults in non-intercourse fact situations is two to three years in gaol, adjusted for mitigating factors, aggravating factors and Gladue factors. R v Sitko , 2017 ABCA 434 , R v Milosevic , 2019 ABQB 199 , R v Krueger , 2017 ABQB 459 . Does the Election of the Crown Alter What a Proportionate Sentence Is? [ 34 ] In electing to proceed by

Summary Conviction, the Crown has limited the range of sentence available to this Court. [ 35 ] Does the election of the Crown in this case restrict the maximum available sentence to the “worst offence” or the “worst offender”? [ 36 ] It does not. [ 37 ] The Supreme Court of Canada affirmatively extinguished this line of reasoning in R. v. Solowan , 2008 SCC 62 , where Justice Fish at para 15 states: A fit sentence for a hybrid offence is neither a function nor a fraction of the sentence that might have been imposed had the Crown elected to proceed otherwise than it did. More particularly, the sentence for a hybrid offence prosecuted summarily should not be “scaled down” from the maximum on

summary conviction simply because the defendant would likely have received less than the maximum had he or she been prosecuted by indictment. Likewise, upon indictment, the sentence should not be “scaled up” from the sentence that the accused might well have received if prosecuted by

summary conviction. [ 38 ] Regardless of Crown election, my primary task is to assess what a fit and proportionate sentence is, and if such a sentence is or exceeds the maximum sentence available, then the maximum sentence is the appropriate sentence. [ 39 ] In these circumstances, reviewing the aggravating and mitigating circumstances of this offence, the particulars of this offender and considering the guidance of binding case law, the proper and proportionate sentence here is between 30 to 36 months in gaol.

This is well in excess of the 18-month maximum allowed by the election of the Crown. [ 40 ] The only appropriate gaol sentence here is the maximum sentence. [ 41 ] Considering the circumstances of this offender as outlined by the presentence report, and further considering rehabilitation as sentencing objective for KC, and considering the positions of counsel, I will order a period of probation to follow that sentence. Is a Conditional Sentence Order Appropriate? [ 42 ] There is no mandatory minimum sentence for this offence on the facts I have found.

The maximum sentence is a sentence of incarceration which does not exceed two years. I must consider whether serving that sentence pursuant to a Conditional Sentence Order would be appropriate. [ 43 ] A Conditional Sentence Order may have a substantial deterrent effect on both the offender and public at large. The imposition of significant restrictions on the liberty of a person over an extended period, coupled with rigorous enforcement and defined sanctions for failure has a demonstrated deterrent effect.

Conversely, the Supreme Court of Canada in Proulx [3] , acknowledges there are circumstances where the offence committed requires the offender receive a sentence of physical incarceration in order to craft a sentence of proportional gravity to the offence. [ 44 ] In this jurisdiction, I have reviewed the following cases, cited from a sentence appeal of a CSO in R v TS, 2023 ABKB 157 where Justice Hayes-Richards reviewed the state of the law regarding CSO’s on similar circumstances to these.

[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. [ 45 ] The cases above are quite different from the offender I have before me. [ 46 ] LP is a non-binding decision involving very young offender without a prior record with very different antecedents. [ 47 ] Jensen, a case also cited by Defence in their materials, involved a person barely an adult at the time of the offence, who promptly confessed their involvement to police and was without prior record, and who was further was afforded the substantial mitigation of a guilty plea. [ 48 ] The appeal in TS involved a youthful accused without a record, who was afforded the substantial mitigation of a guilty plea, and the conditional sentence imposed was requested by the Crown. [ 49 ] From my review of the law, I surmise mitigating factors, rehabilitative aspects and youthfulness are substantial considerations on whether a CSO can have the required deterrent effects on a particular offender. [ 50 ] Those factors are absent here. [ 51 ] Defence has cited additional cases in Alberta where a CSO has been granted for sexual assaults. [ 52 ] In reviewing Justice Fradsham’s decision in Simkins , I find the circumstances to be dissimilar to the facts I found regarding this offender’s behaviour.

In particular the factual matrix differs substantially and lacks the aggravating factor of visiting this assault upon a sleeping complainant in her own home. [ 53 ] In Skinner , the factual matrix is fundamentally different from the facts here found, and is of little assistance. [ 54 ] In TA , the offender was a person without prior criminal record, of Indigenous heritage who had entered a guilty plea, with substantial Gladue factors.

This required a different evaluation of his personal moral culpability, and different mitigating factors were present than the case at bar. [ 55 ] In deciding whether a Conditional Sentence is appropriate, I have considered the following: (

a) The paramountcy for denunciation and deterrence, and particularly the need for general deterrence, grounded in the guidance of the Court of Appeal outlined in Arcand in 2010 and continuing through to Quintero-Gelvez in 2023. (

b) This is a major sexual assault. The usual range of sentence for this offence in these circumstances starts at 3 years in gaol, itself well outside the range for a conditional sentence, which I take as a further indication of the need to emphasize deterrence. (

c) I have found, but for the election of the Crown, the proper and appropriate sentence to exceed two years to properly reflect denunciation and deterrence. (

d) There are no exceptional circumstances in this case to justify a substantial departure from the usual range of sentence. (

e) A review of this offender’s antecedents, unlike some of the cases cited above where a CSO was imposed, does not offer any overarching reason to blunt the need for deterrence for this offence, this offender and the public at large. [ 56 ] Weighing all these factors, I have decided this offence as committed by this Defendant cannot be one served as a Conditional Sentence Order. A sentence served in this manner would fail to properly emphasize deterrence and fail to be proportionate to the gravity of the offence and degree of responsibility of this offender.

Conclusions [ 57 ] Having found this to be a major sexual assault, balancing the aggravating and mitigating factors for this offence and this offender, taking into account the gravity of the offence and his degree of responsibility for it, the only proportionate sentence is the maximum sentence of 18 months in custody, followed by 12 months of probation. [ 58 ] Having reviewed the need for deterrence and the circumstances of this offender and this offence, serving that sentence via a Conditional Sentence Order would not be proportional to the gravity of the offence and degree of responsibility of the offender.

Sentence [ 59 ] KC, I order you to be imprisoned for a period of 18 months or 540 days from today’s date. Thereafter, I order you be placed on probation for a period of 12 months. Ancillary Orders [ 60 ] This being a primary designated offence, the Defendant will be required to provide his DNA to the correctional authorities forthwith pursuant to

section 487.051 of the Criminal Code . [ 61 ] The Defendant would normally be required to register pursuant to SOIRA for a period of 10 years. Counsel for the Defendant having given notice to apply for an exception to same, a hearing will be scheduled in due course to decide the matter. [ 62 ] No orders are granted pursuant to

section 110 of the Criminal Code . [ 63 ] The imposition of a victims of crime surcharge is waived. Heard at the Town of High Prairie, Alberta on the 30 th day of June, 2023. Dated at the Town of High Prairie, Alberta this 30 th day of June, 2023. S.P. Hinkley A Justice of the Alberta Court of Justice Appearances: Kelly Payne for the Crown Anny Wang for the Defendant (at trial) Melissa R. Erickson for the Defendant (at sentence)